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

                                              IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF                      ) Appeal from the Circuit Court
DEBORAH L. HALL,                       ) of Lake County.
                                       )
      Petitioner-Appellant,            )
                                       )
and                                    ) No. 02--D--2321
                                       )
PAUL HALL,                             ) Honorable
                                       ) Jane D. Waller,
      Respondent-Appellee.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE HUTCHINSON delivered the opinion of the court:

       Petitioner, Deborah L. Hall, appeals an order from the Lake County circuit court denying her

petition to modify or reform judgment pursuant to sections 2--1401 and 13--206 of 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 court erred by requiring her to show grounds for vacating the trial

court's judgment of dissolution of marriage as a prerequisite to allowing reformation of the marital

settlement agreement incorporated into the judgment; (2) whether a 10-year limitations period

applies, pursuant to section 13--206 of the Code, to allow petitioner to reform the parties' marital

settlement agreement, based on a mutual mistake of fact; and alternatively (3) whether the language

of the parties' marital settlement agreement can be construed to require all of the retirement assets

of respondent, Paul Hall, including his pension funds, to be divided equally between the parties. For

the reasons set forth below, we reverse and remand.
No. 2--08--1210


       The record reflects that petitioner and respondent were married on May 31, 1975. Two

children were born of the marriage, both of whom have now reached majority. On August 31, 2004,

the trial court entered a judgment of dissolution of marriage. The judgment incorporated a marital

settlement agreement, which was entered into by the parties on the same day.

       At the time of the dissolution, respondent was employed by Kraft Foods as chief global food

safety officer, and he had worked there for more than 15 years. While employed at Kraft Foods,

respondent had acquired a vested interest in two retirement plans, a thrift plan and a pension plan.

Prior to his employment at Kraft Foods, respondent was employed for approximately seven years

at Anheuser-Busch, where he acquired a vested interest in two retirement plans, a deferred income

stock purchase and savings plan and a pension plan. On the date of the judgment of dissolution of

marriage, all of respondent's employment at both Kraft Foods and Anheuser-Busch was during his

marriage 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 marriage and were marital assets.

Petitioner was not employed outside the home for approximately 20 years and did not have a college

education or any formal training in any trade or profession. Petitioner also had no retirement assets

of her own.

       The parties appeared in court on August 31, 2004, for trial. The trial court conducted a

pretrial conference with both parties' attorneys and a child representative. Following the conference,

the parties entered into a marital settlement agreement for the division of nonretirement marital

assets, which totaled $890,825.44. Petitioner was awarded $455,421.44, which amounted to

approximately one-half of the marital assets, plus $10,000 as a result of a charge of dissipation

against respondent. Respondent was awarded the remaining $423,404.

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       Article XVIII of the marital settlement agreement addressed the division of respondent's

retirement plans. The article provided, in relevant part:

               "18.1 [Respondent] is a plan participant in the Anheuser-Busch Deferred Income

       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 respect to the Anheuser-Busch Deferred

       Income Stock Purchase and Savings Plan, the parties agree to enter into a Qualified Domestic

       Relations Order [(QDRO)] providing for the distribution of fifty percent (50%) of the

       account balance to [petitioner], as alternate payee, as of the date of entry of this [judgment

       of dissolution of marriage]. With respect to the Kraft Foods Thrift Plan, the parties agree to

       enter into a [QDRO] providing for the distribution of fifty percent (50%) of the account

       balance to [petitioner], as alternate payee, as of the date of entry of this [judgment of

       dissolution of marriage].

                                                 ***

               18.4    It is the intention of this [article] that [petitioner] is to receive fifty percent

       (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 subsequently noticed that she had not received benefits from either of respondent's

pension plans, and her attorney advised respondent's attorney that petitioner had not received

distribution of the pension benefits. Petitioner then filed her petition to modify or reform the

dissolution judgment, alleging that respondent's two pension plans had been omitted from the marital

settlement agreement due to a mutual mistake of fact and requesting that the marital settlement

agreement be reformed to allow for an equal division of the pension plans as of the date of the entry

of the judgment.

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        After the trial court denied respondent's motion to dismiss 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 agreed to include the pension plans

in their settlement, and he never would have agreed to a settlement that included the pension plans

as part of the division of assets. Petitioner testified that she never would have agreed to a settlement

that did not include the pension plans as part of the division. On October 3, 2008, the trial court

denied petitioner's petition. In reaching its determination, the trial court concluded that, before it

could reach the issue of whether the pension plans were omitted from the marital settlement

agreement as a result of a mutual mistake, the petition to modify or reform the judgment must first

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 established that the defect in the judgment

was a result of duress, disability, or fraudulent concealment. The trial court concluded that, because

petitioner failed to establish that the defect was a result of duress, disability, or fraud, it was unable

to vacate the judgment pursuant to section 2--1401. The trial court further found that, even though

it was not required to reach the issue of mutual mistake, the evidence was insufficient to 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 erred in requiring petitioner to

establish that the judgment of dissolution of marriage must be vacated pursuant to section 2--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 result of disability, duress, or fraudulent concealment, because

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her petition sought to reform the marital settlement agreement to reflect the parties' true intent, not

to modify or revoke the dissolution judgment. Therefore, according to petitioner, the court may

reform a written marital settlement agreement 10 years from the date the judgment was entered.

Respondent counters that the trial court must vacate or reopen the judgment of dissolution pursuant

to section 2--1401 before it can modify the marital settlement agreement, because that agreement was

incorporated into the judgment. According to respondent, because the judgment of dissolution was

entered into more than two years ago, section 2--1401 required petitioner to establish that any

mistake in the marital settlement agreement resulted from disability, duress, or fraudulent

concealment.

       Section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) provides

that "[t]he provisions as to property disposition may not be revoked or modified, unless the court

finds the existence of conditions that justify the reopening of a judgment under the laws of this

State." 750 ILCS 5/510(b) (West 2008). In other words, after 30 days, provisions in a marital

settlement agreement that constitute property distribution are generally not modifiable or revocable,

and, therefore, a trial court has jurisdiction to modify property distribution only if circumstances

exist to reopen a judgment as in other civil cases. In re Marriage of Hubbard, 215 Ill. App. 3d 113,

116 (1991). Accordingly, whether a trial court has 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 Marriage 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).



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       In Allen, the reviewing court addressed whether, more than 30 days after entry of a

dissolution judgment, the trial court had jurisdiction to amend a QDRO entered pursuant to the

judgment. Allen, 343 Ill. App. 3d at 412. The parties in Allen divorced after 18 years of marriage,

and the judgment of dissolution provided that the respondent's pension benefits be divided pursuant

to a formula provided in the judgment. Allen, 343 Ill. App. 3d at 411. Shortly after the judgment,

the trial court entered a QDRO enforcing the terms of the judgment, but it used a formula for the

pension calculation that differed from the one provided in the judgment. After the respondent's

retirement, the petitioner applied for benefits under the pension plan, and the pension administrator

calculated the respondent's share pursuant to the formula contained in the QDRO rather than the one

contained in the judgment. Allen, 343 Ill. App. 3d at 412. When the petitioner discovered the

difference between the formulae, she filed a petition to amend the QDRO to reflect the formula

contained in the judgment, which the trial court granted. Allen, 343 Ill. App. 3d at 412. On appeal,

the respondent argued that the trial court did not have jurisdiction to enter the amended QDRO

because modifying the QDRO was the equivalent of modifying the judgment. The reviewing court

disagreed and affirmed the trial court's order amending the QDRO. Allen, 343 Ill. App. 3d at 412.

The reviewing court held that the trial court had indefinite jurisdiction to enforce the judgment.

Allen, 343 Ill. App. 3d at 412. The reviewing court further stated:

       "The amendment to the QDRO changed the formula to conform to the judgment. This

       change did not impose new or different obligations on the parties. *** The amendment to

       the QDRO was necessary to enforce the petitioner's rights and obligations with respect to the

       pension. Since the amended order only enforced the provisions of the judgment, the court

       had jurisdiction to make the modifications." Allen, 343 Ill. App. 3d at 413.



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       The court's rationale in Allen is helpful to the current matter, and we conclude that the trial

court had jurisdiction to enforce the marital settlement agreement without first establishing a basis

to vacate the dissolution judgment pursuant to section 2--1401 of the Code. Here, petitioner is not

seeking to impose new or different obligations on the parties. Rather, she is attempting to enforce

the parties' rights and obligations with respect to respondent's retirement plans, which were clearly

laid out in the marital settlement agreement and judgment of dissolution. See Allen, 343 Ill. App.

3d at 413. Further, we recognize that petitioner labeled her filing a "petition to modify or reform

judgment" and cited section 2--1401 of the Code. However, a filing's substance, not its title,

determines its character, and in this case, the substance of the petition was to enforce the judgment

in accordance with the parties' intent and not to impose new or different obligations on the parties.

See Miller, 363 Ill. App. 3d at 911, citing Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,

102 (2002) ("[i]t is a motion's substance, not its title, that determines the motion's character").

Accordingly, because petitioner is seeking to enforce the judgment, the trial court had jurisdiction

to enter an order enforcing the terms of the marital settlement agreement 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 agreement, the true

intent of the parties was to equally divide each of respondent's retirement accounts or whether the

parties intended to include only the Anheuser-Busch deferred income stock purchase and savings

plan and the Kraft Foods thrift plan while omitting the respective pension plans. Petitioner argues

that the language of the marital settlement agreement clearly reflects the parties' intent to equally

divide all of respondent's retirement plans that accrued during the marriage. We agree.

       Illinois law is clear that rules of contract construction are applicable to the interpretation of

provisions in a marital settlement agreement, and the primary objective is to effectuate the intent of

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the parties. In re Marriage 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

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

reflected the actual intent of the parties is a question of law we review de novo. Allen, 343 Ill. App.

3d at 413, citing Gray v. Mundelein College, 296 Ill. App. 3d 795, 803 (1998).

        Here, article 18.4 of the marital settlement agreement clearly provides that the parties

intended for petitioner to receive "fifty percent (50%) of the account balance of each of

[respondent's] retirement plans" valued at the date the judgment was entered. This language is

unambiguous, and we can ascertain the parties' intent solely from that language. 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 retirement plans, including his Anheuser-Busch and

Kraft pension funds.

        Moreover, and despite respondent's argument to the contrary, the language contained in

article 18.4 does not conflict with article 18.1. As outlined above, article 18.1 provided that

respondent would enter into a QDRO giving petitioner 50% of his Anheuser-Busch deferred income

stock purchase and savings plan and Kraft Foods thrift plan. This provision outlined the rights and

obligations of the parties with respect to those retirement plans and specifically required the parties

to enter into a QDRO. However, this provision did not address--much less limit--the rights and

obligations of the parties with respect to any other retirement plan, including the pension plans. If

the parties intended article 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 the parties could have added specific language to article 18.1 to reflect that intention. See

Wassom, 352 Ill. App. 3d at 331 (holding that, if the parties intended a provision to limit the

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husband's health-care-expense obligations to apply only to a child and not to the wife, the marital

settlement agreement could have used specific language to express that intent). The parties could

have also added language to article 18.4 to provide that it was the parties' intent that petitioner

receive 50% of each of respondent's retirement plans "referenced" or "listed" in article 18.1, had they

so desired. Accordingly, we conclude that, pursuant to the unambiguous language contained in

article 18.4 of the marital settlement agreement, the parties intended for petitioner to receive 50%

of "each of [respondent's] retirement plans," including his Anheuser-Busch and Kraft Foods pension

plans.

         For the foregoing reasons, we reverse the judgment of the Lake County circuit court and

remand this matter for further proceedings consistent with this opinion.

         Reversed and remanded.

         McLAREN, J., concurring.

         JUSTICE BOWMAN, specially concurs:

         I concur with the majority that petitioner was seeking to enforce the marital settlement

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

concur with the majority in its ultimate decision to reverse the judgment of the trial court and to

remand the cause. However, I disagree with the majority that article 18.4 of the marital settlement

agreement is unambiguous.

         When interpreting a marital settlement agreement, a court seeks to give effect to the parties'

intent. Allton v. Hintzsche, 373 Ill. App. 3d 708, 711 (2007). The language used in the agreement

is usually the best indication of the parties' intent. Allton, 373 Ill. App. 3d at 711. When the terms

of the agreement are unambiguous, we determine the parties' intent solely from the language of the

agreement. Allton, 373 Ill. App. 3d at 711. "An ambiguity exists when an agreement contains

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language that is susceptible to more than one reasonable interpretation." Allton, 373 Ill. App. 3d at

711. " 'Where the language is ambiguous, parol evidence may be used to decide what the parties

intended.' " Allton, 373 Ill. App. 3d at 711, quoting In re Marriage of Michaelson, 359 Ill. App. 3d

706, 714 (2005). All the provisions of the agreement should be read as a whole to interpret it and

to determine whether an ambiguity exists. Rich v. Principal Life Insurance Co., 226 Ill. 2d 359, 371

(2007). An ambiguity is not created simply because the parties disagree on the meaning of any

provision. Rich, 226 Ill. 2d at 371-72.

       In this case, I find that article 18.4 of the marital settlement agreement is susceptible to more

than one reasonable interpretation and therefore is ambiguous. In determining that an ambiguity

exists, I read the marital settlement agreement and article XVIII as a whole. Article XVIII is entitled

"Retirement Plans," and begins in article 18.1 to name two specific plans: the Anheuser-Busch

deferred income stock purchase and savings plan and the Kraft Foods thrift plan. The parties agreed

to enter into a QDRO to distribute the plans equally. Article 18.2 then states that respondent was

to obtain current account statements for "each of these retirement plans." Article 18.3 then states that

respondent was responsible for preparing the QDRO for "each of these retirement plans." Article

18.4 then provides that it was the parties' intention to divide the "balance of each of [respondent's]

retirement plans" equally. Because the agreement already stated in section 18.1 that the two

identified plans would be divided equally and the subject of a QDRO, I believe that one could

reasonably interpret that articles 18.2, 18.3, and 18.4 referred to other retirement plans. However,

because none of the provisions of article XVIII makes clear that additional retirement plans exist,

I believe that one also could reasonably interpret article 18.4 as referring solely to the two plans

named in article 18.1. Accordingly, I believe that 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 whether

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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 equally and that the pensions in question

were marital property, I would predict that respondent would have a difficult time prevailing, but I

do believe that the question is proper for the fact finder.




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