Court of Appeals of Illinois, First District, Sixth Division
In re MARRIAGE OF ANA L. WINTER, Petitioner-Appellant, and JEROME WINTER, Respondent (Public School Teachers' Pension and Retirement Fund of Chicago, Intervenor-Appellee).
Rule 23 Order filed June 14, 2013
Rule 23 Order withdrawn July 12, 2013
In proceedings dissolving the parties’ marriage, the trial court properly found that the “surviving spouse benefit” under respondent’s disability pension plan was not marital property subject to distribution to petitioner upon his death, since the benefit did not belong to either spouse during the marriage, it was not marital property and the Pension Code excluded a “former spouse” from the definition of a “surviving spouse, ” and, furthermore, the trial court did not abuse its discretion in refusing to grant petitioner’s request for a mandatory injunction distributing the benefit to her, and she forfeited the argument that the Pension Code exclusion violated her equal protection rights.
Appeal from the Circuit Court of Cook County, No. 98-D-11073; the Hon. Mark Joseph Lopez, Judge, presiding.
James K. Leven, of Law Office of James K. Leven, of Chicago, for appellant.
Anita Tanay and Tiffany R. Reeves, both of Jacobs, Burns, Orlove & Hernandez, of Chicago, for appellee.
Presiding Justice Lampkin and Justice Gordon concurred in the judgment and opinion.
¶ 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. 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 ...