## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Wendt, 2013 IL App (1st) 123261

Appellate Court Caption In re MARRI AGE OF SCOTT WENDT, Petitioner-Appellee
, and AL I SON WENDT, Respondent-Appe llant.

District & N o. First District, Six th Division Docke t No. 1-12-3261

Filed August 16, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo 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

. ) In a marria g e dissoluti on proce eding
, the trial court proper ly deter mined that petitioner’s bonus for the y ear 2012, if paid, would be considere d nonmarital proper

ty , since petit i o n er had no contra ctual rig ht to the bonus, which wa s a matter of his employ er’ s discretion.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, Nos. 10-D-7009, 10-D7067; the Hon. Patricia L ogue, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l J an R. Kowa lski, of Kalche im Haber , L L P, of Chicag o, for a ppellant.

No brief filed for appellee

.

Panel J USTI CE G ORDON delivere d the judg ment of the c ourt, with opinion. Presiding J ustice L ampkin and J ustice Rey es concur red in the judgme nt and opinion.

OP INION

¶ 1 The instant ca se ar ises from the dissolution of the marr iag e of Scott Wendt and Alison Wendt. The sole issue befor e us conce rns Scott’s 2012 bonus from his employ er, which, if issued at all, would be issued in F ebrua ry 2013. Be fore the trial court, Alison c laimed that

1 nine-twe lfths of the bonus is marital proper ty beca use it acc rued during the marria g e, while Scott c laimed it was nonmarital proper ty beca use it wa s speculative and discretionar y

. The trial court found that the bonus was not marital proper ty , char acte rizing it as an expectancy and not a c ontrac tually

enfor cea ble right. For the rea sons that follow, we a ffirm.

¶ 2 BA CKGROUND ¶ 3 On J uly 14, 2010, Scott filed a petition for dissoluti on of marria g e and, on J uly 15, 2010, Alison also filed a petition for dissoluti on of marria g e. The case s wer e consolidated by the 2 trial court. Scott is a softwar e develope r with Citadel, L L C, and Alison is employ ed part-time
as a te ache r. The pa

rties have a daughter, born in June 2009. ¶ 4 On September 9, 2010, Alison filed a petition fo r t em p o ra ry m ai n t enance and child support. On J anuar

y 7, 2011, the court enter ed an agree d order on Alison’s petition, finding that Scott’s 2009 net income was $118,920. The cour t o rdered Scott to pay $1,982 per month–20% of Scott’s net income–to Alison in temporar y child support and further order ed the parties to equally divide the costs of childcar e expenses and ordinary medical, dental, and optical car e for their daughter. The matter of temporar y maintenanc e for Alison was enter ed and continued, and Scott was order ed to provide his 2010 y ear -end pay stub and W-2 when

I t is unc le ar whet her the bonu s was is sue d. Ali son ’s bri ef on app eal was fi le d on February 1 13, 2013
, and doe s not ind ic at e tha t the bonu s had yet bee n is sue d. Scot t did not fi le an app ear anc e

or bri ef on a ppe al

.

Acco rdi ng to Ali son ’s m oti on to con sol ida te the cas es, she was una war e of Scot t’ s pet it ion 2
atth e t ime she fi le d he r p et it ion fo r d is sol uti on o f marr ia ge.

-2-he re ceive d them, as we ll an any documents fr om his employ er r eg ardinghis 2010 bonus. ¶ 5 On Ap ri l 1 3
, 2012, Alison filed a petition: (1) to vacate the J anuar y 7, 20 1 1
, o rd er claiming Scott intentionally misrepre sented his i n co m e and (2) to modify and deter mine
retroa ctively the corr ect guideline child support amount that should be due and owing

. The petition explained that any bonus Scott rec eived for a particula r y ea r wa s i s s ued by his employ er at the beg inning of the next y ear ; for i n s t an ce , Scott rec eived his 2008 bonus in

ear ly 2009. The petition claimed that the agree d order for child support was based on Scott’s 2009 base income, beca

use he repr esen t ed t h at h e had not rec eived a bonus for the 2009 cale ndar y ear , and his 2010 W-2 was not y et available

. Scott also repr esente d that he would
not be rec eiving a bonus for the 2010 cale ndar y ear , to be paid in 201 1

. Ho we v er, afte r issuing a subpoena to Scott’s employ er, Alison discovere d that Scott was paid a $70,500
g ross bonus pay

ment on Fe bruar

y 18, 2011, and rece ived $10,5 00 on Dec ember 19, 2011,

as a 2009 “mandatory defe rr al payout.” Additionally
, Scott rec eived a $90,000 bonus on Fe bruar y 17, 2012. ¶ 6 Thus, acc ording to the petition, Scott rec eived a $68,235 gross bonus pay ment for 2008 in ear ly 2009; rec eived no bonus pay ment for 2009 in 2010; rec eived a $70,500 g ross bonus
pay ment for 2010 on Fe bruar y 18, 2011; and rec eived a $90,000 gross bonus pay ment for 2011 on Fe bruar

y 17, 2012. Scott als o re ceived $10,500 as a 2009 “mandatory defe rra l
payout” on Dec ember 19, 2011, which Alison was investigating to deter mine whether it was Scott’s deliberate def

err al of his 2009 bonus. ¶ 7 Ba sed on Citadel documents attache d to Alison’s petition, Scott’s bonus took the form 3 of “Participation Points ” issued by Citadel that wer e conver ted to cash at a rate of $1 per point. The 2012 memorandum stated that Scott’s “ total a war d of 2011 Participation Points ref lects bo t h y o u r individual perf ormanc e and the Company ’s overa ll perf ormanc e” and would be issued on Fe bruar y 17, 2012, “provide d you are employed by Citadel and not under notice at that time.” T he memora ndum further

stated that “[y ]ou wil l be elig ible to rec eive 2012 Participation Points based on your individual perf ormanc e, your demonstration of the char acte ristics descr ibed in the Citadel L eade rship Model, and the Company ’s overa ll perf ormanc e during 2012. All bonuses and awa rds are discretionar

y

. Your entitlement to any bonus or awa

rd, and the amount of any bonus or awa rd shall be deter

mined and awa

rded, if at all, in the di s cretion of t he C ompany

. 2012 Participation Points will be gover ned by the rele vant employ ee incentive program in eff ect when 2012 Participation Points are awa rded.” ¶ 8 On J une 21, 2012, the trial court enter ed an agree d order on Alison’s petition, findingthat Scott’s total g ross income was $257,500 and his net income for purposes of child support

was $179,566.55. The court order ed Scott to pay Alison $24,148 to ref lect arr ear ag e in child support and to pay $945 biweekly for child support, ref lecting 20% of his net biweekly pay of $4,725. The court fu rt h er o rd ere d that, “[c]omm encing on J une 1, 2012 and continuing there afte r, S cott shall pay Alison, within seven (7) day s of hi s rec eipt, an am o u n t eq u al t o

T he doc um ent s ar e unna m ed, but app ear to be corre spo nde nce bet ween Cit ade l and Scot t 3 dat ed J anu ary 24, 2011
, and J anu ary 23, 2012

. T hey con ta in inf ormati on abo ut the bonu s is sue d for the pr ioryear a nd Sc ott ’s el igibi li ty forth e up coming y ear ’s bon us.

-3-Twenty Perce nt (20%) of the net of any additional compensation incident to his employ ment, whether bonus, mandatory

defe rra l or otherwise .” ¶ 9 On September 19, 2012, the trial cour

t enter ed a judgme nt for dissol ution of m arr iag e, incorpora ting a marital settlement agr ee m ent betwee n the parties. The marital settlement
agree ment contained the followingprovision conce rningdefe rre d compensation:
“1. Def err ed Compensation. Incident to his em p loy ment throug h 8/31/12, Scott is entitled to rec eipt of cer

tain defe rre d compensation, which shall be divided in kind Fifty Perce nt (50%) to e ach pa rty , as follows: b. 9/12ths of the 2012 Citadel bonus anticipated to be rec ei v ed i n Februar y 201[3] ; and this issue is reserve d.” 4
The next day
, the trial court enter ed an agree d order for the parties to file memoranda of law

conce rning whether Scott’s 20 1 2 bonus, to be rec eived in 2013, was marital proper ty and there by subject to division between the pa rties. ¶ 10 Al i s o n ’s m em orandum of law, filed on October 5, 2012, claimed that the port i o n o f Scott’s bonus acc ruingduringthe marr iag e wa s marital prope rty since it was a contra ctual rig ht and not a

n expectancy , draw ing an analogy to a stock bonus. Scott’s memorandum of l aw , filed the same day
, claimed that the bonus was not proper ty but mere l y fu t u re indeterminate income since h e n ee d ed t o be employ ed on the date that the bonus was distributed and the bonus wa s purely discretionar

y on the par

t of his employ er. ¶ 11 On October 12, 2012, t he trial c ourt enter ed an or der finding that “Scott’s 2012 Bonus
to be rece ived i f at all in Fe bruar y 2013, is not a co n t ra ct u all y enfor cea ble right and is not marital proper

ty as it was not acquir ed during the marria g e pursuant to Section 503 and Scott
must be working there to rec eive the bonus and it is an expectancy and not a written contra ct of employ

ment.” The court order ed that Scott was entitled to reta in the entirety of the 2012 bonus as nonmarital proper ty , other than the 20% that was owed for child support pursuant to the judgme nt for dissolution of marriag e. ¶ 12 Alison filed a notice of appea l, and this appea l follows. Scott did not file an appea ranc e on appea l, so we take the instant case under c onsideration on Alison’s brief a nd the re cord alone.

¶ 13 ANALYSI S ¶ 14 On appea l, Alison argues that Scott’s 2012 bonus, if issued, should be considere d marital
p ro p er t y and not nonmarital proper ty as the trial court conclude d. Consequently
, if it i s marital proper

ty , Alison a

rgues that she is e ntitled to 50% of nine-twe lfths of the bonus, as provided in the marital settlement agree ment incorporated into the judgme nt for dissoluti on of marria g e. As an initial m at ter, we emphasize that, no matter the outcome, any bonus

rec eived by Scott is expressly included in the calc ulation of his child support obligation, as

T he m ar it al set tl ement agree m ent is not con ta ine d in the re cor d on app ea l

. H o wever, the 4
pro visio n invol ving Scott ’s bon us wa s qu ote d i n hi s mem ora ndum of l aw co nce rni ng the st atus o f his bon us, andAli son ’s br ie f o n ap pea l q uot es the sa m e pr ovisi on.

-4-provided in the judgme nt for dissoluti on of marria g e. Thus, the sole issue befor e us is

whether Alison is entitl ed to any

portion of the bonus as mar ital property

. ¶ 15 Gene rally
, the trial court’s classification of an asset as marital or nonmarital will not be disturbed unless it is contra ry to the manifest weight of the evidenc e. See In re Marriage of Lundahl
, 396 I ll. App. 3d 495, 502 (2009). Howeve r, wher e the fac ts are undisputed and the

cre dibilit y of witnesses is not at issue, the classifica tion of an asset is r eviewe d de novo

. In

re Marriage of Abrell
, 236 I ll. 2d 249, 255 (2010) (consider ing whether acc umulated

vacation and sick day s are marital proper ty de novo ); In re Marriage of Peters
, 326 I ll. App. 3d 364, 366 (2001) (consider ing whether a stock bonus was marital proper ty de novo ). See also In re Marriage of Schneide r , 214 I ll. 2d 152, 162 (2005); In re Marriage of Crook
, 211 I ll. 2d 437, 442 (2004). Since the issue in the instant case require s us to deter mine the leg al eff ect of undisputed fac ts, w e revie w it de novo

. De novo consideration means we pe rfor m the same analy sis that a trial judge would perf orm. Khan v. BDO Seidman, LLP
, 408 I ll. App. 3d 564, 578 (2011). ¶ 16 The classification of a nonvested, discretionar y b onus issued afte r the entry of a judg ment for dissoluti on is an issue that has not y et been considere d in I llinois
, but Alison argues that Scott’s bonus should b e co nsidered property under both traditional definitions of property and under the I llinois Marr iag e and Dissolution of Marr iag e Act (the Act) (750 I L CS 5/101 et seq. (West 2010)). B lack’ s L aw Dic tionary define s “prope rty” as: “1. The rig ht to p o s sess, use, and enjoy a deter minate thing (either a trac t of land or a chattel) ; the rig ht of owner ship ***. *** 2. Any external thing over which the rig hts of possession, use, and enjoy ment are exercised ***.” Bla ck’s L aw Dictionary 1335- 3 6 (9th ed. 2009).
See also Abrell
, 236 I ll. 2d at 257 (quoting Bla ck’s L aw Dictionary definition of “prope rty”). “Mar ital proper

ty” under the Act “mea

ns all proper

ty acquir ed by either spouse subsequent
to the marria g e,” except for cer tain enumer ated exceptions. 750 I L CS 5/503(a) (West 2010). All proper

ty acquir ed by ei t h er s pouse afte r the marria g e and befor e a judgme nt for dissoluti on of marria g e is presumed to be ma rital proper

ty , unless it falls within one of the section 503(a) exceptions. 750 I L CS 5/503(b)(1) (West 2010). There is no claim that Scott’s bonus is nonmarital proper ty beca use it falls within one of the exceptions provided in section 503(a) of the Act. Instead, the trial court i n t h e ca se at bar found that the bonus was not marital proper

ty beca use it was not proper

ty at all but was a mere expectancy

. We agree with the trial cour

t. ¶ 17 First, Alison does not dispute that Scott does not have an employ ment contra ct, making Scott’s employ

ment with Citadel at will. Thus, he does not have a contra ctual rig ht to rec eive a bonus by

virtue of ha

ving signed an e mploy

ment agree ment providingfor one

. ¶ 18 Next, the rec ord demonstrates that Scott is elig ible to r ece ive a bonus for the y ear 2012 from his employ er “base d on [hi s] individual perf ormance, [hi s] demonstration of the charac teristics descr ibed in the Citadel L eade rship Model, and the Company ’s overa ll perf ormanc e during 2012.” In his memorandum befor e the trial court, Scott also repr esente d that “[t] he bonuses ar e b as ed on the overa ll perf ormanc e of Citadel, the perf ormanc e of SCOTT’s depar

tment within Citadel (Global Equities), the perf ormanc e of SCOTT’s g roup

-5-within the depar tment and on SCOTT’s perf ormanc e.” Howeve r, Citadel, Scott’s employ er, specific ally provides: “A l l bonuses and awa rds are discretionar

y

. Your entitlement to any bonus or awa

rd, and the amount of any bonus or awa rd shall be deter

mined and awa

rded, if
at all, in the discretion of the Company .” Thus, it is expli citly the employ er’ s d ec i sion whether to issue a bonus and the amount of such bonus, a decision which depends in part on fac tors unrelated to Scot t ’s wo rk ; S cott is not automatically entitled to rec eive a bonus. Indeed, Scott did not rec eive a bonus for the 2009 cale ndar y ear des p i t e h aving ear ned bonuses for 2008 a

nd 2010. ¶ 19 Fur

thermore
, Citadel ’s memorandum provides that “2012 Participation Points will be
g overne d by the rele vant employ ee incentive p ro gra m in eff ect when 2012 Participation Points are award ed.” The rec ord has established that bonuses–comprised of Participation Points that have been conver ted into a cash p ay

ment–are awa

rded at the beg inning of the
next cale ndar y ear

. Thus, the decision of whether Citadel would awa rd Scott a bonus for the 2012 cale ndar y ear would be g overne d by the employ ee incentive program in eff ect in ear ly 2013. ¶ 20 In sum, Scott does not have a contra ctual rig ht to a bonus from his employ er, but Citade l
may choose to a

war d a bonus in its discretion, a decision which is ba sed on sever al fac tors and which would be g overne d by the em p l o y ee i ncentive program in eff ect in early 2013, approximately five months afte r the dissoluti on of the parties’ marria g e. Th e rig ht to the bonus is not automatic, and there has been at least one y ear in which Scott was not issued a bonus. Ba sed on these fac ts, we cannot find that the bonus, if issued at all, constitutes marital
proper ty

. ¶ 21 Alis o n ac kn owledg es that “a discretionar y bonus is not a proper

ty rig ht vis-a-vis the employ er a

nd Scott,” but argues that “Scott’s bonus is nonethele ss a m arital prope rty rig ht vis-a-vis Alison.” We do not find this argument persua sive. ¶ 22 Alison draw s an analogy betwee n Scott’s bonus and a pension, which is marital proper ty under the Act, citing to In re Marriage o f Hu n t , 78 I ll. App. 3d 653 (1979). In Hunt
, the appellate court held that “an employ ee spouse’s contra ctual rig ht to a pension or profitsharing interest is ‘prope rty ’ under section 503 of the [Act]
, reg ardle ss of whether the interest is matured, vested or nonvested, or contributory or noncontributory” and that “[a]ny part of such pension or profit-shar ing interest ear ned by the employee spouse wh i l e m arr ied is
proper ty ‘ac quired’ during marria g e within the meaning of section 5 0 3 and is, there fore
, marital prope rty .” Hunt , 78 I ll. App. 3d at 658-59. In its analy sis of unvested pensions, the Hunt court relied on the Supreme Court of California’s decision in In re Marriage of Brown
, 544 P.2d 561 (Cal. 1976). ¶ 23 I n B r o w n , t h e C ali fornia court overr uled a previous case in which it had found th at nonvested pension rig hts wer e not proper ty but wer e expe ct an ci es

. The Brown court, howeve r, found that nonvested p en s i on rig hts wer e not expectancie s, noting that “the defining ch aracter istic of an expectancy is that its holder has no enforce able right to his benef icenc e.” (Emphasis added.) Bro wn , 544 P.2d at 565. Instead, the Brown court noted that “[s] ince pension benef

it s repr esent a form of defe rre d compensation for service s rende red [citation]
, the employ ee’ s rig ht to such benef its is a contra ctual right, derive d from the terms

-6-o f the employ ment contra ct. Since a contra ctual rig ht is not an expectancy but a ch o s e i n action, a form of proper

ty [citations]
, *** an employ ee acquir es a proper ty rig ht to pension benef its when he enter s upon the perf ormanc e of his employ

ment contra ct.” Brown
, 544 P.2d
at 565. Thus, the court conclude d that nonvested pension rig hts could constitute community
proper ty subject to division upon dis solution of a marria g e. Brown , 544 P.2d at 569. ¶ 24 In the case at bar, we cannot agree that Scott’s bonus is a nalog ous to the pension rig hts discussed in Hunt and Brown beca use both case s conce rned the contra ctual rig ht to pension benef its. Howeve r, as noted, Scott does n o t h av e a contractual rig ht to a bonus, which is issued at his employ er’ s discretion. Indeed
, as t h e B rown court noted, since Scott has “no enforce able right to [hi s employ er’ s] benef icenc e” (empha sis added) ( B r o w n , 544 P.2d at 565), Scott’s bonus is an expectancy and not a proper ty rig ht. Acc ording ly
, we find Alison’s attempt to draw an analogy betwee n Scott’s bonus and pension benef its to be unpersua sive. ¶ 25 Al i s o n al s o p o i n t s to other jurisdictions, claiming that a majority o f o t h er s t at es addre ssing the issue have conclude d that cash bonuses are marital proper ty to the extent that marital eff

orts wer e expended during the marria g e. Although Alison cited a number of case s from other jurisdictions that she claims support h er ar gument, we find these case s unpersua sive beca

use they do not contain the fac tu al scena rio at issue here

. In most of Alison’s cited case s, either the employ ee spouse had an employ ment agree ment or t h e pay ment that was considere d by the court was rec eived prior to the entry of the judgme nt for dissoluti on of marria g e. See, e.g. , W ilson v. W

ilson
, 741 S

. W

. 2 d 6 4 0
, 644 (Ark. 1987) (“[A]ppellee’s empl o y

m en t agree ment with [hi s employ er] required the company to pay appellee an incentive bonus based on his productivity and the profitability of the company .” (Emphasis in orig inal.)); Byington v. Byington
, 568 N.W.2d 141, 143 (Mich. Ct. App. 1997) (def endant neg otiated a compensation packa g e with his employ er, includin g conting ent bonuses and incentives that wer e rec eived prior to the judgme nt of divorce ); Pruitt v. Pruitt
, 94 S.W .3d 429, 432, 433-34 (Mo. Ct. App. 2003) (judg ment for dissoluti on enter ed in November 2001; cash bonus ear ned during the marria g e and rec eived in Fe bruar y 2000 was marital property

); Myhra v . Myhra , 756 N.W.2d 528, 535 (Neb. Ct. App. 2008) (dec ree of dissoluti on of m arriag e enter ed in 2006; bonus rec eived in 2006 for work perf ormed in 2005). Howeve r, in the case at bar, there was no employ ment agree ment that would provide

a contra ctual rig ht to a bonus, nor was the bonus rec eived prior to the entry of the judgme nt for dissolution of marria g e. ¶ 26 Of the case s in other jurisdictions, the one Alison claims is most fac tually simil ar to the

case at bar is the Supreme Court o f Al as k a’ s decision in Lewis v. Lewis
, 785 P.2d 550 (Alaska 1990). In that case , the husband executed an employ ment agree ment awa

rding him 100,000 share s of his employ er’ s stock if the employ er had 18 profitable mo n ths, and the stock had not been issued at the time of the trial. Lewis
, 785 P.2d at 555-56. The wife argued that the stock should be considere d marital proper ty simil ar to a nonvested pension, and the S up reme Court of Alaska agree d. Lewis
, 785 P.2d at 556. The court rea soned: “[ T h e hus b an d ’s] conting ent stock interest is simil ar to a nonvested pension in that both are contra ctual rig hts. I t was ear ned at least in part during the marria g e. The applicable leg al principle is that pr operty ear ned during a marria g e is marital proper ty reg ardle ss of when it is transfe rre d. [C itation.] I f any stock is awa rded to [t he husband] pursuant to the employ ee

-7-agree ment, that portion of the stock ear ned during the marria g e is marital proper ty .” Lewis
, 785 P.2d at 556. ¶ 27 W e cannot agree that Lewis is fac tually simil ar to the case at bar. Her e, t h er e wa s n o employ ment agree ment providing for a bonus as in Lewis

. Thus, we cannot say that Scott’s rig ht to a bonus was a c ontrac tual rig ht simi lar to a nonve sted pension. ¶ 28 Finally
, Alison also draw s an analogy betwee n Scott’s bonus and a stock bonus, relying

on In re Marriage of

Peters
, 326 I ll. App. 3d 364 (2001). In that case , the husband executed

an independe nt sales repr esentative agree ment with his employer, which provided that if the husband represe nted t he company for 10 consec utive y ear s and avera g ed a cer tain amount in annual collecte d g ross profits, the company would transfe r him a perc entag e of its stock. Peters
, 326 I ll. App. 3d at 365. The husband had been with the company for five y ear s when the parties diss o l v ed t heir marria g e. Peters
, 326 I ll. App. 3d at 366. The trial court deter mined that the stock bonus was not marital proper ty beca use it was future compensation for future eff

orts and his rec eipt of the bonus was specula tive. Peters
, 326 I ll. App. 3d at 366. On appea l, the appellate court deter mined that the trial court err ed in concluding that no part of the bonus could be marital prope rty

. Peters , 326 I ll. App. 3d at 369. ¶ 29 The Peters court considere d case s from other jurisdictions, but noted t h at i n most of them, the bonus was rec eived by the time of the dissoluti on ; t h e co u rt found the Lewis decision to be the most simil ar to the case befor e i t

. P et ers , 326 I ll. App. 3d at 367. Ex amining I llinois case law, the Peters court noted that pension benef its a cquire d afte r the marria g e but befor e judgme nt for dissoluti on of marria g e wer e mari t al proper ty , and that nonvested stock options acquir ed during the marria g e wer e marital proper ty when exercised. Peters
, 326 I ll. App. 3d at 368. The Peters court conclude d that the stock bonus was simil ar t o nonvested pension benef its, since the husband was require d to rema in employ ed fo r a certain time prior to having a right t o rec eive it. Peters
, 326 I ll. App. 3d at 3 6 9

. T h e co u rt also conclude d that the stock bonus was simil ar to a nonv es t ed s tock option, which was considere d marital proper ty , since the rec ipient had t he potential to rec eive stock in the employ er. Peters
, 326 I ll. App. 3d at 369. Th e co u rt agr eed with the Lewis court that any portion of the stock bonus ear ned during the marria g e should be considere d marital proper ty , rea soning that “[t] he bonus is a contra ctual rig ht that petitioner was working toward during the marr iag e and thus wa s more than a mere expectancy .” Peters , 326 I ll. App. 3d at 369. ¶ 30 In the case at bar, as noted, t h er e wa s n o em p loy ment agree ment analog ous to that in Peters and Scott was not contra ctually entitled to a bonus. Consequently
, we do not find the decision in Peters to be “c ontrolling stare decisis ” as A lison claims. ¶ 31 As a final matter, Alison c laims that the speculative nature of the bonus is irr eleva nt to the deter mination of whether it is marital proper ty

. Howeve r, our supreme court, in finding that acc umulated vac ation and sick da y s werenot marital proper ty , noted: “[T] he value of acc rued vaca tion and sick day s is speculative and uncer tain until a party actua lly collects compensation for those day s at reti re m ent or termination of his employ ment. A party ca n not rec eive cash for those day s prior to retire ment or termination. In fac t, it is possible that in some case s, an employ er might chang e its policy

conce rnin g t he rig ht to rec eive compensation for acc rued sick day s, limit ing or

-8-eliminating that r ight e ntirely .” Abrell , 236 I ll. 2d at 266-67.

Simi larly
, in the case at bar , Scott’s bonus is speculative until it is actua lly awa rded by his employ er, and Citadel could chang e its policy for awa rding bonuses, as is contemplated by its disclaimer that “2012 Participati o n Points will be g overne d by the rele vant employ ee incentive prog ram in eff

ect when 2012 Participation Points are awa rded.” Consequently
, we cannot fi nd that the trial court err ed in deter mining that the 2012 bonus, if issued, is nonmarital prope rty

.

¶ 32 CONCLUSI ON ¶ 33 We find that the trial court did not err i n fi n d i n g S co t t ’s 2 0 1 2 b onus, if issued, is nonmarital proper

ty beca use Scott did not ha

ve a contra ctual rig ht to the bonus, which was issued in his employ er’ s discretion.

¶ 34 Affir

med.

-9-