In re Marriage of Winter

FIRST DIVISION

November 24, 2008

No. 1-07-0619

In re THE MARRIAGE OF ) Appeal from the

) Circuit Court of

ANA L. WINTER, ) Cook County.

)

Petitioner-Appellee, )

)

and ) No. 98 D 11073

)

JEROME WINTER, )

)

Respondent-Appellant ) The Honorable

) Mark Lopez,

(Public School Teachers' Pension and ) Judge Presiding.

Retirement Fund of Chicago, )

Intervenor). )

JUSTICE GARCIA delivered the opinion of the court.

In 2005, a judgment of dissolution of marriage was entered

providing for the division of the marital portion of the

respondent's pension from the Public School Teachers' Pension &

Retirement Fund of Chicago. However, the respondent, a resident

of England, failed to direct the Pension Fund to pay the

petitioner her share of the marital portion of the pension. In

2006, the petitioner filed a petition seeking a "freeze" on the

respondent's pension payments until she was paid her share in

accordance with the dissolution judgment. The circuit court

entered injunctive relief against the Pension Fund.

No. 1-07-0619

In this interlocutory appeal, we must now answer whether the

circuit court had authority to enter an order against the public

pension fund directing that the member's benefits be paid to a

third-party trustee, without a qualified Illinois domestic

relations order (QILDRO). As a preliminary question, we must

answer whether the trustee and pension fund, both nonparties,

were entitled to prior notice and the opportunity to be heard

before the petitioner could be granted relief.

We hold that under the unusual facts of this case, the

trustee and the pension fund were not entitled to prior notice

and an opportunity to be heard before preliminary injunctive

relief was granted. Because the record supports the circuit

court's determination that no other effective relief was

available, we conclude the circuit court properly exercised its

broad equity powers to order the pension fund to issue the

pension checks in care of the trustee. We find no authority,

however, to support that portion of the circuit court's order

directing that the checks be made payable to the trustee.

Accordingly, we affirm in part, vacate in part, and remand with

instructions.

BACKGROUND

The petitioner, Ana L. Winter, and the respondent, Jerome

Winter, were married in 1980 and separated in 1998. On February

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25, 2005, the circuit court entered a judgment dissolving the

parties' marriage. No appeal was taken.

The dissolution judgment reflects the trial court's

difficulty in dividing the marital assets. The majority of the

documentation that would have aided the court in identifying and

valuing the assets was with Mr. Winter in England, where he

"fled" with the parties' child. Mr. Winter had been "wholly

responsible for the parties' financial matters during the

marriage."

Mr. Winter was represented by counsel in the dissolution

action, but never personally appeared in court, presented

testimony or gave a deposition. The trial court entered various

orders directing Mr. Winter to provide specific documentation

regarding the marital assets. The trial court rejected the

majority of Mr. Winter's responses as self-serving and

irrelevant.

The trial court divided those marital assets it could

identify, including Mr. Winter's pension with the Public

Teacher's Pension and Retirement Fund of Chicago (Pension Fund).

The judgment provides,

"17. ANA is further awarded the marital

portion of JEROME's pension with the [Pension

Fund]. ANA's marital portion shall be

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No. 1-07-0619

divided by a qualified domestic relations

order.1 JEROME shall obtain the necessary

documents from the Pension Administrator in

order to enter the qualified domestic

relations order."

The trial court reserved jurisdiction for all postjudgment

proceedings.

On February 21, 2006, Ms. Winter filed a "Petition to Freeze

Pension Funds." Ms. Winter alleged Mr. Winter was receiving

pension funds but she was not because Mr. Winter had failed to

submit the necessary documents for the entry of the QDRO in

violation of the dissolution judgment. Ms. Winter requested the

court freeze Mr. Winter's pension "until the required documents

are executed for Ms. Winter to receive her fair share," "until

further order of court," or "until the Court determines the

1

Because the pension fund involved is a public fund, the

judgment incorrectly identified the order as a "qualified

domestic relations order" (QDRO). See In re Marriage of Carlson,

269 Ill. App. 3d 464, 466-67, 646 N.E.2d 321 (1995) (explaining a

QDRO is "a creature" of the federal Employee Retirement Income

Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq. (1988)) and

does not apply to public pension plans).

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No. 1-07-0619

extent that Jerome's share should be paid to Ana."

In August 2006, Mr. Winter filed his "Response to Petition

to Freeze Pension Funds." In his response, Mr. Winter admitted

he was receiving payments from the Pension Fund and that Ms.

Winter was not. Mr. Winter argued that a "freeze" would diminish

or impair his pension, which is protected against such actions by

the Illinois Constitution and Pension Code (40 ILCS 5/1-101 et

seq. (West 2006)). Mr. Winter argued that the Constitution and

Pension Code deprived the trial court of authority to enjoin the

Pension Fund, a nonparty. Finally, Mr. Winter argued the

dissolution judgment was unenforceable as his pension is not

subject to a QDRO.

On February 2, 2007, in an eight-page ruling, which forms

the basis of this appeal, the trial court amended the dissolution

judgment to reflect a QILDRO, applicable to public pensions,

while retaining Mr. Winter's judgment obligation to obtain the

necessary documents from the Pension Fund for the entry of such

an order. The court recognized that because Mr. Winter's

membership in the Pension Fund predated the enactment of section

1-119 of the Pension Code (40 ILCS 5/1-119 (West 2006)), which

provides for QILDROs, Mr. Winter's consent was required before a

QILDRO could be entered. See In re Marriage of Menken, 334 Ill.

App. 3d 531, 778 N.E.2d 281 (2002).

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The trial court also discussed the "triangular approach"

used to ensure a former spouse's receipt of a portion of pension

benefits as marital property to which the former spouse is

entitled. See, e.g., In re Marriage of Roehn, 216 Ill. App. 3d

891, 895, 576 N.E.2d 560 (1991). Under this approach, the

payment of pension benefits from the fund to the member is

unaffected; the focus is on the member's obligation to pay the

former spouse her share of the pension benefits directly in

accordance with the dissolution judgment. Compliance is

compelled through the court's contempt powers. The trial court

concluded the triangular approach as it was approved in Roehn was

unworkable because Mr. Winter was a permanent resident of

England, having never personally participated in the litigation.

The court lacked "any hope that Jerome will ever set foot in the

State of Illinois again."

Because the entry of a QILDRO was not possible without Mr.

Winter's consent and the court's contempt powers could not reach

Mr. Winter in England, the trial court concluded "Ana ha[d] no

adequate remedy at law" and "the entry of injunctive relief" was

appropriate. The court's order provides,

"11. Accordingly, given the constraints

under which this Court is required to comply

both by statute and case law in providing

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No. 1-07-0619

relief to Ana in obtaining the marital

portion of Jerome's pension[,] [t]he Court

finds that injunctive relief be ordered

against the 'Pension Fund' from issuing any

future pension benefits payments directly to

Jerome. Additionally, this Court orders the

'Pension Fund' to send all future payments of

Jerome's pension benefits to Richard H.

Marcus, as attorney and trustee for Jerome,

until further order of this Court.

12. Attorney Marcus shall then deposit

all sums received from the 'Pension Fund'

directly to his 'IOLTA' account pending

further order of this court."

In a later portion, the court orders:

"1. [The Pension Fund] is enjoined from

issuing any further pension benefits to

Jerome Winter until further order of this

Court.

2. That Jerome is enjoined from

transferring, encumbering, or receiving any

lump sum payments or otherwise modifying his

pension benefits from the [Pension Fund]

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No. 1-07-0619

without leave of this Court.

3. The [Pension Fund] shall issue all

of Jerome's future pension benefit payments

payable to Richard H. Marcus as attorney and

trustee for Jerome Winter." (Emphasis

added.)

After Mr. Winter timely filed a notice of appeal, the

Pension Fund filed a motion to intervene in the trial court. The

trial court dismissed the motion for lack of jurisdiction. After

briefs were filed here, we granted the Pension Fund's motion to

intervene.

ANALYSIS

I. Sufficiency of the Record

We first address Ms. Winter's contention that the record

before us is insufficient to decide the merits of the appeal and

therefore the appeal must be dismissed. Ms. Winter argues the

absence of a transcript or bystander's report of the trial court

proceedings below means we must presume the trial court's ruling

was correct, citing Foutch v. O'Bryant, 99 Ill. 2d 389, 459

N.E.2d 958 (1984), as authority.

We disagree. In Foutch, the supreme court addressed whether

there is a "sufficiently complete record of the proceedings at

trial to support a claim of error." (Emphasis added.) Foutch, 99

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No. 1-07-0619

Ill. 2d at 391-92. The sufficiency of the record to address a

claim of error turns on the question presented on appeal. In

Foutch, the question was whether the trial court abused its

discretion in denying the motion to vacate an ex parte judgment.

Foutch, 99 Ill. 2d at 391-92. Absent a transcript of the hearing

below where evidence was heard, review for an abuse of discretion

of the trial court's denial of the motion, where no specific

grounds for the denial were given, was foreclosed. Foutch, 99

Ill. 2d at 392.

In this case, the trial court's written order sets forth its

reasoning. Further, because we determine the central issue--

whether the circuit court has authority to order the Pension Fund

to send payments to a trustee--presents a question of law, our

review is de novo. In re Marriage of Best, 228 Ill. 2d 107, 116,

886 N.E.2d 939 (2008) (questions of law are reviewed de novo).

The record here is sufficiently complete to address the merits of

the appeal; Foutch is not controlling.

II. Injunctive Relief Against Nonparties

A. Preliminary Injunction

Mr. Winter contends the relief granted was "defective as a

matter of law" because it is not clear whether it is in the

nature of "a temporary restraining order, preliminary injunction

or permanent injunction." Ms. Winter asserts it is a permanent

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No. 1-07-0619

injunction.

An injunction is an equitable remedy that requires the

person " 'to whom it is directed to do or refrain from doing a

particular thing.' " In re A Minor, 127 Ill. 2d 247, 261, 537

N.E.2d 292 (1989), quoting Black's Law Dictionary 705 (5th ed.

1983). The trial court's order prohibited the Pension Fund from

paying benefits to Mr. Winter and mandated that the Pension Fund

send Mr. Winter's pension benefits to attorney Marcus, payable to

Mr. Marcus as trustee of Mr. Winter. The order imposed a

constructive trust over the pension benefits.

The order makes clear that the injunction is not permanent

in nature. "A permanent injunction is of unlimited duration and

'alters the status quo,' meaning that it adjudicates rights

between the interested parties." Skolnick v. Altheimer & Gray,

191 Ill. 2d 214, 222, 730 N.E.2d 4 (2000), citing Smith v.

Goldstick, 110 Ill. App. 3d 431, 438, 442 N.E.2d 551 (1982). As

Mr. Winter asserts, the order does not provide a final resolution

of the claims at issue; at some point the collected funds must be

disbursed. We agree. The injunctive relief granted is

preliminary in nature, subject to further proceedings before the

trial court as provided in the order. This is consistent with

the appeal arising under Supreme Court Rule 307(a)(1) (188 Ill.

2d R. 307(a)(1)), which provides for review of interlocutory

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No. 1-07-0619

injunctions. See Skolnick, 191 Ill. 2d at 222 (permanent

injunctions not appealable under Rule 307).

A domestic relations court is authorized to enter

preliminary injunctions during dissolution proceedings in order

to preserve the status quo of the marital estate. 750 ILCS

5/501(a) (West 2006); In re Marriage of Hartney, 355 Ill. App. 3d

1088, 1089, 825 N.E.2d 759 (2005). A preliminary injunction is

proper where (1) the moving party has a clear and ascertainable

right in need of protection, (2) the moving party will suffer

irreparable harm without relief, (3) there is no adequate remedy

at law, and (4) there is a substantial likelihood the moving

party will succeed on the merits of the case. Hartney, 355 Ill.

App. 3d at 1089.

Mr. Winter argues the court's order is an improper

preliminary injunction because (1) it alters the status quo, and

(2) it does not provide for a hearing and final disposition on

the merits.

In Illinois, " '[t]he status quo to be preserved by a

preliminary injunction is the last, actual, peaceable,

uncontested status which preceded the pending controversy.' " In

re Marriage of Petersen, 319 Ill. App. 3d 325, 336, 774 N.E.2d

877 (2001), quoting Postma v. Jack Brown Buick, Inc., 157 Ill. 2d

391, 397, 626 N.E.2d 199 (1993).

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No. 1-07-0619

Setting aside the highly contested proceedings that preceded

the entry of the judgment of dissolution of marriage, without an

appeal following the entry of the judgment, the rights of the

parties embodied in the judgment are uncontested. Mr. Winter's

pension benefits earned during the course of the marriage are

marital property.

Mr. Winter is entitled to his pension benefits no more so

than Ms. Winter is entitled to her share of Mr. Winter's pension

benefits awarded to her as marital property. But as Mr. Winter

conceded in his response to the petition to freeze, he was

receiving pension benefits, Ms. Winter was not. It is the

"status quo" at the time of the entry of the dissolution of

marriage that the circuit court's order sought to maintain by its

February 2007 order. See Petersen, 319 Ill. App. 3d at 337

(status quo to be maintained is "the prevention of dissipation or

destruction" of marital property). By enjoining the Pension Fund

from paying Mr. Winter benefits, a portion of which he is not

entitled to, and ordering the benefits be kept in trust until the

benefits can be apportioned between the co-owners, the court

prevented Mr. Winter from dissipating assets previously

adjudicated to be marital property. In accordance with the

judgment of dissolution of marriage, a portion of Mr. Winter's

pension benefits as marital property is now separately owned by

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No. 1-07-0619

Mr. Winter and Ms. Winter. The manner of dividing that

separately owned property remains to be resolved.

Accordingly, we reject Mr. Winter's argument that the

court's order fails because it grants an injunction "for an

indefinite period of time without providing a mechanism for a

hearing and final disposition." The trial court ordered attorney

Marcus to act as a trustee "pending further order." Further

proceedings are intended and, but for this interlocutory appeal

by Mr. Winter, might well have concluded.

B. Relief Against Nonparties

Mr. Winter contends the trial court lacked authority to

issue injunctive relief against attorney Marcus and the Pension

Fund because both are nonparties to the litigation. Ms. Winter

questions Mr. Winter's standing to assert the interests of

attorney Marcus and the Pension Fund and points out that neither

attorney Marcus nor the Pension Fund filed a notice of appeal.

Section 11-102 of the Code of Civil Procedure prohibits the

grant of a preliminary injunction without notice of the

application to "the adverse party." 735 ILCS 5/11-102 (West

2006). In this case, there is no question that Mr. Winter is the

"adverse party" and that he was served notice of Ms. Winter's

petition to freeze his pension funds. Under section 11-102, the

issue becomes whether the Pension Fund should be deemed an

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No. 1-07-0619

"adverse party," entitling it to notice of the application for

injunctive relief.2

Ms. Winter argues the Pension Fund cannot be an adverse

party because it cannot sue or be sued and therefore is not

entitled to notice. See In re Marriage of Krane, 288 Ill. App.

3d 608, 681 N.E.2d 609 (1997). In Krane, this court struck

provisions in a judgment of dissolution of marriage that directed

the same pension fund involved in this case to give notice to the

former spouse, a nonmember of the fund, of any change in "the

depository of *** pension payments and *** any cost of living

adjustment in the pension payments." Krane, 288 Ill. App. 3d at

618. We reasoned the fund was "not an individual or municipal

corporation, but merely an aggregation of assets; there [was] no

statutory provision for the [f]und to sue or be sued." Krane,

288 Ill. App. 3d at 618.

While the Pension Fund itself may not sue or be sued, it is

clear that the proper party here is "the Board of the Fund." 40

ILCS 5/17-147 (West 2006) ("Any legal proceedings necessary for

2

Because the Pension Fund and attorney Marcus occupy the

same position as nonparties to the litigation and attorney Marcus

did not seek to intervene, we address this issue in terms of the

Pension Fund only.

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No. 1-07-0619

the enforcement of the provisions of this Article shall be

brought by and in the name of the Board of the Fund"). Where a

misnomer occurs, "the name of any party may be corrected at any

time, before or after judgment, on motion, upon any terms and

proof that the court requires." 735 ILCS 5/2-401(b) (West 2006).

The misnomer aside, the law is clear that an injunction may

be binding on a nonparty. " ' "To render a person amenable to an

injunction it is not necessary that they should have been a party

to the suit." ' " In re A Minor, 127 Ill. 2d at 263, quoting

O'Brien v. People ex rel. Kellogg Switchboard & Supply Co., 216

Ill. 354, 366, 75 N.E. 108 (1905), quoting J. High, Injunctions

§1444. Because the circuit court's order maintained the status

quo to the entry of the judgment of dissolution, we conclude the

lack of prior notice to the Pension Fund does not render the

court's injunctive order defective.

The real issue before us, as framed by the Pension Fund as

intervenor, is whether the circuit court's injunctive order

resulted in a "deviation from the Illinois Pension Code."

Because no party questions that this raises a question of law,

reviewed de novo, we proceed to the substantive merits of the

claims by the Pension Fund and Mr. Winter that the order is

inconsistent with the Illinois Pension Code and unsupported by

case law.

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No. 1-07-0619

III. Equity Powers of the Court

Mr. Winter and the Pension Fund contend the trial court's

order violates the Pension Code.3 In essence, the argument is

that the Pension Code bars the disbursement of benefits to anyone

other than a member of the Pension Fund. Each contends that,

whatever equitable powers a circuit court has to enforce its

judgment, equitable powers cannot be exercised in contravention

of the Pension Code and established case law. Each faults the

order in directing the Pension Fund to issue the pension payments

made "payable to Richard H. Marcus as attorney and trustee for

Jerome Winter."

Ms. Winter, while making no claim that the circuit court's

3

The Pension Fund and Mr. Winter also frame their challenge

to the trial court's order as a violation of section 5, article

13, of the Illinois Constitution. However, each fails to assert

an argument in its respective brief distinct to the

constitutional claim, which raises a possible forfeiture of the

constitutional claim. See 210 Ill. 2d R. 341(e)(7).

Nonetheless, we conclude the protection afforded by the Pension

Code and the Illinois Constitution is identical in this case; for

streamlining reasons, we address the issue only in terms of the

Pension Code.

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No. 1-07-0619

"payable to" language is correct, asserts there is no conflict

between the injunctive order and the provisions of the Pension

Code. She asserts the trial court's grant of injunctive relief

was proper as the only effective remedy to address the ongoing

violation of the dissolution judgment by Mr. Winter.

Based on our reading of Smithberg v. Illinois Municipal

Retirement Fund, 192 Ill. 2d 291, 735 N.E.2d 560 (2000), we agree

with Ms. Winter.

A. Co-Owners of the Public Pension

The Public School Teachers' Retirement System of Illinois is

governed by Article 17 of the Pension Code (40 ILCS 5/17-101 et

seq. (West 2006)). Like other pensions controlled by the Code,

Article 17 contains an "antialienation" provision. See Smithberg

v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291, 303, 735

N.E.2d 560 (2000) (Illinois Municipal Retirement Fund statute

contains an antialienation provision "like other statutes

establishing public pension funds under the Code"). Section 17-

151 provides, in part:

"All pensions, annuities, refunds, or

death benefits granted under the provisions

of this Article *** are exempt from

attachment or garnishment process. They

shall not be seized or levied upon by virtue

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No. 1-07-0619

of any judgment or any process or proceedings

issued out of or by any court for the payment

or satisfaction in whole or in part of any

debt, claim, damage, demand or judgment." 40

ILCS 5/17-151 (West 2006).

The purpose behind antialienation provisions is to protect

employees and their beneficiaries from creditors. In re Marriage

of Hackett, 113 Ill. 2d 286, 292, 497 N.E.2d 1152 (1986)

(discussing an antialienation provision similar to section 17-

151).

Where pension benefits are marital property, former spouses

are not considered creditors. 750 ILCS 5/503(b)(1) (West 2006).

It is well settled that the spouse of a member of a pension fund

obtains an ownership interest in the benefits as marital

property, which in the course of a dissolution of marriage may be

allocated between spouses without regard to membership in the

pension fund. Hackett, 113 Ill. 2d at 292; In re Marriage of

Carlson, 269 Ill. App. 3d 464, 646 N.E.2d 321 (1995); In re

Marriage of Papeck, 95 Ill. App. 3d 624, 629, 420 N.E.2d 528

(1981). It is the former spouse's status as a co-owner of the

pension benefits that precludes the former spouse from being

labeled a creditor. The antialienation provisions of the Pension

Code present no bar to the former spouse being awarded a marital

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No. 1-07-0619

share of the pension upon dissolution of marriage, even though he

or she is not a member of the pension fund involved. See, e.g.,

Krane, 288 Ill. App. 3d at 617-18.

In avoiding the antialienation provisions of the Pension

Code, Papeck makes clear that it is the former spouse's status as

a co-owner that is controlling. In Papeck, a former wife sought

to recover a "loan" to her former husband that had been deposited

in the husband's pension fund to reactivate his benefits. A

judgment dissolving the marriage was entered. Supplemental

proceedings were then initiated by the former wife to recover

"the money she paid into the fund [as] her nonmarital property."

Papeck, 95 Ill. App. 3d at 626. The trial court ruled in favor

of the ex-wife, "directing the pension fund to pay her the

money." Papeck, 95 Ill. App. 3d at 626. The appellate court

reversed, based on the funds being nonmarital property and

constituting a loan to the former husband. Based on this

uncontested characterization of the funds, the former wife was

deemed a creditor and the statutory antialienation provisions

barred her recovery of the loan funds. Papeck, 95 Ill. App. 3d

at 629. The Papeck court explained:

"We caution that our holding is not to

be construed as affecting the rights of

nonemployee spouses to receive a proportion

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No. 1-07-0619

of their husband's pension benefits as part

of the marital property. *** 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 'creditor,' and the anti-attachment

provision of the Firemen's Act does not bar

her claim to a certain proportion of the

benefits." (Emphasis in original.) Papeck,

95 Ill. App. 3d at 629.

Although Papeck expressly limited its holding to nonmarital

property, courts have continued to struggle with the manner in

which a co-owner, but a nonmember, may be paid his or her share

of the pension fund benefits. The Papeck holding has been

interpreted as barring courts from ordering public pension funds

to pay benefits directly to nonmembers. See In re Marriage of

Johnston, 206 Ill. App. 3d 262, 268, 562 N.E.2d 1004 (1990)

(Rizzi, J., specially concurring) (citing Papeck for the

proposition "provision for direct receipt of the marital property

benefits cannot be accomplished by court order in a case

involving a pension plan under the Pension Code"). In Roehn, 216

Ill. App. 3d at 894, the court cited Papeck and the Johnston

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No. 1-07-0619

concurrence for the proposition "the established rule in Illinois

[is] that a court may not order a pension plan established under

the Code to pay benefits directly to a nonemployee divorced

spouse." According to Roehn, courts may only order pension

benefits to be paid "triangularly" from the fund to the employee

spouse to the nonemployee spouse. Roehn, 216 Ill. App. 3d at

895.

The overly broad reading of Papeck was reined in by Justice

McCuskey, then of the Third District, in Carlson, 269 Ill. App.

3d at 470. In Carlson, the trial court entered an order in which

the pension fund agreed to pay the nonemployee spouse directly.

The trial court denied the fund's attempt to vacate the order on

the grounds it was prohibited by a statutory antialienation

provision. In affirming, Justice McCuskey noted the Roehn court

failed to recognize Papeck's "crucial distinction" between a

creditor and a co-owner and "failed to include in its analysis

[the antialienation provision] or its meaning as explained by

[Hackett]." Carlson, 269 Ill. App. 3d at 470. The Carlson court

concluded "nothing in [the antialienation provision] or prior

case law precludes a pension fund established under article 4 of

the Pension Code from agreeing to make direct pension benefit

disbursements to a nonemployee divorced spouse." Carlson, 269

Ill. App. 3d at 471.

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In Smithberg, the supreme court noted the conflict between

cases like Roehn, which construed antialienation provisions to

preclude courts from ordering direct payments from a

"nonlitigant, public pension fund" to the nonemployee spouse,

"regardless of the circumstances," and cases like Carlson, which

"considered such holdings erroneous interpretations, and

unwarranted extensions, of statements made in Papeck in an

entirely different context." Smithberg, 192 Ill. 2d at 304-05.

While the court did not "criticize or condemn" applying broadly

the antialienation provisions, the supreme court did agree with

Carlson's holding that "no statute or precedent prohibited a

public pension fund from agreeing" to pay a nonemployee spouse

directly. Smithberg, 192 Ill. 2d at 305-06. The court observed

that "the results reached by the courts in those varied

scenarios" reflected the uncertainty of the law at the time.

Smithberg, 192 Ill. 2d at 305. Based on the supreme court's

decision in Smithberg and our discussion below, we find the law

on the interplay between public pension funds and the division of

pension benefits as marital property under the Illinois Marriage

and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West

2006)) is no longer uncertain.

B. The QILDRO Statute

Effective July 1, 1999, the legislature amended certain

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provisions of the Pension Code and the Illinois Marriage and

Dissolution of Marriage Act to provide for QILDROs.4 The QILDRO

statute "purports to give domestic relations courts limited

powers to effect distributions of public pension benefits through

QILDROs directed to nonlitigant pension funds." (Emphasis in

original.) Smithberg, 192 Ill. 2d at 301. Before its enactment,

"no specific statutory authority in Illinois authorized a

domestic relations court order directing payment of a

governmental pension benefit to a person other than the regular

payee." Smithberg, 192 Ill. 2d at 301. However, because neither

party in Smithberg contended the QILDRO statute controlled, the

court declined to "comment further on the wisdom or effect of

this new legislation." Smithberg, 192 Ill. 2d at 302.

To avoid "a potential violation" of section 5 of article 13

of the Illinois Constitution, the QILDRO statute requires pre-

July, 1, 1999, members to consent. C. Fain, Qualified Illinois

Domestic Relations Orders: A Retirement System View, 88 Ill. B.J.

533 (2000). Section 1-119(m)(1) of the Pension Code provides "a

QILDRO issued against a member of a retirement system established

under an Article of this Code that exempts the payment of

4

The QILDRO legislation underwent significant amendment in

1996, the substance of which is not relevant to this appeal.

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benefits or refunds from attachment, garnishment, judgment or

other legal process shall not be effective without the written

consent of the member if the member began participating in the

retirement system on or before the effective date of this Section

[July 1, 1999]." 40 ILCS 5/1-119(m)(1) (West 2006). This is

because the "contractual relationship" established under the

constitution "is governed by the terms of the Code at the time

the employee becomes a member of the pension system." Menken,

334 Ill. App. 3d at 534.

In Menken, decided two years after Smithberg, the Second

District held a domestic relations court could not order the

employee spouse to consent to the QILDRO. The court reasoned the

purpose of the consent requirement was to protect the pensioner's

constitutional rights, and if a trial court could order the

participant to consent, the requirement "would be rendered

meaningless." Menken, 334 Ill. App. 3d at 535. The Menken court

also criticized the trial court for conditioning the payment of

the wife's attorney fees on whether the husband consented. The

court concluded that strategy amounted to "an improper attempt to

coerce [the husband] and bypass section 1-119(m)(1)." Menken,

334 Ill. App. 3d at 535.

1. Payable to Attorney Marcus

In this case, the trial court enjoined the Pension Fund from

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No. 1-07-0619

issuing the pension benefits to Mr. Winter and directed it to

"issue all of Jerome's future pension benefit payments payable to

Richard H. Marcus as attorney and trustee for Jerome Winter."

While Carlson provides a pension fund may agree to alter the name

of the payee, Roehn holds a court cannot do so--at least not

without a QILDRO. As discussed above, Roehn's holding is likely

based on an erroneous reading of Papeck. Nonetheless, because

this case comes before us on an interlocutory appeal, with

further proceedings intended regarding the apportionment of the

pension benefits in the constructive trust, we find it

unnecessary to question the "established rule" that a trial court

may not order the Pension Fund to alter the named payee without a

QILDRO as held by Roehn or some other type of agreement as was

present in Carlson. We conclude it was unnecessary to preserve

the status quo and to prevent dissipation of Ms. Winter's

property for the circuit court to order the pension benefits be

made payable to attorney Marcus. Consequently, we conclude more

was required to change the name of the payee than is present in

this case and, therefore, we vacate that portion of the trial

court's order mandating the benefits be made payable to attorney

Marcus, as trustee. See Menken, 334 Ill. App. 3d at 535.

2. Triangular Approach

At oral argument, Ms. Winter's attorney contended the trial

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No. 1-07-0619

court's order in this case represents a subspecies of Roehn's

triangular approach. Given the posture of this case, however,

the "triangle" as it now stands has only two sides. The

proceedings intended to take place before the circuit court may

well supply the missing side to this claimed variation of the

triangular approach. We conclude, however, that reliance on a

claimed variation of the triangular approach to provide payment

of Ms. Winter's share of Mr. Winter's pension benefits is

unnecessary under the facts of this case.

C. Smithberg and Equitable Remedies

There is no question but that our approval of the equitable

relief granted in this case requires that we read Smithberg

beyond its express holding. We conclude, however, the path we

follow here is precisely the path set out by our supreme court in

Smithberg. "Irrespective of empowering statutes, a court retains

its traditional equitable powers." Smithberg, 192 Ill. 2d at

298.

The ultimate issue in Smithberg was whether the pension fund

member's first or second wife was entitled to pension death

benefits. The marital settlement agreement incorporated in the

judgment of dissolution of marriage between the first wife and

the member decedent required the first wife be named beneficiary.

In fact, the member decedent named his second wife as the

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No. 1-07-0619

beneficiary on the pension fund designation form. The first wife

argued the dissolution judgment entitled her to the benefit. The

second wife argued the statutory provision defining the

beneficiary as the person designated on the form should be

strictly construed "without regard to the attendant

circumstances." Smithberg, 192 Ill. 2d at 297. While the trial

court ruled in favor of the second wife, the appellate court

"reversed and remanded with directions that summary judgment be

entered in favor of the [first wife, pursuant to the dissolution

judgment.]" Smithberg, 192 Ill. 2d at 292. The supreme court

held the appellate court properly invoked equitable principles to

enforce the marital settlement agreement, which was approved by

the court and incorporated in the judgment of dissolution.

Smithberg, 192 Ill. 2d at 295.

As in Smithberg, we are confronted with "a challenge to the

power of a court in this context to enforce by equitable means a

judgment *** effecting [a final] distribution of marital assets."

Smithberg, 192 Ill. 2d at 295. While there is no agreed marital

settlement agreement incorporated in the judgment of dissolution

entered in this case, the disbursement of marital assets set out

in the judgment was approved by the circuit court and rendered

final in the absence of an appeal.

In Smithberg, the supreme court observed, a court's equity

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No. 1-07-0619

powers, founded on " 'fairness, justness and right dealing' "

(Smithberg, 192 Ill. 2d at 297, quoting Black's Law Dictionary

540 (6th ed. 1990)) in human intercourse, "serve as a beacon to

any court charting a course through conflicting case authorities"

(Smithberg, 192 Ill. 2d at 297). The court explained:

"It is an elementary principle of law

that a court is vested with the inherent

power to enforce its orders. [Citation.]

Where a domestic relations order has been

entered, the trial court retains jurisdiction

to enforce its order [citation], as further

performance by the parties is often

contemplated [citation]. In the case of the

court that rendered James and [his first

wife's] judgment of dissolution, jurisdiction

was expressly retained for the purpose of

enforcing all of its terms and conditions.

Had James lived, there is no doubt that he

could have been compelled by the use of

contempt proceedings to abide by the terms of

his marital settlement agreement as

incorporated in the court's judgment. His

death, however, does not leave the courts

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No. 1-07-0619

powerless to rectify his wrongdoing and

enforce [his first wife's] right to the death

benefit.

Irrespective of empowering statutes, a

court retains its traditional equitable

powers. Such inherent equitable power,

derived from the historic power of equity

courts, cannot be taken away or abridged by

the legislature. [Citations.] When the

legislature encroaches upon a fundamentally

judicial prerogative, this court has not

hesitated to protect judicial authority."

Smithberg, 192 Ill. 2d at 297-98.

The court also noted the particular importance of the

domestic relations courts' equity powers in cases involving

pensions.

"To be sure, in many cases pension

benefits may constitute one of the most

important items of property acquired in a

marriage of long duration; in some perhaps,

it may be the only asset of any significant

value. To deprive a domestic relations court

of the power to apportion the value of such a

29

No. 1-07-0619

significant marital asset, and enforce that

apportionment, would, in many cases, deprive

the court of the ability to do justice

between the parties. A court's authority to

enforce its judgment, equitably apportioning

marital assets, surely cannot be subordinate

to the whims of one of the parties in the

divorce proceeding or defeated by his or her

blatant violation of the parties' agreement

as incorporated in a judgment of dissolution.

As we have demonstrated, courts are not

powerless to enforce their judgments."

Smithberg, 192 Ill. 2d at 304.

We find dispositive here the particular importance of a

domestic relations court in doing justice between the parties

regarding pension benefits. As in Smithberg, the QILDRO statute

plays no role because Mr. Winter's consent was required and he

refused to consent. (We note, Ms. Winter did not challenge

Menken's holding that a court may not compel consent under the

QILDRO statute.) Nonetheless, the circuit court below was not

"powerless to rectify [Mr. Winter's] wrongdoing" where Mr. Winter

was receiving both his and Ms. Winter's share of the pension

benefits. While the circuit court's contempt powers were clearly

30

No. 1-07-0619

ineffective against Mr. Winter because he is a permanent resident

of England, much as those powers were useless to reach beyond the

grave in Smithberg, the circuit court was well within its

"historic power" of equity to begin to fashion a remedy to Mr.

Winter's ongoing violations of his obligations under the judgment

of dissolution of marriage entered in this case.

Like the appellate court's resolution affirmed by the

supreme court in Smithberg, the trial court in this case properly

invoked its equity powers to preserve Ms. Winter's share of the

property she co-owned with Mr. Winter. To accomplish this aim,

the circuit court properly enjoined the Pension Fund from giving

Mr. Winter absolute control over the pension benefits, at least

until the fair and just apportionment of the co-owned property

could be made.

In the face of ongoing wrongdoing by Mr. Winter in retaining

control over more than the share of the pension benefits to which

he was entitled, the circuit court acted properly in establishing

a constructive trust over the pension benefits until justice

could be done between Ms. Winter and Mr. Winter. See, e.g.,

Suttles v. Vogel, 126 Ill. 2d 186, 193, 533 N.E.2d 901 (1988),

quoting Perry v. Wyeth, 25 Ill. 2d 250, 253, 184 N.E.2d 861

(1962) (" 'A constructive trust is one raised by operation of law

as distinguished from a trust created by express agreement

31

No. 1-07-0619

between the settlor and the trustee' "). While ordinarily the

party in possession of the wrongfully acquired property would be

declared a trustee, the circuit court correctly named attorney

Marcus as trustee of the constructive trust because there was

little likelihood that Mr. Winter, had he been named trustee,

could have been forced "to transfer title and possession of the

wrongfully acquired property to the beneficiary." Smithberg, 192

Ill. 2d at 299, citing Suttles, 126 Ill. 2d at 193. The creation

of a constructive trust and the naming of attorney Marcus as

trustee, were proper remedies to address Mr. Winter's "blatant

violation" of the dissolution judgment that would have otherwise

continued. Smithberg, 192 Ill. 2d at 304.

Because neither the QILDRO statute nor the court's contempt

power provided the means of enforcing the dissolution judgment,

the circuit court properly exercised its historic power of equity

in fashioning a means of doing justice between the parties.

"[E]quity will regard as done that which ought to be done."

Smithberg, 192 Ill. 2d at 297.

D. Deviation From the Pension Code

We address briefly the remaining arguments by Mr. Winter and

the Pension Fund that the preliminary injunction order deviated

from the Pension Code and case law.

We find no factual support for Mr. Winter's contention that

32

No. 1-07-0619

his pension benefits have been "impaired or diminished"; the

total amount of his pension is unaffected. Mr. Winter's full

pension payments are being sent to attorney Marcus as a trustee,

who must remain in possession of the funds until further order of

court. While the order certainly curtails Mr. Winter's access to

his pension, it is a temporary curtailment until his wrongful

receipt of Ms. Winter's share of his pension payments can be

addressed in further proceedings below. If Mr. Winter wants

immediate access to that portion of the pension payments that is

his, he knows full well how that may be accomplished.

To be clear, in upholding the injunctive relief against the

Pension Fund, we conclude the circuit court's order does not

conflict with Illinois case law. Quite the opposite, we find the

decisions in Smithberg and Carlson to be consistent with the

circuit court's decision below. The Carlson court concluded:

"[N]othing in our State's statutes or case law prohibits a

pension fund established under article 4 of the Pension Code from

agreeing to disburse pension benefits directly to a nonemployee

divorced spouse when that spouse has become entitled to such

benefits." Carlson, 269 Ill. App. 3d at 472. The implication is

clear: if a pension fund may agree to disburse pension benefits

directly to a nonemployee co-owner, we see nothing in our State's

statutes or case law to preclude a circuit court from ordering a

33

No. 1-07-0619

Pension Fund to do that which the Pension Fund could have agreed

to do on its own. No public policy was violated by the agreement

in Carlson; we are unpersuaded that a deviation from the Pension

Code or case law occurred here.

The circuit court below exercised its equitable power to

correct an ongoing wrongdoing by Mr. Winter, much as in

Smithberg. The supreme court recognized in Smithberg the

fundamental judicial prerogative to do justice between the

parties. Mr. Winter was not free to turn the protection afforded

by section 17-151 of the Pension Code as a shield against

creditors into a sword to keep Ms. Winter at bay from that

portion of Mr. Winter's pension payments to which she is entitled

under the judgment of dissolution of marriage. Under the

attendant circumstances, section 17-151 is no barrier to entry of

the circuit court's order in this case, allowing for

apportionment of the pension benefits in further proceedings.

Mr. Winter and the Pension Fund argue the court's order is

akin to the sort of order found improper in Menken because it

seeks to coerce Mr. Winter into consenting to a QILDRO. Mr.

Winter argues "no real solution is contemplated by the court's

order, and that its sole raison d'etre is merely to cause Mr.

Winter sufficient hardship by the withholding of his benefits

that he will feel compelled to sign the consent." The Pension

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No. 1-07-0619

Fund argues the trial court either "intends that the withholding

of the benefits *** will cause [Mr. Winter] sufficient hardship

that he will sign the consent, or it may be contemplating

entering a future order compelling the Trustee to turn the

benefits over."

The outcomes envisioned by Mr. Winter and the Pension Fund,

though causing each concern, may yet be addressed in further

proceedings before the circuit court. Even Mr. Winter recognizes

that at some point the collected funds must be disbursed.

Certainly, the marriage dissolution judgment contemplated an

apportionment of the marital property pension benefits between

Mr. Winter and Ms. Winter. We leave it to the circuit court to

determine whether doing justice between the parties requires "a

future order compelling the Trustee to turn the benefits over."

Neither Mr. Winter's nor the Pension Fund's arguments

persuade us that the trial court's order was erroneous as overly

coercive. In the face of continuing wrongdoing, a court's order

stopping the wrongdoing will always be seen as coercive from the

perspective of the wrongdoer. Here, the circuit court's order

was simply a means of enforcing its dissolution judgment, where a

contempt proceeding was unavailable. The supreme court

recognized that compliance at times must be compelled. "Had the

cause proceeded to the circuit court, [the decedent] undoubtedly

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No. 1-07-0619

would have faced a finding of contempt of court; he would have

been ordered to reinstate [his first wife] as the beneficiary of

his death benefit *** ." Smithberg, 192 Ill. 2d at 296. The

judicially approved triangular approach also relies on court

compelled compliance. Roehn, 216 Ill. App. 3d at 895.

Nonetheless, in this case, the end result is yet to be

determined. Unlike in Menken, the circuit court below did not

simply order Mr. Winter to consent to a QILDRO or condition a

"punishment" of sorts should he refuse. The circuit court's

injunctive order preserved Ms. Winter's share of the pension

payments, to which Mr. Winter does not and cannot deny she is

entitled, while, for the time being, casting a net that captures

Mr. Winter's share until accounts can be settled. The court's

order was a proper exercise of its broad equity powers. "Given

these facts and circumstances, the only matter remaining to be

resolved concerns the mechanics of that resolution." (Emphasis

omitted.) Smithberg, 192 Ill. 2d at 306.

CONCLUSION

For the reasons set forth above, we hold the trial court

properly invoked its equity powers to grant injunctive relief.

We uphold the court's order enjoining the Pension Fund from

issuing further payments to Mr. Winter directly, enjoining Mr.

Winter's receipt of pension payments, and ordering the Pension

36

No. 1-07-0619

Fund to send Mr. Winter's payments in care of attorney Marcus as

trustee. However, we vacate that portion of the order that

requires the Pension Fund to issue Mr. Winter's payments "payable

to" attorney Marcus. The funds received under this improper

payee designated method are to remain in the constructive trust

to be apportioned, along with future pension benefits, in

accordance with the results of further proceedings to take place

below. We remand to the circuit court for further proceedings

consistent with this opinion.

Affirmed in part and vacated in part; cause remanded.

R. GORDON, P.J., and WOLFSON, J., concur.

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No. 1-07-0619

REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

______________________________________________________________________________

IN RE MARRIAGE OF:

ANA WINTER,

Petitioner-Appellee,

and

JEROME WINTER,

Respondent-Appellant,

(PUBLIC SCHOOL TEACHERS' PENSION AND RETIREMENT

FUND OF CHICAGO, Intervenor).

________________________________________________________________

No. 1-07-0619

Appellate Court of Illinois

First District, First Division

Filed: November 24, 2008

_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

R. GORDON, P.J., and WOLFSON, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County

Honorable Mark Lopez, Judge Presiding

_________________________________________________________________

For PETITIONER - James K. Leven

APPELLEE 203 North LaSalle Street, Suite 2100

Chicago, Illinois 60601

For RESPONDENT - Richard H. Marcus

APPELLANT Law Offices of Chicago Kent College of Law

565 West Adams Street

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No. 1-07-0619

Chicago, IL 60661

Of Counsel:

Stuart Berks,

Leon E. Farbman

Deutsch, Levy & Engel, Chartered

225 West Washington Street, Suite 1700

Chicago, IL 60606

INTERVENOR Anita Tanay

Jacobs, Burns, Orlove, Stanton & Hernandez

122 South Michigan Avenue, Suite 1720

Chicago, IL 60603

39