Umshler v. Umshler

Decision Date19 November 1947
Docket NumberGen. No. 43929.
Citation332 Ill.App. 494,76 N.E.2d 231
PartiesUMSHLER v. UMSHLER et al.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Appeal from Superior Court, Cook County; Frank M. Padden, Judge.

Action by Nora Umshler against her husband, Arthur M. Umshler, the Illinois Central Railroad Company, and others for separate maintenance and sequestration of pension funds alleged to be due defendant husband from defendant railroad company. From a decree denying sequestration, plaintiff appeals.

Affirmed.Nelson, Boodell & Grant, of Chicago (Thomas P. Grant, of Chicago, of counsel), for appellant.

John W. Freels, of Chicago (Herbert J. Deany, Vernon W. Foster and Chas. A. Helsell, and of Chicago, of counsel), for appellees.

LEWE, Presiding Justice.

Plaintiff filed a complaint for separate maintenance against her husband Arthur M. Umshler which prayed, among other things, that certain pension funds alleged to be due him from defendant Illinois Central Railroad Company, a corporation, his former employer, and members of its board of pensions be sequestered for the benefit of plaintiff. Defendant Arthur Umshler was served by publication; he filed no appearance or answer. Issue was joined by defendant railroad company and individual members of its board of pensions, evidence was heard and a decree was entered by the chancellor denying the relief prayed for as to defendant railroad company and the members of its board of pensions. Plaintiff appeals.

The amended complaint alleges in substance that plaintiff and defendant Arthur M. Umshler were married on February 12, 1895 and lived together as husband and wife until June 30, 1941 when defendant willfully deserted her without reasonable cause and without making suitable provision for her separate maintenance and support; that on June 30, 1941 defendant Umshler retired on a pension paid by the railroad company and its board of pensions, and that defendant Umshler has refused to return to plaintiff and that she is now without funds or property.

The amended complaint further sets forth verbatim the rules and regulations of the pension plan of the defendant railroad company the pertinent provisions of which are as follows: That the pension department shall be administered by a board of officers to be known as the board of pensions whose members shall hold office subject to the will of the president; that subject to the approval of the president the board shall have power to determine the eligibility of employees to receive pension allowances, to fix the amount of such allowances, and prescribe the conditions under which such allowances may enure; that the actions of the board when approved by the president shall be final and conclusive; that pension allowances authorized pursuant to these regulations shall be paid monthly during the life of the pensioner, provided, however, that the board at its election and in its sole discretion and with or without cause may withhold, suspend, terminate, or permanently discontinue all or any part of any pension allowance; that no assignment of pensions will be permitted or recognized; that neither the action of the directors in establishing a system of pensions nor any other action heretofore, now or hereafter taken by them or by the board in the inauguration, continuation and operation of a pension department or the allowance of any pension shall be construed except as a gratuity from the company subject at its election and in its sole discretion, with or without cause, to be withheld, suspended, terminated or permanently discontinued, or as giving to any officer, agent or employee of the company a right to be retained in its service, or any right of claim to any pension allowance, and the company expressly reserves its right and privilege to discharge at any time any officer, agent or employee without liability for any claim for pension or other allowance than salary or remuneration due and unpaid.

Defendant railroad company and individual members constituting its board of pensions filed an answer averring that the defendant Umshler ceased to be an employee of the defendant railroad on June 30, 1941; that on or about July 9, 1941 he filed his application in writing for a pension allowance, which was authorized at a meeting of the board of pensions held on July 21, 1941; that on January 31, 1942 defendant Umshler received an initial payment of $59.12; and that he has received no other allowance by way of pension or gratuity from defendants or any one of them.

The answer further avers that the railroad company and members of its board of pensions do not have or maintain a pension fund, and deny that defendant Umshler has any vested right, title or interest in and to any monthly pension in any amount whatsoever from either the defendant railroad company or from the defendants constituting the...

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11 cases
  • Marriage of Hunt, In re
    • United States
    • United States Appellate Court of Illinois
    • November 5, 1979
    ...pension and profit sharing interests are bargained-for contractual rights to deferred compensation (see Umshler v. Umshler (1948), 332 Ill.App. 494, 76 N.E.2d 231) and, whether vested or nonvested, should have been included among the marital property divided between petitioner and responden......
  • Craig v. Bemis Co., Inc., 74-2241
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 13, 1975
    ...pension plans were once viewed as mere gratuities, see, e. g., Menke v. Thompson, 8 Cir. 1944, 140 F.2d 786; Umshler v. Umshler, 1947, 332 Ill.App. 494, 76 N.E.2d 231; Magnolia Petroleum Co. v. Butler, Tex.Civ.App.1935, 86 S.W.2d 258, writ dism'd, it is now generally true that both employer......
  • Hurd v. Illinois Bell Telephone Company
    • United States
    • U.S. District Court — Northern District of Illinois
    • September 27, 1955
    ...Britannica, Inc., 1954, 1 Ill.App.2d 514, 117 N.E.2d 880, 881, 42 A.L.R.2d 456. A similar holding is found in Umshler v. Umshler, 1947, 332 Ill.App. 494, 76 N.E. 2d 231; Dolan v. Heller Bros. Co., 1954, 30 N.J.Super. 440, 104 A.2d 860; Menke v. Thompson, 8 Cir., 1944, 140 F.2d 786; McCabe v......
  • Siegel v. First Pennsylvania Banking and Trust Co.
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • December 21, 1961
    ...allowance to any employee, and to suspend, terminate, or permanently discontinue any allowance already made": Umshler v. Umshler, 1947, 332 Ill.App. 494, 76 N.E.2d 231, where the employe acknowledged in his pension application that any allowance granted "is a gratuity which may be discontin......
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