In re Wehr

2021 IL App (2d) 200726

198 N.E.3d 213

459 Ill.Dec. 423

IN RE MARRIAGE OF Janet H. WEHR, Petitioner-Appellee, and Paul A. Wehr, Respondent-Appellant.

No. 2-20-0726

Appellate Court of Illinois, Second District.

Filed September 29, 2021

Emily R. Carrara, of STG Divorce Law, of Naperville, for appellant.

Daniel J. Kollias and Elle L. Daley, of Kollias, P.C., of Winfield, for appellee.

PRESIDING JUSTICE BRIDGES delivered the judgment of the court, with opinion.

¶ 1 Respondent, Paul A. Wehr, appeals the trial court's division of his municipal pension in a Qualified Illinois Domestic Relations Order (QILDRO) issued according to a marital settlement agreement (MSA) between him and petitioner, Janet H. Wehr. At issue is whether Paul was a "participant," as defined by the MSA, in his pension plan during times that he did not work for a municipality and contribute to the plan. In calculating the marital portion of Paul's accrued benefit under the plan, the trial court determined that Paul was a "participant" in the plan even during months where he was not a municipal employee and not contributing to the plan. This was error. Accordingly, we reverse and remand with directions to enter a correct QILDRO.

¶ 2 I. BACKGROUND

¶ 3 Paul and Janet were married on October 13, 2000. At times before and during the marriage, Paul was a municipal employee and, as such, contributed to the Illinois Municipal Retirement Fund (IMRF). However, he was not a municipal employee contributing to the fund for the full duration of the marriage.

¶ 4 On July 26, 2019, the parties appeared for a prove-up hearing, at which the trial court entered (1) a judgment of dissolution of marriage that incorporated the MSA and (2) a QILDRO. Paul did not personally appear, but his counsel was present and advised the court that Paul had signed the settlement documents. The court entered the judgment of dissolution and the QILDRO.

¶ 5 The MSA provided in article V that, "[b]y way of a [QILDRO], described more fully in Article IX of this agreement, the Wife shall be awarded 50% of the marital portion of Husband's [IMRF]." Article IX provided:

"The parties shall cause to be prepared and presented to the Court for entry a [QILDRO] equally dividing the marital portion, in a form acceptable to the respective plan administrators, of the Husband's [IMRF] pension. The ‘QILDRO’ for the Husband's [IMRF] pension shall define the amount of the Alternate Payee's benefit as follows: ‘This order assigns to the Alternate Payee an amount equal to the actuarial equivalent of 50% of the marital portion of the Participant's accrued benefit under the Plan as of the Participant's Benefit Commencement Date, or the Alternate Payee's Benefit Commencement Date, if earlier. The marital portion shall be determined by multiplying the Participant's accrued benefit as of the date of entry of Judgment of Dissolution of Marriage in this case by a fraction (less than 1.0) the numerator of which is the number of months married while a plan participant (October 13, 2000[,] to the date of entry of Judgment of Dissolution of Marriage) and the denominator of which is the total number of months of service accredited to the Participant. ’ " (Emphasis in original.)

¶ 6 The QILDRO bore an IMRF logo and stated that it incorporated the definitions and other provisions of section 1-119 of the Illinois Pension Code (Code) ( 40 ILCS 5/1-119 (West 2018) ). The QILDRO followed the format specified in section 1-119(n) of the Code (id. § 1-119(n) ). The QILDRO provided the dates of the parties’ marriage for purposes of calculating "the number of months of *** service that the member accumulated in the Retirement System from the date of marriage *** to the date of divorce." Id. § 1-119(n)(IX)(1). The QILDRO also specified that Janet was entitled to 50% of the marital portion of Paul's pension benefit. It did not, however, contain a calculation of Janet's benefit.

¶ 7 On August 22, 2019, an amended QILDRO was entered at Janet's request to correct the listed date of marriage.

¶ 8 On September 17, 2019, Janet served Paul with a QILDRO calculation order, along with notice that Janet would present the order in court on September 23, 2019. The QILDRO calculation bore the IMRF logo and stated that it incorporated the definitions and other provisions of section 1-119 of the Code. The order followed the format specified in section 1-119(n-5) of the Code (id. § 1-119(n-5) ). The order used the total number of months that the parties were married (225) for "the number of months of *** service that the member accumulated in the Retirement System from the date of marriage *** to the date of divorce." Id. § 1-119(n)(IX)(1). The order also listed Paul's total months of service as 348, based on a figure of 29 years of service. Those figures resulted in a calculation of $821.31 per month awarded to Janet from Paul's pension benefits.

¶ 9 At the September 23, 2019, hearing, neither Paul nor his counsel was present. Janet's counsel told the court that he did not expect Paul's counsel to appear and that he was presenting the calculation order by agreement. The trial court entered the order.

¶ 10 On October 9, 2019, Paul's counsel moved to amend or vacate the calculation order for failure to conform to the MSA. On November 12, 2019, the court allowed Paul to file an amended pleading regarding allocation of the pension benefits "based upon a mutual mistake of fact." Paul thereafter filed an amended motion to amend or vacate the calculation order. Paul's counsel explained that he had believed that his presence at the September 23, 2019, hearing was unnecessary because the calculation order was simply an administrative order to effectuate a 50% distribution of the pension as specified in the MSA. The parties filed memoranda in support of their positions.

¶ 11 In his memoranda, Paul argued that the calculation order used incorrect figures. First, he had 29 years and 6 months (354 months) of total service, not just 29 years. Second, his months of service during the marriage were not equivalent to his total months of marriage. The order wrongly assumed that he was a "plan participant" (per the MSA) for the entire marriage, when in fact he was not employed by a municipality and contributing to the plan for that whole duration. Rather, he had 10 years, 8 months (128 months) of total service during the 225-month marriage. Paul's figures would result in a calculation of $459.31 per month to Janet.

¶ 12 Paul attached as an exhibit a letter from the IMRF, calculating the benefit amounts for the QILDRO. The letter listed Paul's total service as 29 years, 6 months. The dates for service were March 1982 through May 2007 for 25.25 years of service, and May 2015 through April 2019 for 4 years of service. He also had three months of permissive service. The letter stated: "No credit was earned for June 2007 through April 2015 because you were not enrolled with an IMRF employer during those months." The letter further stated that the "QILDRO time" during the marriage consisted of two periods—one of six years, eight months, and another of four years—for a total of 128 months, which was the number Paul proposed. The IMRF letter listed Paul's monthly pension annuity as $2540.58.

¶ 13 At the hearing on the matter, Janet's counsel objected to the IMRF letter as hearsay. The court overruled the objection. Paul argued that he was not a "plan participant" when he was not employed by a municipality, earning service credit, and contributing to the plan. Janet argued that Paul was a "plan participant" even when he was not employed and contributing to the plan; thus, the calculation should use the entire length of the parties’ marriage.

¶ 14 The trial court agreed with Janet, stating:

"[W]hat the Court did was to look at the common usage and the common language of what is—what does the word participant mean and when you look up participant, oddly enough, it says one who participates and takes you to participates.

Looking at the definition of that, one of the definitions is to have a part or share in something. When you take that definition, even though [Paul] was not accruing additional benefits, he was still a part of the system. He didn't cash out. He didn't retire and take a pay out. He was still a participant. Until he actually retires, he is a participant in the program. *** I don't think as [Janet's counsel] points out that the Pension Code is violated. Perhaps it is. But the Court doesn't see that because as [Janet's counsel] points out, you can't give more than the credits that were accrued. But I don't think—I think that's the total credits here. And so for the reasons that I'm stating in that the Court feels that [Paul] was a participant even during those years where he was not accruing additional service hours, the MSA is very clear, and that the QILDRO that was prepared and the QILDRO calculation that was entered are in conformance with the judgment."

¶ 15 Paul moved to reconsider. A new judge heard the motion and stated that because there had already been a thorough vetting of the issues, he was going to let the decision stand. Paul appeals.

¶ 16 II. ANALYSIS

¶ 17 Paul contends that the QILDRO calculation order is erroneous because the trial court construed "plan participant" in a manner contrary to both the MSA and the Code.

¶ 18 Janet initially argues that Paul forfeited review of the calculation order by failing to object before the order was entered. We disagree. Although Paul indeed did not object before entry of the calculation order, the trial court later gave Paul leave to challenge the order based on mutual mistake. The trial court then fully heard and considered the matter. We decline to hold that Paul forfeited a challenge that the trial court itself chose to entertain.

¶ 19 Janet also argues that Paul's challenge to the calculation order is an attempt to modify the MSA, and she cites case law holding that agreed orders may be modified or vacated only upon a...