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In re Marriage of Allen

October 01, 2003

IN RE MARRIAGE OF DANA L. ALLEN, PETITIONER-APPELLEE, AND ROBERT W. ALLEN, RESPONDENT-APPELLANT.


Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 93-D-6997 Honorable Robert Baron Judge, Presiding

The opinion of the court was delivered by: Presiding Justice McDADE

PUBLISHED

This appeal is from the entry of an order in the circuit court of Will County amending a qualified domestic relations order (QDRO) previously entered in this matter. The respondent argues that the trial court lacked jurisdiction to enter the amended order, and also asserts that the original judgment in this case did not reflect the true intent of the parties. For the following reasons, we affirm the entry of the amended QDRO, finding that the judgment accurately reflected the parties' intent.

FACTS

The petitioner, Dana Allen, and respondent, Robert Allen, were divorced on October 6, 1995, after 18 years of marriage. The judgment of dissolution called for the division of the respondent's Commonwealth Edison pension fund between the two parties pursuant to a formula stated in the judgment.

The formula stated that the pension fund would be divided along the following lines:

"Plan benefit, including any early retirement incentive, or survivorship benefit, multiplied by one-half (½) and the product thereof multiplied by a fraction, the numerator of which is 216 and the denominator of which is the number of months during which any contributions to the plan were made for the benefit of Participant, up to the time when benefits are requested."

The number 216 was understood to be the number of months that the parties were married.

On October 17, 1995, the court entered a QDRO enforcing the terms of the judgment. The provision in the order dealing with the division of the respondent's pension called for the calculation of petitioner's share as:

"50% of the vested benefits accrued by Participant under the Plan as determined as of October 6, 1995, multiplied by a fraction, the numerator of which is the number of months the Participant and Alternate Payee were married (i.e. 170 months) and the denominator of which is the number of months during which the Participant accrued benefits under the Plan as of October 6, 1995."

The change of the numerator of the fraction from 216 to 170 was required due to the mutual mistake of the parties in the original judgment that the numerator should be the total length of the marriage, rather than the number of months during the marriage in which the respondent collected benefits under the plan. The number 170 reflects the latter, despite the language in the order stating that the number reflects the months that the parties were married, and was agreed by both parties to be the correct numerator.

Following the respondent's retirement, the petitioner applied for benefits under the pension plan. The pension administrator calculated the respondent's share of the plan based on the formula contained in the QDRO, rather than that contained in the judgment itself. When the petitioner discovered the difference between the formulae, she initiated the present petition to amend the QDRO to reflect the formula contained in the judgment.

The trial court granted the petition and entered the modified order. The provision in the amended QDRO relating to the division of the pension states that the petitioner's share should be calculated by: "multiplying the Participant's Accrued Benefit by a Coverture Fraction (less than or equal to 1.0), the numerator of which is the number of months of the Participant's participation in the Plan earned during the marriage (from August 18, 1981 to October 6, 1995), and the denominator of which is the total number of months of the Participant's participation ...


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