In re Marriage of DeRossett

NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.

Docket No. 80168--Agenda 13--May 1996.
In re MARRIAGE OF JOHN G. DeROSSETT, Appellant, and CYNTHIA L.
DeROSSETT, Appellee.
Opinion filed September 19, 1996.

JUSTICE HARRISON delivered the opinion of the court:
Petitioner, John G. DeRossett, appealed from the judgment of
the circuit court of Rock Island County entered upon dissolution of
his marriage to respondent, Cynthia L. DeRossett. The appellate
court affirmed (No. 3--95--0019 (unpublished order under Supreme
Court Rule 23)), and we allowed petitioner's petition for leave to
appeal (155 Ill. 2d R. 315). We granted leave to Tom Balanoff,
president of General Service Employees Union, Local 73, AFL-CIO, to
file an amicus curiae brief in support of petitioner. 155 Ill. 2d
R. 345. The issue presented for our review is whether a workers'
compensation award, arising out of a claim accrued during the
marriage, is to be classified as marital property under section 503
of the Illinois Marriage and Dissolution of Marriage Act (the Act)
(750 ILCS 5/503 (West 1994)).
Petitioner and respondent were married on April 15, 1987. On
February 2, 1994, petitioner filed a petition for dissolution of
marriage. At that time, petitioner had been working at Case IH
Corporation for approximately 30 years. As a result of his
employment, petitioner had developed bilateral carpal tunnel
syndrome that affected both his arms and elbows. He had filed a
workers' compensation claim in which he alleged that the date of
injury was January 18, 1990. On July 21, 1994, the dissolution
matter proceeded to a hearing on contested issues, including
whether respondent was entitled to an interest in petitioner's
pending workers' compensation claim. On September 7, 1994, the
trial court entered an order determining, inter alia, that
respondent was entitled to a portion of the claim, and reserving
the amount of the award until the claim was settled. Later that
same month, petitioner accepted a lump-sum settlement offer of his
claim in the amount of $140,000, which, after deducting attorney
fees and costs, yielded a net sum of $111,905.
The trial court entered a judgment of dissolution of marriage
on October 19, 1994. On November 1, 1994, petitioner filed a
"Motion to Determine Respondent's Interest in Petitioner's
Workman's Compensation Claim" and a motion to reconsider,
requesting, inter alia, that the trial court reverse that portion
of its judgment awarding respondent an interest in the claim. After
a motion hearing on December 7, the trial court issued its opinion
and order on December 13, 1994, denying petitioner's motion to
reconsider and awarding respondent 30% of the $111,905 workers'
compensation settlement.
The appellate court affirmed, finding that under section 503
of the Act and the reasons set forth in In re Marriage of Dettore,
86 Ill. App. 3d 540 (1980), and In re Marriage of Thomas, 89 Ill.
App. 3d 81 (1980), the trial court had properly determined that the
workers' compensation claim was marital property because it accrued
during the marriage. No. 3--95--0019 (unpublished order under
Supreme Court Rule 23). In this appeal, petitioner argues that
because the settlement is compensation for his diminished earning
capacity, which, due to his retirement, will continue far beyond
the date of dissolution, the settlement should be considered
nonmarital property. Petitioner urges this court to adopt the so-
called "analytical" approach employed by the Fifth District in In
re Marriage of Waggoner, 261 Ill. App. 3d 787 (1994). For the
following reasons, we decline to do so.
In Waggoner, 261 Ill. App. 3d at 793-94, the appellate court
held that the portions of a workers' compensation award which
represent wage loss and medical payments incurred during the
marriage should be classified as marital property, while the
portion which replaces wages lost after dissolution should be
classified as nonmarital. However, the problem with this approach
is that it completely ignores section 503 of the Act, which
mandates what constitutes marital and nonmarital property for
purposes of disposition on dissolution of marriage.
Section 503(a) states:
"For purposes of this Act, `marital property' means
all property acquired by either spouse subsequent to the
marriage, except the following, which is known as `non-
marital property':
(1) property acquired by gift, legacy or
descent;
(2) property acquired in exchange for property
acquired before the marriage or in exchange for
property acquired by gift, legacy or descent;
(3) property acquired by a spouse after a
judgment of legal separation;
(4) property excluded by valid agreement of
the parties;
(5) any judgment or property obtained by
judgment awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired
by a method listed in paragraphs (1) through (6) of
this subsection, irrespective of whether the
increase results from a contribution of marital
property, non-marital property, the personal effort
of a spouse, or otherwise, subject to the right of
reimbursement provided in subsection (c) of this
Section; and
(8) income from property acquired by a method
listed in paragraphs (1) through (7) of this
subsection if the income is not attributable to the
personal effort of a spouse." 750 ILCS 5/503(a)
(West 1994).
Additionally, section 503(b) creates a rebuttable presumption
that all property acquired after marriage is marital property. 750
ILCS 5/503(b) (West 1994); Hofmann v. Hofmann, 94 Ill. 2d 205, 216
(1983). In order to overcome this presumption, one must prove that
"the property was acquired by a method listed in subsection (a)."
750 ILCS 5/503(b) (West 1994); In re Marriage of Smith, 86 Ill. 2d 518, 530 (1981). Section 503(a) contains an "exclusive" and
"specific" list of nonmarital property (Smith, 86 Ill. 2d at 528,
530), and workers' compensation awards do not fall under any of the
methods listed. See 750 ILCS 5/503(a) (West 1994); see also
Dettore, 86 Ill. App. 3d at 541; In re Marriage of Lukas, 83 Ill.
App. 3d 606, 613 (1980).
Petitioner and amicus curiae attempt, through creative
argument, to shoehorn workers' compensation awards into various
nonmarital exemptions listed in section 503(a). However, we agree
with Lukas that:
" `Where the language of an act is certain and
unambiguous the only legitimate function of the courts is
to enforce the law as enacted by the legislature.
[Citations.] It is never proper for a court to depart
from plain language by reading into a statute exceptions,
limitations or conditions which conflict with the clearly
expressed legislative intent. [Citation.]' " Lukas, 83
Ill. App. 3d at 613, quoting Beckmire v. Ristokrat Clay
Products Co., 36 Ill. App. 3d 411, 415 (1976).
Therefore, we agree with the appellate court herein that, under the
Act, petitioner's workers' compensation award constitutes marital
property because the claim accrued during the marriage of the
parties.
This result should not surprise petitioner. With the exception
of Waggoner, Illinois courts have consistently held that workers'
compensation awards are marital property. See In re Marriage of
Hall, 278 Ill. App. 3d 782 (1996); Thomas, 89 Ill. App. 3d 81;
Dettore, 86 Ill. App. 3d 540; Lukas, 83 Ill. App. 3d 606. Moreover,
personal injury awards have been found to be marital property,
including claims for future pain, suffering, and loss of income
(see In re Marriage of Burt, 144 Ill. App. 3d 177 (1986); In re
Marriage of Gan, 83 Ill. App. 3d 265 (1980)), and a disability
pension was held to constitute marital property even though it
included elements of compensation for loss of income and physical
impairment. See In re Marriage of Smith, 84 Ill. App. 3d 446
(1980).
Petitioner argues that he has a "personal right to his
financial security which is owned by him individually and was
brought into the marriage as his separate property." However, it is
unnecessary to adopt the "analytical" approach in order to address
petitioner's concerns, because the statute already in place
mandates that the trial court consider petitioner's financial
security in dividing the marital estate. See 750 ILCS 5/503(d)
(West 1994). As the appellate court stated in Burt:
"By the terms of section 503(d), in dividing marital
property, the court is expressly directed to consider
`the age, health, *** employability, *** and needs of
each of the parties' (Ill. Rev. Stat. 1983, ch. 40, par.
503(d)(7)) together with the opportunity of a spouse to
secure future income (Ill. Rev. Stat. 1983, ch. 40, par.
503(d)(10)). This, of itself, authorizes the court to
consider the disability of an injured spouse and award a
larger portion of marital property, including proceeds of
a cause of action to that spouse. Moreover, the factors
expressed in section 503(d) are not the only factors that
can be considered. Other factors may be considered if
relevant. [Citations.] The pain and suffering and
disability of an injured spouse would be relevant
considerations." Burt, 144 Ill. App. 3d at 182.
See also Dettore, 86 Ill. App. 3d at 542 (trial court's
consideration of section 503(d) factors "may well sustain a
decision to apportion all of a workman's compensation award to the
injured party"). Therefore, where section 503 of the Act adequately
protects workers' compensation recipients from losing their fair
share of such awards in dissolution cases, there is no reason to
abandon its dictates in favor of another mechanism.
In the instant case, the trial court awarded respondent 30% of
the workers' compensation settlement. A trial court's distribution
of marital assets will not be disturbed unless the court clearly
abused its discretion. See In re Marriage of Aschwanden, 82 Ill. 2d 31, 36-38 (1980); see also Hall, 278 Ill. App. 3d at 785. Further,
the question is not whether a reviewing court agrees with the trial
court; rather, an abuse of discretion occurs only where no
reasonable person would take the view adopted by the court. See
Hall, 278 Ill. App. 3d at 785. Here, the trial court specifically
stated that the settlement was awarded in this manner "in an
attempt to apportion the assets of the parties equally," taking
into consideration, inter alia, the fact that petitioner was
ordered to pay the outstanding marital debts and to pay respondent
maintenance. The record shows that the trial court considered the
relevant factors and divided the marital property in what it
believed to be "just proportions." 750 ILCS 5/503(d) (West 1994);
Aschwanden, 82 Ill. 2d at 37. Because we cannot say that no
reasonable person would take the view adopted by the trial court,
we find no abuse of discretion.
For the reasons stated above, the judgment of the appellate
court is affirmed.

Affirmed.