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In re Marriage of Wendt

Court of Appeals of Illinois

August 16, 2013

In re MARRIAGE OF Scott WENDT, Petitioner-Appellee, and Alison Wendt, Respondent-Appellant.

Jan R. Kowalski, of Kalcheim Haber, LLP, of Chicago, for appellant.

No brief filed for appellee.

OPINION

GORDON, Justice.

¶ 1 The instant case arises from the dissolution of the marriage of Scott Wendt and Alison Wendt. The sole issue before us concerns Scott's 2012 bonus from his employer, which, if issued at all, would be issued in February 2013.[1] Before the trial [374 Ill.Dec. 301]

Page 440

court, Alison claimed that nine-twelfths of the bonus is marital property because it accrued during the marriage, while Scott claimed it was nonmarital property because it was speculative and discretionary. The trial court found that the bonus was not marital property, characterizing it as an expectancy and not a contractually enforceable right. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On July 14, 2010, Scott filed a petition for dissolution of marriage and, on July 15, 2010, Alison also filed a petition for dissolution of marriage. [2] The cases were consolidated by the trial court. Scott is a software developer with Citadel, LLC, and Alison is employed part-time as a teacher. The parties have a daughter, born in June 2009.

¶ 4 On September 9, 2010, Alison filed a petition for temporary maintenance and child support. On January 7, 2011, the court entered an agreed order on Alison's petition, finding that Scott's 2009 net income was $118,920. The court ordered Scott to pay $1,982 per month— 20% of Scott's net income— to Alison in temporary child support and further ordered the parties to equally divide the costs of childcare expenses and ordinary medical, dental, and optical care for their daughter. The matter of temporary maintenance for Alison was entered and continued, and Scott was ordered to provide his 2010 year-end pay stub and W-2 when he received them, as well an any documents from his employer regarding his 2010 bonus.

¶ 5 On April 13, 2012, Alison filed a petition: (1) to vacate the January 7, 2011, order claiming Scott intentionally misrepresented his income and (2) to modify and determine retroactively the correct guideline child support amount that should be due and owing. The petition explained that any bonus Scott received for a particular year was issued by his employer at the beginning of the next year; for instance, Scott received his 2008 bonus in early 2009. The petition claimed that the agreed order for child support was based on Scott's 2009 base income, because he represented that he had not received a bonus for the 2009 calendar year, and his 2010 W-2 was not yet available. Scott also represented that he would not be receiving a bonus for the 2010 calendar year, to be paid in 2011. However, after issuing a subpoena to Scott's employer, Alison discovered that Scott was paid a $70,500 gross bonus payment on February 18, 2011, and received $10,500 on December 19, 2011, as a 2009 " mandatory deferral payout." Additionally, Scott received a $90,000 bonus on February 17, 2012.

¶ 6 Thus, according to the petition, Scott received a $68,235 gross bonus payment for 2008 in early 2009; received no bonus payment for 2009 in 2010; received a $70,500 gross bonus payment for 2010 on February 18, 2011; and received a $90,000 gross bonus payment for 2011 on February 17, 2012. Scott also received $10,500 as a 2009 " mandatory deferral payout" on December 19, 2011, which Alison was investigating to determine whether it was Scott's deliberate deferral of his 2009 bonus.

¶ 7 Based on Citadel documents [3] attached to Alison's petition, Scott's bonus [374 Ill.Dec. 302]

Page 441

took the form of " Participation Points" issued by Citadel that were converted to cash at a rate of $1 per point. The 2012 memorandum stated that Scott's " total award of 2011 Participation Points reflects both your individual performance and the Company's overall performance" and would be issued on February 17, 2012, " provided you are employed by Citadel and not under notice at that time." The memorandum further stated that " [y]ou will be eligible to receive 2012 Participation Points based on your individual performance, your demonstration of the characteristics described in the Citadel Leadership Model, and the Company's overall performance during 2012. All bonuses and awards are discretionary. Your entitlement to any bonus or award, and the amount of any bonus or award shall be determined and awarded, if at all, in the discretion of the Company. 2012 Participation Points will be governed by the relevant employee incentive program in effect when 2012 Participation Points are awarded."

¶ 8 On June 21, 2012, the trial court entered an agreed order on Alison's petition, finding that Scott's total gross income was $257,500 and his net income for purposes of child support was $179,566.55. The court ordered Scott to pay Alison $24,148 to reflect arrearage in child support and to pay $945 biweekly for child support, reflecting 20% of his net biweekly pay of $4,725. The court further ordered that, " [c]ommencing on June 1, 2012 and continuing thereafter, Scott shall pay Alison, within seven (7) days of his receipt, an amount equal to Twenty Percent (20%) of the net of any additional compensation incident to his employment, whether bonus, mandatory deferral or otherwise."

¶ 9 On September 19, 2012, the trial court entered a judgment for dissolution of marriage, incorporating a marital settlement agreement between the parties. The marital settlement agreement contained the following provision concerning deferred compensation:

" 1. Deferred Compensation.

Incident to his employment through 8/31/12, Scott is entitled to receipt of certain deferred compensation, which shall be divided in kind Fifty ...


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