2022 IL App (2d) 210648 No. 2-21-0648 Opinion filed November 9, 2022 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court JUDITH GRANDT, ) of Lake County. ) Petitioner-Appellant, ) ) and ) No. 96-D-1537 ) LAURENCE J. GRANDT, ) Honorable ) Stephen M. DeRue, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Presiding Justice Brennan and Justice Hudson concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Judith Grandt, appeals the judgment of the circuit court of Lake County denying

her petition for enforcement of judgment and restitution. In her petition, Judith sought to treat the disability pension of respondent, Laurence J. Grandt, as a retirement pension subject to division by the terms of the parties’ dissolution of marriage judgment and the marital settlement agreement

(MSA) incorporated therein. On appeal, Judith argues that, where Laurence is eligible to receive a retirement pension, he should not be allowed to frustrate the intent of the MSA by claiming that it remains a disability pension. We reverse and remand.

¶2 I. BACKGROUND

¶3 The relevant portions of the record reveal that, on May 21, 1997, the parties’ nearly 20- year marriage was dissolved. At the time of the dissolution, Judith was 46 years of age, was

2022 IL App (2d) 210648 employed as a route manager for a newspaper and as a babysitter and day care provider, and was earning approximately $12,000 per year. Laurence was 43 years of age, was employed as a firefighter with the Countryside Fire Protection District (District), and was earning approximately

$62,000 per year. The parties had two children during the marriage, an 18-year-old attending college and a 14-year-old attending high school.

¶4 In the parties’ MSA, they agreed that Judith would receive in maintenance $150 per month for 24 months, after which either party could file a petition to terminate the maintenance or to modify it based on the parties’ financial circumstances. In addition, the MSA recited that there was

“an affirmative obligation on [Judith] to be independently capable of obtaining employment or finances to meet her reasonable needs.” The MSA also included a specific provision about the division of Laurence’s pension from the District (pension provision):

“With respect to [Laurence’s] pension with Countryside Fire Protection District, they will not honor a [qualified domestic relations order (QDRO)], therefore either a withholding order shall be placed against [Laurence] or he shall be directly ordered to pay

[Judith] in accordance with a formula of 20 years of marriage over years of participation times one half, which shall be paid to [Judith] only in the event it is received by [Laurence]

if it is paid to him as a pension benefit. [Laurence] shall make every effort to segregate the funds if possible, by having the Plan Administrator segregate those funds into the name of [Judith], or by direct payment to her as [Laurence] receives his funds. [Laurence] shall also

make an effort to name [Judith], allowing her the surviving widow’s award in the event of the death of [Laurence] prior to his receiving his pension benefits.”

¶5 On February 17, 1999, Laurence filed a pro se motion seeking, among other things, the suspension of his child support and maintenance obligations. Laurence stated in the motion that he had lost his employment due to medical disability but was pursuing both workers’ compensation

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2022 IL App (2d) 210648 and an on-duty disability pension. ^[1] The parties entered an agreed order, suspending Laurence’s obligations for 90 days or until he began receiving an on- or off-duty disability pension. The matter was continued by agreement until July 22, 1999, at which time the parties entered another agreed order setting a temporary child support amount.

¶6 On November 1, 1999, Judith filed a petition for rule to show cause, alleging that Laurence

had not paid his share of the minor child’s medical and educational expenses. On December 14, 1999, the parties entered an agreed order in which Laurence agreed to pay the medical- and educational-cost arrearage at the rate of $100 per week.

¶7 On September 12, 2000, Laurence filed a petition to terminate child support because the minor child had experienced an “emancipation event” as defined in the MSA in that he had been expelled from high school for truancy, would not be returning to school, and was working full

time. On September 20, 2000, the trial court determined that the minor child was emancipated and terminated Laurence’s obligation to pay child support for the minor child.

¶8 On May 1, 2001, the trial court entered a qualified Illinois domestic relations order

(QILDRO) specifying that Judith was to receive her marital portion of Laurence’s “retirement benefit *** when benefits become payable” or “on the date the retirement benefit commences.”

Also on May 1, Laurence filed his consent to issue the QILDRO. No further postdissolution motions appear in the record until February 25, 2020.

¶9 On February 25, 2020, Judith filed a petition for issuance of a QILDRO and for restitution.

There were apparent notice issues, and, on June 12, 2020, the trial court ordered Judith to effect

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personal service on Laurence, which appears to have been accomplished. On July 24, 2020, the court entered a default judgment against Laurence on the February 25, 2020, petition. On August

12, 2020, Laurence filed a motion to vacate the default judgment, and, on August 18, 2022, the court granted Laurence’s motion to vacate. On September 2, 2020, Laurence filed a response to

Judith’s petition for issuance of a QILDRO and alleged that he had been receiving a disability pension from the District, beginning about a year after the dissolution judgment and “long before

[he reached] retirement age.”

¶ 10 The parties appear to have engaged in settlement discussions. The proceedings were

continued, with the trial court recognizing that no settlement had been achieved and setting the matter for hearing. On March 29, 2021, on its own motion, the court dismissed Judith’s petition for issuance of a QILDRO for being “insufficiently pled.” The court also expressly invited Judith to replead her petition.

¶ 11 On April 22, 2021, instead of filing an amended petition, Judith filed a petition for enforcement of judgment and for restitution. ^[2] Judith alleged that the District, had a unified employee disability and pension plan under article 4 (titled “Firefighters’ Pension Fund—

Municipalities 5000,000 and Under”) of the Illinois Pension Code (40 ILCS 5/4-101 et seq. (West

1996)) and Laurence, as an employee, was entitled to benefits under the pension plan. Judith alleged that, after the entry of the judgment of dissolution, Laurence was injured in the course of 210651

2022 IL App (2d) 210648 his employment, stopped working for the District, and began receiving disability benefits. Judith

alleged, on information and belief, that, at some point after Laurence had attained 50 years of age, Laurence had elected to retire, resulting in the conversion of disability pension payments into retirement pension payments, and that she was entitled under the judgment of dissolution to her

marital portion of Laurence’s retirement benefits. In count I, Judith sought enforcement of the pension provision, going forward. In count II, Judith sought to determine the date on which

Laurence began receiving his retirement pension payments and the arrearage arising from that and she sought an order requiring Laurence to pay the arrearage.

¶ 12 On May 10, 2021, Laurence filed his response to the petition for enforcement of judgment.

Laurence admitted that the District had a statutory unified employee disability and pension plan under the Pension Code but denied that he had elected to retire or that he had received retirement pension payments. Laurence also maintained throughout the response to the petition that he was

receiving disability benefit payments and that, as a result, Judith was not entitled to any portion of his disability payments.

¶ 13 The trial court ordered the parties to prepare an agreed stipulation of facts, but the record

does not show that any such stipulation was filed. The court set the matter for hearing, and the hearing date was continued. The record does not contain an affirmative indication of whether the parties argued Judith’s petition before the court. On October 18, 2021, the court denied Judith’s petition. In expressing its reasoning, the court stated that it had been guided by the Second District case of In re Marriage of Belk, 239 Ill. App. 3d 806 (1992), which it found helpful in analyzing the MSA. The court found the term “pension” in the MSA to be ambiguous but ultimately concluded from the MSA as a whole and the Pension Code that the parties intended the division of an age-related or retirement pension and did not contemplate the division of any disability pension benefits.

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¶ 14 Judith timely appeals.

¶ 15 II. ANALYSIS

¶ 16 On appeal, Judith argues that Laurence’s receipt of a disability pension should not defeat her right to receive the agreed-upon portion of his pension benefits once Laurence had fully

attained eligibility to retire. Judith argues that the weight of authority and the structure of the Pension Code support her contention. We begin by considering the standards that govern our review.

¶ 17 A. Applicable Standards of Review

¶ 18 Review of the trial court’s decision involves several aspects. First, we must look to the judgment of dissolution and the MSA incorporated therein. We must also interpret relevant and applicable provisions of the Pension Code. Finally, we must account for the effect, if any, of the procedural posture in the trial court on our review.

¶ 19 Turning to the standard governing the interpretation of the MSA, we first note that any

marital settlement agreement is a contract and interpreted according to the rules and principles of contract interpretation. In re Marriage of Andres, 2021 IL App (2d) 191146, ¶ 51. Thus, our main objective is to ascertain and give effect to the parties’ purpose and intent in entering the agreement.

In re Marriage of Schurtz, 382 Ill. App. 3d 1123, 1125 (2008). If the agreement’s language is clear and unambiguous, it should be given its plain and ordinary meaning. Id. If, however, the language is ambiguous, the parties’ intent must be ascertained by examining the facts and circumstances surrounding the formation of the agreement. Id. In either case, the interpretation of an MSA is reviewed de novo as a question of law. Andres, 2021 IL App (2d) 191146, ¶ 51.

¶ 20 Next, we consider our review of relevant provisions of the Pension Code. The cardinal rule

of statutory interpretation is to ascertain and give effect to the legislative intent. Rivtis v. Turan, 2022 IL App (2d) 210489, ¶ 19. Legislative intent is best indicated by the language employed in 210653

2022 IL App (2d) 210648 the statute, given its plain and ordinary meaning. Id. We review de novo the trial court’s construction of a statute. Id.

¶ 21 Finally, the procedural posture below may also influence our standard of review, depending on whether the trial court evaluated witness testimony and credibility and made evidentiary

findings. Here, Judith filed a petition seeking to enforce the judgment of dissolution and the incorporated MSA and Laurence filed an answer to the allegations in Judith’s petition. It appears that the court resolved the petition on the merits and that its judgment was based on its interpretation of the MSA and the Pension Code, as needed, and it does not appear that any nondocumentary evidence was offered. Therefore, the issues resolved in the court’s judgment presented questions of law, which are reviewed de novo. Gallagher v. Lenart, 226 Ill. 2d 208, 219

(2007). With these principles of review in mind, we turn to the issue presented on appeal.

¶ 22 B. Disability Pension Versus Retirement Pension

¶ 23 Judith argues that, at this point, Laurence’s pension should be deemed equivalent to a retirement pension. Judith argues that the clear intent of the MSA was to allow her to receive her marital portion of Laurence’s retirement pension and that to accept Laurence’s claim to still be

receiving a disability pension at the age of 66 (his age when she filed her original petition, for issuance of a QILDRO, in 2020) would frustrate the intent of the MSA.

¶ 24 Our starting point is the MSA. The MSA resolved issues of custody, maintenance, and the division of the marital estate. Regarding maintenance, the parties agreed that Laurence would pay

$150 per month for 24 months. The parties also agreed that Judith had “an affirmative obligation” to become economically self-sufficient. The marital estate was divided unequally, with Judith receiving 60% of the marital estate and Laurence receiving 40%. Other assets identified specifically were mutual funds, Laurence’s pension with the District, the marital residence, 210654

2022 IL App (2d) 210648

automobiles, debts, attorney fees, the upcoming 1996 income tax filing, and the disposition of various other items. In particular, the MSA provided:

“With respect to [Laurence’s] pension with Countryside Fire Protection District, they will not honor a [qualified domestic relations order (QDRO)], therefore either a withholding order shall be placed against [Laurence] or he shall be directly ordered to pay

[Judith] in accordance with a formula of 20 years of marriage over years of participation times one half, which shall be paid to [Judith] only in the event it is received by [Laurence]

if it is paid to him as a pension benefit. [Laurence] shall make every effort to segregate the funds if possible, by having the Plan Administrator segregate those funds into the name of [Judith], or by direct payment to her as [Laurence] receives his funds. [Laurence] shall also

make an effort to name [Judith], allowing her the surviving widow’s award in the event of the death of [Laurence] prior to his receiving his pension benefits.”

¶ 25 When interpreting a contract to ascertain the parties’ intent, we look to the language of the contract, keeping in mind that we must consider the contract as a whole, viewing each provision in light of the other provisions. Thompson v. Gordon, 241 Ill. 2d 428, 441 (2011). We cannot

determine the parties’ intent by looking at a provision in isolation or by looking at disparate, isolated portions of the contract. Id. If, after performing this examination of the entire contract, the language is clear and unambiguous, it will be given its plain, ordinary, and popular meaning; if, however, the language of the contract is susceptible to more than one reasonable meaning, it is ambiguous, and we may resort to extrinsic evidence to determine the parties’ intent. Id.

¶ 26 Here, the trial court focused on the word “pension” in determining that the MSA was ambiguous, because “pension” could reasonably refer to a disability pension or a retirement

pension. A disability pension is awarded to provide income replacement for a firefighter who, through injury or illness, is unable to perform the requirements of the position. See Schurtz, 382

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Ill. App. 3d at 1126 (disability pay is meant to replace the injured recipient’s income). A retirement pension is a pension based on the recipient’s longevity and service. See, e.g., 40 ILCS 5/4-109

(West 1996) (providing that the pension is a percentage of salary attained at retirement from

service determined by years of creditable service). However, when looking at the language of the pension provision and its context within the MSA as a whole, the meaning of “pension” is clear and unambiguous, and the MSA itself is likewise unambiguous.

¶ 27 As an initial observation, the MSA does not reference “disability,” “disability pay,”

“disability pension,” “disability benefits,” or any other similar term. Instead, the pension provision appears in the portion of the MSA dividing marital assets, and it provides that the pension shall be divided between Judith and Laurence according to the length of the marriage divided by the years of Laurence’s service. The division of the pension will occur “only in the event [the pension] is received by [Laurence] if it is paid to him as a pension benefit.” The provision further provides that Judith will be designated as the surviving widow should Laurence die before he receives his

pension benefits. The right of a surviving widow to receive any pension benefits is tied to the condition precedent that the firefighter who dies is not receiving a disability pension. Id. § 4-114

(“[i]f a firefighter who is not receiving a disability pension *** dies,” the surviving spouse will receive a pension). Finally, the MSA provided a relatively brief period of maintenance while Judith became economically self-sufficient, and this evidences an intention that Judith was not to receive a portion of Laurence’s income beyond the maintenance period. It would therefore be contrary to the expressed intent of the MSA for Judith to now begin receiving a portion of Laurence’s disability pension, which, as noted, is income replacement, not earned retirement benefits. Based

on our consideration of the whole of the MSA and contextualizing the pension provision therein, we determine that the MSA is unambiguous and that the parties agreed to divide Laurence’s

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2022 IL App (2d) 210648 retirement pension only when he would begin to receive his retirement pension; the parties did not consider or intend that “pension” would include a disability pension.

¶ 28 Even though the MSA is unambiguous, its language does not address what happens when

Laurence, despite receiving a disability pension, attains eligibility to retire. Judith argues that

Laurence’s continuing to receive a “disability” pension even though he is eligible to retire essentially elevates the form over the substance and serves only to frustrate the parties’ clear intent

to divide Laurence’s pension, once he retired. In support, Judith cites In re Marriage of Benson, 2015 IL App (4th) 140682, for the proposition that a disability pension that is actually a substitute for a retirement pension will be treated as a retirement pension. Laurence, for his part, argues that the trial court was correct to follow Belk and attempts to distinguish Benson.

¶ 29 Before we approach the parties’ contentions, we first note that Laurence argues that Judith has not provided a sufficient record on appeal, because she did not include the agreed stipulation of facts (supra ¶ 13). Generally, an incomplete or insufficient record gives rise to the presumption that the trial court acted in conformity with the law and with a sufficient factual basis for its findings. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984). The failure to include the parties’ stipulation is the only omission or lack in the record on appeal identified by Laurence. While it is

true that Judith did not include the stipulation in the record, we cannot see how the inclusion of the stipulation would have any impact on our analysis. This case involves the interpretation of the parties’ MSA, and we have determined that the MSA is unambiguous. Thus, even if the stipulation had agreed facts touching on the parties’ intent at the time the MSA was executed, it would be irrelevant because we look to the four corners of the unambiguous agreement. See Thompson, 241

Ill. 2d at 441 (extrinsic evidence to discern the parties’ intent may be considered only where the instrument is ambiguous). Moreover, the interplay between the Pension Code and the MSA

- 10 - 2022 IL App (2d) 210648 presents legal questions, which do not depend on any facts beyond those already contained in the record. Foutch, then, simply has no applicability under the circumstances of this case. ¶ 30 Turning to the parties’ contentions on appeal, we begin with Laurence’s argument and Belk. In that case, the parties agreed to divide the husband’s police pension “ ‘when and at the time [the husband] withdraws any amounts from his pension plan or he is paid any benefits under said plan.’ ” Belk, 239 Ill. App. 3d at 807. Nine days after the entry of the dissolution judgment, the husband was injured in a non-duty-related accident and was thereafter unable to work. Id. The husband received disability benefits as a result. Id. The trial court considered whether the wife was entitled to a portion of the husband’s disability benefits, and it determined that the disability benefits were similar to a retirement pension and should be treated the same as a retirement pension. Id. at 807-08. ¶ 31 On appeal, this court held that the provision dividing the “pension plan” was ambiguous, because it was susceptible to two reasonable meanings: the division of an age-related retirement pension only, or the division of any benefits received through the husband’s pension plan, including disability benefits. Id. at 809. This court considered several key factors in reaching its conclusion. First, there was no reference to “disability.” Id. Second, the wife was not receiving any part of the husband’s monthly income through maintenance (and a disability pension is a substitute for monthly income.) Id. at 810. Third, to treat the husband’s disability payments as divisible would be unreasonable because he would be receiving only a quarter of his monthly salary if the disability payments were divided, instead of the half he would receive if the disability payments were not divided (and this dovetailed with the second point, that the wife was not receiving maintenance or any part of the husband’s monthly salary). Id. at 810-11. Fourth, the parties discussed the division of “retirement” benefits on the record. Id. at 811. Fifth, the Pension Code treated disability (salary derived only) differently from retirement (age and years of service - 11 - 2022 IL App (2d) 210648 derived). Id. Sixth, the parties used the standard formula typically employed to divide a retirement pension. Id. at 812. Considering these factors, this court concluded that the parties intended to divide only the husband’s retirement pension, not his disability pension. Id. We further observed that the husband could, at some future date, elect to receive a retirement pension. Id. at 813. We reasoned that there was no agreement regarding when the husband would retire or when the wife would be entitled to receive any of the husband’s benefits. Id. at 814. ¶ 32 Laurence argues that we should follow Belk. He points out that the trial court was obligated to, and did, follow Belk. ^[3] While there is a decided similarity between Belk and this case, Laurence overlooks a key and dispositive distinction: the husband in Belk was not of retirement age at the time he was disabled, and the litigation followed hard on the heels of his accident, so there was no cause to examine under what circumstances, if any, could the husband be deemed to be evading his obligation to divide his retirement pension. In other words, Belk did not consider what would happen 25 years along, which is the precise circumstance in this case. As such, while Belk may have been helpful in interpreting the MSA at issue in this case (but Belk focused on two words rather than the entirety of the instrument, an approach we disagree with here), the fact that the pension recipient there was not, at the time of the litigation to enforce the dissolution judgment, eligible to receive a retirement pension significantly undermines any guidance we could draw from it. ¶ 33 Judith argues that we should follow Benson. In that case, the parties divorced in 1999, and the judgment of dissolution provided that the wife was granted a “ ‘one-half interest in [the