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Waliczek v. Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago

September 29, 2000

LEROY WALICZEK AND DOLORES WALICZEK, PLAINTIFFS-APPELLANTS,
v.
THE RETIREMENT BOARD OF THE FIREMEN'S ANNUITY AND BENEFIT FUND OF CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 98 CH 17472 Honorable Lester D. Foreman, Judge Presiding.

The opinion of the court was delivered by: Justice Zwick.

Not released for publication.

Modified November 9, 2000

 Plaintiffs Leroy and Dolores Waliczek appeal from an order of the circuit court on administrative review, which upheld the determination of the Retirement Board of the Firemen's Annuity and Benefit Fund of Chicago (Board) that section 6-142(f) of the Illinois Pension Code (Code)(40 ILCS 5-6-142(f)(West 1998)) will prevent Dolores, as Leroy's current spouse, from receiving a widow's annuity pursuant to section 6-141.1(c) of the Code (40 ILCS 5-6-141.1(c)(West 1998)) if Leroy should predecease her. On appeal, plaintiffs contend that section 6-141.1(c), enacted subsequent to section 6-142(f), is controlling, and in the event that Leroy should predecease Dolores, Dolores would be entitled to receive a widow's annuity pursuant to section 6-141.1(c).

Leroy Waliczek was employed as a fireman by the Chicago Fire Department (CFD) for almost 30 years, when in 1981 he went on medical leave following lung surgery. In 1982 the Board awarded Leroy an occupational disease disability benefit. While Leroy was receiving disability benefits, he married Dolores. In 1988, Leroy resigned from the CFD and, as a result, he became eligible for and received a monthly age and service retirement annuity, which replaced his disability benefits. At the same time, the Board also refunded several thousand dollars that Leroy had contributed in spousal contributions "on account of no spouse," despite Leroy's contention that he notified the Board of his marriage to Dolores.

In 1998, Leroy asked the Board for a determination regarding whether Dolores would be eligible to receive a widow's annuity pursuant to section 6-141.1(c) of the Code. Section 6-141.1 in pertinent part provides:

"Notwithstanding the other provisions of this Article, the widow of a fireman who dies on or after June 30, 1984, while receiving a retirement annuity or while an active fireman with at least 1½ years of creditable service, may elect to have the amount of widow's annuity calculated in accordance with this Section.

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(c) If the deceased fireman was receiving a retirement annuity at the time of his death, the widow's annuity shall be equal to 50% of the amount of such retirement annuity at the time of the fireman's death." 40 ILCS 5/6-141.1 (West 1998).

The Board informed plaintiffs that Dolores would not be entitled to receive any benefits if Leroy should predecease her based on section 6-142(f) of the Code. Section 6-142 in pertinent part provides:

"The following wives or widows have no right to annuity from the fund:

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(f) A wife or widow who married the fireman while he was in receipt of disability benefit or disability pension from this fund, unless he returned to the service subsequent to the marriage and remained therein for a period or periods aggregating ...


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