source: Caselaw Access Project

author: JUSTICE McNAMARA

license: Public Domain

text:
      In re MARRIAGE OF FRANCES J. HARDING, Petitioner-Appellant, and ROBERT H. HARDING, Respondent-Appellee.
    First District (6th Division)
    No. 1—88—2114
    Opinion filed September 29, 1989.

      Richard W. Culver, of Richard W. Culver, Ltd., of Hoffman Estates (Mary Ellen Dienes, of counsel), for appellant.
    Anthony J. Pauletto, of Skokie, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court;

Petitioner, Frances J. Harding, and respondent, Robert H. Harding, were married on June 26, 1954. Dissolution proceedings were instituted in January 1984, and on February 25, 1988, the trial court entered a judgment dissolving the marriage, awarding custody of the parties’ youngest child to petitioner, and disposing of contested matters of property, child support and maintenance. In connection with the distribution of property, on March 4, 1988, the trial court entered a qualified domestic relations order (QUADRO) distributing a portion of the Robert H. Harding, M.D., Ltd. Second Restated Employees’ Pension Plan and a portion of the Robert H. Harding, M.D., Ltd. Second Restated Employees’ Retirement Plan to petitioner. On June 8, 1988, the trial court denied petitioner’s section 2 — 1203 motion to vacate the judgment and/or for a rehearing, retrial or modification of the judgment. (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1203.) Petitioner appeals. The dissolution is not at issue.

At the time of trial, petitioner was 56 years old and respondent was 61. The parties had four children: Pamela, age 28; Rhonda, age 26; Laura, age 19; and Andrea, age 14. Laura was attending the University of Wisconsin, and Andrea was living in the marital home with petitioner.

Prior to the parties’ marriage, petitioner graduated from nursing school and received a registered nursing certificate. Respondent graduated from the Marquette Medical School in 1953. After the parties married, they moved to Cleveland, Ohio. Respondent completed his residency in dermatology at a Cleveland clinic while petitioner worked as a nurse at the clinic and as a private duty nurse. The parties remained in Cleveland for three years. During that time, they lived on petitioner’s income and on the $l,000-per-year fellowship which respondent received during his residency.

In July 1957, the parties moved to the Chicago area and respondent opened his medical practice in Arlington Heights. Petitioner initially worked as a nurse for another doctor in respondent’s office. Petitioner worked each morning and part of the afternoon for the other doctor, and then she worked for respondent and answered his telephone. Petitioner continued employment outside the home until April 1958, when she gave birth to the parties’ first child. After that, all of the files and financial cards of respondent’s patients were brought home, where petitioner worked on them. One room of the parties’ home was set up as an office where petitioner worked on respondent’s books. Petitioner estimated that she prepared billings for 700 to 800 patients per month. Petitioner also monitored and prepared billings for overdue accounts.

Each day after work, respondent took the day’s receipts in cash and in checks, as well as all of the mail, to the marital home and turned them over to petitioner. The cash averaged $1,000 per week. Petitioner added up the cash and put the total amount on top of the daily sheet. She also kept a record of the gross receipts. She sent the daily gross income figures to William Hogan, the parties’ business manager, each month.

Petitioner testified that she placed the cash received from respondent’s medical practice each week in a drawer in their home. She then used the $1,000 cash each week to pay for food, dry cleaning, gas, and other family expenses. Petitioner wrote a check each week on the parties’ personal account in the amount of the weekly cash collected. She deposited that check into the corporate bank account for respondent’s medical practice. Petitioner also deposited a check for $7,200 each month from the business account into the joint account for living expenses.

Respondent testified that this was the practice followed by the parties during the course of their marriage, but stated that the amount of cash kept in the drawer was approximately $50. Respondent had no contact or control over the monies he turned over to petitioner. Additionally, petitioner signed both parties’ names to all tax returns and hired consultants, financial advisors and accountants. Respondent testified that he occasionally wrote checks.

In addition to the daily receipts from respondent’s practice, all of the bookkeeping records were sent to petitioner. The office receptionist sent home a list of all the patients seen that day and the amount of the charge. The patient cards also were sent home. Each day, petitioner opened all the records that were sent home and sorted through the patient cards. She prepared account cards for new patients and entered the appropriate data on all patient cards.

Once each week, petitioner photocopied and filed the checks. Petitioner then asked one of the children to endorse all of the checks with a stamp. Pamela, the oldest child, testified that when she was a child, she helped her mother file biopsy slips, and alphabetize and endorse checks. Petitioner had a part-time typist helping her at home with the work from respondent’s medical practice.

Petitioner additionally handled patient inquiries regarding their bills and insurance information. She processed insurance forms and handled problems with unemployment compensation. Petitioner paid all of the bills and prepared the payroll.

Petitioner testified that she spent 45 to 50 hours per week just to keep the books of the medical practice current. Pamela testified that petitioner worked on the paperwork for 12 to 14 hours a day, 7 days a week. Hogan testified that in his opinion, 100 hours a week “might be a bit long,” but stated that the paperwork for respondent’s practice required a staff of two or three people. Petitioner began drawing a salary for her work in 1969. During the last two or three years she was involved in respondent’s practice, she grossed approximately $25,000 per year. On the advise of Hogan, petitioner placed the children on the payroll for the work which they performed for the medical practice. During the four-year period from 1980 to 1984, the children were paid a total of $45,000 in gross wages for the work they performed.

Respondent testified that he worked 70 hours a week, 10 to 14 hours daily during his peak years. He stated that he saw 600,000 patients in 30 years. Various witnesses testified that respondent saw 60 to 75 patients per day, or 400 to 600 patients per week. Hogan testified that respondent’s practice was in the 90th to 95th percentile in terms of volume. Respondent stated he was in the top 2% of the dermatologists in the country in terms of the volume of patients. Respondent went on very few vacations, although he attended some medical conventions.

Both parties are in relatively good health. Respondent is a diabetic. He walks 15 miles a week and plays golf three times a week. Petitioner is under the care of a physician for hypertension, for which she takes medication. She suffers from arthritis in the pelvis, knees, neck and hands, and takes aspirin to relieve the symptoms of her arthritis. Petitioner additionally suffers from a chronic bladder infection, for which she takes medication.

Both parties were collectors of various items. Respondent had a military history library of 16,000 volumes and other war memorabilia. He valued the collection at $150,000. Petitioner had a stamp collection. She testified that over the years, she spent $175,000 on stamps. Respondent testified that petitioner actually had spent between $200,000 to $225,000 on the collection. An expert, however, appraised the stamp collection, as it existed in August 1987, and set its value between $8,000 and $12,000. Petitioner additionally collected playing cards. An appraiser placed a value of $2,000 to $3,500 on that collection.

During the course of the marriage, the parties entered into several investments. They purchased an interest in development property in Hawaii for $42,000. They purchased an interest in two motels in Arizona. The Arizona motel investment currently generates $429 per month. The parties also purchased property in Colorado for $10,000. Respondent testified that this property now is worth only $1,000. In addition to the investment properties, the parties own a home in Mount Prospect, valued at $300,000, and a condominium in Lake Geneva, valued at $54,500. They also jointly own a vacant lot in Barrington. Respondent has an interest in a medical laboratory valued at approximately $1,000.

Petitioner testified that in 1969, the parties borrowed $30,000 from her mother in order to pay for some investments they made at the recommendation of their financial advisors. The note, dated November 22, 1969, had not been repaid, although beginning in 1970, the parties commenced paying petitioner’s mother 8% interest on the note and took an interest deduction on their joint income tax returns. Petitioner signed both her name and respondent’s name on the note. Respondent testified that he was not aware of the loan but that he imagined his accountant would be aware of it.

Respondent testified that he had several money accounts. The defined benefit plan showed a value as of December 31, 1987, of $970,570.82 and the money purchase plan showed a value of $873,383.04 as of the same date. Additionally, the Robert H. Harding, M.D., Ltd. Trust showed a value on that date of $709,722.80. Respondent’s personal interest in the pension and profit-sharing plans was between $45,000 and $75,000.

The parties ceased living together on February 8, 1984. At that time, petitioner’s employment with the medical practice ended, and she has had no employment income since then. At the time of trial, petitioner had approximately $2,200 in her two checking accounts. Respondent testified that he had $6,000 or $7,000 in his checking account and approximately $1,700 in his money market account. A statement from his money market account, however, reflected that as of December 7, 1987, the balance in the money market account was $14,703.88 and the balance in the checking account was $3,750. Respondent testified that he had transferred $8,000 from the money market account to the checking account. He also testified that he had made additions to the account since December 7, 1987.

On March 7, 1984, an agreed injunction order was entered restraining and enjoining the parties from “withdrawing, spending, disposing of, gifting, destroying, removing, encumbering, transferring, damaging, pledging, hypothecating, or otherwise dealing with” a specified list of properties. Among the properties listed were the living trust account of each party and respondent’s medical practice.

Despite the injunction, petitioner reduced her living trust account by approximately $100,000 during the four years in which the dissolution proceedings were pending. She stated that the funds were needed to meet her monthly expenses. Prior to the withdrawal of the injunctive order, respondent sold his medical practice to Dr. Scott Glazer. Respondent used $53,868 of the proceeds from the sale to purchase property located at 1220 Vine Street.

The trial court determined that the parties’ assets and liabilities were as follows:

Liabilities
Promissory Note to petitioner’s mother $ 30,000
Mortgage on 1220 Vine Street property 131,136
Total Liabilities 161,136
Assets
Marital Home 300,000
Lake Geneva Condominium 54,500
Barrington Lot 50,000
Equity in 1220 Vine Street property 53,868
Motel 6 56,000
Hawaii property Unknown
Furnishings in marital home Unknown
Furnishings in Lake Geneva condominium Unknown
Colorado property 1,000
Medical Lab 1,000
Medical practice (at time of sale) 247,977
Respondent’s checking account 8,000
Respondent’s money market account 1,700
Petitioner’s account (Lake Geneva) 700
Petitioner’s account (Mt. Prospect) 1,500
Respondent’s military books 150,000
1983 Oldsmobile 5,300
1984 Cadillac 15,250
Petitioner’s stamp collection 150,000
Respondent’s pension plan 873,383
Respondent’s trust account 709,723
Respondent’s deferred benefit plan 970,571
Petitioner’s living trust 120,000
Petitioner’s card collection 2,000
Petitioner’s inheritance (Not valued as a marital asset)
Respondent’s personalty (Not valued as a marital asset)
Check No. 4310 dated 7/3/78 25,600
Check dated 03/83 22,000
Petitioner’s net deposits
(Mt. Prospect) 253,750
Total Assets $4,073,823 |

The trial court later determined that the value of respondent’s medical practice was $118,750.

The trial court determined that the parties’ assets should be distributed 40% to petitioner and 60% to respondent. Petitioner was awarded the following property: the marital home, the Lake Geneva condominium, the Motel 6 investment in Arizona, all the furnishings and furniture located in the marital home and the Lake Geneva condominium, all bank accounts held in her name, individually or jointly with others, the 1984 Cadillac, the stamp collection, and all other collections previously maintained by petitioner. Respondent was awarded the following property: the property located at 1220 W. Vine, the Barrington lot, all bank accounts held in his name, individually or jointly with others, the 1983 Oldsmobile, the military book collection, items of personal property, the Colorado property, the medical lab interest, and his living trust account. The Hawaii property investment was split between the parties, each receiving an undivided 50% interest.

The trial court awarded custody of Andrea to petitioner, with reasonable visitation to respondent. Respondent was ordered to pay to petitioner the sum of $800 per month as and for child support. Respondent additionally was ordered to pay the sum of $6,000 per year for the college expenses of Laura. Respondent was to maintain Laura and Andrea as beneficiaries under his living trust account in an amount of $50,000 each until age 23 or prior emancipation. Finally, respondent was to be responsible for all extraordinary medical, dental and optical expenses for Laura and Andrea, and petitioner was to be responsible for all medical, dental and optical expenses of $100 or less. The trial court denied maintenance to both parties.

Each of the parties was ordered to release and waive any interest in the other’s accrued benefits in the defined benefit plan and in the money purchase pension plan. Petitioner was awarded an amount which, when combined with her accrued benefit under both plans, equals $559,375 under the money purchase pension plan. Petitioner’s award was accomplished through a QUADRO under the Retirement Equity Act of 1984 as defined in IRS Code section 414(p) (26 U.S.C. §414(p) (Supp. V 1987)).

The trial court found that the $30,000 note to petitioner’s mother was solely petitioner’s liability, and that the $131,136 mortgage on the 1220 Vine Street property was solely respondent’s liability. Moreover, the trial court found that petitioner had failed to account for various marital assets, and accordingly, charged her with dissipation of those assets. Specifically, the court found that petitioner had failed to explain the source of a total of $253,751 in deposits to the Mt. Prospect bank account between 1979 and 1987. The court additionally charged petitioner with dissipation of two checks, one dated July 3, 1978, in the amount of $25,600 and one dated March 1983 in the sum of $22,000, and with dissipation of $120,000 from her living trust account. The court found that petitioner had not been candid in her explanations of her handling of the funds turned over to her by respondent after each work day.

Petitioner first contends that the trial court’s award of 60% of the marital property to respondent and 40% to petitioner, while denying petitioner maintenance and limiting child support, was against the manifest weight of the evidence. Petitioner claims this error was compounded when the court found that petitioner had dissipated marital property, in classifying certain property as nonmarital, and in failing to assign correct values to certain property. Petitioner also claims that the trial court erred in denying her section 2 — 1203 post-trial motion.

We first consider petitioner’s argument that the trial court erred in awarding 60% of the marital property to respondent, while awarding 40% to her. We believe that the court’s initial determination with respect to the proportionate share of the assets which each party was to receive was not an abuse of its discretion. Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) directs the court to divide the parties’ property in just proportions. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).) An equitable award, however, does not require that the marital estate be divided equally. {In re Marriage of Randall (1987), 157 Ill. App. 3d 892, 510 N.E.2d 1153.) The trial court’s distribution of marital property rests within its sound discretion and will not be disturbed on review absent an abuse of that discretion. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267.

Section 503(d) refers to the factors which a court may consider when apportioning the property. These factors include the following: each spouse’s contribution to or dissipation of the marital property; the value of the property set apart to each spouse; the duration of the marriage; the relative economic circumstances of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; the opportunity of each spouse for future acquisition of capital assets and income; and the tax consequences of the property division upon the respective economic circumstances of the parties. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).) The trial court here considered the foregoing factors, and we cannot say that its conclusion that respondent was entitled to 60% of the property and that petitioner was entitled to 40% is an abuse of discretion.

We next address the various property valuation, classification, and distribution issues raised by petitioner.

Petitioner challenges the valuation of several assets. Turning to the valuation of respondent’s medical practice, the court valued respondent’s medical practice at $118,750. Each party was awarded 50% of that amount, or $59,375. Petitioner alleges that the trial court’s valuation was incorrect in view of the purchase agreement and the consultation agreement into which respondent entered. We agree.

In 1985, respondent entered into an agreement to sell his medical practice to Dr. Scott Glazer. Dr. Glazer and respondent signed both a purchase agreement and a consultation agreement. The purchase agreement provided that Dr. Glazer would pay $37,000 for the acquired assets of the practice. The purchase agreement additionally provided that the sale of the practice was subject to the delivery of a consultation agreement by respondent to Dr. Glazer. The consultation agreement provided that Dr. Glazer would hire respondent as a consultant during two consultation periods: a 12-month initial consultation period at $10,760 per month (totalling $129,228) and a second consultation period at $4,541.66 per month (totaling $217,999.68). Petitioner maintains that the trial court erroneously concluded that the monies due under the initial consultation period and a portion of the monies due under the second consultation period were not marital property. Petitioner claims that the proper value of the medical practice is $384,227.68.

Respondent maintains, however, that the trial court properly valued the practice at $118,750. Respondent notes that he elected to waive the initial 12-month consultation period, due to commence on August 1, 1985, and to continue through July 31, 1986, and instead continued to practice medicine on his own. Thus, respondent concludes that petitioner is not entitled to any portion of the monies he would have received had he elected to work under the initial consultation period. Respondent additionally notes that at the time of the dissolution, he was due $131,708.14. He argues that petitioner is not entitled to any portion of those monies. We note, however, that respondent testified that the value of the practice was $255,000.

We believe the trial court abused its discretion by failing to take into account the entire value of the medical practice when apportioning the parties’ assets. The principal evidence of value of the practice presented by either party was the purchase agreement and the consultation agreement. Nonetheless, the trial court failed to include all of the elements of those agreements in valuing the practice. A plain reading of those documents shows that all of the components of the transfer were essential parts of the consideration involved in the sale of the practice. The fact that respondent elected to waive the monies due under the initial consultation period should not impair petitioner’s portion of the marital assets. Moreover, the consultation agreement provided with respect to the 48-month consultation period at $4,541.66 per month that, in the event of respondent’s death, a minimum of $100,000 would be payable to his estate regardless of the monthly installments earned. Accordingly, the $100,000 sum was absolutely vested and the trial court’s failure to consider this sum was error, as was its failure to consider respondent’s election to waive the monies due under the initial consultation period.

Despite the fact that petitioner testified that she had spent $175,000 on her stamp collection, she next maintains that the trial court erred in valuing her stamp collection at $150,000. Respondent believed that petitioner spent between $200,000 and $225,000 on the collection.

The trial court heard the testimony of Theodore Gulino, a philatelist. Gulino examined 45 volumes of stamps and concluded their present value was between $8,000 and $10,000. He additionally stated that it was hard to imagine any more than $25,000 to $30,000 being spent to amass the collection he viewed. He believed the most petitioner might realize from the sale of the stamps would be $12,000.

When the trial court’s valuation of $150,000 was questioned at the section 2 — 1203 hearing, the court explained that it did not believe the testimony as to value. The court then clarified its explanation by stating that it believed the appraiser, but that it did not believe the appraiser saw the entire collection. Finally, the court ruled that it was not bound by the testimony of the expert.

The trial court did not abuse its discretion in determining that the value of petitioner’s stamp collection was $150,000. Both parties testified that petitioner spent in excess of that amount on the collection. The trial court was entitled to utilize purchase price as a valuation tool (Mineika v. Union National Bank (1975), 30 Ill. App. 3d 277, 332 N.E.2d 504), and to disregard the testimony of the expert (Clifford-Jacobs Forging Co. v. Industrial Comm’n (1960), 19 Ill. 2d 236, 166 N.E.2d 382), particularly in view of the fact that the trial court specifically noted that it did not believe the expert had seen the entire collection amassed during the marriage.

Petitioner next challenges the trial court’s valuation of her living trust. In this connection, petitioner also argues that the trial court erred in its valuation of her Mt. Prospect checking account. Petitioner maintains that the trial court based its valuations of these accounts on the erroneous conclusion that she had not rebutted respondent’s allegations of dissipation of cash receipts from the medical practice.

The parties agree that petitioner had exclusive control of the cash receipts from respondent’s medical practice. Respondent presented evidence of deposits to petitioner’s personal checking account at the Mt. Prospect bank to show that petitioner had deposited $349,756.55 into her account from 1979 through 1987. The court stated that petitioner’s failure to present evidence on the source of those deposits was the basis of its finding of dissipation. The court then used this finding to determine the value of petitioner’s accounts.

We believe the trial court erroneously charged petitioner with dissipation of the cash receipts from the medical practice. Under section 503(d)(1) of the Act, the court may consider the dissipation of assets when apportioning the marital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).) Dissipation may be found when one spouse uses marital property for his or her own benefit and for a purpose unrelated to the marriage at a time at which the marriage is undergoing an irreconcilable breakdown. (Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 386 N.E.2d 517.) Where the funds are spent for legitimate family expenses, and necessary and appropriate purposes, there is no dissipation. (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866.) Dissipation of marital assets by one spouse in contemplation of dissolution of marriage is not an acceptable practice. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) To show dissipation, however, it is not necessary that the marital property be sold or transferred at the time of separation or after dissolution proceedings are instituted. Such a requirement is overly restrictive. In re Marriage of Hellwig, 100 Ill. App. 3d 452, 426 N.E.2d 1087.

Although the trial court suggested that it believed the irreconcilable breakdown occurred at the point at which petitioner stopped cooking for respondent, we find no evidence of an irreconcilable breakdown of the marriage until the point at which petitioner filed for dissolution of marriage. Moreover, our review of the record reveals no evidence that petitioner used the cash receipts from the practice for her sole benefit and for a purpose unrelated to the marriage. (See Klingberg v. Klingberg, 68 Ill. App. 3d 513, 386 N.E.2d 517.) To the contrary, petitioner offered uncontradicted evidence that she used the cash receipts each week to pay for household and family expenses such as food, cleaning bills, and automobile expenses. Accordingly, we do not believe that petitioner properly may be charged with dissipation of the cash from respondent’s medical practice.

We are not unmindful of the recent decision, In re Marriage of O’Neill (1989), 185 Ill. App. 3d 566, in which the court stated that dissipation is not limited to a period of time when there is an irreconcilable breakdown of the marriage. Because we have determined that no evidence exists which suggests that petitioner used the funds for an inappropriate purpose, we need not base our decision solely on the presence of an irreconcilable breakdown. Accordingly, we are not constrained to rule according to the O’Neill decision. Furthermore, we do not believe that respondent can participate in a course of conduct for a period of 30 years and then complain that petitioner has dissipated funds. Respondent testified that he freely turned over the earnings from his medical practice to petitioner each day. Hogan testified that respondent could have taken control of the funds at any time, but did not.

In addition, we believe the trial court improperly concluded that petitioner failed to explain the source of the deposits to her Mt. Prospect account. The court recognized that petitioner had received $2,000-per-month maintenance for 48 months, for a total of $96,000, and accordingly, found that petitioner adequately accounted for only $96,000 of the $349,756.55 in deposits to her account.

Our review of the record reveals that petitioner has sufficiently accounted for much of the remaining deposits. First, petitioner did not merely receive $2,000 per month in maintenance for the 48 months in question. Rather, petitioner received $2,850 per month as maintenance and child support. Accordingly, the court improperly determined that she had accounted for only $96,000. Moreover, petitioner deposited $59,407.35 from her salary to the Mt. Prospect account. She also deposited a $19,000 inheritance into the account. Thus, the trial court erred in charging her with dissipating $253,756.55.

We find, however, that the trial court correctly concluded that petitioner dissipated $101,000 from her living trust account. This withdrawal was made during the pendency of these proceedings. We find her bare assertion that the funds were used to pay necessary expenses, combined with the fact that she had filed for dissolution, thus signalling an irreconcilable breakdown in the marriage, permits a finding of dissolution of the $101,000.

Petitioner additionally contends that the trial court erred in charging her with the dissipation of two checks, totaling $47,600, both of which were written prior to the filing of the petition for dissolution. The first check, dated July 3, 1978, and in the amount of $25,600, was drawn by petitioner on the parties’ joint checking account. Petitioner testified that the proceeds of that check went into one of the parties’ investments. The second check, dated March 1983, and in the amount of $22,000, was not produced by respondent at trial. Petitioner, however, testified that the check was used to pay respondent’s 1983 medical corporation tax. Respondent admitted that Frank Olesuck, the parties’ financial consultant, and Hogan had advised him that the $22,000 had been so used.

The trial court erroneously concluded that petitioner had dissipated the $47,600. There was no evidence presented to support the conclusion that petitioner used either check for purposes unrelated to the marriage. Rather, the only evidence presented supported the contrary conclusion. Moreover, there was no evidence that when either check was written, the marriage was undergoing an irreconcilable breakdown. The trial court erred in finding dissipation.

Petitioner next alleges that the trial court erred in refusing to charge respondent with dissipation. She maintains that respondent was not charged for his use of $54,788 of the proceeds from the sale of his medical practice to purchase the Vine Street home, for his use of the income received from the parties’ Arizona motel investment, or for his use of funds from his money market account.

Use of marital property to secure housing after leaving the marital home is an expenditure for a purpose unrelated to the marriage. (Cf. In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Accordingly, petitioner asserts that respondent should be charged with dissipation of the funds which he used to purchase the Vine Street property. The fact is that the judgment of dissolution reveals that he was charged with the dissipation of the proceeds of the Vine Street property. Indeed, he was charged twice for the use of the funds. The trial court awarded both parties 50% of the value of the medical practice, or $59,375 each. The trial court additionally awarded respondent equity in the Vine Street property in the sum of $53,868. The source of the monies used to acquire this equity, however, was the proceeds from the sale of the medical practice, and these proceeds formed the basis of the court’s valuation of the practice. Accordingly, the trial court double-counted the monies used to purchase the Vine Street property, once as equity in the property, and once as value of the medical practice. Thus, the figure representing the total assets awarded to respondent is improperly inflated in the sum of $53,868 and should be reduced by that figure.

The trial court erred in failing to charge respondent with dissipation of the income from the Motel 6 Arizona investment. The interest in the property was held jointly by the parties. During the pendency of the dissolution proceedings, respondent kept the $429 monthly income from the investment, for a total of $20,592. These proceeds should have been included in the parties’ assets and should have been considered by the trial court when it distributed the assets. Respondent’s allegation that it was sufficient to consider those funds when determining his income for purposes of temporary maintenance and child support is without merit. The funds were a marital asset which should have been included in the trial court’s determination of the parties’ assets and liabilities.

In this court, respondent has not responded to petitioner’s claim that respondent had accounted for only $8,000 of $13,003.38 missing from a money market account. Accordingly, respondent has waived the issue for purposes of this appeal. (See Sheley v. Guy (1975), 29 Ill. App. 3d 361, 330 N.E.2d 567; 107 Ill. 2d Rules 341 (e)(7), (f).) Thus, the trial court erred in not charging respondent with dissipation of a portion of his money market account.

Petitioner also maintains that the trial court improperly assigned to her the entire amount of a $30,000 liability on a note due petitioner’s mother. Petitioner testified that in 1969, the parties borrowed the money from her mother in order to cover investments which the parties had made. The loan was evidenced by a note signed on November 22, 1969. Petitioner signed both her name and respondent’s name to the note, which has never been repaid. Respondent maintains that he knew nothing about the loan, although he imagined his accountant was aware of it.

Initially we note that we do not find significant the fact that petitioner signed both her name and respondent’s name to the note, or to any other documents which the parties were to execute. Respondent conceded that petitioner had his authority to sign such documents.

With respect to the $30,000 promissory note, the trial court determined that petitioner’s testimony was not credible. Accordingly, the court assigned the entire liability to her. We believe this assignment to have been erroneous. Although respondent claimed he was unaware of the loan, he did not dispute the fact that beginning in 1970, the parties began paying petitioner’s mother 8% interest on the loan, and began deducting this interest on the parties’ income tax returns. We do not believe respondent can accept a benefit, in the form of an income tax deduction, for 14 years, and then dispute the existence of the source of that benefit. We find that the trial court erroneously assigned the entire liability to petitioner.

Petitioner next contends that the trial court erred in failing to award her maintenance. Petitioner maintains that she lacks sufficient property to provide for her reasonable needs and that she is unable to support herself through appropriate employment.

Section 504(a) of the Act provides that a court may grant maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; is unable to support herself through appropriate employment; or is otherwise without sufficient income. (Ill. Rev. Stat. 1987, ch. 40, par. 504(a).) Maintenance is to be awarded in such amounts and for such periods of time as the court deems just, after consideration of various factors, including the following: the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the age and the physical and emotional condition of both parties; and the ability of the spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1987, ch. 40, par. 504(a). See also In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) An award of maintenance will not be overturned absent an abuse of discretion by the trial court. In re Marriage of Heller, 153 Ill. App. 3d 224, 505 N.E.2d 1294.

We find that the trial court’s denial of petitioner’s request for maintenance was not an abuse of its discretion. The trial court heard testimony regarding the factors set forth above. We believe the trial court reasonably concluded that petitioner was not entitled to maintenance.

Petitioner was awarded $560,000 of respondent’s defined benefits plan, which earns 7.5% or $42,000 per year; the Motel 6 investment which pays $429 per month, or $5,148 per year; $9,600-per-year child support; and $6,000-per-year educational expenses. These assets provide petitioner with a total of $62,748 per year. Petitioner testified that the total monthly expenses for herself and for her two daughters was $4,202 per month, or $50,404 per year before taxes. Accordingly, the assets awarded to petitioner generate income sufficient to meet her needs.

Petitioner next contends that the award of child support for the parties’ minor child, Andrea, was inadequate. At the time of the dissolution, Andrea was 14 years old. She lived on a full-time basis in the marital residence with petitioner. The trial court ordered respondent to pay petitioner $800 per month as and for child support for Andrea. The order additionally directed that respondent was entitled to claim Federal and State income tax exemptions for Andrea. (The order also gave respondent the tax exemptions for Laura, who was attending college at the time of the dissolution.) Petitioner maintains that the child support award was not sufficient given the educational needs of Andrea, the relatively superior financial resources of respondent, and the standard of living which Andrea would have enjoyed had the parties’ marriage not been dissolved.

Determination of an amount of child support lies within the sound discretion of the trial court and its decision will not be set aside unless contrary to the manifest weight of the evidence. (Sandberg v. Sandberg (1973), 11 Ill. App. 3d 495, 297 N.E.2d 654.) Section 505 of the Act governs the trial court’s award of child support. (Ill. Rev. Stat. 1987, ch. 40, par. 505.) That section provides that the court is to determine the minimum amount of support by using a set of guidelines. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1).) These guidelines provide that for one child, the supporting party is to contribute 20% of his or her net income as and for that child’s support. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1).) The section further provides that the guidelines shall be applied unless the court, after considering evidence presented on all relevant factors, finds a reason to deviate from the guidelines. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).) Relevant factors include the following: the financial resources of the child, the financial resources and needs of the custodial parent; the standard of living the child would have enjoyed had the marriage not been dissolved; the physical and emotional condition of the child, and his educational needs; and the financial resources and needs of the noncustodial parent. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).) In making a child support award that is less than the 20% guideline, the court must consider all the relevant factors set forth in the statute. (In re Marriage of Cook (1986), 147 Ill. App. 3d 134, 497 N.E.2d 1029.) Moreover, if the court orders a lower award, based on consideration of the foregoing factors, it must make express findings as to its reasons for doing so. Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).

We believe that, here, the trial court did not meet the express findings requirement of the Act. In its memo for judgment, the trial court awarded $800-per-month child support, but gave no specific findings. At the hearing on the section 2 — 1203 motion, petitioner pointed out that the $800 monthly child support was considerably less than the 20% statutory guideline. The court responded as follows:

“Counsel, you won that one. You won that one. Certainly it was the intent of this court — By my memo of judgment, it was the intent of this Court to give Andrea 20% of the doctor’s net pay, period. And if the judgment just provided $800, there has to be a fixed figure. So if the judgment just provided $800 a month for Andrea, it should have been $800 a month or 20 percent of his net take-home pay. And that’s easy. You won that one. There is no question about that point, period.”

Minutes later, however, the court stated that the 20% requirement of section 505 did not have to be followed. The court then stated that the child support obligation was joint and that, accordingly, petitioner also had an obligation. The court stated that its position was that the express findings requirement of the Act had been met. Our review of the record, however, reveals only vague references to the factors listed within section 505, and none within the framework of the child support provision of the Act.

Furthermore, our review of the record reveals no evidence which would suggest that the statutory 20% guideline should not be met. The Act requires the court to consider the standard of living that Andrea would have enjoyed had the marriage not been dissolved (Ill. Rev. Stat. 1987, eh. 40, par. 505(a)(2)(c)), and that standard of living should not be substantially impaired simply because her parents have chosen to seek dissolution. See generally In re Marriage of Leva (1983), 125 Ill. App. 3d 55, 460 N.E.2d 1179.

Finally, we do not believe that the trial court’s award of child support was based on accurate financial data. Respondent submitted financial statements indicating that his gross income for the first nine months of 1987 was $96,278. After subtracting the comparable nine-month permitted deduction figures totalling $58,400, respondent indicates that his net income for that nine-month period was $37,878, or $4,209 per month. Twenty percent of $4,209 is $842. Thus, respondent concludes that the trial court’s award of $800 per month is appropriate, particularly in view of the fact that the trial court specifically found that petitioner was required to contribute a portion of the child support.

Petitioner points out, however, that respondent’s financial statements fail to take into account the fact that respondent was awarded the income tax deductions for the parties’ two youngest daughters. Moreover, the statements fail to include as income the interest earnings from respondent’s defined benefit plan, his trust, and his money purchase plan. Respondent noted at oral argument that these earnings are automatically reinvested and concluded that they should not be included in his projected income figures. We disagree. The fact that respondent chooses to reinvest this income does not mean that the income should not be considered for purposes of an award of child support. This is particularly true in view of the fact that respondent includes the income generated by petitioner’s portion of the benefit plans when he approximates petitioner’s income.

In sum, because we are unable to find evidence which would support a lesser figure, we find that the statutory 20% child support guideline should be applied in this case, and we direct the trial court to recompute the income of both parties, and to fashion its support award to consider the corrected income figures.

Petitioner additionally contends that the provision relating to extraordinary medical, dental and optical expenses for the two younger children of the parties is vague and ambiguous.

The trial court’s initial memo for judgment contained the following provision:

“6) The Respondent shall be responsible for all extraordinary medical, dental and optical expenses for Laura and Andrea, and, the Petitioner shall be responsible for all medical, dental and optical expenses of $100.00 or less. The Respondent shall keep Laura and Andrea covered under his current medical insurance. The obligations set forth herein shall cease upon each child attaining the age of 23 or prior emancipation.”

On June 8, 1988, the court amended the provision as follows:

“[Paragraph six (6) is amended to provide that Petitioner is responsible for all medical, dental, and optical expenses for the two children (one minor and one attending college) for a total of one hundred ($100.00) or less for each ailment. The Respondent is responsible for all other medical expenses and are classified [sic] extraordinary medical, dental and optical expenses.”

We believe the language of the judgment and of the amended provision is clear and can be understood by both parties. There is no need for further clarification.

Petitioner lastly contends that the trial court abused its discretion in denying her section 2 — 1203 motion to vacate the judgment without an evidentiary hearing. In view of our holdings, we deem it unnecessary to consider that argument.

For the reasons stated, the order of the circuit court of Cook County denying maintenance to petitioner is affirmed. The order awarding child support to petitioner is vacated as to the amount allowed, and the matter is remanded for recomputation in accordance with the views expressed herein. The order granting 60% of the marital property to respondent and 40% to petitioner is affirmed, but the order regarding dissipation of property and the assignment of values and distribution as to certain property is reversed and the cause is remanded for further proceedings in accordance with our expressed views. The order dealing with the payment of medical expenses by respondent is affirmed.

Affirmed in part; reversed and remanded in part.

EGAN, P.J., and LaPORTA, J., concur.


author: JUSTICE McMORROW

text:
    LYONS SAVINGS AND LOAN ASSOCIATION, n/k/a Lyons Savings, Plaintiff-Appellee, v. GASH ASSOCIATES et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—88—3735
    Opinion filed September 29, 1989.
    Gary L. Starkman, Malcolm S. Kamin, and Thomas F. Sax, all of Arvey, Hodes, Costello & Burman, of Chicago, for appellants.
    James M. Crowley, of Garvey & Novy, Ltd., Harvey J. Barnett and Martin D. Tasch, both of Harvey J. Barnett & Associates, Ltd., and Thomas T. Burke, William E. Ryan, and Barry A. Springer, all of Burke & Ryan, all of Chicago, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Gash Associates (Gash) appeals from the trial court’s approval of a sheriff’s sale of commercial property located in Rosemont, Illinois, pursuant to a mortgage foreclosure action filed by Lyons Savings and Loan Association (Lyons) and others. Gash argues that the trial court should have disapproved the sheriff’s sale because it awarded the property at less than its fair market value to the Village of Rosemont (the Village), which bid upon the property at the sheriff’s sale during the pendency of the Village’s action to acquire the property in condemnation proceedings. Because we find no abuse of the trial court’s discretion in approving the sheriff’s sale under the facts of this case, we affirm.

Gash is an Illinois general partnership formed to acquire ownership of the commercial property at issue herein. Title to the property was originally held by Gash in a land trust, and Gash owned the entire beneficial interest in the trust. Gash sold its beneficial interest in the trust to a third party in November 1983 for $6.8 million. In consideration for this sale, Gash received a nonrecourse wrap around note in the amount of $5 million and a nonrecourse note in the amount of $900,000. Each of the notes was collateralized by a trust deed on the property to secure that portion of the purchase price that was to be paid in the future. The purchaser fell behind in its payments to Gash, and as a result, Gash filed suit to foreclose the trust deed in June 1985. This action was dismissed by stipulation of the parties upon tender of the delinquent payments to Gash, but was reinstituted when payments again became delinquent.

The trust deed Gash sought to foreclose was junior to three prior mortgages, which were also the subject of foreclosure suits eventually consolidated with Gash’s foreclosure action: (1) a trust deed secured by a note held by Northwestern National Life Insurance Company (Northwestern National) in the principal amount of $1.55 million; (2) a mortgage to American National Bank and Trust Company (American National) in the principal amount of $1 million; and (3) a mortgage held by Lyons in the principal amount of $2.5 million.

Each of the mortgagees, including Gash, moved for the summary entry of judgment of foreclosure. The awards for principal, interest, attorney fees and costs were determined by the court to be: Northwestern National, first mortgagee, $913,947.99; American National, second mortgagee, $1,138,122.53; and Lyons, third mortgagee, $3,064,197.35.

Gash thereafter filed notice of sheriff’s sale, and the property was scheduled for sale on July 21, 1987. On July 14, 1987, Gash received an assignment of the beneficial interest in the land trust holding title to the property in exchange for the amount due Gash in its mortgage foreclosure judgment. After notice of sale was filed, but prior to sale, the Village offered to purchase the property for $3.8 million. Gash refused the offer, but filed a motion to continue the sheriff’s sale so that it could negotiate a purchase of the property with the Village. The trial court denied Gash’s motion to continue the sheriff’s sale. On July 20, 1987, Gash filed a petition for bankruptcy in the Federal court. On the same day that Gash filed its petition for bankruptcy, the Village filed a petition to condemn the property pursuant to an ordinance that had been adopted approximately six weeks earlier. The bankruptcy petition automatically stayed both the condemnation proceeding and the court-ordered sheriff’s sale of the property pursuant to the mortgage foreclosure actions.

Thereafter Gash, Northwestern National, and American National entered into an agreed order in Federal court to lift the automatic stay in the bankruptcy proceeding. This allowed both the condemnation action and the sheriff’s sale to proceed. The foreclosure sale was held on May 26, 1988. Northwestern National and American National bid the value of their respective claims. The Village bid $3.8 million, the same amount it had previously offered Gash to purchase the property. Bidding by Lyons and the Village continued until the bid submitted by the Village for $4,005,000 was accepted. Lyons’ final bid was $4 million. The sheriff’s report of sale and distribution were filed the following day.

American National, Northwestern National, and Lyons thereafter moved to approve the sale. Gash objected on the basis that the amount bid by the Village was less than the amount which Gash would receive from the Village as just compensation for its condemnation of the property. Gash also argued that the Village’s bid amount was grossly inadequate. In an order entered in June 1988, the trial court disapproved the sale on the grounds asserted by Gash and, because trial of the condemnation action was scheduled for October 20, 1988, stayed the foreclosure sale until October 21, 1988, in order to enable the condemnation trial to proceed.

On October 20, 1988, however, the condemnation trial was continued, and, pursuant to Gash’s motion, the trial court extended the stay of the sheriff’s sale for 10 days, until November 2, 1988. The trial court denied Gash’s motion to further continue the stay of the foreclosure sale or to restrain the Village from bidding at the sale. The sheriff’s sale was held on November 3, 1988, and the Village was again the successful bidder at $4,005,000. Lyons moved for approval of this sale, and Gash again objected, on the grounds that the amount bid by the Village was grossly inadequate, and that the Village would have to pay a greater amount for the property in its condemnation suit.

To support its argument that the Village’s bid price was grossly inadequate, Gash presented the affidavits of three appraisers to the effect that the value of the property at its highest and best use as of July 20, 1987, was between $5 million and $5.8 million. Gash also presented the affidavit of an individual representing an entity which was allegedly willing to purchase the property for $5 million, contingent upon the dismissal and perpetual nonreinstatement of the condemnation proceeding.

Lyons, Northwestern National, and American National all contested Gash’s arguments, claiming inter alia that the Village’s bid price was not grossly inadequate. The Village presented the affidavits of two appraisers to the effect that the property was worth $3.8 million. Following argument, the trial court entered an order that confirmed the sheriff’s sale, disbursed the sale proceeds, and ordered the issuance of a sheriff’s deed. A deficiency judgment was entered against Gash in the amount of $1,906,236.41. Gash appeals.

Gash argues that the trial court abused its discretion in confirming the foreclosure sale because the price was inadequate and because the sale was tainted by the irregularity of the successful bidder depressing the price by filing a condemnation action. With respect to the inadequacy of the Village’s bid, Gash contends that Illinois law recognizes two distinct legal standards upon which to determine whether a foreclosure sale should be set aside. Gash asserts that when a foreclosure sale has been judicially approved and a third party seeks to set it aside, the sale may be disapproved only upon a showing that the bid price was grossly inadequate and that there was an irregularity in the sheriff’s sale. Gash argues that when the sale is contested before judicial approval, however, the standard is less stringent, and that a showing of inadequacy of price, in and of itself, is sufficient to deny approval of the sale. To support this distinction between pre-judicial and post-judicial approval of a sheriff’s sale, Gash relies upon People v. Schwartz (1947), 397 Ill. 279, 73 N.E.2d 279, Ryerson v. Apland (1941), 378 Ill. 472, 38 N.E.2d 712, Straus v. Anderson (1937), 366 Ill. 426, 9 N.E.2d 205, Flemming v. Tallerday (1919), 289 Ill. 508, 124 N.E. 613, McDaniel v. Wetzel (1914), 264 Ill. 212, 106 N.E. 209, and VanGundy v. Hill (1914), 262 Ill. 162, 104 N.E. 147.

Gash did not present this argument to the trial court, however, and the question is therefore not properly presented for review. Gash argued at the trial level that the court could disapprove the sheriff’s sale if the Village’s bid price were grossly inadequate, and Gash is bound by this legal argument on appeal. (See, e.g., Thomas v. First National Bank (1985), 134 Ill. App. 3d 192, 212, 479 N.E.2d 1014.) Nor can we say on this record that the trial court erred when it determined that the amount offered by the Village at the sheriff’s sale was not grossly inadequate. Consequently, we find Gash’s argument regarding the inadequacy of the Village’s bid price, as the sole factor to determine whether the sale should be set aside, insufficient ground to disturb the trial court’s ruling.

Gash also argues on appeal that the Village’s pending condemnation proceeding depressed the value of the property, and thus, allowed the Village to circumvent its constitutional obligation to pay just compensation in its condemnation suit. In this regard Gash asserts that “[f]or more than a century, Illinois law has recognized the inherent unfairness in this procedure by demanding that pending condemnation litigation precede any potential foreclosure sale.” To support this argument, Gash cites to Colehour v. State Savings Institution (1878), 90 Ill. 152. However, Colehour does not stand for the proposition that condemnation proceedings must always precede any potential foreclosure sale. Instead, Colehour held that when property which has been condemned is the subject of a subsequent foreclosure action, the mortgagee’s interest is in the condemnation award. In our view, Colehour does not support Gash’s claim that the foreclosure action should have been stayed in the case at bar pending resolution of the Village’s condemnation action.

Gash further appears to contend that this court should adopt a per se rule that condemnation proceedings must always be resolved prior to a mortgage foreclosure sale. Gash argues that such a rule would be appropriate because (1) condemnation produces a higher value for the property, since a condemnation judgment must be based upon the fair market value of the property, (2) property is always sold at a depressed price at a foreclosure sale, and (3) condemnation proceedings have a deleterious effect on the marketability of the property. Gash cites no decision which has adopted this per se rule, which would effectively engraft by judicial decision an exception onto the Illinois statute regarding mortgage foreclosures. (Ill. Rev. Stat. 1987, ch. 110, par. 15 — 1101 et seq.) We decline to judicially legislate such an exception.

The standard for approval of the sheriff’s sale which the trial court applied to the instant cause is that stated in Illini Federal Savings & Loan Association v. Doering (1987), 162 Ill. App. 3d 768, 516 N.E.2d 609. In Illini Federal, the court observed:

“It is settled that a court of equity has wide discretion in supervising judicial sales to insure that such sales are conducted according to law and free from fraud which could deprive the equity owner of valuable rights. [Citations.] This discretion is not unlimited, however, and it is a firmly established rule that unless there is evidence of mistake, fraud, or violation of duty by the officer conducting the sale, mere inadequacy of price alone is not sufficient cause for setting aside a judicial sale. [Citations.] It is the policy of the law to give stability and permanency to judicial sales [citation], and, since ‘[i]t has long been recognized that property does not bring its full value at forced sales, and that the price depends on many circumstances from which the debtor must expect to suffer a loss’ [citation], it follows that ‘[m]ere inadequacy of price is no reason for upsetting a judicial sale unless there are other irregularities’ [citation].” 62 Ill. App. 3d at 771-72; see also Standard Bank & Trust Co. v. Callaghan (1988), 177 Ill. App. 3d 973, 532 N.E.2d 1015.

Applying the standard of Illini Federal to the facts of this case, we find no abuse of discretion in the trial court’s approval of the sheriff’s sale of the property to the Village for $4,005,000. The condemnation action filed by the Village did not amount to fraud, mistake or illegal practice, any one of which is required to set aside the sheriff’s sale. We cannot say that the trial court erred in its determination that the amount bid by the Village was not grossly inadequate. Consequently, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.


author: PRESIDING JUSTICE MURRAY

text:
    DAVID YORK, Plaintiff-Appellee, v. JOHN LUNKES, d/b/a Illinois Battery Manufacturing Company, Defendant-Appellant and Third-Party Plaintiff-Appellant (Steve Onassis et al., Third-Party Defendants-Appellees).
    First District (5th Division)
    No. 1—88—1494
    Opinion filed September 29, 1989.

      August A. Grundei, of Chicago, for appellant.
    Williams & Montgomery, Ltd., of Chicago (Anita L. Volgyi, Barry L. Kroll, Anthony J. Kiselis, and Lloyd E. Williams, Jr., of counsel), for appellee East Penn Manufacturing Company, Inc.
    Galliani & Doell, Ltd., of Chicago (Thomas J. Doell, of counsel), for appellees Gould, Inc., and GNB Batteries, Inc.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Defendant and third-party plaintiff, John Lunkes, d/b/a Illinois Battery Manufacturing Company (Lunkes), filed this appeal from various orders of the trial court granting summary judgment for third-party defendants, East Penn Manufacturing Company, Inc. and Gould/ GNB Batteries, Inc. Lunkes also appeals from an order denying him summary judgment against plaintiff, David York. This latter order is not part of this appeal since it is not a final order under either Supreme Court Rule 304(a) or Rule 308 (107 Ill. 2d Rules 304(a), 308).

The following facts are relevant to this appeal. Plaintiff David York filed suit against Lunkes alleging that he was injured when an automobile battery exploded on January 21, 1979. Lunkes then filed third-party complaints against Steve Onassis (the battery owner), East Penn, Gould, and Seymour Brown, d/b/a Seymour Standard Service (plaintiff’s employer), seeking indemnity and contribution should he be held liable to plaintiff.

Onassis owned a 1967 Mercedes-Benz automobile for which he had purchased a new battery from and had it installed by an employee of Illinois Battery several months prior to plaintiff’s accident. The injury occurred as plaintiff was attempting to jump start the car in Onassis’ garage. The battery exploded and was completely destroyed, leaving no physical evidence to aid in identifying its manufacturer or the cause of the explosion.

Onassis stated in his deposition that the new battery was red but was uncertain whether it had filler caps on top or was a maintenance-free model. No receipt for the sale of the battery was produced. Plaintiff’s deposition revealed that he had worked for Seymour’s Standard for about five years. Plaintiff described a specific procedure that he was trained to follow for winter jump starts, e.g., check to see if battery was frozen. On the day of his accident, plaintiff followed this procedure but could not check for a frozen battery because it was a totally sealed, maintenance-free battery. He did not attach the battery cables to a ground because there was not enough room in the garage. After failing to start the car, plaintiff simultaneously removed both cables from the battery terminals. At this time, he saw a spark and turned his head away as the battery exploded. He remembered that the battery was sealed with no filler caps and that the terminals were on the side, but did not recall the color of the battery or seeing any manufacturer’s name on it.

The record also demonstrates that Onassis’ car could take only batteries in BCI (Battery Council International) Group sizes 24F, 27F, and 30HR. At no time prior to plaintiff’s accident did East Penn manufacture any maintenance-free batteries in these groups. It was also shown that the only suitable battery manufactured by Gould had a blue top with translucent sides and top terminals and also was not maintenance-free. The sales manager at that time for East Penn stated that during visits to Illinois Battery, he noticed that Lunkes’ inventory included a red, maintenance-free battery with side terminals, manufactured by a third company, that would fit the Mercedes-Benz.

Lunkes submitted no records regarding sale of the battery nor could he identify the employee who sold it to Onassis. The only evidence as to whether the battery was defective came from Mr. John Stilson, plaintiff’s expert, who stated that it was defective because it either (1) did not have spark arresters, or (2) if it did have spark arresters, they were not functioning properly. Both East Penn and Gould batteries were manufactured with spark arresters at that time.

Based on these facts, the trial court found that Lunkes had produced no evidence indicating that the exploded battery was manufactured or sold by either East Penn or Gould. The court specifically stated that it was ruling only on the narrow issue as to whether there was any evidence linking East Penn or Gould to the Onassis battery and declined to address the factual question regarding any defect in the battery. Consequently, we will not consider East Penn’s arguments concerning its supplemental and independent summary judgment motion on this second issue. This appeal followed the court’s finding that the summary judgment orders in favor of East Penn and Gould (not including East Penn’s supplemental motion) were final and appealable.

On appeal, Lunkes argues that summary judgment was inappropriate since the evidence shows that one out of the two manufacturers supplied a defective battery. He relies on recent case law which shifts the burden of proof from a plaintiff to a defendant manufacturer in product liability cases where it is impossible to specify a particular manufacturer or producer of a defective product. In Smith v. Eli Lilly & Co. (1988), 173 Ill. App. 3d 1, the court used a theory of market share liability to compensate plaintiffs where a product, proved to be harmful (DES) many years after its use, was manufactured in the same manner by many different manufacturers. To escape liability in such a case, a manufacturer defendant would have to establish certain factors, e.g., that it did not produce or market the particular drug taken by plaintiffs’ mothers; it did not market the drug in the particular geographic area. The same situation does not exist in the present case. Batteries made by different manufacturers are readily distinguishable from one another. Furthermore, all batteries are not “defective,” as the drug DES was determined to be 30 years after being ingested by the plaintiffs’ mothers in Smith.

We must also disagree with Lunkes’ reliance on Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, where a shelf manufacturer’s affidavits, with accompanying purchase receipts and packing slips, stated that the defendant was its only supplier of the defective product (shelf clips). Other affidavits supported the manufacturer and the court found that defendant’s rebuttal affidavits raised a question of fact so as to preclude summary judgment. The case of Kramer v. Weedhopper of Utah, Inc. (1986), 141 Ill. App. 3d 217, is also distinguishable from the case at bar. In Kramer, the manufacturer of the defective product (airplane bolts) was known. However, there were two possible distributors of the indistinguishable bolts — one of which supplied 90% of the bolts to the aircraft manufacturer. The court held that this circumstantial evidence sufficiently supported an inference that the 90% distributor supplied the allegedly defective bolts so as to preclude summary judgment.

These cases cited by Lunkes are inapposite to the present case. Batteries are not indistinguishable from one another. Moreover, uncontroverted evidence in this record indicates that neither East Penn nor Gould manufactured an appropriate battery for the Mercedes-Benz that fit the descriptions given by plaintiff or Onassis. A plaintiff is not required to prove his case in responding to summary judgment motions, but he is required to present facts that support the elements of his action. (Sutton v. Washington Rubber Parts & Supply Co. (1988), 176 Ill. App. 3d 85.) In products liability actions, one must show that injury resulted from an unreasonably dangerous condition of the product and that the condition existed when the product left the defendant’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612.) In other words, a plaintiff must identify the supplier of the product and establish a causal connection between the injury and the product. Schmidt v. Archer Iron Works, Inc. (1970), 44 Ill. 2d 401.

Lunkes, as a third-party plaintiff, has failed to proffer any evidence, direct or circumstantial, that even remotely supports an inference that either East Penn or Gould manufactured the battery sold to Onassis. A fact is not established from circumstantial evidence unless the circumstances or events are so related to each other as to make the conclusion the only probable, not possible, one that can be drawn from them. (Mateika v. La Salle Thermogas Co. (1981), 94 Ill. App. 3d 506.) Here, Lunkes’ assertions are mere speculation, unsupported by evidence; thus, his “one out of two” argument must fail.

Lunkes’ second contention that East Penn and Gould made a judicial admission that a genuine issue of material fact exists as to whether the battery was maintenance-free is without merit. After reading the entire record, it is clear that the deposition testimony by Onassis, referred to by Lunkes, does not create a factual question, but rather indicates that Onassis was not certain as to the location of the terminals or whether the battery was maintenance-free. The deposition, read in its entirety, merely reveals that Onassis was unsure as to whether it was maintenance-free or the location of the terminals. He was, however, certain that the battery was red, and plaintiff was certain that it was maintenance-free and had side terminals. Neither deponent contradicted the other. Thus, no fact issue was raised.

We must mention two motions filed by plaintiff York three days before oral arguments, in which he requests this court to dismiss Lunkes’ appeal of denial of his motion for summary judgment against York, and to refrain from ruling on East Penn’s supplemental motion for summary judgment. We are denying plaintiff’s motions as we have addressed these issues in our opinion, and thus, there is no need to consider the third-party defendants’ objections based on proper procedure and standing.

Accordingly, and for the above reasons, the orders granting summary judgment against Lunkes and in favor of East Penn and Gould are affirmed.

Affirmed.

PINCHAM and COCCIA, JJ., concur.


text:
    JANET DAVIES, Plaintiff-Appellant, v. MARTEL LABORATORY SERVICES, INC., Defendant-Appellee.
    First District (5th Division)
    No. 1—88—1599
    Opinion filed September 29, 1989.

      Joseph J. Spingola, of Chicago, for appellant.
    Michael T. Roumell, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

Plaintiff Janet Davies appeals from an order of the circuit court of Cook County dismissing her amended complaint for breach of an oral contract for permanent employment against defendant Martel Laboratory Services, Inc. She argues that the trial court erred in granting Martel’s section 2 — 615 motion to dismiss her complaint (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615) based on its determination that she failed to establish consideration for an enforceable contract of permanent employment and that the court erred in granting Martel’s section 2 — 619 motion (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) based on its finding that her cause of action was barred by the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1). For the reasons set forth below, we reverse and remand the cause for further proceedings.

This is the second time this case is before us. (See Davies v. Martel Laboratory Services, Inc. (1987), 157 Ill. App. 3d 686.) We dismissed Davies’ first appeal for lack of jurisdiction, finding that the trial court’s order of dismissal of her complaint pursuant to Martel’s section 2 — 615 motion (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 615) was not final, and ruling that Davies should have been afforded an opportunity to amend her complaint “to avoid a grave injustice.”

Davies subsequently filed an amended complaint in the trial court, the subject of this appeal, alleging that Martel hired her in April 1980 to perform oil analyses and mapping work until approximately March 1, 1983. During that time she was an employee at will. In the latter part of February 1983, however, she attended a dinner conference with Harold Flynn, Martel’s president. At that time Flynn “made an offer [to her] to alter, change and modify the terms and conditions of [her] contract of employment.” The terms and conditions were that she “would be made a Vice-President of MARTEL earning $40,000.00 per year” if she “would obtain an MBA Degree” and, if she accepted the offer then and there, “she would immediately be designated a permanent employee of MARTEL and also appointed a member of the President’s Council for which she would assume and become responsible for a policy making role for MARTEL.” Flynn also promised that Martel would contribute one-half of her expenses incurred in obtaining her MBA, while she would be responsible for the other one-half. She immediately accepted the offer, thereby becoming a permanent employee. On March 1, one week later, she attended her first meeting as a member of the President’s Council. In the fall of 1983, she enrolled at Northwestern University to begin an MBA program. Davies’ complaint further alleged that she continued working, assuming additional duties and responsibilities as a “policy maker for MARTEL.” On October 12, 1984, Martel terminated her employment without cause.

In response to Davies’ complaint, Martel filed a motion to dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, pars. 2-615, 2-619). On April 20, 1988, the trial court granted Martel’s motions, finding that Davies failed to demonstrate consideration for Martel’s oral promise of permanent employment and that her claim was also barred by the Statute of Frauds (Ill. Rev. Stat. 1987, ch. 59, par. 1). A subsequent motion by Davies to amend her complaint was denied by the court, and this appeal followed.

To be enforceable, an oral contract for permanent employment, like any other contract, must be supported by sufficient consideration. (Ladesic v. Servomation Corp. (1986), 140 Ill. App. 3d 489.) It is also well settled that any act or promise which is of benefit to one party or a disadvantage to the other is a sufficient consideration to support a contract. Adams v. Lockformer Co. (1988), 167 Ill. App. 3d 93.

In the instant case, Martel contends that Davies suffered no disadvantage or detriment and therefore the trial court correctly ruled that her complaint was insufficient in law because it failed to allege sufficient consideration. Specifically, Martel contends that Davies’ pursuit of an MBA degree was in fact a benefit to her, making her more marketable, and not a disadvantage or detriment. While this fact may be true, it is not necessarily legally so. The words “benefit” and “detriment” in contract cases involving consideration have technical meanings. “Detriment” as used in determining the sufficiency of consideration to support a contract means “ ‘legal detriment as distinguished from detriment in fact. It means giving up something which immediately prior thereto the promisee was privileged to retain, or doing or refraining from doing something which he was then privileged not to do, or not to refrain from doing.’ ” (Hamilton Bancshares, Inc. v. Leroy (1985), 131 Ill. App. 3d 907, 913, quoting 1 Williston, Contracts §102A, at 380-82 (3d ed. 1957).) For example, a promise to give up smoking may be a benefit to the promisee’s health, but a promise to give up smoking is also a legal detriment and sufficient consideration to support a contract. Hamilton Bancshares, Inc. v. Leroy (1985), 131 Ill. App. 3d 907.

In the present case, Davies did not have to obtain an MBA degree and expend her own time and money in doing so in order to continue as an at-will employee of Martel’s; she could have continued to perform oil analyses and mapping work rather than enter the ivied walls of Northwestern. Nor does it appear that Davies was obligated to serve as a member on Martel’s President’s Council and to assume additional duties and responsibilities. In other words, Davies was privileged to refrain from serving on Martel’s council and from pursuing an MBA degree. By giving up her privilege to refrain from so acting, Davies clearly could be said to have suffered a legal detriment, which would constitute sufficient consideration to support the alleged oral contract between the parties. Based on the foregoing, and in light of the fact that a motion to dismiss admits all facts well pleaded together with all reasonable inferences which can be drawn from those facts (Horwath v. Parker (1979), 72 Ill. App. 3d 128), we find that Davies’ amended complaint sufficiently alleged consideration in support of the contract at issue.

We also find, contrary to Martel’s argument, that the trial court erroneously applied the Statute of Frauds to bar Davies’ claim of breach of contract. The Statute of Frauds requires that any contract that cannot be performed within one year must be in writing. (Ill. Rev. Stat. 1987, ch. 59, par. 1.) Martel contends that the alleged oral contract of permanent employment was incapable of being performed within one year, based on the fact that it was “contingent on plaintiff obtaining an MBA degree, that an MBA program at Northwestern University involves two years of study for full-time students and five years for part-time students, and that Davies did not even enroll in the program until the fall of 1983,” more than six months after the oral contract.

Based on the foregoing, the oral contract would be unenforceable under the Statute of Frauds if in fact it was pleaded by Davies in her amended complaint that her permanent employment was contingent upon her obtaining an MBA degree. However, that is not the oral agreement pleaded by Davies. Rather, Davies pleaded that she would be immediately designated a permanent employee of Martel and also appointed a member of Martel’s President’s Council if she accepted the terms and conditions of the offer “then and there” (made a commitment to pursue an MBA degree and serve as a member of the President’s Council), which she did do. On the other hand, the obvious inferences of the complaint unrebutted by anything in the record are that Davies’ appointment as a vice-president of the company was predicated on her attaining the MBA, not the permanent employment promise. The fact that she could not complete the MBA program within one year might be a Statute of Frauds defense to that portion of the oral contract whereby Martel promised to make her a vice-president and pay her $40,000 annually. It is not a defense, however, to the promise to make her a permanent Martel employee, which she accepted immediately.

Moreover, we further observe that the Statute of Frauds has no application where there has been part performance by one of the contracting parties in reliance upon the agreement. (Culbertson v. Carruthers (1978), 66 Ill. App. 3d 47.) Here, whether in fact Davies relied on Flynn’s alleged oral promise and enrolled in the MBA program based on that promise, as she alleges in her amended complaint, is a question of fact that could not be decided on a motion to dismiss her amended complaint.

In light of the foregoing, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

PINCHAM and COCCIA, JJ., concur.


author: JUSTICE PINGHAM JUSTICE COCCIA,

text:
    ACCURATE COMMUNICATIONS, INC., d/b/a B. & J. Communications, Inc., Plaintiff, v. TRANSCONTINENTAL FREIGHT SYSTEMS, INC., Defendant and Third-Party Plaintiff-Appellant (Illinois Bell Telephone Company, Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 1—88—2765
    Opinion filed September 29, 1989.

      COCCIA, J., dissenting.
    B. John Mix, Jr., of Chicago, for appellant.
    L. Bow Pritchett and Patrick J. Kilroy, Jr., both of Chicago, for appellee.
   JUSTICE PINGHAM

delivered the opinion of the court:

This is an action brought by plaintiff, Accurate Communications Systems, Inc., to recover monies due and owing from Transcontinental Freight Systems, defendant, for the installation of a telephone system at Transcontinental Freight Systems’ place of business. Transcontinental Freight Systems filed a third-party complaint against Illinois Bell Telephone (Illinois Bell), in which Transcontinental Freight Systems sought indemnification from any money judgment found due to Accurate Communications Systems and damages for misrepresentation by Illinois Bell. Illinois Bell filed a motion to dismiss Transcontinental Freight Systems’ third-party complaint pursuant to section 2— 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615). Allowing Transcontinental Freight Systems to bring a separate lawsuit against Illinois Bell, the trial court dismissed Transcontinental Freight Systems’ third-party complaint for failure to meet the joinder requirements of section 2 — 406(b) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 406(b)), which provides that “[wjithin the time for filing his or her answer ***, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of the plaintiff’s claim against him or her.”

Transcontinental Freight Systems appeals. The sole issue presented for review is whether the trial court erred in dismissing Transcontinental Freight Systems’ third-party complaint. The facts are as follows.

Defendant and third-party plaintiff, Transcontinental Freight Systems, entered into a contract with plaintiff, Accurate Communications, Inc., for the purchase and installation of a telephone system at Transcontinental Freight Systems’ place of business. The new telephone system was installed, but did not function properly. Illinois Bell admitted that the system would not function properly because of its incompatibility with the telephone system located in its central office.

Transcontinental Freight System made partial payment on the installation of the telephone system in advance, but refused to pay the $3,425.43 balance due under the agreement. Accurate Communications, Inc., then filed suit on the contract alleging that it had not been paid even though it installed the telephones and related wiring in a workmanlike manner and that Transcontinental Freight Systems did not pay for subsequent additional work and repairs for water damage after installation.

Denying Accurate Communications, Inc.’s allegations, Transcontinental Freight Systems then filed a third-party complaint against Illinois Bell seeking indemnity and damages. Illinois Bell filed a motion to dismiss pursuant to section 2 — 615 of the Illinois Code of Civil Procedure. In its motion, Illinois Bell argued that Transcontinental Freight Systems’ third-party complaint failed to set forth or plead facts sufficient to support a cause of action. The trial court held that the cause of action was not properly brought as a third-party action pursuant to section 2 — 406 of the Illinois Code of Civil Procedure and dismissed the third-party complaint.

Section 2 — 406(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 406(a)) provides:

“If a complete determination of a controversy cannot be had without the presence of other parties, the court may direct them to be brought in.”

Regarding the joinder of parties by a defendant, section 2 — 406(b) provides:

“Within the time for filing his or her answer, or thereafter by leave of court, a defendant may by third-party complaint bring in as a defendant a person not a party to the action who is or may be liable to him or her for all or part of plaintiff’s claim against him or her." (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 2 — 406(b).

The purpose of a third-party action is to permit the determination of the rights and liabilities of all parties upon the same evidence before a single tribunal. (Bio-Scientific Clinical Laboratory, Inc. v. Todd (1986), 149 Ill. App. 3d 845, 501 N.E.2d 192; Murczek v. Powers Label Co. (1975), 31 Ill. App. 3d 939, 943-44, 335 N.E.2d 172.) In the notes following section 2 — 406 (Ill. Ann. Stat., ch. 110, par. 2— 406, Historical and Practice Notes, at 415 (Smith-Hurd 1983)), it is stated that the general purpose of this section is to “avoid two actions which should be tried together to save the time and cost of reduplication of evidence, to obtain consistent .results from identical or similar evidence, and to do away with the serious handicap to a defendant of a time difference between a judgment against him, and a judgment in his favor against the third-party defendant.”

In the case at bar, a complete determination of the controversies would be better achieved by the presentation by all parties of all of the facts of the installation of the new telephone system. Otherwise, Transcontinental Freight Systems would be required to defend against Accurate Communications’ contention that the installation was properly done in one suit, and in a second suit, Transcontinental Freight Systems would be required to prove that installation was proper and that the fault for the failure to the telephone system rested upon Illinois Bell. Clearly, having all the parties together in one suit could resolve all the questions involved in the installation of the telephone system that did not function. Therefore, we conclude that on the facts of this case, Transcontinental Freight Systems’ third-party complaint constituted a proper third-party action.

For the reasons stated, the order of the trial court dismissing Transcontinental Freight Systems’ third-party complaint is reversed and the cause is remanded to the trial court on the issues presented by all three litigants, Accurate Communications, Inc., Transcontinental Freight Systems, Inc., and Illinois Bell Telephone Co.

Reversed and remanded.

LORENZ, J., concurs.

JUSTICE COCCIA,

dissenting:

I adopt the factual recitation set out by the majority.

In my view, the issues in this case have been dealt with and resolved in our earlier case of Ketcham v. Consolidated Rail Corp. (1986), 146 Ill. App. 3d 196, 496 N.E.2d 1104, and it is controlling upon us now. The facts in Ketcham revealed that a freight train derailment occurred in Porter, Indiana. One of the derailed gondola cars, operated by Conrail, had been loaded and secured with rolls of steel cylinders by Republic. Two Conrail employees, plaintiff Howard Ketcham and Harvey Chandonia, were injured as a result of the derailment. Conrail sustained damages to its train and other equipment.

Conrail filed an amended three-count, third-party complaint against Republic. Count I sought from Republic indemnification for any damages Conrail might be obligated to pay Ketcham. Count II sought damages to Conrail’s property. Count III sought indemnification for $5,000, which Conrail paid Chandonia in settlement of his claim against it filed in a separate FELA action. Republic then filed a motion to dismiss counts II and III of Conrail’s amended third-party complaint, asserting that those counts seeking recovery for Conrail’s property damage and indemnification for Chandonia’s settlement were independent claims and, therefore, improperly brought as third-party claims under section 2 — 406(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — -406(b)). During the pendency of Republic’s motion to dismiss Conrail’s amended third-party complaint, Conrail and Republic settled Ketcham’s claim. Accordingly, count I of Conrail’s amended third-party complaint, seeking indemnification from Republic for any damages it might be obligated to pay Ketcham, was voluntarily dismissed. Thereafter the trial court dismissed counts II and III of Conrail’s amended third-party complaint, based on its determination that section 2 — 406(b) of the Code did not permit the filing of claims for Conrail’s property damages and indemnification for monies Conrail paid in settlement of Chandonia’s claim. Conrail then filed a motion for reconsideration of this dismissal order. The circuit court denied the motion and the appeal followed.

We held on appeal:

“Only those claims which a third-party defendant is or may be liable to the original defendant for all or part of the plaintiff’s claims against him are proper under third-party proceedings ***.” Ketcham, 146 Ill. App. 3d at 201, 496 N.E.2d at 1107.

We relied upon the reasoning of Filipponio v. Bailitz (1978), 73 Ill. App. 3d 389, 392, 392 N.E.2d 23, 26, reiterated in Scott & Fetzer Co. v. Montgomery Ward & Co. (1984), 129 Ill. App. 3d 1011, 473 N.E.2d 421, aff’d (1986), 112 Ill. 2d 378, 493 N.E.2d 1022:

“Although third-party practice is properly used to reduce litigation where the third-party claim arises out of the same basic facts which determine the plaintiff’s claim against the defendant, it can not [sic] be used to maintain an entirely separate and independent claim against a third-party, even if it arises out of the same general set of facts as the main claim.” Ketcham, 146 Ill. App. 3d at 201-02, 496 N.E.2d at 1108.

In Ketcham, Conrail sought recovery for its own losses — its property damage and money paid to Chandonia. Clearly, we concluded, Republic’s liability to Conrail for these claims was not dependent upon the outcome of Conrail’s liability to Ketcham. Ketcham, 146 Ill. App. 3d at 202, 496 N.E.2d at 1108.

It is my view that the claim for damages against Illinois Bell Telephone Company in the instant case is a separate, independent claim of the defendant and third-party plaintiff, Transcontinental Freight Systems, Inc., seeking recovery against Bell for its own damages. Consequently, the facts alleged in defendant’s third-party complaint do not set forth a sufficient basis upon which to sustain a third-party action, and the trial court properly dismissed it.

Accordingly, I would affirm the trial court’s ruling that Transcontinental Freight’s claim was not properly brought as a third-party action pursuant to section 2 — 406(b) of the Illinois Code of Civil Procedure.