State: Illinois
Court: 4th District Appellate
Docket No: 4-96-0270
Case Date: 01/14/1997
1/14/96 NO. 4-96-0270
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: the Marriage of ) Appeal from
THOMAS WISNIEWSKI, ) Circuit Court of
Petitioner-Appellant, ) Champaign County
and ) No. 80C1170
VIRGINIA WISNIEWSKI, )
Respondent-Appellee. ) Honorable
) George S. Miller,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Thomas and Virginia Wisniewski were divorced in an
order entered on June 8, 1981. Thomas appealed the property dis-
tribution established in the order, and this court reversed and
remanded. In re Marriage of Wisniewski, 107 Ill. App. 3d 711,
437 N.E.2d 1300 (1982). On April 26, 1983, on remand, the trial
court entered a new judgment which reserved jurisdiction, until
Thomas retired, to apportion the marital interest in his pension
payments. The benefits were apportioned in an order dated March
22, 1996. Thomas appeals, arguing that the award gave Virginia a
share of his earnings after dissolution. Virginia argues that
the method of division was determined in the 1983 order, and this
appeal is untimely. We hold that the 1983 order did not deter-
mine a method of apportionment, and that the trial court did not
abuse its discretion in dividing the pension. Accordingly, we
affirm. FACTS
Thomas and Virginia were married 27 years. Three years
prior to the marriage, Thomas became a participant in the Illi-
nois Teacher's Retirement System (TRS). He remained a partici-
pant in TRS after the marriage, but he eventually switched to the
Illinois State Universities Retirement System (SURS). Thomas
continued to participate in SURS after the marriage was dissolved
on June 8, 1981. Thomas is now entitled to a pension from each
system.
Both the TRS and SURS plans are "defined benefit
plans." Under the formula applicable to Thomas, the amount of
benefits is the product of final average salary multiplied by a
pension multiplier. Final average salary is the average of the
salaries of 4 of the last 10 years in which the participant's
salary was the highest. Under section 20-106 of the Retirement
Systems Reciprocal Act (40 ILCS 5/20-106 (West 1994)), the same
final average salary is used under both of Thomas' pension plans.
The pension multiplier starts at 1.67% and grows every
year. It increases by 1.67% for each of the first 10 years of
participation in each plan. It increases 1.9% for each of the
next 10 years. 40 ILCS 5/15-136, 16-133(a)(B)(1) (West 1994).
Thomas accrued a pension multiplier of 30% under the TRS plan.
He accrued 5.01% of that multiplier prior to the marriage (3 x
1.67), and 24.99% during the marriage. By the time of dissolu-
tion, Thomas had accrued a pension multiplier under the SURS plan
of 24.3%. Thomas' SURS multiplier continued to grow after the
dissolution.
An early retirement penalty equal to one-half of 1% is
assessed against final payments for every month before age 60 a
participant retires. 40 ILCS 5/15-136(b), 16-133(a)(B) (West
1994).
On remand in 1983, the trial court did not make an
allocation of Thomas' retirement interest. Instead it provided
that:
"Jurisdiction is continued and retained
to apportion between the parties according to
marital share and supervise payments of the
pension if, as, and when it becomes vested in
and payable to Thomas. Thomas shall promptly
notify this court and Virginia as soon as his
retirement date is known so that the court
can appropriately deal with the pension."
Thomas did not appeal that order.
Virginia had no pension in her own name at the time of
dissolution. In the period between the dissolution and Thomas'
retirement she was employed by the University of Cincinnati, from
which she is now retired. During that time she accrued, and now
receives, a monthly pension benefit of $925.
As Thomas worked after dissolution, his pension in-
creased for three reasons. First, he eliminated the early re-
tirement penalty by working past age 60. Second, his salary
continued to increase in this period, thereby increasing the
"final average salary" for purposes of calculating his pension.
40 ILCS 5/20-106 (West 1994). Finally, his pension multiplier
continued to receive yearly additions.
On August 21, 1994, Thomas retired, having notified the
court and his former wife of his intention to do so. On November
2, 1994, Virginia filed a petition to allocate the pension. A
hearing was held on that petition on February 20, 1996. At the
hearing Thomas and Virginia made four stipulations: (1) they were
married for 27 years; (2) Thomas contributed to the pension plans
for 44 years; (3) the total monthly payout from the pension plans
was $3,819.07; and (4) Thomas began receiving payments from his
pension in September 1994. Both parties agree that Virginia is
entitled to one-half of the marital interest in the pension,
however that interest is valued. The trial court ordered Virgin-
ia to subtract from her share a corresponding share of Thomas'
federal income tax on the pension benefits. She does not contest
this part of the order on appeal.
Thomas argued at trial that the marital interest in his
pension payments should be based on the amount of pension bene-
fits accrued at the time of dissolution, without reduction for
the retirement penalty. He would set the marital interest (of
which Virginia is entitled to
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