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In re Marriage of Nielsen

Case Date: 07/11/2003
Court: 2nd District Appellate
Docket No: 2-02-0442 Rel

No. 2--02--0442

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

In re MARRIAGE OF ) Appeal from the Circuit Court
SUSAN NIELSEN, ) of Du Page County.
f/k/a Susan Moller-Nielsen, )
f/k/a Susan Magrini, )
)
              Petitioner-Appellee, )
) No. 86--MR--238
and  )
) Honorable
MARK LOUIS MAGRINI, ) Brian R. McKillip and
) Hollis L. Webster,
             Respondent-Appellant. ) Judges, Presiding.

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The respondent, Mark Magrini, appeals from the November 3,2000, and April 30, 2002, orders of the circuit court of Du Page County, awarding the petitioner, Susan Nielsen, a portion of hismilitary disability benefits. We affirm in part and reverse inpart and remand the cause for additional proceedings. The facts relevant to the disposition of this case are asfollows. The parties' judgment for dissolution of marriage wasentered on April 1, 1985, in Clarion County, Pennsylvania. On May8, 1986, the judgment for dissolution of marriage was enrolled inthe circuit court of Du Page County. The judgment for dissolutionof marriage incorporated a marital settlement agreement datedAugust 6, 1984. The parties could not reach an agreementconcerning Mark's military pension at that time, however, andexpressly reserved that issue for a future determination by thetrial court.

On November 25, 1987, the parties subsequently entered into anagreed order concerning Mark's military pension. The November 25,1987, agreement provided as follows:

"The military pension of Mark Louis Magrini shall bedistributed 25% to Susan Moller-Nielsen, 75% to Mark LouisMagrini to be paid if and when said pension is received. Said25% shall be paid directly to Susan Moller-Nielsen pursuant tothe provisions of 71 U.S.C. 10, Section 1408 and shall be 25%of the gross retired or retainer pay due Mark Louis Magrini***, Susan Moller-Nielsen to include in her income and pay alltaxes on any sums received."

Section 1408 of chapter 71 of Title 10 of the United StatesCode, otherwise known as the Uniformed Services Former Spouses'Protection Act (USFSPA) (10 U.S.C.