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Sawicki v. Sawicki

March 18, 2004


[6] Appeal from the Circuit Court of the 13th Judicial Circuit Bureau County, Illinois, No. 2000-D-61 Honorable Scott Madson, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Slater

[8]  The respondent, Todd Martin Sawicki, appeals from the judgment of dissolution of his marriage to the petitioner, Susan Gail Sawicki. On appeal, Todd contends that the trial court erred when it: (1) awarded Susan 50% of the marital portion of his disability pension; (2) calculated the marital share of his disability pension; (3) failed to allocate the cost of the joint and survivor annuity to Susan; (4) failed to reduce any portion of the disability pension awarded to Susan when his supplementary pension terminates; (5) directed a retroactive award of disability benefits to Susan; (6) set child support; and (7) failed to reopen the evidence. For the following reasons, we affirm in part, reverse in part and remand.

[9]  I. FACTS

[10]   Susan and Todd were married on July 26, 1985. They had one child during their marriage, a son, T.C., who was born on February 4, 1988. On June 8, 2000 Susan filed a petition for dissolution of marriage. The trial court awarded Susan $500 per month for temporary maintenance and child support.

[11]   On June 5, 2002, after protracted litigation, the trial court ruled on custody and visitation issues. It awarded the parties joint legal custody of their son and gave Susan primary physical custody. Todd was awarded extensive visitation rights with his son, including three weekends per month, one evening per week and the majority of the summer months. Todd is not appealing the custody award.

[12]   The trial court held additional hearings on the division of property and remaining issues. It was established that Susan was 47 years old and had a ninth grade education. Before she married Todd, she worked at several minimum wage jobs, including factory work, bartending and as an apprentice painter. She also held a minimum wage job during the early years of her marriage to Todd. When she became pregnant with T.C., she quit her job to stay home. She remained a homemaker for the remainder of the marriage.

[13]   Todd was 52 years old at the time of trial. He worked as a construction laborer for 27 years before he was diagnosed with rheumatoid arthritis. His condition has left him physically disabled and unable to perform as a construction laborer. In 1999, he retired from his job with Ladd Construction and began receiving disability benefits. Since that time he has performed odd jobs such as stringing concrete and installing carpet. According to Todd, he can function, although he cannot be "shovel and ditch guy."

[14]   Todd's pension is a defined benefit plan in which the amount of the benefit receivable per month is dependent upon the number of pension credits earned multiplied by the applicable contribution rates. Based upon the pension credits earned by Todd prior to and during his marriage, his disability pension would have been paid him $3,702.35 per month. However, on February 1, 2000 Todd elected a 50% joint and survivor annuity for Susan. That annuity reduced the current gross amount payable to $2,795.27 per month. The annuity would provide Susan $1,397.64 per month if Todd predeceases her.

[15]   The evidence established that Todd is also entitled to a $300 per month temporary supplemental benefit which will terminate when he reaches the age of 65 or earlier under certain circumstances. Prior to the entry of the Qualified Domestic Relations Order (QDRO), Todd was receiving $3,095.27 per month gross ($2,795.27 $300). Todd also receives a veteran's pension of $103 per month.

[16]   Todd began covered employment under the Central Laborers Pension Fund in 1972, thirteen years before he married Susan. He was a participant in the plan for more than 27 years before he began to collect disability benefits. At the time he became disabled, Todd had earned 39.65 pension credits. He had earned 15.25 of those credits prior to his marriage to Susan.

[17]   Kevin Mason, a certified public accountant, testified on Susan's behalf regarding the value of the disability pension. According to Mason, 87.6% of the disability pension should be considered marital property. Mason arrived at that figure by using the accrued benefit as of the date of the marriage and comparing it to the accrued benefit at the date of dissolution. Mason testified that 87.6% was a fair value for the marital portion of the pension because, "as earnings go up, the amount of contributions to the fund in a union-negotiated plan normally increase, so that there would have been more benefit accrued after the date of the marriage than prior." Todd did not have an expert testify as to the value of the marital portion of the pension.

[18]   The parties stipulated that all payments on the marital home came from marital income except Todd's initial down payment of $16,920.

[19]   In June 2002, prior to closing arguments, Todd's counsel withdrew. Todd continued the case pro se. On September 20, 2002, the trial court issued a letter opinion and the judgment of dissolution was entered November 1, 2002. The trial court made the following pertinent rulings: (1) the marital portion of the Central Laborer's Pension Fund was 87.5% *fn1 of the total value of the pension; (2) Susan was awarded one-half of the marital portion of the pension, which at that time was $1,298.06; (3) Susan's portion of the disability pension was applied retroactively to July 2002; (4) each party was responsible for any tax liability incurred by that party's receipt of any distribution and would hold the other party free, harmless and indemnified from any tax liability so incurred; (5) the marital residence was to be sold and the proceeds split equally between the parties after Todd received $16,920 for his non-marital contribution; (6) Todd was ordered to pay $354.70 per month child support; (7) child support was retroactive to June 2002; (8) Todd was ordered to maintain medical insurance for T.C.; and (9) the issue of maintenance was reserved by the court. Todd's motions for reconsideration were denied.


[21]   A. Division of Marital Property

[22]   On appeal, Todd first argues that the trial court abused its discretion in awarding Susan 50% of that marital portion of his disability pension. He claims that an equal distribution of the disability pension is unfair because his disability leaves him unable to pursue gainful employment and he is faced with ever increasing costs for medical and living expenses.

[23]   Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that in a dissolution proceeding, the court is to divide the parties' marital property in just proportions considering all relevant factors. 750 ILCS 5/503(d) (West 2000). Those relevant factors include the following: (1) each party's contribution to the marital estate; (2) the dissipation of martial assets by either party; (3) the value of the property assigned to the spouse; (4) the duration of the marriage; (5) the relevant economic circumstances of each spouse when the division of the property is to become effective; (6) any obligations and rights arising from a prior marriage of either party; (7) any antenuptial agreement of the parties; (8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of each of the parties; (9) the custodial provisions for any children; (10) whether the apportionment is in lieu of maintenance; (11) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and (12) the tax consequences of the property division upon the respective economic circumstances of the parties. 750 ILCS 5/503(d) (West 2000).

[24]   The trial court has broad discretion in the valuation and subsequent distribution of marital assets. Kew v. Kew, 198 Ill. App. 3d 61, 555 N.E.2d 731 (1990). An abuse of discretion is said to have occurred only when no reasonable person would take the view adopted by the trial court. In re Marriage of Courtright, 229 Ill. App. 3d 1089, 595 N.E.2d 619 (1992).

[25]   We have reviewed the factors under section 503(d) that are relevant to this case and find that the trial court's decision to award Susan 50% of the portion of Todd's disability pension which it deemed to be marital property was not an abuse of discretion. See 750 ILCS 5/503(d) (West 2000).

[26]   Both Susan and Todd contributed equally to the acquisition of marital property in their capacities as homemaker and wage earner. See 750 ILCS 5/503(d)(1) (West 2000); In re Marriage of Swigers, 176 Ill. App. 3d 795, 531 N.E.2d 858 (1988) (the parties' contributions to the acquisition of marital property when one spouse is the homemaker and the other spouse is the wage earner can be considered as relatively equal). This is particularly true since Todd and Susan's marriage lasted for 17 years. See 750 ILCS 5/503(d)(4) (West 2000); In re Marriage of Marriott, 264 Ill. App. 3d 23, 636 N.E.2d 1141 (1994) (a spouse's greater financial contributions do not necessarily entitle him or her to a greater share of the marital assets, especially in long-term marriages where one spouse is the homemaker).

[27]   Also to be considered are the relevant economic circumstances of each spouse when the division of the property is to become effective (750 ILCS 5/503(d)(5) (West 2000)) and the age, health, station, occupation, sources of income, vocational skills and employability of the parties (750 ILCS 5/503(d)(8) (West 2000)). Both parties' circumstances, although different, are relatively equal. Susan is a single mother with a ninth grade education raising a teenaged child. She has little significant work history as a result of being a homemaker for almost her entire 17 year marriage. Todd, on the other hand, has significant work history as a construction laborer. However, he can no longer work in that field due to his rheumatoid arthritis.

[28]   Next, we reviewed the custodial provision for the parties' son, T.C. See 750 ILCS 5/503(d)(9) (West 2000). Susan is the residential custodian of T.C. and therefore needs to provide a home for him. An equal distribution of Todd's pension will allow her to provide housing for T.C. The sale of the marital home also allows Todd to receive his non-marital contribution reimbursement.

[29]   Another relevant factor is whether the apportionment is in lieu of or in addition to maintenance. See 750 ILCS 5/503(d)(10) (West 2000). The trial court did not award Susan maintenance and chose to reserve that issue instead. Without the income from the pension Susan would ...

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