author: JUSTICE HOWERTON

text:
      In re ESTATE OF EVA MAY SMITH, Deceased (Darl Bollman, Ex’r of the Will of Eva May Smith, Petitioner-Appellee, v. Perry Manor, Inc., et al., Respondents-Appellees (Lifecare Center of Pinckneyville, Inc., Respondent-Appellant)).
    Fifth District
    No. 5—88—0092
    Opinion filed May 16, 1990.

      Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield (T. Kent Cochran and Michael C. Connelly, of counsel), for appellant.
    Lackey & Warner, P.C., of Centralia (George C. Lackey, of counsel), for appellee Perry Manor, Inc.
   JUSTICE HOWERTON

delivered the opinion of the court:

Eva May Smith died. Her will provided for a legacy to “PERRY MANOR, INC., Pinckneyville, Illinois.”

Perry Manor, Inc., a Nevada corporation, operated a nursing home called Perry Manor in Pinckneyville. Before Eva May Smith died, Perry Manor, Inc., sold the nursing home in Pinckneyville to Lifecare Center of Pinckneyville, Inc. Lifecare continued to operate the nursing home in Pinckneyville and continued to call it Perry Manor.

Smith’s executor filed a petition to construe the will, claiming that there was a latent ambiguity, saying that the apparent intention of Eva May Smith was to make a charitable bequest in support of the operation of the nursing home in Pinckneyville, not for the general purpose of the corporation Perry Manor, Inc.

The circuit court dismissed the petition. Lifecare appeals. We affirm.

We ignore the portions of the executor’s petition that purport to know the intention of Eva May Smith. Those statements are speculative. To consider them as creating a latent ambiguity would have the same effect as rewriting the will.

In determining the propriety of the circuit court’s dismissal of the executor’s petition, our sole task is to determine whether the factual allegations of the petition to construe the will set forth facts which, if proved, would create a latent ambiguity in the will. (Wooded Shores Property Owners Association, Inc. v. Matthews (1976), 37 Ill. App. 3d 334, 345 N.E.2d 186; Goldberg v. Ruskin (1984), 128 Ill. App. 3d 1029, 471 N.E.2d 530.) We, therefore, are to compare the allegations of the petition to the provisions of the will.

If the petition to construe the will states facts which, if proved, show a latent ambiguity, then a hearing must be held in which evidence extrinsic to the will is taken to determine if there is a latent ambiguity. If it is determined that no latent ambiguity exists, then the petition is dismissed. If it is determined that a latent ambiguity does exist, then a full hearing is held in which evidence extrinsic to the will is admitted to determine the intent of the testator. Weir v. Leafgreen (1962), 26 Ill. 2d 406, 186 N.E.2d 293; Hays v. Illinois Industrial Home for the Blind (1958), 12 Ill. 2d 625, 147 N.E.2d 287.

If, on the other hand, the petition does not state facts which, if true, warrant relief, then a hearing is unnecessary.

There is no latent ambiguity in the will, because the petition does not allege that there is more than one Perry Manor, Inc., or that the Perry Manor, Inc., referred to in the will is not the appellee.

Lifecare relies on First National Bank v. Home of the Good Shepherd (1963), 40 Ill. App. 2d 31, 189 N.E.2d 361, and Hays v. Illinois Industrial Home for the Blind (1958), 12 Ill. 2d 625, 147 N.E.2d 287. These cases, however, show why the petition did not state facts that would raise a latent ambiguity.

Good Shepherd involved a legacy to the “Home of the Good Shepherd, of the City of Peoria, Illinois.” The executor petitioned to construe the will, because he could not find an organization by the name “Home of the Good Shepherd, of the City of Peoria, Illinois.” The petition was answered by “Home of the Good Shepherd, an Illinois not-for-profit corporation,” which claimed to be the legatee. The court held that a hearing had to be held under these circumstances, because the petition stated facts, which if proved, would create a latent ambiguity. Extrinsic evidence should have been allowed to show that “Home of the Good Shepherd, an Illinois not-for-profit corporation,” was one and the same as “Home of the Good Shepherd, of the City of Peoria, Illinois.” First National Bank v. Home of the Good Shepherd (1963), 40 Ill. App. 2d 31, 189 N.E.2d 361.

In the case at bar, there is no claim that Perry Manor, Inc., cannot be found.

In Good Shepherd, the petition to construe alleged that “Home of the Good Shepherd, of the City of Peoria, Illinois,” and “Home of the Good Shepherd, an Illinois not-for-profit corporation,” were not one and the same organization.

In the case at bar, the petition does not allege that Perry Manor, Inc., is not the same organization as “PERRY MANOR, INC., Pinckneyville, Illinois.”

In addition, the words “Pinckneyville, Illinois” in Eva May Smith’s will are descriptive terms and are not part of the proper name. In the will, all proper names are typed in upper case letters, while all descriptions are typed in the lower case. The face of the will shows that the named legatee was “PERRY MANOR, INC.,” while “Pinckneyville, Illinois,” merely described the location of the named legatee at the time of execution. This interpretation is further reinforced by section 4.05 of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1987, ch. 32, par. 4.05), which requires a foreign corporation to end its name with the word corporation, company, incorporated, or limited, or an abbreviation of such words. Both Perry Manor, Inc., and Lifecare Services of Pinckneyville, Inc., end their names with the required statutory abbreviation.

Therefore, Good Shepherd does not control the instant case; the words “Pinckneyville, Illinois” are merely descriptive of location and are not part of the proper name of the legatee.

In the second case Lifecare relies upon, Hays, the petition stated that the purported legatee, “The Illinois Industrial Home for the Blind (commonly called Lighthouse for the Blind), 1900 Marshall Boulevard, Chicago, Illinois,” in reality was two separate entities. This statement caused the petition to state facts that, if proved, would establish a latent ambiguity, therefore making necessary a hearing in which evidence extrinsic to the will would be admitted.

In the case at bar, there is no such allegation.

The executor’s petition says that it is believed that if the testator had known that the nursing home in Pinckneyville would have been operated by Lifecare instead of Perry Manor, Inc., then she would have changed her will. Illinois is a fact-pleading State. (Ill. Rev. Stat. 1987, ch. 110, par. 2—601.) This allegation clearly is not one of fact.

A court cannot surmise what provision testator would have put in the will had a change in the circumstances surrounding the creation of the will been anticipated. McFarland v. McFarland (1898), 177 Ill. 208, 218; Vollmer v. McGowan (1951), 409 Ill. 306, 99 N.E.2d 337.

After the circuit court had dismissed the original petition, the executor asked leave to file an amended petition. The circuit court denied that motion. Lifecare appeals the denial of the executor’s motion. Lifecare does not have standing to pursue an appeal of this portion of the circuit court’s ruling, because the motion was not Lifecare’s but was the executor’s, and Lifecare did not join in the motion. Wells v. Web Machinery Co. (1974), 20 Ill. App. 3d 545, 315 N.E.2d 301.

Lastly, Lifecare attempted to file its own petition, but failed to get leave of the court. Lifeline’s new petition, therefore, must be disregarded on review. Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co. (1980), 82 Ill. App. 3d 18, 401 N.E.2d 1049.

The order of the circuit court dismissing the executor’s petition is affirmed.

Affirmed.

LEWIS, P.J., and RARICK, J., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
      In re MARRIAGE OF JULIE ROGLIANO, Petitioner-Appellee, and ALBERT ROGLIANO, JR., Respondent-Appellant.
    Fifth District
    No. 5—89—0424
    Opinion filed May 17, 1990.

      John W. Leskera, of Dunham, Roman & Leskera, of East St. Louis, for appellant.
    Grey Chatham, of Chatham & Babka, of Belleville, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Albert Rogliano, Jr. (hereinafter Husband), appeals from the judgment in dissolution of marriage entered May 26, 1989, by the circuit court of St. Clair County, and the subsequent order denying his post-trial motion to reconsider. Husband also appeals from the court’s temporary order of December 2, 1988. Husband’s appeal involves provisions in each order concerning the court’s award of child support to Julie Rogliano (hereinafter Wife).

Husband and Wife were married March 19, 1988, and the minor child was born August 31, 1988. The parties separated prior to the child’s birth, and Wife filed the petition for dissolution of marriage on October 28, 1988. The court ordered temporary child support in the amount of $700 per month beginning December 15, 1988. Hearing on all remaining issues was held May 10, 1989.

Husband is a general and thoracic surgeon who practiced in the Granite City, Illinois, area until December 31, 1987. Husband testified that he voluntarily left his practice because of dissatisfaction with the doctors’ group with which he was associated. He testified that because of a restrictive covenant in his association agreement and an inability to pay start-up malpractice premiums and other costs, he decided not to start a private practice or seek employment in his field at that time. He was unemployed until March 1, 1989, at which time he began working as an emergency room physician at various hospitals on an independent contractor basis. During March and April 1989 Husband had net earnings of $7,200 per month, with the only deduction being for his malpractice insurance. Husband had gross income of $175,000 and after-tax income of $72,000 in 1987. Husband had 1988 income in the amount of $15,000, attributable to his prior practice. Husband owned a $175,000 home with net equity of $31,000, two vehicles and a deposit account in the amount of $2,385 at the time of the final hearing. During Husband’s unemployment he cashed in a money market certificate and individual retirement accounts totalling $41,500 to cover his living expenses, which were $3,500 per month according to Husband. He paid the ordered temporary support out of his savings until he began working in March 1989. Husband testified that he was $15,000 in arrears for payment of 1987 real estate taxes and other obligations as a result of his past unemployment.

Wife was the director of medical records at St. Elizabeth’s Hospital in Granite City, Illinois, at the time of the final hearing, earning $29,000 per year, with net monthly income of $1,500. Wife returned to work full time two months after the birth of the minor child. Wife reported in answers to interrogatories that the necessary expenses of the minor child in March 1989 were $955 per month. The court found at both the temporary support hearing and the final hearing that the child’s expenses were $990 per month. Wife’s monthly expenses as reported in her answers to interrogatories were $650 per month. As Wife moved into her parents’ home when the parties separated, she did not include any amount for housing or household expenses in either her or her child’s expenses. However, wife intended to establish her own household by June 1, 1989, and estimated that her housing expense would be at least $500 per month and utilities would be at least $125 per month.

In the May 26, 1989, order on all remaining issues the court found that Husband was employed, with gross income of $7,100 per month, and would have net income of approximately $5,100 per month. The court set child support at $1,100 per month based on the statutory amount of 20% of Husband’s net income. Wife was awarded the dependency tax exemption and was ordered to continue the coverage of medical and dental insurance she presently had in place for the minor child. The parties were ordered to split the child’s nonreimbursed medical expenses. Husband was ordered to maintain a policy of disability insurance and name the child as the sole beneficiary of a life insurance policy currently in effect. The court reserved ruling on issues regarding the child’s educational expenses. The court ordered Husband to pay Wife $700 for November 1988, which was the month intervening between the filing of the temporary support petition and the month temporary support was ordered to begin.

Husband claims that the court abused its discretion in determining child support in the amount of $1,100 per month by arbitrarily and inappropriately relying on the minimum support percentage in the statutory guidelines because the award exceeded the amount of the child’s necessary expenses, resulting in a “windfall” to the Wife, and because the court failed to take into account the Wife’s income in making the award. Husband further takes issue with the court’s order of temporary support in the amount of $700 per month during a period of time when he was unemployed and with the final order requiring him to pay $700 for support retroactive to the filing of the temporary petition. Husband also claims that the court abused its discretion when it awarded the dependency exemption to the Wife for purposes of Federal and State income tax purposes. Finally, Husband urges that the court erred in ordering him to name the minor child as the full and exclusive beneficiary of Husband’s life insurance policy.

We will first discuss the error alleged in the court’s temporary support order of $700 per month. In proceedings for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.), either party may move for temporary support of a child of the marriage entitled to support. (Ill. Rev. Stat. 1987, ch. 40, par. 501(a)(1).) The standards contained in section 505 of the Dissolution Act regarding child support are applicable to the determination of temporary child support. (Ill. Ann. Stat., ch. 40, par. 501(a)(2), Historical and Practice Notes, at 377 (Smith-Hurd 1980).) The award of temporary alimony and child support is dependent upon the financial ability and current circumstances of the parties, but the trial court has considerable discretion in awarding temporary alimony and support. (In re Marriage of Lang (1979), 73 Ill. App. 3d 427, 429, 392 N.E.2d 585, 586.) A trial court’s decision as to awards of temporary allowances will not be set aside unless it is contrary to the manifest weight of the evidence. Lang, 73 Ill. App. 3d at 429-30, 392 N.E.2d at 586.

The record indicates that Wife filed her petition for temporary child support on November 30, 1988, alleging that the parties had been separated since July 17, 1988, that she had received no child support since their separation and that she lacked sufficient financial resources to support the parties’ minor child. She testified at the hearing that she went back to work in October and that her net monthly income was $1,500. The child’s day care expenses were $600 per month, food for the child was $90 per month, and diapers and clothing were $150 per month. Wife also submitted petitioner’s exhibit 1, an itemization of expenses for her and the child, from which the court determined that the child’s reasonable needs were $990 per month or $1,250 with a reasonable allowance for shelter.

Husband testified that while he had not worked since December 31, 1987, he had liquidated certain investments in order to meet his living expenses of $3,500 per month. Husband had purchased a $175,000 home in November 1987, with $25,000 in equity. He owned a 1987 Blazer and a 1977 Corvette. Husband testified that he had interest income from his Keogh plan and IRA’s, but that he was not receiving it. Husband hoped to be back to work shortly after the first of the year, but would need $50,000 to $60,000 for malpractice insurance and start-up expenses to return to private practice. Wife’s attorney noted that 20% of the $3,500 Husband was able to spend for his own living expenses was $700.

Based on the total reasonable expenses of $1,250, the court assessed $700 as Husband’s temporary child support obligation. As Husband had no net income at the time, the court was bound to order support in an amount considered reasonable in the particular case. (See Ill. Rev. Stat. 1987, ch. 40, par. 505(5).) Based on the insufficiency of Wife’s net income to support both her and the child and the availability of assets which Husband could liquidate to support his own lifestyle comfortably, we find $700 per month to be totally reasonable, consistent with the manifest weight of the evidence and not an abuse of discretion. Moreover, given that Husband had returned to work at the time of the final hearing earning some $7,100 per month, we find no abuse of discretion in the court ordering Husband to pay $700 in child support for the month of November 1988. Retroactive allowance of support in a dissolution proceeding is within the discretionary power of the trial court if such allowance is deemed fit, reasonable and just. Plant v. Plant (1974), 20 Ill. App. 3d 5, 7, 312 N.E.2d 847, 849.

We will next discuss the error alleged in the court’s award of final child support in the amount of $1,100 per month. An award of maintenance and child support is a matter within the sound discretion of the trial court, and the award will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 812, 439 N.E.2d 1005, 1008.) Section 505(a) of the Dissolution Act provides in pertinent part:

“(a) In a proceeding for dissolution of marriage *** the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable and necessary for his support, without regard to marital misconduct.
(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children Percent of Supporting Party’s Net Income
1 20%
* * *
(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include but are not limited to:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.
If the court orders a lower award, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, it shall make express findings as to its reason for doing so. The guidelines may be exceeded by the court without express findings, or by agreement of the parties.” Ill. Rev. Stat. 1987, ch. 40, pars. 505(a)(1), (a)(2).

This court has recently held that the statutory factors enumerated in section 505(a)(2) are not to be considered if the circuit court is following the guidelines for child support as they are delineated in section 505(a)(1), and only if the circuit court were going to impose more or less than the minimum standard required under the statutory guidelines is a circuit court required to consider the relevant factors of section 505(a)(2). (In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093, 527 N.E.2d 1351, 1363.) While the court should not blindly apply the statutory guidelines in every case (Tatham, 173 Ill. App. 3d at 1093, 527 N.E.2d at 1363), the addition of the guidelines to section 505 of the Dissolution Act shifts the burden of presenting evidence in a child support hearing to the parent who wishes to shift the noncustodial parent’s contribution below or above the specified percentages. In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1041, 492 N.E.2d 622, 627.

The respondent in Tatham argued that the court had blindly followed the guidelines in assessing 20% of his net income without considering his obligation of support to the children of his prior marriage and without considering the actual needs of his daughter in determining the amount of support. We found no merit in either argument and agreed "with the determination of the trial court that there was no reason to deviate from the statutory guidelines. Respondent had not proved he was legally obligated to support his emancipated children from the prior marriage. Moreover, we rejected the argument concerning the “actual needs” of the minor child, citing the decision of the supreme court in In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229. In Bussey the supreme court held that to consider “shown needs” of a minor child is in effect eliminating the consideration of the “standard of living the child would have enjoyed had the marriage not been dissolved.” Bussey, 108 Ill. 2d at 297, 483 N.E.2d at 1234.

Husband makes the “actual needs” argument in the instant case in that the court assessed child support of $1,100 per month when the Wife only testified to reasonable expenses in the amount of $990 for the child. We believe that Husband has ignored evidence about the reasonable housing expenses the Wife would incur as soon as she and the minor child moved from her parents’ home. Notwithstanding that omission, we believe the court could properly have assessed $1,100 per month in child support because it was consistent with the standard of living this child would have enjoyed had the marriage not been dissolved, since his parents would have had net monthly income of at least $8,700. Moreover, where a noncustodial parent has the ability to pay support in excess of the stated needs of the child, a court may order child support in excess of the needs to enable the child to enjoy the standard of living he would have had if the marriage had not been dissolved. In re Marriage of Bean (1989), 181 Ill. App. 3d 671, 675, 537 N.E.2d 342, 345.

Husband urges, in any event, that the award was inappropriate in the case of an infant child by calling our attention to the recent case which found an abuse of discretion for awarding support in the amount of 20% of net monthly income where said amount was excessive for the child in question. (See In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 547 N.E.2d 590.) Husband argues that the minor child, who was a nine-month-old infant at the time of the final hearing, could not possibly require $1,100 per month, just as the four-year-old child in Bush was found not to require more than $800 per month. In Bush both the custodial and noncustodial parents were physicians. The custodial parent earned $7,200 per month and the noncustodial parent earned almost $25,000 per month. The noncustodial parent was ordered to pay into an irrevocable trust for the child an amount equal to 20% of his net monthly income less the cost of maintaining a life insurance policy to secure his child support obligation and $800 to be paid directly to the custodial spouse. The reviewing court in Bush held that where the individual incomes of both parents are more than sufficient to provide for the reasonable needs of the parties’ children, taking into account the lifestyle the children would have had absent the dissolution, the trial court is justified in setting a figure below the guideline amount. Bush, 191 Ill. App. 3d at 260, 547 N.E.2d at 596.

We find the circumstances of the instant case distinguishable from Bush and accordingly hold that its reasoning should not control in this case. Whereas in Bush the court found that the child needed only $800 in monthly support, an award of 20% of the noncustodial parent’s income was approximately $30,000 per year. No doubt that is why the trial court devised the award so that the excess monies would be placed in trust. The reviewing court found that use of the trust was improper because it appeared to be an unlawful court-ordered inheritance. In the instant case, however, the 20% award and the amount of reasonable needs found by the trial court are proximate in amount and the Wife had much less disposable income with which to meet the child’s needs than did the custodial parent in Bush. Nor can we can say that the award greatly exceeded or was inappropriate to the needs of an infant or that it resulted in a windfall to Wife given her need to find housing for her and the minor child.

This leads to our consideration of Husband’s second argument supporting an abuse of discretion in following the guidelines: that the court failed to consider the financial circumstances of the Wife thus requiring her to assume no part of the child’s support. We agree that financial responsibility for the support of a child is the joint obligation of the parents. (In re Marriage of Leva (1983), 125 Ill. App. 3d 55, 56, 460 N.E.2d 1179, 1180.) However, while both divorced parents are responsible for the care and well-being of their children, it does not follow that their burden is equal and it is only equitable that the parent with the disproportionately greater income than the other bear a greater share of the costs of support, especially if it is the noncustodial parent who is earning the greater income. Sullivan v. Sullivan (1978), 57 Ill. App. 3d 958, 963-64, 373 N.E.2d 829, 833.

We note that the court ordered the Wife to continue coverage of health insurance for the minor child and to split payment of nonreimbursed medical expenses with Husband. Thus a portion of the child’s support was ordered to be directly paid by the Wife. Moreover, in our review of the record we find that the court did consider the Wife’s income in this award. The Wife had net income at the final hearing of $1,500, her own expenses were $650 and the child’s expenses were $990. She also testified that moving into an apartment would cost at least an additional $625. With child support of $1,100 added to her own income she would have $335 remaining at the end of the month. On the other hand, Husband would have $2,500 remaining after payment of child support and his monthly living expenses of $3,500.

Husband submits that the court failed to adequately consider or take into account the evidence that his income was temporary and uncertain, based on pay from only two months as an emergency room physician and that he had practically exhausted his nonmarital assets for living expenses and support payments prior to the final hearing. Assuming for the sake of argument that the work as an emergency room physician was temporary, the court could still have determined that $1,100 per month was reasonable. If net income cannot be determined because of default or any other reason, the court shall order support in an amount considered reasonable in the particular case. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(5).) We note that Husband left his prior practice as a surgeon and was voluntarily unemployed for a period in excess of one year. While we do not see evidence that Husband left his employment in order to evade responsibility to support his child, we cannot agree that support below the statutory guidelines after he has returned to work is necessary or appropriate merely because Husband was forced to liquidate some of his assets in order to support himself and incidentally pay three months of temporary child support during that period of unemployment. We also note that Husband retained certain assets including the equity in his home, his Keogh plan and vehicles in spite of the year’s layoff. Moreover, Husband expressed an intent to return to private practice as a surgeon, and there is nothing in the record which would convince us that $1,100 monthly child support would prevent Husband from reopening such a practice. Husband would also have the available remedy of filing a petition to modify his support obligation if he were laid off from his present position.

This court has held that in determining whether the trial court abused its discretion, the question is not whether the reviewing court agrees with the trial court, but whether the trial court acted arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.) When the court considered the respective disposable incomes of each party it could reasonably have determined that an award of 20% of the Husband’s net monthly income was fair and equitable. We therefore hold that the court did not abuse its discretion in making this award based on the statutory guidelines.

We do believe under the circumstances, however, that the court below erred in awarding the dependency tax exemption to the Wife. We note that it is within the authority of the trial court to allocate the exemption to the noncustodial spouse and to order the custodial parent to sign a declaration for Internal Revenue Service purposes that he or she will not claim the exemption. (In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, 224-25, 533 N.E.2d 29, 37; In re Marriage of Van Ooteghem (1989), 187 Ill. App. 3d 696, 698-99, 543 N.E.2d 899, 901.) We also note that if the noncustodial parent is awarded the dependency tax exemption, the order must provide that the custodial parent’s obligation to execute and deliver the IRS declaration each year is contingent upon the custodial parent’s receipt of child support payments. Einhorn, 178 Ill. App. 3d at 225, 533 N.E.2d at 37.

Prior to 1985, section 152(e) of the Internal Revenue Code provided that a noncustodial parent could claim his child as a dependent where the noncustodial parent was given the exemption in a decree and he could prove he provided at least $600 in support during the year (I.R.C. § 152(e)(2)(A) (1989)), or if the noncustodial parent provided $1,200 in support during the year and the custodial parent did not provide more than that amount (I.R.C. § 152(e)(2)(B) (1989)). Because of a desire to eliminate the Internal Revenue Service’s role in determining which parent was entitled to the exemption, section 152(e) was amended by the Deficit Reduction Act of 1984 to provide that the custodial parent would receive the exemption except where the custodial parent signed a declaration waiving the right to claim the exemption and the noncustodial parent attached the signed declaration to his return for that taxable year. I.R.C. §§ 152(e)(1), (e)(2) (1989); see also Einhorn, 178 Ill. App. 3d at 224-25, 533 N.E.2d at 36-37.

We agree that the State court and not the Internal Revenue Service is the appropriate forum for allocating the exemption, in conjunction with determining the other issues involved in a dissolution of marriage. However, we believe the State court should make the allocation based on which parent will be contributing the majority of the child’s support, because the exemption has historically been tied to consideration by the Internal Revenue Service of which parent would contribute the majority of the child’s support folio-wing the parents’ divorce. Although it is unclear from the court’s order whether the trial judge allocated the dependency exemption to the Wife because as custodial parent she was entitled to the exemption as the court did in error in Einhorn, we must reverse and modify this part of the judgment because the evidence establishes that Husband will contribute the majority of the support to the minor child and is thus entitled to the exemption. Judgment will be modified such that Husband is awarded the dependency exemption and Wife is ordered to execute and deliver IRS Form 8332, the dependency exemption waiver declaration, to Husband at the end of each tax year, contingent upon Husband’s compliance with the child support payments during that year.

Finally, we believe that the court erred when it ordered Husband to name the minor child as the sole and exclusive beneficiary of his $500,000 life insurance policy. A parent may be required after dissolution of marriage to provide or maintain life insurance with his child as irrevocable beneficiary, under former sections 503(d) (now 503(g)), or 510(c) (now 510(d)), of the Dissolution Act. (Ill. Rev. Stat. 1987, ch. 40, pars. 503(g), 510(d); Ill. Rev. Stat. 1977, ch. 40, pars. 503(d), 510(c); In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 310, 411 N.E.2d 988, 993.) However, as the court noted in Dulyn, under former section 503(d), a fund to secure the support, education, maintenance and general welfare of a party’s child may not be required absent a finding that it is required to protect and promote the best interests of the child. (Dulyn, 89 Ill. App. 3d at 310, 411 N.E.2d at 993.) Moreover, the court found that under former section 510(c) a parent’s estate is liable for the deceased parent’s support obligation to the extent just and appropriate in the circumstances and that the court may determine at the time of dissolution of the marriage the amount of support for which a deceased parent will be held liable. Dulyn, 89 Ill. App. 3d at 311, 411 N.E.2d at 994.

The court’s order in the instant case did not limit the obligation to maintain life insurance to the period in which Husband was obligated to provide child support. We would thus conclude that this provision of the order appears to be an unlawful court-ordered inheritance as the court concluded with respect to the trust payments in the Bush case discussed earlier. We also note that Husband testified that the life insurance proceeds were to be paid to his estate and that the child was to be a one-seventh beneficiary under his will. We therefore find that the life insurance obligation ordered by the court was inappropriate under the circumstances and that the trial court abused its discretion in so ordering, and we will reverse this portion of the order.

Judgment affirmed in part; reversed and modified in part.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES THOMPSON, Defendant-Appellant.
    Fifth District
    No. 5—88—0670
    Opinion filed May 18, 1990.

      Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE RARICK

delivered the opinion of the court:

Defendant, James Thompson, was convicted after a bench trial of aggravated criminal sexual assault and sentenced to eight years’ imprisonment by the circuit court of St. Clair County. Defendant appeals his conviction. We affirm.

Sometime around April 2, 1988, just before Easter, defendant baby-sat the victim, M.L., then six years old, and several other children at M.L.’s home while the children’s parents went out Easter shopping. During the course of the evening, M.L. and another child nicknamed “Little Ape” took a bath. According to M.L., defendant came in while she was undressed and touched her “cootchy-cat” with his “ding-a-ling.” She indicated her “cootchy-cat” was what she used to “go potty” and “ding-a-ling” was what defendant used to “go potty.” M.L. further stated defendant also put his “ding-a-ling” in her mouth. A week or two later, M.L. overheard her parents and grandfather discussing the fact that “Little Ape” had been “raped.” M.L. started screaming and ran to her room. Her grandfather went back to talk to her whereupon M.L. told him defendant had hurt her too and how he had hurt her. Her parents immediately took her to the hospital. The medical exam revealed an extreme amount of redness, irritation and swelling of M.L.’s external genitalia, an enlargement of the entrance to her vagina, and injury to the hymenal ring, all consistent with an injury caused by a rounded object. In the doctor’s opinion, M.L. had been sexually abused. The doctor also noticed a discharge from the vaginal area which he believed to be an indication of gonorrhea. The test results, however, came back negative.

Defendant testified he did baby-sit the children that evening, and the children did take baths during most of this time. While he helped them dry off, he denied that at any time he sexually assaulted M.L. or any of the other children. His test results for gonorrhea also came back negative.

The trial court ruled M.L.’s testimony contained many inconsistencies and therefore was neither clear nor convincing, but gave no indication as to what those inconsistencies were. The court, however, did find the victim’s testimony to be substantially corroborated by her complaints to others, and accordingly adjudged defendant guilty.

Defendant first argues on appeal he was not proven guilty of aggravated criminal sexual assault beyond a reasonable doubt when the victim’s testimony was neither clear and convincing nor substantially corroborated.

Our courts consistently have held that a conviction for aggravated criminal sexual assault or abuse will be upheld when there is either some corroboration of the testimony of the complaining witness or the testimony is otherwise clear and convincing. (See, e.g., People v. Tannahill (1987), 152 Ill. App. 3d 882, 885, 504 N.E.2d 1283, 1285; People v. Server (1986), 148 Ill. App. 3d 888, 894, 499 N.E.2d 1019, 1024; see also People v. Findlay (1988), 177 Ill. App. 3d 903, 910-11, 532 N.E.2d 1035, 1040.) As a result, such a conviction will not be reversed unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the defendant’s guilt remains. (See, e.g., Tannahill, 152 Ill. App. 3d at 885, 504 N.E.2d at 1285; Server, 148 Ill. App. 3d at 895, 499 N.E.2d at 1024.) We note, however, it is not necessary that the testimony of the complaining witness be crystal clear and perfect in order to be deemed clear and convincing. Any inconsistencies in or problems with the testimony in such instances merely presents a question of credibility for the trier of fact. (E.g., People v. Goebel (1987), 161 Ill. App. 3d 113, 124, 514 N.E.2d 60, 66; People v. Powell (1985), 138 Ill. App. 3d 150, 156, 485 N.E.2d 560, 564.) On the other hand, when the complaining witness’ testimony is not clear and convincing, our courts have held that the testimony must be substantially corroborated by some other factual evidence or circumstances such as a confession, an eyewitness account, “prompt” reporting of the incident by the victim or medical testimony supporting allegations of abuse. See, e.g., Server, 148 Ill. App. 3d at 895, 499 N.E.2d at 1024; People v. Leamons (1984), 127 Ill. App. 3d 1056, 1067, 469 N.E.2d 1137, 1145.

Defendant contends the victim’s testimony, being riddled with inconsistencies and improbabilities, was neither clear nor convincing. While the trial court agreed with defendant on this point, it did find sufficient corroboration in the complaints M.L. made to others to convict defendant of aggravated criminal sexual assault. Defendant argues, however, the reliability of the complaints depended upon the credibility of M.L., whose testimony, as noted above, was neither clear nor convincing. Defendant misses the point. The fact that M.L.’s testimony at trial was unclear or unconvincing does not render her complaints to others unclear and unconvincing. (See People v. Lewis (1986), 147 Ill. App. 3d 249, 256-57, 498 N.E.2d 1169, 1175-76; see also People v. Rocha (1989), 191 Ill. App. 3d 529, 539, 547 N.E.2d 1335, 1341.) Before allowing such complaints into evidence, the court had to determine their reliability based on the time, content and circumstances under which made. (See Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(1).) The circumstances were that M.L. implicated defendant on her own. She was not asked any questions about defendant possibly having molested her; no one even suspected she had been molested. Moreover, she had no motive to make any false accusations. M.L.’s initial complaint was tantamount to a spontaneous declaration rendering it inherently reliable. (See Lewis, 147 Ill. App. 3d at 256, 498 N.E.2d at 1175; cf. People v. Jacobs (1977), 51 Ill. App. 3d 455, 458, 366 N.E.2d 1064, 1066.) The trial court therefore properly found her complaints admissible. While M.L.’s testimony at trial contained inconsistencies, namely whether the acts occurred in the bathroom or adjoining bedroom or immediately before, after or during her bath, she consistently testified that on the night in April when defendant baby-sat her and the other children in her home, defendant put his penis in her mouth and vagina at a time when she was undressed for a bath. Defendant himself admitted to many factual consistencies in M.L.’s testimony. He certainly had the opportunity to molest M.L. while she was undressed. And, as the State points out, the assault easily could have occurred in both the bedroom and bathroom thereby explaining some of the confusion as to time and place. Whether or not we agree with the trial court’s determination that M.L.’s testimony was neither clear nor convincing, the complaints made to others were. Having been deemed reliable, such complaints, coupled with medical evidence of abuse, more than corroborated M.L.’s testimony to sustain defendant’s conviction. (See People v. Morton (1989), 188 Ill. App. 3d 95, 99, 543 N.E.2d 1366, 1369; see also People v. Krison (1978), 63 Ill. App. 3d 531, 535, 380 N.E.2d 449, 452.) We see no error requiring reversal in this instance. The evidence was sufficient to prove defendant guilty beyond a reasonable doubt. See Server, 148 Ill. App. 3d at 895, 499 N.E.2d at 1024; cf. Findlay, 177 Ill. App. 3d at 914-15, 532 N.E.2d at 1043.

Defendant also argues on appeal the trial court committed reversible error, however, in considering impermissible details of M.L.’s corroborative complaints, namely the identity of the person who allegedly assaulted her. Defendant believes such error was particularly prejudicial here because M.L.’s testimony was neither clear nor convincing. While defendant’s position may have had some merit under earlier case law (see, e.g., People v. Sexton (1987), 162 Ill. App. 3d 607, 616-17, 515 N.E.2d 1359, 1366-67; People v. Salas (1985), 138 Ill. App. 3d 48, 54-55, 485 N.E.2d 596, 601), a recent amendment to section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—10) all but obviates defendant’s objections. See Rocha, 191 Ill. App. 3d at 535-36, 547 N.E.2d at 1339.

Prior to the passage of section 115—10 of the Code of Criminal Procedure of 1963, Illinois law largely limited testimony concerning corroborative complaints to rape cases and to the fact that a complaint was made. (Leamons, 127 Ill. App. 3d at 1068, 469 N.E.2d at 1146; see also Morton, 188 Ill. App. 3d at 100, 543 N.E.2d at 1369.) Section 115—10 was enacted to extend this common-law corroborative-complaint doctrine to complaints of young victims of sexual offenses other than rape. (See Ill. Rev. Stat. 1983, ch. 38, par. 115—10; see also Morton, 188 Ill. App. 3d at 100-01, 543 N.E.2d at 1370.) Having stemmed from the common-law doctrine, however, our courts initially held that portions of the complaints which gave details of the offense or identified the offender were inadmissible. (Server, 148 Ill. App. 3d at 900, 499 N.E.2d at 1027; Leamons, 127 Ill. App. 3d at 1068, 469 N.E.2d at 1146; see also Morton, 188 Ill. App. 3d at 100-01, 543 N.E.2d at 1370.) Courts soon recognized, in order to effectively corroborate the fact that a complaint was made, the testimony pertaining to the complaint necessarily had to include some detail. (See People v. Deal (1989), 185 Ill. App. 3d 332, 339, 541 N.E.2d 695, 700; People v. Branch (1987), 158 Ill. App. 3d 338, 341, 511 N.E.2d 872, 874; Powell, 138 Ill. App. 3d at 159, 485 N.E.2d at 565-66.) Eventually, any error in the admission of unnecessary or impermissible detail, such as the identification of the accused, was held to be harmless when substantially corroborated by the testimony of the child victim or other pertinent evidence and the defense had the opportunity to cross-examine the victim who made the complaint. (Morton, 188 Ill. App. 3d at 101, 543 N.E.2d at 1370; Server, 148 Ill. App. 3d at 900, 499 N.E.2d at 1027-28; Leamons, 127 Ill. App. 3d at 1068-69, 469 N.E.2d at 1146; see also People v. Laremont (1988), 174 Ill. App. 3d 201, 206, 528 N.E.2d 249, 252-53; Branch, 158 Ill. App. 3d at 341, 511 N.E.2d at 874; Powell, 138 Ill. App. 3d at 159, 485 N.E.2d at 566; cf. People v. Bradley (1988), 172 Ill. App. 3d 545, 549-50, 526 N.E.2d 916, 920.) Effective January 1, 1988, the legislature amended section 115—10 specifically to provide for the admission of testimony about an out-of-court statement describing a complaint of an act of molestation or “detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” (Ill. Rev. Stat. 1987, ch. 38, par. 115—10(a)(2).) This amended version now permits hearsay testimony concerning details of the offense beyond the mere fact that a complaint was made, including the identity of the accused. (Morton, 188 Ill. App. 3d at 102-03, 543 N.E.2d at 1371; People v. Kelly (1989), 185 Ill. App. 3d 43, 49, 540 N.E.2d 1125, 1129; see also People v. Rushing (1989), 192 Ill. App. 3d 444, 450-51, 548 N.E.2d 788, 792.) As the court in Morton stated, “[cjlearly, an identification of the perpetrator of an ‘act’ is a ‘detail pertaining’ to that act.” (Morton, 188 Ill. App. 3d at 103, 543 N.E.2d at 1371.) Because section 115—10 provides for safeguards of reliability prior to the admission of such out-of-court statements (see Ill. Rev. Stat. 1987, ch. 38, par 115—10(b); Rushing, 192 Ill. App. 3d at 451, 548 N.E.2d at 792), we find no error in the trial court’s considering the details of M.L.’s corroborative complaints, including the identity of the accused, as substantive evidence.

For the aforementioned reasons, we affirm the judgment of the circuit court of St. Clair County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


text:
    RICHARDSON BROTHERS, Appellee, v. THE BOARD OF REVIEW OF THE DEPARTMENT OF EMPLOYMENT SECURITY et al., Appellants.
    Fifth District
    No. 5—89—0346
    Opinion filed May 21, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellants.
    McMahon, Berger, Hanna, Linihan, Cody & McCarthy, of St. Louis, Missouri (Thomas 0. McCarthy and Kevin J. Lorenz, of counsel), for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Appellants, Board of Review of the Department of Employment Security, Department of Employment Security, John D. Matheny, Nancy Haslett, Roger N. Hodson, Luella H. Steben and Donald E. Haslett, appeal from a judgment of the circuit court of Fayette County, entered April 26, 1989, which reversed the decision of the Board of Review of the Department of Employment Security affirming the decisions of the Department of Employment Security that the individual appellants were “employees” of appellee, Richardson Brothers, within the meaning of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, par. 300 et seq.). Appellee contends that the individual appellants are “independent contractors” within the meaning of that act and therefore are not eligible to receive unemployment compensation.

The Unemployment Insurance Act (hereinafter Act) was enacted to provide some measure of economic security to those who become involuntarily unemployed. (Ill. Rev. Stat. 1987, ch. 48, par. 300.) Accordingly, it provides weekly monetary benefits to individuals who, through no fault of their own, become involuntarily unemployed. In order to receive these benefits, an individual must be found to be an “employee” within the meaning of the Act, for independent contractors are specifically excluded from coverage under section 212 of the Act. Ill. Rev. Stat. 1987, ch. 48, par. 322.

Services performed by an individual will be deemed to be those of an employee rather than an independent contractor unless all three of the following criteria are met:

“A. Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and
B. Such service is either outside the usual course of the business for which such service is performed or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and
C. Such individual is engaged in an independently established trade, occupation, profession, or business.” (Ill. Rev. Stat. 1987, ch. 48, par. 322.)

It is important to note that these criteria are conjunctive, and an individual will be found to be an employee unless all three of the criteria are met. (Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 87, 518 N.E.2d 768, 770.) The burden of proving the exemption from the Act for independent contractors is on the employer, and it is a strict burden of proof. (Bennett v. Department of Employment Security (1988), 175 Ill. App. 3d 793, 796, 530 N.E.2d 541, 543.) The inquiry should be directed at determining the actual rather than the alleged relationship of the employing unit and the person whose services are in question. In this regard, designations and terminology used by the parties are not controlling. Griffitts Construction Co. v. Department of Labor (1979), 76 Ill. 2d 99, 104, 390 N.E.2d 333, 335.

Appellee, Richardson Brothers, is engaged in the business of growing bedding and garden plants at its facility in St. Elmo, Illinois, and distributing them to retail establishments. The business is seasonal, with the peak period occurring during the months of April, May and June. During those months, appellee hires individuals (appellants) to sell and/or deliver the plants to retail establishments. Appellee and these individuals enter into a written contract entitled “Independent Contractor’s Agreement.” Each of the appellants herein entered into such a contract with appellee.

The contract recites that appellee is engaged in the business of growing and distributing bedding plants and shrubbery, and that appellee and the contractor desire to enter into an arrangement whereby the contractor will deliver these plants and shrubs to purchasers. The contract further provides, in pertinent part, as follows:

“01.02 Contractor shall assume all responsibility for contacting such persons as Employer directs and such other persons as Contractor desires relative to the sale and distribution of Materials supplied by Employer.
02.00 Geographical Area of Service
02.01 Contractor shall limit the scope of activity with respect to the services described herein to such geographical area and/or route as Employer shall direct; provided, however, that Contractor shall service all retail and wholesale outlets within his geographical area or on his assigned route as Employer shall direct.
02.02 Contractor shall have no possessory interest as to the geographical area or route in connection with distribution of Materials suppled by Employer. Employer reserves the right to alter, amend, expend, [sic] reduce or otherwise change the geographical area and/or route assigned to Contractor.
* * *
05.00 Independent Contractor’s Status
The parties to this contract intend that the relation between them created by this contract is that of Employer-Independent Contractor. No agent, employee or servant of Contractor shall be or shall be deemed to be the employee, agent or servant of Employer. ***
06.00 Limitation on Delegation of Personal Services by Contractor
06.01 The work and services provided for herein shall be performed by Contractor, and no persons shall be engaged upon such work or services except upon written approval of Employer. ***
* * *
06.03 In the performance of the work herein contemplated, Contractor is an independent contractor with the authority to control and direct the performance of the details of the work.
* * *
08.00 Books and Records
Contractor shall maintain such books, records and invoices in connection with the performance of his duties as Employer shall direct; and shall provide Employer with such invoices, books and records at such times as Employer directs. Contractor acknowledges that all invoices, books and records used by Contractor in connection with the performance of his duties are and shall remain the exclusive property of the Employer.”

The contract further provides that appellee may terminate the relationship without notice to the contractor if, in his unreviewable discretion, appellee feels that contractor is not adequately fulfilling his duties, or if the contractor’s services are no longer required to distribute the plants.

In addition to the contract, the following evidence was adduced at hearings before referees of the Bureau of Employment Security. Appellee employed 10 full-time employees and 150 part-time, seasonal employees at its facility in St. Elmo. Additionally, appellee employed 14 “contractors,” including appellants, to deliver its product. Appellee owned all but one of the trucks used by these contractors, and maintained, repaired and serviced them. Appellee paid the insurance premiums for the trucks and provided gasoline for the trucks. The trucks were loaded with product by appellee at its St. Elmo facility. Each driver had a designated territory in which to deliver plants. No sales quota was set, but the price for the plants was set by appellee. Appellants could reduce the price by reducing their commission, but could not raise the price. Appellants established their own routes within their designated territory.

Appellants could also determine the days and hours they wished to work. Appellants were free to solicit new customers. There were no required meetings; however, there were voluntary meetings. Appellee provided appellants with forms to complete upon making a delivery. Appellee provided appellants with the identity of prospective purchasers. If it was necessary for a driver to spend the night away from home, appellee would pay for the motel room, but would not pay for meals. Appellee provided appellants with hats with appellee’s name on it. Appellants could give these hats to their customers as a promotion, but had to pay for them out of their commission. Appellee provided no benefits of any kind for appellants, and did not withhold any taxes or social security from their pay. The Internal Revenue Service had determined that appellants were independent contractors rather than employees.

Most of appellee’s customers paid appellee directly rather than appellants, although some deliveries were COD. Many orders were also placed through appellee's office rather than through appellants. Appellants were free to hire their own helpers or employees, and at least one did. Appellants were not paid regularly, but drew against their commissions as they wished.

Appellant Hodson worked as a truck driver out of a teamster’s hall when he was not working for appellee, and also did some construction work. Appellant Matheny also works as a farmer. Appellant Nancy Haslett baby-sits in her home. Appellant Donald Haslett has worked for trucking companies when he was not working for appellee.

The Board of Review of the Department of Employment Security (Board of Review) affirmed the decisions of the referees finding that appellants were employees rather than independent contractors within the meaning of the Unemployment Insurance Act. The circuit court of Fayette County reversed the Board of Review by order entered April 26, 1986, finding that the Board’s decision was against the manifest weight of the evidence and that appellants were clearly independent contractors under the criteria set forth in section 212 of the Act. The Board of Review brings this appeal.

It is the duty of this court to review the decision of the Board of Review rather than the circuit court, and to determine if that decision is against the manifest weight of the evidence. (Loveland Management Corp. v. Board of Review of Department of Employment Security (1988), 166 Ill. App. 3d 698, 701, 520 N.E.2d 1070, 1072.) In doing so, this court’s function is limited to ascertaining whether findings of the Board are supported by the manifest weight of the evidence; this court may neither substitute its own judgment nor overturn the Board’s findings unless they are without substantial support in the record. (Gregory v. Bernardi (1984), 125 Ill. App. 3d 376, 381, 465 N.E.2d 1052, 1057.) A decision is against the manifest weight of the evidence only when an opposite conclusion is clearly apparent. In re Estate of Lukas (1987), 155 Ill. App. 3d 512, 521, 508 N.E.2d 368, 374.

The first criterion which appellee must meet in order to establish that appellants are independent contractors rather than employees is that they have been and will continue to be free from control or direction over the performance of their services, both under the contract of service and in fact. We think that a simple reading of the contract demonstrates that appellee retained a great deal of control and direction over appellants in the performance of their services. The contract provides that appellants shall contact those customers which appellee directs, restricts appellants to a certain territory established by appellee, requires that appellants service those customers as appellee directs, gives appellee the right to change the territory assigned, requires appellee’s written approval of any helpers hired by appellants, and requires that appellants maintain certain books and records and that those books and records remain the property of appellee. Finally, the contract allows appellee to terminate the contract at any time, without notice and for any reason. While the contract gives appellants much discretion as to how and when they perform their services, the existence of general control or of the right to general control is sufficient to negate the exemption even though details are left to an individual’s judgment. (Hart v. Johnson (1979), 68 Ill. App. 3d 968, 975, 386 N.E.2d 623, 628.) Finally, the right to control is sufficient to negate the exemption even if that right is never exercised. (Hart, 68 Ill. App. 3d at 975, 386 N.E.2d at 628.) We think appellee has failed in its burden to prove that it had no right to control or direct appellants in the performance of their services. While this alone is sufficient to require reversal of the circuit court’s judgment, we will discuss the other two criteria as well.

The second criterion which appellee must establish in order for us to find that appellants are independent contractors rather than employees is that the services performed by appellants are either outside the usual course of appellee’s business or that such services are performed outside of all the places of business of appellee. We find that appellee has failed to establish either that appellants’ services are outside its usual course of business or that appellants’ services are performed outside all of its places of business. The contract entered into by appellee and appellants states that appellee is in the business of growing and distributing bedding plants and shrubbery. Appellee argues that it is not in the business of selling those plants. Thus, appellee argues, the selling of the plants by appellants is not within the ordinary course of business of appellee. However, the record shows that orders for plants were taken by appellee at its office in St. Elmo, and that most of those orders were paid for at appellee’s office in St. Elmo. In any event, even if appellee is not in the business of selling plants, we think the services provided by appellants fall within appellee’s usual business of distributing plants. Appellants deliver or distribute the plants to retail outlets. We think these services are within the usual course of business of appellee. Finally, we think that this case is distinguishable from Schatz, Pollack Woolen Co. v. Murphy (1943), 384 Ill. 218, 51 N.E.2d 147, on which appellee relies, where it was held that window washing at a woolen goods sample room was outside the usual course of the woolen company’s business of selling woolen goods to the tailoring trade.

Appellee also argues that all of appellants’ services were performed outside all of appellee’s places of business. Appellee’s representative testified that appellee is in the business of distributing its plants within a 300-mile area from its location in St. Elmo. Each appellant was assigned a specific territory within this 300-mile area. In Eutectic Welding Alloys Corp. v. Rauch (1953), 1 Ill. 2d 328, 115 N.E.2d 898, our supreme court held that where an employing unit assigns a specific area to an individual for the purpose of selling its product or representing its interest, that area is the place of business of the enterprise. Thus, we think that appellants’ services were also performed within the place of business of appellee. Appellee has not satisfied the second criterion to establish an exemption from the Act for the services performed by appellants.

The third and final criterion which appellee must establish is that the appellants are engaged in an independently established trade, occupation, profession or business. In order to satisfy this criterion, the individual performing the service must have a proprietary interest in such business to the extent of being able to operate that business without disturbance from any other person or of being the owner of an enterprise which he could sell or give away. (Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 89, 518 N.E.2d 768, 771.) Appellee has failed to satisfy this criterion. During the time period in which appellants worked for appellee, they had no proprietary interest in any independent trucking business, nor did they perform trucking services for any other businesses. Instead, they were totally dependent upon appellee for any trucking services they performed. (See Legal Process Service, Inc. v. Ward (1988), 165 Ill. App. 3d 83, 89, 518 N.E.2d 768, 771; Spahn v. Department of Labor (1962), 25 Ill. 2d 482, 489, 185 N.E.2d 231, 235.) Indeed, appellants did not even own their own trucks, but used those owned and provided by appellee.

Appellants were not the owners of any independent enterprise which they could sell or give away. The contract entered into between the parties specifically provides that appellants have no possessory interest in their territories or routes and that the contract could not be assigned without the written approval of appellee. It is true that appellants may have worked at other jobs when they were not working for appellee. However, this does not establish them in an independent trade or occupation. It merely indicates that they were employed by different employing units when they were not employed by appellee.

In Schatz, Pollack Woolen Co. v. Murphy, our supreme court stated that if one is engaged in a trade or occupation that is distinctly different from the one in which the employer is engaged, then this third criterion has been met. (384 Ill. at 221, 51 N.E.2d at 149.) In that case, the occupation of a window washer was found to be distinctly different from the business of selling woolen goods to the tailoring trade. In the instant case, appellants were not engaged in a trade or occupation distinctly different from that of appellee. In fact, they were an integral part of appellee’s business in that they sold and delivered the product which appellee produced. Appellants were not engaged in an independent trade, occupation, profession or business.

We find that appellee has failed to carry its burden of proving that appellants were independent contractors rather than employees within the meaning of the Unemployment Insurance Act. The decision of the Board of Review that appellants were not independent contractors is not against the manifest weight of the evidence and the circuit court erred in so holding. Accordingly, we reverse the judgment of the circuit court of Fayette County and affirm the decision of the Board of Review of the Department of Employment Security.

For the foregoing reasons the judgment of the circuit court of Fayette County is reversed.

Reversed.

CHAPMAN and RARICK, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY LEE PARDIECK, SR., Defendant-Appellant.
    Fifth District
    No. 5—87—0718
    Opinion filed May 23, 1990.
    Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori L. Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HOWERTON

delivered the opinion of the court:

The circuit court gave an involuntary manslaughter jury instruction that was tendered by the defendant, who was on trial for the murder of Gary Sloan.

The jury found defendant guilty of murder.

On appeal, defendant makes two claims: (1) that the involuntary manslaughter instructions misstated the burden of proof, relying on People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141; and (2) that when the court instructed the jury that they should consider the involuntary manslaughter instructions only if they found defendant “Not Guilty” of murder, the murder instruction, thereby, was improperly highlighted.

We affirm.

On March 5, 1987, the victim, Gary Sloan, beat defendant’s father, putting him in the hospital. Defendant decided to beat Sloan.

When the two confronted each other, Sloan, according to defendant, pulled a knife. Defendant pulled a gun; it went off. Sloan died, shot five times in the head.

Defendant denied any intent to shoot or kill Sloan.

At the conference on jury instructions, defendant submitted Illinois Pattern Jury Instructions, Criminal, Nos. 7.07, 7.08 (2d ed. 1981), commonly called “Definition of Involuntary Manslaughter” and “Issues in Involuntary Manslaughter” instructions.

Defendant, relying on our supreme court’s opinion in People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141, claims that the involuntary manslaughter instructions misallocated the burden of proof.

The Reddick court held erroneous the murder and manslaughter instructions given there, because

“the voluntary manslaughter instruction in conjunction with the murder instruction fails to inform the jury that the State bears the burden of disproving the mitigating mental states necessary to reduce a murder charge to manslaughter. According to the Reddick court, such a combination of instructions, if followed by a jury, eliminates the possibility of a defendant being convicted of voluntary manslaughter since the only way a mitigating mental state can be proved is by the defendant, rather than by the State.” People v. Fercsi (1989), 182 Ill. App. 3d 13, 15, 537 N.E.2d 912, 913.

We reject defendant’s claim. The holding in Reddick does not apply to involuntary manslaughter instructions. People v. Lucas (1989), 132 Ill. 2d 399, 439-43, 548 N.E.2d 1003, 1020-21.

Defendant lastly contends that the court erred in instructing the jury that they should consider the involuntary manslaughter instruction only if they signed the “Not Guilty” of murder verdict; defendant claims that this improperly highlighted the murder verdict. The defendant asked the circuit court to make this statement to the jury. This court will not let a defendant create a condition and then claim error.

This issue is waived. See People v. Enoch (1988), 122 Ill. 2d 176, 190, 522 N.E.2d 1124, 1131-32.

The judgment of the circuit court is affirmed.

Affirmed.

RARICK and CHAPMAN, JJ., concur.


text:
    BANK OF ILLINOIS IN MT. VERNON, Plaintiff, v. BILL’S KING CITY STATIONERY, INC., a/k/a King City Stationery, Inc., et al., Defendants (Albert E. Weerts et al., Third-Party Plaintiffs-Appellees; Billy A. Petersen et al., Third-Party Defendants-Appellants).
    Fifth District
    No. 5—89—0014
    Opinion filed May 24, 1990.
    Terry H. Gamber, of Mt. Vernon, for appellants.

      Morris Lane Harvey, of Fairfield, for appellee Albert E. Weerts.
   JUSTICE RARICK

delivered the opinion of the court:

On June 26, 1986, plaintiff, Bank of Illinois in Mt. Vernon, brought an action in the circuit court of Jefferson County against Bill’s King City Stationery, Inc., a/k/a King City Stationery, Inc., Bill Petersen, Lana Petersen McKinney, and Albert and Maxine Weerts, seeking damages in the amount of $48,450.86 for default on a promissory note. The Weertses filed an answer containing an affirmative defense, wherein the Weertses alleged that defendants Petersen and McKinney were not stockholders or officers of the corporation, had no authority to enter into the agreement referred to in the plaintiff’s complaint, and that any such obligation was the personal obligation of Petersen and McKinney, not that of King City Stationery. The Weertses subsequently filed a third-party complaint against Petersen and McKinney, alleging breach of a stock-purchase agreement and fraud, seeking $150,000 in compensatory damages and $250,000 in punitive damages.

According to the record, on April 24, 1980, Petersen and the Weertses entered into a stock-purchase agreement whereby Petersen agreed to buy the stock of King City Stationery for $135,000. Petersen was to pay $25,000 down and the balance on a monthly basis, with interest payments beginning on May 1, 1980, and principal payments beginning on May 1, 1982. The agreement provided that Weerts would retain title and possession of the stock until payment was made in full. The agreement also provided that Petersen would operate the business as general manager until that time and would not obligate the corporation for any debts or expenditures other than those incurred in the normal course of operations. The record indicates that Weerts decided to sell his stock to Petersen because of health considerations. He had suffered several heart attacks and his doctor had advised him to get away from the business. This was also why Weerts named Petersen general manager.

On September 26, 1983, while the Weertses still retained title to and possession of the stock, Petersen borrowed $68,059.24 from the Bank of Illinois, pledging the assets of “Bill’s King City Stationery” as security. Petersen’s signature on the promissory note represents that he was the president of “Bill’s King City Stationery,” but he admitted at trial that he knew the corporate name had never been changed to “Bill’s King City Stationery.” Although the stated purpose of the note was for the purchase of inventory and working capital, Petersen’s own testimony indicates that the purpose of the loan was to pay off a $50,000 personal debt owed to Security Bank. This note was in Petersen’s name and was secured by the assets of Bill’s Office Supply, a company owned by Petersen. The note also bore the purported signature of Lana Petersen, but she denied signing the note. Petersen also borrowed money in the corporate name from First Bank to purchase certain furniture for resale to the Ramada Inn. When the furniture was sold, he did not use the proceeds to pay off the loan, but used it for general operating expenses. As a result of Mr. Petersen’s activities, King City Stationery became insolvent and its stock was rendered worthless. Petersen ceased payments to the Weertses under the stock-purchase agreement in May of 1986.

King City Stationery filed no answer to the Bank of Illinois’ complaint, and a default judgment was entered against it on February 11, 1987. The Bank’s complaint was dismissed as to the other defendants on April 8, 1988, pursuant to a stipulation by the parties, and the case proceeded to trial on the third-party complaint. At the conclusion of the trial, the court found that Petersen had breached the stock-purchase agreement, that the Petersens’ conduct as alleged in the third-party complaint was willful and amounted to a fraud on the Weertses, and that the basis for the judgment was fraud. The court awarded the Weertses compensatory damages of $113,026.81 plus interest, punitive damages of $60,000, and costs.

The sole issue raised on appeal concerns the propriety of the punitive damages award. Petersen argues that this case involved a simple breach of contract and that punitive damages cannot be recovered in breach of contract actions. Weerts maintains that the third-party complaint alleged an action for fraud and that the award of punitive damages was therefore proper.

Punitive damages may be awarded in cases of fraud, actual malice, deliberate violence or oppression, when the defendant acts willfully or with wanton disregard for the rights of others. (Kelsay v. Motorola, Inc. (1977), 74 Ill. 2d 172, 384 N.E.2d 353.) Punitive damages are in the nature of punishment, designed to deter the defendant and others from such conduct in the future. Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.

Generally, punitive damages are not available in breach of contract actions, however, because a party suing for breach of contract is entitled only to the benefit of his bargain and the purpose of awarding damages is to place the injured party in the position he would have been had it not been for the breach. (Hutchinson v. Brotman-Sherman Theatres, Inc. (1981), 94 Ill. App. 3d 1066, 419 N.E.2d 530; Ledingham v. Blue Cross Plan for Hospital Care of Hospital Service Corp. (1975), 29 Ill. App. 3d 339, 330 N.E.2d 540, rev’d on other grounds (1976), 64 Ill. 2d 338, 356 N.E.2d 75.) An exception to this rule exists where the breach constitutes an independent tort for which punitive damages are recoverable. Morrow v. L.A. Goldschmidt Associates, Inc. (1986), 112 Ill. 2d 87, 492 N.E.2d 181; Skorin v. Blackman, Kallick & Co. (1989), 184 Ill. App. 3d 873, 540 N.E.2d 999; Salvator v. Admiral Merchants Motor Freight (1987), 156 Ill. App. 3d 930, 509 N.E.2d 1349; Wallace v. Prudential Insurance Co. (1973), 12 Ill. App. 3d 623, 629-30, 299 N.E.2d 344, 349; Restatement (Second) of Contracts § 355 (1977).

In order to support the existence of an independent tort, a plaintiff need only allege facts which would bring his claim for punitive damages within a recognized tort theory. (Illinois Sterling, Inc. v. KDI Corp. (1975), 33 Ill. App. 3d 666, 338 N.E.2d 51.) In their third-party complaint, the Weertses set forth numerous acts of Petersen’s which they allege to be a breach of contract. The complaint further alleges that such conduct was fraudulent and that as a result of such conduct, the stock of the corporation was rendered worthless. The Weertses’ complaint is based on more than breach of contract. It was not Petersen’s cessation of payments under the contract that formed the basis of the Weertses’ complaint, but the damage done to the corporation as a result of Petersen’s breach of the covenant not to obligate the company to significant amounts of debt not incurred in the normal course of operation. The Weertses’ complaint clearly sounds in tort, not contract.

The Weertses’ complaint alleges, and the trial court found, that Petersen’s conduct was fraudulent, and specifically stated such fraudulent conduct was the basis for its decision. We do not consider whether the Weertses’ complaint alleges sufficient facts to state a cause of action for the tort of fraud, however, as Petersen does not argue that the allegations in the third-party complaint are insufficient to allege fraud, nor could he, the Weertses point out, as he waived this argument by not challenging the sufficiency of the allegations in the trial court. (Worner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 459 N.E.2d 633.) Likewise, Petersen does not argue that the trial court’s finding of fraud was against the manifest weight of the evidence.

Based on the foregoing analysis, we hold that the award of punitive damages was proper and affirm the judgment of the circuit court of Jefferson County.

Affirmed.

WELCH and CHAPMAN, JJ., concur.


author: JUSTICE CHAPMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES M. FIELDS, Defendant-Appellant.
    Fifth District
    No. 5—87—0639
    Opinion filed May 25, 1990.

      Daniel M. Kirwan and Janet L. Gandy, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    John Baricevic, State’s Attorney, of Belleville (Kenneth R. Boyle, Stephen E. Norris, and Thomas A. Dossett, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

After entering a plea of guilty to the charge of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9—1(a)) defendant, James M. Fields, was sentenced to an extended term of 70 years’ imprisonment. Defendant filed a motion to withdraw his guilty plea which was denied. Defendant appeals, contending (1) that he is entitled to a new sentencing hearing because the trial court based its sentencing decision on misperceptions, an improper aggravating factor and an error in the admission of a victim impact statement; and (2) that his extended-term sentence of 70 years’ imprisonment was an abuse of discretion where the trial court erroneously concluded the murder was “particularly heinous and vicious.” Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).

The factual basis for the plea indicated that in the early morning hours of July 21, 1986, defendant was at a friend’s house located across the street from the home of the victim, Louise Pasterski. The defendant had a .38 caliber revolver in his possession and told his friends that he needed money. Defendant noticed that the victim and her mother were leaving in their car, and told his friends he was going to break into the house. Defendant then went across the street. While defendant was at the house, Louise Pasterski and her mother returned. When they arrived, Pasterski noticed that a gate that was normally closed was open. At that point she armed herself with a revolver and took it with her as she exited her car to investigate. Pasterski encountered the defendant, who shot her once and fled the scene. Pasterski subsequently died from the gunshot wound. Defendant later told a friend that he intended to rob Pasterski, but shot her when she went for her gun. Defendant subsequently confessed to the murder to police.

The sentencing hearing was held on June 4, 1987, before the Honorable Roger M. Scrivner. No evidence was presented in mitigation. In aggravation, the prosecution introduced a victim impact statement of the victim’s mother, prepared by the State's Attorney's office. The defense objected to the statement being admitted as evidence because it contained inadmissible material. The court overruled the objection, stating that it would not consider irrelevant matters in the statement. The court thereafter sentenced the defendant to an extended term of 70 years’ imprisonment, noting that the murder was “particularly heinous and vicious” and that the defendant had an “apparent plan” to “eradicate” Louise Pasterski.

On May 19, 1987, defendant filed a pro se motion to withdraw his guilty plea. On August’ 24, 1987, the motion was denied. Defendant now appeals.

Defendant’s first contention on appeal is that in sentencing him to an extended term of 70 years’ imprisonment, the trial court made findings that indicated that it misperceived the circumstances of the offense. Defendant contends these misperceptions greatly affected the severity of the punishment imposed and that furthermore the court considered an improper aggravating factor and erred in admitting the victim impact statement. Defendant accordingly requests that his sentence be vacated and the cause remanded for a new sentencing hearing before a different judge.

The trial court observed that the murder was the result of an “apparent plan” by the defendant to “eradicate” Louise Pasterski. From our review of the record, however, we find that the factual basis which was presented to the judge showed that the only “plan” defendant had was to rob the Pasterskis or burglarize the Pasterski residence. Defendant had told his friends that he needed money. When he observed the victim and her mother leave the house, the defendant went across the street to the house to carry out his plan. Defendant’s plan was interrupted by the return of the two women, and the defendant decided to rob Louise Pasterski. According to the defendant, Pasterski reached for her gun and the defendant then shot her. Contrary to the trial court’s position, these facts do not indicate that the murder of Louise Pasterski was premeditated on defendant’s part. To the contrary, the facts revealed a plan on the part of the defendant to commit burglary or robbery. We do not find from our review of the record that defendant went to the Pasterski residence in order to kill the women. We accordingly find that the trial judge’s characterization of defendant’s conduct as constituting a “plan” to “eradicate” Pasterski was erroneous. However, we find it unnecessary to remand this case for resentencing as requested by the defendant. Rather, we decide to exercise our authority under Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)) as set forth below in our discussion concerning defendant’s second contention on appeal. Cf. People v. Thomas (1985), 139 Ill. App. 3d 163, 186, 486 N.E.2d 1362, 1378 (defendant’s 60-year sentence for murder reduced to 40 years); People v. Davis (1984), 121 Ill. App. 3d 916, 923, 460 N.E.2d 471, 475 (defendant’s 50-year sentence for attempted murder reduced to 30 years).

Defendant contends further, citing People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, that the trial court’s finding that there was a “plan” to murder Pasterski implies that the trial court was using an element (i.e., intent to kill) inherent in the offense of murder as an aggravating factor in sentencing. We disagree and find the court’s statement was more likely directed to what the court felt were premeditated aspects of the defendant’s conduct rather than to his specific intent at any point in time during the course of his conduct.

The defendant next contends the trial court erred when it admitted into evidence a written victim’s impact statement from Louise Pasterski’s mother. Defendant objected to the introduction of the statement at the sentencing hearing, contending that it contained improper matter. In overruling the objection, the trial court stated that irrelevant material would not be considered. We find that although the defendant objected at the sentencing hearing to “improper matter” in the statement, the defendant has not delineated what he deems improper nor did he ask the court to do so. On appeal, it is presumed the trial court recognized and disregarded any incompetent evidence introduced during sentencing. (People v. Walker (1983), 113 Ill. App. 3d 1074, 1083, 448 N.E.2d 208, 214, cert. denied (1984), 465 U.S. 1031, 79 L. Ed. 2d 697, 104 S. Ct. 1297.) Defendant relies on People v. Simms (1988), 121 Ill. 2d 259, 520 N.E.2d 308, to show plain error in the admission of the victim’s impact statement. In Simms our supreme court, relying on Booth v. Maryland (1987), 482 U.S. 496, 96 L. Ed. 2d 440, 107 S. Ct. 2529, held that it was plain error to allow victim impact statements at a capital sentencing hearing. We find the Simms case to be inapplicable as the language in that case is limited to capital punishment cases. Moreover, in People v. Turner (1989), 128 Ill. 2d 540, 578, 539 N.E.2d 1196, 1213, cert. denied (1989), 493 U.S. 939, 107 L. Ed. 2d 326, 110 S. Ct. 337, the court expressly declined to extend the holding in Booth to a noncapital sentencing hearing.

Finally, with respect to defendant’s claim that a victim impact statement may not be considered unless the author of the statement is present at the sentencing hearing, the defendant relies upon the following language:

“In any case where *** a victim of the violent crime is present in the courtroom at the time of the sentencing or the disposition hearing, the victim upon his or her request shall have the right to address the court regarding the impact *** upon the victim. If the victim chooses to exercise this right, the impact statement must have been prepared in writing in conjunction with the Office of the State’s Attorney prior to the initial hearing or sentencing, before it can be presented orally at the sentencing hearing. The court shall consider any statements made by the victim ***.” Ill. Rev. Stat. 1985, ch. 38, par. 1406.

The defendant contends that the statute allows presentation of a victim impact statement only when the victim is present at the sentencing hearing and makes an oral statement. In People v. Wallace (1988), 170 Ill. App. 3d 329, 332-34, 524 N.E.2d 677, 679-80, the court rejected an identical argument. We note, however, that the Wallace court made no reference to Public Act 83—1499, which amended section 6. (Pub. Act 83—1499, eff. Dec. 27, 1984.) The amendment deleted a sentence which read: “If the victim or family member is unable to appear in the courtroom, he or she may submit the written statement to the court which shall then become part of the record.” (Ill. Ann. Stat., ch. 38, par. 1406, Historical Note, at 70 (Smith-Hurd 1989 Supp.).) We need not decide this issue, however, because we find that the victim impact statement was properly considered under section 5—4—1(a)(3) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—4—1(a)(3)). This section provides that the court shall “consider evidence and information offered by the parties in aggravation and mitigation” at the sentencing hearing. Where, as here, the victim’s statement is offered by the State in aggravation, section 6 is not applicable, and the statement may properly be considered by the court. (See People v. Willis (1989), 184 Ill. App. 3d 1033, 1044-46, 540 N.E.2d 1080, 1087-88; People v. Keyes (1988), 175 Ill. App. 3d 1013, 1016-17, 530 N.E.2d 708, 711; People v. Estrella (1988), 170 Ill. App. 3d 292, 294-96, 524 N.E.2d 707, 709-10.) Furthermore, the letter written by the victim’s mother in this case could have been properly considered by the court as part of the presentence report. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—3—2(a)(3); People v. Bachman (1981), 92 Ill. App. 3d 419, 424-25, 414 N.E.2d 1369, 1374.) We find no error.

Defendant’s second contention on appeal is that the trial court erroneously concluded that the murder was “particularly heinous and vicious,” and therefore, erred in imposing an extended-term sentence of 70 years’ imprisonment. Defendant primarily relies upon a lack of evidence of premeditation and the absence of infliction of numerous wounds as are present in other cases where extended-term sentences have been upheld on review. Defendant maintains his conduct was not so exceptionally brutal or heinous as to warrant an extended term of imprisonment.

The statutory extended-term provision pertinent to the instant case allows a trial court to impose an extended-term sentence upon a defendant convicted of any felony where “the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).) While the trial court’s decision with respect to sentencing should not be reversed in the absence of an abuse of discretion (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882), extended-term sentencing was not intended to enhance the punishment for every offense. (People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520.) Conduct is “heinous” if it is hatefully or shockingly evil, grossly bad, or enormously and flagrantly criminal. “Brutal” includes conduct which is grossly ruthless, devoid of mercy or compassion, or cruel and cold-blooded. (People v. La Pointe (1982), 88 Ill. 2d 482, 501, 431 N.E.2d 344, 353.) It is clear that the legislative scheme in regard to extended-term sentences requires the degree of brutality or heinousness to be “exceptional.” (People v. Nester (1984), 123 Ill. App. 3d 501, 504, 462 N.E.2d 1011, 1014.) In evaluating the brutality or heinousness of a defendant’s conduct, the court must analyze and evaluate all of the facts surrounding the given incident. Nester, 123 Ill. App. 3d at 505, 462 N.E.2d at 1014.

In support of his position, defendant cites People v. Thomas (1985), 139 Ill. App. 3d 163, 486 N.E.2d 1362, a case similar to the case at bar where a murder committed during the course of an attempted armed robbery was held not to be brutal or heinous requiring the imposition of an extended-term sentence. In Thomas, the murder was committed during the course of an armed robbery. The defendants immediately fled the scene and nothing was taken from the victim. The trial court, citing the “cold-blooded nature” of the crime, imposed an extended-term sentence of 60 years. On appeal, the court reduced defendants’ sentences to 40 years, observing that the murder was not exceptionally brutal or heinous, and that defendants were not so “cold-blooded” as to continue with the robbery. (Thomas, 139 Ill. App. 3d at 186, 486 N.E.2d at 1378.) While Thomas would certainly suggest reversal, we feel compelled to find that the defendant’s conduct was not exceptionally brutal or heinous in light of People v. Andrews (1989), 132 Ill. 2d 451, 548 N.E.2d 1025.

In Andrews the 18-year-old victim (Steinbrecher) and his 17-year-old girlfriend (Afiles) were stopped at a traffic light when the defendant got into the passenger side of the car and pointed a gun at them.

“After trying unsuccessfully to pull away, by moving the gear shift, Steinbrecher told the two men to ‘be cool, we’ll give you what you want.’ Following this, Afiles testified, she heard a ‘crack’ and saw that defendant had shot Steinbrecher. The man she identified as defendant then hit her in the left eye with his gun and ordered, ‘Give me your money, bitch.’ She gave him $7, all the money she had, and the men left.
Steinbrecher died as a result of a gunshot wound to his right temple. Afiles was treated for an eye injury.” (Andrews, 132 Ill. 2d at 454-55, 548 N.E.2d at 1027.)

The supreme court held that the trial court abused its discretion in sentencing the defendant to an extended term of 70 years’ imprisonment. The court stated:

“Although the victim was defenseless and the defendant could have achieved his goal of robbing the victim and the victim’s girlfriend without killing the victim, every single murder is by nature unnecessary; section 5—5—3.2(b)(2), however, requires that the murder be ‘exceptionally’ brutal or heinous. All murders are brutal and heinous to a certain degree. Moreover, many murdered robbery victims are defenseless when killed. Section 5—8—2, however, allowing for extended-term sentences, ‘was not intended to convert every offense into an extraordinary offense subject to an extended-term sentence.’ ” Andrews, 132 Ill. 2d at 465-66, 548 N.E.2d at 1032.

Perhaps the willingness of the trial courts in Andrews and in this case to find that the murders were exceptionally brutal or heinous stems from a perception by the courts that a sentence of 40 years’ imprisonment for murder is too lenient. Perhaps it is; we note that the maximum nonextended sentence for murder has been increased to 60 years’ imprisonment (Pub. Act 85—902, eff. Jan. 1, 1988 (amending Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1)). The amendment to section 5—8—1 is not applicable to this defendant, however, since he was sentenced in 1987, and, because the circumstances of this murder are no more indicative of wanton cruelty than those in Andrews, we must find that the trial court abused its discretion in sentencing defendant to an extended term. Accordingly, pursuant to the authority granted by Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)), we reduce defendant’s sentence for murder to 40 years’ imprisonment. We order issuance of an amended mittimus consistent with the modified sentence.

Affirmed as modified.

LEWIS, P.J., and RARICK, J., concur.