concurring in part and dissenting in part:
I agree with portions of the majority opinion and in part with the result reached. My disagreement with the majority opinion is with the decision that the husband’s nonvested shares of Caterpillar Tractor Company’s common stock are marital property. Accordingly, I respectfully concur in part and dissent. The views expressed in my special concurring opinion in the case of In re Marriage of Donley (1980), 83 Ill. App. 3d 367, 403 N.E.2d 1337, set forth a theory inconsistent with the majority’s position with regard to the disputed properties argued to be marital property in this appeal. I adhere to my interpretation of the law set forth in my special concurring opinion in Donley and believe it should be dispositive of the issues concerning the nature of the disputed properties in this case.
Initially I believe some comment upon the majority’s disposition of the issue of whether the husband’s vested pension benefit is marital property is warranted. I agree with the result the majority reaches on this issue but do so for different reasons than the majority sets forth.
As a result of the adoption of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101-802) Illinois became a jurisdiction wherein the marital property of the parties (defined in the Act as all property not specifically excluded as nonmarital property (Ill. Rev. Stat. 1977, ch. 40, par. 503)) is to be equitably apportioned between the parties. Although the theory of equitable distribution of marital property is similar to the traditional notions of community property adopted in other jurisdictions, I find the two theories are not identical. In community property jurisdictions an equal division of marital property is required. In an equitable apportionment jurisdiction, such as Illinois, the concepts of equity guide the division of the marital assets of the parties, and it need not necessarily be equal.
Several recent appellate court decisions have held that retirement benefits can be marital property. In support of the petitioner’s claim on appeal and the majority opinion is the case of In re Marriage of Musser (1979), 70 Ill. App. 3d 706, 388 N.E.2d 1289, where it was held that military retirement pay was marital property. The pension there was vested and matured. It is analogous to the present case in that the pension benefits were vested. However, that they were matured and actually then being received are the important distinguishing facts. The fact the pension in Musser was matured of course makes a value calculation of those benefits readily ascertainable, and avoids the difficult task of placing a value on the pension, as the majority opinion recognizes. And recently in In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511, it was held that a pension benefit which was vested but then unmatured was nonetheless marital property.
I agree with the wife’s argument based upon Hunt that pension benefits are not property acquired by gift, bequest, devise or descent or property acquired in exchange for such property. Pension benefits are part of the consideration earned by the employed spouse for his service, though not always collectable; and vested pension benefits are deferred compensation earned during the working years and payable upon the worker reaching retirement. (Kruger v. Kruger (1976), 139 N.J. Super. 413, 354 A.2d 340). I believe it is and should be the vested nature of such benefits that is determinative of whether such benefits are marital property. Similar results were reached with regard to military retirement benefits in Chisnell v. Chisnell (1978), 82 Mich. App. 699, 267 N.W.2d 155, and with regard to government pensions in Shafer v. Shafer (1958), 3 Wis. 2d 166, 87 N.W.2d 803, Hutchins v. Hutchins (1976), 71 Mich. App. 361, 248 N.W.2d 272, and nongovernmental pension benefits in Mey v. Mey (1977), 149 N.J. Super. 88, 373 A.2d 664, Blitt v. Blitt (1976), 139 N.J. Super. 213, 353 A.2d 144, In re Marriage of Powers (Mo. App. 1975), 527 S.W.2d 949, and Pellegrino v. Pellegrino (1975), 134 N.J. Super. 512, 342 A.2d 226. The above-cited cases represent the law of equitable apportionment jurisdictions, like Illinois, which have leaned upon the case law of various community property jurisdictions in deciding that vested pensions benefits are marital property. Although I believe there is a distinct difference between marital property distribution under our existing Marriage and Dissolution of Marriage Act and property distribution in a traditional community property jurisdiction, I conclude that the above-cited authority is persuasive that vested pension benefits are marital property. Accordingly I agree with the petitioner’s claim on appeal and the majority opinion that the trial court erred in refusing to consider the husband’s vested pension benefits as marital property. Because of this error the case must be remanded to the trial court for an equitable division of the husband’s vested Caterpillar pension benefits.
In a related argument the petitioner-wife claims that her husband’s nonvested 72.4121 shares of Caterpillar Tractor Company common stock are marital property. The majority opinion agrees while I do not.
Nonvested pension interests which are similar in character to this nonvested stock plan have been held to be mere expectancies and too speculative to be considered either property or marital property. (See Van Loan v. Van Loan (1977), 116 Ariz. 272, 569 P.2d 214; French v. French (1941), 17 Cal. 2d 775,112 P.2d 235 (overruled in In re Marriage of Brown (1976), 15 Cal. 3d 838, 544 P.2d 561,126 Cal. Rptr. 633); White v. White (1975), 136 N.J. Super. 552, 347 A.2d 360; but see Blitt v. Blitt (1976), 139 N.J. Super. 213, 353 A.2d 144; Cearley v. Cearley (Tex. 1976), 544 S.W.2d 661; Lumpkins v. Lumpkins (Tex. Civ. App. 1975), 519 S.W.2d 491; and Leighton v. Leighton (1978), 81 Wis. 2d 620, 261 N.W.2d 457.) However several recent cases have held that even nonvested pensions are property, and if earned during the marriage, marital property. (Brown.) (The Illinois Hunt case relied extensively upon the California Brown case.) While I agree with the result reached in the Illinois Hunt case, I do so because under the facts of that case the pension involved was vested. The Hunt court stated in dicta “[t]hat such a contractual pension or profit-sharing interest, whether matured, vested or nonvested, contributory or noncontributory, is a chose in action [citation] and ‘property’ (See 30 Ill L. & Prac. Property §3 (1957)) under section 503 of the Illinois Marriage and Dissolution of Marriage Act.” (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 662, 308 N.E.2d 511, 518.) That dicta was used as the basis for the holding the case of In re Marriage of Pieper (1979) , 79 Ill. App. 3d 835, 398 N.E.2d 868, and In re Marriage of Donley (1980) , 83 Ill. App. 3d 367, 403 N.E.2d 1337. In Pieper the court admitted that the record did not disclose whether the husband’s pension was vested, and nor was any such determination made by the Donley trial court. Relying upon the above-quoted dicta in Hunt, the Pieper court concluded that such a fact was not pertinent to its decision that the pension benefit was marital property. I strongly disagree with such a position. As I read the facts of Hunt, the determining factor in concluding that the pension benefit constituted marital property, was its vested nature. I decline to follow the reasoning of Pieper, that whether the pension is vested or not is irrelevant. I expressed my concern over this same issue in my special concurring opinion in Donley, and I believe my views there are equally applicable to this case.
In the case of In re Marriage of Ellis (1976), 191 Colo. 317, 552 P.2d 506, it was held that the military retirement pay of the husband was a' resource, but was not marital property because it did not have any of the following characteristics: Cash surrender value; loan value; lump sum value; and value realizable at death. Such reasoning is equally applicable where the pension benefit is purely contingent and nonvested, as was considered in the Pieper case. Absent any of the characteristics of a truly vested pension right, valuation of a nonvested pension is an impossible burden to place upon the trial court, because of its contingent and conditional nature. Further, in light of the vast number of marriages dissolved in Illinois each year, it is impracticable and unnecessary to add the additional expenses of valuation experts to the mounting costs of marital litigation in an attempt to reach an unattainable result. Similar contra Pieper and Donley results were reached because of the nonvested contingent nature of pension benefits in the cases of Savage v. Savage (Ind. App. 1978), 374 N.E.2d 536; Wilcox v. Wilcox (Ind. App. 1977), 365 N.E.2d 792; and White v. White (1975), 136 N.J. Super. 552,374 A.2d 360.1
In the instant case, the husband had no withdrawal rights in the subject nonvested stock. His receipt of the stock is contingent upon his continued employment at Caterpillar. His employment may be terminated for any number of reasons, such as ill-health, his death, his quitting or his being fired. Consistent with my view of the law recited above, I conclude that these nonvested shares of common stock are contingent and speculative, even though they admittedly are a resource of sorts. (In re Marriage of Ellis (1975), 36 Colo. App. 234, 538 P.2d 1347, affd (Colo. 1976), 552 P.2d 506.) Therefore, I believe the disputed common stock, though a resource, is neither property nor marital property.
In view of the fact that I concur with the majority opinion that the case must be remanded to determine and include the husband’s vested pension rights as marital property, I, of course, agree that the character of the wife’s pension rights must also be considered by the trial court upon remand. Apparently no factual determination was made in this case that the wife’s pension rights were vested. If they were vested then they should be included as part of the marital property. However, if they are nonvested, then I believe the trial court should be guided by the views expressed in this special concurring and dissenting opinion rather than the dicta expressed in the Hunt case, which I believe the majority needlessly perpetuates in an attempt to establish it as binding precedent.
Finally, I also agree with the decision of the majority that because of the remandment for a reconsideration of the entire property settlement between the parties we should not express an opinion upon the propriety of the trial court’s refusal to award the wife maintenance. However as an alternative to the majority’s position that the husband’s nonvested employee stock plan is marital property I believe that nonvested pension benefits and other nonvested employee benefits can realistically be treated as anticipated income to the recipient rather than property and therefore considered by the trial court in deciding whether to award maintenance. (Ill. Rev. Stat. 1977, ch. 40, par. 504.) The existence of a pension or other employee benefit is relevant in determining the amount of maintenance, if any, that should be awarded.2 The facts of the present case, as they develop on remand, may justify maintenance for the wife or the husband at some future time upon the contingency that the nonvested employee benefits become certain. 111. Rev. Stat. 1977, ch. 40, par. 401(3).
Pending legislation in the Illinois General Assembly shows a preference for the view that nonvested pensions are nonmarital property. H.B. 554 was approved by the Illinois House of Representatives by a vote of 103 to 18. The bill, as of May 29,1980, is in the Senate Rules Committee.
Buser, Division of Pension Benefits in Dissolution of Marriage Proceedings Under Illinois Marital Property Law, 2 (No. 3) Ill. Trial L. J. 21.