In re: Marriage of David

Nos. 2--04--1191 & 2--05--0088 cons. filed: 10/2/06
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court
THOMAS E. DAVID, ) of Du Page County.
)
Petitioner and Counterrespondent- )
Appellant, )
)
and ) No. 00--D--2702
)
MARY A. DAVID, )
) Honorable
Respondent and Counterpetitioner- ) John W. Demling,
Appellee. ) Judge, Presiding.
_________________________________________________________________________________

JUSTICE O'MALLEY delivered the opinion of the court:

In these consolidated appeals, petitioner, Thomas E. David, seeks review of two amended

qualified domestic relations orders (QDROs) entered by the circuit court of Du Page County. The

QDROs awarded a share of Thomas's pension benefits to respondent, Mary A. David. We dismiss

case No. 2--04--1191 for lack of jurisdiction. In case No. 2--05--0088, we conclude that the

amended QDROs were properly entered and we therefore affirm the judgment of the trial court.

BACKGROUND

On February 18, 2003, the trial court entered a judgment dissolving the parties' marriage.

Among the marital property divided under the judgment were various retirement funds, including

Thomas's pensions with Commonwealth Edison Company (ComEd) and Exelon Corporation

(Exelon). According to the judgment, the pensions were in "payout status." Thomas was evidently a
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victim of downsizing and was not employed when the judgment was entered. Nonetheless, the trial

court assigned 60% of the retirement funds to Mary, reasoning that, although Thomas had lost his

job with ComEd/Exelon, he was likely to return to gainful employment, whereas Mary's earning

potential was limited. Of relevance here, the judgment specifically provided, "The pension received

by [Thomas] from Exelon (formerly Commonwealth Edison) shall be divided 60% to Mary *** and

40% to Thomas *** by a Qualified Domestic Relations Order." Prior to entry of the judgment, the

trial court had issued a memorandum opinion in which it indicated that Mary's share of the pensions

should amount to $17,816 per year.

On February 27, 2003, the trial court entered two separate QDROs: one pertaining to the

ComEd pension (ComEd QDRO) and the other pertaining to the Exelon pension (Exelon QDRO).

On September 18, 2003, however, Mary moved to modify the Exelon QDRO. She indicated that the

administrator of the Exelon Corporation Employee Savings Plan (Exelon Plan) had determined that

the Exelon QDRO did not conform to the applicable legal requirements. The trial court granted the

motion. As amended on September 23, 2003, the Exelon QDRO provided in pertinent part:

"[Mary] is awarded sixty percent (60%) of the vested portion of [Thomas's] account

balance under the [Exelon] Plan determined as of February 18, 2003, as well as gains and

losses subsequent to February 18, 2003 on that portion of [Thomas's] account balance

awarded to [Mary]. The segregation of funds shall be on a pro rata basis by money type and

by investment fund. The [Exelon] Plan shall pay [Mary's] benefit in the form of a lump sum

as soon as administratively practicable following the later of the date [sic] on which this

order is determined by the Plan Administrator to constitute a QDRO under the Internal

Revenue Code and ERISA (Employee Retirement Income Security Act)."

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Subsequently, on September 24, 2004, Mary also moved to amend the ComEd QDRO. She

claimed that the administrator of the Commonwealth Edison Company Service Annuity System had

determined that the original ComEd QDRO did not assign Mary any right to Thomas's early

retirement benefits, supplemental benefits, and cost-of-living adjustments. Mary sought amendment

of the QDRO to provide her with a share of these payments. Thomas objected to Mary's motion and

also filed a motion to "amend and superceed [sic]" the original and amended Exelon QDROs.

Thomas objected that neither QDRO conformed to the judgment of dissolution. With respect to the

amended Exelon QDRO, Thomas complained that Mary was improperly awarded gains and losses

accruing on her portion of the pension account after the dissolution of the marriage. Thomas insisted

that Mary was entitled to the value of her portion of the pension only as of the date of dissolution.

On October 25, 2004, the trial court granted Mary's motion to amend the ComEd QDRO. As

amended, the ComEd QDRO provided, in pertinent part:

"Benefits will be paid *** directly to [Mary], as follows:

a. [Mary] is hereby assigned the sum of Sixty Percent (60%) of [Thomas's] monthly

benefit in the Pension Plan, including supplemental benefit and early retirement

subsidy, said benefit to be determined on February 18, 2003. [Mary] is entitled to a

pro-rata share of any cost-of-living adjustments made to [Thomas's] pension

benefits."

On November 16, 2004, Thomas moved, pro se, to "conform" the amended ComEd QDRO to

the judgment of dissolution. He argued that the amended ComEd QDRO improperly expanded

Mary's rights under the original judgment. Prior to the disposition of this motion, Thomas's attorney

filed a notice of appeal on November 24, 2004. That same day, Thomas filed a motion to reconsider

the order amending the ComEd QDRO. On December 22, 2004, the trial court denied Thomas's

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motion to amend and supercede the original and amended Exelon QDROs and also denied his

motion to conform the amended ComEd QDRO to the judgment of dissolution. (Although the trial

court's written order did not specifically mention Thomas's November 24, 2004, motion to

reconsider, the trial court's remarks from the bench indicate that the court's ruling disposed of that

motion.) On January 21, 2005, Thomas filed a second notice of appeal. This court consolidated the

appeals.

ANALYSIS

Initially, a question of appellate jurisdiction arises. Thomas filed separate notices of appeal

on November 24, 2004, and January 21, 2005. When the former notice of appeal was filed,

Thomas's motion to "conform" the October 25, 2004, amended ComEd QDRO to the judgment of

dissolution was pending. Supreme Court Rule 303(a)(2) (155 Ill. 2d R. 303(a)(2)) provides, in

pertinent part: "When a timely post-judgment motion has been filed by any party, *** a notice of

appeal filed before the entry of the last pending post-judgment motion shall have no effect and shall

be withdrawn by the party who filed it." Here, Thomas's motion was in the nature of a postjudgment

motion, and it was not decided until December 22, 2004. As such, the November 24, 2004, notice of

appeal was of no effect and should have been withdrawn. Consequently, the appeal arising from that

notice of appeal (case No. 2--04--1191) must be dismissed for lack of jurisdiction. The second

notice of appeal was timely, however. Accordingly, this court has jurisdiction in case No. 2--05--

0088, and we will proceed to consider the merits of Thomas's appeal.

The Employee Retirement Income Security Act of 1974 (ERISA) generally restricts the

alienation of certain retirement benefits. See 29 U.S.C. '1056(d)(1) (2000). However, under an

important exception to this principle, in a divorce or dissolution of marriage proceeding, ERISA

permits a state court to enter a QDRO assigning one spouse an interest (as marital property) in the

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other spouse's retirement benefits. The QDRO must comply with specific requirements set forth in

ERISA. See 29 U.S.C. '1056(d)(3) (2000). Thomas argues that the trial court lacked jurisdiction to

enter the amended QDROs here, because they improperly deviated from the terms of the judgment

of dissolution pertaining to the distribution of his pensions. In support of the basic premise of his

argument--that the trial court lacked jurisdiction to enter a QDRO that did not conform to the

judgment of dissolution--Thomas cites In re Marriage of Allen, 343 Ill. App. 3d 410 (2003). In

Allen, the trial court entered a QDRO giving the wife a smaller fraction of the husband's pension

than provided in the original dissolution judgment. The QDRO corrected a mathematical error in the

original judgment, which had the effect of giving her credit for pension benefits that were not earned

during the marriage. Nonetheless, the wife complained that the QDRO did not conform to the

dissolution judgment, and she sought to amend the QDRO to distribute the pension in accordance

with the formula in the judgment of dissolution. The Allen court affirmed the trial court's decision

to amend the QDRO, rejecting the husband's argument that the trial court had acted outside its

jurisdiction:

"[W]e believe the court has jurisdiction to amend a QDRO to conform it to the

judgment. Although the trial court loses jurisdiction to amend a judgment after 30 days from

entry, it retains indefinite jurisdiction to enforce the judgment. [Citation.] The judgment in

this case specified a formula for use in determining the [wife's] share of the [husband's]

pension. The original QDRO contained a different formula. The amendment to the QDRO

changed the formula to conform to the judgment. This change did not impose new or

different obligations on the parties. The rights and obligations of the parties vested when the

judgment became final. [Citation.] The amendment to the QDRO was necessary to enforce

the [wife's] rights and obligations with respect to the pension. Since the amended order only

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enforced the provisions of the judgment, the court had jurisdiction to make the

modifications." Allen, 343 Ill. App. 3d at 412-13.

Thus, consistent with Thomas's argument, the salient inquiry, in light of Allen, is whether the

amended QDROs conform to the dissolution judgment or whether they impose new or different

obligations. Thomas contends that the amended QDROs improperly deviated from the judgment of

dissolution. He emphasizes that the judgment of dissolution awarded Mary "60 percent of

Thomas['s] pension earned *** during [the] marriage," and "did not describe, discuss, or otherwise

order that [Mary] be entitled to subsequent 'supplemental benefits,' or any 'early retirement subsidy,'

or that she share in any 'cost-of-living adjustments made' to Thomas' [sic] pension benefits."

Obviously, the argument presupposes that these items are not already subsumed within the definition

of "pension" itself, in which case the trial court's failure to enumerate them in the judgment of

dissolution would signify nothing. The question starkly presented, therefore, is what does "pension"

mean, as used in the judgment? In answering this question, it is helpful to consider the amended

ComEd QDRO and the amended Exelon QDRO separately. We consider the amended ComEd

QDRO first.

Generally speaking, "judgments may be construed like other written instruments." In re

Marriage of Breslow, 306 Ill. App. 3d 41, 57 (1999). "For instance, although an unambiguous

judgment must be enforced as drafted, an ambiguous judgment may be read in conjunction with the

entire record and construed in accordance therewith." Breslow, 306 Ill. App. 3d at 57. The term

"pension" means "[r]etirement benefit paid regularly (normally, monthly), with the amount of such

based generally on length of employment and amount of wages or salary of pensioner." Black's Law

Dictionary 1134 (6th ed. 1990). As far as the record shows, the various items specified in the

amended ComEd QDRO--early retirement benefits, supplemental benefits, and cost-of-living

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adjustments--are simply part of the package of benefits that collectively make up Thomas's pension.

We are aware that, within the labyrinthine provisions of ERISA and its associated regulations, more

specialized definitions of "pension" do exist. Notably, in certain circumstances and for certain

purposes, Department of Labor regulations treat cost-of-living adjustments as welfare plans rather

than pension plans. See 29 C.F.R. '2510.3--2(g) (____). There is no reason to believe, however,

that the trial court used the word other than according to its ordinary meaning.

In Coterel v. Coterel, No. 20899, slip op. at 1 (Ohio App. October 21, 2005), it was held that

a divorce decree awarding the wife "one-half (2) of all benefits accumulated in [the husband's]

pension" with General Motors Corporation entitled the wife to share in the husband's supplemental

benefit for early retirement. The court rejected the husband's argument that the decree pertained

only to his basic retirement benefit, not the supplemental benefit:

"The decree orders 'all benefits' which [the husband] receives from the General Motors

Pension Plan upon his retirement divided equally with [the wife]. No evidence was offered

showing that the source of both benefits is anything other than the 'General Motors Pension

Plan' to which the decree refers, or that the basis for the payments each involves is other than

[the husband's] service as a General Motors employee." Coterel, slip op. at 1.

Despite the broader language in the divorce decree in Coterel, we believe the same reasoning applies

here. All the benefits at issue in this case were earned through Thomas's service to ComEd prior to

the dissolution of the marriage, and they are all provided for Thomas's financial support during his

retirement. We thus believe the word "pension" in the judgment of dissolution here carries the same

broad meaning as the phrase "all benefits" in Coterel.

Even to the extent that the meaning of "pension" in the judgment is in any way ambiguous,

examination of the record as a whole tends to bolster our interpretation. Beyond the pensions, the

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judgment of dissolution awarded Mary a 60% share of five other retirement accounts (two in her

name and three in Thomas's). Given the identical treatment of both pension and non-pension

retirement assets, it is difficult to conceive of any reason not to treat the items at issue here in the

same fashion.

Thomas points to the trial court's statement in its memorandum opinion that Mary's share of

the pensions would amount to $17,816 annually. According to Thomas, Mary will receive

substantially more if the amended ComEd QDRO stands. The argument fails because, although

Thomas argued in the trial court that Mary would receive about $10,000 more per year under the

amended QDRO, he presented no evidence to substantiate the claim.

We next consider the amended Exelon QDRO. Thomas complains that this order improperly

grants Mary benefits that accrued after the dissolution of marriage by awarding her postdissolution

gains and losses on her portion of the balance of the pension account. We disagree. The amended

Exelon QDRO did not award Mary the dollar value of her assigned share of the pension on the date

of dissolution. Rather, the amended Exelon QDRO essentially divvied up the investments in

Thomas's pension account on a pro rata basis pending the liquidation and lump sum distribution of

Mary's share. This method of dividing the pension is consistent with the judgment of dissolution,

which contains no requirement that the assets be liquidated on the date of the judgment. The

postdissolution gains and losses are simply a by-product of dividing marital assets with a fluctuating

value.

SUPPLEMENTAL ISSUES ON REHEARING

Thomas filed a petition for rehearing claiming that we overlooked certain points in reaching

our decision. Thomas initially contends that we failed to consider that the original judgment granted

Mary 60 % of all of Thomas's ComEd pension, even though he had been working for ComEd for

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over five years before the parties were married. Thus, Thomas maintains that the trial court

improperly awarded Mary a portion of his nonmarital property.

In his original brief, Thomas noted that the original judgment awarded Mary a nonmarital

portion of his pension; Thomas observed that the amended ComEd QDRO "in addition to granting

Mary more money than the trial court ordered, does not take this into consideration." However,

Thomas did not specifically ask this court to correct this alleged error. Rather, Thomas requested

entry of an order "conforming to the unequivocal terms of the judgment of dissolution." The

judgment of dissolution did not differentiate pension benefits earned during the marriage from those

earned before the marriage. Therefore, under Thomas's own reasoning, the amended QDRO could

not deviate from the judgment by exempting part of Thomas's pension. Indeed, the principal case

cited by Thomas--Allen--held that the parties could not use a QDRO to correct a mistake in the

original judgment regarding the portion of a pension that was marital property.

Thomas argues in his petition for rehearing that the trial court lacked jurisdiction to award

Mary any part of the pension that constitutes nonmarital property. Thus, according to Thomas, the

judgment is void in this respect. Thomas cites, inter alia, this court's decision in In re Marriage of

Roe, 352 Ill. App. 3d 1155, 1161 (2004), which stated that because dissolution of marriage is

entirely statutory in origin, "[c]ourts in dissolution cases may exercise their powers within the limits

of the jurisdiction conferred by the statute, and this jurisdiction depends on the grant of the statute."

Roe, 352 Ill. App. 3d at 1161. We are bound, however, by our supreme court's decision in Belleville

Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), which unequivocally held

that "[w]ith the exception of the circuit court's power to review administrative action, which is

conferred by statute, a circuit court's subject matter jurisdiction is conferred entirely by our state

constitution." Belleville Toyota, Inc., 199 Ill. 2d at 334. Under Belleville Toyota, Inc., a court in a

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dissolution of marriage proceeding does not exceed its jurisdiction merely because it overlooks or

misapplies the provisions of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

5/101 et seq. (West 2004)). Accord In re Marriage of Waller, 339 Ill. App. 3d 743, 751 (2003)

(rejecting argument that trial court's failure to adhere to provisions of the Act governing educational

expenses and modification of child support deprived the trial court of jurisdiction).

In re Marriage of Mitchell, 181 Ill. 2d 169 (1998), a case decided before Belleville Toyota,

Inc., bolsters our conclusion. When Mitchell was decided, the Act required an order setting child

support to state the support level in a dollar amount. The Mitchell court held that an order setting

the level of support as a percentage of income, rather than as a fixed dollar amount, was erroneous

but not void. The Mitchell court reasoned that where the trial court had jurisdiction over the parties,

over the dissolution matter in general, and over the award of child support, an error in the trial

court's judgment did not divest the trial court of jurisdiction. Mitchell, 181 Ill. 2d at 175. The

Mitchell court based its conclusion, in part, on the traditional rule stated in In re Estate of Steinfeld,

158 Ill. 2d 1 (1994), that " '[a] void order or judgment is one entered by a court without jurisdiction

of the subject matter or the parties, or by a court that lacks the inherent power to make or enter the

order involved.' " Mitchell, 181 Ill. 2d at 177, quoting Steinfeld, 158 Ill. 2d at 12.

Roe cited Mitchell for the proposition that "[w]hen a trial court in a dissolution of marriage

proceeding enters an order that it lacks the inherent power to make under the Marriage Act, its order

is void." (Emphasis added.) Roe, 352 Ill. App. 3d at 1161. In doing so, Roe embellished Mitchell

by adding the words "under the Marriage Act," which do not appear in the pertinent quotation from

Mitchell. This embellishment is inconsistent with Belleville Toyota, Inc. and with our supreme

court's decision in Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001), which explained that the

"inherent power" requirement applies to administrative agencies and courts of limited jurisdiction,

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not courts of general jurisdiction (i.e. the circuit court). Steinbrecher, 197 Ill. 2d at 529-30.

Consonant with the reasoning of Mitchell, Steinbrecher, and Belleville Toyota, Inc., we hold that

any error in awarding Mary part of the nonmarital portion of Thomas's pension was not

jurisdictional. To the extent that Roe holds that the circuit court's subject matter jurisdiction in a

dissolution of marriage proceeding is conferred by statute, Roe is overruled.

Thomas next reprises his argument that the amended ComEd QDRO deviated from the

original judgment by awarding supplemental benefits to Mary. Thomas points to a pay stub among

the trial exhibits included within the record on appeal. The pay stub indicates a pension payment of

$2,474.55 designated "marital" and a payment of $1,235.01 designated "supplem." Thomas notes

that the monthly amount of $2,474.55 multiplied by 12 equals $29,694.60 annually, and that 60% of

this amount equals $17,816.76. Because the trial court found that 60% of Thomas's pension would

amount to $17,816 per year, the implication is that the trial court did not intend to award a portion of

the supplemental benefits.

In his original appellate brief, Thomas made no mention of this particular exhibit. He cited a

pro se motion in which he had argued that the inclusion of supplemental benefits resulted in an

award much larger than $17,816. However, he submitted no evidence in support of that pro se

motion. In her appellee's brief, Mary specifically pointed out this shortcoming in Thomas's

argument, so it should have come as no surprise to Thomas when we rejected it. The trial exhibit

that Thomas presently cites in his petition for rehearing certainly could have been cited in his reply

brief to rebut Mary's argument. Instead, responding to an observation in Mary's brief that the record

on appeal did not include transcripts of the original trial testimony, Thomas took the position that the

evidence presented at trial was not germane to the issue on appeal:

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"[T]he issue on appeal does not have anything to do with what happened at trial.

Indeed, the judgment itself is not being and in fact cannot be directly assailed now; what

happened at trial leading to the judgment is of little practical import. The issue here is

instead more precise: did the amended qualified domestic relations order (QDRO) entered

match the terms of the judgment of dissolution? Respectfully, trial transcripts or bystander's

reports are unnecessary to review this issue, under the de novo standard. [Citations.] It is a

matter of viewing the judgment itself and the amended QDROs complained of."

If trial transcripts and bystander's reports are not necessary for review of the issue on appeal,

it is difficult to understand how a trial exhibit could be. Now, however, Thomas would have us rely

on a single trial exhibit, in a vacuum, to deduce how the trial court calculated the value of Mary's

60% share of the pension and what the trial court meant by "pension" as used in the judgment. But

this shift in position breathes new life into Mary's concerns about the lack of a complete record. It is

a basic principle of appellate review that "an appellant has the burden to present a sufficiently

complete record of the proceedings at trial to support a claim of error." Foutch v. O'Bryant, 99 Ill.

2d 389, 391-92 (1984). "Any doubts which may arise from the incompleteness of the record will be

resolved against the appellant." Foutch, 99 Ill. 2d at 392. While, viewed in isolation, the trial

exhibit may appear to shed light on the trial court's reasoning and its understanding of the word

"pension," a full record of the trial testimony might very well place these matters in an altogether

different light. Accordingly, we are unwilling to give controlling weight to this single exhibit.

CONCLUSION

For the foregoing reasons, we dismiss the appeal in case No. 2--04--1191 and affirm the

judgment of the circuit court of Du Page County in case No. 2--05--0088.

No. 2--04--1191, Appeal dismissed.

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No. 2--05--0088, Affirmed.

CALLUM, J., concurs.

PRESIDING JUSTICE GROMETER, specially concurring:

I was on the panel that decided In re Marriage of Roe, 352 Ill. App. 3d 1155 (2004), and I

sided with the majority in that decision. Despite my position in Roe, I concur today in the majority's

supplemental decision to adhere to our original judgment in this case.

I write separately to note that the Roe decision did not include a discussion of either

Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325 (2002), or

Steinbrecher v. Steinbrecher, 197 Ill. 2d 514 (2001). As the majority points out, Belleville

Toyota held that "[w]ith the exception of the circuit court's power to review administrative

action, which is conferred by statute, a circuit court's subject matter jurisdiction is conferred

entirely by our state constitution." Belleville Toyota, 199 Ill. 2d at 334. Steinbrecher held

that the "inherent power" requirement applies to administrative agencies and courts of

limited jurisdiction, not courts of general jurisdiction. Steinbrecher, 197 Ill. 2d at 529-30.

Thus, our statement in Roe that a trial court order is void when the court in a dissolution

proceeding enters an order that it lacks the inherent power to make under the Illinois

Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2002)) is at odds

with controlling supreme court precedent. Nevertheless, in closing, I point out that the

members of our supreme court are seemingly divided about some of the issues we address

today. See Belleville Toyota, 199 Ill. 2d at 370-71 (Freeman, J., dissenting, joined by

McMorrow, J.) (classifying the majority's discussion of jurisdiction as "wrong");

Steinbrecher, 197 Ill. 2d at 547-49 (Freeman, J., dissenting, joined by McMorrow and

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Kilbride, JJ.) (arguing that a void order is one entered by a court that lacks the inherent

power to do so).

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