In Re Marriage of Hendry
949 N.E.2d 716
Ill. App. Ct.2011Background
- Loree and Michael Hendry married in 1986; judgment of dissolution entered October 27, 2008 incorporating an MSA.
- MSA section 9.6 excluded Pacific Life SERP from Loree’s rights, stating it would vest for Michael and be awarded to him; Loree waived her interest.
- MSA section 9.7 required valuation of tax-deferred assets and pensions (excluding SERP) and equal division, with transfer mechanics to be used for equalization.
- Loree filed a rule to show cause (April 2, 2009) seeking a share of the Pacific Life SERP; petition dismissed without prejudice.
- Loree later filed petitions to enforce the judgment and to modify/vacate (Sept. 24, 2009 and Oct. 5, 2009); trial court denied both on March 1, 2010.
- Appellate court reviews the enforcement/modification rulings; holds on interpretation of the MSA and remands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Pacific Life SERP is included in equal division | Loree seeks 50% of all tax-deferred assets, including SERP. | MSA excludes SERP from equal division; only listed accounts divided. | SERP included in equal division; Pacific Life plan must be shared 50/50 except SERP. |
| Whether the court correctly enforced the MSA rather than modified it | Court should enforce the MSA to include SERP as intended by parties. | Modification argued; the court cannot alter the MSA through enforcement. | Court properly enforced the MSA; no modification required. |
| Whether Loree properly challenged the judgment via modification/vacation for the SERP issue | Fraud/concealment from Michael warranted modification/vacation. | Lack of Rule 341 compliance and insufficient proof of concealment. | Rule 341 forfeits argument; even if considered, no proven concealment. |
| Whether the appellate court has jurisdiction over Loree's appeal | Notice of appeal timely; subject rulings are appealable final orders. | Rule 303(a) requirements may apply. | Jurisdiction exists; timely notice rendered appeal proper. |
Key Cases Cited
- Hall v. Hall, 404 Ill.App.3d 160 (Ill. App. 2010) (MSA includes omitted plans and should be enforced to include them)
- Yelton, In re Marriage of Yelton, 286 Ill.App.3d 436 (Ill. App. 1997) (no automatic invalidation when partner accepts benefits)
- Village of Glenview v. Buschelman, 296 Ill.App.3d 35 (Ill. App. 1998) (finality of denial of petition; timing of appeals)