In re MARRIAGE OF ANA L. WINTER, Petitioner-Appellant, and JEROME WINTER, Respondent (Public School Teachers’ Pension and Retirement Fund of Chicago, Intervenor-Appellee).
No. 1-11-2836
Appellate Court of Illinois, First District, Sixth Division
July 12, 2013
2013 IL App (1st) 112836
Rule 23 Order filed June 14, 2013; Rule 23 Order withdrawn July 12, 2013
(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)
In proceedings dissolving the parties’ marriage, the trial court properly found that the “surviving spouse benefit” under respondent‘s disability pension plan was not marital property subject to distribution to petitioner upon his death, since the benefit did not belong to either spouse during the marriage, it was not marital property and the Pension Code excluded a “former spouse” from the definition of a “surviving spouse,” and, furthermore, the trial court did not abuse its discretion in refusing to grant petitioner‘s request for a mandatory injunction distributing the benefit to her, and she forfeited the argument that the Pension Code exclusion violated her equal protection rights.
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 98-D-11073; the Hon. Mark Joseph Lopez, Judge, presiding.
Judgment
Affirmed.
James K. Leven, of Law Office of James K. Leven, of Chicago, for appellant.
Anita Tanay and Tiffany R. Reeves, both of Jacobs, Burns, Orlove & Hernandez, of Chicago, for appellee.
Panel
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Gordon concurred in the judgment and opinion.
OPINION
¶ 1 Following the entry of an order finding the “surviving spouse benefit” of respondent Jerome Winter‘s (Jerome) disability pension plan is not marital property subject to distribution, petitioner Ana Winter (Ana) now appeals. Ana argues upon the passing of Jerome she is entitled to the surviving spouse benefit despite not meeting the statutory definition of a surviving spouse under the Illinois Pension Code (Pension Code) (
¶ 2 BACKGROUND
¶ 3 Ana and Jerome Winter married in 1980. The couple then separated in 1998 before ultimately divorcing in 2005. Prior to the divorce, Jerome moved to the United Kingdom, taking their child and, according to the trial court, “virtually all the marital assets.” Due to Jerome‘s continued residence abroad, the trial court encountered significant difficulty identifying, valuing, and distributing most of the marital assets. Jerome‘s pension payments, however, remained available for distribution by the court. Jerome, a retired teacher for Chicago Public Schools, began receiving pension payments from the Public School Teachers’ Pension and Retirement Fund (Pension Fund) in 1985. The 2005 judgment of dissolution awarded the entire marital portion of this pension to Ana via a “Qualified Illinois Domestic Relations Order” (QILDRO) (
¶ 4 Initially, Jerome blocked Ana‘s receipt of any pension payments by refusing to sign a consent to the QILDRO, as required by section 1-119(m) of the QILDRO law.1 Ana,
¶ 5 Upon remand, Ana filed an “Amended Petition for Turnover Order and Other Relief.” In her petition, Ana argued the survivor benefits were marital property and requested, inter alia, the trial court to use its equitable power to order “the Pension Fund *** to distribute Jerome‘s survivor benefits to Ana Winter upon Jerome Winter‘s death.” The Pension Fund, having previously intervened in the lawsuit, filed a response to the petition arguing Ana was not entitled to the survivor benefits. On March 22, 2011, in a written order, the trial court denied Ana‘s request for survivor benefits. The trial court found Ana “fails to meet the definition of a ‘surviving spouse‘” under the plain language of the Pension Code and concluded the surviving spouse benefit is “not subject to division as marital property.” Ana now appeals the decision of the trial court denying her petition.
¶ 6 ANALYSIS
¶ 7 Ana sets forth three arguments on appeal: (1) the court should award her the survivor benefit of the pension plan as marital property; (2) the court should grant her the survivor benefit pursuant to its equitable powers to enforce the judgment for the dissolution of marriage; and (3) the Illinois Pension Code‘s surviving spouse definition as applied violates her equal protection rights under the Illinois and United States Constitutions.
¶ 8 I. Marital Property
¶ 9 Ana primarily argues the pension plan‘s survivor benefits should be subject to distribution as marital property at the time of Jerome‘s demise. Addressing this argument involves the interpretation and application of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (
¶ 10 The Marriage Act generally defines “marital property” as “all property acquired by either spouse subsequent to the marriage.”
¶ 11 Section 17-121(a) of the Pension Code provides, “[a] surviving spouse of a teacher shall be entitled to a survivor‘s pension only if the surviving spouse was married to the teacher for at least one year immediately prior to the teacher‘s death.”
¶ 12 The firefighter‘s pension at issue in Hannon similarly restricted a “surviving spouse” to “only a person who is married to a pensioner and alive at the time of the pensioner‘s death.” Hannon, 207 Ill. App. 3d at 333. The court in Hannon reasoned survivor benefits are “generally defined under the Code as the property of the survivors of a deceased former employee.” Id. at 334-35 (citing
¶ 13 According to Ana, however, the subsequent Illinois Supreme Court decision of Smithberg v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291 (2000), effectively overrules Hannon. In Smithberg, the husband agreed to designate his former wife as the sole beneficiary of the death benefit from his retirement fund and agreed he would “‘not designate any other survivors, or allocate any survivorship benefits, to anyone other than‘” his former wife. Smithberg, 192 Ill. 2d at 293. After the husband remarried, “contrary to the express terms of the judgment and marital settlement agreement,” he designated his second wife as the recipient of the death benefit. Id. The husband died without ever changing the designation to his former wife per the settlement agreement. Id. On cross-motions for summary judgment, the trial court ruled the second wife as the proper beneficiary. Id. at 292. On appeal, this court reversed, finding summary judgment should have been granted for the former wife. Id. The supreme court then affirmed the judgment of the appellate court. Id. at 306. In affirming the appellate court, the supreme court found the death benefits at issue were marital property subject to distribution upon dissolution, noting “retirement benefits have long been presumed to be marital property to the extent that the beneficial interest was acquired during the marriage.” Id. at 303.
¶ 14 The facts of Smithberg noticeably differ from those of the instant case. Smithberg concerned a death benefit that could be designated to any person the retiree desired. Id. at 293. Conversely, this case involves a surviving spouse benefit that accrues to an individual
¶ 15 The Smithberg court cited In re Marriage of Moore for the proposition that “a survivor benefit *** has been held to be a ‘distinct property interest.‘” Id. (quoting In re Marriage of Moore, 251 Ill. App. 3d 41, 44 (1993)). Ana focuses on the use of the label “survivor benefit” in arguing the benefit in this case should be treated similarly to those in Smithberg and Moore. This argument, however, ignores the substantive distinction between the benefits at issue in those cases and the benefit at issue here. In Moore, the pension plan offered the pensioner the option to elect a “survivor annuity,” but the so-called “survivor annuity” allowed him to designate his former wife as the sole beneficiary. Moore, 251 Ill. App. 3d at 45. Thus, in both Smithberg and Moore, the statute granted the pensioner the ability to choose the recipient of the benefit; this choice represented a present property interest belonging to the pensioner. This shared substantive property—and not any respective designation as a “death” or “survivor” benefit—was critical to the Smithberg and Moore courts’ ability to distribute the benefits as marital property.
¶ 16 The benefit in this case differs from those at issue in Smithberg and Moore. The statute awarding the pension here restricts receipt of the benefit only to a “surviving spouse.” Accordingly, the survivor benefits belonged to neither Ana nor Jerome, but to a hypothetical and undetermined “surviving spouse” defined by the Pension Code. Therefore, as the contingent benefits belonged to neither spouse, they could not be considered marital property under the Marriage Act, which requires the property to be “acquired by either spouse subsequent to the marriage.”
¶ 17 The legislature established the pension benefit at issue. See
¶ 18 II. Equitable Relief
¶ 19 Ana additionally argues the court should still exercise its equitable power by ordering the Pension Fund to provide her the survivor‘s benefit regardless of any mandate to the contrary
¶ 20 Although Ana did not label it as such, her argument for equitable relief amounts to a request for a positive or mandatory injunction. See People v. Van Tran Electric Corp., 152 Ill. App. 3d 175, 183 (1987) (“A mandatory injunction *** commands the performance of some positive act.“). Generally “not favored by the courts,” a mandatory injunction is an “extraordinary remedy” and granted only in the rare instance the petitioner “has established a clear right to relief and the court determines that the urgency of the situation necessitates such action.” Lewis E. v. Spagnolo, 186 Ill. 2d 198, 234 (1999). The decision to grant or deny an injunction rests within the sound discretion of the trial court and on review the decision will not be disturbed absent an abuse of discretion. People ex rel. Klaeren v. Village of Lisle, 202 Ill. 2d 164, 177 (2002). A trial court abuses its discretion only where no reasonable person would take the view adopted by the trial court. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005).
¶ 21 To argue she is entitled to a mandatory injunction, Ana again relies on Smithberg. In particular, Ana argues the court in Smithberg “directed the [Illinois Municipal Retirement Fund] to pay the death benefit to [the former wife],” despite the Pension Code stating the death benefit should be distributed to the person designated by the retiree, which in Smithberg was the retiree‘s second wife. In making this argument, Ana mischaracterizes the court‘s actions in Smithberg.
¶ 22 In Smithberg, the retiree agreed in a marital settlement agreement to designate his former wife as the recipient of the death benefit. Smithberg, 192 Ill. 2d at 293. When the retiree changed the designation to his second wife prior to his death, he violated the terms of the agreement. Id. at 296. The court could have held the retiree in contempt of court and ordered him to revert the designation to his former wife. Id. After the retiree‘s death, however, this became impossible. Id. at 298. Thus, the supreme court noted an equitable remedy was necessary to achieve the proper result. Id. at 299.
¶ 23 The court in Smithberg did not, as Ana suggests, order the retirement fund to pay the former wife directly in contravention to the Pension Code. See id. Instead, the court used its equitable powers to “deem[ ] the designation of beneficiary form [designating the former wife as the sole beneficiary] filed with the [retirement fund] when it should have been filed, prior to [the retiree‘s] death.” Id. In addition, the supreme court noted another proper remedy would have been to establish a constructive trust under which the second wife would still have initially received the death benefit. Id. The constructive trust then would have required the second wife “to transfer title and possession of the wrongfully acquired property to the [former wife].” Id. Neither equitable remedy would “trump” the statutory designation of the Pension Code. Rather, both remedies are designed to achieve the result demanded by the marital settlement agreement in a manner consistent with the provisions of the Pension Code.
¶ 24 Ana does not request either remedy described in Smithberg. Indeed, both remedies would be impossible to administer in this case. No beneficiary form exists for the court to deem
¶ 25 In addition to relying on Smithberg, Ana also argues the previous preliminary injunction entered in this case demonstrates why she is entitled to a mandatory injunction here. The previous injunction sought to enforce the terms of the existing judgment by setting up a constructive trust. Winter, 387 Ill. App. 3d at 27. The purpose of the constructive trust was to assure Ana received the marital property the trial court found she was entitled to receive. Id. at 28. Ana now requests we use a permanent mandatory injunction to distribute survivor benefits that the law prohibits. Given this distinction, we cannot state that “no reasonable person would take the view adopted by the trial court.” Accordingly, the trial court did not abuse its discretion by denying Ana‘s request for a mandatory injunction.
¶ 26 III. Equal Protection
¶ 27 Ana lastly argues the definition of a surviving spouse under section 17-121(a) as applied to her violates her equal protection rights under the Illinois and United States Constitutions. According to Ana, section 17-121(a) irrationally discriminates against her—a former spouse who had been married to the pensioner for 25 years—in favor of a hypothetical current spouse who may have only been married to the pensioner for one year by the time of his death. We need not address this argument because Ana has forfeited this assertion by not challenging the statute in the trial court. While Ana did raise a constitutional challenge to a different statute below,3 she never raised the as-applied challenge to section 17-121(a) she now asserts on appeal. “A party‘s failure to challenge the constitutionality of a statute in the circuit court normally forfeits that challenge on appeal in a civil case.” Forest Preserve District v. First National Bank of Franklin Park, 2011 IL 110759, ¶ 27 (citing In re Liquidations of Reserve Insurance Co., 122 Ill. 2d 555, 567-68 (1988)). Moreover, “it is well established that a court is not capable of making an ‘as applied’ determination of a statute‘s constitutionality where there has been neither an evidentiary hearing nor any findings of fact in the lower court.” People v. Brisco, 2012 IL App (1st) 101612, ¶ 57.
¶ 28 In addition, Ana failed to provide timely notice to the Illinois Attorney General of the
¶ 29 For the first time in her reply brief, however, Ana asserts the Pension Fund did not address the timeliness of her notice in its response and, therefore, the Pension Fund has forfeited any forfeiture argument. First, we note this argument was improperly raised in the reply brief and we need not address it; an appellant‘s arguments must be made in the appellant‘s opening brief and cannot be raised for the first time in the appellate court by a reply brief. See
¶ 30 CONCLUSION
¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 32 Affirmed.