                                         2016 IL App (3d) 150496

                                 Opinion filed April 5, 2016
     _____________________________________________________________________________

                                                  IN THE

                                    APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2016

     In re MARRIAGE OF                                )      Appeal from the Circuit Court
     DAVID R. KNUTSON,                                )      of the 12th Judicial Circuit,
                                                      )      Will County, Illinois,
            Petitioner-Appellant,                     )
                                                      )      Appeal No. 3-15-0496
            and                                       )      Circuit No. 11-D-243
                                                      )
     RUTH KNUTSON,                                    )      Honorable
                                                      )      Robert P. Brumund,
            Respondent-Appellee.                      )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE CARTER delivered the judgment of the court, with opinion.
           Presiding Justice O'Brien and Justice Wright concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Petitioner, David R. Knutson, appeals from the reduction of his maintenance obligation

     with respondent, Ruth Knutson, arguing that the trial court improperly modified the parties'

     Marital Settlement Agreement (MSA) by considering his pension benefits as income for the

     purposes of calculating maintenance. We affirm.

¶2                                                FACTS

¶3          In 2012, a judgment for dissolution of marriage was entered disbanding the marriage of

     petitioner and respondent. The parties were married for 30 years. The judgment incorporated an
     agreed MSA, which provided, among other things, that petitioner would pay respondent

     permanent maintenance in the amount of $3,100 per month. The maintenance was set to

     terminate "upon the occurrence of one of the following: (1) remarriage of Wife; (2) death of

     Wife or Husband; (3) the Wife residing with an unrelated person on a continuing conjugal basis;

     or (4) any other terminating factor pursuant to Illinois law." Further, respondent was awarded

     50% of the marital portion of petitioner's Illinois Municipal Retirement Fund pension (the

     pension), which was already on payout status. A Qualified Illinois Domestic Relations Order

     (QILDRO) was to be prepared and entered so that respondent would be directly paid for her

     interest in the pension. The MSA further provided that should petitioner receive an increase in

     the pension benefits, respondent would be entitled to a proportionate increase. The MSA stated

     that respondent would have no right or interest in petitioner's deferred compensation plan or one

     of his defined contribution plans. The MSA concluded with a mutual release.

¶4          In May 2014, petitioner filed a "Petition to Review and Reduce Maintenance," alleging

     that, due to his involuntary termination from his employment, his income was substantially

     reduced. Petitioner argued that the loss of employment income was a substantial change in

     circumstances warranting a modification of the maintenance, and asked that "his obligation to

     pay maintenance be substantially reduced." Both parties listed the pension as their only source

     of income.

¶5          After a hearing in January 2015, the trial court found that petitioner's termination was

     involuntary. The parties agree that the award of maintenance had originally been made to

     equalize the parties' income. The court said it was "going to modify the petitioner's obligation to

     pay maintenance to equalize the income." The court said his "intention [was] to do the

     following. Whatever the petitioner's gross pension is and the respondent's gross pension is, we


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     total it, divide it in half and whatever the petitioner's maintenance obligation will be to create an

     equal of fifty-fifty split of their income today." Petitioner's income statement only included his

     net income. As the maintenance calculation needed to be based on his gross income and the

     parties needed to calculate what the maintenance would be, the court told the parties to come

     back to present an order. Before leaving to make the calculations, petitioner's attorney stated, "I

     do understand, Judge. It is not an objection. I just want to point out that part of the reason that

     the pension benefit is greater, is that it includes a non-marital portion, he worked for the sheriff's

     department for a few years." The court stated, "I understand. I am not dividing his pension. ***

     I am ordering that if he wants to get some funds from another source, I don't care. *** It is not

     another division of his pension." Petitioner's attorney said that he understood.

¶6             In February, the parties returned with petitioner's gross income. Based on the gross

     income of each party, the respondent's attorney had calculated the maintenance payment to create

     the equalized income, determining that the maintenance would be $778 per month. Petitioner's

     attorney disagreed, arguing that the pension was marital property divided at the time of the

     divorce and that calculating the maintenance in that way had the effect of reopening the pension

     division. The court said it was not redividing his pension, and petitioner was not required to pay

     the maintenance from his pension as the court was not suggesting a new QILDRO. The court

     stated:

                      "I am relying upon the representations of both counsel made relative to the fact

                      that there was an equalization of income as part of the judgment for dissolution of

                      marriage based upon the length of the marriage between the parties so–and based

                      upon at the time [petitioner's] pension and other employment. So with those

                      factors in mind, I am going to equalize the income again.


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                              778 a month so long he remains unemployed. It does the same thing as

                      the judgment for dissolution of marriage did. I do not find that as a distribution or

                      a new distribution of the pension amount but a payment of maintenance."

¶7          Petitioner filed a motion to reconsider, arguing that the maintenance obligation should

     have been terminated (as opposed to reduced). Specifically, petitioner argued the court

     "improperly modified the parties' MSA when it classified petitioner's pension benefits as

     'income' for the purposes of calculating maintenance." The court denied the motion.

¶8                                                ANALYSIS

¶9          On appeal, petitioner argues that the court improperly considered his pension benefits as

     income, as doing so improperly modified the MSA. Defendant has dedicated 1½ pages to his

     argument to support this proposition. His brief initially states:

                      "While maintenance provisions are modifiable based on a showing of a

                      substantial change in circumstances, property settlement provisions are not. [In re

                      Marriage of Munford, 173 Ill. App. 3d 576, 579 (1988)] (citing In re Marriage of

                      Christianson, 89 Ill. App. 3d 167 (1st Dist. 1980). In this case, the trial court

                      properly reduced [petitioner's] maintenance based on termination of his

                      employment, but it improperly required [petitioner] to use non-marital property as

                      a source of funds to pay [respondent] maintenance."

     The remainder of petitioner's brief cites two cases in support of this. Munford, 173 Ill. App. 3d

     576; In re Marriage of McLauchlan, 2012 IL App (1st) 102114. Thus, our analysis is narrowly

     tailored to petitioner's limited argument and cited case law. 1

            1
¶1              We note that respondent has not filed a brief in this case. "Our supreme court has held

     that the failure of an appellee to file a brief does not mandate pro forma reversal, as '[a]


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¶ 10            When an order for maintenance is being reviewed, modified, or terminated, section

       510(a-5) of the Illinois Marriage and Dissolution of Marriage Act (Act) specifically requires the

       court to consider "the property, including retirement benefits, awarded to each party under the

       judgment of dissolution of marriage, judgment of legal separation, or judgment of declaration of

       invalidity of marriage and the present status of the property." 750 ILCS 5/510(a-5)(6) (West

       2014).

¶ 11            Because the Act expressly commands the trial court to consider "retirement benefits"

       when maintenance is being reviewed, modified, or terminated, we hold the trial court did not

       abuse its discretion in considering the pension benefits as income. 750 ILCS 5/510(a-5)(6)

       (West 2014); see In re Marriage of Bryant, 206 Ill. App. 3d 167, 172 (1990) (when determining

       whether there existed a substantial change in circumstances to warrant modification of former

       husband's maintenance obligation, the court properly considered husband's pension and stock

       income, even though husband was awarded the stock and pension as part of his property award

       in the divorce).




       considered judgment of the trial court should not be set aside without some consideration of the

       merits of the appeal.' " U.S. Bank Trust, N.A. v. Atchley, 2015 IL App (3d) 150144, ¶ 9 (quoting

       First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131 (1976)). The

       appellate court should decide the merits of the appeal so long as the record is simple and the

       claimed errors can be easily decided without the appellee's brief. Id. (citing First Capitol

       Mortgage Corp., 63 Ill. 2d at 133). We find this scenario present in the instant case and,

       therefore, we will consider the merits of this appeal, notwithstanding the lack of appellee's brief.




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¶ 12          In coming to this conclusion, we reject petitioner's reliance upon Munford, 173 Ill. App.

       3d 576, and McLauchlan, 2012 IL App (1st) 102114, for the proposition that consideration of

       petitioner's pension benefits as income resulted in the improper modification of the parties' MSA.

       The parties' property settlement agreements in both cases included specific, express waivers

       renouncing any interest in the other spouses' pension or retirement plans. See Munford, 173 Ill.

       App. 3d at 577 (former wife waived " 'any and all claims that she may have in and to [husband's]

       pension and/or profit sharings plans' " (emphasis omitted)); McLauchlan, 2012 IL App (1st)

       102114, ¶ 5 (property settlement agreement stated " '[e]ach party shall execute any and all

       documents necessary to waive any and all interests, or partial interest(s) in and to the retirement

       plan(s) the other party is receiving pursuant to terms of the Agreement' " (emphasis omitted)). In

       both cases, the First District held that because the parties expressly waived their rights to the

       pension or retirement benefits in the property settlement agreement, the trial court's order basing

       the maintenance modification on the income from such benefits amounted to a modification of

       the parties' property settlement agreements as opposed to a modification of maintenance.

       Munford, 173 Ill. App. 3d at 579-80; McLauchlan, 2012 IL App (1st) 102114, ¶¶ 24-25.

¶ 13          Here, the parties' MSA includes respondent's express waiver of petitioner's deferred

       compensation plan and one of petitioner's defined contribution plans. However, no such express

       waiver is included regarding petitioner's pension benefits. We find Munford and McLauchlan

       distinguishable on this ground alone.

¶ 14          Likewise, we reject petitioner's argument that such a waiver is implicitly included in the

       boilerplate mutual release at the end of the MSA. Such a reading would require us to ignore the

       express written language of the Act requiring the trial court to consider the "retirement benefits"

       of the parties when modifying maintenance. Though the First District case law forgives the trial


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       court this consideration when the parties expressly waive their interests in certain retirement

       benefits, we are unwilling to expand this to include boilerplate, generic waivers, like the one

       found here.

¶ 15                                            CONCLUSION

¶ 16          The judgment of the circuit court of Will County is affirmed.

¶ 17          Affirmed.




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