Illinois Official Reports 

Appellate Court

In re Marriage of Benson, 2015 IL App (4th) 140682

Appellate Court 

Caption In re: MARRIAGE OF NANCY J. BENSON, Petitioner-Appellee, 

and DAVID W. BENSON, Respondent-Appellant.

District & No. Fourth District

Docket No. 4-14-0682

Filed May 26, 2015

Decision Under 

Review

Appeal from the Circuit Court of Macon County, No. 97-D-601; the 

Hon. James R. Coryell, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Leo W. Quigg, Jr. (argued), of Fuller & Quigg, of Decatur, for 

appellant.

Kurt B. Bickes (argued), of Bickes, Wilson & Moss, of Decatur, for 

appellee.
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Panel PRESIDING JUSTICE POPE delivered the judgment of the court, 

with opinion.

Justices Knecht and Harris concurred in the judgment and opinion.

 OPINION 

¶ 1 In June 2013, petitioner, Nancy J. Benson, filed a petition to enforce the terms of the trial 

court’s April 1999 judgment of dissolution of marriage between Nancy and her former spouse, 

respondent, David W. Benson, which required David to pay a portion of his disability benefits 

to her. Following an April 2014 hearing, the court found David’s disability benefits were in the 

nature of a disability pension and, as a result, Nancy was entitled to a fractional interest in 

those benefits. 

¶ 2 David appeals, arguing, inter alia, the trial court erred in ruling Nancy was entitled to a 

portion of his disability benefits where the original dissolution judgment only awarded Nancy 

a portion of his retirement benefits. We affirm. 

¶ 3 I. BACKGROUND 

¶ 4 On May 22, 1971, David and Nancy were married. On August 3, 1972, David began 

working for the City of Decatur fire department. 

¶ 5 On April 16, 1999, the trial court entered a judgment dissolving the parties’ marriage. At 

the time of the judgment, the primary marital asset was David’s pension. The judgment 

provided, in pertinent part, the following: 

“[Nancy] is granted a one-half interest in [David’s] retirement plan through the 

Decatur Fire Department and his ICMA retirement account. Transfer of said funds 

shall be accomplished through qualified [Illinois] domestic relations orders.”

¶ 6 David continued to work as a firefighter until 2008, when he was injured during a call. 

David was carrying equipment back to the fire truck in the rain when his foot slipped. As he 

fell, his head and shoulder were driven into the ground, injuring his lower back. 

¶ 7 On February 27, 2008, David began receiving disability benefits. At the time, David was 

59 years old, had approximately 35 years of service, and was eligible to retire and draw a 

retirement pension. David continued to own and operate Benson Disposal, a family-owned 

garbage service he acquired from his father, until July 2012, when he sold it. 

¶ 8 On June 11, 2013, Nancy filed a “Petition to Divide Pension Benefits.” In her petition, 

Nancy alleged she believed David was receiving retirement benefits but David refused to 

confirm that. Nancy stated she had attempted to file a qualified Illinois domestic relations order 

(QILDRO) but had been unable to do so. Nancy requested an order directing David to pay her 

the appropriate share of his retirement benefits pursuant to the 1999 dissolution judgment as of 

the date he began receiving them. 

¶ 9 On July 2, 2013, David filed his response to Nancy’s petition. In his response, David 

denied he had any communication with Nancy regarding retirement benefits but admitted he 

was receiving disability benefits. David argued Nancy’s petition should be dismissed because 
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the pension benefits had already been divided in the 1999 order and he was “not receiving 

retirement benefits but [was] receiving disability benefits.”

¶ 10 On November 19, 2013, Nancy filed a petition to enforce the terms of the dissolution 

judgment. In her petition, Nancy alleged, inter alia, David had refused to sign a consent for the 

entry of a QILDRO, and Nancy also alleged by electing to receive a disability pension instead 

of a retirement pension, David had “refused, permanently, any share of his pension to 

[Nancy].”

¶ 11 During the April 15, 2014, hearing on Nancy’s petitions, David was the only witness called 

to testify. David, then 65 years old, testified the parties did not have an agreed divorce, i.e., the 

divorce came as a result of a trial and there was no marital settlement agreement. David 

testified there was never any agreement regarding retirement benefits and the trial court’s 

ruling pertained only to his retirement pension and did not mention disability benefits. At the 

time of the hearing, David’s monthly benefits were $4,569.27. David testified he receives his 

disability benefits tax-free. He admitted if he elected to take his retirement pension he would 

have to pay taxes on it. The disability benefits also included free health insurance for David 

and his current spouse. David testified he intended to continue to draw disability benefits as 

long as he is allowed. David testified he would also be eligible for full social security benefits 

at age 66. 

¶ 12 David argued the dissolution judgment did not mention disability benefits and there was no 

assignment of disability benefits. In arguing against a retroactive award, David argued Nancy 

should have come to court and asked for an award earlier. 

¶ 13 Nancy introduced plaintiff’s exhibit No. 4, a letter from Cary J. Collins, the attorney for the 

Decatur Firefighters Pension Board, into evidence without objection. That letter referred to 

David’s disability benefits as a “pension benefit.” The letter also stated David was not required 

to convert his disability pension to “a regular retirement pension.” Instead, converting to a 

regular retirement pension “is only an option which a firefighter may exercise.” Nancy also 

introduced plaintiff’s exhibit No. 5, a copy of a document entitled “Firefighter’s Pension Plan 

Description,” into evidence without objection. This document shows benefits through the 

pension plan include disability benefits. Nancy also introduced plaintiff’s exhibit No. 9 into 

evidence as a demonstrative exhibit. It contained figures showing Nancy’s share of David’s 

pension would be 37.6% based on the number of years he worked and the time they were 

married. David did not object to the 37.6% figure. 

¶ 14 Nancy argued David had no incentive to ever take his retirement pension in place of 

receiving disability benefits. According to Nancy, David’s choice would effectively eliminate 

any marital property interest she had in David’s retirement under the 1999 judgment. Nancy 

also requested an award of past-due disability payments dating to February 2008, i.e., when 

David began receiving those payments. Nancy acknowledged her petition was filed six years 

after he started to draw disability, but she argued she “never had the ability to take [David] to 

court to get her share of this pension.”

¶ 15 Following the hearing, the trial court found David’s disability benefits were in the nature of 

a disability pension and, as a result, Nancy was entitled to a fractional interest in those benefits. 

The court awarded Nancy 37.6% of David’s disability benefits dating back to 2008, when 

David first began receiving them, as well as 37.6% of David’s monthly disability benefits 

going forward. The court found, although Nancy failed to seek enforcement of the 1999 

judgment until 2013, she was still entitled to the benefits because David’s obligation to make 
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those payments was already in existence as a result of the 1999 judgment and it had just gone 

unenforced. The court deferred entering specific dollar amounts to a later date. 

¶ 16 On May 14, 2014, David filed a motion to reconsider, arguing the trial court erred in 

awarding Nancy a portion of his disability benefits where (1) disability benefits are not 

retirement benefits, and (2) the court’s ruling did not state a basis for a retroactive award of 

David’s benefits. Following a June 24, 2014, hearing, the trial court denied David’s motion. 

The court then asked Nancy’s attorney if an order had been prepared. Nancy’s attorney 

responded as follows: 

“Yes, Judge. We have a stipulation between the parties as to how this order was 

arrived at. 

 I will submit Plaintiff’s Exhibit No. 1, which is a demonstrative statement of the 

benefits. My earlier petition indicated that I think it was 37.6 percent of the award 

would be her share. 

 Here’s Group Exhibit No. 2, which is another stipulation that we will enter in. Your 

Honor, this is the city of Decatur’s record of [David’s] payments received through the 

disability [from 2008].”

Those exhibits show David owed Nancy a past-due amount of $116,345.19, as well as 

$1,718.05 per month going forward. 

¶ 17 In its July 10, 2014, written order, the trial court awarded Nancy a lump sum of 

$116,345.19 for “prior benefits due.” The court also awarded Nancy 37.6% of David’s 

monthly disability benefits as follows: “Currently, [David’s] benefit is $4,569.27 per month, of 

which [Nancy] is due from [David] $1,718.05 per month for May and June, 2014 and 

thereafter, to be adjusted [to account] for increases received by [David].”

¶ 18 This appeal followed. 

¶ 19 II. ANALYSIS 

¶ 20 On appeal, David argues the trial court erred in ruling Nancy was entitled to a portion of his 

disability benefits where those benefits are not retirement benefits and the 1999 dissolution 

judgment does not address disability benefits. We note David does not dispute the percentage 

or actual amounts awarded and instead argues none of his disability benefits should have been 

awarded to Nancy. David also contends the court erred in making a portion of Nancy’s award 

retroactive. Finally, David maintains Nancy’s claim was barred by laches. We will address 

each argument in turn. 

¶ 21 A. Standard of Review 

¶ 22 As stated, this matter does not involve a marital settlement agreement between the parties. 

Instead, we are called upon to interpret the scope of the trial court’s 1999 dissolution of 

marriage judgment, which was entered following a trial. We interpret judgments of the trial 

court on matters of law de novo. In re Marriage of Avery, 251 Ill. App. 3d 648, 652, 622 

N.E.2d 1231, 1234 (1993). Further, we may affirm the trial court for any reason supported by 

the record, regardless of the particular basis relied upon by the trial court. Akemann v. Quinn, 

2014 IL App (4th) 130867, ¶ 21, 17 N.E.3d 223. 
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¶ 23 B. Scope of the Dissolution Judgment 

¶ 24 “It is well settled that disability pensions are considered marital property.” In re Marriage 

of Sawicki, 346 Ill. App. 3d 1107, 1115, 806 N.E.2d 701, 707 (2004) (citing In re Marriage of 

Smith, 84 Ill. App. 3d 446, 449, 405 N.E.2d 884, 887 (1980)). While the trial court’s 1999 

judgment of dissolution of marriage does not use the term “disability,” it indisputably 

establishes Nancy’s interest in David’s “retirement plan” through the Decatur fire department 

and “ICMA” retirement account. The question is whether it was reasonable for the trial court to 

consider David’s disability benefits as part of his retirement plan. For the reasons that follow, 

we find that it was. 

¶ 25 The trial court’s 1999 dissolution of marriage judgment awarded Nancy “a one-half 

interest in [David’s] retirement plan.” Plaintiff’s exhibit No. 5, entitled “Firefighter’s Pension 

Plan Description,” clearly states benefits through the plan include both retirement and 

disability benefits for its participants. According to the exhibit, the plan provides for 

duty-related, non-duty-related, and occupational-disease disability benefits. The plan is 

governed by Illinois statutes. 

¶ 26 The Illinois Pension Code (Pension Code) (40 ILCS 5/1-101 to 24-109 (West 2012)) 

provides a retirement pension (40 ILCS 5/4-109 (West 2012)) and, alternatively, a disability 

pension (40 ILCS 5/4-110, 4-111 (West 2012)) for eligible firefighters in municipalities with 

less than 500,000 residents (such as Macon County). These are both called “pensions.” 40 

ILCS 5/4-109(a), (b) (West 2012). They also are called “benefits.” 40 ILCS 5/4-105d, 4-107, 

4-112 (West 2012). Section 4-110 specifically provides disability benefits for a firefighter who 

becomes permanently disabled because of a duty-related injury. 40 ILCS 5/4-110 (West 2012) 

(“If a firefighter, as the result of *** injury incurred in or resulting from the performance of an 

act of duty ***, is found *** to be physically or mentally permanently disabled for service in 

the fire department, so as to render necessary his or her being placed on disability pension, the 

firefighter shall be entitled to a disability pension ***.”).

¶ 27 While the Third District’s decision in In re Marriage of Schurtz, 382 Ill. App. 3d 1123, 891 

N.E.2d 415 (2008), is distinguishable in that the trial court there incorporated the parties’

marital settlement agreement into its dissolution judgment, the appellate court’s reasoning is 

nevertheless instructive here. In Schurtz, the ex-husband, John, was a Peoria firefighter who 

had approximately 30 years of service at the time of the divorce. Schurtz, 382 Ill. App. 3d at 

1124, 891 N.E.2d at 416. In 1993, the trial court entered a judgment of dissolution of marriage, 

which incorporated the parties’ marital settlement agreement. Schurtz, 382 Ill. App. 3d at 

1124, 891 N.E.2d at 416. The agreement provided the parties would evenly divide John’s 

“ ‘accrued retirement pension benefits as of September 16, 1993, if, as, and when received by 

him.’ ” Schurtz, 382 Ill. App. 3d at 1124, 891 N.E.2d at 416-17. The dissolution judgment did 

not address disability benefits. 

¶ 28 In 2004, John, then 62 years old, was unable to work as a firefighter and began receiving 

$4,374 per month in disability benefits. Schurtz, 382 Ill. App. 3d at 1124, 891 N.E.2d at 417. 

John was eligible for retirement benefits at the time he began receiving disability benefits. 

Schurtz, 382 Ill. App. 3d at 1126, 891 N.E.2d at 418. In 2005, John’s ex-wife, Lynette, filed a 

petition to enforce the dissolution judgment, arguing she was entitled to a portion of John’s 

disability benefits. Schurtz, 382 Ill. App. 3d at 1124-25, 891 N.E.2d at 417. 

¶ 29 During the hearing on Lynette’s petition, John testified he did not intend to retire when he 

went on disability and would have returned to work if he were physically able. Schurtz, 382 Ill. 
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App. 3d at 1125, 891 N.E.2d at 417. However, John admitted he indicated “retired” on his City 

of Peoria “Change of Status” form as his reason for leaving. Schurtz, 382 Ill. App. 3d at 1125, 

891 N.E.2d at 417. John testified he might elect to receive retirement benefits if it ended up 

being financially advantageous to him. Schurtz, 382 Ill. App. 3d at 1125, 891 N.E.2d at 417. 

However, John also admitted he could stay on disability forever. Schurtz, 382 Ill. App. 3d at 

1125, 891 N.E.2d at 417. 

¶ 30 The trial court found John’s disability pension was a retirement pension and ordered him to 

pay $1,534.34 of his $4,374 monthly disability pension to Lynette. Schurtz, 382 Ill. App. 3d at 

1125, 891 N.E.2d at 417. The court also ordered John to pay Lynette $41,980.08 for past-due 

amounts. Schurtz, 382 Ill. App. 3d at 1125, 891 N.E.2d at 417. 

¶ 31 John appealed and the Third District affirmed. In reaching its decision, the appellate court 

reasoned: 

“When a disabled ex-husband is not yet eligible for retirement pay, a marital 

settlement agreement entitling the ex-wife to ‘retirement’ benefits should not be 

interpreted to grant her a share of her ex-husband’s disability income. [Citations.] This 

interpretation is reasonable because the disability pay is meant to replace the disabled 

ex-husband’s income, not act as retirement pay. [Citations.] 

 However, when an ex-husband is entitled to receive retirement pay and is receiving 

disability income instead, a settlement agreement providing the ex-wife a portion of 

retirement benefits ‘can be reasonably interpreted in only one way–the petitioner 

[should] be paid the percentage of what would be the normal retirement benefits, 

whether respondent [is] paid normal retirement benefits or disability retirement 

benefits.’ ” Schurtz, 382 Ill. App. 3d at 1126, 891 N.E.2d at 418 (quoting

In re Marriage of Marshall, 166 Ill. App. 3d 954, 962, 520 N.E.2d 1214, 1219 (1988)). 

¶ 32 In this case, David, like the ex-husband in Schurtz, was eligible to retire and receive 

retirement benefits at the time he began receiving disability benefits. While David testified, 

“they placed me on disability benefits,” it is apparent from his testimony David opted for 

disability payments instead of retirement benefits. “A firefighter who is receiving a disability 

pension under this Article who has sufficient creditable service to qualify for a retirement 

pension and is age 50 or more may elect to permanently retire from the fire service at any time 

by submitting written application to the board.” 40 ILCS 5/4-113(b) (West 2012). It is also 

evident from David’s testimony he does not intend to cease drawing disability benefits in favor 

of receiving his retirement benefits. While David’s payments are considered disability 

benefits, they are essentially retirement benefits. Like the ex-husband in Schurtz, David’s 

disability benefits do not serve as income replacement, but as a substitute for his retirement 

pension. See Schurtz, 382 Ill. App. 3d at 1126, 891 N.E.2d at 418. 

¶ 33 Under the circumstances presented in this case, the trial court did not err in finding Nancy 

was entitled to a share of David’s disability benefits where the dissolution judgment awarded 

Nancy a portion of David’s “retirement plan” and those benefits can reasonably be considered 

part of that plan. 

¶ 34 C. Division of David’s Disability Benefits 

¶ 35 David, citing the language in the trial court’s 1999 dissolution of marriage judgment 

stating, “Transfer of said funds shall be accomplished through qualified domestic relations 
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orders,” correctly points out disability benefits are not subject to division by a QILDRO. See 

40 ILCS 5/1-119(b)(4) (West 2012) (“A QILDRO shall not apply to or affect the payment of 

any survivor’s benefit, disability benefit, life insurance benefit, or health insurance benefit.”). 

David then appears to argue his disability benefits are therefore not subject to division. We 

disagree. 

¶ 36 Section 1-119 (40 ILCS 5/1-119(a)(6) (West 2012)) of the Pension Code provides a 

QILDRO is “an Illinois court order that creates or recognizes the existence of an alternate 

payee’s right to receive all or a portion of a member’s accrued benefits in a retirement system.”

A QILDRO requires a retirement system to divert to an alternate payee all or part of a benefit 

the system would otherwise have to pay to the member. 40 ILCS 5/1-119(b)(2) (West 2012). A 

QILDRO may divert the payment of a retirement benefit, a refund, or a death benefit. 40 ILCS 

5/1-119(b)(1) (West 2012). However, as stated, it may not divert the payment of a disability 

benefit. 40 ILCS 5/1-119(b)(4) (West 2012). 

¶ 37 Nancy concedes a QILDRO is not the appropriate mechanism with which to receive her 

portion of David’s disability benefits. However, she correctly points out the trial court’s order 

awarding her a fractional interest in those benefits did not direct their distribution by a 

QILDRO. Instead, the court ordered David to pay Nancy directly the stipulated percentage of 

his disability benefits after he receives them. Nothing in section 1-119 prohibited the court 

from doing so. See In re Marriage of Menken, 334 Ill. App. 3d 531, 534, 778 N.E.2d 281, 283 

(2002) (citing In re Marriage of Roehn, 216 Ill. App. 3d 891, 895, 576 N.E.2d 560, 563 (1991) 

(in situations where a spouse is awarded a portion of the other spouse’s benefits and a 

QILDRO cannot be entered, payments may be made “triangularly” from the retirement fund to 

the retiree and then from the retiree to the spouse)). 

¶ 38 D. Award of Past-Due Benefits 

¶ 39 David also argues the trial court erred in awarding Nancy a portion of his disability benefits 

retroactively. We disagree. 

¶ 40 David mischaracterizes the trial court’s $116,345.19 award to Nancy for past-due benefits 

as retroactive. “Property rights created by a judgment of dissolution become vested when the 

judgment is final, and a trial court lacks general jurisdiction to modify an order affecting these 

rights.” In re Marriage of Hubbard, 215 Ill. App. 3d 113, 116, 574 N.E.2d 860, 862 (1991). As 

such, a court will lose jurisdiction over a matter 30 days after entry of a final and appealable 

order. Hubbard, 215 Ill. App. 3d at 116, 574 N.E.2d at 862; Brickey v. Brickey, 44 Ill. App. 3d 

563, 564, 358 N.E.2d 406, 408 (1976). However, a court always maintains jurisdiction to 

enforce its judgments. Brickey, 44 Ill. App. 3d at 565, 258 N.E.2d at 408; In re Marriage of 

Hall, 404 Ill. App. 3d 160, 164, 935 N.E.2d 522, 526 (2010). While a court retains jurisdiction 

to enforce a dissolution judgment, it does not have jurisdiction to engraft new obligations onto 

a dissolution judgment or otherwise equitably modify it. Hubbard, 215 Ill. App. 3d at 117, 574 

N.E.2d at 863. 

¶ 41 In this case, the trial court did not modify the original 1999 dissolution judgment. Instead, 

it construed it to have always included disability benefits as part of David’s retirement plan. In 

other words, the court was not creating a new property right in its 2014 order but rather 

enforcing a preexisting right under the 1999 judgment. The trial court did not err in awarding 

Nancy a portion of David’s disability benefits dating to February 2008, when he first began 

receiving them. 
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¶ 42 E. Doctrine of Laches

¶ 43 Finally, David argues Nancy’s claim is barred by the doctrine of laches. David contends 

the fact Nancy waited more than five years to raise a claim for his disability benefits should 

estop her from raising a claim at this late a date. 

¶ 44 “The doctrine of laches is applied when a party’s failure to timely assert a right has caused 

prejudice to the adverse party.” (Internal quotation marks omitted.) Ashley v. Pierson, 339 Ill. 

App. 3d 733, 737, 791 N.E.2d 666, 670 (2003). “[A] party asserting laches must prove two 

fundamental elements: (1) lack of due diligence by the party asserting a claim; and (2) 

prejudice to the party asserting laches.” Ashley, 339 Ill. App. 3d at 739, 791 N.E.2d at 671. 

¶ 45 However, laches is an affirmative defense. Hadley v. Ryan, 345 Ill. App. 3d 297, 301, 803 

N.E.2d 48, 52 (2003); 735 ILCS 5/2-613(d) (West 2012). Section 2-613(d) of the Code of Civil 

Procedure requires that affirmative defenses must be plainly set forth in the answer. Harmon 

Insurance Agency, Inc. v. Thorson, 226 Ill. App. 3d 1050, 1052, 590 N.E.2d 920, 921 (1992); 

735 ILCS 5/2-613(d) (West 2012). Here, laches was not raised in David’s answer to Nancy’s 

petition. Instead, David’s attorney mentioned it in passing during his closing argument, as 

follows: 

“My point is, is, well, that we have some waivers and some estoppel here, it is 

absolutely incorrect to argue [Nancy] had no ability to come into this court and ask for 

benefits at some point in the past. She was awarded whatever interest she has in my 

client’s Decatur Fire Department and ICMA retirement accounts, had a judgment 

entered quite some time ago, and at any time after that date she could have come into 

court and asked for benefits. To now file a petition *** on November 19, 2013, and say, 

well, I didn’t get around to asking for a QILDRO, I didn’t get around to asking for 

benefits, but now I want them retroactive to the date that he started receiving disability 

benefits. I disagree with that. I think there is laches. I think there is estoppel. I believe 

that if you [rule Nancy should be awarded a portion of David’s benefits, then] nothing 

should commence prior to the date of the filing of [Nancy’s] petition.” (Emphasis 

added.) 

¶ 46 Thereafter, David formally raised laches in a memorandum in support of his motion for 

reconsideration following the trial court’s judgment and argued it during the hearing on his 

motion. However, “[a]ffirmative defenses raised for the first time in a motion for 

reconsideration are considered waived.” Harmon Insurance, 226 Ill. App. 3d at 1052, 590 

N.E.2d at 921. (Moreover, David raised laches only in his memorandum, and not in his motion 

to reconsider.) Because David failed to properly plead laches as an affirmative defense, we 

cannot say the court erred in declining to apply it. 

¶ 47 III. CONCLUSION 

¶ 48 For the foregoing reasons, we affirm the trial court’s judgment. 

¶ 49 Affirmed.