{ "id": 2600833, "name": "In re MARRIAGE OF JACK STRUNCK, Petitioner-Appellant and Cross-Appellee, and HELEN S. STRUNCK, Respondent-Appellee and Cross-Appellant", "name_abbreviation": "In re Marriage of Strunck", "decision_date": "1991-03-25", "docket_number": "No. 5\u201490\u20140409", "first_page": "76", "last_page": "79", "citations": [ { "type": "official", "cite": "212 Ill. App. 3d 76" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "481 N.E.2d 782", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "785" } ], "opinion_index": 0 }, { "cite": "135 Ill. App. 3d 105", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600137 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0105-01" ] }, { "cite": "75 Md. App. 364", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 4446492 ], "weight": 2, "pin_cites": [ { "page": "368" }, { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/md-app/75/0364-01" ] }, { "cite": "520 So. 2d 435", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7573864 ], "year": 1988, "pin_cites": [ { "page": "438" } ], "opinion_index": 0, "case_paths": [ "/so2d/520/0435-01" ] }, { "cite": "521 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "1276" } ], "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 739", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3511596 ], "year": 1987, "pin_cites": [ { "page": "742" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0739-01" ] }, { "cite": "520 N.E.2d 1214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "pin_cites": [ { "page": "1218" } ], "opinion_index": 0 }, { "cite": "166 Ill. App. 3d 954", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5073414 ], "year": 1988, "pin_cites": [ { "page": "960" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/166/0954-01" ] }, { "cite": "100 Stat. 3887", "category": "laws:leg_session", "reporter": "Stat.", "opinion_index": 0 }, { "cite": "10 U.S.C. \u00a71408", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1982, "pin_cites": [ { "page": "(a)(4)(E)" } ], "opinion_index": 0 }, { "cite": "490 U.S. 581", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605033 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/490/0581-01" ] } ], "analysis": { "cardinality": 473, "char_count": 6827, "ocr_confidence": 0.764, "pagerank": { "raw": 7.927148771952365e-08, "percentile": 0.46180298542501896 }, "sha256": "0f02521a5b231c471ff11feae0bff979b0f155ac5abfa64799c206f81767056c", "simhash": "1:a88a61e2a2cd36de", "word_count": 1129 }, "last_updated": "2023-07-14T15:59:33.778469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF JACK STRUNCK, Petitioner-Appellant and Cross-Appellee, and HELEN S. STRUNCK, Respondent-Appellee and Cross-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE RARICK\ndelivered the opinion of the court:\nJack Strunck appeals from .the judgment of the circuit court of Franklin County with respect to the distribution of the parties\u2019 marital property and payment of wife\u2019s attorney fees. Helen S. Strunck also appeals the distribution of the parties\u2019 property. We reverse and remand.\nJack and Helen S. Strunck were married for 44 years. Both are now in their sixties. Jack is retired from the military, receiving $1,556 a month in disability retirement pay. Helen is still working, earning $800 a month as a bank teller, but is unsure how much longer she can continue to work because of her health. During the marriage, Jack inherited substantial assets in the form of stock and real estate. He sold the stock and placed the proceeds into a joint account. He later reinvested some of the proceeds in various certificates of deposit (CDs) and bank accounts, many held in his name alone. The trial court awarded Jack $100,000 of the $253,000 proceeds as nonmarital property, the remainder being included in the parties\u2019 marital property. The court also determined Jack\u2019s disability pension had been preempted by the United States Supreme Court from being treated as marital property subject to division by a State court. Consequently, the court awarded Helen some 74% of the parties\u2019 marital property in lieu of maintenance. Jack was also ordered to pay Helen\u2019s attorney fees. Jack argues on appeal the court abused its discretion in dividing the parties\u2019 property and in ordering him to pay Helen\u2019s attorney fees in light of the disproportionate division. Helen contends on cross-appeal she is entitled to share in Jack\u2019s military pension and should be reimbursed or given an allowance for money spent on husband\u2019s non-marital property. We address only one contention at this time, i.e., whether Helen can share in Jack\u2019s military pension.\nWe initially note that in ruling upon the parties\u2019 assets, the trial court in its memorandum of decision specifically stated:\n\u201cThe evidence shows that Mr. Strunck receives $1,556.00 per month from a disability pension from his service in the U.S. Army. In a recent case of Mansell vs. Mansell, 104 L Ed [sic] 675, decided May 30, 1989, the United States Supreme Court holds that Congress, under 10 USCS \u00a71408 has preempted states from treating these disability benefits as marital property subject to division by a state court. This decision results in a substantial windfall to Mr. Strunck. Added to Mr. Strunck\u2019s good fortune is the further fact that this pension is exempt from all state, local and federal taxation (10 USC 3101 a), which results in an increase in after-tax income to him. These are all factors that this Court must take into account as a \u2018relevant economic circumstance\u2019 under Chapter 40[,] \u00a7503(d)(4).\u201d\nIt is true Mansell v. Mansell (1989), 490 U.S. 581, 104 L. Ed. 2d 675, 109 S. Ct. 2023, does hold that section 1408 of the Uniformed Services Former Spouses\u2019 Protection Act (10 U.S.C. \u00a71408 (1982)) excludes any military retirement pay waived by the retiree in order to receive veterans\u2019 disability benefits from being subject to division by a State court. This exclusion or exemption was limited, however, by an amendment which provides:\n\u201c(4) \u2018Disposable retired or retainer pay\u2019 means the total monthly retired or retainer pay to which a member is entitled less amounts which\u2014\n* * *\n(E) in the case of a member entitled to retired pay under chapter 61 of this title [disability retirement pay], are equal to the amount of retired pay of the member under that chapter computed using the percentage of the member\u2019s disability on the date when the member was retired (or the date on which the member\u2019s name was placed on the temporary disability retired list)[.]\u201d (10 U.S.C. \u00a7 1408(a)(4)(E) (1988), as added by Act of Nov. 14, 1986, Pub. L. 99\u2014661, Div. A, Title VI, Part D, \u00a7644(a), 100 Stat. 3887.)\nThis amendment limits the exemption of military disability retirement pay from State marital property laws in an amount related to the retired person\u2019s percentage of disability on the date of retirement. Consequently, all benefits paid as compensation for disability are the separate property of that individual, while any amounts paid in excess of disability compensation, even though labeled as such, would be part of \u201cdisposable retired or retainer pay\u201d which is subject to division as marital property. (See In re Marriage of Marshall (1988), 166 Ill. App. 3d 954, 960, 520 N.E.2d 1214, 1218; see also In re Marriage of Prockish (1988), 168 Ill. App. 3d 739, 742, 521 N.E.2d 1274, 1276; Russell v. Russell (La. App. 1987), 520 So. 2d 435, 438; Evans v. Evans (1988), 75 Md. App. 364, 368, 541 A.2d 648, 650.) While the record is somewhat confusing in this instance as to what portion of Jack\u2019s pension is attributable solely to disability, it would appear that 60% of his pension can be treated as marital property and therefore is subject to division by the trial court. We base this conclusion on an \u201cextract\u201d from the Department of the Army dated October 16, 1969, listing Jack\u2019s physical disability as 40% at the time of retirement. (A letter from the Department of Veteran Affairs dated December 19, 1989, lists Jack\u2019s disability rating as 80%, while this same letter sets forth the percentages of his service-connected conditions as totaling 120%.) Our interpreting section 1408(a)(4)(E) in this manner does not mean, however, that a court must divide that portion of the pension considered to be marital property. (See In re Marriage of Habermehl (1985), 135 Ill. App. 3d 105, 110, 481 N.E.2d 782, 785.) Rather, we are saying the court is not precluded from doing so as the amendment now stands. We recognize the trial court here specifically took into consideration Jack\u2019s pension in apportioning the parties\u2019 marital property, although erroneously classifying it as nonmarital property, believing it had no discretion to do otherwise. While we reiterate the trial court is not compelled to divide the pension between the parties, we do conclude that in this instance the trial court should reconsider its award in light of the present holding with respect to our interpretation of section 1408(a)(4)(E) of the Uniformed Services Former Spouses\u2019 Protection Act.\nFor the aforementioned reasons, we reverse the judgment of the circuit court of Franklin County and remand for further proceedings consistent with this opinion.\nReversed and remanded.\nGOLDENHERSH and CHAPMAN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE RARICK" } ], "attorneys": [ "J. Mark Maclin, of DuQuoin, for appellant.", "David R. Craig, of Herrin, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF JACK STRUNCK, Petitioner-Appellant and Cross-Appellee, and HELEN S. STRUNCK, Respondent-Appellee and Cross-Appellant.\nFifth District\nNo. 5\u201490\u20140409\nOpinion filed March 25, 1991.\nRehearing denied April 25, 1991.\nJ. Mark Maclin, of DuQuoin, for appellant.\nDavid R. Craig, of Herrin, for appellee." }, "file_name": "0076-01", "first_page_order": 98, "last_page_order": 101 }