retirement benefits should this general issue has been before several courts in the state of illinois  we think this case is somewhat different than the other cases that have been where the a fellow who works whom state of illinois to be and why the is should be clear is that disability benefits are not you know that retirement benefits are taxable disability benefits or not and it would seem that the legislative intent should be clear that the legislative intent is to protect the firefighters and to recognize and award a reward them also for their service so to blur the lines between disability and retirement benefits creates confusion in of also defeats the protection of firefighters that the general assembly intended in fact a firefighter who is injured or disable exactly entitled to a host of benefits under many statues and we believe that the blurring of those lines between disability benefits and retirement benefits is exactly what happened in this case  in twenty fourteen that then trial court expressed his opinion that the case law was clear that mrs benson was intitled to a portion of that he was of the opinion that it was clear from the case law if she was entitled to a fractional interest in his disability benefits he concluded that the benefits are in the nature of a disability pension warded her thirty seven point six percent of the trial judge further indicated that it didn't matter whether or not he had voluntarily agreed to take the disability benefits or whether he four cases closed to him or suggested to him and i think the four cases that he relied upon when he was saying that the case law was  pronouncing that correctly of the marshall case which was a case coming out of this court quite some time ago and smith and so when he both cases coming out of the third district so when the judge said that he believed the case law was clear i believe he was relying on those four case oh and then just somewhat similar situation instead of a that this was a judgment was a settlement agreement and in that settlement agreement a reference retirement benefits here the reference in the judgment as to retirement plan and then the plan itself clunes disability benefits is that true i don't know that i necessarily agree with that or maybe more accurately in the description of the retirement plan reference is made to disability benefits firefighters have a whole host of they have disability benefits they have a retirement plan and i guess i wouldn't conceive that this ability benefits or is a different statute and i guess we would not see that it's necessarily part of their retirement plan you might think but again those are a four cases that we were talking about we those cases as you point out like the shirts case involved the interpretation of murder settlement agreement so of those four cases the common thread or theme among all four of those cases is one they were interpretating or analyzing a marital settlement agreement or secondly the firefighter was already starting to receive the disability benefits for that the  benefits they were already accrued are accruing that is clearly not the case that we have here there was no marital settlement agreement nor was there any disability at the time of the dissolution of marriage at the time this solution was injured mr benson was still employed as a firefighter  and was actively engaged in employed as a firefighter and i will also just know there are other cases in particular of the davis and the settlement agreement provided that hanky davis was to be paid benefits from the teamsters pension fund and william davis receives benefits from the said plan regardless of the form or the frequency of said payments but the court concluded that as no reference was made specifically to the disability benefits  in the marital settlement agreement the court concluded that the spouse was not entitled to the benefits again i think this is the critical point and that in one nine hundred ninety nine the judgment was entered following a very contested truck there was no marital settlement agreement to interpret  mr benson was not this able at the time or receiving disability and as we noted the court only ordered one half of mr benson's retirement plan there is no indication in the record that the parties contemplated discussed nor did the trial judge and i'm sure nobody even thought about the possibility of future benefits that might arise for mr benson as as a firefighter so i think we do know that judgments generally have to be construed strictly i think the judgment has to be given it's plain ordinary an unambiguous meaning event and then that judge becomes disabled either because mental illness or physical incapacity and begins to draw those benefits before he or she would well i guess i'd have to i guess i'd have to examine exactly what the statute says right but if it is the question that there was disability well judge there is a provision in judicial retirement if you're on able to perform your duties but you haven't voluntarily tired that you receive benefits from the state all well that's not exactly a pension and you pay into a deferred compensation plan it's not a pension it's not referred to as a pension because you can only begin to draw from that when you retire yet the word pension it's not a pension benefit at all it's a benefit that you and your spouse involuntary only paid into and we can assume that it would be listed as a marital asset and the judge would do something with it but in a contest in case the judge might throw up his hands and say you get half the well i don't know that the i don't know that the person is obligated to start if that's the question or if they're obligated to start switching over retirement in this case if he has has an opportunity to get tax free benefits then you know i can understand the logic of why he would choose to do that so that the power to defeat her right to a portion of the presi and they have to share for sure and that's true but on the other hand he's just being a he's just taking advantage of what the general assembly has provided i would say at the time ju theory here no it's still there it's still there and if it's never tapped are we to say that it has disappeared that there is a marital asset that is gone i at fifty i believe if you have so many years of service which he had he had but again according to the the record and the record is a little scant on this to be honest the testimony was that he testified that he didn't even really consider federal while either retirement or disability according to the record he testified well i got hurt and they put me on disability and i think he the record i think indicates that it wasn't a conscious decision on his part to either elect disability or retirement he just said i got injured in the way they put me on disability so i don't know that there was any conscious me i know that the inclination to say well gee whiz he he cheated her or he reach the conclusion that was reached by judge choreo i think one of two things as it happened i mean one hugh have to say that when the plaintiff was granted a one half interest in the defendant's any other benefits that would be available to mr benson in the future we're example of being let's just say instead of disability benefits he was workin something else and received a worker's comp claim or he was on social security disability surely judge injury and his ruling would not go out and snag back a worker's comp claim or a social security disability claim that arises in the future or office workers comp that arises in the future is that a portion of the pension that was entering the marriage this marriage or the retirement is yes do what you know what was he contemplating when we're talking about something that hasn't even happened yet and again we are distinguishing this type of case  they are police court counsel it's my name is curt because some here on behalf of the athlete nancy benz paragraph nine of this nine hundred ninety nine judgment dissolution were my client one half interest in the defendant's retirement went through the decatur fire are now on its face paragraph nine of this judgment is admittedly silent on the issue of disability benefits doesn't use the word disability but on the other hand my client was awarded a one half interest in the defendant's retirement plan what's the retirement plan the retirement plan necessarily refers to the defendant's interest in the decatur fireman's pension founded article for the pension so he had no other plan that retirement plan has to be his interest in the pension fund and as the court knows this conversion option from disability to retirement so it's our position that because disability benefits are component of the defendant's retirement fund th the payment of disability versus payment of the pension benefit they both come from the fund into which the city or the minute the mess valley and or i don't know how there is that individual firefighter make a contribution yes towards the end of the statute it talks about the contributions that firefighters have to make so when we look at this it makes sense that back in one nine hundred ninety nine judge hen include disability been this this plan this fund was in fact the most valuable financial asset the parties had and does it make sense to us to judge henry and would be stingy on that or try to different pieces as an analogy if you had a divorce case were the court awarded the wife half interest in the in the husband's copyright for example  if you look at what a copyright is under the copyright act it's a bundle of six exclusive rights to an author if a court awards an interest in a copyright it wouldn't make sense to interpret that to mean well this may be one or two of the exclusive rights that were awarded to the wife not entirely bundled in the pension fund consists of this bundle of rights and benefits when the court awarded her one half of the interest in that fund our position is that disability benefits were included it also makes sense given the fact that this plan contained it disability component and the defendant was a firefighter it's reasonable to conclude that the judge does designed some protection for the wife in the event that the husband was injured also in terms of the trial  can intent awarding the place different harm and benefits only without disability benefits would have allowed a situation just like this to occur in the event that there was an injury and we don't think the court would have intended this result today how much yeah minor standing is that when there's death that the pension benefits and and and unless the court well the there's a settlement agreement it just says pension plan a firefighter dives before retirement i don't believe justice there is a death benefit as part of the bundle of rights that compose the fun so to answer your question i think in that case my client would receive nothing but just just to highlight put an exclamation point on why th court should affirm judge choreo let's say for the sake of argument that paragraph nine is and big just because it can be interpreted one of two ways one reasonable interpretation could be that my client was awarded a one half interest in any component of the fine the other arguably reasonable interpretation is that because it did not contain the word disability that my client only had retirement benefits and nothing else let's say that's the case and paragraph nine is ambiguous the shirt's case tells us how we should handle that first the shirt's case issues need to look at the facts and circumstances and there's a few major ones just a few though those facts are that at the time of the dissolution the defendant was eligible to retire he works for nine more years and he's injured at that point if the injury where he could have gone on disability he was not only eligible for retirement he was eligible for a maximum retirement the other the next fact or circumstance to be considered is is this what did the defendant do when he was hurt he elected he decided he chose to apply for disability benefits and chose to apply for disability benefits in lieu of receiving the maximum retirement benefits doesn't that make sense logical sense under the circumstances yes but but the salient fact is that he'd tros if this wasn't something that just happened to him he had to decide he wanted disability benefits he had to apply for them under four dash one twelve he had to submit himself to three independent medical examinations he had to go to the hearing he had to do everything that was required of there the disability board big us you look to shirts shirts and the marshall case from this court davis case and the belt case contain this common thread it's common approach and the approach is that if you become disabled you are not yet eligible to retire the court should interpret the provision like ours as not granting the ex wife a share of the disability benefits and the reason for that just spoke is that in that situation disability pay is meant to replace the disabled ex husband's income and not replace the retirement if you're younger and you haven't retired and  disability the court awards you ex wife a share of it what is happening is the ex wife is receiving the benefits you would not otherwise be entitled to while you're taking the disabled income disabled spouse's and cutting it in half but the flip side though is and this is part of the common thread if you're injured at a time when you're eligible to retire and you choose to take disability in lieu of your retirement benefits then the ex wife should be awarded an interest in those disability because in that case if you don't do that the injured spouse gets the windfall and the  ause is not given the benefit she was otherwise entitle to her soon to judge so it does depend on if you're eligible for retirement at the time of the injury and disability or you're not  and all that makes sense and in the first case the if if there was a young worker and he's disabled if you take away his benefits the ex wife gets a windfall in the other way for you if the disabled worker is eligible for carmen and you don't award the expo ause a share of the disability benefits she's the pride and you allow the injured employee to defeat claim which is is what happened here shirts in martial covered the situation where the injured boy is disabled it and he's eligible to retire belt in davis cover the situation to want to say anything negative about any judge but the truth is in ninety nine paragraph nine when the judge talked about the transfer of said funds will be carried out i think by qualified to medical ations order that would have been a no because this is a governmental pension fund in a quadro would not be effective to transfer secure and divert those payments but one way to interpret that language is this judge henry and intended that the payment of the benefits not be left to the defendant alone and that there be a mechanism tool by which they were simply take to allow sort of orderly transfer of those funds and also the use of a quadro which would necessarily contain the hunt formula would allow the parties down the road to be able to determine what part of any benefit of the ex wife was a title because you know the longer the husband works the less share she receives which is what happened in this case at this point in time she was only entitled to thirty seven point six percent of the benefits as well as fifty zero so does that help answer your question judge there was a question about what pace large judge korea was relying upon we believe it was shirtless marshall davis bill there was an indication by counsel that judge chore  think if you look at the context of those words you meant to say the benefits are a nature of the retirement age which is the theme of the shirts case the marshall case that when you choose disability benefits in lieu of retirement those benefits then are the disability benefits you receive are in the nature of retirement if you are representing the spouse of the firefighter and i don't know where their policeman's plan is similar when they reach age fifty and they're forty nine and they announce it and they maybe even have a retirement party and they're injured on their next call and they receive disability benefits the spouse or he or she is injured before they get the pension to kick in if i was representing the spouse and the firefighter the police officer or whoever was younger and not yet eligible for retirement i would know that if that person got injured and he decided elected to take disability benefits that my client would then not receive any share of those disability benefits and tell as davis suggests that he was germany yes and so what about if the person isn't yet chronologically eligible but has declared that they intend to retire at fifty and they receive disability benefits of forty nine and a half and they receive them because they have to have them they can't work and they actually could have retired officer but they declared their intention to retire at age fifty at age forty nine and a half if they receive disability benefits while the x pals ever get any of those disability then i believe if he is injured before izzo it will he gets those benefits i think you're right the ex wife in this case would be excluded under the case so i don't i don't know if i'm right i'm asking you that i think i think she would be excluded so it would make sense to talk about that in martial for example this court talked about the agreement between the parties that he was going to at least work for twenty years and eligible for his pension and that may have played a role in marshall i'm not sure but i want to answer your question is this i really think you i think you have the at the end of the day judge korea was looking at paragraph not in a word my client interest in the pension or in in the defense retirement plan it's undeniable the plan is the fun fund has various components which include disability benefits so we believe that they world war but even if there's a question and you're like melissa sort of ambiguous if you follow the shirt's analysis and apply the facts to the he was eligible to retire at the time he was disabled in part he chose to take disability benefits in lieu of retirement is and under the case law therefore my client is entirely to receive share of those disability benefits and the share is what she would have otherwise received had there been a normal retirement that's why if the trial the words that were representing the parties at that point made the calculation that my client would receive thirty seven point six percent of the benefits as opposed to fifty and with respect to dollar amounts this might be an aside but what he is receiving in disability right now the case of this if you were injured and disabled prior to retirement age the ex foster is not entitle to any of that this ability and then until a firefighter that you just put it to me now justice and your act you're absolutely right that the davis case is an example of that in the davis case there was a disability that the the worker the husband took disability before he was eligible to retire davis health therefore she wasn't entitled to disability benefits and tell you the husband was eligible to retire well let me ask you a question if it's tax free instax free because it's disability and in this instance it's the same amount except that it's more because it's tax free right it's the same gross same gross serve well  well which is taxable yes to the idea is that if if you choose disability when you're eligible to retire did that my client in this case should be entitled to a share of those benefits as her six percent of these just these disability benefits that is is in lieu of the retirement benefits it would be considered retirement benefits to her  that is correct that the idea is to put her in position if he aleck's to retire there are a few less disability when he's eligible to retire that the law basically says look you can't do that that's fine but  and again this whole issue of this ability benefits versus retirement benefits again i would suggest that there is a blurring of the lines between those those two things you know in the shirt's case there was a vigorous dissent also that the dissent said well i would agree with the majority but for the fact that pacifically said said funds will be transferred by a quadro now whether that was a novelty or not i think that's a clear indication of what the  hid really was saying in one nine hundred ninety nine he was talking only about retirement benefits retirement enough and to leap to somehow transmute what he says into an we have to assume what judge hendry and i was thinking or else we have to just say retirement benefits and disability benefits are really one and the same as quick  the other spouse has a retirement of someone who would have has benefits including retirement benefits and disability and it's you have to have then in a marital settlement agreement mention to call it malpractise but i would certainly think that a prudent tourney knowing that all the other benefits that are out there are firemen or policeman certainly i would think you'd want to clue that in your marital settlement agreement sure absolutely