Marriage of Hunt, In re

• Decision Date: 05 November 1979
• Docket Number: No. 79-86,79-86
• Citation: 78 Ill.App.3d 653,397 N.E.2d 511,34 Ill.Dec. 55
• Parties: , 34 Ill.Dec. 55 In re the MARRIAGE OF Joanne E. HUNT, Petitioner-Appellant and Cross-Appellee, and James N. Hunt, Respondent-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 511

397 N.E.2d 511

78 Ill.App.3d 653, 34 Ill.Dec. 55

In re the MARRIAGE OF Joanne E. HUNT, Petitioner-Appellant and Cross-Appellee and James N. Hunt, Respondent-Appellee and Cross-Appellant.

No. 79-86.

Appellate Court of Illinois, First District, First Division.

Nov. 5, 1979.

Behanna & Pasquesi, P. C., Highland Park (C. William Bockelman, Jr., Highland Park, of counsel), for petitioner-appellant and cross-appellee.

Peter Fricano and Michael Fio Rito, Chicago, for respondent-appellee and cross-appellant.

O'CONNOR, Justice:

Joanne E. Hunt, petitioner, brought this action to dissolve her marriage with James N. Hunt, respondent. The trial court entered judgment dissolving the marriage and adjudicating the financial rights of the parties. Petitioner appeals from the trial court's decision that respondent's interests in a pension plan and profit sharing plan were not "marital property." Respondent cross-appeals, arguing that the amount of property and maintenance awarded to petitioner was excessive.

Petitioner and respondent were married on March 17, 1951. Petitioner filed for dissolution of their marriage on December 21, 1977. At the time of the dissolution proceeding, petitioner was 49 years old and respondent was 48. They had two children, a 19-year-old daughter who was a college student and a 16-year-old son who was a high school student. Petitioner was employed by a travel agency and had a salary, after payroll deductions, of $400 a month. Respondent has been employed by Chicago Tribune, Inc. ("Tribune") since September 1951. His salary, after payroll deductions, was $2100 per month and he was also reimbursed by the Tribune approximately $500 per month for business meals, travel expenses and business entertainment.

The trial court entered judgment dissolving the marriage on October 19, 1978. Petitioner was given custody of the minor child. The trial court awarded petitioner $750 per month as permanent maintenance and $300 per month as child support for the minor child until he reaches 18. The court also found that the marital residence, a 1975 Buick automobile and various household furniture were marital property. The court ordered that petitioner and the minor child be permitted to remain in the marital residence until the minor child graduates from high school or reaches 18, whichever event occurs later. The marital residence, which has an appraised value of $125,000 and is encumbered by a $40,000 mortgage, is to be sold at that time. Until the property is sold, petitioner is responsible for making all mortgage, tax and insurance payments on the house. Petitioner is to be reimbursed for one-half of these payments out of the proceeds from the sale of the marital residence. In addition, after the mortgage and closing costs are paid, petitioner is to receive 75% And respondent 25% Of the balance of the proceeds from the sale of the marital residence. Petitioner was also awarded the 1975 Buick automobile and all of the household furniture and furnishings. Finally, the trial court found that respondent had interests in both a pension plan and a profit sharing plan provided by the Tribune. The court held that respondent's pension and profit sharing interests were not marital property, but were his completely, and that petitioner had "no interest therein."

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 503) is made applicable to this case by section 801 of that Act (Ill.Rev.Stat.1977, ch. 40, par. 801). Section 503, based on section 307 of the Uniform Marriage and Divorce Act, defines "marital property" and provides for its distribution to husband and wife upon dissolution of marriage as follows (Ill.Rev.Stat.1977, ch. 40, par. 503):

" § 503. Disposition of property

"(a) For purposes of this Act, 'marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as 'non-marital property':

"(1) property acquired by gift, bequest, devise or descent;

"(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;

"(3) property acquired by a spouse after a judgment of legal separation;

"(4) property excluded by valid agreement of the parties;

"(5) the increase in value of property acquired before the marriage; and

"(6) property acquired before the marriage.

"(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.

"(c) In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse's non-marital property to that spouse. It also shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

"(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;

"(2) the value of the property set apart to each spouse;

"(3) the duration of the marriage;

"(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;

"(5) any obligations and rights arising from a prior marriage of either party;

"(6) any antenuptial agreement of the parties;

"(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;

"(8) the custodial provisions for any children;

"(9) whether the apportionment is in lieu of or in addition to maintenance; and

"(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income.

"(d) The court may protect and promote the best interests of the children by setting aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties."

Under section 503, all "property" which is "acquired" after marriage and before divorce is "marital property" unless specifically excepted, and marital property is to be divided between spouses "without regard to marital misconduct in just proportions considering all relevant factors."

Petitioner contends that respondent's interests in the Tribune pension and profit sharing plans are fully vested and that the benefits began accruing when respondent started working for the Tribune five months after he and petitioner were married. Therefore, petitioner argues, respondent's pension and profit sharing interests were property acquired after marriage, and should have been considered marital property, because they do not come within the six exceptions. Respondent contends that his pension and profit sharing interests are not fully vested and, therefore, are not marital property because they are not "property." Respondent also maintains that only the Tribune contributes to the pension and profit sharing plans. He argues that an interest in a pension or profit sharing plan cannot be marital property when it has not been funded through the employee spouse's own contributions, which would otherwise have been available to both spouses during their marriage.

In considering the issues raised, it is necessary to define some of the terminology. An employee's interest in a pension or profit sharing plan is said to be "vested" if it is not forfeited by the discharge or voluntary retirement of the employee prior to retirement age. (In re Marriage of Brown (1976), 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561.) A vested interest should be distinguished from a "matured" interest, that is, an unconditional right to immediate payment. (Brown.) An employee's right to pension or profit sharing benefits, for example, may vest after a term of service, but not mature until the employee reaches the age of retirement and elects to retire. Finally, a "non-contributory" pension or profit sharing plan is one which is funded solely by the employer.

The record in this case includes summaries prepared by the Tribune of the terms of its pension and profit sharing plans. The summary of the pension plan indicates that respondent's pension interest is non-contributory, and that respondent, having completed ten years of service, may retire immediately and begin receiving pension payments at age 65, or at age 55 if he so elects. Thus, based on this summary of the pension plan, respondent's pension interest appears to be unmatured but vested. The summary of the profit sharing plan shows that respondent's profit sharing interest is also non-contributory, and is divided into Parts A and B. Based on the summary of the plan, Part A appears to be vested, but it is unclear whether Part B is fully vested.

Respondent argues that the summaries of the pension and profit sharing plans were not admitted into evidence and, therefore, cannot be considered. However, the pension plan summary was in fact admitted into evidence, and the profit sharing...