Marriage of Agustsson, In re, 2-91-0134

• Decision Date: 08 January 1992
• Docket Number: No. 2-91-0134,2-91-0134
• Citation: 223 Ill.App.3d 510,585 N.E.2d 207,165 Ill.Dec. 811
• Parties: , 165 Ill.Dec. 811 In re MARRIAGE OF Magnus AGUSTSSON, Petitioner and Counterdefendant-Appellee, and Ann Agustsson, n/k/a Ann Agustsson Mathers, Respondent and Counterplaintiff-Appellant.
• Court: United States Appellate Court of Illinois

Page 207

585 N.E.2d 207

223 Ill.App.3d 510, 165 Ill.Dec. 811

In re MARRIAGE OF Magnus AGUSTSSON, Petitioner and

Counterdefendant-Appellee,

and

Ann Agustsson, n/k/a Ann Agustsson Mathers, Respondent and

Counterplaintiff-Appellant.

No. 2-91-0134.

Appellate Court of Illinois,

Second District.

Jan. 8, 1992.

O'Halloran, Kosoff & Miller, David A. Belofsky (argued), Chicago, John O. Demaret, John O. Demaret & Assoc., Patricia A. Heeney, Northbrook, for Ann Agustsson.

Williams & McCarthy, P.C., Rockford, Carol H. Hallock (argued), Williams &amp McCarthy, Stephen E. Balogh, Williams & McCarthy, P.C., Oregon, for Magnus Agustsson.

Justice McLAREN delivered the opinion of the court:

Ann Agustsson, respondent, appeals from an order entered by the trial court, vacating a judgment for dissolution of her marriage and accompanying marital settlement agreement. We affirm.

Magnus Agustsson, petitioner, filed a petition for dissolution of marriage from his wife, Ann. On March 22, 1990, the trial court entered a judgment for dissolution which incorporated a marital settlement agreement. The agreement provided for a "fifty-fifty" distribution of a pension owed to Magnus by his former employer, SwedishAmerican Hospital. The settlement agreement provided for distribution of the pension as follows:

"7. Husband acknowledges that he is a beneficiary of and a participant in the Swedish American Corporation Retirement Plan (the 'plan') which plan has been heretofore sponsored, in whole or in part, by husband's former employer, Swedish American Hospital. Husband further acknowledges that he has since February 1, 1989 received monthly payments from said plan in the amounts of $1,729.13. Husband and wife have been notified by Swedish American Hospital and understand that the plan has been terminated and that husband is entitled to receive an accrued benefit, payable in lump sum, in the amount of $211,936.20. The husband covenants to make written request to the plan administrator for lump sum distribution of the accrued plan benefit, which lump sum distribution the wife shall consent to in writing upon the condition of and in partial consideration for the following division of the lump sum payment from the plan:

A. Wife shall receive an amount equivalent to 50% of the accrued benefit plus an amount equal to 50% of the monthly payments received by husband since December 19, 1989, which shall be computed prior to the deduction or payment of any taxes due on the lump sum distribution from the plan, and which amount shall in no event be less than $108,561.80.

B. Husband shall authorize and direct the plan administrator and, if necessary, the Swedish American Hospital, to deduct from the lump sum distribution of the accrued plan benefit all amounts due wife under paragraph 7A hereof; and

C. Husband shall receive the balance of the lump sum distribution of the accrued plan benefit due him from the plan after deduction of the amount specified by paragraphs 7A and B hereof." (Emphasis added.)

Shortly after the judgment was entered, SwedishAmerican Hospital filed a petition to dissolve a prior injunction prohibiting distribution of the pension funds. The hospital specifically requested that the pension be distributed in a single check to Magnus, to ensure compliance with section 206(a) of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1056(a) (1990)). Although Magnus argued that payment in one check would shift the entire burden of income tax payment to the recipient of the check, on March 29, 1990, the trial court modified the injunction "to allow Swedish American Hospital to deliver its check in the amount of the lump sum distribution of the accrued plan benefit due Magnus Agustsson." The order also directed Magnus to negotiate a check to Ann in accordance with paragraph 7A of the marital settlement agreement. Magnus objected to disbursement because the judgment for dissolution did not constitute a qualified domestic relations order (QDRO) (29 U.S.C. § 1056(d)(3) (1990)) and requested leave to modify, to which the court responded, "[t]hat motion should be filed, but that is not a basis on which I should delay signing the order which [lifts the injunction]."

Consequently, Magnus filed a motion to amend the judgment for dissolution pursuant to section 2-1203 of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-1203), so that it would expressly reflect a QDRO, thereby assessing the tax burden according to the share of the pension each party received. However, on April 13, 1990, the court denied Magnus' motion to amend "in its entirety." The apparent basis for the denial was that the written terms of the marital settlement did not provide for a QDRO. When Magnus' counsel stated that it was part of the oral agreement of the parties, the court responded that, if "it isn't in [the agreement], it isn't in there. That's the end of it." Next, the following interchange occurred:

"MS. HALLOCK [counsel for Magnus]: Are you saying the Motion to Vacate is more appropriate? I would be filing a motion to vacate on those grounds.

THE COURT: Maybe.

MS. HALLOCK: Okay.

THE COURT: I can't say for sure. I can't bar you from filing such a Motion. A motion to Amend as for now, I think, should be denied. Heard and denied."

Accordingly, Magnus filed a motion to vacate the judgment for dissolution on April 20, 1990, and an amended motion to vacate on April 25, 1990. He alleged that the parties agreed and intended that each party pay taxes on the amount of the pension received. Magnus also asserted that interpreting the agreement so that he must bear the entire tax burden amounts to a mutual mistake of fact, thereby furnishing grounds for vacation. Finally, on April 30, 1990, Magnus filed a motion to vacate the order of March 29, 1990, which directed Magnus to pay Ann according to the terms of the agreement. The motion asserted that the trial court substantially altered the terms of the marital settlement agreement by allowing the hospital to issue a single check, since the agreement clearly called for the issuance of separate checks.

The trial court did not initially decide the motions to vacate, because it considered the terms of the agreement ambiguous. Instead, it ordered an evidentiary hearing to determine the intent of the parties at the time the agreement was executed. Based on the evidence presented at the hearing, the trial court found that the parties had different understandings of the terms of the marital settlement agreement, which amounted to a "mutual mistake of fact." The court also found that the valuation of the marital estate and the tax consequences of the distribution were not taken into consideration in entering the judgment for dissolution. Accordingly, on January 3, 1991, the court vacated the judgment for dissolution and dismissed the motion to vacate the March 29, 1990, order as moot. On January 29, 1991, Ann filed a timely notice of appeal from the order vacating the judgment for dissolution and accompanying marital settlement agreement.

Prior to considering the merits of an appeal, the appellate court is bound to inquire whether it has jurisdiction to hear the appeal. (Ferguson v. Riverside Medical Center (1985), 111 Ill.2d 436, 440, 96 Ill.Dec. 47, 490 N.E.2d 1252; Archer Daniels Midland Co. v. Barth (1984), 103 Ill.2d 536, 539, 83 Ill.Dec. 332, 470 N.E.2d 290; Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill.App.3d 219, 223, 148 Ill.Dec. 559, 560 N.E.2d 1156.) An appellate court's jurisdiction is confined to reviewing appeals from final orders or judgments (134 Ill.2d Rules 301, 303, 304), unless the particular judgment or order falls into an enumerated category permitting interlocutory appeals. (See 134 Ill.2d Rules 307, 308; Sutherland v. Norbran Leasing Co. (1988), 180 Ill.App.3d 95, 96-97, 128 Ill.Dec. 787, 535 N.E.2d 1.) A final judgment terminates the litigation on the merits of the case and determines the ultimate rights of the parties. If affirmed, the only action remaining is to proceed to its execution. Sutherland v. Norbran Leasing Co. (1988), 180 Ill.App.3d 95, 97, 128 Ill.Dec. 787, 535 N.E.2d 1.

In this case, Ann appeals from an order vacating the judgment for dissolution. However, an order vacating a judgment is not final and consequently not appealable, because the merits of the case are still pending. (Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill.App.3d 981, 985, 36 Ill.Dec. 304, 400 N.E.2d 724; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill.App.3d 625, 628, 15 Ill.Dec. 70, 373 N.E.2d 416; William Aupperle &amp Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill.App.3d 573, 576, 329 N.E.2d 458.) However, Ann contends that this appeal is premised on the appellate court's mandatory jurisdiction over void orders. Although Ann correctly states that void orders are appealable and can be attacked at any time (see People ex rel. McGraw v. Mogilles (1985), 136 Ill.App.3d 67, 71, 90 Ill.Dec. 831, 482 N.E.2d 1114; Petersen, 57 Ill.App.3d at 628-29, 15 Ill.Dec. 70, 373 N.E.2d 416; Underwood v. Yellow Cab Co. (1971), 131 Ill.App.2d 449, 452, 268 N.E.2d 254), the order vacating the judgment in this case is not void.

A court loses jurisdiction over a matter once 30 days have passed if during that time neither party takes any legally proper action, such as the filing of a post-judgment motion, which delays the running of the 30-day period. (People ex rel. McGraw v. Mogilles (1985), 136 Ill.App.3d 67, 90 Ill.Dec. 831, 482 N.E.2d 1114; Allstates Tool Corp. v. Arachnid, Inc. (1988), 177 Ill.App.3d 573, 579, 126 Ill.Dec. 820, 532 N.E.2d 505.) Section 2-1203 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1989, ch. 110, par. 2-1203) specifies that a motion to modify or vacate a judgment qualifies as a post-judgment motion under Supreme Court Rule 303(a)(1). (134 Ill.2d R. 303(a)(1); see also Brock v. Police Board (1990), ...