{ "id": 3119443, "name": "In re MARRIAGE OF ROSE PAPECK, Petitioner-Appellee, and RAYMOND PAPECK, Respondent. - (RETIREMENT BOARD FIREMEN'S ANNUITY AND BENEFIT FUND, Respondent-Appellant.)", "name_abbreviation": "In re Marriage of Papeck", "decision_date": "1981-04-16", "docket_number": "No. 79-1630", "first_page": "624", "last_page": "631", "citations": [ { "type": "official", "cite": "95 Ill. App. 3d 624" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "66 Ill. B. J. 388", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1978, "opinion_index": 0 }, { "cite": "401 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3228131 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0311-01" ] }, { "cite": "393 N.E.2d 1065", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 96", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3273204 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0096-01" ] }, { "cite": "396 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 716", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3289762 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0716-01" ] }, { "cite": "410 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3175891 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/1044-01" ] }, { "cite": "407 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3192595 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0773-01" ] }, { "cite": "389 N.E.2d 963", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. App. 3d 722", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5578152 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/71/0722-01" ] }, { "cite": "386 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3305975 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0513-01" ] }, { "cite": "408 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3183881 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0654-01" ] }, { "cite": "126 Cal. Rptr. 633", "category": "reporters:state", "reporter": "Cal. Rptr.", "opinion_index": 0 }, { "cite": "544 P.2d 561", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "15 Cal. 3d 838", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2272274 ], "opinion_index": 0, "case_paths": [ "/cal-3d/15/0838-01" ] }, { "cite": "397 N.E.2d 511", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "519" } ], "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 653", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5602728 ], "weight": 2, "pin_cites": [ { "page": "663" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0653-01" ] }, { "cite": "388 N.E.2d 1289", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5575670 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0706-01" ] }, { "cite": "367 N.E.2d 1325", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 413", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811183 ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0413-01" ] }, { "cite": "412 N.E.2d 698", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5541800 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0959-01" ] }, { "cite": "402 N.E.2d 187", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "79 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069135 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/79/0074-01" ] } ], "analysis": { "cardinality": 844, "char_count": 18430, "ocr_confidence": 0.904, "pagerank": { "raw": 2.9414168424667937e-07, "percentile": 0.8481453938048126 }, "sha256": "4d16743ddd9a286f85a09d46118d92de679e3c636de824d4675ce347fc68a36e", "simhash": "1:93eda90f6b44dcc5", "word_count": 2976 }, "last_updated": "2023-07-14T16:14:33.414377+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF ROSE PAPECK, Petitioner-Appellee, and RAYMOND PAPECK, Respondent. \u2014 (RETIREMENT BOARD FIREMEN\u2019S ANNUITY AND BENEFIT FUND, Respondent-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE WILSON\ndelivered the opinion of the court:\nIn a supplemental judgment following the dissolution of marriage between Rose and Raymond Papeck, the circuit court ordered respondent Retirement Board Firemen\u2019s Annuity and Benefit Fund (fund) to restore to Mrs. Papeck (petitioner) $17,765.39 that she had previously paid into the fund on behalf of her husband. On appeal, respondent raises these issues: (1) the circuit court lacked jurisdiction to order the pension board to refund the money to petitioner; (2) the pension fund\u2019s monies cannot be attached or garnished; (3) the pension fund\u2019s monies cannot be refunded prior to termination of employment; (4) the circuit court erred in allowing provisions of the marriage dissolution act to prevail over the provisions of the Firemen\u2019s Pension Fund Act which exempt the fund from attachment or garnishment; and (5) the $17,765.39 was marital property. We reverse in part and remand.\nThe parties were married in July of 1977. Petitioner filed the dissolution petition on April 28, 1978, naming as a party defendant the Chicago Fire Department as stakeholder of the $17,765.39 which she had paid into the pension fund during the marriage. The circuit court denied the pension fund\u2019s motion to dismiss. On December 29, 1978, the court entered a judgment dissolving the parties\u2019 marriage.\nA hearing on the parties\u2019 property rights was held on July 13,1979, at which time petitioner moved for entry of a supplemental judgment against the pension fund. She contended that the money she paid into the fund was her nonmarital property, which should be directly refunded to her. The pension board filed its opposition to the motion, contending that there was a strict statutory prohibition against attachment or garnishment of pension funds. Petitioner\u2019s responsive petition alleged that the pension board\u2019s discretionary powers empowered it to refund her money.\nFollowing oral arguments on the motion on August 28, 1979, the trial court ruled in favor of petitioner and entered an order directing the pension fund to pay her the money. Following the denial of its motion to vacate the August 25 supplemental judgment, the pension board brought this appeal.\nOpinion\nThe dispositive issue in this case is whether the circuit court, in distributing property pursuant to a marriage dissolution action, has the power to order the firemen\u2019s retirement fund to refund money paid into it by a nonemployee spouse. We believe that it does not.\nWe first consider respondent\u2019s challenge to the trial court\u2019s jurisdiction. The Firemen\u2019s Annuity and Benefit Fund Act (Act) (Ill. Rev. Stat. 1979, ch. 108\u00bd, pars. 6 \u2014 101 through 6 \u2014 223) governs the creation and administration of the fund. Exclusive original jurisdiction over all matters relating to the fund is vested in the Retirement Board (Ill. Rev. Stat. 1979, ch. 108\u00bd, par. 6 \u2014 185) and judicial review of final administrative decisions is governed by the Administrative Review Act. (Ill. Rev. Stat. 1979, ch. 108\u00bd, par. 6 \u2014 222; see ch. 110, pars. 264 through 279.) Respondent\u2019s first argument is that the court preempted the Board\u2019s express jurisdictional power, under section 6 \u2014 185, to determine all claims involving the fund. We agree that the Board is primarily responsible for the fund\u2019s administration. We must distinguish, however, the circuit court\u2019s jurisdiction over dissolution actions. It is clearly established that Rlinois circuit courts have jurisdiction to hear all justiciable issues. (Ill. Const. 1970, art. VI, \u00a79; People v. Valdez (1980), 79 Ill. 2d 74, 402 N.E.2d 187; In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 412 N.E.2d 698.) In the instant dissolution action, the trial judge had the power to equitably divide the parties\u2019 property pursuant to section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503). Therefore, the trial court was within its discretion in determining that the money which petitioner paid into her spouse\u2019s retirement fund was property that should be allocated to her upon the dissolution of the marriage. Nevertheless, we believe that the trial court was statutorily precluded from ordering the Board to pay petitioner $17,765.39 from the fund. We arrive at this conclusion after considering sections 6 \u2014 213 and 6 \u2014 158 of the Act, as well as pertinent case law.\nSection 6 \u2014 213 provides, in pertinent part:\n\u201cAll pensions, annuities, refunds and disability benefits granted under this Article and every portion thereof, are exempt from attachment or garnishment process and shall not be seized, taken, subjected to, detained, or levied upon by virtue of any execution or any process or proceeding whatsoever issued out of or by any court in this State, for the payment and satisfaction in whole or in part of any debt, damage, claim, demand, or judgment against any pensioner, annuitant, applicant for a refund or other beneficiary hereunder.\n# # e\nThe board, in its discretion, however, may pay to the wife of any aforesaid person, such proportion of her husband\u2019s annuity, pension, refund or disability benefit as any court of equity may order, or such an amount as the board may consider necessary for her support or for the support of herself and the children, in the event of his failure to provide such support.\u201d\nThe first paragraph of section 6 \u2014 213 explicitly precludes creditors from reaching pensions, refunds, and other benefits under the Act. Our supreme court upheld the constitutionality of this provision against the challenge that it violated the equal protection clause of the constitution by denying to creditors the same rights they have against nonexempt private pensions. (Friedman & Rochester, Ltd. v. Walsh (1977), 67 Ill. 2d 413, 367 N.E.2d 1325.) The court discussed several distinctions between public and private pension funds which justify the legislature's immunization of public pension funds from garnishment and attachment.\nIn the pending case, respondent urges us to apply the Friedman court\u2019s reasoning to bar petitioner\u2019s claim. If it is forced to comply with the trial court\u2019s order, respondent argues, the fund would become vulnerable to numerous similar claims. This would impair the fund\u2019s investment freedom because it would need to reserve money to satisfy judgments against it. Petitioner believes, however, that the anti-attachment provision is inapplicable to her because of her status as a divorced wife, as distinguished from a third-party creditor. To support her contention, she cites the language of section 6 \u2014 213 which grants the Board discretion to make support payments to the wife of a recipient of pension benefits, \u201cas any court of equity may order.\u201d She argues that since the Board is authorized to pay support to an employee\u2019s wife, it must also be authorized to repay money received from an ex-wife. She contends that the fund\u2019s freedom to invest money would be affected to the same extent whether the Board pays a wife or an ex-wife.\nWe find petitioner\u2019s argument unpersuasive. The language which empowers the Board to award support payments to a pensioner\u2019s wife and children is limited to \u201cthe event of his failure to provide such support.\u201d The logical interpretation of this exception to the anti-attachment language is to permit the Board, either in its discretion or pursuant to an equitable order from a court, to pay a portion of a pensioner\u2019s benefits directly to a spouse in such extraordinary circumstances that he fails to support her during an ongoing marriage. In such a situation, the legislature undoubtedly intended to forestall any attempts to insulate an employee\u2019s pension benefits from being used to satisfy his legal obligation to support his family. We therefore decline petitioner\u2019s invitation to extend this narrow family support exception to include her claim as an ex-wife who seeks to recover a direct refund of money she voluntarily paid in to reinstate her former husband in the pension plan.\nUnder the Act, moreover, a refund is only available to an employee under certain conditions. (Ill. Rev. Stat. 1979, ch. 108\u00bd, par. 6 \u2014 158.) Section 6 \u2014 158(b) states that a fireman, after leaving the service, \u201cshall be entitled to refund until he re-enters service or until his annuity is fixed.\u201d In the instant case, Papeck is not presently entitled to a refund because he is employed as a fireman. If he has no rights to a refund under section 6 \u2014 158, it is difficult to justify permitting his former wife, a nonemployee spouse, to attain greater rights than he.\nThe fund is not in the position of a stakeholder, liable to one or more claimants for monies held on deposit. Rather, the fund\u2019s receipts and disbursements are strictly governed by the detailed statutory scheme. The provision which exempts the fund from the reach of creditors reflects the legislature\u2019s desire to preserve the integrity of the fund so as to protect its beneficiaries \u2014 the employees and their families. (See Friedman.) We are not suggesting that petitioner has no right to recover the money directly from her former husband. We hold, however, that the claim she asserts against the fund itself is barred by section 6 \u2014 213; in substance, it is the claim of a creditor.\nWe caution that our holding is not to be construed as affecting the rights of nonemployee spouses to receive a proportion of their husband\u2019s pension benefits as part of the marital property. (See In re Marriage of Musser (1979), 70 Ill. App. 3d 706, 388 N.E.2d 1289; In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.) Under Illinois law, pension benefits are property interests rather than mere \u201cexpectancies,\u201d regardless of whether they are matured, vested, or nonvested, contributory or noncontributory. (Hunt.) In accordance with several other jurisdictions, we construe pension rights as \u201cdeferred compensation\u201d in the nature of contract rights, subject to the terms of the particular plan. (In re Marriage of Brown (1976), 15 Cal. 3d 838, 544 P.2d 561, 126 Cal. Rptr. 633; Hunt; Musser.) Thus, even if pension benefits are contingent upon future events and may never become payable, they are not reduced to mere \u201cexpectancies.\u201d (Brown; Hunt.) The significance of this judicial recognition that pension interests are \u201cproperty\u201d is this: The spouse of the plan participant, upon dissolution of the marriage, obtains an actual co-ownership interest in the benefits as marital property. Thus a divorced wife is not in the position of a mere \u201ccreditor,\u201d and the anti-attachment provision of the Firemen\u2019s Act does not bar her claim to a certain proportion of the benefits. (See In re Marriage of Uluhogian (1980), 86 Ill. App. 3d 654, 408 N.E.2d 107 (anti-attachment provision of Illinois Pension Code does not prohibit consideration of public pension funds as marital property); Hunt (\u201canti-assignment\u201d provision of Federal Employment Retirement Income Security Act does not prevent private pension plans from being treated as marital property for purposes of marriage).) As we stated in Hunt, the trial court will determine the present value of the pension interest allocable as marital property and may award it to the employee spouse, giving the nonemployee spouse an offsetting award from other marital property. If present value is too difficult to determine, or if there is a lack of other marital property to award the nonemployee spouse, the trial court has the discretion to allocate to each spouse \u201can appropriate percentage of the pension to be paid \u2018if, as and when\u2019 the pension becomes payable.\u201d Hunt, 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519.\nFrom the foregoing analysis it becomes clear that the property distribution provision of the Marriage and Dissolution of Marriage Act does not conflict with the anti-attachment provision of the Firemen\u2019s Act. When pension benefits are credited to a nonemployee spouse pursuant to a dissolution proceeding the fund itself is not affected. Nor are the husband\u2019s individual rights in the account altered, because he still is entitled to his portion, as marital property.\nRespondent\u2019s final contention is that the court erred in classifying the $17,765.39 as nonmarital property. According to respondent, this money was transmuted into a marital asset when petitioner paid it into the pension fund. The money combined with Raymond Papeck\u2019s services and seniority in the fire department and became a marital asset to be shared between the parties. Consequently, respondent argues, petitioner is not entitled to recover her share as nonmarital property.\nWe disagree with respondent\u2019s argument. Section 503 of the Marriage and Dissolution of Marriage Act lists six types of nonmarital property, including \u201cproperty acquired in exchange for property acquired before the marriage.\u201d (Ill. Rev. Stat. 1979, ch. 40, par. 503(a)(2).) The record indicates that the source of the money was proceeds from the sale of real estate petitioner owned prior to the marriage. She claims to have intended only to lend the money to her husband, to permit his reinstatement in the firemen\u2019s pension plan. Moreover, the marriage lasted only nine months before petitioner filed for dissolution. It is clear that under these facts, the trial court could have determined that the petitioner\u2019s money retained its \u201cnonmarital\u201d character. While we agree that in certain circumstances the commingling of nonmarital and marital assets may indicate an intention to treat the property as \u201cmarital property\u201d (see Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 386 N.E.2d 517 (joint savings account)), in other circumstances the court may award parties refunds of their identifiable, nonmarital assets which they have exchanged for jointly held property. In re Marriage of Key (1979), 71 Ill. App. 3d 722, 389 N.E.2d 963 (evidence established that portion of wife\u2019s contribution of nonmarital assets to marital home was not intended as a gift to her husband and would thus be refunded to her upon dissolution of the marriage). See also In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 407 N.E.2d 1045 (full value of marital home was properly classified as marital property and awarded to wife; husband was not entitled to refund of his nonmarital funds used to pay for it); In re Marriage of Lee (1979), 88 Ill. App. 3d 1044, 410 N.E.2d 1183 (nonmarital residence is transmuted to marital property where there has been a significant contribution of marital funds to the property). Cf. In re Marriage of Pederson (1979), 77 Ill. App. 3d 716, 396 N.E.2d 659 (in view of short duration of the marriage, trial court did not abuse its discretion in awarding wife a share of proceeds from sale of marital home which represented amount by which her nonmarital contribution to purchase of the house exceeded husband\u2019s).\nIn the pending case the trial court determined that petitioner was entitled to the full amount of her contribution to the fund. As the trial court noted, it could award her the entire $17,765.39 whether the money was classified as \u201cnonmarital\u201d or \u201cmarital.\u201d Under the Marriage and Dissolution of Marriage Act, it is possible for one party to receive all the marital property as his or her \u201cjust proportion,\u201d rather than one-half or some other percentage. (See In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328.) In light of the circumstances of this case, however, we do not believe that the court abused its discretion in classifying the money as nonmarital property.\nAs we have held, petitioner cannot recover this money from the firemen\u2019s retirement fund. She may, however, pursue whatever remedies she may have against Raymond Papeck, as his creditor, or petition the trial court to enter an appropriate order for repayment.\nFor the foregoing reasons we conclude that the trial court erred in ordering the firemen\u2019s retirement fund to refund petitioner\u2019s money. We must therefore reverse that part of the order. We affirm the court\u2019s finding that the money is petitioner\u2019s nonmarital property, and remand this cause for proceedings consistent with this opinion.\nAffirmed in part.\nReversed in part and remanded.\nLORENZ and MEJDA, JJ., concur.\nPetitioner contends that she only lent this money to her former husband, who agreed to repay her at any time she deemed it necessary. Her payment of $17,765.39 reinstated him in the Fireman\u2019s Retirement and Annuity program. See Ill. Rev. Stat. 1979, ch. 108\u00bd, par. 6 \u2014 159.\nThe trial court considered the $17,765.39 to be petitioner\u2019s \u201cnonmarital\u201d property which she received from the sale of real estate she had owned .before her marriage to Raymond Papeck. The court noted, however, that even if it were classified as \u201cmarital property\u201d under section 503 of the Marriage and Dissolution of Marriage Act, the full amount of money could be awarded to her as her \u201cjust proportion.\u201d (See Ill. Rev. Stat. 1979, ch. 40, par. 503(c).) Therefore, the court concluded that the result would be the same regardless of how the money was classified. For a discussion of the practical and legal effects of classifying property as \u201cmarital\u201d or \u201cnonmarital,\u201d see Kalcheim, Marital Property, Tax Ramifications, and Maintenance: Practice Under the Illinois Marriage and Dissolution of Marriage Act \u2014 A Comparative Study, 66 Ill. B. J. 388 (1978).\nSee Ill. Rev. Stat. 1979, ch. 40, par. 1101, which imposes liability on the party who refuses to support his spouse or minor children. A defendant under this section can be charged with a Class A misdemeanor, in addition to being held civilly liable to the Illinois Department of Public Aid for the amount of general assistance provided to his spouse. See also par. 1106 (court may enter a temporary support order assigning part of a defendant\u2019s salary, in lieu of other security); par. 1111 (actions for a wife\u2019s support can be prosecuted during an ongoing marriage).", "type": "majority", "author": "Mr. JUSTICE WILSON" } ], "attorneys": [ "William R. Quinlan, Corporation Counsel, of Chicago (Robert R. Retke and Regan D. Ebert, Assistant Corporation Counsel, of counsel), for appellant.", "J. Roger Sewell, Seymour C. Axelrood, and Paul Ben Axelrood, all of Sewell & Axelrood, of Chicago, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF ROSE PAPECK, Petitioner-Appellee, and RAYMOND PAPECK, Respondent. \u2014 (RETIREMENT BOARD FIREMEN\u2019S ANNUITY AND BENEFIT FUND, Respondent-Appellant.)\nFirst District (5th Division)\nNo. 79-1630\nOpinion filed April 16, 1981.\nWilliam R. Quinlan, Corporation Counsel, of Chicago (Robert R. Retke and Regan D. Ebert, Assistant Corporation Counsel, of counsel), for appellant.\nJ. Roger Sewell, Seymour C. Axelrood, and Paul Ben Axelrood, all of Sewell & Axelrood, of Chicago, for appellee." }, "file_name": "0624-01", "first_page_order": 646, "last_page_order": 653 }