In re Kehoe, 1–11–0644.

• Decision Date: 16 March 2012
• Docket Number: No. 1–11–0644.,1–11–0644.
• Citation: 966 N.E.2d 1165
• Parties: In re MARRIAGE OF Lauretta L. KEHOE, Petitioner–Appellant and Frank L. FARKAS, Respondent–Appellee.
• Court: United States Appellate Court of Illinois

966 N.E.2d 1165

In re MARRIAGE OF Lauretta L. KEHOE, Petitioner–Appellant and Frank L. FARKAS, Respondent–Appellee.

No. 1–11–0644.

Appellate Court of Illinois, First District, Sixth Division.

March 16, 2012.

Jerome Marvin Kaplan C. Robert Black, Chicago, for Appellant.

Paul J. Bargiel, Paul J. Bargiel, P.C., Chicago, for Appellee.

Presiding Justice R. GORDON delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Lauretta L. Kehoe, f/k/a/ Lauretta L. Farkas, filed a complaint for a dissolution of her marriage against respondent, Frank L. Farkas, her husband of six years. In 1988, a judgment of dissolution of marriage was entered with a marital settlement agreement and qualified domestic relations order (QDRO) incorporated into the judgment. As part of their settlement agreement, the parties agreed that Lauretta shall be entitled to one-half of the value of Frank's pension from the date of his employment with the Village of Schiller Park as a police officer to the date of the separation of the parties.

¶ 2 Upon Frank's retirement, Lauretta was subsequently informed by the Schiller Park Police Pension Fund that they only pay pension benefits based on a court-entered qualified Illinois domestic relations order (QILDRO) and are not required to honor Lauretta's QDRO.

¶ 3 On January 14, 2010, Lauretta filed a motion for entry of a QILDRO along with a proposed order directing respondent to sign his consent to the QILDRO. The motion and proposed QILDRO set forth a method of calculation for determining the value of the marital portion of Frank's pension. After a post judgment hearing on June 2, 2010, where Frank objected to Lauretta's proposed calculation of pension benefits, the trial court entered a written order denying Lauretta's motion for entry of a QILDRO.

¶ 4 After conducting several hearings and receiving memoranda of law from both parties, the trial court subsequently denied Lauretta's motion to reconsider on February 18, 2011.

¶ 5 Lauretta appeals, arguing the trial court erred in refusing to grant the motion for entry of a QILDRO and denying her motion for reconsideration. We affirm.

¶ 6 BACKGROUND

¶ 7 The parties were married on April 28, 1979, and separated on or about August 31, 1985. On December 28, 1988, the trial court entered a judgment dissolving the marriage. At the time of dissolution, there was one minor child born to the parties, James Francis Farkas, age 5, and one minor child adopted by the parties, Katharine Anne Farkas, age 13. Lauretta received sole care, custody, control, and education of the minor children with reasonable visitation granted to Frank.

¶ 8 A marriage settlement agreement was incorporated in the dissolution judgment and provided for the custody, support, visitation schedules, and expenses of the parties' minor children and settlement of property rights. The marriage settlement agreement included a section addressing the division of Frank's pension. The marriage settlement states:

"The parties agree that LAURETTA shall be entitled to receive one half of the value of the pension from the date of FRANK's employment with the Village of Schiller Park to the date of the separation of the parties, which is August 31, 1985 (hereinafter referred to as ‘one-half’). * * * FRANK further understands that a Qualified Domestic Relations Order reflecting the above shall be lodged with the Schiller Park Police Pension Fund directing them and ordering them to pay one-half (1/2) of FRANK'S pension to LAURETTA commencing at the time of FRANK'S retirement or termination of employment from the Village of Schiller Park. The right of LAURETTA to receive FRANK'S one-half (1/ 2) pension shall not survive after LAURETTA'S death."

A QDRO was also incorporated in the judgment. The QDRO identifies the amount of Frank's pension that is payable to Lauretta and specifies the manner in which the amount is to be determined. The QDRO directs and orders the Schiller Park Police Pension Fund to distribute the amount agreed upon in the parties' marriage settlement agreement. The court did not place a present value on Frank's pension at the time of the dissolution, and neither the marriage settlement agreement nor the QDRO estimated how much the pension was worth at the time of separation between the two parties. The QDRO provides:

"The interest in the Husband's name in the SCHILLER PARK POLICE PENSION FUND (hereinafter referred to as ‘PLAN’) or successor, shall be divided between the parties as follows:

* * *

(v.) Marital Portion: An amount equal to the balance in the Husband's account (in the case of a defined contribution plan) and/or the amount accumulated by the Husband under the terms of the plan (in the case of a defined benefit plan) for each Plan multiplied by a fraction, the numerator of which is the number of years (months) of marriage during which benefits were accumulated prior to the ‘Marital Retirement Date’, aforesaid, and the denominator of which is the total number of years (months) during which benefits were accumulated prior to the marital retirement date.

* * *

3. Benefit Due Wife: Types—Formula: The Wife's share of the marital portion of each Plan shall be determined in accordance with the type of benefits available and shall be calculated and distributed to her pursuant to the following:

(i.) Monthly or Other Periodic Disbursement of Benefits: To the extent that the disbursement of benefits to the Husband pursuant to either Plan can only be made on a monthly or other regular periodic basis, then the Wife shall be entitled to receive an amount equal to one-half (1/2) of the ‘marital portion’ (as defined hereinabove) of each such monthly periodic payment.

* * *

5. Increased Benefits: Any increases in the Husband's accrued benefits in either Plan caused by contributions occurring subsequent to the marital retirement date are not to be construed as part of the marital portion. Accordingly such increases shall be disbursed to and enjoyed solely by the Husband and the Wife shall not be entitled to share in any such increases.

* * *

13. Savings Clause: It is the intention of the Wife and Husband that the foregoing provisions shall qualify as a Qualified Domestic Relations Order and whenever the provisions hereunder are inconsistent with the definition of a Qualified Domestic Relations Order as may be contained, from time to time, in the Internal Revenue Code of 1954, as amended, and/or the Employee Retirement Security Act of 1974, as may or may not be amended, this Agreement shall be amended from time to time as may be necessary to comply with the requirements for a Qualified Domestic Relations Order. Both parties shall enter into an agreed order of court as may be reasonably required to amend this Article and/or the Judgment for Dissolution of Marriage to so comply."

¶ 9 Frank retired from the Village of Schiller Park police department effective November 17, 2009. Following Frank's retirement, the Schiller Park Police Pension Fund contacted Lauretta and informed her that because of a change in Illinois law, Illinois police pension funds only pay pension benefits based on a court-entered QILDRO and are not required to honor Lauretta's QDRO.

¶ 10 Lauretta sent a QILDRO consent form to Frank, which Frank refused to sign. Lauretta subsequently filed a motion for entry of a QILDRO and finding of consent on January 14, 2010. In the QILDRO, Lauretta named herself as alternate payee and recipient for 50% of the marital portion of Frank's pension. The QILDRO uses a formula to calculate the marital portion benefit:

The amount of the alternate payee's benefit shall be the result of (A/B) x C x D where:

" ‘A’ equals the number of months of regular plus permissive service that the member accumulated in the Retirement System from the date of marriage (04–28–1979) to the date of the divorce (12–23–1988). * * *

‘B’ equals the number of months of regular plus permissive service that the member accumulated in the Retirement System from the time of initial membership in the Retirement System through the member's effective date of retirement. * * *

‘C’ equals the gross amount of * * * the member's monthly retirement benefits * * * calculated as of the member's effective date of retirement including permissive service, upgrades purchased, and other benefit formula enhancements. * * *

‘D’ equals the percentage noted in Section III(A)(2) [50% per month of the marital portion of the pension]."

¶ 11 At a postjudgment hearing on June 2, 2010, Lauretta argued that the trial court should grant her motion for entry of a QILDRO. Lauretta's proposed QILDRO set forth a formula which calculated Lauretta's pension benefits by dividing Frank's pension as of the date the pension went into pay status as opposed to the date set forth in the judgment and QDRO. Frank objected to Lauretta's method of pension apportionment and argued that she is only entitled to one-half the value of the pension from the date of marriage until the date of dissolution. The trial court entered a written order denying Lauretta's motion for entry of a QILDRO and ordered Frank to pay Lauretta 50% of his pension as of the date of separation:

"Respondent pursuant to the order and judgment for dissolution of marriage shall pay to Petitioner 50% the pension as of the date of separation which is 8/31/85. Said calculation is Petitioner's marital portion."

¶ 12 Lauretta subsequently filed a motion to reconsider on June 14, 2010. After both parties submitted memorandums of law, the trial court denied Lauretta's motion to reconsider at a hearing on February 18, 2010.

¶ 13 This appeal followed.

¶ 14 ANALYSIS

¶ 15 On appeal, Lauretta argues the trial court erred in denying both her motion for entry of a QILDRO and her subsequent motion for reconsideration. Specifically, Lauretta contends that because of a change in Illinois pension law that effectively voids the QDRO which was incorporated in the parties' judgment for dissolution of marriage, the trial court should have entered a...