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In Re Marriage Ofloree Hendry

May 12, 2011

IN RE MARRIAGE OFLOREE HENDRY,
PETITIONER-APPELLANT, AND
MICHAEL HENDRY,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of McHenry County. No. 07-DV-637 Honorable Michael J. Chmiel, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

JUSTICE McLAREN delivered the judgment of the court, with opinion.

Presiding Justice Jorgensen and Justice Burke concurred in the judgment and opinion.

OPINION

Petitioner, Loree Hendry, appeals the trial court's order denying her petitions to enforce and to modify and/or vacate the judgment of dissolution of marriage between herself and respondent, Michael Hendry, arguing that she was entitled to half of two of Michael's retirement accounts. On appeal, Loree argues that (a) the trial court erred by interpreting the parties' marital settlement agreement (MSA) as denying her a share of Michael's Pacific Life deferred compensation plan; and

(b) the trial court erred by failing to consider the case law on mutual and excusable mistake in denying Loree's petition to modify and/or vacate the judgment of dissolution of marriage. We affirm in part, reverse in part, and remand for further proceedings.

I. FACTS

Only the facts necessary to understanding the issues in this appeal will be recited here. The record reflects that the parties married in 1986. On October 27, 2008, the trial court entered a judgment of dissolution of marriage. At that time, Michael had been an executive at Pacific Life Insurance Company for over 10 years. The judgment incorporated an MSA that the parties entered into on the same day the judgment was entered. Section 9 of the MSA addressed the distribution of the parties' retirement accounts. The section provided in relevant part:

"9.6 Pacific Life SERP AccountMICHAEL currently has an account with his employer, Pacific Life that is termed either [sic] deferred compensation and is known as the Pacific Life SERP. That this account is now worth approximately $295,000.00. That said Plan has been represented to be a non-vested account of MICHAEL's. That according to MICHAEL that account will not vest until MICHAEL's years of service plus age equals 75. LOREE agrees to waive all right, title and interest to any contributions made during the marriage to the Pacific Life SERP and the same is awarded to MICHAEL as his property free and clear of any claims of LOREE.

9.7 Retirement Accounts MICHAEL currently has the following retirement accounts in place exclusive of the Pacific Life SERP which was discussed in 9.6: A Pacific Life RISP in the amount of $341,760.00; a Pacific Life Employee Retirement Plan in the amount of $70,189.00; an E-Trade IRA in the amount of approximately $25,000. ***

A. The parties shall value the tax deferred assets and pensions with the exception of the Pacific Life SERP, and divide the accounts equally. That the date of valuation will be September 30, 2008. ***

B. *** That said equalization shall be accomplished by either a [qualified domestic relations order] or a direct Rollover transfer into one of LOREE's or MICHAEL's existing retirement accounts, at the discretion of the custodian of the Pacific Life RISP."

On April 2, 2009 Loree filed a petition for a rule to show cause, alleging that she was entitled to a share of the Pacific Life voluntary deferred compensation plan. The trial court dismissed the petition without prejudice.

On September 24, 2009, Loree filed a petition to enforce the judgment of dissolution of marriage (petition to enforce), pursuant to sections 508 and 511 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508, 511 (West 2008)). The petition to enforce alleged that the parties' intent in entering into the MSA was to split equally all marital assets, including ...


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