Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tebbens v. Levin & Conde

Court of Appeals of Illinois, First District, Third Division

April 25, 2018

ROBERT TEBBENS, Plaintiff-Appellant,
v.
LEVIN & CONDE, JOEL L. LEVIN, JEAN CONDE, and KATHLEEN N. GRIFFIN, Defendants-Appellees.

          Appeal from the Circuit Court of Cook County No. 2014 L 11339 The Honorable John Ehrlich, Judge Presiding.

          JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Cobbs and Justice Howse concurred in the judgment and opinion.

          OPINION

          FITZGERALD SMITH, JUSTICE

         ¶ 1 Plaintiff-appellant Robert Tebbens appeals from the grant of defendants-appellees Levin & Conde, Joel L. Levin, Jean Conde, and Kathleen N. Griffin's motion to dismiss pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2014)), dismissing with prejudice Robert's lawsuit alleging legal malpractice against defendants, who served as his legal counsel during the dissolution of his marriage against Julie Tebbens. In that malpractice action, Robert claimed that his former counsel failed to submit to the trial court a marital settlement agreement (MSA) that accurately reflected the parties' intent regarding the division of Robert's pension plan between himself and Julie. On appeal, Robert contends that the trial court erred in finding his claims were barred by the doctrine of res judicata. For the following reasons, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Robert filed his complaint against defendants in October 2014. By this complaint, Robert asserted claims for legal malpractice and breach of contract against all defendants (the malpractice case). Thereafter, the malpractice case was stayed due to Robert's pending appeal in his underlying dissolution of marriage proceeding (the divorce case).

         ¶ 4 Meanwhile, the underlying divorce case was appealed to this court. In re Marriage of Tebbens, 2015 IL App (1st) 140566-U. Our decision in that cause fully lays out the facts, which we recite here in relevant part. Robert and Julie were married in 1995 and filed for dissolution of marriage in 2009. Both parties were represented by counsel during dissolution proceedings.

         ¶ 5 In brief, the trial court entered a judgment for dissolution of marriage in October 2012, incorporating a MSA into the judgment for dissolution. In part, the MSA divided the parties' retirement accounts and pension plans. Thereafter, the pension administrator requested an order that reflected a specific dollar amount for Julie's distribution, rather than the percentage formula that was set out in the MSA. By this time, Robert was represented by new counsel. Eventually, the trial court modified the MSA over Robert's objection. Robert appealed this modification, and on appeal, this court enforced the MSA language upon which the parties had originally agreed, holding that Robert was entitled to the entry of an order clarifying the dollar value of Julie's share of the pension as Robert had originally requested.

         ¶ 6 In more detail, specific to the divorce appeal, Robert challenged the trial court's entry of a Qualified Illinois Domestic Relations Order (QILDRO) by the circuit court, which apparently divided the pension percentage-wise in such a way that Julie took more than the parties had agreed upon. In April 2015, we reversed in part, vacated in part, and remanded with directions. In that cause, we recited the following facts, which are pertinent to the present appeal:

"In December 2009, Robert initiated the instant dissolution proceedings. The trial court entered a judgment for dissolution of marriage on October 31, 2012. Both parties were represented by counsel during dissolution proceedings. A marital settlement agreement (MSA) was incorporated into the judgment for dissolution. Amongst other things, the MSA divided the parties' retirement accounts and pension plans:
* * *
Regarding Robert's pension from the Chicago Fire Department, the MSA provides:
'7.5 ROBERT's interest in the Fireman's Annuity Fund shall be allocated between the parties as follows:
a. To JULIE, a sum equal to fifty percent (50%) of the marital value of ROBERT's vested accrued benefit under the Fireman's Annuity Fund.
b. To ROBERT, the remaining balance of his vested accrued benefit under the Fireman's Annuity Fund including all sums not otherwise allocated to the Wife, and all contributions on or after November 1, 2012.
The foregoing allocations to JULIE shall be implemented pursuant to the terms of a Qualified Illinois Domestic Relations Order (QILDRO).' Other retirement accounts were also divided:
***

         In November 2012, Robert filed a 'motion to amend, or in the alternative, to vacate judgment for dissolution of marriage.' Through this motion, Robert argued, in pertinent part, that paragraph 7.5 should be amended, as it did not conform to the parties' true agreement. Specifically, Robert alleged the paragraph as submitted during negotiations read:

'[Draft] 7.5 ROBERT's interest in the Fireman's Annuity Fund shall be allocated between the parties as follows:
a. To JULIE, a sum equal to fifty percent (50%) of the marital value of ROBERT's vested accrued benefit under the Fireman's Annuity Fund, valued as of ___, 2012.
b. To ROBERT, the remaining balance of his vested accrued benefit under the Fireman's Annuity Fund including all sums not otherwise allocated to the Wife, and all contributions and accruals to his vested accrued benefit on or after ___,
___.'
The court entered a ruling on the motion on December 21, 2012, stating, in relevant part:
'Over Robert's objection, Paragraph 7.5a of the Marital Settlement Agreement shall be modified to:
"2. To JULIE, a sum equal to fifty percent (50%) of the marital value (8-26-95 to 10-31-12) of ROBERT's vested accrued benefit under the Fireman's Annuity Fund, and all accruals to her portion after November 1, 2012." '
3. By Agreement, Paragraph 7.5b of the Marital Settlement Agreement shall be modified to:
"To ROBERT, the remaining balance of his vested accrued benefit under the Fireman's Annuity Fund including all sums not otherwise allocated to the wife, and all contributions and accruals to his portion after November 1, 2012." '

         On January 18, 2013, Robert filed a motion to clarify both the October 31, 2012 judgment, and the December 21, 2012 order, asking the court to clarify these 'to conform same to the parties' agreement.' In support, Robert recounted that while Paragraph 7.5 of the MSA awarded Julie 50% of the marital portion of his vested, accrued benefit under the Fireman's Annuity Fund, and awarded Robert all remaining benefits and interest, that paragraph stated a percentage amount rather than a dollar amount for Julie. According to Robert, this percentage amount was insufficient for the Firemen's Annuity Fund and Benefit Fund of Chicago to divide the asset as agreed upon by the parties. In support, Robert relied on a letter dated November 30, 2012, from the Fireman's Annuity Fund. That letter states:

'In response to your recent request, we quote the following figures: Based on our accountants review of your pension records we estimate that as of November 1, 2012 you would be entitled to a monthly annuity in the amount of $1, 201.21 payable at age 50 with monthly annuity payments continuing for your lifetime.
This calculation is made pursuant to ILCS 5/6-126, and is based on your years of pensionable service credit at 17.93 years from your date of hire on December 1, 1994 through November 1, 2012 and total contributions made to the Fund during that period.'

         Because Robert and Julie were married August 26, 1995, argued Robert, his premarital service credits from December 1, 1994, through September 25, 1995, are his non-marital property. Thus, Robert submitted, it was the intent of the MSA that Julie should receive 50% of a monthly annuity of an amount less than the $1, 201 amount, but rather should receive 50% $1, 201 minus the credit for his premarital service. However, because of the 'mechanics' of a QILDRO and because a percentage order (rather than a dollar amount order) was entered, Julie 'will not only receive the monies stated above, but also [ ] any increases in the pension earned by Robert through his post-divorce, non-marital efforts, including without limitation, promotions, salary raises, and the like.'

         The record on appeal also contains a document entitled 'Firemen's Annuity and Benefit Fund of Chicago QILDRO Benefit Estimate Statement' dated November 1, 2012, reflecting Robert's 'Monthly Retirement Benefit as of last available payroll' as $1, 201.

         In her response, Julie admitted that service credits earned by Robert prior to the marriage would be considered Robert's non-marital asset. Julie generally denied all other allegations or alleged she had insufficient information to provide an answer. She also stated:

'JULIE further states that pursuant to the terms of the Judgment, the division of ROBERT's pension will be effectuated by entry of a QILDRO. JULIE stipulates that any QILDRO entered in this matter with respect to ROBERT's pension shall be in conformity with the stated requirements of the Fireman's Annuity Fund.' Julie then filed her 'memorandum in support of response to motion to clarify' in which she argued that Robert's motion to clarify was actually seeking a modification of the judgment and was therefore barred by res judicata. In the alternative, Julie also asked the court to apply the Hunt formula, as set forth in In re Marriage of Hunt, 78 Ill.App.3d 653 (1979), to the pension division.
Robert then filed his 'motion to strike, or in the alternative, response to memorandum in support of response to motion to clarify.' The motion contained two counts: Count I, a motion to strike; and Count II, a motion to clarify. By Count I, Robert asked that Julie's memorandum be stricken, alleging she filed it late and without leave of court. Additionally, Robert argued that Julie could not now seek to have the pension divided under the Hunt formula. By Count II, Robert argued that res judicata did not bar his clarification motion because he was 'not seek[ing] to amend, modify, vacate or otherwise change the substance of the Judgment or December 21, 2012 order, but rather to clarify the orders for the purpose of the preparation and entry of a [QILDRO].' Additionally, he argued that 'through no fault of the parties, the Fireman's Annuity Fund is unable to give effect to the intention of the parties with the current [percentage] language of the Judgment, and therefore the Judgment must be clarified to include a dollar amount.' He specified:
'Robert is not trying to amend or vacate the Judgment, but to clarify the December 21, 2012 order. Robert does not dispute that Julie is entitled to 50% of his pension plan as of October 31, 2012, and does not seek to change this fact. However, in order for Julie to receive 50% of his pension plan as of October 31, 2012, that number must be reduced to a dollar amount. There exists no other way to accomplish the mandate of the orders. Robert further does not dispute that Julie is entitled to accruals to her portion of the plan, i.e. cost of living increases. However, she is not entitled to accruals to Robert's portion of the plan, as those accruals are and will be due to Robert's post-marital efforts. This is not an attempt at a second bit [sic] of the apple, but an attempt to effectuate the language contained in the December 21, 2012 order, and accordingly that order must be clarified to list a specific dollar amount, which has already been calculated by Firemen's Annuity Fund.'

         In addition, Robert argued that the application of the Hunt formula for the first time in postjudgment motions was inappropriate, as, in a motion to clarify, the application of a new division formula would not possibly effectuate the intent of the parties.

         The court heard arguments from the parties, and took the matter under advisement.

         In July 2013, the trial court entered a memorandum opinion in which it denied the motion to clarify, finding that it 'function[ed] effectively as a motion to reconsider' and was, therefore, barred by the doctrine of res judicata. Specifically, regarding the motion to clarify versus the motion to reconsider, the court found:

'Because the language of the agreement was modified in a prior Order, this Court finds the proposed clarification to be previously decided on the merits in the December 21, 2012 Order. Additionally, ROBERT's motion changes the distribution of the pension in question [by adding a specific dollar amount], altering the substantive nature of the Judgment. Because a motion to clarify cannot enlarge the judgment, ROBERT's Motion to Clarify functions effectively as a motion to reconsider.'
The court also determined that the Firemen's Annuity letter on which Robert relied was not new evidence and 'does not purport to necessitate a dollar amount, but rather details the current value of the pension fund benefits as they stand.' The court determined that the Hunt formula already applied to the pension division ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.