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In re Marriage of Benson

Court of Appeals of Illinois, Fourth District

May 26, 2015

In re: MARRIAGE OF NANCY J. BENSON , Petitioner-Appellee, and DAVID W. BENSON, Respondent-Appellant

Page 269

Appeal from Circuit Court of Macon County. No. 97D601. Honorable James R. Coryell, Judge Presiding.


Leo W. Quigg, Jr. (argued), of Fuller & Quigg, of Decatur, for appellant.

Kurt B. Bickes (argued), of Bickes, Wilson & Moss, of Decatur, for appellee.

PRESIDING JUSTICE POPE delivered the judgment of the court, with opinion. Justices Knecht and Harris concurred in the judgment and opinion.


POPE, Judge

Page 270

[¶1] In June 2013, petitioner, Nancy J. Benson, filed a petition to enforce the terms of the trial court's April 1999 judgment of dissolution of marriage between Nancy and her former spouse, respondent, David W. Benson, which required David to pay a portion of his disability benefits to her. Following an April 2014 hearing, the court found David's disability benefits were in the nature of a disability pension and, as a result, Nancy was entitled to a fractional interest in those benefits.

[¶2] David appeals, arguing, inter alia, the trial court erred in ruling Nancy was entitled to a portion of his disability benefits where the original dissolution judgment only awarded Nancy a portion of his retirement benefits. We affirm.


[¶4] On May 22, 1971, David and Nancy were married. On August 3, 1972, David began working for the City of Decatur fire department.

[¶5] On April 16, 1999, the trial court entered a judgment dissolving the parties' marriage. At the time of the judgment, the primary marital asset was David's pension.

Page 271

The judgment provided, in pertinent part, the following:

" [Nancy] is granted a one-half interest in [David's] retirement plan through the Decatur Fire Department and his ICMA retirement account. Transfer of said funds shall be accomplished through qualified [Illinois] domestic relations orders."

[¶6] David continued to work as a firefighter until 2008, when he was injured during a call. David was carrying equipment back to the fire truck in the rain when his foot slipped. As he fell, his head and shoulder were driven into the ground, injuring his lower back.

[¶7] On February 27, 2008, David began receiving disability benefits. At the time, David was 59 years old, had approximately 35 years of service, and was eligible to retire and draw a retirement pension. David continued to own and operate Benson Disposal, a family-owned garbage service he acquired from his father, until July 2012, when he sold it.

[¶8] On June 11, 2013, Nancy filed a " Petition to Divide Pension Benefits." In her petition, Nancy alleged she believed David was receiving retirement benefits but David refused to confirm that. Nancy stated she had attempted to file a qualified Illinois domestic relations order (QILDRO) but had been unable to do so. Nancy requested an order directing David to pay her the appropriate share of his retirement benefits pursuant to the 1999 dissolution judgment as of the date he began receiving them.

[¶9] On July 2, 2013, David filed his response to Nancy's petition. In his response, David denied he had any communication with Nancy regarding retirement benefits but admitted he was receiving disability benefits. David argued Nancy's petition should be dismissed because the pension benefits had already been divided in the 1999 order and he was " not receiving retirement benefits but [was] receiving disability benefits."

[¶10] On November 19, 2013, Nancy filed a petition to enforce the terms of the dissolution judgment. In her petition, Nancy alleged, inter alia, David had refused to sign a consent for the entry of a QILDRO, and Nancy also alleged by electing to receive a disability pension instead of a retirement pension, David had " refused, permanently, any share of his pension to [Nancy]."

[¶11] During the April 15, 2014, hearing on Nancy's petitions, David was the only witness called to testify. David, then 65 years old, testified the parties did not have an agreed divorce, i.e., the divorce came as a result of a trial and there was no marital settlement agreement. David testified there was never any agreement regarding retirement benefits and the trial court's ruling pertained only to his retirement pension and did not mention disability benefits. At the time of the hearing, David's monthly benefits were $4,569.27. David testified he receives his disability benefits tax-free. He admitted if he elected to take his retirement pension he would have to pay taxes on it. The disability benefits also included free health insurance for David and his current spouse. David testified he intended to continue to draw disability benefits as long as he is allowed. David testified he would also be eligible for full social security benefits at age 66.

[¶12] David argued the dissolution judgment did not mention disability benefits and there was no assignment of disability benefits. In arguing against a retroactive award, David argued Nancy should have ...

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