## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

In re Marriage of Wint

er , 2013 IL App (1st) 112836

Appellate Court Caption In re MARRI AGE OF ANA L

. WI NTER
, Petitioner-Appellant, and J EROME WI

NTER, Respondent (Public School Tea cher s’ Pension and Retirement F und of Chicag o, Interve nor-Appe llee).

District & N o. First District, Six th Division Docke t No. 1-11-2836

Rule 23 Order

filed Rule 23 Order
withdrawn Opinion filed J une 14, 2013

J uly 12, 2013
J uly 12, 2013

Held (Note : Th is syl lab us

c ons ti tut es no par t o

f the opi nio n of the cour t but has bee n pre

par ed by the R epo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n proce eding s dissolving the parties’ m ar riag e, the trial court proper ly found that the “surviving spouse benef it” under responde nt’s disability pension plan was not marital proper ty subject to distribution to petitioner
upon his death, since the benef it did not belong to either spouse during the marria g e, it was not marital proper ty and the Pension Code excluded

a “for mer spouse” from the definition of a “surviving spouse,” and, further more, the trial court did not abuse its discretion in ref using to g rant petitioner’s reque st for a mandatory injunction distributing the benef it to her, and she for fe i t ed the argument that the Pension Code exclusion violated her

equal pr otection rig hts.

Dec ision Under
Review Appea l fr o m the Circuit Court of Cook County
, No. 98-D-11073; the Hon. Mark Joseph L opez, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l J ames K. L even, of L aw Offic e of J ames K. L even, of Chicag o, for appellant.

Anita Tana

y and Tiffa

ny R

. Reeve s, both of J acobs, Bur ns, Orlove & Her nandez, of Chicag o, for a ppellee.

Panel J USTI CE REYES delivered the judg ment of the c ourt, with opinion. Presiding J ustice L ampkin and J ustice Gordon concur red in the judgme nt and opinion.

OP INION

¶ 1 Following the entry of an order finding the “surviving spouse benef it” o f re s pondent J erome Wint er’ s (Jerome) disability pension plan is not marital p ro p erty subject to distribution, p et i t i o ner Ana Wint er (Ana ) now appea ls. Ana argues upon the passing of J erome she is entitled to the surviving spouse benef it despite not meeting the statutory definition of a surviving spouse under the I llinois Pension Code (Pension Code) (40 I L CS 5/17-121(a) (West 2006)). For the fore g oing rea sons, we aff irm the decision of the trial court.

¶ 2 BA CKGROUND ¶ 3 Ana and J erome Wint er marrie d in 1980. The couple then separat ed i n 1 9 9 8 befor e ultimately divorcing in 2005. Prior to the divorce
, J erome moved to the United King dom, taking their child and, a ccor ding to the trial court, “virtually all the m arital assets.” Due to J erome ’s continued residenc e abroa d, the trial court encounte red signific ant difficulty identifying, valuing
, and distributing most of the marital assets. J erome ’s pension pay ments, howeve r, rema ined availa b l e fo r distribution by the court. J erome , a retire d teac her for Chicag o Publi c Schools, beg an rec eiving pension pay ments from the Public School Tea cher s’ Pension and R et i re ment Fund (Pension Fund) in 1985. The 2005 judgme nt of dissoluti on awa

rded the entire marital portion of this pension to Ana via a “Qua lified I llinois Domestic Relations Orde r” ( QI L DRO) (40 I L CS 5/ 1-119 (West 2004)). ¶ 4 I nitially
, J erome b l o ck ed An a’s rec eipt of any pension pay ments by ref

using to sign a

co n s en t to the QI L DRO, as require d by section 1-119(m) of the QI L DRO law. An a, 1

J er om e began par ti ci pat ing in the pen si on pla n pri or to t h e 1 9 9 9 e f fe ct ive dat e of the 1 QI LDRO la w. Pub. Act 90- 731 (e ff

. J uly 1, 1999 ) (a ddi ng 40 I LCS 5/1

- 119)

. Acco rdi ngly, J er om e’ s

con sen t was re qui re d bef o r e t he pen si on pla n cou ld pay Ana her m ar it al por ti on of the paym ent s dir ect ly. See 40 I LCS 5/1

- 119( m ) (W est 2004 ) (“ a QI LDRO is sue d agains t a m ember of a re ti re m ent syste m est abl i s h ed unde r an Art ic le of thi s Code tha t exe m pts the paym ent of ben ef it s or re fun ds fr om at ta chment, garni shme n t , j u d gme nt or oth er le gal pro ces s sha ll not be ef fe ct ive wit hout the wri tt en con sen t of the m ember if the m ember began par ti ci pat ing in the re ti re m ent s ys te m on or

-2-there fore
, petitioned the trial court to fre eze J erome ’s pension b en efits. The trial court

g rante d Ana’ s petition and issued a preliminary injunction requiring the entire portion of all future p ension pay

ments be place d in an I OL TA (“I ntere st on L awyers Trust Acc ount”) pending further order of court. J erome appea led the decision of the trial court to enter a preliminary injunction, which wa s aff irmed and r emande d by

this court. In re M

arriage of W inter , 387 I ll. App. 3d 21, 23-24 (2008). ¶ 5 Upon remand, Ana filed an “Amended Petit ion for Turnover Or der and Other Relief .” I n her petition, Ana argued the survivor benef its wer e marital proper

ty and reque sted, inter alia
, the t rial court to use i ts equitable power to o rd er “t h e Pension Fund *** to distribute J erome ’s survivor benef

its to Ana Wint er upon J erome Wint er’ s death.” The Pension Fund, having previously intervene d in the lawsuit, filed a response to the petition arguing Ana was not entitled to the survivor benef i t s

. On Marc h 22, 2011, in a written order
, the trial court denied Ana’ s reque st for survivor benef its

. T h e t ri al court found Ana “fa ils to meet the definit i o n o f a ‘surviving spouse’ ” under the plain lang uag e of the Pension Code and conclude d the surviving spouse benef it is “not subject to division as marital proper ty .” Ana
now appe als the dec ision of the trial court de ny ing he r petition.

¶ 6 ANALYSI S ¶ 7 Ana sets forth three arg uments on appea l: (1) the court should awa rd her t h e s u rv i v o r benef it of the pension plan as marital proper ty ; (2) the court shou l d grant her the survivor benef it pursuant to its equitable power s to enfo rc e t h e judgme nt for the dissoluti on of marria g e; and (3) the I llinois Pension Code’s surviving spouse definition as applied violates her e qual protec tion rights under the I llinois and United States Constituti ons.

¶ 8 I . Marital Proper ty ¶ 9 An a p ri m ar i l y ar gues the pension plan’s survivor benef its shoul d b e s u b

j ec t t o distribution as marit al proper ty at the time of J erome ’s demise. Addre ssing this argument involves the interpre tation and application of the I llinois Marr iag e and Dissolution of Marr iag e Act (Mar

riag e Act) (750 I L CS 5/101 et s eq. (West 2004)) and the P ension Code (40 I L CS 5/1-101 et seq. (West 2004) ). Thus, as a question of law, we revie w this issue de novo. In re Marriage of R ogers , 213 I ll. 2d 129, 135-36 (2004). Under de novo revie w, we perf orm the same analy sis a trial judge would perf orm and g ive no defe renc e to the judge ’s conclusions or specific rationale

. In re Marriage of Kehoe
, 2012 I L App (1st) 110644, ¶ 18. ¶ 10 The Marr iag e Act g ener ally define s “mar ital proper ty ” as “all proper

ty acquir ed by

either
spouse subsequent to the marria g e.” 750 I L CS 5/503(a) (West 2004). Thus, “all proper ty acquir ed by either spouse afte r the marria g e and befor e a judgme nt of dissoluti on of marria g e *** is presumed to be marital proper ty .” 750 I L CS 5/503(b)(1) (West 2004). Moreove r, “all pension b en ef

i ts (including pension benef its under the I llinois Pension Code) acquir ed by

bef ore the ef fe ct ive dat e of thi s Sec ti on” ); see al so In re Ma rri age ofMe nke n , 334 I ll

. App. 3d 531, 534 (20 02)

.
-3-either spouse afte r the marria g e and befor e a judgme nt of dissoluti on of marria g e * * * are

presumed to be marital prope rty .” 750 I L CS 5/ 503(b)( 2) (West 2004). ¶ 11 Section 17-121(a ) of the Pension Code provides, “[a] surviving spouse of a teac her sha ll be entitled to a survivor’s pension only if the surviving spouse was marrie d to the teac her for
at least one y ear immediately prior to the teac her’ s death.” 40 I L CS 5/17-121(a) (West 2004). Ana is no longe r marrie d to J erome and thus the plain lang uag e of the Pension Code clea rly excludes Ana as a “surviving spouse.” Neve rtheless, acc ording to Ana, section 17-121(a ) of the Pension Code should not dictate the outcome here

. I nstead, Ana arg ues the Marr iag e Act and the Pension Code should be rea d “har mo n i o u s l y ” such that the survivor benef it of J erome ’s pension may be desig nated as marital proper ty and then distributed to Ana despite section 17-121(a ). I n making this argument, Ana sug g ests we reje ct prec edent set by this court in In re M

arriage of Hannon , 207 I ll. App. 3d 329 (1991). ¶ 12 The firef

ighte r’s pension at issue in Hannon simil arly restric ted a “surviving spouse” to “only a person who is marrie d to a pensioner and alive at the time of the pensioner’ s death.” Hannon
, 207 I ll. App. 3d at 333. The court in Hannon rea s o n ed survivor benef its are “g ener ally define d u n d er t he Code as the proper ty of the survivors of a dece ased former employ ee.” Id. at 33 4 -3 5 (c iting lll. Rev. Stat. 1989, ch. 1081⁄2, ¶ 4-114). “[U]nl ike other
p ensi on rig hts, survivor benef its have no possibili ty of becoming available for t h e employ ee’ s direc t enjoy

ment” as the leg islature statutorily desig nated these rig hts solely “for survivors and not for

the control of the employ ee.” Id. at 335-36. Ac cording ly , while there is “a benef

it from the anticipation of pens i o n pay ments to [a pensioner’ s] survivors,” the survivor benef

its still “ar ise only upon the death of a pensioner” and can only “ac crue to the spouse at the tim e of the employ ee’ s death.” (Emphasis added.) Id. at 335. Thus, the court deter mined that survivor benef its are “not subject to division as marital proper ty .” Id. at 336. ¶ 13 Acc ording to Ana, ho w e v e r , th e s u b s e q u e nt I ll in o is Su

preme Court decision of Smithberg

v. Illinois Municipal Retireme nt Fund
, 192 I ll. 2d 291 (2000), eff ectively overr

ules Hannon

. I n Smithberg
, the husband ag ree d to desig nate his former wife as the sole benef iciary of the death b en ef

it from his retire ment fund and ag ree d he would “ ‘not desig nate any other survivors, or alloca t e any survivorship benef its, to any one other than’ ” his former wife. Smithberg
, 192 I ll. 2d at 293. After the husband rema rried, “contr ary to the express terms of
t he judgme nt and marital settlement ag ree ment,” he desig nated his second wife as t h e

rec ipient of t he death benef it. Id. The husband died wit hout ever chang ing the desig nation
to his former wi fe per the settlement ag ree ment. Id. On cross-motions for summary judgme nt, the trial court ruled the second wi fe as the proper benef iciary

. Id. at 292. On
ap p ea l
, this court reve rsed, finding summary judgme nt should have been g rante d for the former wife. Id. The supreme court then aff irmed the judgme nt of the appellate court. Id. at 306. I n aff irming the appellate court, the supreme court found the death benef its at issue wer e marital proper

ty subject to distribution upon dissoluti on, noting “re tirement benef its have long been presumed to be marital proper ty to the extent that the benef icial i n t er es t was acquir ed duringthe marr iag e.” Id. at 303. ¶ 14 The fac ts of Smithberg noticeably differ from tho s e o f t h e i n s t an t case

. Smithberg

conce rned a death benef

it that could be desig nated to any person the retire e desired. Id

. at 293. Conversely
, this case involves a surviving spouse benef it that acc rues to an individual

-4-define d not by the pensioner, but by the P ension Code. Nonethele ss, Ana asserts l ang uag e

from Smithberg nece ssarily rende rs the survivor benef it at issue in this case to also be marital
proper ty

. I n particula

r, Ana relies on lang uag e which states, “[ t ] h e d ea t h benef it is simil ar to a survivor benef

it, which has been h el d to be a ‘distinct proper ty interest’ and, though conting ent in nature [citation]
, it, like any other proper ty rig h t cr ea t ed by a judgme nt of dissoluti o n , b ec o m es a vested rig ht when the judgme nt is final [citation] .” Id. at 302. Smithberg does compar e death benef its to survivor benef

its and corr ectly notes courts have previously held cer

tain ty pes of survivor benef

its to be marital proper

ty

. Reg ardle ss, we are not persua ded that the survivor benef it in this case should likewise be desig nated as marital
proper ty

. ¶ 15 The Smithberg court cited In re Marriage ofMoore for the proposition that “a survivor benef it *** has been held to be a ‘distinct proper ty interest.’ ” Id. (quoting In re M arriage of Moore
, 251 I ll. App. 3d 41, 44 (1993))

. Ana focuse s on the use of the label “survivor benef it” in arg uing the benef

it in this case should be treated simil arly to those in Smithberg and Moore

. This argument, howeve r, ignor es the substantive distinction betwee n the be n e f its at issue in those ca ses and the benefit at i ssue here. I n Moore , the pension plan off ere d the pensioner the option to elec t a “survivor annuity ,” but the so-ca lled “surv i v o r an nuity ” allowed him to desig nate his former wife as the sole benef iciary

. Moore
, 251 I ll. App. 3d at 45. Thus, in both Smithberg and Moore
, the statute g rante d the pensioner the ability to choose the rec ipient of the benef it; this choice repr esente d a prese nt property interest b el ong ing to the pensioner. This share d substantive proper ty –and not any respe ct i v e desig nation as a “dea

th” or “survivor” benef

it–was crit i ca l to the Smithberg and Moore courts’ a bility to distribute the benef

its as marital proper

ty

. ¶ 16 The benef

it in this c ase differ s from those at issue in Smithberg and Moore

. The statute

awa rding the pension here restric ts rec eipt of the benef it only to a “survi v i ng spouse.” Acc ording ly
, the survivor benef its belong ed to neither Ana nor J erome , but to a hy pothetical and undeter

mined “surviving spouse” d ef ined by the Pension Code. There fore
, as the conting ent benef

its belong ed to neither spouse, they could not be considere d marital proper ty under the Marr iag e Act, which require s the proper ty to be “ac quired by eit h er s p o use subsequent to the mar

riag e.” 750 I L CS 5/ 503(a) (West 2004). ¶ 17 The leg islature esta blished the pension bene fit at issue. See 40 I L CS 5/17-121, 17-122 (West 2004). The leg islature may there fore define to whom the pension intends to benef it. See Hannon
, 20 7 I l l

. Ap p

. 3 d at 336 (“The pension code *** may exclude, as it has excluded
, a ‘for

mer spouse’ from its definition of ‘surviving spouse.’ ”). Whil e it is true pension benef

its are g ener ally “pre sumed to be marital proper ty ” under the Marr iag e Act, the presumption is overcome in this case wher e the pe nsion benefits at issue did not belong to either spouse during the marria g e. Acc ording ly
, the trial court proper ly denied Ana’ s petition to distribute the survivor bene fit as marital prope rty

.

¶ 18 I I . Equitable Relief ¶ 19 Ana additionally argues the court should still exercise its equitable power by order ing the Pension Fund to provide her the survivor’s benef it reg ardle ss of any mandate to the contra ry

-5-by the leg islature in the Marr iag e Act and Pens i o n C o d e. Acc ording to Ana, the court’s

equitable power s are not “diluted” by conflicting statutory provisions. She further argues that beca use the leg islature has “no authority to take awa y or abridg e the court’s historic equitable
power s,” this court should distribute the survivor bene fit to petitioner. ¶ 20 Although Ana did not label it as such, her argument for equitable reli ef am o u nts to a reque st for a positive or mandatory injunction. See People v. Van Tran Electric Corp.
, 152 I ll. App. 3d 175, 183 (1987) ( “A mandatory injunction *** commands the perf ormanc e of

some positive act.” ). Gene rally “not favor ed b y the courts,” a mandatory injunction is an “extraordinar

y reme dy ” and g rante d only in the rar e instance the petitioner “has established

a clea r rig ht to relief a

nd the cour

t determines that the urg ency of the situation ne cessitates such action.” Lewis E. v. Spagnolo
, 186 I ll. 2d 198, 234 (1999). The decision to g rant or deny an injunction rests within the sound discretion of the trial court and on revie w the decision will not be disturbed absent an abuse of discretion. People ex rel. Klaeren v. Village of Lisl e , 202 I ll. 2d 164, 177 (2002). A trial co u rt abuses its discretion only wher e no rea sonable
person would take the view adopted by the trial court. In re Marriage of Schneide r , 214 I ll. 2d 152, 173 (2005). ¶ 21 To argue she is entitled to a mandatory injunct i o n , An a aga in relies on Smithberg . I n particula r, Ana argues t he court in Smithberg “di re ct ed the [ I llinois Municipal Retirement Fund] to pay the death benef it to [t he former wife],” despite the Pension Co de stating the death benef

it should be distributed to the person desig nated b y t h e retire e, which in Smithberg was the retire e’s second wife. I n making this argument, Ana mischara cter izes the court’s a ctions in Smithberg

. ¶ 22 I n Smithberg
, the retire e ag ree d in a marital settlement ag ree ment to desig nate his former wife as the re ci pient of the death benef it. Smithberg
, 192 I ll. 2d at 293. When the retire e chang ed the desig nation to his second wi fe p ri o r to his death, he violated the terms of the
ag ree ment. Id. The court could have held t he retiree in contempt of court an d order ed him
to reve rt the desig nation to his former wife. Id. at 296. After the retire e’s death, howeve r, this beca me impossibl e. Id. at 298. Thus, the supreme court noted an eq uitable reme dy was

nece ssary to achieve the prope r re sult. Id. at 299. ¶ 23 T h e co urt in Smithberg did not, as Ana sug g ests, order the retire ment fund to pay t h e former wife direc tly in contravention to the Pension Code. See id. I nstead, the court used its equitable power s to “dee m[ ] the desig nation of benef iciary form [d esi g nating the former wife as the sole benef

iciary ] filed with the [retirement fund] when it should have been filed, prior to [t he retire e’s] death.” Id. I n addition, the supreme court noted another proper reme dy would h av e b ee n to establish a constructive trust under which the second wife would still have initially rec eived the death benef it. Id. The constructive trust then would have require d the second wife “to transf er title and posse ssion of the wrong fully acquir ed prope rty

to the [former wife].” Id. Neither equitable reme dy would “trump” the statutory desig nation of the Pension Code. Rather, both reme dies are desig ned to achie ve the resu l t d em an d ed by the marital settlement ag ree ment in a manner consistent with the provisions of the Pension Code. ¶ 24 Ana does not reque st either reme dy descr ibed in Smithberg

. I ndeed, both reme dies would be impossibl e to administer in this case

. No benef iciary form exis ts fo r t h e court to deem

-6-filed. L ikewise, a constructive trust would not be appropr iate here beca use no one is elig ible
to rec eive the survivor’s benef it at this time. Cons equently
, Ana must ask for the 2 “extr ao rd i n ary” reme dy of a mandatory injunction and Smithberg does not support the

asser tion that a mandatory

injunction would have bee n proper in this case. ¶ 25 I n addition to relying on Smithberg
, Ana also argues the previous preliminary injunction
enter ed in this case demonstrates why she is entitled to a mandatory inj u n ct i o n here

. The previous injunction soug ht to enfor ce t h e t er m s of the exis ting judgme nt by setting up a constructive trust. W

inter
, 387 I ll. App. 3d at 27. The purpose of the construc tive trust w as to assure Ana rec eived the marital proper ty the trial court found she was entitled to rec eive. Id. at 28. Ana now reque sts we use a perma nent mandatory injunction to distribute survivor benef its that the law prohibits. Given this distinction, we cannot state that “no rea sonable person would take the view a dopted by the trial court.” Acc ording ly
, the trial court did not abuse its discre tion by

denying A na’s r equest for a mandatory

injunction.

¶ 26 I I I . Equal Protection ¶ 27 Ana lastly argues the definition of a surviving spouse under section 17-121(a ) as applied
to her violates her equal protec tion rig hts under the I llinois and United States Constit utions. Acc ording to Ana, section 17-121(a ) irrationally discriminates ag ainst her–a former spouse who had been marrie d to the pensioner for 25 y ear s–in favor of a hy pothetical curr ent spouse who may have only been marrie d to the pensioner for one y ear by the time of his death. We need not a ddress this argument beca use Ana has forf

eited this a ssertion by not challeng ing the statute in the trial court. Whil e Ana did raise a constitutional challen ge t o a d i ff ere nt statute below, she never raised the as-a pplied challeng e to section 17-121(a ) she now asser ts 3

on appea l. “A party ’s failure to challeng e the constitutionalit y of a statute in the circ uit court normally forf

eits that challeng e on appea l in a civil c ase.” Forest Preserv e District v. First National Bank of

Franklin Park
, 2011 I L 110759, ¶ 27 (citing In re Liquidat ions of Reserv e Insurance Co.
, 122 I ll. 2d 555, 567-68 (1988))

. Moreove r, “it is well established that a court is not capa

ble of making an ‘as applied’ deter mination of a statute’s constitutionalit y wher e there has been neither an evidentiar y hear ing nor any finding s of fac t in the l o we r co u rt .” People v . Brisco , 2012 I LApp (1st) 101612, ¶ 57. ¶ 28 I n addition, Ana failed to provide timely notice to the I l l i n o i s At t orney Gene ral of the

T o cr eat e a c o n s t ruc ti ve tr ust , “a cou rt dec la re s the par ty in pos ses si on of wron gfull y 2
acq uir ed prop er ty the con st ruc ti ve tr ust ee of tha t prop er ty bec aus e i t wo uld be ine qui ta ble for tha t par ty t o r e t a i n p oss ess ion of it .” Smit hbe rg , 192 I ll

. 2d at 299. “T he sol e dut y of the con st ruc ti ve tr ust ee is to tr ans fe r ti tl e and pos ses si on of the wron gfull y acq uir ed pro per ty to the ben ef ic ia ry.” Id. As no par ty has wron gfull y acq uir ed the pro per ty at is sue her e, the cou rt can not d e c l a r e a

con st ruc ti ve trust

.

At tr ia l, Ana ar gued the ant ia li ena ti on pro visio ns of the Pens ion Code wer e unc ons titu tiona l 3

as app li ed to her

. Wh il e Ana did not ci te whic h ant ia l i e n a t i on pro visio ns she was spe ci fi cal ly cha ll enging, the cas es Ana ci te d in the tr ia l cou rt di s c u s s e d s e c t ion s 1- 119( m ) and 17- 151 of the Pens ion Code . Nei the r o f t hes e s ect ion s r el at es to the ar gum ent she now mak es on a ppe al

.

-7-constitutional argument she raised on appea l. Under I llinois Supreme Court Rule 19, a party

challeng ing the constitutionalit y of a statute in a case wh ere the State is not a party must

serve notice on the Attorney Gene ral or proper state ag ency

. See I ll. S. Ct. R. 19(b) (ef f. Sept. 1, 2006). R

ule 19 require s notice “be s erve d at t he ti me of suit, answe r or counter claim, i f the challeng e is raised [i n the trial court].” I ll. S. Ct. R. 19(b) (ef f. Sept. 1, 2006). Otherw ise, the party must serve notice “promptly afte r the constitutional or pree mption question arises

as a result of a circ uit or revie wing court ruling or judgme nt.” (Emphasis added.) I ll. S. Ct. R. 19(b) (ef

f. Sept. 1, 2006). Ana did not serve notice on the Attorney Gene ral shortly afte r she re alized the “alleg ed unconstitutional statute would be used ag ainst [her].” Villareal v

. Pee bles , 299 I ll. App. 3d 556, 560-61 (1998). At the latest, Ana beca me awa re the alleg ed unconstitutional statute would be used ag ainst her on Marc h 22, 2011, when the tr ial court issued an order finding section 17-121(a ) barr ed her from rec eiving the s u r v iv or benef

it. Ana, howeve r, serve d the Attorney Gene ral on September 18, 2012, 18 months afte r the entry of the trial court’s order and one wee k afte r the filing of her initial b ri ef in this matter. Consequently
, Ana’ s notice was not timely filed and her constitutional arg ument is deeme d forf eited on these g rounds, as well as on the g rounds that she failed to raise the argument at trial. See Do w n town Disposal Servic es, Inc. v. City of Chicago
, 407 I ll. App. 3d 822, 830 (2011) (fa ilure to stric tly comply with supr eme c ourt rule r equiring a par ty challeng ing the constitutionalit y of a statute to serve notice of the challeng e on the Attorney Ge n er al may result in forf

eiture)

. ¶ 29 For the first time in h er re p l y b ri ef
, howeve r, Ana asser

ts the Pension Fund did not add re s s the timeliness of her notice in its response and, there fore
, the Pension Fund has forf eited any forf

eiture argument. First, we note this argument was improperly raised in the reply brief and we need not addre ss it; an appell an t ’s ar gu m ents must be made in the appellant’ s opening brief and cannot be raised for the first time in the appell at e co u rt b y a reply brief. See I ll. S. Ct. R. 341(h)( 7) (ef f. J uly 1, 2008) (“Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehe aring .”); see also In re Marriage of Petrik
, 2012 I L App (2d) 110495, ¶ 40. Second, “for feiture rules serve as

an admonition to the litigants rathe r than a limit ation upon the jurisdiction of the revie wing court.” Jack

son v. Board of E lection Commissioners
, 2012 I L 111928, ¶ 33. There fore
, the Pension Fund’ s failure to addre ss forf eiture in its brief does not divest this court of the power to deem Ana’ s constitutional argument forf eited. Finally
, the I llinois Supreme Court has admonished this court to co n s i d er constitutional questions only wher e the case cannot be deter mined on other g rounds. People v. W hite
, 2011 I L 109689, ¶ 148. As Ana has twice forf eited her constitutional argument, we find no rea son to oth e r w ise rela x the forf

eiture rules and addr ess the mer its of her c onstitut ional claim.

¶ 30 CONCL USI ON ¶ 31 For the fore g oing rea sons, w e aff irm the judgme nt of the circ uit c ourt of Cook County

.

¶ 32 Affir

med.

-8-