                                       2019 IL App (3d) 160537

                               Opinion filed February 20, 2019
     _____________________________________________________________________________

                                                IN THE

                                 APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2019

     In re MARRIAGE OF                      )     Appeal from the Circuit Court
                                            )     of the 14th Judicial Circuit,
     LOUISE ZAMUDIO, f/k/a LOUISE OCHOA, )        Whiteside County, Illinois.
                                            )
           Petitioner-Appellant,            )
                                            )     Appeal No. 3-16-0537
           and                              )     Circuit No. 14-D-94
                                            )
     FRANK OCHOA, JR.,                      )
                                            )     Honorable John L. Hauptman,
           Respondent-Appellee.             )     Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion.
           Justice O’Brien concurred in the judgment and opinion.
           Presiding Justice Schmidt dissented, with opinion.
     _____________________________________________________________________________

                                               OPINION

¶1          Plaintiff, Louise Zamudio, formerly known as Louise Ochoa, and defendant, Frank

     Ochoa, Jr., were married in January 2000. The parties divorced in May 2016. At issue during the

     dissolution proceedings was whether Frank’s 48 months of permissive military service credit,

     which he earned prior to the marriage but purchased during the marriage with marital funds in

     order to enhance his State Retirement System Pension (pension), was marital property that

     should be considered when determining the marital portion of his pension. Ultimately, the trial

     court determined the enhancement itself was not marital property, but it found that Frank must
     reimburse Louise for her marital share of the funds used to purchase the enhancement. Frank

     does not dispute that portion of the trial court’s ruling.

¶2           Louise appeals, asserting the trial court’s judgment is reversible error. Specifically, she

     argues the permissive military service credit is marital property since the enhancement was

     purchased with marital assets.

¶3                                                  FACTS

¶4           The parties were married in January of 2000. In May 2014, Louise filed a petition for

     dissolution of marriage. In anticipation of the dissolution of their marriage, the parties mutually

     resolved all but two issues. The unresolved issues concerned the disposition of Frank’s pension,

     which began to accumulate prior to the marriage, and the amount and duration of maintenance.

¶5           Frank engaged in active duty military service from 1974 to 1980, after which he entered

     the military reserves where he served until 2003. He began working for the Illinois State Police

     in August 1989.

¶6           During the course of the parties’ marriage, Frank used marital assets to purchase 48

     months of permissive military service credit to enhance his pension. Specifically, in both 2004

     and 2008, he purchased 24 months of permissive credit for a total cost of $9,626.40. His

     eligibility for the permissive service credit derived from his active duty military service

     completed approximately 20 years prior to the marriage. Frank retired from the Illinois State

     Police on August 1, 2011, with 320 months of service, which included 263.50 months of regular

     service credit, 48 months of permissive service credit purchased during the parties’ marriage, 6

     months of unused/unpaid sick time, and 2.5 months of sick/vacation time he had also purchased.

     Frank began receiving monthly annuity checks on or about August 1, 2011. He received 58

     checks during the marriage. The initial monthly annuity payment was $9,088.86, of which



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     $1,363.33 represented the increase attributable to the purchased credits. Without the additional

     credits, Frank's monthly annuity would have been $7,725.53.

¶7          The parties agreed that Louise was entitled to 50% of the marital portion of Frank’s

     pension; however, they disagreed on how much of Frank’s pension was classified as marital. In

     that regard, both Frank and Louise submitted written arguments to the court. Frank asserted that

     Louise was entitled to reimbursement for contribution to the purchase of the permissive military

     service credit, but she was not entitled to any interest in that portion of his pension. In contrast,

     Louise argued that the pension account was marital property as was the enhancement created by

     purchasing the 48 months of permissive service credit with marital assets.

¶8          In April 2016, the trial court entered a written order, finding in pertinent part, “[t]hat

     because Frank acquired th[e] military permissive service to increase the number of months of

     service in order to enhance the benefit he would receive from his state pension during the term of

     the marriage, those months were earned during the marriage and should be included in the

     numerator of the fraction to determine the marital share of his pension.”

¶9          Frank timely filed a motion to reconsider, arguing the trial court erred, as a matter of law,

     in finding the 48 months of permissive service credit to be marital property. He asserted the

     court’s judgment ignored the fact that the permissive service credit could not have been

     purchased without his active duty military service, which was completed long before the parties

     married. He further maintained that “the eligibility and the 48 months of military service were

     not transformed into marital property when [he] exercised his right to purchase the military time

     with marital funds during the marriage.” Rather, citing In re Marriage of Ramsey, 339 Ill. App.

     3d 752 (2003), he argued that the timing of the purchase and the use of marital funds merely

     created a right of reimbursement in the marital estate for its monetary contributions.



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¶ 10          Ultimately, the trial court agreed with Frank. In its August 2016 order, the court found it

       had erred in its prior judgment by failing to apply Ramsey. The court acknowledged the

       enhancement was purchased during the term of the marriage, but it noted that the enhancement

       “was not ‘purely derivative’ of [Frank’s] right to receive his state pension because what was

       purchased to enhance the pension *** was military time earned prior to the marriage.” The court

       held “[t]hat in keeping with the holding in Ramsey, [Frank] should reimburse [Louise] for her

       marital share of these funds which [it] f[ound] to be in the amount of $4,813.20.”

¶ 11          Louise appeals.

¶ 12                                               ANALYSIS

¶ 13          On appeal, Louise maintains that the trial court erred in finding the 48 months of

       permissive service credit was not marital property.

¶ 14          Generally, we review a trial court’s factual determination regarding whether an asset is

       marital property or not under the manifest weight of the evidence standard. In re Marriage of

       Peters, 326 Ill. App. 3d 364, 366 (2001). Here, however, the facts are not in dispute nor is the

       credibility of the witnesses at issue. Id. Instead, our only concern is to determine the legal effect

       of undisputed facts. Specifically, we must determine whether the permissive service credits

       purchased with marital assets during the term of the parties’ marriage in order to enhance

       Frank’s pension are marital property, even though the entitlement to the enhancement is not

       entirely derivative of Frank’s right to receive his pension. Accordingly, our review is de novo.

       Id.

¶ 15          Both parties seem to rely on Ramsey, 339 Ill. App. 3d 752. In that case, the parties were

       married from 1969 to 1989, throughout which time the husband was employed as a school

       teacher who participated in the Teachers’ Retirement System (TRS) of the State of Illinois



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       pension plan. Following the dissolution of their marriage, the trial court reserved jurisdiction to

       divide the husband’s pension. Id. at 754. In 2000, 11 years after the parties divorced, the husband

       took advantage of two early retirement incentives that were available to teachers with at least 20

       years of service by making two one-time payments to the TRS of $7397.46 and $6390.60. Id. at

       754-55. Following the husband’s retirement later that year, the wife filed a motion seeking a

       qualified Illinois domestic relations order (QULDRO) to divide the husband’s pension. Id. at

       755. The Massac County circuit court found that the husband’s nonmarital monetary

       contributions could not be severed from the rest of his pension, and thus, it included the portion

       of the pension attributable to the early retirement incentives purchased by the husband as part of

       the marital pension. Id. The husband appealed, asserting that the wife should not be entitled to

       any portion of his pension attributable to the early retirement incentives he purchased with

       nonmarital funds. Id. at 756.

¶ 16          On appeal, the Fifth District acknowledged that the husband’s entitlement to the

       enhanced pension benefits flowed from both his right to receive pension benefits in the first

       place and from the lump-sum contributions he made following the dissolution of the parties’

       marriage. Id. at 763. The court noted that the husband would not have been eligible for the

       enhancements no matter how much money he paid into TRS but for his contributions to the plan

       through teaching for 31 years—60% of which he worked during the marriage. Id. at 764. In other

       words, the court found that the husband’s entitlement to the enhanced benefit was not “purely

       derivative” of his right to receive his pension but, instead, resulted from both marital and

       nonmarital elements. Id. The court concluded that “the most rational and equitable way to do

       justice to both parties is to require [the wife] to pay her proportionate share of the contributions

       necessary for [the husband] to qualify for the enhancements.” Id. at 765. In conclusion, the court



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       found “that when an early retirement incentive enhances pension benefits, to the extent that such

       enhancements are derivative of the right to receive the pension as deferred compensation, the

       proportion of the enhancement that is marital property is exactly the same as the proportion of

       the pension as a whole that is marital.” Id. at 766. The court continued, “[i]n the unusual case

       where the entitlement to such enhancements is not purely derivative, however, that portion of the

       enhancement not derived from the right to receive the pension itself is the pensioner’s sole

       property.” Id.

¶ 17          We find Ramsey instructive, although not dispositive of the issue at hand. A key

       difference between Ramsey and the instant case is that, unlike the annuitant in Ramsey, Frank

       began receiving his annuity payments during the marriage. It is undisputed that Frank received

       56 annuity payments during the marriage. This is not an insignificant factor. The Ramsey court

       was addressing the common problem of how to divide a pension benefit with an unknown future

       value. In other words, the question in Ramsey was one of valuation, not entitlement. The issue

       was how much of the pension check was subject to formulaic division, not whether a particular

       enhancement provision constituted marital or non-marital property. To the extent that Ramsey

       addressed the concept of entitlement to enhancement pension benefits, it did so as dicta.

       However, Ramsey remains instructive regarding the proper resolution of this matter.

¶ 18          The fact that Frank had already been receiving an enhanced annuity benefit for 56 months

       during the marriage is significant for another reason. As the Ramsey court observed, “[i]f the

       pension enhancements are a separate and distinct benefit that came into existence after the

       dissolution, they are not a part of the pension check to be divided.” Id. at 757 (citing Hannan v.

       Hannan, 761 So.2d 700, 707 (La. App. 2000) (finding enhancements to a pension to be an asset

       acquired after the marriage ended and therefore not subject to division along with the rest of the



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       pension)). However, if the enhancement came into existence during the marriage, as in the

       instant matter, there is no simple solution. Instead, Ramsey suggests the court must look to

       whether the enhancement is derivative of the right to receive a pension in the first place or if the

       enhancement is non-derivative in the sense that the enhanced portion is directly and solely

       attributable to non-marital contributions and not subject to division. Ramsey, 339 Ill. App. 3d at

       763. Regarding the derivative nature of a pension enhancement provision, the Ramsey court

       cogently observed that “the right to receive an early retirement incentive package necessarily

       depends upon the right to receive the pension.” Id. Also, [t]he right to pension enhancements can

       have no existence independent of the right to receive a pension.” Id. In other words, to the extent

       that a pension benefit is a marital asset, any enhancement in value obtained during the marriage

       is also a marital asset subject to apportionment on an equitable basis.

¶ 19          In this case, Frank maintains that his eligibility for the 48-month permissive service credit

       stemmed entirely from his years of active duty military service, which was completed 20 years

       prior to the parties’ marriage. However, Frank ignores the fact that his entitlement to the

       enhanced benefit is derivative of his entitlement to the pension in the first place. While it is

       undoubtedly true that, absent his military service, Frank would not have been entitled to purchase

       the permissive military service credit, it is equally true that that right to enhance the overall

       pension benefit accrued to his benefit as a result of his participation in the pension program,

       which provided the enhancement to member meeting the enhancement criteria.

¶ 20          In other words, Frank’s entitlement to the enhanced value of each pension payment flows

       both from his participation in the plan itself and the fact that the pension statute allows him to

       enhance the present value of his annuity by an amount calculated based upon his prior military

       service. Viewed another way, Frank’s entitlement to an enhanced annuity accrued while he



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       participated in the pension plan, and thus, a portion of that credit accrued during his marriage to

       Louise. The fact that the enhancement was calculated based on a number equal to the number of

       months Frank served in the armed forces did not mean that Frank acquired the asset at the time

       of his military service. Frank’s military service had no relationship to his pension benefit until he

       exercised the option of purchasing the 48-month of additional credits, which was done during the

       marriage and with the use of marital funds.

¶ 21          The major problem with the dissent is that it views Frank’s four years of military service

       as non-marital property that cannot be equitably divided by the trial court. The fundamental error

       in this analysis is in viewing the military service as “property.” As we have previously noted,

       Frank’s years of military service were not property, but simply conditions precedent, which the

       Pension Code allowed Frank to use to enhance the current value of his pension. It was the current

       value of the annuity payments, acquired during the marriage, that constituted marital property

       subject to equitable division by the trial court.

¶ 22          In sum, we find that the trial court erred in determining that the 48-month permissive

       service credit was nonmarital property. Thus, we reverse the trial court on that question and

       remand for an equitable distribution of the marital value of the defendant’s pension annuity.

¶ 23                                              CONCLUSION

¶ 24          For the foregoing reasons, the judgment of the circuit court of Whiteside County is

       reversed and the matter is remanded for an equitable apportionment of the defendant’s pension.

¶ 25          Reversed; cause remanded.

¶ 26          PRESIDING JUSTICE SCHMIDT, dissenting:




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¶ 27          As far as I can tell, this is the first decision in the free world ordering a trial court to

       consider a 4-year period that occurred 20 years prior to the marriage, as though the parties were

       married during those 4 years, in order to calculate the marital portion of a pension.

¶ 28          The issue before us is whether the trial court properly ruled that four years of military

       service completed by Frank years before his marriage to Louise should not be included in the

       numerator to determine Louise’s marital percentage of Frank’s pension. I am sure by now,

       having read the majority’s opinion, you understand that Frank purchased this with the use of

       marital funds. The trial court found that it was not marital property and ordered Frank to

       reimburse Louise for one-half of the purchase price of the four-year military pension credit. This

       is a simple case. Frank enhanced a nonmarital asset with marital assets and, therefore, he must

       repay, and I believe has repaid, Louise for her share of those funds. The trial court got it exactly

       right. Frank’s 48 months of military credit are no more marital property than are the 11 years of

       credit he earned for his Illinois State Police service prior to the marriage.

¶ 29          The majority finds the fact that Frank began receiving his annuity payments during the

       marriage as “[a] key difference between Ramsey and the instant case *** [and] is not an

       insignificant factor.” Supra ¶ 17. I submit the fact that Frank began receiving his annuity

       payments during the marriage is totally irrelevant to the issue of whether his premarital military

       service credits, albeit purchased during the marriage, are marital property. Let us not lose sight of

       the fact that Louise does gain a benefit from the four years of military credit as Frank’s pension

       is larger than it would have been without that credit. That is, as in Ramsey, pursuant to the trial

       court’s ruling, Louise is getting her marital portion of the enhanced pension.

¶ 30           The majority notes, while trying to both distinguish and incorporate Ramsey, “if the

       enhancement came into existence during the marriage, as in the instant matter, there is no simple



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       solution.” (Emphasis in original.) Supra ¶ 18. Yes, there is! The trial court got it right. So, the

       majority then goes on to proclaim that “Ramsey suggests the court must look to whether the

       enhancement is derivative of the right to receive a pension in the first place or if the

       enhancement is non-derivative ***.” (Emphasis in original.) Id. First of all, under the majority’s

       analysis, every enhancement to a pension is derivative of the existence of the pension. One

       cannot enhance an asset that does not exist. The majority correctly observes, “to the extent that a

       pension is a marital asset, any enhancement in value obtained during the marriage is also a

       marital asset subject to apportionment on an equitable basis.” Supra ¶ 18. Louise received her

       share of the enhancement in value. Yet the majority simply ignores this. The majority wants to

       include the four years of military service as marital property in addition to giving her the marital

       portion of the enhanced value of the pension. That is, the majority gives Louise the same benefit

       she would have received had she and Frank been married while he served in the military. This

       also gives Louise a larger slice of the entire unenhanced pension by, in essence, judicially adding

       four years to the marriage.

¶ 31          The majority states, “However, Frank ignores the fact that his entitlement to the enhanced

       benefit is derivative of his entitlement to the pension in the first place.” (Emphasis in original.)

       Supra ¶ 19. “While it is undoubtedly true that, absent his military service, Frank would not have

       been entitled to purchase the permissive military service credit, it is equally true that that right to

       enhance the overall pension benefit accrued to his benefit as a result of his participation in the

       pension program, which provided the enhancement to member[s] meeting the enhancement

       criteria.” Id. Yes, if Frank did not have a pension, it could not be enhanced. Got that. Louise

       received her marital portion of the enhanced pension. That is a far cry from the majority’s novel

       and unsupported proposition that Frank’s four years of military credit is marital property. It



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       seems clear from the record that Frank could not have retired when he did absent his 11 years of

       Illinois State Police service prior to the marriage. Those years likewise enhanced his pension.

       Every year he served with the Illinois State Police enhanced his pension. Why not go for the gold

       and make those marital property, too?

¶ 32          Again, to conclude, Frank enhanced a nonmarital asset with marital funds. That does not

       make those 48 months of service marital property. See 750 ILCS 5/503(a)(2) (West 2016)

       (“[P]roperty acquired in exchange for property acquired before the marriage” is considered

       nonmarital property.); id. at § 503(c)(1)(A) (Where nonmarital property is commingled with

       marital property, it retains its nonmarital status so long as it retains its identity.); In re Marriage

       of Henke, 313 Ill. App. 3d 159 (2000) (noting that the legislature amended section 503(c) of the

       Illinois Marriage and Dissolution of Marriage Act in 1983 in order to reject the presumption at

       the time that commingled property was always transmuted to marital property). Nonetheless,

       Louise did receive a benefit from the enhancement because she is receiving her marital portion

       of the total, enhanced pension. That is an equitable apportionment of Frank’s pension. Calling

       those 48 months that Frank served in the armed forces 20 years before the marriage marital

       property and increasing the marital portion of the entire pension is without precedent. That is, the

       48 months of military service should not be included in the numerator of the equation

       determining the marital portion of the pension. Neither the law, equity, nor common sense

       supports the majority’s decision.

¶ 33          I would affirm the trial court.




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