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In re Marriage of Winter

Court of Appeals of Illinois, First District, Sixth Division

July 12, 2013

In re MARRIAGE OF ANA L. WINTER, Petitioner-Appellant, and JEROME WINTER, Respondent (Public School Teachers' Pension and Retirement Fund of Chicago, Intervenor-Appellee).

Appeal from the Circuit Court of Cook County No. 98 D 11073, Honorable Mark Joseph Lopez, Judge Presiding.

Presiding Justice Lampkin and Justice Gordon concurred in the judgment and opinion.

OPINION

REYES, JUSTICE

¶ 1 Following the entry of an order finding the "surviving spouse benefit" of respondent Jerome Winter's (Jerome) disability pension plan is not marital property subject to distribution, petitioner Ana Winter (Ana) now appeals. Ana argues upon the passing of Jerome she is entitled to the surviving spouse benefit despite not meeting the statutory definition of a surviving spouse under the Illinois Pension Code (Pension Code) (40 ILCS 5/17-121(a) (West 2006)). For the foregoing reasons, we affirm the decision of the trial court.

¶ 2 BACKGROUND

¶ 3 Ana and Jerome Winter married in 1980. The couple then separated in 1998 before ultimately divorcing in 2005. Prior to the divorce, Jerome moved to the United Kingdom, taking their child and, according to the trial court, "virtually all the marital assets." Due to Jerome's continued residence abroad, the trial court encountered significant difficulty identifying, valuing, and distributing most of the marital assets. Jerome's pension payments, however, remained available for distribution by the court. Jerome, a retired teacher for Chicago Public Schools, began receiving pension payments from the Public School Teachers' Pension and Retirement Fund (Pension Fund) in 1985. The 2005 judgment of dissolution awarded the entire marital portion of this pension to Ana via a "Qualified Illinois Domestic Relations Order" (QILDRO) (40 ILCS 5/1-119 (West 2004)).

¶ 4 Initially, Jerome blocked Ana's receipt of any pension payments by refusing to sign a consent to the QILDRO, as required by section 1-119(m) of the QILDRO law.[1] Ana, therefore, petitioned the trial court to freeze Jerome's pension benefits. The trial court granted Ana's petition and issued a preliminary injunction requiring the entire portion of all future pension payments be placed in an IOLTA ("Interest on Lawyers Trust Account") pending further order of court. Jerome appealed the decision of the trial court to enter a preliminary injunction, which was affirmed and remanded by this court. In re Marriage of Winter, 387 Ill.App.3d 21, 23-24 (2008).

¶ 5 Upon remand, Ana filed an "Amended Petition for Turnover Order and Other Relief." In her petition, Ana argued the survivor benefits were marital property and requested, inter alia, the trial court to use its equitable power to order "the Pension Fund *** to distribute Jerome's survivor benefits to Ana Winter upon Jerome Winter's death." The Pension Fund, having previously intervened in the lawsuit, filed a response to the petition arguing Ana was not entitled to the survivor benefits. On March 22, 2011, in a written order, the trial court denied Ana's request for survivor benefits. The trial court found Ana "fails to meet the definition of a 'surviving spouse' " under the plain language of the Pension Code and concluded the surviving spouse benefit is "not subject to division as marital property." Ana now appeals the decision of the trial court denying her petition.

¶ 6 ANALYSIS

¶ 7 Ana sets forth three arguments on appeal: (1) the court should award her the survivor benefit of the pension plan as marital property; (2) the court should grant her the survivor benefit pursuant to its equitable powers to enforce the judgment for the dissolution of marriage; and (3) the Illinois Pension Code's surviving spouse definition as applied violates her equal protection rights under the Illinois and United States Constitutions.

¶ 8 I. Marital Property

¶ 9 Ana primarily argues the pension plan's survivor benefits should be subject to distribution as marital property at the time of Jerome's demise. Addressing this argument involves the interpretation and application of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2004)) and the Pension Code (40 ILCS 5/1-101 et seq. (West 2004)). Thus, as a question of law, we review this issue de novo. In re Marriage of Rogers, 213 Ill.2d 129, 135-36 (2004). Under de novo review, we perform the same analysis a trial judge would perform and give no deference to the judge's conclusions or specific rationale. In re Marriage of Kehoe, 2012 IL App (1st) 110644, ¶ 18.

¶ 10 The Marriage Act generally defines "marital property" as "all property acquired by either spouse subsequent to the marriage." 750 ILCS 5/503(a) (West 2004). Thus, "all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage *** is presumed to be marital property." 750 ILCS 5/503(b)(1) (West 2004). Moreover, "all pension benefits (including pension benefits under the Illinois Pension Code) acquired by either spouse after the marriage and before a judgment of dissolution of marriage *** are presumed to be marital property." 750 ILCS 5/503(b)(2) (West 2004).

ΒΆ 11 Section 17-121(a) of the Pension Code provides, "[a] surviving spouse of a teacher shall be entitled to a survivor's pension only if the surviving spouse was married to the teacher for at least one year immediately prior to the teacher's death." 40 ILCS 5/17-121(a) (West 2004). Ana is no longer married to Jerome and thus the plain language of the Pension Code clearly excludes Ana as a "surviving spouse." Nevertheless, according to Ana, section 17-121(a) of the Pension Code should not dictate the outcome here. Instead, Ana argues the Marriage Act and the Pension Code should be read "harmoniously" such that the survivor benefit of Jerome's pension may be designated as marital property and ...


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