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

Case Date: 11/09/2000
Court: 1st District Appellate
Docket No: 1-99-4128 Rel

FIFTH DIVISION

FILED: 11/09/00


No. 1-99-4128


LEROY WALICZEK and DOLORES WALICZEK,

                              Plaintiffs-Appellants,

v.

THE RETIREMENT BOARD OF THE
FIREMEN'S ANNUITY AND BENEFIT FUND
OF CHICAGO,
                              Defendant-Appellee.

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)		 Appeal from the
Circuit Court of
Cook County.


No. 98 CH 17472

Honorable
Lester D. Foreman,
Judge Presiding.

MODIFIED

JUSTICE ZWICK delivered the opinion of the court:

Plaintiffs Leroy and Dolores Waliczek appeal from an order of the circuit court on administrative review, whichupheld 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 ILCS5-6-141.1(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 in1981 he went on medical leave following lung surgery. In 1982 the Board awarded Leroy an occupationaldisease disability benefit. While Leroy was receiving disability benefits, he married Dolores. In 1988, Leroyresigned from the CFD and, as a result, he became eligible for and received a monthly age and service retirementannuity, which replaced his disability benefits. At the same time, the Board also refunded several thousanddollars that Leroy had contributed in spousal contributions "on account of no spouse," despite Leroy's contentionthat 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 awidow'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 1