                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court



                       In re Marriage of Winter, 2013 IL App (1st) 112836




Appellate Court            In re MARRIAGE OF ANA L. WINTER, Petitioner-Appellant, and
Caption                    JEROME WINTER, Respondent (Public School Teachers’ Pension and
                           Retirement Fund of Chicago, Intervenor-Appellee).


District & No.             First District, Sixth Division
                           Docket No. 1-11-2836


Rule 23 Order filed        June 14, 2013
Rule 23 Order
withdrawn                  July 12, 2013
Opinion filed              July 12, 2013


Held                       In proceedings dissolving the parties’ marriage, the trial court properly
(Note: This syllabus       found that the “surviving spouse benefit” under respondent’s disability
constitutes no part of     pension plan was not marital property subject to distribution to petitioner
the opinion of the court   upon his death, since the benefit did not belong to either spouse during
but has been prepared      the marriage, it was not marital property and the Pension Code excluded
by the Reporter of         a “former spouse” from the definition of a “surviving spouse,” and,
Decisions for the          furthermore, the trial court did not abuse its discretion in refusing to grant
convenience of the         petitioner’s request for a mandatory injunction distributing the benefit to
reader.)
                           her, and she forfeited the argument that the Pension Code exclusion
                           violated her equal protection rights.


Decision Under             Appeal from the Circuit Court of Cook County, No. 98-D-11073; the
Review                     Hon. Mark Joseph Lopez, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  James K. Leven, of Law Office of James K. Leven, of Chicago, for
Appeal                      appellant.

                            Anita Tanay and Tiffany R. Reeves, both of Jacobs, Burns, Orlove &
                            Hernandez, of Chicago, for appellee.


Panel                       JUSTICE REYES delivered the judgment of the court, with opinion.
                            Presiding Justice Lampkin and Justice Gordon concurred in the judgment
                            and opinion.


                                              OPINION

¶1          Following the entry of an order finding the “surviving spouse benefit” of respondent
        Jerome Winter’s (Jerome) disability pension plan is not marital property subject to
        distribution, petitioner Ana Winter (Ana) now appeals. Ana argues upon the passing of
        Jerome she is entitled to the surviving spouse benefit despite not meeting the statutory
        definition of a surviving spouse under the Illinois Pension Code (Pension Code) (40 ILCS
        5/17-121(a) (West 2006)). For the foregoing reasons, we affirm the decision of the trial court.

¶2                                        BACKGROUND
¶3          Ana and Jerome Winter married in 1980. The couple then separated in 1998 before
        ultimately divorcing in 2005. Prior to the divorce, Jerome moved to the United Kingdom,
        taking their child and, according to the trial court, “virtually all the marital assets.” Due to
        Jerome’s continued residence abroad, the trial court encountered significant difficulty
        identifying, valuing, and distributing most of the marital assets. Jerome’s pension payments,
        however, remained available for distribution by the court. Jerome, a retired teacher for
        Chicago Public Schools, began receiving pension payments from the Public School
        Teachers’ Pension and Retirement Fund (Pension Fund) in 1985. The 2005 judgment of
        dissolution awarded the entire marital portion of this pension to Ana via a “Qualified Illinois
        Domestic Relations Order” (QILDRO) (40 ILCS 5/1-119 (West 2004)).
¶4          Initially, Jerome blocked Ana’s receipt of any pension payments by refusing to sign a
        consent to the QILDRO, as required by section 1-119(m) of the QILDRO law.1 Ana,

               1
                  Jerome began participating in the pension plan prior to the 1999 effective date of the
        QILDRO law. Pub. Act 90-731 (eff. July 1, 1999) (adding 40 ILCS 5/1-119). Accordingly, Jerome’s
        consent was required before the pension plan could pay Ana her marital portion of the payments
        directly. See 40 ILCS 5/1-119(m) (West 2004) (“a QILDRO issued against a member of a retirement
        system established under an Article of this Code that exempts the payment of benefits or refunds
        from attachment, garnishment, judgment or other legal process shall not be effective without the
        written consent of the member if the member began participating in the retirement system on or

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       therefore, petitioned the trial court to freeze Jerome’s pension benefits. The trial court
       granted Ana’s petition and issued a preliminary injunction requiring the entire portion of all
       future pension payments be placed in an IOLTA (“Interest on Lawyers Trust Account”)
       pending further order of court. Jerome appealed the decision of the trial court to enter a
       preliminary injunction, which was affirmed and remanded by this court. In re Marriage of
       Winter, 387 Ill. App. 3d 21, 23-24 (2008).
¶5         Upon remand, Ana filed an “Amended Petition for Turnover Order and Other Relief.”
       In her petition, Ana argued the survivor benefits were marital property and requested, inter
       alia, the trial court to use its equitable power to order “the Pension Fund *** to distribute
       Jerome’s survivor benefits to Ana Winter upon Jerome Winter’s death.” The Pension Fund,
       having previously intervened in the lawsuit, filed a response to the petition arguing Ana was
       not entitled to the survivor benefits. On March 22, 2011, in a written order, the trial court
       denied Ana’s request for survivor benefits. The trial court found Ana “fails to meet the
       definition of a ‘surviving spouse’ ” under the plain language of the Pension Code and
       concluded the surviving spouse benefit is “not subject to division as marital property.” Ana
       now appeals the decision of the trial court denying her petition.

¶6                                          ANALYSIS
¶7         Ana sets forth three arguments on appeal: (1) the court should award her the survivor
       benefit of the pension plan as marital property; (2) the court should grant her the survivor
       benefit pursuant to its equitable powers to enforce the judgment for the dissolution of
       marriage; and (3) the Illinois Pension Code’s surviving spouse definition as applied violates
       her equal protection rights under the Illinois and United States Constitutions.

¶8                                       I. Marital Property
¶9         Ana primarily argues the pension plan’s survivor benefits should be subject to
       distribution as marital property at the time of Jerome’s demise. Addressing this argument
       involves the interpretation and application of the Illinois Marriage and Dissolution of
       Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2004)) and the Pension Code
       (40 ILCS 5/1-101 et seq. (West 2004)). Thus, as a question of law, we review this issue de
       novo. In re Marriage of Rogers, 213 Ill. 2d 129, 135-36 (2004). Under de novo review, we
       perform the same analysis a trial judge would perform and give no deference to the judge’s
       conclusions or specific rationale. In re Marriage of Kehoe, 2012 IL App (1st) 110644, ¶ 18.
¶ 10       The Marriage Act generally defines “marital property” as “all property acquired by either
       spouse subsequent to the marriage.” 750 ILCS 5/503(a) (West 2004). Thus, “all property
       acquired by either spouse after the marriage and before a judgment of dissolution of marriage
       *** is presumed to be marital property.” 750 ILCS 5/503(b)(1) (West 2004). Moreover, “all
       pension benefits (including pension benefits under the Illinois Pension Code) acquired by



       before the effective date of this Section”); see also In re Marriage of Menken, 334 Ill. App. 3d 531,
       534 (2002).

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       either spouse after the marriage and before a judgment of dissolution of marriage *** are
       presumed to be marital property.” 750 ILCS 5/503(b)(2) (West 2004).
¶ 11        Section 17-121(a) of the Pension Code provides, “[a] surviving spouse of a teacher shall
       be entitled to a survivor’s pension only if the surviving spouse was married to the teacher for
       at least one year immediately prior to the teacher’s death.” 40 ILCS 5/17-121(a) (West 2004).
       Ana is no longer married to Jerome and thus the plain language of the Pension Code clearly
       excludes Ana as a “surviving spouse.” Nevertheless, according to Ana, section 17-121(a) of
       the Pension Code should not dictate the outcome here. Instead, Ana argues the Marriage Act
       and the Pension Code should be read “harmoniously” such that the survivor benefit of
       Jerome’s pension may be designated as marital property and then distributed to Ana despite
       section 17-121(a). In making this argument, Ana suggests we reject precedent set by this
       court in In re Marriage of Hannon, 207 Ill. App. 3d 329 (1991).
¶ 12        The firefighter’s pension at issue in Hannon similarly restricted a “surviving spouse” to
       “only a person who is married to a pensioner and alive at the time of the pensioner’s death.”
       Hannon, 207 Ill. App. 3d at 333. The court in Hannon reasoned survivor benefits are
       “generally defined under the Code as the property of the survivors of a deceased former
       employee.” Id. at 334-35 (citing lll. Rev. Stat. 1989, ch. 108½, ¶ 4-114). “[U]nlike other
       pension rights, survivor benefits have no possibility of becoming available for the
       employee’s direct enjoyment” as the legislature statutorily designated these rights solely “for
       survivors and not for the control of the employee.” Id. at 335-36. Accordingly, while there
       is “a benefit from the anticipation of pension payments to [a pensioner’s] survivors,” the
       survivor benefits still “arise only upon the death of a pensioner” and can only “accrue to the
       spouse at the time of the employee’s death.” (Emphasis added.) Id. at 335. Thus, the court
       determined that survivor benefits are “not subject to division as marital property.” Id. at 336.
¶ 13        According to Ana, however, the subsequent Illinois Supreme Court decision of Smithberg
       v. Illinois Municipal Retirement Fund, 192 Ill. 2d 291 (2000), effectively overrules Hannon.
       In Smithberg, the husband agreed to designate his former wife as the sole beneficiary of the
       death benefit from his retirement fund and agreed he would “ ‘not designate any other
       survivors, or allocate any survivorship benefits, to anyone other than’ ” his former wife.
       Smithberg, 192 Ill. 2d at 293. After the husband remarried, “contrary to the express terms of
       the judgment and marital settlement agreement,” he designated his second wife as the
       recipient of the death benefit. Id. The husband died without ever changing the designation
       to his former wife per the settlement agreement. Id. On cross-motions for summary
       judgment, the trial court ruled the second wife as the proper beneficiary. Id. at 292. On
       appeal, this court reversed, finding summary judgment should have been granted for the
       former wife. Id. The supreme court then affirmed the judgment of the appellate court. Id. at
       306. In affirming the appellate court, the supreme court found the death benefits at issue were
       marital property subject to distribution upon dissolution, noting “retirement benefits have
       long been presumed to be marital property to the extent that the beneficial interest was
       acquired during the marriage.” Id. at 303.
¶ 14        The facts of Smithberg noticeably differ from those of the instant case. Smithberg
       concerned a death benefit that could be designated to any person the retiree desired. Id. at
       293. Conversely, this case involves a surviving spouse benefit that accrues to an individual

                                                 -4-
       defined not by the pensioner, but by the Pension Code. Nonetheless, Ana asserts language
       from Smithberg necessarily renders the survivor benefit at issue in this case to also be marital
       property. In particular, Ana relies on language which states, “[t]he death benefit is similar
       to a survivor benefit, which has been held to be a ‘distinct property interest’ and, though
       contingent in nature [citation], it, like any other property right created by a judgment of
       dissolution, becomes a vested right when the judgment is final [citation].” Id. at 302.
       Smithberg does compare death benefits to survivor benefits and correctly notes courts have
       previously held certain types of survivor benefits to be marital property. Regardless, we are
       not persuaded that the survivor benefit in this case should likewise be designated as marital
       property.
¶ 15        The Smithberg court cited In re Marriage of Moore for the proposition that “a survivor
       benefit *** has been held to be a ‘distinct property interest.’ ” Id. (quoting In re Marriage
       of Moore, 251 Ill. App. 3d 41, 44 (1993)). Ana focuses on the use of the label “survivor
       benefit” in arguing the benefit in this case should be treated similarly to those in Smithberg
       and Moore. This argument, however, ignores the substantive distinction between the benefits
       at issue in those cases and the benefit at issue here. In Moore, the pension plan offered the
       pensioner the option to elect a “survivor annuity,” but the so-called “survivor annuity”
       allowed him to designate his former wife as the sole beneficiary. Moore, 251 Ill. App. 3d at
       45. Thus, in both Smithberg and Moore, the statute granted the pensioner the ability to
       choose the recipient of the benefit; this choice represented a present property interest
       belonging to the pensioner. This shared substantive property–and not any respective
       designation as a “death” or “survivor” benefit–was critical to the Smithberg and Moore
       courts’ ability to distribute the benefits as marital property.
¶ 16        The benefit in this case differs from those at issue in Smithberg and Moore. The statute
       awarding the pension here restricts receipt of the benefit only to a “surviving spouse.”
       Accordingly, the survivor benefits belonged to neither Ana nor Jerome, but to a hypothetical
       and undetermined “surviving spouse” defined by the Pension Code. Therefore, as the
       contingent benefits belonged to neither spouse, they could not be considered marital property
       under the Marriage Act, which requires the property to be “acquired by either spouse
       subsequent to the marriage.” 750 ILCS 5/503(a) (West 2004).
¶ 17        The legislature established the pension benefit at issue. See 40 ILCS 5/17-121, 17-122
       (West 2004). The legislature may therefore define to whom the pension intends to benefit.
       See Hannon, 207 Ill. App. 3d at 336 (“The pension code *** may exclude, as it has
       excluded, a ‘former spouse’ from its definition of ‘surviving spouse.’ ”). While it is true
       pension benefits are generally “presumed to be marital property” under the Marriage Act, the
       presumption is overcome in this case where the pension benefits at issue did not belong to
       either spouse during the marriage. Accordingly, the trial court properly denied Ana’s petition
       to distribute the survivor benefit as marital property.

¶ 18                                   II. Equitable Relief
¶ 19      Ana additionally argues the court should still exercise its equitable power by ordering the
       Pension Fund to provide her the survivor’s benefit regardless of any mandate to the contrary


                                                 -5-
       by the legislature in the Marriage Act and Pension Code. According to Ana, the court’s
       equitable powers are not “diluted” by conflicting statutory provisions. She further argues that
       because the legislature has “no authority to take away or abridge the court’s historic equitable
       powers,” this court should distribute the survivor benefit to petitioner.
¶ 20        Although Ana did not label it as such, her argument for equitable relief amounts to a
       request for a positive or mandatory injunction. See People v. Van Tran Electric Corp., 152
       Ill. App. 3d 175, 183 (1987) (“A mandatory injunction *** commands the performance of
       some positive act.”). Generally “not favored by the courts,” a mandatory injunction is an
       “extraordinary remedy” and granted only in the rare instance the petitioner “has established
       a clear right to relief and the court determines that the urgency of the situation necessitates
       such action.” Lewis E. v. Spagnolo, 186 Ill. 2d 198, 234 (1999). The decision to grant or deny
       an injunction rests within the sound discretion of the trial court and on review the decision
       will not be disturbed absent an abuse of discretion. People ex rel. Klaeren v. Village of Lisle,
       202 Ill. 2d 164, 177 (2002). A trial court abuses its discretion only where no reasonable
       person would take the view adopted by the trial court. In re Marriage of Schneider, 214 Ill.
       2d 152, 173 (2005).
¶ 21        To argue she is entitled to a mandatory injunction, Ana again relies on Smithberg. In
       particular, Ana argues the court in Smithberg “directed the [Illinois Municipal Retirement
       Fund] to pay the death benefit to [the former wife],” despite the Pension Code stating the
       death benefit should be distributed to the person designated by the retiree, which in
       Smithberg was the retiree’s second wife. In making this argument, Ana mischaracterizes the
       court’s actions in Smithberg.
¶ 22        In Smithberg, the retiree agreed in a marital settlement agreement to designate his former
       wife as the recipient of the death benefit. Smithberg, 192 Ill. 2d at 293. When the retiree
       changed the designation to his second wife prior to his death, he violated the terms of the
       agreement. Id. The court could have held the retiree in contempt of court and ordered him
       to revert the designation to his former wife. Id. at 296. After the retiree’s death, however, this
       became impossible. Id. at 298. Thus, the supreme court noted an equitable remedy was
       necessary to achieve the proper result. Id. at 299.
¶ 23        The court in Smithberg did not, as Ana suggests, order the retirement fund to pay the
       former wife directly in contravention to the Pension Code. See id. Instead, the court used its
       equitable powers to “deem[ ] the designation of beneficiary form [designating the former
       wife as the sole beneficiary] filed with the [retirement fund] when it should have been filed,
       prior to [the retiree’s] death.” Id. In addition, the supreme court noted another proper remedy
       would have been to establish a constructive trust under which the second wife would still
       have initially received the death benefit. Id. The constructive trust then would have required
       the second wife “to transfer title and possession of the wrongfully acquired property to the
       [former wife].” Id. Neither equitable remedy would “trump” the statutory designation of the
       Pension Code. Rather, both remedies are designed to achieve the result demanded by the
       marital settlement agreement in a manner consistent with the provisions of the Pension Code.
¶ 24        Ana does not request either remedy described in Smithberg. Indeed, both remedies would
       be impossible to administer in this case. No beneficiary form exists for the court to deem


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       filed. Likewise, a constructive trust would not be appropriate here because no one is eligible
       to receive the survivor’s benefit at this time.2 Consequently, Ana must ask for the
       “extraordinary” remedy of a mandatory injunction and Smithberg does not support the
       assertion that a mandatory injunction would have been proper in this case.
¶ 25       In addition to relying on Smithberg, Ana also argues the previous preliminary injunction
       entered in this case demonstrates why she is entitled to a mandatory injunction here. The
       previous injunction sought to enforce the terms of the existing judgment by setting up a
       constructive trust. Winter, 387 Ill. App. 3d at 27. The purpose of the constructive trust was
       to assure Ana received the marital property the trial court found she was entitled to receive.
       Id. at 28. Ana now requests we use a permanent mandatory injunction to distribute survivor
       benefits that the law prohibits. Given this distinction, we cannot state that “no reasonable
       person would take the view adopted by the trial court.” Accordingly, the trial court did not
       abuse its discretion by denying Ana’s request for a mandatory injunction.

¶ 26                                    III. Equal Protection
¶ 27       Ana lastly argues the definition of a surviving spouse under section 17-121(a) as applied
       to her violates her equal protection rights under the Illinois and United States Constitutions.
       According to Ana, section 17-121(a) irrationally discriminates against her–a former spouse
       who had been married to the pensioner for 25 years–in favor of a hypothetical current spouse
       who may have only been married to the pensioner for one year by the time of his death. We
       need not address this argument because Ana has forfeited this assertion by not challenging
       the statute in the trial court. While Ana did raise a constitutional challenge to a different
       statute below,3 she never raised the as-applied challenge to section 17-121(a) she now asserts
       on appeal. “A party’s failure to challenge the constitutionality of a statute in the circuit court
       normally forfeits that challenge on appeal in a civil case.” Forest Preserve District v. First
       National Bank of Franklin Park, 2011 IL 110759, ¶ 27 (citing In re Liquidations of Reserve
       Insurance Co., 122 Ill. 2d 555, 567-68 (1988)). Moreover, “it is well established that a court
       is not capable of making an ‘as applied’ determination of a statute’s constitutionality where
       there has been neither an evidentiary hearing nor any findings of fact in the lower court.”
       People v. Brisco, 2012 IL App (1st) 101612, ¶ 57.
¶ 28       In addition, Ana failed to provide timely notice to the Illinois Attorney General of the


               2
                 To create a constructive trust, “a court declares the party in possession of wrongfully
       acquired property the constructive trustee of that property because it would be inequitable for that
       party to retain possession of it.” Smithberg, 192 Ill. 2d at 299. “The sole duty of the constructive
       trustee is to transfer title and possession of the wrongfully acquired property to the beneficiary.” Id.
       As no party has wrongfully acquired the property at issue here, the court cannot declare a
       constructive trust.
               3
                At trial, Ana argued the antialienation provisions of the Pension Code were unconstitutional
       as applied to her. While Ana did not cite which antialienation provisions she was specifically
       challenging, the cases Ana cited in the trial court discussed sections 1-119(m) and 17-151 of the
       Pension Code. Neither of these sections relates to the argument she now makes on appeal.

                                                     -7-
       constitutional argument she raised on appeal. Under Illinois Supreme Court Rule 19, a party
       challenging the constitutionality of a statute in a case where the State is not a party must
       serve notice on the Attorney General or proper state agency. See Ill. S. Ct. R. 19(b) (eff. Sept.
       1, 2006). Rule 19 requires notice “be served at the time of suit, answer or counterclaim, if
       the challenge is raised [in the trial court].” Ill. S. Ct. R. 19(b) (eff. Sept. 1, 2006). Otherwise,
       the party must serve notice “promptly after the constitutional or preemption question arises
       as a result of a circuit or reviewing court ruling or judgment.” (Emphasis added.) Ill. S. Ct.
       R. 19(b) (eff. Sept. 1, 2006). Ana did not serve notice on the Attorney General shortly after
       she realized the “alleged unconstitutional statute would be used against [her].” Villareal v.
       Peebles, 299 Ill. App. 3d 556, 560-61 (1998). At the latest, Ana became aware the alleged
       unconstitutional statute would be used against her on March 22, 2011, when the trial court
       issued an order finding section 17-121(a) barred her from receiving the survivor benefit. Ana,
       however, served the Attorney General on September 18, 2012, 18 months after the entry of
       the trial court’s order and one week after the filing of her initial brief in this matter.
       Consequently, Ana’s notice was not timely filed and her constitutional argument is deemed
       forfeited on these grounds, as well as on the grounds that she failed to raise the argument at
       trial. See Downtown Disposal Services, Inc. v. City of Chicago, 407 Ill. App. 3d 822, 830
       (2011) (failure to strictly comply with supreme court rule requiring a party challenging the
       constitutionality of a statute to serve notice of the challenge on the Attorney General may
       result in forfeiture).
¶ 29        For the first time in her reply brief, however, Ana asserts the Pension Fund did not
       address the timeliness of her notice in its response and, therefore, the Pension Fund has
       forfeited any forfeiture argument. First, we note this argument was improperly raised in the
       reply brief and we need not address it; an appellant’s arguments must be made in the
       appellant’s opening brief and cannot be raised for the first time in the appellate court by a
       reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (“Points not argued are waived and
       shall not be raised in the reply brief, in oral argument, or on petition for rehearing.”); see also
       In re Marriage of Petrik, 2012 IL App (2d) 110495, ¶ 40. Second, “forfeiture rules serve as
       an admonition to the litigants rather than a limitation upon the jurisdiction of the reviewing
       court.” Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 33. Therefore, the
       Pension Fund’s failure to address forfeiture in its brief does not divest this court of the power
       to deem Ana’s constitutional argument forfeited. Finally, the Illinois Supreme Court has
       admonished this court to consider constitutional questions only where the case cannot be
       determined on other grounds. People v. White, 2011 IL 109689, ¶ 148. As Ana has twice
       forfeited her constitutional argument, we find no reason to otherwise relax the forfeiture rules
       and address the merits of her constitutional claim.

¶ 30                                    CONCLUSION
¶ 31       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 32       Affirmed.



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