In re Marriage of Winter

• Decision Date: 24 November 2008
• Docket Number: No. 1-07-0619.,1-07-0619.
• Parties: In re the MARRIAGE OF Ana L. WINTER, Petitioner-Appellee, and Jerome Winter, Respondent-Appellant (Public School Teachers' Pension and Retirement Fund of Chicago, Intervenor).
• Court: United States Appellate Court of Illinois

899 N.E.2d 1080

387 Ill. App. 3d 21

In re the MARRIAGE OF Ana L. WINTER, Petitioner-Appellee, and Jerome Winter, Respondent-Appellant (Public School Teachers' Pension and Retirement Fund of Chicago, Intervenor).

No. 1-07-0619.

Appellate Court of Illinois, First District, First Division.

November 24, 2008.

James K. Leven, Chicago, IL, for Petitioner-Appellee.

Richard H. Marcus, Law Offices of Chicago Kent College of Law (Stuart Berks, of counsel), Leon E. Farbman, Deutsch, Levy & Engel, Chartered, Chicago, IL, for Respondent-Appellant.

Anita Tanay, Jacobs, Burns, Orlove, Stanton & Hernandez, Chicago, IL, for Intervenor.

Justice GARCIA delivered the opinion of the court.

In 2005, a judgment of dissolution of marriage was entered providing for the division of the marital portion of the respondent's pension from the Public School Teachers' Pension & Retirement Fund of Chicago. However, the respondent, a resident of England, failed to direct the Pension Fund to pay the petitioner her share of the marital portion of the pension. In 2006, the petitioner filed a petition seeking a "freeze" on the respondent's pension payments until she was paid her share in accordance with the dissolution judgment. The circuit court entered injunctive relief against the Pension Fund.

In this interlocutory appeal, we must now answer whether the circuit court had authority to enter an order against the public pension fund directing that the member's benefits be paid to a third-party trustee, without a qualified Illinois domestic relations order (QILDRO). As a preliminary question, we must answer whether the trustee and pension fund, both nonparties, were entitled to prior notice and the opportunity to be heard before the petitioner could be granted relief.

We hold that under the unusual facts of this case, the trustee and the pension fund were not entitled to prior notice and an opportunity to be heard before preliminary injunctive relief was granted. Because the record supports the circuit court's determination that no other effective relief was available, we conclude the circuit court properly exercised its broad equity powers to order the pension fund to issue the pension checks in care of the trustee. We find no authority, however, to support that portion of the circuit court's order directing that the checks be made payable to the trustee. Accordingly, we affirm in part, vacate in part, and remand with instructions.

BACKGROUND

The petitioner, Ana L. Winter, and the respondent, Jerome Winter, were married in 1980 and separated in 1998. On February 25, 2005, the circuit court entered a judgment dissolving the parties' marriage. No appeal was taken.

The dissolution judgment reflects the trial court's difficulty in dividing the marital assets. The majority of the documentation that would have aided the court in identifying and valuing the assets was with Mr. Winter in England, where he "fled" with the parties' child. Mr. Winter had been "wholly responsible for the parties' financial matters during the marriage."

Mr. Winter was represented by counsel in the dissolution action, but never personally appeared in court, presented testimony or gave a deposition. The trial court entered various orders directing Mr. Winter to provide specific documentation regarding the marital assets. The trial court rejected the majority of Mr. Winter's responses as self-serving and irrelevant.

The trial court divided those marital assets it could identify, including Mr. Winter's pension with the Public Teacher's Pension and Retirement Fund of Chicago (Pension Fund). The judgment provides,

"17. ANA is further awarded the marital portion of JEROME's pension with the [Pension Fund]. ANA's marital portion shall be divided by a qualified domestic relations order.¹ JEROME shall obtain the necessary documents from the Pension Administrator in order to enter the qualified domestic relations order."

The trial court reserved jurisdiction for all postjudgment proceedings.

On February 21, 2006, Ms. Winter filed a "Petition to Freeze Pension Funds." Ms. Winter alleged Mr. Winter was receiving pension funds but she was not because Mr. Winter had failed to submit the necessary documents for the entry of the QDRO in violation of the dissolution judgment. Ms. Winter requested the court freeze Mr. Winter's pension "until the required documents are executed for Ms. Winter to receive her fair share," "until further order of court," or "until the Court determines the extent that Jerome's share should be paid to Ana."

In August 2006, Mr. Winter filed his "Response to Petition to Freeze Pension Funds." In his response, Mr. Winter admitted he was receiving payments from the Pension Fund and that Ms. Winter was not. Mr. Winter argued that a "freeze" would diminish or impair his pension, which is protected against such actions by the Illinois Constitution and Pension Code (40 ILCS 5/1-101 et seq. (West 2006)). Mr. Winter argued that the Constitution and Pension Code deprived the trial court of authority to enjoin the Pension Fund, a nonparty. Finally, Mr. Winter argued the dissolution judgment was unenforceable as his pension is not subject to a QDRO.

On February 2, 2007, in an eight-page ruling, which forms the basis of this appeal, the trial court amended the dissolution judgment to reflect a QILDRO, applicable to public pensions, while retaining Mr. Winter's judgment obligation to obtain the necessary documents from the Pension Fund for the entry of such an order. The court recognized that because Mr. Winter's membership in the Pension Fund predated the enactment of section 1-119 of the Pension Code (40 ILCS 5/1-119 (West 2006)), which provides for QILDROs, Mr. Winter's consent was required before a QILDRO could be entered. See In re Marriage of Menken, 334 Ill.App.3d 531, 268 Ill.Dec. 295, 778 N.E.2d 281 (2002).

The trial court also discussed the "triangular approach" used to ensure a former spouse's receipt of a portion of pension benefits as marital property to which the former spouse is entitled. See, e.g., In re Marriage of Roehn, 216 Ill.App.3d 891, 895, 159 Ill.Dec. 891, 576 N.E.2d 560 (1991). Under this approach, the payment of pension benefits from the fund to the member is unaffected; the focus is on the member's obligation to pay the former spouse her share of the pension benefits directly in accordance with the dissolution judgment. Compliance is compelled through the court's contempt powers. The trial court concluded the triangular approach as it was approved in Roehn was unworkable because Mr. Winter was a permanent resident of England, having never personally participated in the litigation. The court lacked "any hope that Jerome will ever set foot in the State of Illinois again."

Because the entry of a QILDRO was not possible without Mr. Winter's consent and the court's contempt powers could not reach Mr. Winter in England, the trial court concluded "Ana ha[d] no adequate remedy at law" and "the entry of injunctive relief" was appropriate. The court's order provides,

"11. Accordingly, given the constraints under which this Court is required to comply both by statute and case law in providing relief to Ana in obtaining the marital portion of Jerome's pension[,][t]he Court finds that injunctive relief be ordered against the `Pension Fund' from issuing any future pension benefits payments directly to Jerome. Additionally, this Court orders the `Pension Fund' to send all future payments of Jerome's pension benefits to Richard H. Marcus, as attorney and trustee for Jerome, until further order of this Court.

12. Attorney Marcus shall then deposit all sums received from the `Pension Fund' directly to his `IOLTA' account pending further order of this court."

In a later portion, the court orders:

"1. [The Pension Fund] is enjoined from issuing any further pension benefits to Jerome Winter until further order of this Court.

2. That Jerome is enjoined from transferring, encumbering, or receiving any lump sum payments or otherwise modifying his pension benefits from the [Pension Fund] without leave of this Court.

3. The [Pension Fund] shall issue all of Jerome's future pension benefit payments payable to Richard H. Marcus as attorney and trustee for Jerome Winter." (Emphasis added.)

After Mr. Winter timely filed a notice of appeal, the Pension Fund filed a motion to intervene in the trial court. The trial court dismissed the motion for lack of jurisdiction. After briefs were filed here, we granted the Pension Fund's motion to intervene.

ANALYSIS

I. Sufficiency of the Record

We first address Ms. Winter's contention that the record before us is insufficient to decide the merits of the appeal and therefore the appeal must be dismissed. Ms. Winter argues the absence of a transcript or bystander's report of the trial court proceedings below means we must presume the trial court's ruling was correct, citing Foutch v. O'Bryant, 99 Ill.2d 389, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984), as authority.

We disagree. In Foutch, the supreme court addressed whether there is a "sufficiently complete record of the proceedings at trial to support a claim of error." (Emphasis added.) Foutch, 99 Ill.2d at 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958. The sufficiency of the record to address a claim of error turns on the question presented on appeal. In Foutch, the question was whether the trial court abused its discretion in denying the motion to vacate an ex parte judgment. Foutch, 99 Ill.2d at 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958. Absent a transcript of the hearing below where evidence was heard, review for an abuse of discretion of the trial court's denial of the motion, where no specific grounds for the denial were given, was foreclosed. Foutch, 99 Ill.2d at 392, 76 Ill.Dec. 823, 459 N.E.2d 958.

In this case, the trial court's written order sets forth its reasoning. Further, because we determine the central issue-whether the circuit court has authority to order...