Docket No. 107755.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
In re MARRIAGE OF MARY JACQUELINE ABRELL, Appellant,
and JOHN GEORGE ABRELL, Appellee.
Opinion filed February 4, 2010.
JUSTICE THOMAS delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman and Karmeier
concurred in the judgment and opinion.
Justice Garman dissented, with opinion, joined by Justices
Kilbride and Burke.
OPINION
At issue in this case is whether unused vacation days and sick
days are marital property subject to distribution in an action for
dissolution of marriage. The circuit court of Sangamon County held
that those days were marital property. The appellate court affirmed in
part and reversed in part. 386 Ill. App. 3d 718. We now affirm the
appellate court’s decision.
BACKGROUND
John Abrell and Mary Jacqueline (Jacquie) Abrell were married
on June 2, 1984. John and Jacquie had one child, John Matthew
(Matthew) Abrell, born on August 26, 1986. On March 10, 2003,
Jacquie filed a petition for dissolution of marriage. Trial of the
outstanding issues in the dissolution action began in August 2004.
Jacquie testified at trial that she was 59 years old. She had a high
school education and was a graduate of beauty school. When Jacquie
and John got married, Jacquie was working as an executive secretary
at the Springfield recreation department, earning approximately
$14,000 a year. Jacquie left this job in April 1987, approximately nine
months after Matthew was born. For the rest of the marriage, Jacquie
did not have a full-time job, although she held intermittent part-time
jobs.
John, who was 54 years old at the time of trial, testified that he
began working as an attorney for the Illinois Department of Public
Health in August 1984, where he continued to work. At the time of
trial, John earned approximately $72,000 a year, and had accrued 115
sick days and 42 vacation days through his employment. John
testified that he had surgery for prostate cancer on January 22, 2004,
and had used quite a few of his sick days in connection with that
surgery.
Jacquie testified at trial that her only income came from child
support and her temporary maintenance payments. Jacquie’s monthly
expenses were $2,925.86, which included a mortgage payment of
$610 a month, and an anticipated payment of $407 a month for
insurance under COBRA that she expected to pay once the
dissolution was final. Jacquie testified that she had applied for a
significant number of jobs, but could not find one. Jacquie said that
she had health problems, including bursitis in the knees and hips, high
blood pressure, osteoporosis, histoplasmosis, anxiety, depression,
mitral valve prolapse, psoriasis, asthma, and emphysema. She also
had undergone an operation on her feet in April 2004.
The trial court issued a memorandum opinion on February 1,
2005. Child support was set in an agreed amount, to terminate on
May 31, 2005, when Matthew, who was 18 years old, graduated from
high school. Maintenance in the amount of $1,000 a month was
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ordered, effective January 1, 2005, until June 1, 2005, at which time
it would increase to $1,500 a month. The trial court found that this
was an appropriate case for permanent maintenance, subject to review
upon the request of either party. The trial court stated that although it
did not find Jacquie to be unemployable, it did find that her age,
education, and health were factors that might limit the employment
options available to her. The trial court also awarded John 45 sick
days without those days being subject to division as marital property,
but held that the remainder of the sick days and vacation days were
marital property and that their value was part of the marital estate.
The vacation days were valued at $12,225.40, and the 69 remaining
sick days were valued at $9,585.48, for a total of $21,819.88. This
amount was incorporated into the marital property distribution and
was given to John in the judgment of dissolution. The judgment for
dissolution was entered on March 29, 2005.
On April 27, 2005, John filed a motion for reconsideration
alleging that Jacquie had obtained employment at Horace Mann
Insurance Company between the date that the trial court issued its
memorandum opinion and the date judgment was entered. John asked
the trial court to reconsider its decision concerning maintenance and
to lower his maintenance payments. John also argued that there was
no precedent in Illinois supporting a finding that accumulated sick
and vacation days were marital property subject to distribution in a
dissolution of marriage proceeding. In the alternative, John argued
that the trial court should have considered the income tax implication
of the award of vacation and sick days. In addition, John argued that
the trial court overvalued the number of days available to him because
there were limits on the number of days he could be compensated for
at the time of retirement, and because some days were accumulated
prior to the marriage.
The trial court issued its supplemental memorandum opinion on
June 28, 2005. The trial court noted that the authorities were divided
on the issue of vacation and sick days. The trial court held that:
“There is no doubt in the Court’s mind that the sick and
vacation days accumulated during the marriage are marital
property. One of the problems with the reserved jurisdiction
approach is that John could use all of the vacation days before
retirement and owe Jacquie nothing. The sick days would be
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subject to more scrutiny but he could use them all up in small
increments without much trouble. If John were to get sick he
would most likely spend some of the money from that portion
of the marital estate awarded him. The Court does not place
much credence on the future necessary use of sick days
because the Court is dealing with the present in its division of
assets. They are definitely an asset at present although subject
to some contingencies.”
The trial court then held that the sick days and vacation days should
be valued using John’s present pay scale, and that the value should be
reduced by the amount of taxes applicable to those days.
A hearing on the issue of maintenance was held on February 27,
2006. Jacquie testified that she started a job at Horace Mann on
February 14, 2005. Jacquie left that job on September 23, 2005, to
take a job at Southern Illinois University School of Medicine.
Jacquie’s starting salary at Southern Illinois University was $16,608
per year. At this job, Jacquie received vacation benefits, earned
“comp” time, and became a part of the State University Retirement
System. In addition, Jacquie had life insurance for herself and
Matthew, and paid $116 a month for medical and dental insurance for
herself and Matthew. The trial court denied John’s motion for
reconsideration as it pertained to maintenance, noting that Jacquie
obtained her employment after the proofs had closed at trial.
However, the trial court allowed the parties to proceed as though
John’s motion was a motion to modify maintenance.
On February 27, 2006, the trial court entered an order finding that
Jacquie’s employment constituted a substantial change in
circumstances, and allowed John’s motion for modification. The trial
court reduced the amount of permanent maintenance to $1,250 per
month, effective March 1, 2006.
On August 21, 2006, the trial court entered an order stating that
the marital portion of the sick days was $9,724.75, and the marital
portion of the vacation days was $12,225.40, for a total of
$21,950.15. Taking into account the appropriate state and federal tax
rates, the net value of the sick days was $7,001.82, and the net value
of the vacation days was $8,802.29, for a total net value of
$15,804.11. Jacquie was awarded marital property totaling
$68,959.38, and John was awarded marital property totaling
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$65,124.85. John’s portion of the marital estate included an award of
$15,804.11 for his vacation and sick days.
John filed an appeal, arguing that the trial court erred in failing to
make the reduction in maintenance retroactive to the date of the
judgment, and erred in failing to reduce the maintenance award
further. John also argued that the trial court erred in considering
John’s accumulated sick and vacation days to be marital property.
The appellate court affirmed the trial court’s ruling with regard to
maintenance. 386 Ill. App. 3d 718. That issue is not before this court.
However, the appellate court, with one justice specially concurring in
part and dissenting in part, reversed the trial court’s finding that the
accumulated vacation and sick days were marital property. The
appellate court held that the trial court erred in treating those days as
marital property, assigning a value to them, and including them in the
marital estate. 386 Ill. App. 3d at 731. The appellate court therefore
reversed the trial court’s property distribution and remanded so that
the trial court could, without the need for further evidence, make an
appropriate adjustment in the distribution of property. 386 Ill. App.
3d at 734.
Justice Myerscough dissented in part, stating that although she
concurred with the majority with regard to the maintenance issue, she
believed that the trial court’s finding that the sick and vacation days
were marital property was not erroneous, and that the trial court’s
distribution of that marital property was not against the manifest
weight of the evidence. 386 Ill. App. 3d at 734-35 (Myerscough, J.,
specially concurring in part and dissenting in part). We subsequently
allowed Jacquie’s petition for leave to appeal. 210 Ill. 2d R. 315(a).
ANALYSIS
The issue of whether accumulated vacation and sick days are
marital or nonmarital property is an issue of first impression in this
court. The parties agree that this issue presents an issue of law, as the
facts are not in dispute, and the credibility of witnesses is not an
issue. Therefore, our review is de novo. In re Marriage of Crook, 211
Ill. 2d 437, 442 (2004).
On appeal, Jacquie argues that the appellate court erred in finding
that John’s accrued vacation and sick days were not marital property
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subject to distribution. Jacquie claims that those days are property
under both traditional definitions of property and under the Illinois
Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/101
et seq. (West 2004)). Jacquie also argues that the appellate court’s
decision reverses 20 years of practice in this state of treating accrued
vacation and sick days as marital property.
We first address Jacquie’s claim that the appellate court’s
decision reverses 20 years of practice of treating accrued vacation and
sick days as marital property. In support of this claim, Jacquie points
to the appellate court’s decision in In re Marriage of Zummo, 167 Ill.
App. 3d 566 (1988).
In Zummo, the appellate court set forth the details of the trial
court’s judgment of dissolution of marriage. In the judgment of
dissolution, the husband was given “all the value of [his] sick days.”
Zummo, 167 Ill. App. 3d at 571. The husband had accrued 90 sick
days, and would be compensated for each day at a rate of five-
twelfths of his hourly rate if he retired or left his employment.
Zummo, 167 Ill. App. 3d at 571. Although the appellate court in
Zummo noted that the husband had been awarded the value of his sick
days in the judgment of dissolution, the issue of whether those days
were marital property was not raised or considered on appeal.
Jacquie acknowledges that Zummo did not address the issue of
whether the husband’s sick days were marital property, but claims
that the reference to the award of sick days in the opinion has led to
a 20-year practice in the courts of treating those days as marital
property. As John observes, however, Jacquie offers no support for
this claim. The parties agree that the instant case is the first case in
Illinois to address this issue. Accordingly, there is no merit to
Jacquie’s claim that the appellate court’s decision in this case
reverses a 20-year practice in the courts of treating accrued vacation
and sick days as marital property subject to distribution.
We next consider whether the appellate court properly found that
the accrued sick and vacation days in this case were not property, but
rather were a substitute for wages when, and if, the employee is
unable to perform his duties. As indicated, Jacquie argues that those
days are property under both the dictionary definition of property and
under the Act.
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Black’s Law Dictionary defines “property” as:
“1. The right to possess, use, and enjoy a determinate
thing (either a tract of land or a chattel); the right of
ownership ***. 2. Any external thing over which the rights of
possession, use, and enjoyment are exercised ***.” Black’s
Law Dictionary 1335-36 (9th ed. 2009).
Section 503(a) of the Act defines “marital property” as “all property
acquired by either spouse subsequent to the marriage,” except for
certain enumerated exceptions. 750 ILCS 5/503(a) (West 2004).
Jacquie argues that the accrued vacation and sick days in this case
were property because John had the right to use those days, and the
days had value, as evinced by the fact that the trial court was able to
put a value on those days. Further, those days are marital property
because they were acquired by John during the marriage. Moreover,
those days do not fit within any of the enumerated exceptions to
marital property set forth in section 503(a). Jacquie therefore
contends that the appellate court improperly held that the accrued
days were not property but were nonmarital alternative wages.
As the appellate court noted, other jurisdictions are split on the
issue of whether vacation and sick days are marital property. Those
courts have held that: (1) accrued vacation and sick days are marital
property subject to division at the time of dissolution; (2) accrued
vacation and sick days are marital property but are subject to
distribution when received, not at the time of dissolution; and (3)
accrued vacation and sick days are not marital property.
The first published decision to address the issue found that a
husband’s unused personal leave was a marital asset for purposes of
the trial court’s division of property in a dissolution action. Schober
v. Schober, 692 P.2d 267 (Alaska 1984). The Alaska Supreme Court
found that the husband’s right to the unused leave was similar to
pension or retirement benefits, and was another form of deferred
compensation. Schober, 692 P.2d at 268. The Schober court held that
the husband’s “interest in his unused leave was ‘not an expectancy
but a chose in action, a form of property.’ “ Schober, 692 P.2d at 268,
quoting In re Marriage of Brown, 15 Cal. 3d 838, 845, 544 P.2d 561,
565, 126 Cal. Rptr. 633, 637 (1976). The Schober court therefore held
that:
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“As Mr. Schober’s leave was earned, there was a decision
to use it or leave it to be used for the mutual benefit of the
parties later in their marriage. We think it clear that the
unused leave was, therefore, a marital asset, which should
have been considered by the trial court in its division of the
Schober’s property.” Schober, 692 P.2d at 268.
This position was adopted by other courts following the Schober
decision. For example, the Michigan Court of Appeals held that
banked leave days, for which the husband could be compensated upon
retirement, were a marital asset. Lesko v. Lesko, 184 Mich. App. 395,
457 N.W.2d 695 (1990), overruled on other grounds by Booth v.
Booth, 194 Mich. App. 284, 486 N.W.2d 116 (1992). The Lesko court
reasoned that:
“On the one hand, plaintiff may become ill and not retain his
sick days until retirement. On the other hand, he has
accumulated these sick days and vacation days during the
marriage, he has a right to the use or pay for these days and
they are capable of being assigned a value. In balancing all of
the factors, we find that such banked leave days are a divisible
marital asset. However, the tax consequences should be taken
into consideration in making the determination of value.”
Lesko, 184 Mich. App. at 402, 457 N.W.2d at 699.
In addition, the Washington Court of Appeals and the Florida
District Court of Appeals have held that accumulated vacation and/or
sick pay is marital property. See In re Marriage of Williams, 84
Wash. App. 263, 927 P.2d 679 (1996) (trial court did not err in
including husband’s vested vacation and sick leave pay in the
community’s assets, finding vacation pay is a form of deferred
earning and sick leave is a vested and matured benefit); King v. King,
719 So. 2d 920 (Fla. App. 1998) (trial court erred in failing to award
wife any portion of husband’s accumulated sick leave in final
dissolution judgment); see also In re Marriage of Nuss, 65 Wash.
App. 334, 828 P.2d 627 (1992) (wife’s Financial Security Plan, which
allowed her to bank unused sick leave and receive the dollar value of
any unused benefits upon death or retirement, was properly
characterized as an asset for distribution in dissolution of marriage
action).
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Similarly, where a party received payment for accumulated sick
and/or vacation days following separation but prior to dissolution,
courts have held that the payment for those days is marital property.
See Brotman v. Brotman, 528 So. 2d 550 (Fla. App. 1988) (where
husband had received severance pay and “earned vacation” pay upon
termination of employment, after separation but prior to dissolution,
court held that severance pay and “earned vacation” pay were marital
assets and should have been considered in distribution of marital
property); Ryan v. Ryan, 261 N.J. Super. 689, 619 A.2d 692 (1992)
(court held that husband’s receipt of payment for unused accumulated
vacation days at time of separation was marital property because large
percentage of those days were accrued during the marriage and were
the result of the marital enterprise).
As noted, other jurisdictions have found that accumulated
vacation and sick pay is marital property, but have held that the asset
is subject to distribution at the time the pay is received, not at the time
of dissolution. Thus, in Grund v. Grund, 151 Misc. 2d 852, 573
N.Y.S.2d 840 (1991), the Supreme Court, Suffolk County, New
York, held that the husband’s “SCATT” benefits, which included
unused sick time and unused vacation time, were a marital asset.
However, the court declined to award the wife a lump-sum
distributive award relating to those benefits, noting that the husband
could suffer a catastrophic illness and use up all accumulated sick and
vacation time, or the husband’s employer could eliminate the SCATT
benefits prior to the husband’s retirement. Grund, 151 Misc. 2d at
857, 573 N.Y.S.2d at 844. Therefore, the court awarded the wife one-
fourth of the husband’s unused sick, vacation and personal leave pay
acquired during the parties’ marriage, up until the commencement of
the dissolution action, but made the award contingent, so that the wife
would receive nothing if no benefits remained at the time the husband
retired. Grund, 151 Misc. 2d at 857, 573 N.Y.S.2d at 844.
Similarly, in Arnold v. Arnold, 2003–NMCA–114, 134 N.M. 381,
77 P.3d 285, the New Mexico court of appeals held that the wife in
a dissolution of marriage action was entitled to $13,304.40,
representing half the value of her husband’s accumulated vacation
and sick leave as of the date of the final hearing on the dissolution.
The Arnold court held that the husband’s contractual benefit of
accumulated vacation and sick leave that was earned during marriage
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required the same treatment as any other retirement, pension or
unvested stock options earned during marriage “as a result of the
expenditure of community labor.” Arnold, 2003–NMCA–114, ¶17,
134 N.M. 381, 77 P.3d 285. The court reasoned that:
“The essence of leave is that it is a benefit of employment
and, whether considered a benefit in addition to salary, or
somehow an aspect of salary, it has independent value. If
taken during marriage, leave time devoted to vacation or to
recovery from illness benefits the community. If not taken,
leave that accumulates will be available to benefit the
community in the future. If the community ends, the
accumulated leave attaches to the employee. Unless some
equitable distribution is made or the asset is divided upon
dissolution of marriage, the employee takes the full
community asset and benefit. We see no policy reason or
persuasive rationale why the employee, Husband in the case
before us, should end up with the full value of the community
asset or why the leave assets should not be divided.” Arnold,
2003–NMCA–114, ¶16, 134 N.M. 381, 77 P.3d 285.
However, the Arnold court held that payment of the wife’s half of the
accrued vacation and sick leave would be delayed until the husband
terminated his employment or reached age 62, whichever occurred
first. Arnold, 2003–NMCA–114, ¶2, 134 N.M. 381, 77 P.3d 285.
Arnold, however, did not appear to make payment for the
accumulated vacation and sick days contingent on whether those days
remained at the time of distribution.
Jacquie argues that the cases finding that accumulated vacation
and sick days are marital property subject to distribution at the time
of dissolution are the better reasoned decisions. She contends that the
problem with the reserved jurisdiction approach taken by the Grund
court is that a party has an incentive to use all his or her sick and
vacation days prior to termination or retirement so that there are no
days left for distribution at termination or retirement. Jacquie claims
that accumulated vacation and sick days are similar to retirement and
deferred compensation. Jacquie notes that retirement and deferred
compensation are assets accrued during employment, but not usable
until certain events occur in the future. Similarly, accumulated
vacation days and sick days are accrued during employment, but are
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not usable until certain events occur in the future. Consequently,
those days are marital property subject to distribution under the Act.
In response, John notes that the cases relied upon by Jacquie were
considered and rejected by the appellate court. John argues that the
appellate court correctly found that decisions holding that
accumulated vacation and sick days are not marital property are more
persuasive.
The first published decision to find that accumulated vacation
days were not marital property is Thomasian v. Thomasian, 79 Md.
App. 188, 556 A.2d 675 (1989). In that case, the husband had accrued
more than 180 hours of vacation time and more than 180 hours of
holiday time, which had a total value of more than $12,000. The
Thomasian court noted that nonvested, noncontributory pension
plans, stock option plans, and workers’ compensation awards
compensating a party for loss of any earning capacity during
marriage, had all been found to be marital property. Thomasian, 79
Md. App. at 197, 556 A.2d at 679. The Thomasian court
acknowledged that the Schober court had addressed this precise issue,
and had held that unused leave was a form of deferred compensation,
like a pension or retirement benefit, and therefore was a form of
property. Thomasian, 79 Md. App. at 199, 556 A.2d at 680. The
Thomasian court recognized the similarities between accumulated
vacation and holiday pay and pension interests, stock option plans and
workers’ compensation awards. However, the court was not
persuaded that the same rationale applied to vacation and holiday pay
and was not persuaded by the analysis of the Schober court.
Thomasian, 79 Md. App. at 199-200, 556 A.2d at 680. The
Thomasian court held:
“Nor are we satisfied that simply because the definition of
property in our Act is expansive enough to encompass
accrued holiday and vacation entitlement, it necessarily does.
We just are not persuaded that accrued holiday and vacation
entitlement is the same as a pension or retirement benefits, a
form of deferred compensation; since it replaces wages on
days when the worker does not work, it is really only an
alternative form of wages. [Citation.] It need not be liquidated
by the payment of cash; it may be, and often is, dissipated
when the person entitled to do so, takes vacation or holiday
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time. Thus, it is far from tangible as, and much more difficult
to value, not to mention more personal than, a pension or
retirement benefits. Accordingly, we hold that accrued
holiday and vacation entitlement is not marital property. It
follows that the court did not err in refusing to consider it in
determining whether to grant a monetary award.” Thomasian,
79 Md. App. at 200, 556 A.2d at 680-81.
The court of appeals of Kentucky adopted the approach of the
Thomasian court in finding that a wife’s accrued vacation time was
not a marital asset. Bratcher v. Bratcher, 26 S.W.3d 797 (Ky. App.
2000). The wife had accumulated approximately $2,800 in vacation
leave. Bratcher, 26 S.W.3d at 798-99. If the wife terminated her
employment, she would be paid for any unused vacation time.
Bratcher, 26 S.W.3d at 799. The Bratcher court acknowledged
decisions expressing a view contrary to Thomasian, but found the
decision in Thomasian to be more persuasive. Bratcher, 26 S.W.3d
at 800.
The court of appeals of Indiana also held that a husband’s
accumulated sick days were not a martial asset for purposes of
property distribution in a dissolution of marriage case. Akers v. Akers,
729 N.E.2d 1029 (Ind. App. 2000). In Akers, the husband had
accumulated more than 200 unused sick days at the time of
dissolution. Akers, 729 N.E.2d at 1032. The husband’s teaching
contract contained a retirement benefit clause providing for payment
for a maximum of 187 of those days upon retirement. Akers, 729
N.E.2d at 1032. The Akers court noted, however, that it could
“discern no evidence, nor does Wife point us to any, that Husband
had a present right to be paid for his sick days other than by becoming
ill.” (Emphasis in original.) Akers, 729 N.E.2d at 1032. The court
observed that:
“Husband testified that the terms of his teaching contract,
including those governing retirement benefits, were subject to
renegotiation and that he could not foresee what contract
provisions would be in effect at the time of his retirement.
Indeed, it was mere speculation for the trial court to assume
that Husband would not suffer any illness and would retain at
least 187 unused sick days at their current value until
retirement. While he certainly accumulated these sick days
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during his marriage to Wife, the accumulation of sick days
had only a future value that was indeterminate and speculative
at best.” Akers, 729 N.E.2d at 1032.
Akers concluded that the “Husband’s accumulation of unused sick
days had no present value, was ‘contingent and speculative in nature,’
and thus, not capable of division as a marital asset.” Akers, 729
N.E.2d at 1033, quoting Mullins v. Matlock, 638 N.E.2d 854, 856
(Ind. App. 1994). The court noted, however, that it might have
reached a different result if the husband possessed a vested interest in
the unused sick days at the time of the dissolution, such as a present
right to convert those days to cash. Akers, 729 N.E.2d at 1033 n.5.
After reviewing the preceding authorities and the arguments of the
parties, the appellate court in this case held that John’s accumulated
vacation and sick days were not property, and thus were not marital
property, but rather were a substitute for wages when, and if, the
employee is unable to perform his duties. 386 Ill. App. 3d at 730. The
appellate court explained:
“The days in this case were a benefit to the intact marital
estate because they provided a safety net. They continue to be
a benefit and a safeguard to both Jacquie and John. It is true
they will have a cash value if they remain unused when the
employee retires. It may be possible to calculate the present
cash value for the days assuming they remain unused when
John retires. But the question is not whether it would be
possible to calculate their value–the question is whether such
accumulated days are property and thus marital property
under the statutory definition.
Sick days and vacation days are alternative wages meant
to be paid when the wage earner is unable to work or decides
to take a vacation. In the case of a married couple, the wage
earner who is ill or who vacations still contributes wages to
the marital estate via this alternative. This is a job benefit with
value because it helps protect the marital estate. When a
marriage is dissolved, a wage earner who is ill or vacations is
still able to pay child support, maintenance, educational
expenses for children, and remaining marital debt because he
or she has employment that provides sick and vacation days.
John cannot assign or transfer his sick or vacation days to
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another person. He cannot realize any cash benefit from them
today other than by resigning or retiring from his
employment. Accumulated sick-leave and vacation days are
not marital property.” 386 Ill. App. 3d at 730-31.
We agree with the appellate court’s analysis in this case and find
the reasoning of the Thomasian and Akers courts persuasive. The
decisions to the contrary found it significant that a trial court was able
to assign a value to a party’s accrued vacation and sick days. We do
not agree that this factor compels a finding that John’s accrued
vacation and sick days are marital property. Although the trial court
was able to put a value on those days in its judgment for dissolution,
we find that the value assigned to those days was speculative at best.
We also find that the reserved jurisdiction approach used by the
Grund court could be unnecessarily complicated and difficult to
administer, particularly if the parties are many years from retirement.
As the appellate court noted, John had no present right to be paid
for his sick and vacation days absent retirement or termination of his
employment. Further, while John had accrued 115 sick days and 42
vacation days at the time of trial, those days may or may not remain
at the time John retires or terminates his employment. If John uses
any of the sick or vacation days awarded to him prior to retirement or
termination of his employment, John will never collect payment for
those days. In that case, the award of the value of those days to John
in the property distribution would be illusory. As John has argued, if
this court reinstates the trial court’s finding that the accumulated
vacation and sick days are marital property, John’s share of the
marital estate will be diminished every time he uses a sick day or
vacation day before his retirement or termination, while Jacquie’s
cash payout will remain the same. Consequently, we find that
although John accumulated his vacation and sick days during his
marriage to Jacquie, the accumulation of those days had only a future
value that was indeterminate and speculative. For that reason, we find
that the accrued vacation and sick days differ from pension plans,
stock options and deferred compensation.
At oral argument, Jacquie analogized the facts of this case to a
situation where a party is self-employed, and during the marriage puts
money into an account to provide funds for any work days missed due
to sickness or vacation. Jacquie argues that under her scenario, upon
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dissolution, the money put aside for vacation and sick days would
qualify as marital property. Jacquie states that there should be no
difference between money put aside by a self-employed party in
anticipation of a vacation or sickness, and the value of vacation and
sick days accrued by an employee pursuant to his employment.
We disagree with Jacquie that there is no difference between
money put aside by a party in anticipation of a vacation or sickness
and accrued vacation and sick days. Under Jacquie’s scenario, a party
is simply taking money that is marital property and putting it into a
specific account. The fact that the parties designate that account as
providing funds for vacations or sick days does not prevent the parties
from using that money for other things. That money is tangible and
certain, and would be subject to division at dissolution without regard
to the parties’ characterization of the account holding the funds.
In contrast, the value of accrued vacation and sick days is
speculative and uncertain until a party actually collects compensation
for those days at retirement or termination of his employment. A party
cannot receive cash for those days prior to retirement or termination.
In fact, it is possible that in some cases, an employer might change its
policy concerning the right to receive compensation for accrued sick
days, limiting or eliminating that right entirely. Similarly, in cases
where provided for in a collective-bargaining agreement, an employer
might change its policy concerning the right to receive compensation
for accrued vacation days. See 820 ILCS 115/5 (West 2008).
Accordingly, we find that accrued vacation and sick days are not
marital property subject to distribution in a dissolution of marriage
action.
In so holding, we note that the facts of this case differ from the
facts in Brotman v. Brotman, 528 So. 2d 550 (Fla. 1988), and Ryan
v. Ryan, 261 N.J. Super. 689, 619 A.2d 692 (1992). In those cases,
the husbands received payment for accrued vacation days following
separation but prior to dissolution of marriage. We agree that when
a party has actually received payment for vacation and/or sick days
accrued during marriage prior to a judgment for dissolution, the
payment for those days is marital property subject to distribution in
the marital estate. Under that scenario, the vacation and/or sick days
have been converted to cash, the value of which is definite and
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certain. In this case, however, the accrued days have not been
converted to cash, and the value of those days remains uncertain.
Finally, we address the appellate court’s order remanding this
cause to the trial court “so the trial court, without the need for further
evidence, can make an appropriate adjustment in the distribution of
property.” 386 Ill. App. 3d at 734. Jacquie argues that this order could
be read to preclude adjustment of the property division or
maintenance in light of the award of all the accrued vacation and sick
days to John as nonmarital property. Jacquie contends that section
503(d) of the Act requires the trial court to divide marital property “in
just proportions considering all relevant factors” including “the value
of the property assigned to each spouse.” 750 ILCS 5/503(d)(3) (West
2004). Jacquie states that the appellate court’s order does not allow
the trial court to adjust the property division or maintenance in light
of the new distribution upon remand, in violation of section 503(d) of
the Act.
We disagree with Jacquie’s reading of the appellate court’s
directions upon remand. The appellate court directed the trial court to
make an appropriate adjustment to the property distribution in light
of its decision reversing the distribution of property that included the
accrued vacation and sick days as marital property. These directions
do not prevent the trial court from making an adjustment to the
distribution of property pursuant to section 503(d) of the Act. The
appellate court’s order simply states that the trial court does not need
further evidence to make that adjustment. We agree that no further
evidence is needed to in order to adjust the property distribution. We
therefore affirm the appellate court’s directions to the trial court on
remand.
CONCLUSION
For all of the foregoing reasons, we affirm the judgment of the
appellate court.
Appellate court judgment affirmed.
JUSTICE GARMAN, dissenting:
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When presented with a dispute between divorcing spouses over
an item of property, the court must answer four questions. First, is the
item in dispute actually property? Second, if it is property, is it
marital property? Third, if it is marital property, what is its value?
And, finally, how should the property be distributed?
In the present case, the circuit court found that the husband’s
accrued sick and vacation days are property and that, because the days
were earned during the marriage, they are marital property subject to
division upon dissolution. The circuit court valued the days at the
husband’s current salary, after taxes, and distributed the value of this
asset disproportionately to the husband, apparently in recognition of
the husband’s recent health problems.
The appellate court held that accrued sick and vacation days are
not property at all and, thus, found no need to categorize the value of
the accrued days as marital or nonmarital property, to assign a value
to them, or to include them in the division of marital property. 386 Ill.
App. 3d at 730.
Although the majority agrees with the appellate court’s analysis
in general, the majority opinion does not expressly state whether such
accrued days are or are not property. Rather, the majority concludes
that, whatever these days are, their value is not divisible upon
dissolution. The majority is concerned that the value assigned to such
days is “speculative at best.” The majority also concludes that if these
days were to be divided as an asset of the marital estate and if the
employee spouse were to use any of his vacation or sick time in the
future, he would “never collect payment for those days.” Slip op. at
14.
In my opinion, accrued sick and vacation days can be property. In
the present case, the husband’s accrued days are property and,
because the days were earned during the marriage, they are marital
property. I also believe that the circuit court’s method of valuation
was reasonable and the circuit court’s division was not an abuse of
discretion. I, therefore, dissent.
Property or Nonproperty
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The threshold question in this case is whether accrued sick and
vacation days are property. As the majority notes, this is a question of
law. Slip op. at 5.
I agree with Justice Myerscough, who pointed out in her separate
opinion that an employee’s sick days and vacation days “can, but may
not always, be marital property.” 386 Ill. App. 3d at 734
(Myerscough, J., concurring in part and dissenting in part). Whether
such accrued days are property depends on whether the employee
spouse has a vested right to receive payment for them.
The wife relies, in part, on the dictionary definition of “property.”
Slip op. at 7. Following the quoted dictionary definition, the law
dictionary offers the following quotation as an illustration:
“ ‘In its widest sense, property includes all a person’s legal
rights, of whatever description. A man’s property is all that is
his in law. *** In a second and narrower sense, property
includes not all a person’s rights, but only his proprietary as
opposed to his personal rights. *** [A] man’s land, chattels,
shares, and the debts due to him are his property ***.’ ”
(Emphasis in original.) Black’s Law Dictionary 1335-36 (9th
ed. 2009), quoting J. Salmond, Jurisprudence 423-24 (10th
ed. 1947).
In this second sense, sick or vacation days accrued by an
employee are his property because they are, in effect, a debt due to
him as part of the compensation he has earned for work he has
already performed.
The law dictionary defines “compensation” as “[r]emuneration
and other benefits received in return for services rendered; esp. salary
or wages.” Black’s Law Dictionary 322 (9th ed. 2009). By way of
example:
“ ‘Compensation consists of wages and benefits in return for
services. It is payment for work. *** [Compensation] includes
wages, stock option plans, profit-sharing, commissions,
bonuses, golden parachutes, vacation, sick pay, medical
benefits, disability, leaves of absence, and expense
reimbursement.’ ” (Emphasis in original.) Black’s Law
Dictionary 322 (9th ed. 2009), quoting K. Decker & H. Felix,
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Drafting and Revising Employment Contracts §3.17, at 68
(1991).
Further, “deferred compensation” is defined as “[p]ayment for
work performed, to be paid in the future or when some future event
occurs.” Black’s Law Dictionary 322 (9th ed. 2009).
The most common type of deferred compensation is a pension.
Other types of deferred compensation include commissions and
bonuses earned but not yet paid, accounts receivable, “comp time” in
lieu of overtime, and royalties to be paid in the future on work already
performed. Each of these is a form of property and, if earned during
a marriage, is marital property. See, e.g., In re Marriage of Schneider,
214 Ill. 2d 152 (2005) (accounts receivable should be included in
determining the value of a dental practice); In re Marriage of Peters,
326 Ill. App. 3d 364 (2001) (portion of husband’s potential stock
bonus earned during marriage was “marital property,” regardless of
its value, where the agreement with the employer was signed shortly
after the parties married, husband was working toward the bonus
during the marriage, and husband was halfway to the 10-year
requirement and was averaging well over what he needed to earn the
bonus); In re Marriage of Heinze, 257 Ill. App. 3d 782 (1994)
(royalties generated in future by sale of book written by wife during
the marriage are marital property subject to division); In re Marriage
of Tietz, 238 Ill. App. 3d 965 (1992) (lawyer’s accounts receivable
have already been earned and have known value; they are “future
income” only in the sense that they will be collected in the future); In
re Marriage of Feldman, 199 Ill. App. 3d 1002 (1990) (accounts
receivable of medical practice cannot be considered future income);
In re Marriage of Rubinstein, 145 Ill. App. 3d 31 (1986) (accounts
receivable in completed but unbilled services were asset of husband’s
medical practice).
Like these other forms of deferred compensation, the employee
spouse who has accrued sick and vacation days has already earned the
remuneration, but will not realize the benefit until he either uses the
time for a permissible purpose or is paid the value of the accrued days
upon termination of employment. As a result, this particular asset is
not as liquid as other assets such as money in the bank or the contents
of a stock portfolio, but this lack of liquidity does not mean that this
asset is not property.
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Under the Illinois Wage Payment and Collection Act (Wage Act)
(820 ILCS 115/1 et seq. (West 2008)), an employee’s right to
payment for accrued vacation time is vested (with certain exceptions
not applicable in the present case). That is, once the days are earned
by the employee, the employer is obligated to either grant the
employee vacation time with pay or pay the employee for the accrued
days upon termination of employment. 820 ILCS 115/5 (West 2008).
Thus, accrued vacation days are a form of property, in the same sense
that other forms of deferred compensation are an employee’s
property.
The Wage Act does not contain a similar provision protecting the
employee’s right to receive payment for accrued sick days. However,
depending on the facts of the particular case, accrued sick days may
also constitute the employee’s property. If the employee is entitled to
payment for accrued sick days upon termination of employment, the
sick days are, indeed, a form of deferred compensation. If, however,
the employer’s sick day policy is of the “use it or lose it”variety, it is
not a form of property because the employee has no vested right to
payment if he does not find it necessary to use the sick days for their
intended purpose.
The majority’s concerns about the difficulty in valuing sick and
vacation days are not relevant at this stage of the analysis. Many
forms of property are difficult to value, but this difficulty does not
render them nonproperty. For example, courts are frequently called
upon to determine the present value of a future stream of income,
crops in the field, or some form of intangible property.
In the present case, the trial court correctly determined that the
husband’s accrued vacation and sick days are property because they
are a form of deferred compensation that he has a vested right to
receive either during his remaining years of employment or upon the
termination of the employment relationship.
Marital or Nonmarital Property
If the answer to the first question is that the item in dispute is
property, the second question is presented–whether the property is
marital property. This is a question of fact, subject to review under
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the manifest weight of the evidence standard. In re Marriage of
Smith, 265 Ill. App. 3d 249, 252-53 (1994).
Section 503(a) of the Illinois Marriage and Dissolution of
Marriage Act (Act) defines “marital property” as “all property
acquired by either spouse subsequent to the marriage,” with certain
exceptions not applicable in the present case. 750 ILCS 5/503(a)
(West 2004).
The parties in the present case do not dispute that the husband
accumulated 115 sick days and 42 vacation days during the marriage.
Thus, the circuit court’s finding that the husband’s accrued sick and
vacation days are marital property is not against the manifest weight
of the evidence.
Valuation
Once this determination is made, the next step for the circuit court
is to establish the value of the accrued days. In re Marriage of
Schneider, 214 Ill. 2d 152 (2005) (circuit court must establish the
value of the parties’ assets in order to be able to divide the marital
property in just proportions).
The circuit court in the present case assigned value based on the
husband’s present salary, after taxes. This is an entirely rational
approach to valuation. If the husband were to retire or leave his job
tomorrow, this is the value the days would have. Although his salary
may rise in the future, making the days more valuable when he is
eventually paid, the wife has not argued for a greater value.
Further, in other contexts, the circuit court is not concerned with
the possibility that the value of an item of marital property may
increase or decrease after it is awarded to one of the spouses. If one
spouse is awarded a piece of artwork and the other is awarded a boat
of equal value, it is immaterial that the piece of art may appreciate in
value and the boat will depreciate. It is the value of the asset at the
time of distribution that the circuit court must consider when dividing
marital property. In re Marriage of Weiler, 258 Ill. App. 3d 454, 460-
61 (1994).
The majority concludes that the value of the accrued days is
speculative because it is “it is possible that in some cases, an
employer might change its policy concerning the right to receive
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compensation for accrued vacation and sick days.” Slip op. at 15.
This statement is incorrect as a matter of law, at least with respect to
vacation days.
An Illinois employer is certainly free to change its policy
regarding sick and vacation days going forward–awarding fewer days,
capping the number of days that can be accrued, even eliminating sick
or vacation days altogether. Most employers, however, are prohibited
by law from cancelling or refusing to pay the employee for vacation
days already earned.
Under section 5 of the Wage Act:
“Unless otherwise provided in a collective bargaining
agreement, whenever a contract of employment or
employment policy provides for paid vacations, and an
employee resigns or is terminated without having taken all
vacation time earned in accordance with such contract of
employment or employment policy, the monetary equivalent
of all earned vacation shall be paid to him or her as part of his
or her final compensation at his or her final rate of pay and no
employment contract or employment policy shall provide for
forfeiture of earned vacation time upon separation.”
(Emphasis added.) 820 ILCS 115/5 (West 2008).
It is notable that the last clause was amended in 1984. Until that
time, employers were permitted to have employment contracts or
policies that provided for forfeiture of earned vacation time upon
separation from employment. Thus, it violates the state and the public
policy of the State of Illinois as expressed by the statute to treat
earned vacation time as anything other than a property right of the
employee. See, e.g., Prettyman v. Commonwealth Edison Co., 273 Ill.
App. 3d 1090 (1995) (employer violates Wage Act by adopting policy
providing that an employee loses unused vacation time upon
separation). Thus, to the extent that the majority’s position relies on
out-of-state cases utilizing this rationale to avoid distributing this
property, it is in error.
Valuation of sick days presents a slightly more difficult question
because the employer is not prohibited by law from changing its sick
day policy in a manner that results in the forfeiture of accrued sick
days. However, in the absence of evidence that this was likely to
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occur in this particular case, the circuit court properly valued the
accrued sick days at the employee spouse’s present salary, after taxes.
Thus, the circuit court’s valuation of the sick and vacation days
was not against the manifest weight of the evidence. In re Marriage
of Hubbs, 363 Ill. App. 3d 696, 699-700 (2006) (circuit court’s
valuation of marital assets is reviewed under manifest weight of the
evidence standard, while division of property between spouses is
reviewed for abuse of discretion).
Distribution of Property Upon Dissolution
Section 503(d) of the Act requires the circuit court to divide the
couple’s marital property between them in “just proportions
considering all relevant factors.” 750 ILCS 5/503(d) (West 2004).
Ignoring the existence of a form of deferred compensation
operates to the detriment of the nonemployee spouse and is
inequitable. For example, a wife may work for an employer who
provides a generous retirement plan, but who gives only 10 vacation
days per year that she is not allowed to carry over to the next year.
Her husband, in contrast, may earn five weeks of paid vacation per
year, which he is allowed to accumulate to a total of 200 days, but his
employer makes no contribution to his pension. Upon their divorce,
her pension will be valued and included in the division of marital
property. Under the majority’s rule, the husband in this example
would reap the entire benefit of his accrued vacation days, even
though they were earned during the marriage. Equity requires that she
share in this form of deferred compensation, just has he will share in
her pension.
Once it is determined that sick and vacation days are marital
property, they must be included in the division of marital property.
The nonemployee spouse cannot be awarded any of the accrued days,
as such, because the employee spouse is the only person entitled to
utilize them. Thus, the nonemployee spouse must be awarded some
other item of marital property to offset the award of the accrued days
to the employee spouse.
Therefore, if the circuit court determines that a just division of
marital property is a 50/50 split, the employee spouse should be
awarded all accrued days and the nonemployee spouse should be
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awarded some other asset of approximately equal value. If the circuit
court determines that the just proportion is other than 50/50, the
nonemployee spouse should be awarded other assets of somewhat
greater or lesser value, as necessary to achieve the just division.
In the present case, the circuit court exercised its discretion to
award the husband a greater share of this particular asset (45 sick days
“off the top,” plus half of the value of the remaining sick and vacation
days), in consideration of his recent health problems. In my opinion,
this is not an abuse of discretion.
However, the majority is also concerned that if the accrued days
are included in the division of marital property and if the husband
“uses any of the sick or vacation days awarded to him prior to
retirement or termination of his employment, [he] will never collect
payment for those days.” Slip op. at 14.
This concern is misplaced. In the future, the husband’s share of
the marital estate will not be “diminished every time he uses a sick
day or vacation day.” Slip op. at 14. Rather, when he is paid for
taking a sick day or a vacation day or when he receives a lump-sum
payment upon termination of his employment, he will be paid in full
by his employer, thereby getting the full benefit of the marital
property awarded to him, just as if he were taking money out of the
bank. Indeed, if his salary has risen in the interim, he will receive
more than the amount the wife received for “her share” of these days
in the division of property.
Finally, rather than asking whether the right to receive the days or
payment of the their value is vested in the employee spouse at the
time of dissolution, the majority would divide the days as a marital
asset only if the payment is actually received by the employee spouse
prior to the entry of judgment. Slip op. at 15. Of course, if the
employee spouse has actually received payment for previously
accrued sick and vacation days, there are no longer any sick or
vacation days to talk about; there is just cash that was earned during
the marriage and is obviously marital property. Under the majority’s
approach, if the employee spouse receives payment for these days one
day before dissolution, it is marital property; if he receives payment
one day after dissolution, it is not. This is inconsistent and illogical
and not in keeping with the intent of the legislature as expressed in
section 503 of the Act.
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Conclusion
The majority has adopted a one-size-fits-all rule to resolve an
issue that deserves case-by-case consideration.
I conclude that under section 5 of the Wage Payment Act,
vacation days are property and, if earned by a spouse during the
marriage, are marital property subject to division upon divorce. Sick
days are property if the employee spouse is entitled to receive
payment for accrued days upon termination of employment. The
circuit court’s finding that the husband’s accrued sick and vacation
days are marital property was not against the manifest weight of the
evidence and its division of marital property was not an abuse of
discretion. I, therefore, would reverse the appellate court and affirm
the circuit court’s judgment.
JUSTICES KILBRIDE and BURKE join in this dissent.
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