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court affirmed (No. 3--95--0019 (unpublished order under Supreme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.