                                                                               THIRD DIVISION
                                                                                February 6, 2008




No. 1-07-0417


In re MARRIAGE OF                                            )      Appeal from
                                                             )      the Circuit Court
KATHLEEN M. JAMIESON,                                        )      of Cook County.
                                                             )
                Petitioner-Appellee,                         )
                                                             )      No. 02 D 18463
       and                                                   )
                                                             )
EDWARD S. JAMIESON,                                          )      Honorable
                                                             )      Kathleen G. Kennedy,
                Respondent-Appellant.                        )      Judge Presiding.



       JUSTICE THEIS delivered the opinion of the court:

       Following the entry of a judgment for dissolution of marriage, respondent, Edward S.

Jamieson, sought review of a qualified domestic relations order (QDRO) entered by the circuit

court of Cook County, awarding a share of Edward’s profit-sharing benefits to petitioner,

Kathleen M. Jamieson. Edward contends on appeal that the QDRO violates the Employee

Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq. (2000)), and is

contrary to the parties’ marital settlement agreement because it grants Kathleen increased benefits

not otherwise provided for under Edward’s profit-sharing plan. For the following reasons, we

affirm the judgment of the circuit court.
1-07-0417

BACKGROUND

       On June 30, 2006, the circuit court entered a judgment for dissolution of marriage

incorporating the terms of the parties’ marital settlement agreement. Article X of the agreement

addressed the division of property and the allocation of assets. Specifically relevant to this appeal,

the agreement provided as follows:

                       “a. Name of Plan. It is intended that the Wife shall receive

               an interest in the Husband’s benefits in the Jamieson and Associates

               Money Purchase Pension Trust, and the Husband shall cooperate in

               entering a Qualfied Domestic Relations Order (QDRO) to

               effectuate this intent. Said [QDRO] shall include the following

               information and provisions:

                                       * * *

                               iii. Description of Benefit to be

                       Transferred to Alternate Payee. 55% of the

                       marital portion of the total benefits accrued by the

                       Participant under the Plan, as of the date of entry of

                       Judgment of Dissolution of Marriage, shall be

                       segregated into a separate account established in the

                       Alternate Payee’s name and invested in accordance

                       with the Plan provisions.”

       Thereafter, the parties submitted separate draft QDROs for the court’s approval. The


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1-07-0417

QDRO submitted by Edward provided in pertinent part as follows:

                     “Amount of Alternate Payee’s Benefit:

                     Amount of Assignment: This Order assigns to Alternate

              Payee * * * 55% of the money purchase account of the

              Participant’s Total Account Balances, of said above accounts as

              determined by the Plan on or before June 30, 2006.

                     Post-Divorce Contributions Attributable to Periods Before

              Divorce: In the event that the Plan made any contributions to the

              Participant’s account(s) after June 30, 2006, but that are

              attributable to periods before this date, then such Total Account

              Balance shall further include such contributed amounts.”

The draft QDRO submitted by Kathleen provided, in pertinent part:

                     “Amount of Alternate Payee’s Benefit:

                     Amount of assignment: This Order assigns to Alternate

              Payee * * * 55% of the money purchase account of the

              Participant’s Total Account Balances, of said above accounts as

              determined by the plan for Plan Year ending September 30, 2005.

                     Post-Divorce Contributions Attributable to Periods Before

              Divorce: In the event that the Plan made any contributions to the

              Participant’s account(s) for Plan Year ending September 30, 2006,

              then the Alternate Payee shall receive 41.25% (which is 55% of


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1-07-0417

               75% of the Plan Year) of such contributions as of September 30,

               2006.”

Additionally, in October 2006, the circuit court heard testimony from Sandor Goldstein, Edward’s

consulting actuary, and Larry Shippee, the plan administrator, with regard to the nature of the

plan and the way it is funded and valued. These experts explained that the Jamieson &

Associates, Ltd. 401(k) plan at issue, as it relates to Edward, is a profit-sharing plan. The plan is

made up of a pooled set of assets in a trust for the benefit of all participants in the plan. These

assets are valued annually on September 30. At that time, the earnings that have accrued in the

plan since the prior September, along with any discretionary contributions made by the employer,

are allocated among the participants to their individual accounts.

       The earnings are allocated based on a participant’s individual account balance for the prior

year. Therefore, for example, if a participant’s balance represented 25% of the total assets in the

trust, he would be entitled to 25% of the earnings that have accrued throughout the year on

September 30. The contributions are generally allocated based on a participant’s salary. The

earnings and contributions are only allocated to participants employed on September 30 and are

credited to participants’ individual accounts as of September 30 for that fiscal year. If a

participant is terminated or withdraws from employment prior to September 30, he would only be

entitled to the balance in his account as of the previous year end. He would not be entitled to

earnings or contributions for that fiscal year. Those benefits would then be allocated among the

remaining participants. Thus, any growth in the profit-sharing plan enures to the benefit of those

who are employed at the end of the fiscal year.


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1-07-0417

       The parties stipulated that it was possible to value the plan as of a date different than

September 30, and that Edward was a participant in the plan throughout the entire fiscal year

2005-2006. Mr. Shippee also indicated that if the domestic relations order provided Kathleen

with a percentage of Edward’s benefits based on the length of the marriage during the plan year

valued as of September 30, 2006, as the plan administrator, he had the authority to award that

benefit to Kathleen as long as it was not payable until after September 30, 2006.

       After the hearing, on January 16, 2007, the circuit court ruled as follows:

               “The QDRO proposed by Kathleen Jamieson takes into account

               what occurred between the last valuation date and the dissolution

               judgment date and provides for a calculable distribution that is

               consistent with the parties’ agreement and the judgment

               incorporating their agreement. Edward Jamieson presented

               insufficient evidence of an impact on other Plan participants to

               support a conclusion that entry of the QDRO proposed by Kathleen

               Jamieson is impermissible.”

Accordingly, the circuit court entered an order consistent with the QDRO presented on behalf of

Kathleen. Edward filed a timely appeal.

ANALYSIS

       Edward contends that the QDRO entered by the circuit court erroneously awarded

Kathleen an interest in the value of the plan after September 30, 2005, and provides her with an

increased benefit not available to other participants in the plan in violation of ERISA and the


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1-07-0417

marital settlement agreement. He asserts that she was only entitled to “55% of the marital estate

in the Jamieson Plan as of September 30, 2005.”

       The resolution of this issue involves the interplay between ERISA and state domestic

relations laws. Generally, ERISA restricts the alienation of certain retirement benefits. 29 U.S.C.

§1056(d)(1) (2000). However, under an important exception to this principle, in a divorce or

dissolution of marriage proceeding, ERISA permits a state court to enter a QDRO which

recognizes the existence of an alternate payee’s right to receive a portion of the participant’s

retirement benefits as marital property. 29 U.S.C. §1056(d)(3)(A), (d)(3)(B)(i) (2000). To be a

valid QDRO, the domestic relations order must comply with specific requirements set forth in

ERISA. See, e.g., 29 U.S.C. §1056(d)(3)(c), (d)(3)(D) (2000). Specifically related to this appeal,

the domestic relations order meets those requirements only if the order (i) “does not require a plan

to provide any type or form of benefit, or any option, not otherwise provided under the plan”; and

(ii) “does not require the plan to provide increased benefits (determined on the basis of actuarial

value).” 29 U.S.C. §1056(d)(3)(D)(i), (d)(3)(D)(ii) (2000).

       Initially, Edward argues that by awarding Kathleen a share of Edward’s interest in the plan

for a period of time after the September 2005 valuation date until June 30, 2006, the date of

dissolution, Kathleen was provided with a benefit not otherwise provided for under the plan.

Edward does not identify with any particularity any specific provision of the plan that is violated

by the QDRO. Rather, he generally asserts that Kathleen should be treated as if the participant

terminated or left the company. Under the plan, if an employee terminates or leaves the company,

the plan provides that the participant’s interest in the plan is determined as of the preceding


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1-07-0417

valuation date and all contributions and earnings occurring after that date would remain in the

plan for the benefit of the remaining participants.

       However, as the plan administrator explained during the hearing, a judgment for

dissolution does not act as a terminating event as it relates to Edward’s interest in the plan.

Additionally, Shippee specifically indicated that the alternate payee is “not treated identical to a

terminated employee” under the plan. Edward has not presented any evidence in the adoption

agreement of the plan that would conflict with that interpretation. Furthermore, the QDRO

entered by the court recognized that Kathleen’s entitlement to any contributions was indeed

contingent on the plan making a contribution to his account, and also recognized that Edward had

not terminated employment. Moreover, Shippee testified that he was authorized to award the

benefit to Kathleen under the plan “[a]s long as it wasn’t payable until after September 30, 2006.”

Accordingly, we find no merit to Edward’s contention that Kathleen received a benefit not

otherwise provided for under the plan.

       Edward additionally argues that by awarding Kathleen a share of his interest in the plan for

periods after the September 30, 2005, valuation date until the date of dissolution, the court

erroneously awarded her increased benefits. Edward has presented no evidence to the circuit

court or to this court that under the QDRO the plan was actually required to award her any more

than Edward was entitled to under the plan. Edward had earned benefits that were valued on

September 30, 2005. Additionally, he earned benefits for the plan year ending September 30,

2006. The parties were married during a percentage of that plan year. Kathleen is simply

receiving a percentage of the marital portion of those benefits to which Edward was entitled under


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1-07-0417

the plan.

       The award to Kathleen is not an “increased benefit” but, rather, is consistent with Illinois

law and the parties’ marital settlement agreement. Pension benefits earned during the course of

the marriage are considered marital property despite the fact that they may not actually be

distributed until after the marriage. In re Marriage of Abma, 308 Ill. App. 3d 605, 615, 720

N.E.2d 645, 654 (1999). Those benefits have been described as a form of deferred compensation

earned by an employee for his service to an employer. Abma, 308 Ill. App. 3d at 615, 720 N.E.2d

at 654. As such, they are treated as earnings, and to the extent that a spouse earned those

benefits during the marriage, they are considered marital property. Abma, 308 Ill. App. 3d at 615,

720 N.E.2d at 654.

       The domestic relations order entered by the circuit court takes into account what occurred

between the last valuation date of September 30, 2005, and the date of dissolution by merely

supplying a method to calculate the percent of his contribution to which she was entitled during

the nine months of the fiscal year in which the parties were married. The court found that to be a

reasonable method to value Edward’s interest in the plan as of the date of dissolution, which is

what the parties agreed to under the marital settlement agreement. The circuit court additionally

found that Edward failed to show how any other participant in the plan would be impacted by

implementing that method. We find that method to be a reasonable way of calculating her share

of Edward’s interest in the Plan up to the date of dissolution and not contrary to their agreement.

      Indeed, Edward acknowledged in his own draft QDRO submitted to the circuit court that

Kathleen would be entitled not only to 55% his account balance as of September 30, 2005, but,


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1-07-0417

also, to postdivorce contributions made after the divorce, but attributable to periods before the

divorce. Accordingly, for all of the foregoing reasons, the circuit court entered a proper QDRO

which is consistent with ERISA and the parties’ marital settlement agreement. The judgment of

the circuit court is affirmed.

        Affirmed.

        QUINN, P.J., and GREIMAN, J., concur.




                                                -9-
         REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
     _________________________________________________________________

           In re MARRIAGE OF

           KATHLEEN M. JAMIESON,

                         Petitioner-Appellee,

                   and

           EDWARD S. JAMIESON,

                       Respondent-Appellant.
      ________________________________________________________________

                                    No. 1-07-0417

                             Appellate Court of Illinois
                            First District, Third Division

                           Filed: February 6, 2008
     _________________________________________________________________

                  JUSTICE THEIS delivered the opinion of the court.

                     Quinn, P.J., and Greiman, J., concur.
     _________________________________________________________________

                 Appeal from the Circuit Court of Cook County
                 Honorable Kathleen Kennedy, Judge Presiding
     _________________________________________________________________

For RESPONDENT-          Barry H. Greenburg
APPELLANT                      Jewel N. Klein
                               Law Firm of Barry H. Greenburg
                               180 North LaSalle Street, Suite 3150
                               Chicago, IL 60601

For PETITIONER-                 Anne M. Coladarci
APPELLEE                        John A. Coladarci
                                Coladarci and Coladarci
                                155 North Michigan Avenue, Suite 375
                                Chicago, IL 60601
