In re Marriage of Ramsey

• Citation: 792 N.E.2d 337,339 Ill. App.3d 752,275 Ill.Dec. 106
• Decision Date: 10 June 2003
• Docket Number: No. 5-01-0939.,5-01-0939.
• Parties: In re MARRIAGE of Mary E. RAMSEY, n/k/a Mary E. Cornell, Petitioner-Appellee, and John H. Ramsey, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

792 N.E.2d 337

339 Ill. App.3d 752

275 Ill.Dec. 106

In re MARRIAGE of Mary E. RAMSEY, n/k/a Mary E. Cornell, Petitioner-Appellee, and

John H. Ramsey, Respondent-Appellant.

No. 5-01-0939.

Appellate Court of Illinois, Fifth District.

June 10, 2003.

Richard Kruger, Kruger, Henry & Hunter, Metropolis, for Appellant.

Joseph J. Neely, The Neely Law Firm, Metropolis, for Appellee.

Justice CHAPMAN delivered the opinion of the court:

The Ramseys married in 1969 and divorced in 1989. Pursuant to John's request, the trial court reserved jurisdiction to divide his pension upon his retirement. Neither the parties nor the court contemplated then that John would be offered an early retirement incentive package. John retired in 2000 at the age of 55, taking advantage of early retirement incentives which required that both he and his employer make one-time monetary contributions to the Teachers' Retirement System of the State of Illinois (TRS). Shortly after John's retirement, Mary filed a motion seeking a qualified Illinois domestic relations order (QILDRO). The trial court granted Mary's motion. John appeals, arguing that the trial court erred by ordering him to pay to Mary a portion of his pension benefits attributable to his nonmarital monetary contributions. We reverse in part.

I. BACKGROUND

John Ramsey and Mary Ramsey, now known as Mary Cornell, were married in June 1969. Throughout the marriage, John was employed as a school teacher and participated in the TRS pension plan. The circuit court in Massac County entered an order dissolving the Ramseys' marriage in March 1989. Pursuant to that order, the court found the present value of John's pension to be $35,000 and awarded it to John, with an offsetting award of other marital property to Mary. On April 14, 1989, however, John filed a posttrial motion in which he requested that the court instead reserve jurisdiction to divide his pension upon his retirement. The court entered an order granting John's motion on November 9, 1989. The court ruled that the marital portion of the benefits actually paid was to be determined by multiplying the amount in "each benefit check issued" by a fraction with a numerator of 234 (the number of months John contributed to his retirement plan during the marriage) and a denominator of the total number of calendar months in which John contributed to the plan during his career. Mary would be entitled to half of this amount.

In 1998, the legislature created an early retirement incentive program for teachers. Without the early retirement incentives, the pension benefits of a teacher who chooses to retire prior to reaching age 60 or earning 34 years of credited service are reduced by 6% for each year the teacher's age at retirement is below age 60 (the early retirement discount). An early retirement option allows a teacher with at least 20 years of service to retire at age 55; however, to avoid the early retirement deduction, both the teacher and his employer must make a one-time contribution to TRS as follows: the teacher must contribute 7% of his highest annual salary multiplied by either the number of years until he reaches age 60 or the difference between the number of years of service he actually has and 35, whichever number is smaller, and the employer must contribute 20% of the teacher's highest salary multiplied by the number of years until he reaches age 60. See 40 ILCS 5/17-116.1(d) (West 1998).

A second early retirement incentive allows a teacher to augment his pension benefits by making a one-time contribution called a 2.2 upgrade. This payment allows the teacher to receive 2.2% of his average salary (defined as the average of his salary during his four highest-paid years) multiplied by his total years of service. See 40 ILCS 5/17-116(b)(3), 17-119.1 (West 1998). Without the 2.2 upgrade, the pension would be calculated as (1) 1.67% of his average salary multiplied by the first 10 years of service, (2) 1.9% multiplied by the next 10 years of service, (3) 2.1% multiplied by the third 10 years of service, and (4) 2.3% multiplied by the years of service in excess of 30. See 40 ILCS 5/17-116(b)(1) (West 1998).

John opted to take advantage of both the early retirement option and the 2.2 upgrade. On July 5, 2000, he made a one-time lump-sum payment of $7,397.46 for the early retirement option and a payment of $6,390.60 for the 2.2 upgrade. His employer, the Century Unit No. 1 School District, made a one-time contribution of $35,226 for the early retirement plan on his behalf.

On June 29, 2000, John retired. He was 55 years old and had 32 years of credited service, including 31 years of actual service plus one year of unused sick leave and vacation pay. Because of the payments both he and his employer made to the fund, however, he received his full pension, without the early retirement discount, as augmented by the 2.2 upgrade. The total pension John receives is $1,980 per month.

On August 2, 2000, Mary filed a motion to modify the dissolution judgment by the entry of a QILDRO directing TRS to pay her portion of John's pension directly to her. On August 15, John filed a motion asking the court to determine the amount Mary was due.

On November 14, 2001, the trial court entered a QILDRO. The court found that John had voluntarily enhanced his pension knowing that Mary was entitled to a fixed percentage thereof and that the amounts attributable to John's nonmarital monetary contributions could not be readily severed from the rest of the pension. The court found that the proper denominator for the fraction in the formula was 384 (31 years, or 372 months, of actual service plus 1 year, or 12 months, of unused sick leave and vacation pay) and that, therefore, Mary was entitled to 30.47% of John's pension, or $603.31 per month. This appeal followed.

II. ANALYSIS

Mary initially argues that this court lacks jurisdiction to hear John's appeal. We must, of course, dismiss an appeal if we find we lack jurisdiction. Hwang v. Tyler, 253 Ill.App.3d 43, 45, 192 Ill.Dec. 283, 625 N.E.2d 243, 245 (1993). We find, however, that Mary's contention is without merit. She claims that John's notice of appeal does not ask for specific relief from the November 14, 2001, order because it states, "Defendant/Appellant prays that the Order entered on November 28, 2000[,] [sic] be reversed * * *." The notice of appeal also states that John "hereby appeals to [this court] from the Order entered on November 14, 2001, in [this] cause" and includes a copy of the November 14, 2001, order as an attachment. Mary cites three cases for the proposition that an appellate court lacks jurisdiction to consider issues not specified in the notice of appeal (Atkinson v. Atkinson, 87 Ill.2d 174, 177-78, 57 Ill.Dec. 567, 429 N.E.2d 465, 466-67 (1981)) or appeals seeking relief from orders other than the order specified in the notice of appeal (Ferguson v. Riverside Medical Center, 111 Ill.2d 436, 441, 96 Ill.Dec. 47, 490 N.E.2d 1252, 1254 (1985); Place v. Improvement Federal Savings & Loan Ass'n, 24 Ill.2d 245, 247, 181 N.E.2d 94, 95 (1962)). We think that only the most contrived reading of John's notice of appeal leads to the conclusion that the relief sought is from an order other than the November 14 order, as specified in the notice. We conclude that notice of appeal was effective and that we therefore have jurisdiction.

Because no factual determinations are at issue and the case presents only a question of law, we review the trial court's ruling de novo. In re Marriage of Peters, 326 Ill. App.3d 364, 366, 260 Ill.Dec. 169, 760 N.E.2d 586, 588 (2001). We note that the parties agree this is the applicable standard of review.

John argues that he purchased the early retirement option and the 2.2 upgrade with his postdissolution earnings and that, therefore, Mary should not be entitled to any portion of his pension attributable to these early retirement incentives. He contends that the trial court should have (1) deducted the pension benefits attributable to the enhancements from the rest of the pension check prior to applying the formula to calculate Mary's share, (2) added 60 months to the denominator of the fraction in the formula, or (3) ordered Mary to pay her proportionate share of the lump-sum contributions required to give John the enhancements.

Mary, by contrast, argues that the trial court lacked jurisdiction to do anything but mechanically apply the formula set out in its November 1989 order. Noting that John's argument relies on the court's equitable power to prevent "unjust enrichment," Mary cites Strukoff v. Strukoff, 76 Ill.2d 53, 27 Ill.Dec. 762, 389 N.E.2d 1170 (1979), in which our supreme court stated, "`[Courts in dissolution cases] may exercise their powers within the limits of the jurisdiction conferred by the statute[;] the jurisdiction depends upon the grant of the statute and not upon general equity powers.'" Strukoff, 76 Ill.2d at 60,27 Ill.Dec. 762,389 N.E.2d at 1172-73 (quoting McFarlin v. McFarlin, 384 Ill. 428, 431, 51 N.E.2d 520, 521 (1943)). We believe that Mary cites this language out of context. In Strukoff, the trial court that had dissolved the Strukoffs' marriage held the hearing with respect to the grounds for the dissolution in the morning and the hearing on the ancillary issues the same afternoon. Strukoff, 76 Ill.2d at 57,27 Ill.Dec. 762,389 N.E.2d at 1171. In so doing, the trial court violated section 403(e) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act), which at that time required a period of 48 hours between the two hearings, to allow the parties to settle their disputes amicably if possible. Ill.Rev.Stat.1977, ch. 40, par. 403(e) (now see 750 ILCS 5/403(e) (West 2000)). The supreme court noted that a dissolution of marriage is an entirely statutory creation (Strukoff, 76 Ill.2d at 60,27 Ill.Dec. 762,389 N.E.2d at 1172) and that, therefore, the trial court lacked authority to enter an order not in...