ILLINOIS OFFICIAL REPORTS

Appellate Court

In re Marriage of Winter, 2013 IL App (1st) 112836

Appellate Court

Caption

In re MARRIAGE OF ANA L. WINTER, Petitioner-Appellant, and

JEROME WINTER, Respondent (Public School Teachers’ Pension and

Retirement Fund of Chicago, Intervenor-Appellee).

 District & No. First District, Sixth Division

Docket No. 1-11-2836

Rule 23 Order filed

Rule 23 Order

withdrawn

Opinion filed

June 14, 2013

July 12, 2013

July 12, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In proceedings dissolving the parties’ marriage, the trial court properly

found that the “surviving spouse benefit” under respondent’s disability

pension plan was not marital property subject to distribution to petitioner

upon his death, since the benefit did not belong to either spouse during

the marriage, it was not marital property and the Pension Code excluded

a “former spouse” from the definition of a “surviving spouse,” and,

furthermore, the trial court did not abuse its discretion in refusing to grant

petitioner’s request for a mandatory injunction distributing the benefit to

her, and she forfeited the argument that the Pension Code exclusion

violated her equal protection rights.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 98-D-11073; the

Hon. Mark Joseph Lopez, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

James K. Leven, of Law Office of James K. Leven, of Chicago, for

appellant.

Anita Tanay and Tiffany R. Reeves, both of Jacobs, Burns, Orlove &

Hernandez, of Chicago, for appellee.

Panel JUSTICE REYES delivered the judgment of the court, with opinion.

Presiding Justice Lampkin and Justice Gordon concurred in the judgment

and opinion.

OPINION

¶ 1 Following the entry of an order finding the “surviving spouse benefit” of respondent

Jerome Winter’s (Jerome) disability pension plan is not marital property subject to

distribution, petitioner Ana Winter (Ana) now appeals. Ana argues upon the passing of

Jerome she is entitled to the surviving spouse benefit despite not meeting the statutory

definition of a surviving spouse under the Illinois Pension Code (Pension Code) (40 ILCS

5/17-121(a)(West 2006)). Forthe foregoing reasons, we affirm the decision of the trial court.

¶ 2 BACKGROUND

¶ 3 Ana and Jerome Winter married in 1980. The couple then separated in 1998 before

ultimately divorcing in 2005. Prior to the divorce, Jerome moved to the United Kingdom,

taking their child and, according to the trial court, “virtually all the marital assets.” Due to

Jerome’s continued residence abroad, the trial court encountered significant difficulty

identifying, valuing, and distributing most of the marital assets. Jerome’s pension payments,

however, remained available for distribution by the court. Jerome, a retired teacher for

Chicago Public Schools, began receiving pension payments from the Public School

Teachers’ Pension and Retirement Fund (Pension Fund) in 1985. The 2005 judgment of

dissolution awarded the entire marital portion of this pension to Ana via a “Qualified Illinois

Domestic Relations Order” (QILDRO) (40 ILCS 5/1-119 (West 2004)).

¶ 4 Initially, Jerome blocked Ana’s receipt of any pension payments by refusing to sign a

consent to the QILDRO, as required by section 1-119(m) of the QILDRO law. Ana, 1

Jerome began participating in the pension plan prior to the 1999 effective date of the 1

QILDRO law. Pub. Act 90-731 (eff. July 1, 1999) (adding 40 ILCS 5/1-119). Accordingly, Jerome’s

consent was required before the pension plan could pay Ana her marital portion of the payments

directly. See 40 ILCS 5/1-119(m) (West 2004) (“a QILDRO issued against a member of a retirement

system established under an Article of this Code that exempts the payment of 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

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therefore, petitioned the trial court to freeze Jerome’s pension benefits. The trial court

granted Ana’s petition and issued a preliminary injunction requiring the entire portion of all

future pension payments be placed in an IOLTA (“Interest on Lawyers Trust Account”)

pending further order of court. Jerome appealed the decision of the trial court to enter a

preliminary injunction, which was affirmed and remanded by this court. In re Marriage of

Winter, 387 Ill. App. 3d 21, 23-24 (2008).

¶ 5 Upon remand, Ana filed an “Amended Petition for Turnover Order and Other Relief.”

In her petition, Ana argued the survivor benefits were marital property and requested, inter

alia, the trial court to use its equitable power to order “the Pension Fund *** to distribute

Jerome’s survivor benefits to Ana Winter upon Jerome Winter’s death.” The Pension Fund,

having previously intervened in the lawsuit, filed a response to the petition arguing Ana was

not entitled to the survivor benefits. On March 22, 2011, in a written order, the trial court

denied Ana’s request for survivor benefits. The trial court found Ana “fails to meet the

definition of a ‘surviving spouse’ ” under the plain language of the Pension Code and

concluded the surviving spouse benefit is “not subject to division as marital property.” Ana

now appeals the decision of the trial court denying her petition.

¶ 6 ANALYSIS

¶ 7 Ana sets forth three arguments on appeal: (1) the court should award her the survivor

benefit of the pension plan as marital property; (2) the court should grant her the survivor

benefit pursuant to its equitable powers to enforce the judgment for the dissolution of

marriage; and (3) the Illinois Pension Code’s surviving spouse definition as applied violates

her equal protection rights under the Illinois and United States Constitutions.

¶ 8 I. Marital Property

¶ 9 Ana primarily argues the pension plan’s survivor benefits should be subject to

distribution as marital property at the time of Jerome’s demise. Addressing this argument

involves the interpretation and application of the Illinois Marriage and Dissolution of

Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2004)) and the Pension Code

(40 ILCS 5/1-101 et seq. (West 2004)). Thus, as a question of law, we review this issue de

novo. In re Marriage of Rogers, 213 Ill. 2d 129, 135-36 (2004). Under de novo review, we

perform the same analysis a trial judge would perform and give no deference to the judge’s

conclusions or specific rationale. In re Marriage of Kehoe, 2012 IL App (1st) 110644, ¶ 18.

¶ 10 The Marriage Act generally defines “marital property” as “all property acquired by either

spouse subsequent to the marriage.” 750 ILCS 5/503(a) (West 2004). Thus, “all property

acquired byeither spouse after the marriage and before a judgment of dissolution of marriage

*** is presumed to be marital property.” 750 ILCS 5/503(b)(1) (West 2004). Moreover, “all

pension benefits (including pension benefits under the Illinois Pension Code) acquired by

before the effective date of this Section”); see also In re Marriage of Menken, 334 Ill. App. 3d 531,

534 (2002).

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either spouse after the marriage and before a judgment of dissolution of marriage *** are

presumed to be marital property.” 750 ILCS 5/503(b)(2) (West 2004).

¶ 11 Section 17-121(a) of the Pension Code provides, “[a] surviving spouse of a teacher shall

be entitled to a survivor’s pension only if the surviving spouse was married to the teacher for

at least one yearimmediatelyprior to the teacher’s death.” 40 ILCS 5/17-121(a)(West 2004).

Ana is no longer married to Jerome and thus the plain language of the Pension Code clearly

excludes Ana as a “surviving spouse.” Nevertheless, according to Ana, section 17-121(a) of

the Pension Code should not dictate the outcome here. Instead, Ana argues the Marriage Act

and the Pension Code should be read “harmoniously” such that the survivor benefit of

Jerome’s pension may be designated as marital property and then distributed to Ana despite

section 17-121(a). In making this argument, Ana suggests we reject precedent set by this

court in In re Marriage of Hannon, 207 Ill. App. 3d 329 (1991).

¶ 12 The firefighter’s pension at issue in Hannon similarly restricted a “surviving spouse” to

“only a person who is married to a pensioner and alive at the time of the pensioner’s death.”

Hannon, 207 Ill. App. 3d at 333. The court in Hannon reasoned survivor benefits are

“generally defined under the Code as the property of the survivors of a deceased former

employee.” Id. at 334-35 (citing lll. Rev. Stat. 1989, ch. 1081⁄2, ¶ 4-114). “[U]nlike other

pension rights, survivor benefits have no possibility of becoming available for the

employee’s direct enjoyment” as the legislature statutorilydesignated these rights solely “for

survivors and not for the control of the employee.” Id. at 335-36. Accordingly, while there

is “a benefit from the anticipation of pension payments to [a pensioner’s] survivors,” the

survivor benefits still “arise only upon the death of a pensioner” and can only “accrue to the

spouse at the time of the employee’s death.” (Emphasis added.) Id. at 335. Thus, the court

determined that survivor benefits are “not subject to division as marital property.” Id. at 336.

¶ 13 According to Ana, however, the subsequent IllinoisSupremeCourt decision of Smithberg

v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291 (2000), effectively overrules Hannon.

In Smithberg, the husband agreed to designate his former wife as the sole beneficiary of the

death benefit from his retirement fund and agreed he would “ ‘not designate any other

survivors, or allocate any survivorship benefits, to anyone other than’ ” his former wife.

Smithberg, 192 Ill. 2d at 293. After the husband remarried, “contrary to the express terms of

the judgment and marital settlement agreement,” he designated his second wife as the

recipient of the death benefit. Id. The husband died without ever changing the designation

to his former wife per the settlement agreement. Id. On cross-motions for summary

judgment, the trial court ruled the second wife as the proper beneficiary. Id. at 292. On

appeal, this court reversed, finding summary judgment should have been granted for the

former wife. Id. The supreme court then affirmed the judgment of the appellate court. Id. at

306. In affirming the appellate court, the supreme court found the death benefits at issue were

marital property subject to distribution upon dissolution, noting “retirement benefits have

long been presumed to be marital property to the extent that the beneficial interest was

acquired during the marriage.” Id. at 303.

¶ 14 The facts of Smithberg noticeably differ from those of the instant case. Smithberg

concerned a death benefit that could be designated to any person the retiree desired. Id. at

293. Conversely, this case involves a surviving spouse benefit that accrues to an individual

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defined not by the pensioner, but by the Pension Code. Nonetheless, Ana asserts language

from Smithberg necessarilyrenders the survivor benefit at issue in this case to also be marital

property. In particular, Ana relies on language which states, “[t]he death benefit is similar

to a survivor benefit, which has been held to be a ‘distinct property interest’ and, though

contingent in nature [citation], it, like any other property right created by a judgment of

dissolution, becomes a vested right when the judgment is final [citation].” Id. at 302.

Smithberg does compare death benefits to survivor benefits and correctly notes courts have

previously held certain types of survivor benefits to be marital property. Regardless, we are

not persuaded that the survivor benefit in this case should likewise be designated as marital

property.

¶ 15 The Smithberg court cited In re Marriage of Moore for the proposition that “a survivor

benefit *** has been held to be a ‘distinct property interest.’ ” Id. (quoting In re Marriage

of Moore, 251 Ill. App. 3d 41, 44 (1993)). Ana focuses on the use of the label “survivor

benefit” in arguing the benefit in this case should be treated similarly to those in Smithberg

and Moore. This argument, however, ignores the substantive distinction between the benefits

at issue in those cases and the benefit at issue here. In Moore, the pension plan offered the

pensioner the option to elect a “survivor annuity,” but the so-called “survivor annuity”

allowed him to designate his former wife as the sole beneficiary. Moore, 251 Ill. App. 3d at

45. Thus, in both Smithberg and Moore, the statute granted the pensioner the ability to

choose the recipient of the benefit; this choice represented a present property interest

belonging to the pensioner. This shared substantive property–and not any respective

designation as a “death” or “survivor” benefit–was critical to the Smithberg and Moore

courts’ ability to distribute the benefits as marital property.

¶ 16 The benefit in this case differs from those at issue in Smithberg and Moore. The statute

awarding the pension here restricts receipt of the benefit only to a “surviving spouse.”

Accordingly, the survivor benefits belonged to neither Ana nor Jerome, but to a hypothetical

and undetermined “surviving spouse” defined by the Pension Code. Therefore, as the

contingent benefits belonged to neither spouse, theycould not be considered marital property

under the Marriage Act, which requires the property to be “acquired by either spouse

subsequent to the marriage.” 750 ILCS 5/503(a) (West 2004).

¶ 17 The legislature established the pension benefit at issue. See 40 ILCS 5/17-121, 17-122

(West 2004). The legislature may therefore define to whom the pension intends to benefit.

See Hannon, 207 Ill. App. 3d at 336 (“The pension code *** may exclude, as it has

excluded, a ‘former spouse’ from its definition of ‘surviving spouse.’ ”). While it is true

pension benefits are generally “presumed to be marital property” under the Marriage Act, the

presumption is overcome in this case where the pension benefits at issue did not belong to

either spouse during the marriage. Accordingly, the trial court properlydenied Ana’s petition

to distribute the survivor benefit as marital property.

¶ 18 II. Equitable Relief

¶ 19 Ana additionally argues the court should still exercise its equitable power by ordering the

Pension Fund to provide her the survivor’s benefit regardless of any mandate to the contrary

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by the legislature in the Marriage Act and Pension Code. According to Ana, the court’s

equitable powers are not “diluted” by conflicting statutoryprovisions. She further argues that

because the legislature has “no authorityto take away or abridge the court’s historic equitable

powers,” this court should distribute the survivor benefit to petitioner.

¶ 20 Although Ana did not label it as such, her argument for equitable relief amounts to a

request for a positive or mandatory injunction. See People v. Van Tran Electric Corp., 152

Ill. App. 3d 175, 183 (1987) (“A mandatory injunction *** commands the performance of

some positive act.”). Generally “not favored by the courts,” a mandatory injunction is an

“extraordinary remedy” and granted only in the rare instance the petitioner “has established

a clear right to relief and the court determines that the urgency of the situation necessitates

such action.” Lewis E. v. Spagnolo, 186 Ill. 2d 198, 234 (1999). The decision to grant or deny

an injunction rests within the sound discretion of the trial court and on review the decision

will not be disturbed absent an abuse of discretion. People ex rel. Klaeren v. Village of Lisle,

202 Ill. 2d 164, 177 (2002). A trial court abuses its discretion only where no reasonable

person would take the view adopted by the trial court. In re Marriage of Schneider, 214 Ill.

2d 152, 173 (2005).

¶ 21 To argue she is entitled to a mandatory injunction, Ana again relies on Smithberg. In

particular, Ana argues the court in Smithberg “directed the [Illinois Municipal Retirement

Fund] to pay the death benefit to [the former wife],” despite the Pension Code stating the

death benefit should be distributed to the person designated by the retiree, which in

Smithberg was the retiree’s second wife. In making this argument, Ana mischaracterizes the

court’s actions in Smithberg.

¶ 22 In Smithberg, the retiree agreed in a marital settlement agreement to designate his former

wife as the recipient of the death benefit. Smithberg, 192 Ill. 2d at 293. When the retiree

changed the designation to his second wife prior to his death, he violated the terms of the

agreement. Id. The court could have held the retiree in contempt of court and ordered him

to revert the designation to his former wife. Id. at 296. Afterthe retiree’s death, however, this

became impossible. Id. at 298. Thus, the supreme court noted an equitable remedy was

necessary to achieve the proper result. Id. at 299.

¶ 23 The court in Smithberg did not, as Ana suggests, order the retirement fund to pay the

former wife directly in contravention to the Pension Code. See id. Instead, the court used its

equitable powers to “deem[ ] the designation of beneficiary form [designating the former

wife as the sole beneficiary] filed with the [retirement fund] when it should have been filed,

prior to [the retiree’s] death.” Id. In addition, the supreme court noted another properremedy

would have been to establish a constructive trust under which the second wife would still

have initially received the death benefit. Id. The constructive trust then would have required

the second wife “to transfer title and possession of the wrongfully acquired property to the

[former wife].” Id. Neither equitable remedy would “trump” the statutory designation of the

Pension Code. Rather, both remedies are designed to achieve the result demanded by the

marital settlement agreement in a manner consistent with the provisions of the Pension Code.

¶ 24 Ana does not request either remedydescribed in Smithberg. Indeed, both remedies would

be impossible to administer in this case. No beneficiary form exists for the court to deem

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filed. Likewise, a constructive trust would not be appropriate here because no one is eligible

to receive the survivor’s benefit at this time. Consequently, Ana must ask for the 2

“extraordinary” remedy of a mandatory injunction and Smithberg does not support the

assertion that a mandatory injunction would have been proper in this case.

¶ 25 In addition to relying on Smithberg, Ana also argues the previous preliminary injunction

entered in this case demonstrates why she is entitled to a mandatory injunction here. The

previous injunction sought to enforce the terms of the existing judgment by setting up a

constructive trust. Winter, 387 Ill. App. 3d at 27. The purpose of the constructive trust was

to assure Ana received the marital property the trial court found she was entitled to receive.

Id. at 28. Ana now requests we use a permanent mandatory injunction to distribute survivor

benefits that the law prohibits. Given this distinction, we cannot state that “no reasonable

person would take the view adopted by the trial court.” Accordingly, the trial court did not

abuse its discretion by denying Ana’s request for a mandatory injunction.

¶ 26 III. Equal Protection

¶ 27 Ana lastly argues the definition of a surviving spouse under section 17-121(a) as applied

to her violates her equal protection rights under the Illinois and United States Constitutions.

According to Ana, section 17-121(a) irrationally discriminates against her–a former spouse

who had been married to the pensioner for 25 years–in favor of a hypothetical current spouse

who may have only been married to the pensioner for one year by the time of his death. We

need not address this argument because Ana has forfeited this assertion by not challenging

the statute in the trial court. While Ana did raise a constitutional challenge to a different

statute below, she neverraised the as-applied challenge to section 17-121(a) she now asserts 3

on appeal. “A party’s failure to challenge the constitutionality of a statute in the circuit court

normally forfeits that challenge on appeal in a civil case.” Forest Preserve District v. First

National Bank of Franklin Park, 2011 IL 110759, ¶ 27 (citing In re Liquidations of Reserve

Insurance Co., 122 Ill. 2d 555, 567-68 (1988)). Moreover, “it is well established that a court

is not capable of making an ‘as applied’ determination of a statute’s constitutionality where

there has been neither an evidentiary hearing nor any findings of fact in the lower court.”

People v. Brisco, 2012 IL App (1st) 101612, ¶ 57.

¶ 28 In addition, Ana failed to provide timely notice to the Illinois Attorney General of the

To create a constructive trust, “a court declares the party in possession of wrongfully

2

acquired property the constructive trustee of that property because it would be inequitable for that

party to retain possession of it.” Smithberg, 192 Ill. 2d at 299. “The sole duty of the constructive

trustee is to transfer title and possession of the wrongfully acquired property to the beneficiary.” Id.

As no party has wrongfully acquired the property at issue here, the court cannot declare a

constructive trust.

At trial, Ana argued the antialienation provisions of the PensionCode were unconstitutional

3

as applied to her. While Ana did not cite which antialienation provisions she was specifically

challenging, the cases Ana cited in the trial court discussed sections 1-119(m) and 17-151 of the

Pension Code. Neither of these sections relates to the argument she now makes on appeal.

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constitutional argument she raised on appeal. Under Illinois Supreme Court Rule 19, a party

challenging the constitutionality of a statute in a case where the State is not a party must

serve notice on the AttorneyGeneral or properstate agency. See Ill. S. Ct. R. 19(b) (eff. Sept.

1, 2006). Rule 19 requires notice “be served at the time of suit, answer or counterclaim, if

the challenge is raised [in the trial court].” Ill. S. Ct. R. 19(b) (eff. Sept. 1, 2006). Otherwise,

the party must serve notice “promptly after the constitutional or preemption question arises

as a result of a circuit or reviewing court ruling or judgment.” (Emphasis added.) Ill. S. Ct.

R. 19(b) (eff. Sept. 1, 2006). Ana did not serve notice on the Attorney General shortly after

she realized the “alleged unconstitutional statute would be used against [her].” Villareal v.

Peebles, 299 Ill. App. 3d 556, 560-61 (1998). At the latest, Ana became aware the alleged

unconstitutional statute would be used against her on March 22, 2011, when the trial court

issued an orderfinding section 17-121(a) barred her from receiving the survivor benefit. Ana,

however, served the Attorney General on September 18, 2012, 18 months after the entry of

the trial court’s order and one week after the filing of her initial brief in this matter.

Consequently, Ana’s notice was not timely filed and her constitutional argument is deemed

forfeited on these grounds, as well as on the grounds that she failed to raise the argument at

trial. See Downtown Disposal Services, Inc. v. City of Chicago, 407 Ill. App. 3d 822, 830

(2011) (failure to strictly comply with supreme court rule requiring a party challenging the

constitutionality of a statute to serve notice of the challenge on the Attorney General may

result in forfeiture).

¶ 29 For the first time in her reply brief, however, Ana asserts the Pension Fund did not

address the timeliness of her notice in its response and, therefore, the Pension Fund has

forfeited any forfeiture argument. First, we note this argument was improperly raised in the

reply brief and we need not address it; an appellant’s arguments must be made in the

appellant’s opening brief and cannot be raised for the first time in the appellate court by a

reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (“Points not argued are waived and

shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”); see also

In re Marriage of Petrik, 2012 IL App (2d) 110495, ¶ 40. Second, “forfeiture rules serve as

an admonition to the litigants rather than a limitation upon the jurisdiction of the reviewing

court.” Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 33. Therefore, the

Pension Fund’s failure to address forfeiture in its brief does not divest this court of the power

to deem Ana’s constitutional argument forfeited. Finally, the Illinois Supreme Court has

admonished this court to consider constitutional questions only where the case cannot be

determined on other grounds. People v. White, 2011 IL 109689, ¶ 148. As Ana has twice

forfeited her constitutional argument, we find no reason to otherwise relax the forfeiture rules

and address the merits of her constitutional claim.

¶ 30 CONCLUSION

¶ 31 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 32 Affirmed.

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