No. 2-08-1210 Filed: 8-25-10

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court DEB ORA H L. H ALL, ) of Lak e C ou nt y. ) Petitioner -Appella nt, )

) and ) No. 02--D--2321 ) PA UL HA LL, ) Honorab le ) Jane D. Waller, Respondent-Appellee. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE HUTCHI NSON deli

vered th e opinion o f the cou rt: Petitioner, Debora

h L. H all, appe als an or

der fro m the L ake Count

y circuit court deny

ing her petition to modify or

reform judgment pursuant to sections 2--1401 and 13--206 o f the Code

of Civil Procedure (the Code) (735 ILCS 5/2--1401; 13--206 (West 2008)). Petitioner raises three issues on appeal: (1) whether the

trial c ourt erred by

requiring her to show grounds for va cating the trial court 's judgment of

diss olut ion o f marri age as a prerequisite to allowing reformation of the marital settl emen tagreement incorporated into the judg ment; (2) whether a 10-y ear limitations period applies, pursuant

to section

13--206 o f th e Cod e, to allow petitioner to reform the parties' marital settlement

agreement, based on

a mutual mi stake of

fact; an d alternatively

(3) wh ether t he lan guage of the parties' marital settlement agr eement can be construed to require a ll of the retirement

assets of responde nt, Paul Hall, including his pension funds, to be divided equally betwe en the parties. For the reasons set forth below, we reverse and remand.No. 2--08--1210

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The record reflects that petitioner and responde nt were married on May

31, 1975. Tw o children were born of the marriage , both of whom have now reached majority . OnAugust 31, 2004, the trial court entered a judgment of dissolution of marriag e. The judgment incorporated a marital

se tt le me nt ag re em en t, wh ic h w as en te re d i nt o b y th e p ar ti es on th e s am e d ay. At the time of the dissolution, respondent was employe d by Kraf t Foods as chief global food safety office r, and he had work

ed there for more than 15 y

ears. Whi l e emplo ye d at Kraf t Foods, respondent had acquired a vested interest in two retirement plans, a thrift

plan and a pension plan. Prior to his emp loyment at Kraft Fo ods, respo ndent was employed f or approximately seven y ears at Anheuser-Busch, where he acquired a vested interest in two retirement plans, a deferred income stock purchase and savings plan and a pe nsion plan. On the date of the judgment of dissolution of marriage, all of respondent's employ ment at both Kraft Foods and Anheuse r-Busc h was dur ing his marri age to petitioner, and respondent acknowledged that his entire interest in the Anheuser-Busch deferred compensation plan and pension plan, as well as his interest in the Kraft Foods thrift plan and pension plan up to that point, had accrued during the m arr iage a nd were marital a ssets. Petitioner was not employed outside the home f or approxima

tely 20 years an d did not h ave a co llege education or any for

mal training in any

trade or profess ion. Petitioner also had no re tirement assets of her own. The parties a

ppeare d in court

o n August

3 1, 2004, for trial. The trial court conducted a pretrial confer

ence wi th both parties' attorneys and a

child representative. Following the confe rence, the parties entered int o a mari tal settlement agreement for the division of nonretireme nt marital assets, which totaled $890, 825.44 . Petitione r was aw arded $4 55,421.44 , which a mounted to approximat ely

one-half of the marital assets, plus $10,000 as a result of a cha rge of dissipation against respondent. Respondent was awarde d the remaining $423,404.No. 2--08--1210

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Article XVII I of the marital settlement agree ment a ddres sed th e divi sion of resp onden t's retirement plans . The ar

ticle provided, in r

elevant part: "18.1 [Responde

nt] is a plan p articip an t in the Anheuser- Busch D eferr ed I ncome Stock Purchase and Savings Plan, and is also a plan participant in a second retirement plan referred to as the Kraft Foods Thrift Plan. With r espect to the Anheuser-Busch Deferr ed Inc ome Stock Purchase and Savings Plan, the parties agr ee to enter into a Qualif

ied Domes tic Relations Order

[(QDR O)] providing for the distribution of fifty percent (50%) of the account balance to [petitioner], as alternate pay ee, as of the date of

entry of this [judgment of dissolution of

marriage]. With respect to the Kraft Foods Thrift Plan, the p arties a

gree t o ente r into a [QDRO] providing for the distribution of fifty perc ent (50%) of the accoun t balance to [pe t itioner], as alternate pay ee, as of the date of entry of this [judgment of disso lutio n of ma

rria ge]. * * * 18.4 It is the inte

ntion of th

is [arti cle] that [petitioner] is to receive fifty perc ent (50%) of the account balance of each of [respondent's] retirement plans valued as of the date of the entry of

this [judgment of dissolution of marriage]." Petitioner subs equen tly noti ced th at she had no t recei ved be nefit s from eithe r of res ponde nt's pensionplans , and her attorney advised respondent's attorney that petitioner had not received distribution of the pension benefits. Petitioner then filed her petition to m odify or reform the dissolution judgment, alleging that respond ent's two pe nsion plans had been omitted from the marital settlement

agreement due to a mutual mistake of fac t and requesting that the marital settlemen t agreement

be reformed to allow for an equal division of

the pensi on plans a s of the da te of the entry of the jud gment.No. 2--08--1210

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After the trial court de nied res pondent' s m otion to di smiss petitioner's petition, a trial was conducted

on September 9, 2008, and October 2 , 2008. Respondent testified at trial that the omission of

his pension plans was intentional, the parties never agre ed to include the pension plans intheir settlement, and

he never would have agre ed to a settlement that included the pension plans

as part of the division

of asset s. Petitione

r testifie d that she

never w ould have

agree d to a

settlement that did not inc lude the p ension pla ns as part of the division. On October 3, 2008, the trial court denied petitioner's petition. In rea ching its determination, the trial court concluded that, bef ore i t could re ach the i s sue of whether the pension plans were omitted from the marital se ttlement agreement

as a result of a mutual mistake, the petition to modify or reform the judg ment must f

irst establish a basis to vacate the judgment pursuant to section 2--1401 of the Code. According

to the trial court, because petitioner filed her petition more than two years after the judgment was entered, she could prevail on

a section 2--1401 petition only if she e stablished that the defect in the judgment

was a result of duress, disability, or fraudulent concealment. The trial court conc luded that, bec ause petitioner failed to establish that the defect was a result of duress, d isability , or fra ud, it was u

nable to vacate the judgment pursuant to section 2--1401. The tr ial co urt fu rther found that, even t hough it was not required

to reach the issue of mu

tual mista ke, the e vidence was insuf

ficient t o establish that the omission of respondent's pension plans was the result of a mutual mistake. Petitioner timely appealed after her motion to reconsider was denied. The first issue raised on appeal is whether the trial court er red in requiring petition er t o establish that the judgment of dissolutionof marriage must be vacated pursuant to section2--1401 of the Code as a prerequisite to including respondent' s pension plans in the judgment. Petitioner argues that the trial court erred in requiring her to establish that the pension plans were omitted from the marital settlement agreement as a re sult of disability , duress, or frau

dulent concealme

nt, becauseNo. 2--08--1210

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her petition sought to reform the marital s ettlemen t agre ement toreflect the parties' true intent, not to modify or revoke

the dissolution judgment. Therefore, a ccordin g to petitioner, the court may reform a written marital settlement agreement 10 years f

ro m the date the judgment was entered. Respondent

counter s that the t

rial cou rt must vacate or reopen

the judgment of dissolution pursuant to section 2-- 1401 before it can modify the marital settlement agreement, beca use that agreement was incorporated

into the judgment. According to respondent, because the judgment of dissolution was entered into more t

h an two yea

rs ago, section 2--1401 required petitioner to establish that any mistake in the ma

rital settlement agreement resulted from disability, duress, or fraudulent

concea lment. Section 510(b) of the Illinois Mar riage and Disso lution of Ma

rriag e Act (th e Act) provides that "[t]he provisions as to property disposition may not be revoked or modified, unless the cour t finds the existen

ce of conditions tha

t justify the reop ening o f a judg

ment under t he laws o f this State." 75 0 IL CS 5/510(b) (West 2008). In other words, af ter 30 days, provisions in a mar ital settlement

agreement that constitute property distribution are generally notmodifiable or revocable, and, therefore, a trial court has jurisdiction to modify proper ty distri bution only if circumstances exist to reopen a judgment as in other civil cases. Inre Marriage of Hubbar d , 215 Ill. App. 3d

113, 116 (1991). Accordingly , whether a tri al courthas jurisdiction to modify a property distribution provision pursuant

to section 510(b) of

the Act should be construed within the confines of section 2--1401 of the Code. In re Marri age of Miller , 363 Ill. App. 3d 906, 913 (2006). Nonetheless, a trial court retains indefinite jurisdiction to enforce the terms of a judgment. Hubbard , 215 Ill. App. 3d at 116. Whether a

trial court has jurisdiction is a question of law, subject to de novo review. Allen v. Allen , 343 Ill. App. 3d 410, 412 (2003).No. 2--08--1210

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In Allen , the rev

iewing court addressed w hether, more than 30 day s after entry of a dissolution judgment, the trial court had jurisdiction to amend a QDRO entered pursuant to the judgmen t. Allen , 343 Ill. App. 3d at 412. The parties in Allendivorced after 18 y ears of marriage, and the judgment of dissolution provided that the respondent's pension benefits be divided pursuant to a formula

provided inthe judg

ment. Allen , 343 I ll. App. 3d at 411. Shortly

after the judgme

nt, the trial cou

rt e ntered a QDRO enforcing the terms of the judg ment, but it used a formula for the p ensioncalculation that differed from the one provided in the judg ment. After the res pondent' s retirement, the petitioner applied for benefits under the pension plan, and the pension administrator calculated

the resp ondent' s share p

ursuant t o the for mula contained

in the QDRO rather than the one contained in the judgment. Allen , 343 I ll. Ap p. 3d a t 412. Wh en the petition er discovered the difference between the formulae, she filed a petition to amen d the QDRO

to refle ct the fo rmula contained in the judg

ment, which the trial court granted. Allen , 343 I ll. App. 3d at 412. On

appeal, the respondent argued that the trial court did not have jurisdict ion to ente

r the ame nded QDRO because modifying

the QDROwas the equivalent of modify ing the judgment. The reviewing court disagreed and aff irmed the tr ial co urt's order amending the QDRO. Allen , 343 Ill. App. 3d at 412. The reviewi

ng cour t held tha t the tria l court h ad indefinite jurisdict ion to enf orce the judgmen t. Allen , 343 Ill. App. 3d at 412. The reviewing court further stated: "The amendm e nt to the QD RO chang ed the formula to c onform to the judg ment. This change did not impo se new or different obligations on the parties. *** The a mendment

to the QDRO was necessary

to enforce the petiti oner' s rights and oblig ations wit

h respect to the pension. Since the amended order only enforced the provisions of the judgment, the court had jurisd iction to make the mod ification s." Allen , 343 Ill. App. 3d at 413.No. 2--08--1210

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The court's rationale in Allenis helpful to the current matter, and we conclude that the trial court had jurisdiction to enforce the marital settlement agreement without

first est ablishing a basis to vacate the dissolution judgment pursuant to section

2--1401 of the Code. Here, petitioner is not seekingto impose new or different obligations on the parties. Rather, she is attempting to enforce the parties'

rightsand obligations with resp ect to re spondent' s retire ment plan s, which w ere cle arly laid out in the marital settlement agreement and judgment of dissolution. See Allen , 343 Ill. App. 3d at 413. Further, we recog nize that petitioner labeled her filing a "pet i tion to modify or reform judgmen t" and cite d section

2--1401 o f the Code . Howeve r, a filin g's substanc e, not its title, determines its character, and in this case, the substance of the petition was to enforce the judgment inaccordance with theparties' intent and not to impose new or differe nt obliga tions on the

parties. See Miller , 363 Ill. App . 3d at 911, c itin g Sarki ssian v. Ch icago Board of Education , 201 Ill. 2d 95, 102 (2002) ("[i]t is a motion's substance, not its title, that determines the motion's charact er" ). Accord ingly , becau se petitioner is se eking to enforce the judgment, the trial court had jurisdiction to enter an

order enforcing the terms of the marital settlement ag reement without first establishing a basis to vacate the judgment pursuant to section 2--1401. See Allen , 343 Ill. App. 3d at 413. The next issue on appeal is whether, pursuant to the marital settlement agreeme nt, the true intent of t he parti es was to

equally divide ea

ch of respondent's retirement ac counts or whether the parties inten ded to inclu de onl y the Anhe user-B usch d eferred incom e stoc k purc hase an d savi ngs planand the Kraft

Foods thr

ift plan w hile omittin

g the re spective

pension pl ans. Petitioner argues that the lang uage o f the mar

ital settle ment ag reemen t clearl y r eflects the part ies' in te nt to equa

lly divide all of respondent's retirement plans that acc rued during the marriage . We agree. Illinois law is clear

that rules of contract construction are applicable to the interpretation of provisions in a marit

al settle ment ag reemen t, and the primary objectiv e is to effectuate the intent ofNo. 2--08--1210

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t he parties. In re Marriag e of Carrier , 332 Ill. App. 3d 654, 658 (2002). When the terms of the agreement

are unambiguous, the intent of the parties is determined solely from the language of the agree ment. In re

Marriage of Wassom , 352 Ill. App. 3d 327, 330-31 (2004). Whether the agreement reflected the actual intent

of the pa rties is a question of law we review de novo

. Allen , 343 Ill. App. 3d at 4 13, ci ting Gray v. Mu ndele in Co llege , 296 Ill. App. 3d 795, 803 (1998). Here, article 18.4 of the marital settlement agree ment clearly pr

ovides tha t t he parties intended for pet itio ner to receive "fifty percent (50%) of the account bala nce of each of [responde nt's] retirement plans " value d at the da te the jud gment w as enter

ed. This la

nguag e is unambig uous, and we can ascertain the parties' intentsolely from that lang uage. See Wasson , 352 Ill. App. 3d at 331. Accordingly , we hold that the parties intended for petitioner to receive 50% of the account balance of each of respondent's retiremen

t plans, including his Anheuser-Busch and Kraft pe nsion fund s. Moreover, and desp ite respondent' s argument to the contrar y, t he lang uage c ontained

in article 18. 4 does not conflict with article 18.1. As outlined above, article 18.1 provided that respondent

would ent

er into a QDRO giv

ing peti tioner 50 % of his An

heuser- Busch de ferre d income stock purch ase and savin gs plan and Kraft Foods thrift plan. This provision outlined the rights and obligations of the parties with respect to those retirement plans and spec ifically require d the parties to enter into a QDRO. However, this provision did not addres s--much less limit--the rights and obligations of t he p art ies wit h re spe ct t o an y oth er r eti rem ent pl an, in clu di ng t he p ens io n pl ans . If the parties i

ntended a rticle 18.1 to provide that petitioner was entitled to 50% of the account balance of only those two specific retirement plans, and was not entitled to an interest in any other

retirement plan, then t he part ies co uld h ave add ed spe cific langua ge to article 18.1 to reflect that intention. See Wassom , 352 I ll. App. 3d at 331 (ho lding tha

t, if the pa

rties inte nded a pr ovision to li

mit t heNo. 2--08--1210

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husba nd's health-care-expense obligations to apply only to a child and n ot to t he wife, the marital settlement

agreeme nt cou ld hav e used speci fic la nguage to express that intent). The parties could have also added language to ar ticle 18.4 to provi de that it w as the parties' intent that petitioner receive 50% of each of

responde nt's re tirement plans "r efere nced" or "liste d" in ar

ticle 18.1, had they

so desired. Accordingly, we conclude that, pursuant to the unambiguous lang uage c ontained in article 18.4 of the marital settlement agreement, the parties intended for petitioner to receive 50% of "each of [respo ndent' s] retirement plans," including his Anheuser-B usch and Kraft Foods pension plans. For

the foregoing reasons, w e reverse the judgment of the Lake County circuit court and remand this matter for further proceeding s consistent with this opinion. Reversed and remanded. McLAREN , J., concu rring. JUSTICE BOWMAN, s

pecially concurs : Ico nc ur wi th th e m aj or it y that petitioner was seeking to enforce the marital settlement agreement

rather than seeking to vacate the dissolution judgment, pursuant to section 2--1401. I als o

concur with the ma

jority in its ultima

te decis io n to reve rse the ju dgment o f the tria

l court a nd to remand the caus e. Howe

ver, I disagr ee with th e majorit

y th at artic le 18.4 of the marital settlement agree ment is una

mbiguous

. When interpre

ting a ma rital set tlement a greement, a court

seeks to g

ive eff ect to the parties' intent. Allton v. Hintzsche , 373 Ill. App. 3d 708, 711 (2007). The language used in the a greement is usually the best indication of the parties' intent. Allton , 373 Ill. App. 3d at 711. When the terms of the agreement are una

mbiguous, we determine the parties' intent solely fromthe language of the agree ment. Allton , 373 I ll. App. 3d at 7 11. "An a

mb iguity exists when an ag reement containsNo. 2--08--1210

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langua ge that is su sceptible t o more than o ne reasonable i nterpretati on." Allton , 373 Ill. App. 3d at 711. " 'Where the languag e is ambiguous, parol evidence may be used to dec ide whatthe parties intended.' " Allton , 373 Ill. App. 3d at 711 , quot ing In re Marriag e of Michaelson , 359 I ll. App. 3d 706, 714 ( 2005). Al l the provisions of the agre ement sho uld be re ad as a w

hole to interpret it and to determine whether an ambiguity exists. Rich v. Principal Life I nsurance Co. , 226 Ill. 2d 359, 371 ( 2007). An amb iguity is not crea ted simply because the

parties disagree on the meaning of any provision. Rich , 226 Ill. 2d at 371-72. Inthis case, Ifind that article 18.4 of the marital settlement agree ment is susceptible to more thanone rea sonab le int erpret ation and th erefor e is am biguo us. In de termi ning t hat an am biguity exists, I re ad the ma

rital set tlement a greement and a

rticle X VII I as a whole. Ar

ticle XVIII is entitled "Retir ement

Plans," a nd begi ns in artic le 18.1 to name two sp ecific p lans: the A nheuser -Busc h deferred income sto ck purchase and savings plan and the Kraft Foods thrift plan. The parties agreed to enter into a QDRO to distribut e th e plans equally. Ar ticle 18.2 then states that respondent was to obtain current account statement s for "each of thes e retirement p lans." Article 18.3 then states that responde nt was res ponsible f or prepa ring the QDRO for

"each of these retirement plans ." Artic le 18.4 then provides that

it was the p arties'

intention t

o divide th e "bala

nce of e ach of [r

esponde nt's] retirement

plans" eq

u ally. Bec ause the agreement alre ady stated in section 18.1 that the two identified plans would be divided equally a nd the subject of a QDRO, I believe that one c ould reasonably

interpret that articles 18.2, 18.3, and 18.4 referred to other retirement plans. How ever, be ca use none of the provisi ons of ar ticle XVI II makes cl ear tha

t additiona

l retire ment plan s exist, Ibelieve that one a

lso could r

easonab ly in

terpret article

18.4 as re ferring

so le ly t o the two plans named in a

rticle 18 .1. Accordingly

, I be lieve tha

t article 18.4 is ambiguous and that the judgment of the trial court should be reversed and the cause remanded for the trier of fact to determine whetherNo. 2--08--1210

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the parties intended for the equal division of the pension plans. Given the fact that the parties had testified that they intended to divide the marital property e qually and that the pensions in question

were marital prope rty, I would predi ct tha t resp onden t woul d have a diff icult time prevai ling, but I do believe that the question is proper for the fact finder.