In re Marriage of Culp

• Decision Date: 26 March 2010
• Docket Number: No. 4-09-0605.,4-09-0605.
• Citation: 344 Ill.Dec. 283,936 N.E.2d 1040,399 Ill.App.3d 542
• Parties: In re the MARRIAGE OF Jerold S. CULP, Petitioner-Appellant, and Susan K. Culp, n/k/a Susan Fox, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

936 N.E.2d 1040

399 Ill.App.3d 542

344 Ill.Dec. 283

In re the MARRIAGE OF Jerold S. CULP, Petitioner-Appellant, and Susan K. Culp, n/k/a Susan Fox, Respondent-Appellee.

No. 4-09-0605.

Appellate Court of Illinois, Fourth District.

March 26, 2010.

Nolan Lipsky (argued) and Ryan Reguly, of Lipsky & Reguly, of Petersburg, for appellant.

Shanon M. McMasters (argued), of Dukes, Ryan, Meyer, Freed & McMasters, Ltd., of Danville, for appellee.

Justice KNECHT delivered the opinion of the court:

[344 Ill.Dec. 285, 399 Ill.App.3d 543]

In February 1999, petitioner, Jerold S. Culp (Jerry), filed a petition for the dissolution of his marriage to respondent, Susan K. Culp, n/k/a Susan Fox. As part of their settlement agreement, the parties agreed Jerry's retirement benefits were to be "equally divided as of April 20, 1999, pursuant to a separate [Qualified Illinois Domestic Relations Order (QILDRO) ]." Because Jerry was not near retirement at the time of the dissolution, the trial court reserved jurisdiction for the entry of a QILDRO at a later date.

In January 2009, Susan filed a motion for entry of a QILDRO along with a proposed order directing Jerry to sign his consent to the QILDRO. The proposed QILDRO set forth a formula for determining the value of the marital portion of Jerry's pension and dividing it between the parties. After a March 2009 hearing at which Jerry objected to Susan's proposed QILDRO, the trial court entered a written order directing Jerry to sign his consent.

Jerry appeals, arguing the trial court erred in finding Susan's proposed QILDRO conformed to the parties' settlement agreement. We disagree and affirm.

I. BACKGROUND

The parties married June 7, 1975. In February 1999, Jerry filed for dissolution of marriage. At the time Jerry filed the dissolution petition, he was 43 years old and employed as a master sergeant with the Illinois State Police (ISP).

In June 1999, the trial court entered its dissolution order, reserving unresolved issues for a later date. In August 1999, the court conducted a final hearing in which the parties entered into a settlement agreement on all remaining issues. The agreement provided for the custody, support, education expenses, and visitation of the parties' minor child and distribution of the parties' property. Pertinent to this appeal is the distribution of Jerry's State Employees' Retirement System (SERS) defined-benefit plan pension, which he obtained from his employment with ISP.

The pension's value began to accumulate during the marriage, as Jerry's employment began after the parties married, and was the parties' major marital asset. Article C, paragraph 23, of the settlement agreement states as follows:

"[Jerry] has certain retirement benefits through [SERS] which are valued at approximately $84,000 as of April 20, 1999, the date of entry of the [j]udgment of [d]issolution of [m]arriage on grounds.

Said retirement benefits shall be equally divided as of April 20, 1999, pursuant to a separate QILDRO to be entered by agreement of the parties or by order of the court."

No other portion of the agreement addresses Jerry's pension.

In September 1999, the trial court entered the settlement agreement as an agreed supplemental order to its dissolution judgment. In the order, the court noted the agreement was "fair[,] reasonable[, and] not unconscionable."

Nearly two years passed during which neither an agreement by the parties nor an order by the trial court divided the pension pursuant to a QILDRO. In June 2001, the court entered a written order

[344 Ill.Dec. 286, 936 N.E.2d 1043]

stating "[t]he entry of a * * * [ ]QILDRO[ ] is reserved. [Jerry] shall notify [Susan], in writing, 30 days prior to making any application for retirement or request for retirement benefits" to allow Susan time to file for entry of a QILDRO prior to the commencement of the pension's disbursement.

No further action occurred until January 2009, when Susan filed a motion for entry of a QILDRO along with a proposed order directing Jerry to sign his consent to the QILDRO. The record before us on appeal does not reflect whether Susan did so as a result of Jerry notifying her of his impending retirement.

In the QILDRO, Susan named herself as alternate payee and recipient of 50% of the marital portion of Jerry's monthly retirement benefit, any lump-sum payment upon termination of the benefit, any partial refund becoming payable to Jerry, and any benefits payable to Jerry's beneficiaries upon his death. The QILDRO set forth the following formula for calculating the marital portion of the pension: (A/B) x C x D where:

" 'A' equals the number of months of * * * regular plus permissive * * * service that [Jerry] accumulated in [SERS] from the date of marriage[, June 7, 1975,] to the date of divorce[, June 4, 1999]. * * *

'B' equals the number of months of * * * regular plus permissive * * * service that [Jerry] accumulated in [SERS] through [his] effective date of retirement. * * *

'C' equals the gross amount of:

(i) [Jerry's] monthly retirement benefit * * * calculated as of [Jerry's] effective date of retirement * * * including * * * permissive service, upgrades purchased, and other benefit formula enhancements;

(ii) [Jerry's] refund payable upon termination or lump[-]sum retirement benefit that becomes payable, including any payable interest * * * calculated as of the time said refund becomes payable to [Jerry];(iii) [Jerry's] partial refund, including any payable interest * * * calculated as of the time said partial refund becomes payable to [Jerry]; or

(iv) the death benefit payable to [Jerry's] death benefit beneficiaries or estate, including any payable interest * * * calculated as of the time of said benefit becomes payable to [Jerry's] beneficiary.

'D' equals the percentage noted in [the sections of this QILDRO pertaining to monthly retirement benefit, termination refund, partial refund, and lump-sum death benefit], which ever are applicable.''

The QILDRO further provided if Jerry's retirement benefits were subject to postretirement increases, Susan's share of the benefits "shall * * * be recalculated or increased annually to include a proportionate share of the applicable annual increases."

In March 2009, the trial court held a hearing. At the hearing, Jerry's counsel objected to Susan's proposed QILDRO, arguing the formula it set forth for distributing Jerry's SERS pension deviated from the court's September 1999 supplemental order, which Jerry alleged awarded Susan $42,000—half of the pension's value when he filed his dissolution petition in April 1999. In response, Susan's counsel argued the parties' intent was not to limit her share of the SERS pension to $42,000 because the parties agreed to use a QILDRO to divide the pension rather than listing a specific dollar amount in the supplemental order and disbursing Susan's share of that value at the time of dissolution

[344 Ill.Dec. 287, 936 N.E.2d 1044]

After the parties concluded their arguments, the court granted Jerry 30 days to file a written objection to Susan's proposed QILDRO. Jerry filed a timely objection, raising the same arguments he presented before the court, and thereafter Susan filed her response, which also contained arguments similar to those raised at the hearing.

In June 2009, the trial court sent a letter opinion to both parties, ruling in Susan's favor. In the opinion, the court reasoned as follows:

"The [a]greed [s]upplemental [o]rder specifically provided for the entry of a QILDRO in which the retirement benefits were to be divided as of April 20, 1999. * * * [T]he applicable statute had just been enacted the month before the [a]greed [s]upplemental [o]rder was entered, and the matter was, therefore, new to all concerned. The [o]rder does not specify that [Susan] is to receive $42,000[ ], and in the [c]ourt's opinion, if that were the intention of the parties, provision would have been made for the entry of judgment in that amount and a payment schedule. That was clearly not the intention of the parties. If [Susan's] portion were fixed at $42,000[ ], there would be no need for a QILDRO. A subsequent[o]rder on January 12, 2001[,] also reserved the entry of the QILDRO.

* * * [T]he [SERS pension] was the major asset in the divorce proceeding, and [Jerry] was only 44 years old at the time [the court entered its order of dissolution]. Obviously, retirement was many years away. [Jerry] was to notify [Susan] in writing when he planned to retire so that the QILDRO could be entered.

It would be unconscionable to conclude now that the parties intended for [Susan] to wait untold years to receive her interest in the only major asset from the marriage, if her interest was fixed at $42,000[ ] and no more. Such an approach would deny her the benefit of interest on her asset or the benefit of any [cost-of-living adjustment] or other increases in the value of the asset. The parties clearly intended to have a QILDRO entered, with the benefits divided using the customary formulaic approach. This is not a case * * * where the parties reached a clear and unambiguous agreement that [Susan] should receive $42,000[ ] at some time in the future, with no interest on her asset and no increase in value through the intervening years. There was no such 'bargain[,]' and [Susan] cannot be held to this strained interpretation of the [a]greed [s]upplemental [o]rder."

The court further found Susan's proposed QILDRO conformed to the parties' agreement and ordered Jerry to sign the QILDRO and submit it to the court for entry. The court incorporated the letter opinion into its July 2009 written order.

This appeal followed.

II. ANALYSIS

On appeal, Jerry argues the trial court erred in finding Susan's proposed QILDRO conformed to the parties' marital settlement agreement. Specifically, Jerry contends (1) the parties' agreement unambiguously valued the pension's marital portion at $84,000 and provided Susan would receive $42,000, exactly half without any interest or cost-of-living...