{ "id": 2553339, "name": "In re MARRIAGE OF JAMES J. HANNON, Petitioner-Appellee and MARY LOU HANNON, Respondent-Appellant (The City of Aurora Firefighters' Pension Fund, Intervenor-Appellee)", "name_abbreviation": "In re Marriage Hannon", "decision_date": "1991-01-08", "docket_number": "No. 2-90-0268", "first_page": "329", "last_page": "336", "citations": [ { "type": "official", "cite": "207 Ill. App. 3d 329" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "112 Ill. 2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5537948 ], "pin_cites": [ { "page": "438-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0428-01" ] }, { "cite": "26 U.S.C. \u00a7401", "category": "laws:leg_statute", "reporter": "U.S.C.", "year": 1989, "pin_cites": [ { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642186 ], "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0330-01" ] }, { "cite": "127 Ill. App. 3d 269", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562082 ], "pin_cites": [ { "page": "272" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0269-01" ] }, { "cite": "94 Ill. App. 3d 91", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128443 ], "pin_cites": [ { "page": "92" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0091-01" ] }, { "cite": "95 Ill. App. 3d 624", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 2803239 ], "weight": 2, "pin_cites": [ { "page": "983" }, { "page": "983" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0981-01" ] }, { "cite": "55 Ill. 2d 565", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2940450 ], "pin_cites": [ { "page": "568" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0565-01" ] }, { "cite": "114 Ill. 2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542355 ], "pin_cites": [ { "page": "521" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0518-01" ] }, { "cite": "113 Ill. 2d 286", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173903 ], "weight": 3, "pin_cites": [ { "page": "292-93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0286-01" ] }, { "cite": "26 U.S.C. \u00a7414", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1988, "pin_cites": [ { "page": "(p)" }, { "page": "(p)(5)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 651, "char_count": 15257, "ocr_confidence": 0.745, "pagerank": { "raw": 7.63454121895651e-08, "percentile": 0.4509500360831848 }, "sha256": "ac61ae39014fa5694564ead3bc1bc6fd72684bf7e4fff35a16b0d82c07011077", "simhash": "1:2abd25376a44c379", "word_count": 2468 }, "last_updated": "2023-07-14T17:11:09.339704+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF JAMES J. HANNON, Petitioner-Appellee and MARY LOU HANNON, Respondent-Appellant (The City of Aurora Firefighters\u2019 Pension Fund, Intervenor-Appellee)." ], "opinions": [ { "text": "JUSTICE GEIGER\ndelivered the opinion of the court:\nThe respondent wife, Mary Lou Hannon, appeals from the court\u2019s modified order dissolving her marriage with the petitioner husband, James J. Hannon. She challenges the order\u2019s provision which precludes her receipt of survivor benefits from the intervenor-appellee City of Aurora Firefighters\u2019 Pension Fund (the Fund).\nThe parties were married in 1956 and lived together until 1985. During the process of dissolving their marriage, they reached a negotiated settlement. On February 8, 1989, the court filed its original dissolution judgment including the parties\u2019 agreed \u201cQualified Domestic Relations Order\u201d (QDRO). The QDRO was based upon section 414(p) of the Internal Revenue Code (Revenue Code) (26 U.S.C. \u00a7414(p) (1988)). Under the agreed QDRO the wife received 50% of the husband\u2019s pension benefits, payable directly from the Fund. Also, the QDRO provided that the wife \u201cshall be treated as a surviving spouse with respect to [her] portion of the plan benefits.\u201d When the order was filed, the husband was already retired from employment as a fire fighter and receiving a retirement pension from the Fund.\nAfter the initial dissolution order was filed, and pursuant to the wife\u2019s motion to modify, the court granted the Fund leave to intervene and scheduled briefing and a hearing. The intervenor Fund argued that the parties could not effectively designate the wife as \u201csurviving spouse.\u201d\nAfter the hearing, the court found that under the Firefighters\u2019 Pension Fund provisions of the Illinois Pension Code (the Pension Code or the Code) (Ill. Rev. Stat. 1989, ch. 108x/2, par. 4 \u2014 101 et seq.), the parties could not designate the wife to receive survivor benefits following the dissolution. The court also rejected the wife\u2019s argument that section 414(p) of the Revenue Code mandated the possibility of that kind of designation because its provision allowing a QDRO to designate a former spouse as \u201csurviving spouse\u201d preempted contrary provisions of the Code. Under section 414(p), a QDRO may order that a former spouse shall receive surviving spouse benefits; the former spouse may, thus, deprive a current spouse of those benefits.\nBased on its findings, the court entered a new judgment with a modified QDRO. Under that new order, the wife received sole interest in 50% of the husband\u2019s total pension entitlement, so long as he receives fund benefits; the order provided that she would be paid directly from the Fund. The order further provided, basically, that the husband\u2019s survivor benefits were not marital property and that, in the event the husband predeceased the wife, they would be awarded not to the parties, but to the persons entitled to them under the Pension Code.\nThe wife brought this appeal. She argues generally that she should be entitled to survivor benefits from the Fund. Specifically, she argues that survivor benefits provided under the Code are marital property under the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act or the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503) and are distributable to her in a manner similar to retirement benefits. She also argues that the Pension Code itself should be read to include a former spouse as a \u201csurviving spouse\u201d to receive survivor benefits (Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 \u2014 114). Alternatively, the wife argues that section 414(p) of the Revenue Code, with its provision for a former spouse to be designated as \u201csurviving spouse\u201d and, thus, survivor benefit recipient, preempts the Pension Code\u2019s definition of \u201csurviving spouse.\u201d We find that the trial court\u2019s careful analysis was correct, and we affirm.\nWe first consider the wife\u2019s arguments relying upon the language of the Pension Code and the Marriage Act. In those arguments, the wife emphasizes that the husband\u2019s pension was earned during the parties\u2019 long-term marriage. Also, she emphasizes the general rule that pension rights accumulated during a marriage are marital property and subject to equitable division upon dissolution. (See In re Hackett (1986), 113 Ill. 2d 286.) The Fund properly acknowledges those factors.\nIn the portion of her argument focusing on the Marriage Act, the wife argues that the fire fighter surviving spouse benefits (Ill. Rev. Stat. 1989, ch. IO81/2, par. 4 \u2014 114(a)) should be subject to equitable distribution because they are included within the Act\u2019s section 503 definition of marital property (Ill. Rev. Stat. 1989, ch. 40, par. 503). She notes that section 503 of the Act defines \u201cmarital property\u201d as \u201call property acquired by either spouse subsequent to the marriage, except\u201d for a limited list of property categories which do not include pension benefits (Ill. Rev. Stat 1989, ch. 40, par. 503(a)).\nThe wife goes on to focus on the Pension Code. She asserts that section 4 \u2014 114 of the Code includes a former spouse as a \u201csurviving spouse.\u201d To reach that conclusion the wife examines references to \u201csurviving spouses\u201d made by portions of the Pension Code covering groups other than fire fighters. (Ill. Rev. Stat. 1989, ch. 1081/2, pars. 2 \u2014 121(b), 3-120, 7-154, 11-147(f), 12-123.1, 15-127, 17-121, 18 \u2014 128(b).) She also notes that the fire fighter pension provisions do not define \u201csurviving spouse\u201d and that pension statutes must be construed to favor the rights of pension beneficiaries. See Johnson v. Retirement Board of the Policemen\u2019s Annuity & Benefit Fund (1986), 114 Ill. 2d 518, 521.\nInitially, we reject the wife\u2019s argument that we should find from reading the Pension Code as a whole that the legislature intended that the term \u201csurviving spouse\u201d in Code section 4 \u2014 114(a) would include former spouses. As the the Fund correctly notes, an unambiguous statute shall be construed consistent with the ordinary and popularly understood meanings of its words. (See People v. Dednam (1973), 55 Ill. 2d 565, 568.) Given that fact, and the absence of any contrary suggestion in the legislative language, we find inescapably clear that section 4 \u2014 114(a)\u2019s reference to a \u201csurviving spouse\u201d includes only a person who is married to a pensioner and alive at the time of the pensioner\u2019s death. (See In re Estate of Morrissey (1976), 38 Ill. App. 3d 981, 983.) A former spouse, having had his marital relationship severed by dissolution, is not included in that designation. 38 Ill. App. 3d at 983.\nIn reaching our decision we specifically reject the wife\u2019s reliance on other pension provisions that mention surviving spouses. It is proper to compare separate statutes addressing the same subject to ascertain legislative intent. (Illinois-Indiana Cable Television Association v. Illinois Commerce Comm\u2019n (1973), 55 Ill. 2d 205, 220.) However, the language used in a statute is the primary source for determining the legislature\u2019s intent, and, where that language is certain and unambiguous, the courts\u2019 role is to enforce the statute as enacted. (People ex rel. Gibson v. Cannon (1976), 65 Ill. 2d 366, 369.) With reference to the fire fighters\u2019 pension code\u2019s clear and unambiguous use of the term \u201csurviving spouse,\u201d we find no reason to resort to dissection of the language used in separate pension provisions.\nSimilarly, we agree with the wife that there is no need to divine the legislative intent through analysis of fire fighter pension code section 4 \u2014 114(g). Subsection 4 \u2014 114(g) provides that \u201c[i]f a judgment of dissolution of marriage between a firefighter and spouse is judicially set aside subsequent to the firefighter\u2019s death, the surviving spouse is eligible for [a surviving spouse\u2019s] pension *** only if the judicial proceedings are filed within 2 years after the date of the dissolution *** and within one year after the firefighter\u2019s death and the board is made a party to the proceedings.\u201d Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 \u2014 114(g).\nAccording to the wife, section 4 \u2014 114(g) should not be construed to otherwise exclude former spouses from survivor benefits. Although we do not adopt the wife\u2019s precise analysis, we agree with her that reliance on section 4 \u2014 114(g) is inappropriate here. Because, as we have found, the fire fighter pension provisions are clear on the category of persons entitled to \u201csurviving spouse\u201d benefits, we find no reason to rely upon section 4 \u2014 114(g) to determine the legislature\u2019s intended meaning for the term \u201csurviving spouse.\u201d\nGiven the clear meaning of the Pension Code term \u201csurviving spouse,\u201d it is of secondary importance that \u201cmarital property,\u201d as defined in section 503 of the Marriage Act, has been held to include pension benefits, even those contingent upon future events and those which are not vested (see In re Marriage of Papeck (1981), 95 Ill. App. 3d 624; In re Marriage of Bodford (1981), 94 Ill. App. 3d 91, 92). As the Fund correctly notes, because pension rights originate not in the Marriage Act but in the Pension Code, analysis of their division upon dissolution must begin with the Pension Code. That fact emerges from the way other courts examining pension rights in dissolution proceedings have begun with analysis of pension provisions. See Papeck, 95 Ill. App. 3d at 629; see also In re Hackett (1986), 113 Ill. 2d 286, 292-93.\nUnlike retirement pension rights, which the courts clearly recognize as distributable marital property (see Hackett, 113 Ill. 2d 286), survivor pension rights are not generally defined as the property of the covered employee (see, e.g., Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 \u2014 109). Rather, they are generally defined under the Code as the property of the survivors of a deceased former employee (see, e.g., Ill. Rev. Stat. 1989, ch. 1081/2, par. 4 \u2014 114). Thus, they arise only upon the death of a pensioner, and, in the case of \u201csurviving spouse\u201d rights, they accrue to the spouse at the time of the employee\u2019s death.\nIn that regard, we briefly address Pension Code section 4 \u2014 115. Section 4 \u2014 115 provides that if a fire fighter marries subsequent to his retirement, his surviving spouse is entitled to survivor benefits if the couple was married at least 12 months before the employee\u2019s death. According to the wife, if after this dissolution the husband was remarried for at least 12 months so that his subsequent spouse met the requirement of section 4 \u2014 115, then predeceased his subsequent spouse, the subsequent spouse would be entitled to only 50% of the surviving spouse benefits. The initial 50% would be this former wife\u2019s entitlement.\nAs the wife observes, by her interpretation the Fund is exposed to no additional survivor pension expenses, that is except, we note, for possible litigation expenses to resolve parties\u2019 respective entitlements. Nevertheless, the wife\u2019s construction has no statutory support. The fire fighter pension provisions clearly designate an employee\u2019s \u201csurviving spouse,\u201d that is, the person married to him at the time of his death, to receive \u201csurviving spouse\u201d benefits. (See Ill. Rev. Stat. 1989, ch. IO81/2, pars. 4 \u2014 114, 4 \u2014 115.) That designation is clear and unqualified. The wife\u2019s interpretation, whereby an otherwise qualified \u201csurviving spouse\u201d could be deprived by a former spouse of his full statutory entitlement to survivor benefits, is clearly inconsistent with the Pension Code\u2019s language.\nAs we have already observed, by using the unambiguous term \u201csurviving spouse,\u201d the Illinois Firefighters\u2019 Pension Code provides for full survivor benefits for a \u201csurviving spouse\u201d and does not include a former spouse as \u201csurviving spouse\u201d for those benefits. (See In re Estate of Biewald (1984), 127 Ill. App. 3d 269, 272.) There is no basis to limit the statute\u2019s unambiguous, unqualified award of a \u201csurviving spouse\u201d share of survivor benefits to the spouse of the employee at the time of the employee\u2019s death.\nIn conclusion, we note that it is clear that an employee has a benefit from the anticipation of pension payments to his survivors, similar to his benefit from the expectation of retirement benefits. In that sense and because survivor benefits may be \u201cearned\u201d during a marriage which later is dissolved, survivor benefits are like the pension rights that courts divide as marital property. However, unlike other pension rights, survivor benefits have no possibility of becoming available for the employee's direct enjoyment. Rather, they are statutorily designated for survivors and not for the control of the employee. We determine that they are not subject to division as marital property.\nThe wife alternatively argues that if section 4 \u2014 114 does not include her, as a former spouse, within the category \u201csurviving spouse,\u201d then under the supremacy clause of the United States Constitution (U.S. Const., art. VI), section 414(p) of the Revenue Code preempts the \u201csurviving spouse\u201d limitation of section 4 \u2014 114 of the Pension Code. She relies on the fact that the Revenue Code provides that to the extent provided by a QDRO, \u201cthe former spouse of [a pension plan] participant shall be treated as a surviving spouse of such participant\u201d for purposes of survivor benefit distribution (26 U.S.C. \u00a7414(p)(5) (1988)).\nWe find no merit to the wife\u2019s preemption argument. As the Fund observes, unless a Federal act manifests an intent to preempt State law, we should not presume that preemption was intended. (See Praznik v. Sport Aero, Ine. (1976), 42 Ill. App. 3d 330, 340.) This record does not support preemption.\nThe Internal Revenue Code provisions upon which the wife relies are a portion of the Congress\u2019 requirements for \u201cqualified\u201d pension, profit, or stock bonus plans. A \u201cqualified\u201d plan is entitled to particular Federal income tax treatment. (26 U.S.C. \u00a7401 et seq. (1989).) Even if for the sake of argument we presume that the fire fighter pension provisions are covered by section 414(p) of the Revenue Code, we find no expression of congressional intent that the pension plan for fire fighters must be designated as a \u201cqualified\u201d plan and, thus, must comply with requirements for a plan to be \u201cqualified.\u201d\nThe pension code for fire fighters may exclude, as it has excluded, a \u201cformer spouse\u201d from its definition of \u201csurviving spouse.\u201d Federal tax consequences might result from that exclusion. However, we find no obstacle to Congress\u2019 purposes resulting from any conflict between the Illinois legislature\u2019s definition and the Revenue Code. (See Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 438-39.) Consequently, this is no case for State law preemption. Correspondingly, Congressional debate on the meaning of section 414(p) of the Revenue Code, to which the wife refers, has no bearing on a proper interpretation of the Illinois pension provisions for fire fighters.\nBased on the foregoing, we affirm the judgment of the circuit court of Kane county.\nAffirmed.\nREINHARD, P.J., and McLAREN, J., concur.", "type": "majority", "author": "JUSTICE GEIGER" } ], "attorneys": [ "Bruce A. Brown and Lisa E Rauch, both of Goldsmith, Thelin, Schiller & Dickson, of Aurora (Bruce Goldsmith, of counsel), for appellant.", "Atwell & Atwell, of Aurora, (Charles H. Atwell, Jr., of counsel), for appellee James J. Hannon." ], "corrections": "", "head_matter": "In re MARRIAGE OF JAMES J. HANNON, Petitioner-Appellee and MARY LOU HANNON, Respondent-Appellant (The City of Aurora Firefighters\u2019 Pension Fund, Intervenor-Appellee).\nSecond District\nNo. 2\u201490\u20140268\nOpinion filed January 8, 1991.\nBruce A. Brown and Lisa E Rauch, both of Goldsmith, Thelin, Schiller & Dickson, of Aurora (Bruce Goldsmith, of counsel), for appellant.\nAtwell & Atwell, of Aurora, (Charles H. Atwell, Jr., of counsel), for appellee James J. Hannon." }, "file_name": "0329-01", "first_page_order": 351, "last_page_order": 358 }