In re Marriage of Winter

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-0619 Rel

Case Date: 11/24/2008

Preview:FIRST DIVISION November 24, 2008

No. 1-07-0619 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). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 98 D 11073

The Honorable Mark Lopez, Judge Presiding.

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.

No. 1-07-0619 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. 2 On February

No. 1-07-0619 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 3

No. 1-07-0619 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

1

Because the pension fund involved is a public fund, the

judgment incorrectly identified the order as a "qualified domestic relations order" (QDRO). See In re Marriage of Carlson,

269 Ill. App. 3d 464, 466-67, 646 N.E.2d 321 (1995) (explaining a QDRO is "a creature" of the federal Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C.

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