2017 IL App (1st) 170611
FIFTH DIVISION
December 29, 2017
No. 1-17-0611
) Appeal from the
In re MARRIAGE OF, ) Circuit Court of
) Cook County
JOANNE FARRELL, f/n/a Joanne Farrell Howe, )
)
Petitioner-Appellant, ) No. 09 D 11344
)
and )
) Honorable
THOMAS HOWE, ) Nancy J. Katz,
) Judge Presiding.
Respondent-Appellee. )
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion.
Justices Lampkin and Rochford concurred in the judgment and opinion.
OPINION
¶1 Petitioner Joanne Farrell (Joanne) filed a petition to dissolve her marriage to respondent
Thomas Howe (Thomas), and the circuit court entered a judgment dissolving the marriage,
which incorporated a marital settlement agreement signed by the parties. The marital settlement
agreement provided that the parties would split the marital portion of Thomas’ pension from the
Fireman’s Annuity and Benefit Fund (fireman’s fund) equally. 1 Thereafter, Thomas was injured
while on active duty as a City of Chicago firefighter and began collecting disability benefits
1
We acknowledge that article 6 of the Pension Code provides that the term “Fireman” used in the
article “includes the female gender” and applies “with equal force to female firemen and their survivors.”
40 ILCS 5/6-106.1 (West 2016).
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under the fireman’s fund. Joanne then filed a petition to enforce the marital settlement agreement
and requested that Thomas be ordered to split his disability benefits with her in accordance with
the agreement. The circuit court denied Joanne’s request. On appeal, Joanne argues that the
circuit court erred when it determined that the marital settlement agreement was unambiguous
and did not require Thomas to split his disability benefits with her. For the reasons that follow,
we affirm.
¶2 BACKGROUND
¶3 Thomas and Joanne were married in 1990 with Thomas being employed as a firefighter
for the City of Chicago during their marriage. After 19 years of marriage, Joanne filed a petition
for dissolution, alleging irreconcilable differences as the reason for the dissolution. An agreed
judgment of dissolution was entered by the parties in January 2010, which incorporated the
parties’ marital settlement agreement. The relevant portion of the agreement, section 3.1(d),
provided that Joanne would receive one half of the marital portion of Thomas’ pension and
stated as follows:
“The WIFE shall receive the specific property allocated to her in accordance with
exhibit A, *** This distribution includes the execution of a QILDRO awarding 1/2 of the
marital portion of HUSBAND’s pension from the FIREMAN’s ANNUITY AND BENEFIT
FUND, and a QDRO conveying HUSBAND’s complete interest to WIFE in his Deferred
Compensation Plan as of the date of Judgment. Until the date of final approval of the
above QDRO and QILDRO, the WIFE shall remain as the beneficiary of these plans to
the extent of the interests granted to here in this paragraph.” (Emphasis added.)
Section 3.2(d) further provided:
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“The HUSBAND shall retain all the remaining interest in the FIREMAN’S
ANNUITY AND BENEFIT FUND not conveyed above.” 2
Exhibit A provided that the net value of “Thomas’s Firemen’s Pension” was $778,957 and that
Joanne was entitled to $389,479. Joanne also waived “any and all claims” against Thomas for
maintenance, alimony, and spousal support, whether past, present, or future.
¶4 Subsequently, in November 2013, Thomas was injured on the job, placed on active-duty
disability leave, and as a result, began receiving disability benefits. In June 2016, Joanne filed a
petition for rule to show cause to enforce the judgment of dissolution (petition) arguing that she
was entitled to one half of Thomas’s disability benefits.
¶5 In his response to the petition, Thomas agreed that section 3.1(d) provided Joanne with a
one-half interest in his fireman’s annuity but maintained that disability benefits were not part of
Joanne’s marital property distribution. Thomas explained that he was 61 years old and had not
yet retired. Thomas stated that when he attains the age of 63, the mandatory age for retirement,
he would begin receiving his fireman’s annuity, which would be divided with Joanne in
accordance with the agreement. Until then, Thomas asserted that the disability benefits are not a
retirement benefit but an income replacement to which Joanne was not entitled under the marital
settlement agreement.
¶6 Thomas further argued that the language of the agreement as a whole demonstrated that
the parties did not intend to split his disability benefits. Thomas noted that disability benefits are
not allowed to be divided by a qualified domestic relations order, yet the marital settlement
agreement provided that Joanne’s interest in his pension was to be transferred exclusively by a
qualified domestic relations order. Thomas also observed that the marital settlement agreement
2
The Fireman’s Annuity and Benefit Fund is governed by article 6 of the Pension Code (40 ILCS
5/6-101 to 6-229 (West 2016)).
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did not contain any reference to “disability benefits” and that exhibit A placed a present value on
Thomas’s fireman’s annuity. In addition, Thomas asserted that Joanne waived her right to any
maintenance and that requiring him to split his disability benefits would be the equivalent to
awarding her maintenance. In sum, Thomas concluded that the marital settlement agreement
clearly set forth the parties’ intent that Joanne was to receive 50% of the marital portion of his
fireman’s annuity, not of his disability benefits, which he receives in lieu of income until his
mandatory retirement at age 63.
¶7 In reply, Joanne denied that the parties intended to exclude Thomas’s disability benefits
from allocation and asserted she had a right to Thomas’s “disability pension.” Joanne contended
that Thomas had submitted paperwork to the City of Chicago fire department in October 2013,
prior to his injury, indicating his plan to retire in December 2014. She further maintained that
Thomas informed her that he had attended a retirement planning session and informed her that
she would be receiving $1857 per month. Joanne also indicated that Thomas told her he would
pay her a portion of his disability payments until “the retirement annuity rule was triggered at
age 63.” According to Joanne, Thomas informed her that he had a choice between retiring and
receiving disability benefits but that he chose disability benefits because he would receive 75%
to 85% of his salary tax free along with free health care.
¶8 After hearing arguments, the circuit court ultimately concluded as a matter of law that the
marital settlement agreement was unambiguous and ruled that Joanne was not entitled to any
disability benefits. In doing so, the circuit court noted that at the time Thomas was 61 years of
age and had elected to receive his disability benefits until age 63, at which time he would be
eligible to receive his fireman’s annuity. Accordingly, Thomas was not receiving a “disability
pension” but a “disability benefit,” and under the terms of the marital settlement agreement,
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Joanne was not entitled to a portion of that benefit. This appeal follows.
¶9 ANALYSIS
¶ 10 On appeal, Joanne argues that the circuit court erred when it determined the marriage
settlement agreement was unambiguous and denied her petition. In the alternative, Joanne
contends that section 3.1(d) is ambiguous in that the term “pension” also relates to the disability
benefits that Thomas is currently receiving even though he has not retired. According to Joanne,
the circuit court’s interpretation of the marriage settlement agreement leads to an absurd result,
i.e. that she is precluded from receiving 50% of the marital portion of a significant asset, the
“disability pension.” Joanne requests that this court either rule (1) she is unambiguously entitled
to one-half of the marital portion of Thomas’s disability benefits, or (2) the parties’ marital
settlement agreement is ambiguous as a matter of law and remand the matter for further
proceedings.
¶ 11 In response, Thomas sets forth that the circuit court correctly found that section 3.1(d)
was not ambiguous and that Joanne is only entitled to one-half of the marital portion of his
fireman’s annuity upon his retirement and not his disability benefits, which he receives in lieu of
active-duty compensation.
¶ 12 In this case, the parties’ marital settlement agreement was incorporated into the judgment
of dissolution. A judgment of dissolution and marital settlement agreement are to be construed as
a single agreement. In re Marriage of Frank, 2015 IL App (3d) 140292, ¶ 11. It is well settled
that the rules of contract construction are applicable to the interpretation of a marital settlement
agreement and that a court’s primary objective is to give effect to the intent of the parties. In re
Marriage of Hendry, 409 Ill. App. 3d 1012, 1017 (2011). Where the language of the agreement
is clear and its meaning is unambiguous, intent must be determined solely from the agreement’s
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language and courts must give that language such effect. In re Marriage of Davis, 286 Ill. App.
3d 1065, 1066 (1997). An ambiguity exists where the language of an agreement is susceptible to
more than one reasonable interpretation. Id. at 1067. When an agreement is ambiguous, the court
may hear parol evidence to ascertain the intent of the parties. In re Marriage of Dundas, 355 Ill.
App. 3d 423, 426 (2005). This court reviews a circuit court’s interpretation of a marital
settlement agreement de novo. Frank, 2015 IL App (3d) 140292, ¶ 12.
¶ 13 Before interpreting the settlement agreement, we first examine the Illinois Pension Code
(Pension Code) (40 ILCS 5/6-101 to 6-229 (West 2016)), which governs the parties’ marital
settlement agreement and establishes the firemen’s fund at issue. The Pension Code includes two
separate articles that are applicable to firemen depending on the size of the municipality they
serve. Article 4 of the Pension Code, titled “Firefighters’ Pension Fund” (40 ILCS 5/4-101 to 4
144 (West 2016)), is applicable to municipalities with a population of 500,000 and under. In
contrast, article 6 of the Pension Code, titled “Fireman’s Annuity and Benefit Fund” (40 ILCS
5/6-101 to 6-229 (West 2016)), is applicable to municipalities with a population of over 500,000.
As Thomas was employed by the City of Chicago, a municipality with a population of over
500,000, article 6 of the Pension Code governs here.
¶ 14 Article 6 of the Pension Code provides a retirement “annuity” for eligible firefighters. 40
ILCS 5/6-124.1 (West 2016). An “annuity” is defined as “[a]nnual payments for life.” 40 ILCS
5/6-116 (West 2016). Pursuant to article 6, the compulsory retirement age is the “age set by law
or ordinance beyond which the fireman is prohibited from working as a fireman.” 40 ILCS 5/6
113 (West 2016). In this instance, the mandatory retirement age for those firefighters employed
with the City of Chicago is 63. Chicago Municipal Code § 2-152-410(b), (d) (amended Mar. 1,
2006) (“the age of 63 shall be the maximum age for employment of any member of the
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uniformed service of the fire department”).
¶ 15 Article 6 further provides that an active fireman who becomes disabled while on duty, as
was Thomas, “shall have the right to receive [a] duty disability benefit during any period of such
disability for which he does not receive or have a right to receive salary.” 40 ILCS 5/6-151 (West
2016). The “[d]uty disability benefit shall be payable during the period of the disability until the
fireman reaches the age of compulsory retirement.” Id. Article 6 is clear that when a City of
Chicago firefighter is disabled in the line of duty, he or she is eligible for disability benefits until
he or she reaches the age of 63. 40 ILCS 5/6-151 (West 2016).
¶ 16 The question before us is whether Joanne is entitled to a portion of Thomas’s duty
disability benefits where section 3.1(d) provides for a division of Thomas’s pension from the
fireman’s fund, even though he is not retired and both benefits are governed by article 6 of the
Pension Code. We conclude the marital settlement agreement is unambiguous and the parties
intended that Joanne receive a portion of Thomas’s fireman’s annuity upon his retirement but not
of his duty disability benefits taken prior to his retirement.
¶ 17 We reach this conclusion for several reasons. First, our primary objective is to give effect
to the intent of the parties and because the terms of the agreement are clear and unambiguous,
Joanne and Thomas’s intent must be solely determined from the agreement’s language. Hendry,
409 Ill. App. 3d at 1017; Davis, 286 Ill. App. 3d at 1066. Section 3.1(d) of the marital settlement
agreement provided that the parties evenly split “the marital portion of HUSBAND’s pension
from the FIREMAN’S ANNUITY AND BENEFIT FUND.” The parties’ decision to use the
word “pension” demonstrates their intent that this portion of the marital settlement agreement
covered those funds received upon Thomas’s retirement. At the time the agreement was
executed, Thomas had not yet reached the mandatory retirement age and the agreement did not
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require Thomas to retire earlier. The agreement also did not provide for, nor mention, any
disability benefits. More importantly, the marital settlement agreement stated that Thomas
retained “all the remaining interest in the Fireman’s Annuity Fund not conveyed” in section
3.1(d). As evidenced by the language of the marital settlement agreement, the parties’ intent was
for Joanne to receive half of Thomas’s retirement benefits, not the duty disability benefits
Thomas is currently receiving prior to his retirement.
¶ 18 Moreover, the parties’ intent is further evidenced by the provision of the marital
settlement agreement, which explicitly provides that Joanne “shall receive an allocation of
property as set forth in exhibit A.” Exhibit A lists “Thomas’ Firemen’s Pension” as a marital
asset and defines the net value and amount Joanne would receive of that asset. There is no
indication that this calculation included any disability benefits Thomas may receive prior to his
retirement.
¶ 19 Additionally, under the settlement agreement, Joanne waived any claims of maintenance
or spousal support. In doing so, she relinquished her right to a portion of Thomas’s income or
Thomas’s duty disability benefit, which replaces his income. See 40 ILCS 5/6-151 (West 2016).
As aptly stated in In re Marriage of Belk, “The parties had the right to enter into an agreement
with regard to the division of any of their property. [Citation.] That they failed to make provision
for disability benefits received by [the ex-husband] does not justify the court in adding such a
term to their agreement. Courts cannot rewrite contracts to suit either party but must enforce the
contract terms as written.” In re Marriage of Belk, 239 Ill. App. 3d 806, 812 (1992).
¶ 20 Accordingly, the marital settlement agreement’s reference to Thomas “pension” does not
include the duty disability benefits he receives prior to his retirement. See In re Marriage of
Schurtz, 382 Ill. App. 3d 1123, 1126 (2008). We thus conclude that the circuit court did not err
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when it determined the marital settlement agreement was unambiguous and that the duty
disability benefits Thomas currently receives are not part of his “pension.”
¶ 21 The parties rely on numerous cases in support of their positions on appeal. Joanne relies
on the Third and Fourth District cases of Schurtz, 382 Ill. App. 3d 1123, In re Marriage of
Benson, 2015 IL App (4th) 140682, and In re Marriage of Marshall, 166 Ill. App. 3d 954 (1988).
Thomas, however, relies on the cases of Belk, 239 Ill. App. 3d 806, and Davis, 286 Ill. App. 3d
1065, of the Second and Third Districts, respectively. These cases interpret various marital
settlement agreements and determine whether the pertinent disability payments are covered by
provisions relating to retirement or pension benefits. The interpretation of a marital settlement
agreement is fact specific. Accordingly, no single case will be dispositive. We therefore conclude
that none of these cases are determinative of the outcome in the case at bar as they were decided
under different facts and different applicable statutory provisions. See Schurtz, 382 Ill. App. 3d
at 1126 (applying article 4 of the Pension Code); Benson, 2015 IL App (4th) 140682, ¶ 26
(applying article 4 of the Pension Code); Marshall, 166 Ill. App. 3d at 957 (involving a military
pension under Title 10 of the United States Code (10 U.S.C. § 8911 (1982)); Belk, 239 Ill. App.
3d at 811 (referencing article 3 of the Pension Code (police officers in municipalities of less than
500,000 individuals)); Davis, 286 Ill. App. 3d at 1066 (involving the Suburban Teamsters of
Northern Illinois Pension Fund). These cases do, however, offer some guidance and support for
our conclusion that because section 3.1(d) does not refer to disability benefits (Davis and Belk),
Thomas’s disability payments do not replace his income and are not a substitution for retirement
benefits (Schurtz and Benson) and therefore Joanne is not entitled to a share of those payments.
¶ 22 The most important distinction between the cases cited by the parties and the present
matter is that here Thomas’s retirement benefits are governed by article 6 of the Pension Code.
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See 40 ILCS 5/6-101 to 6-229 (West 2016). For example, while the applicable statutes in
Schurtz, Benson, and Belk provided for two different types of pensions, a “retirement pension”
and a “disability pension,” article 6 does not contemplate different types of pensions. Compare
40 ILCS 5/3-101 to 3-152 (West 2016), 40 ILCS 5/4-101 to 4-144 (West 2016), and 40 ILCS
5/6-101 to 6-229 (West 2016). Instead, article 6 provides that when a fireman becomes disabled
while on active duty, the fireman is entitled to disability benefits until he or she reaches the
mandatory age of retirement (in this case age 63). Thereafter, the fireman shall receive such
annuity as is provided for him in accordance with article 6. 40 ILCS 5/6-151 (West 2016).
Accordingly, article 6 of the Pension Code does not allow a fireman to take disability benefits in
lieu of an annuity. Id. When read in conjunction with article 6 of the Pension Code, the parties’
marital settlement agreement is thus unambiguous; the term “Thomas’ Firemen’s Pension” only
refers to those benefits he receives upon his retirement. Furthermore, article 6 of the Pension
Code, which is incorporated into the marital settlement agreement, distinguishes between
annuities and disability benefits. This is further evidence of the parties’ intent that Joanne
receives a portion of Thomas’s annuity and not a portion of his duty disability benefit. See State
v. American Federation of State, County & Municipal Employees, 2016 IL 118422, ¶ 53 (statutes
and laws in existence at the time a contract is executed are considered part of the contract).
¶ 23 Joanne further argues on appeal that if we are to conclude that the provision in the
settlement agreement allocating Thomas’s pension does not include his disability benefits, the
disability benefits fall under the “discovered property” provision of the marital settlement
agreement. Therefore, Joanne maintains she is nonetheless entitled to her portion of the assets.
That provision of the agreement provides in pertinent part that if either party finds that he or she
omitted any property from the property allocated in the agreement, then any such property shall
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be automatically divided and allocated as though it had been included in the allocation at the
proper time.
¶ 24 Our review of the record reveals, however, that Joanne failed to raise this argument
before the circuit court. “It is well settled that an unsuccessful party may not advance a new
theory of recovery on appeal” (In re Detention of Anders, 304 Ill. App. 3d 117, 123 (1999)), and
that doing so results in forfeiture of that issue (see, e.g., 1010 Lake Shore Ass’n v. Deutsche Bank
National Trust Co., 2015 IL 118372, ¶ 14 (issues not raised in the trial court are forfeited);
Stuckey v. Renaissance at Midway, Inc., 2015 IL App (1st) 143111, ¶ 30 (finding it would be
improper to address an argument raised for the first time on appeal)). “The purpose of this
court’s forfeiture rules is to encourage parties to raise issues in the trial court, thus ensuring both
that the trial court is given an opportunity to correct any errors prior to appeal and that a party
does not obtain a reversal through his or her own inaction.” 1010 Lake Shore Ass’n, 2015 IL
118372, ¶ 14. Accordingly, we find this argument to be forfeited.
¶ 25 CONCLUSION
¶ 26 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.
¶ 27 Affirmed.
11
In re Marriage of Farrell
Court: Appellate Court of Illinois
Date filed: 2018-01-11
Citations: 2017 IL App (1st) 170611
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