text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD BERKE, Defendant-Appellant.
    First District (3rd Division)
    No. 1—90—1849
    Opinion filed September 30, 1992.
    Craig D. Tobin, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Gael M. O’Brien, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

Defendant, Richard Berke, was indicted on 184 counts of felony theft from the City of Chicago (City) from 1980 to 1985, totalling approximately $100,000, under two criminal statutes: theft by deception (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(2)) and theft by unauthorized control (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)(1)). Following a bench trial, defendant was acquitted of all the counts of theft by deception, but was convicted of 76 counts of theft by unauthorized control. He was sentenced to 30 months’ probation with the condition that he perform eight hours of community service per week. We affirm.

The indictments resulted from defendant’s dentistry practice, which was mostly City employees, and his payment claims for future dental work to be performed, but never completed. On appeal, defendant asserts that this is a civil matter and no crime is involved. The State maintains that this is a criminal matter.

The issue in this case is whether a dentist, who fails to complete dental work for which he submits specific claims and receives payment, is liable for theft and is not merely a contractual dispute.

Dr. Berke, a licensed dentist, performed dental work under the City employee dental plan. When the City instituted its employee dental plan in 1980, Blue Cross/Blue Shield administered the self-insured plan. Two years later, Bankers’ Life and Casualty Company began administering the plan with Blue Cross/Blue Shield. Under the terms of the plan, either the dentist or the patient could submit a dental claim on insurance claim forms. The insurance company would review the claim, pay out the appropriate amount of money, and be reimbursed by the City. The employee had the option of paying his dentist and seeking reimbursement or having his dentist seek payment directly from the plan. As a result of his dental claims, defendant received $208,000 in 1982, $891,000 in 1983, and $309,000 in 1984 from the City.

In 1984, defendant testified before the city council concerning Bankers’ failure to pay him. On January 14, 1985, the City’s corporation counsel’s office asked the Chicago police department financial crimes unit to investigate defendant for suspected fraud. As part of that investigation, police officers spoke with City employees who were defendant’s patients to determine if the work defendant claimed to have provided had actually been done. Then, in November 1985, defendant filed a lawsuit against Bankers’, the City, and Dr. Randall.

Several patients testified, either through direct testimony or by stipulation, about the treatment that defendant provided for themselves and their families. They explained work not completed by defendant and how other dentists finished some of that work. The patients’ charts, claim forms, and payments to defendant were entered into evidence by stipulation.

The State presented several expert witnesses. Dr. Steven Randall, a dental expert, reviewed several of defendant’s claims that were part of the indictment. It was stipulated that Dr. Randall began his review after defendant sued him and the City for nonpayment of 1984 and subsequent claims. It was also stipulated that the review began after other dentists filed claims for purported work done and paid to defendant. Dr. Randall testified that defendant submitted several claim forms for which the dental work claimed on specific dates had not been done.

Dr. Randall also explained that it was reasonably common for dentists to bill for treatment in progress when it reaches an irreversible state of completion. Most insurance companies would not accept a claim before that point, he stated, and anticipated treatment would generally not be billable.

Dr. Robert Sommerfeld, a dentistry expert, examined several of defendant’s patients to determine if the work for which defendant claimed payment had actually been provided. Dr. Sommerfeld compared defendant’s payment claim forms with the work done on those patients. Wherever gold onlays were not installed, Dr. Sommerfeld concluded that the work had not been completed or was finished by other dentists.

Edward Radwinski, a Bankers’ group claims supervisor, testified that Bankers’ made payments when all services had been completed. Under no circumstances, he stated, would Bankers’ authorize payment before completion.

The claim forms for dental reimbursement from Bankers’ contained the certification:

“I hereby certify that the procedures as indicated by date have been completed.”

Defendant testified that 90% of his practice from 1980 through 1984 was City employees. Defendant and his staff saw 65 to 75 patients a day and treated thousands of patients between 1980 and 1984. The office was open six days a week from 6:30 a.m. to 7:30 p.m. and on Saturdays from 6:30 a.m. to 4 or 5 p.m.

In his reconstructive dentistry practice, defendant explained, patients were examined, X-rayed, and a long-term treatment plan was established. The treatment plan would be charted and recorded on the insurance form. All patients were X-rayed and the X rays accompanied the claim form so that the insurance company could evaluate the work. Defendant testified that he listed on the claim form all the work that he intended to do. Often, the work was not complete at the time the form was submitted. Defendant maintained that he intended to finish all the work for which he submitted claim forms.

Defendant stated that his laboratory fees were between $250,000 and $600,000 a year, which he was required to pay. The majority of defendant’s products installed in patients’ mouths were made in the laboratory. Instead of using silver to fill patients’ teeth, defendant always used gold onlays.

Defendant testified that he received payments within three to four weeks when Bankers’ initially became involved in the dental plan. In 1983, however, the turnaround time slowed to two to three months and then, six to seven months. Defendant continually complained, advising Bankers’ that the work claimed had not been finished and that he must be funded to be able to complete the work. At first, Bankers’ explained that their late payments were a result of computer problems. Later, they said payments were not made because not all the work claimed on the forms was completed. Defendant contends that he never concealed the fact that the work was not completed.

Defendant then contacted the city department of insurance, informing them that payments from Bankers’ were very slow, that his work on patients was not completed, and that it could not be completed if he did not get payments within a reasonable amount of time. Kay Berman of the City’s health insurance benefit office acknowledged receiving defendant’s complaints concerning Bankers’ failure to pay him. When defendant came to her office with a suitcase full of unpaid bills, he readily acknowledged that the work on the patients was not finished. Berman presented a letter from defendant that explained the discrepancies in the payment practices of Bankers’ and Blue Cross/Blue Shield and his need to have payment to complete his work.

A meeting was held between defendant and Leonard Utecht, the City’s former assistant comptroller of insurance, Ira Edelson, the City’s acting director of revenue, and 10 to 12 other City employees. The purpose of the meeting was to discuss the City’s position on the appropriate time for defendant to bill the City for future services. During the meeting, defendant explained that his practice consisted mostly of City employees, that he ran his practice like an HMO, that some of the work was not finished, that he would have to be funded on a regular basis to complete the work, that he was having problems with Bankers’, and that his practice was suffering. Defendant testified that the City officials told him there was no reason why he should not be paid and compensation would be forthcoming.

Defendant further testified that he considered the claim form as a claim for treatment plans, long-range goals to be completed. He did not think that submitting the claims for work not done was a problem until late 1983. He admitted that he submitted claims before any work was begun and that he was paid for work he did not do.

In an effort to get paid, defendant had three or four meetings with William Heckler from Bankers’ in 1984. Heckler testified that the City could authorize prepayment to dentists prior to the completion of all the work.

Dr. John Thorpe, the dental director of Blue Cross/Blue Shield, testified that there was no uniformity as to when dentists would present their claims. There were four theories that dentists had for when they could submit their claims: (1) when the patient agreed to the contract; (2) when an irreversible procedure began; (3) if a laboratory bill was incurred; or (4) when impressions were taken for work to be performed in the laboratory. Although many insurance companies had a policy of paying claims only after the work was completed, the professional community does not generally agree with those standards. Dr. Thorpe did not know of uniformity within the insurance industry concerning the appropriate time for the submission of claims.

The Blue Cross/Blue Shield claim form contained the dentist’s certification:

“I hereby certify that the services listed below have been or will be provided by me.”

Although it was their policy for work to be completed before submitting a claim for payment, the form included a separate box to check “estimate” if work was contemplated, and a separate box to enter a date when service was completed. Defendant checked the box for actual charges for completed work for each count he was found guilty by the trial court.

Dr. Thorpe stated that onlays are the best type of restoration available and that gold is the best material to use in an onlay. Dr. Thorpe testified that a portion of the dental research community thinks that the use of other materials could be deleterious to a patient’s health.

Dr. Thorpe further stated that defendant was recognized as a hard-working, skillful, hard-practicing dentist, who was a believer in using gold onlays. In his capacity as dental director, Dr. Thorpe visited defendant’s office in 1977. He found that defendant’s standards were in accordance with generally accepted standards and that his offices were set up to deliver a high volume of services.

Dr. Peter Lio, an endodentist and Loyola University professor, and Dr. Pearlman, an oral surgeon, both testified that they reviewed the treatment forms that were submitted by defendant with the claims. Both dentists concluded that all the claims were medically necessary, justifiable, and of the highest medical care.

Emanuel Katten, the trustee for defendant’s bankruptcy case, testified that defendant filed for bankruptcy in 1985. At that time, he had $19,400 in outstanding dental claims pending with the City. Katten did an extensive review of defendant’s tax returns, his dental and billing practices, client records, and the payment practices of various insurance companies. While supervising defendant’s practice, Katten went to defendant’s office at least twice a week and was involved for approximately 18 months. Pursuant to a five-month audit from January 1, 1985, to May 31, 1985, Katten found that defendant netted over $132,000 from his business during that time. Katten did not know how that money was used. He determined that not all the work in the claims had been completed.

Leonard Utecht testified that he approved payment to defendant by Blue Cross/Blue Shield with full knowledge that the work on the invoices had not been completed. Utecht stated that his predecessor had done likewise. Defendant had told Utecht that he billed the City after he began the work when it was 30% to 35% completed so that he would have payment when the work was 65% to 75% completed. Their meetings did not involve all claims nor did it include any Bankers’ claims. Utecht also testified that it was his understanding that, when defendant included a date service was performed on the Blue Cross/Blue Shield claim forms, the service was completed. Wlien the date was left blank, the service was not completed.

Michael Moss, an attorney and certified public accountant, testified that he reviewed defendant’s financial status in 1983. At that time, defendant was forced to start borrowing money because he was not being paid by the City. From 1982 to 1984, defendant’s receivables began to increase, but those were the claims pending against the City. Defendant’s financial situation continued to decline until mid-1984, when he sought protection of the bankruptcy court.

Several witnesses attested to defendant’s good character and reputation in the dental profession. Dr. Scott Shore, a consultant to the Illinois and Wisconsin Boards of Dental Examiners, Dr. Peter Lio, a Loyola University professor of dental medicine, and Dr. Henry Crossetti, the Northwestern Dental School dean, gave their opinions of defendant’s honesty and professionalism. Also testifying to defendant’s character and reputation were retired Judge Joseph Wosik, retired judge and former State Senator Robert J. Egan, Alderman Victor Vrdolyak, Chicago Police Department Commanders Charles B. Roberts and James Mauer, and Chicago police officers Clarence Schuey, Donald Eichler, Robert Lee Hinman, Dennis Isola, Alfred Nagote, and Detective James Hennelly. Chicago Fire Department Battalion Chief William Kugelman testified that defendant had volunteered for a program donating his dental services to the family members of fallen firemen.

In the State’s rebuttal case, Walter Knorr, city comptroller and chief financial officer, testified that claims were not to be paid until the work was completed. Although Utecht was on the comptroller’s payroll, Knorr stated, he had no authority to authorize exceptions to the dental plan, although the City and Knorr’s committee could make such exceptions.

The trial court acquitted defendant of all the charges of theft by deception. Although the trial court believed that there was some deception involved, it concluded that defendant was not guilty of theft by deception since he readily admitted to everyone that the work for which he billed was not completed. The trial court also acquitted defendant on those counts where the evidence established that the work had been completed by defendant. Defendant was convicted of 76 counts of theft by knowingly exerting unauthorized control over the City’s money. The court decided that defendant never intended to finish the work that had been stated in the claim form and that his intent was to use the money for his own benefit.

The day before defendant’s sentencing, defendant and the City settled their civil case. Defendant agreed to pay the City $250,000, $100,000 of which related to the claims involved in the indictment. After denying defendant’s post-trial motions, the trial court sentenced him to 30 months’ probation with the condition that he perform eight hours of community service per week.

The issue is whether defendant’s actions constituted theft as defined in the statute or whether the relationship was a debtor-creditor relationship for which no criminal conviction can stand. Defendant asserts that his debtor-creditor relationship with the City meant that any payment owed the City was a contractual dispute, not theft. (People v. Buffalo Confectionery Co. (1980), 78 Ill. 2d 447, 459.) Because of that relationship, defendant argues, he was not guilty of theft. (Buffalo Confectionery Co., 78 Ill. 2d at 459.) However, all the cases defendant relies on to support his argument are factually distinguishable. See Buffalo Confectionery Co., 78 Ill. 2d 447; People v. Becker (1953), 414 Ill. 291; People v. Streich (1935), 361 Ill. 490; People v. Parker (1934), 355 Ill. 258; People v. Robinson (1933), 352 Ill. 596; Mulford v. People (1891), 139 Ill. 586; Peo ple v. Davis (1989), 189 Ill. App. 3d 815; People v. Rolston (1983), 113 Ill. App. 3d 727; People v. Jensen (1982), 103 Ill. App. 3d 451.

We reject defendant’s argument that this case is a civil matter and no crime is involved. Defendant admitted that he filed claims for dental work before he began the work even though some of the claim forms indicated that the work had been completed. The Bankers’ claim form contained the certification:

“I hereby certify that the procedures as indicated by date have been completed.”

Not only did defendant prematurely bill for future dental work, but he did not perform that work even years after receiving payment.

In Illinois, a person commits theft when he knowingly:

“(a) Obtains or exerts unauthorized control over property of the owner; [and]
(1) Intends to deprive the owner permanently of the use or benefit of the property.” Ill. Rev. Stat. 1981, ch. 38, par. 16 — 1(a)(1).

We conclude that the State proved beyond a reasonable doubt that defendant exerted unauthorized control over the City’s money and intended to permanently deprive the City of that money. Four to nine years after defendant claimed in writing that the dental work had been performed, the work still remained to be performed.

Although defendant and City had a debtor-creditor relationship, the criminal prosecution for theft was not instituted to collect a debt. (Buffalo Confectionery Co., 78 Ill. 2d at 462.) Therefore, the conviction is not barred because there was also a civil dispute over defendant’s dentistry practices.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

GREIMAN, P.J., and TULLY, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE GREIMAN

license: Public Domain

text:
    DEMME (DAVID) BEKELE, a Minor, by Hanna Hailu, his Mother and Next Friend, Plaintiff-Appellant, v. RONALD NGO, Defendant-Appellee.
    First District (3rd Division)
    No. 1—90—2978
    Opinion filed September 30, 1992.
    Sheldon Hodes, of Chicago (Leonard D. Litwin, of counsel), for appellant.
    No brief filed for appellee.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

This negligence action arose out of a traffic accident between the operators of a bicycle and a car. Plaintiff, Demme (David) Bekele, a minor, by his mother and next friend, Hanna Hailu, appeals from the judgment entered in favor of defendant, Ronald Ngo, following a bench trial and from the trial court’s denial of his motion for a new trial.

Defendant has not filed an appellee brief, but we are authorized to decide this case under First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

For the reasons which follow, we affirm.

The accident occurred at the intersection of an alley and a sidewalk in a residential Chicago neighborhood. The nine-year-old plaintiff was riding a bicycle on a sidewalk and defendant was driving a car down the alley.

Plaintiff testified that while he was riding his bicycle on the sidewalk, he saw defendant in the alley, stopped his bicycle about one-quarter of the way into the alley and attempted to back up, but that defendant ran over his bicycle with the car’s bumper and right front tire.

Defendant testified that as he was emerging from the alley, he saw plaintiff coming down the sidewalk and stopped his car but that plaintiff rode his bike into the side of his car on the right front fender in front of the wheel. Defendant’s son’s testimony corroborated defendant’s statement that the car was damaged on the right front fender in front of the wheel.

Clearly, the parties’ versions of the events vary. The trier of fact, not the reviewing court, must resolve conflicts in the evidence and questions of fact.

Plaintiff contends that the trial court’s decision is erroneous because defendant violated section 11 — 1205 of the Hlinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 1205) and that such violation is prima facie evidence of negligence under the holding in Wallace v. Weinrich (1980), 87 Ill. App. 3d 868, 409 N.E.2d 336.

Section 11 — 1205 provides as follows:

“The driver of a vehicle emerging from an alley, building, private road or driveway within an urban area shall stop such vehicle immediately prior to driving into the sidewalk area extending across such alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon, and shall yield the right-of-way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicles approaching on such roadway.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 951/2, par. 11 — 1205.

Plaintiff also relies on section 27 — 223 of the Municipal Code of Chicago, which provides:

“The driver of a vehicle emerging from an alley, driveway, or building shall stop such vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across an alleyway, yielding the right-of-way to any pedestrian as may be necessary to avoid collision, and upon entering the roadway shall yield the right-of-way to all vehicles approaching on said roadway.” (Emphasis added.) Chicago Municipal Code §27 — 223 (1987), now Chicago Municipal Code §9 — 24—060 (1990).

Both the Vehicle Code and the Municipal Code define the term “pedestrian” as “[a]ny person afoot.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 1 — 158; Chicago Municipal Code §27 — 200 (1987), now Chicago Municipal Code §9 — 4—010 (1990).) A “bicycle” is defined as a “device propelled by human power upon which any person may ride.” (Ill. Rev. Stat. 1987, ch. 95V2, par. 1 — 106; Chicago Municipal Code §27— 200 (1987), now Chicago Municipal Code §9 — 4—010 (1990).) Given these statutory definitions, neither section 11 — 1205 of the Vehicle Code nor section 27 — 223 of the Chicago Municipal Code is appropriate in this case since plaintiff was not a pedestrian within the meaning of these statutes.

Plaintiff’s status as a bicyclist also distinguishes him from the two-year-old pedestrian involved in the Wallace case relied on by plaintiff. (Wallace, 87 Ill. App. 3d 868, 409 N.E.2d 336.) In Wallace, the two-year-old plaintiff was a pedestrian struck by a car backing out a driveway and the court held that a violation of section 11 — 1205 of the Illinois Vehicle Code was prima facie evidence of negligence. However, we find that the present case does not fall within the parameters of section 11 — 1205.

This is not to say that an automobile driver emerging from an alley would not be required to yield to a minor operating a bicycle, but merely that the minor does not come within the ambit of the statutes and defendant’s liability would be predicated upon common law negligence.

Although plaintiff argues that the trial court’s reasoning was flawed, a reviewing court generally considers the propriety of the decision, not the reasoning. Much as we might wish, we cannot disturb the judgment of the court following a bench trial where it has resolved the conflicting evidence unless that judgment is against the manifest weight of the evidence and an opposite conclusion is clearly evident. (Schackleton v. Federal Signal Corp. (1989), 196 Ill. App. 3d 437, 444-45, 554 N.E.2d 244; In re Estate of Thompson (1989), 186 Ill. App. 3d 874, 880, 542 N.E.2d 949.) We believe that the record does not mandate an opposite conclusion.

For all the foregoing reasons, we affirm the trial court’s judgment.

Judgment affirmed.

TULLY and CERDA, JJ., concur.


author: JUSTICE CERDA

text:
    PREMIER ELECTRICAL CONSTRUCTION COMPANY, Plaintiff, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, as Trustee, et al., Defendants (Federal Insurance Company, Counterplaintiff-Appellee; Morse Diesel, Inc., Counterdefendant-Appellant).
    First District (3rd Division)
    No. 1—90—3287
    Opinion filed September 30, 1992.
    Rehearing denied November 6, 1992.
    Constantine J. Gekas and Krista L. Peterson, both of Harvitt & Gekas, Ltd., of Chicago, and Peter M. D’Ambrosio, of Smith, Packter, McWhorter & D’Ambrosio, of Vienna, Virginia, for appellant.
    Douglas M. Reimer, John T. Schriver, and Michael D. Phillips, all of McDermott, Will & Emery, of Chicago, for appellee.
   JUSTICE CERDA

delivered the opinion of the court:

Counterplaintiff Federal Insurance Company (Federal) counterclaimed against counterdefendant Morse/Diesel, Inc. (Morse/Diesel), for indemnification of its attorney fees and costs incurred when defending against allegations raised in count V of Premier Electrical Construction Company’s (Premier’s) complaint. On appeal, Morse/Diesel asserts that the trial court erred when it found that the indemnification agreement terms entitled Federal to indemnification. We affirm the trial court’s summary judgment, which requires Morse/Diesel to indemnify Federal for its defense against allegations raised in count V.

On July 27, 1977, Morse/Diesel, as principal, and Federal, as surety, entered into a “General Agreement of Indemnity” (Indemnity Agreement). In its pertinent part, the Indemnity Agreement states:

“[I]n consideration of [Federal] executing said bond or bonds, and the undersigned Indemnitor [Morse/Diesel] hereby requests the execution thereof, *** [Morse/Diesel] being benefited by the execution and delivery of said bond or bonds, hereby agrees that it will at all times indemnify and save harmless [Federal] from and against any and all loss, damage or expense including court costs and attorneys’ fees which it shall at any time incur by reason of its execution and/or delivery of said bond or bonds or its payment of any claim or liability thereunder.”

On December 17, 1980, Morse/Diesel contracted to be general contractor for remodeling and renovation at 666 North Lake Shore Drive in Chicago (Project). A month later, on January 13, 1981, Morse/Diesel subcontracted with Premier for electrical construction at the Project. On February 6, 1981, Federal issued a “Labor and Material Payment Bond” (Bond) with respect to the Project with Federal as surety, Morse/Diesel as principal, and 666 Associates and others as obligees.

After Morse/Diesel failed to pay Premier for all the work Premier finished, Premier filed suit against Morse/Diesel and Federal in January 1984. Count III of the complaint sought $533,241.50 against Morse/Diesel and Federal on the payment bond.

When Federal was served with Premier’s lawsuit, Federal asked Morse/Diesel to defend and hold Federal harmless under Morse/Diesel’s obligations pursuant to the Indemnity Agreement. Morse/Diesel agreed to defend Federal on count III. Thus, from February 15, 1984, until January 26, 1989, Morse/Diesel’s attorneys represented Federal on count III. On November 23, 1988, a partial summary judgment on count III was entered in favor of Premier and against Federal and Morse/Diesel. Indemnification with regard to count III is not an issue in this appeal.

The trial court then granted Premier leave to amend its complaint to add count V, alleging that Federal had violated section 154.6 of the Illinois Insurance Code (Ill. Rev. Stat. 1989, ch. 73, par. 766.6) and in bad faith failed to investigate the Bond claim Premier had submitted to Federal. Count V claimed that after serving its notice of mechanic’s lien on May 13, 1983, and its claim on bond on July 28, 1983, Federal did not acknowledge notice until six months later. Premier claimed that Federal had a common-law obligation to fairly deal in good faith with Premier, and failed to adopt standards for prompt investigations of claims pursuant to section 154.6 of the Illinois Insurance Code. Ill. Rev. Stat. 1987, ch. 73, par. 766.6.

Premier further claimed that Federal failed to come to a good-faith determination as to the validity of Premier’s claims for over five years while for the same period denying Premier payment.

Upon receipt of the motion to add count V, Morse/Diesel notified Federal that it would not indemnify Federal because it did not consider count V to be a claim arising under the Bond. Morse/Diesel advised Federal to retain separate counsel for its defense against count V. Shortly after the notice, Federal retained its own counsel, who filed a counterclaim against Morse/Diesel seeking indemnification by Morse/Diesel for any liability, attorney fees, and costs arising from count V.

On September 4, 1990, the trial court granted Federal's motion for summary judgment on count V. The trial court then heard oral argument on Federal’s counterclaim against Morse/Diesel, which was based on stipulated facts. The trial court ruled that the Indemnity Agreement obligated Morse/Diesel to indemnify Federal for Federal’s expense in defending against Premier’s count V, and entered judgment for Federal in the amount of $100,000. In his ruling, the trial judge stated that the language in the Indemnity Agreement was ambiguous, but logic alone indicated that Morse/Diesel should pay attorney fees and court costs. Morse/Diesel then filed this appeal.

Morse/Diesel’s argument on appeal characterizes Premier’s count V as an action based on Federal’s negligence and bad-faith dealing. Morse/Diesel asserts that strict construction of the Indemnity Agreement’s language clearly and expressly limits indemnification to damages incurred by reason of Federal’s execution and delivery of the Bond, and should not be extended to indemnify Federal’s own negligence and bad faith.

Interpreting the Indemnity Agreement’s language, Morse/Diesel contends that holding it liable for the costs Federal incurred in defending against count V would add a new provision to the Indemnity Agreement. Morse/Diesel maintains that the Indemnity Agreement’s language “by reason of its execution and/or delivery of the bond” does not include the allegations of count V because it is only tangentially related to Federal’s execution or delivery of the Bond.

Federal argues that Premier’s entire claim was improper because the Illinois Insurance Code does not provide for a private right of action for improper claims practices in violation of .section 154.6 of the Insurance Code. In addition, Federal argues that it issued the bond in reliance on Morse/Diesel’s obligations under the Indemnity Agreement, whose language clearly and unambiguously provides for indemnity according to their terms, including the reimbursement of attorney fees.

Ordinarily, a principal is not liable for a surety’s own negligence. (Ill. Rev. Stat. 1979, ch. 29, par. 63.) In this case, however, the principal, Morse/Diesel, was involved in the delay alleged in count V. In response to Premier’s filing of count III, Morse/Diesel agreed to defend Federal against Premier’s allegations. From 1984 to 1989, when Morse/Diesel informed Federal that it would not defend it against Premier’s allegations in count V, Morse/Diesel’s attorneys represented Federal. Since Morse/Diesel was in charge of Federal’s defense on count III, it was involved in the long delay of the payment on the claim. Therefore, we reject Morse/Diesel’s argument that it is not required to indemnify Federal for its attorney fees and costs in defending against count V of Premier’s complaint. As a result, the trial court did not abuse its discretion in granting summary judgment in favor of Federal.

In addition, Federal is entitled to attorney fees for defending this appeal. The Indemnity Agreement’s language includes attorney fees and court costs for defending this appeal.. In In re Estate of Szorek (1990), 194 Ill. App. 3d 750, 760-61, 551 N.E.2d 697, the court ruled that similar language of the written agreement included attorney fees and litigation costs on appeal as well as at the trial level.

Based on the foregoing, the circuit court judgment is affirmed.

Affirmed.

GREIMAN, P.J., and RIZZI, J., concur.


text:
      In re MARRIAGE OF LORETTA PEARSON, Petitioner-Appellant, and RICHARD PEARSON, Respondent-Appellee.
    First District (3rd Division)
    No. 1—91—1238
    Opinion filed September 30, 1992.

      . Gary E. Dienstag, of Springer, Casey, Dienstag & Devitt, EC., Joseph H. and Norman Becker, and Selwyn Blum, all of Chicago, for appellant.
    Anthony E Albergo, of Westchester (Francis X. Riley, of counsel), for appellee.
   JUSTICE CERDA

delivered the opinion of the court;

Loretta Pearson appeals from the November 30, 1990, judgment order dissolving her marriage to her husband, Richard Pearson. In her appeal, Loretta asserts that (1) the trial court erred by ordering rehabilitative maintenance for only 36 months; (2) the amount of maintenance is insufficient; (3) the trial court’s order requiring Richard to contribute to the children’s college expenses was inadequate; (4) the trial court improperly apportioned the marital debts; (5) the trial court erred in failing to order Richard to contribute retroactively to the children’s high school expenses; (6) the trial court erred in requiring Loretta to pay one-half of Richard’s expert witness’ fees; (7) the trial court erred in failing to order Richard to account for the cash value of a cashed-in life insurance policy; (8) the trial court improperly apportioned the attorney fees incurred by Loretta; and (9) the trial court erred in awarding fees to Loretta’s former attorney, David Goldstein.

Richard and Loretta Pearson were married on July 9, 1966, and have two children. Michael was bom on July 5, 1968, and Colleen on August 28, 1970. At the time of the dissolution of marriage, Loretta was 46 years old and Richard was 48 years old.

Loretta received a bachelor of arts degree in 1965 and has a current teaching certificate. When the Pearsons got married, Loretta was teaching full time, earning between $10,000 and $12,000 per year. She used part of her income in August 1968 to pay the $6,000 down payment on the Pearsons’ first home. At that time, Richard was earning about $17,000 per year from his employment at Commonwealth Edison.

When Loretta’s mother died in 1966, Loretta inherited $10,000, which she used to buy furniture and pay bills. In 1969, when her father died, Loretta received a $25,000 inheritance, $23,000 of which was used toward the $33,000 down payment on the Pearsons’ second home. A $4,000 profit from the sale of stocks, which had been a gift from Loretta’s uncle, was used to purchase, paint, and repair that home. The only other account the Pearsons had was a small savings account.

A few months before Michael’s birth in 1968, Loretta stopped working. That was the last time she worked full time. Loretta’s job became caring for the children and the home. According to Loretta, Richard helped very little with the children and home responsibilities, telling her that was her job. Loretta stated that Richard did not want her to work when the children were small. Richard testified, however, that he told Loretta that she could work if she wanted, but did not insist on it. Richard testified that Loretta was a good mother and properly maintained the household.

In 1978, when Colleen was in the second grade, Loretta worked as a substitute teacher one or two days a week, earning approximately $4,000. At that time, Richard, who was earning about $30,000 per year, paid the mortgage and gave Loretta money toward the household expenses. Whenever that money did not cover the expenses, Loretta contributed her income.

During the marriage, the Pearsons’ yearly family vacations to Florida, Hawaii, Las Vegas, Wisconsin Dells, and Arizona were paid for jointly. About once a week, they went to parties, dinner, plays, or other places.

After Loretta filed a petition for dissolution of marriage on September 25, 1984, both she and Richard remained in the marital home. From 1984 to 1987, Loretta testified, she paid $13,729.04 in mortgage payments in addition to the household expenses, insurance, food, house repairs, and legal fees. Loretta stated that the money came from her salary as a substitute teacher, possessions she sold, and money she borrowed from relatives and friends. Income tax returns indicate that Loretta earned $760 in 1984, $1,500 in 1985, and $1,559 in 1987. Loretta claimed that Richard gave her money on an irregular basis during that time.

Richard testified that he paid the mortgage, bills, and the children’s tuition in 1985, 1986, and 1987. He stated that he gave Loretta his entire paycheck minus $50 every two weeks from 1984 to 1987. He estimated that he gave Loretta $700 from every paycheck in 1984 and $900 every other week from 1985 until August 1987.

According to Lorétta, Richard did not want the children to attend parochial grammar school, but agreed that they could go to parochial high schools. From 1982 to 1986, Michael went to St. Joseph High School. Loretta testified that she paid $5,939.13 for Michael’s high school expenses, for which she used money from her employment, selling possessions she had inherited from her mother, and borrowing money from friends and relatives. Loretta claimed that Richard never made any contributions to Michael’s high school expenses, but Richard presented receipts for a $425 payment on November 1, 1985, and a $325 payment on February 13,1986, for Michael’s tuition.

From 1984 to 1988, Colleen went to Immaculate Heart of Mary High School. Loretta testified that she paid $7,770.95 for Colleen’s tuition and expenses from her employment, the sale of possessions, and borrowing money from friends and relatives. Loretta stated that Richard refused to contribute toward Colleen’s tuition, but Richard presented receipts documenting that he paid the school $340 on November 21, 1985, $130 on January 30, 1986, and $460 on March 12, 1987. In addition, Richard maintains that Loretta paid part of Colleen’s tuition from his support money in May 1988.

In 1986 and 1987, Richard damaged two bedroom doors by putting his fist through them. On September 24, 1986, an order of protection was entered, restraining Richard from striking, threatening, or harassing Loretta, Colleen, and Michael. Richard moved out of the house on April 12, 1987. At that time, Loretta was employed as a substitute teacher, earning $35 to $55 a day. She averaged about $100 per week, but did not work every week. That was the last time Loretta worked as a substitute teacher.

A court order for $400 temporary support was entered on June 1, 1987. Loretta testified that Richard gave her irregular support from April 1987 until October 1987. She also stated that she paid most of the mortgage, food, utilities, and automobile insurance with $5,000 borrowed from relatives and friends during that time. Richard testified that he gave Loretta $1,200 and directly paid the mortgage payments from April 1987 to October 1987.

On August 26, 1987, the court entered a temporary order requiring Richard to submit all of Loretta’s medical bills for reimbursement through his employer’s insurance plan and to pay any medical expenses not covered by the insurance. The court also ordered that the Pearsons’ income tax refund check of $1,095.07 be used to pay Colleen’s parochial school expenses. Loretta testified that some of those medical bills remain unpaid and she is out of pocket $556.72 for prescriptions. Richard testified that he never received any checks for health insurance claims.

On October 29, 1987, the court entered a temporary support order requiring Richard to pay $450 every other week plus the mortgage on the marital home. He was also ordered to investigate the whereabouts of $4,000 that an insurance agent took from their $10,000 whole life insurance policy. Richard testified that he never pursued the insurance issue.

On Richard’s petition, the court modified the temporary support order on February 1, 1989, ordering Richard to pay $300 every other week plus the mortgage and $150 on arrearages from the previous temporary support order. There was a stipulation that Richard made those payments.

At the time of the trial, Michael was 21 years old and a college student at DePaul University. He was living at home with Loretta and commuting every day to school. He planned to graduate in June 1990. Loretta stated that she contributed $307.48 towards his college fees and books. In addition, Michael had a government loan of $8,490, to be repaid after graduation. Michael was giving Loretta $200 per month toward his car payment and insurance, but was not paying any room or board. Richard testified that he did not contribute any money to Michael’s college expenses.

Colleen was 19 years old and a college student at the College of Du Page School of Nursing, studying toward an RN degree. Although the school is a two-year college, the nursing program runs for four years. Colleen was living with Loretta, who spent $560.78 toward Colleen’s college fees, tuition, and books. Colleen was receiving various grants for her tuition. She was giving Loretta $200 per month toward her car payment, insurance, and repairs. Richard stated that he did not contribute any money toward Colleen’s college expenses.

At the time of the trial, Loretta claimed that her total monthly expenses were $3,054.37, including heat, telephone, cable television, automobile expenses, teaching certificate fees, church donations, and clothing costs. After Richard’s $600 support payment and the children’s part-time earnings, Loretta stated that there was a $2,054.37 monthly deficit. She testified that she made up the deficit by selling possessions and borrowing money from friends and relatives. Loretta estimated that she had borrowed about $12,000 since 1984. Loretta stated that she had no IRA’s, stocks, bonds, savings, or pension.

Loretta, who was unemployed, last worked in October 1989 at a part-time job with a sales company. At that time, she worked 18 hours per week and earned $6.50 per hour. Her average take-home pay was $117 to $120 per week. She left that job because she could not perform the physical labor necessary. Loretta maintains that she cannot work as a full-time teacher because she cannot pass the physical exam. She admitted, however, that she had not applied for a teaching position.

Richard is employed by Commonwealth Edison, where he has worked for the last 25 years. He earns $41,958 per year and is vested in his pension plan. If he were to retire now, he would receive $1,397 a month from his retirement plan. At the normal retirement age, he will receive $2,841 per month. Richard also has a company stock purchase plan, whose value he will receive when he retires. He has no current savings account, but has had an IRA for the last 10 years. His last deposit was $4,000.

Richard’s take-home pay is $1,200 every other week. His total average expenses, including the $476 mortgage payment on the marital house, are $2,600. It was stipulated that the marital home was worth $135,000 with a $22,000 outstanding mortgage.

Since a major issue is Loretta’s health and ability to work, there was extensive testimony about her medical condition. Dr. Stephen Kozlowski, an internal medicine specialist in rheumatology, testified that he had treated Loretta since February 1985. At that time, he took a medical history, conducted a physical exam, and took several blood tests, including a complete blood count, serum chemistry survey, sedimentation rate for inflammation, and tests for rheumatoid arthritis, lupus, and thyroid function. The blood tests showed mild anemia and a positive antinuclear antibody test, which most commonly indicates systemic lupus, an autoimmune disease, although it can also indicate other diseases.

Dr. Kozlowski diagnosed Loretta as having fibromyositis, which is a painful condition of the muscles and joints associated with sleep disturbance and a sense of fatigue worsened by poor sleep, stress, and physical exertion. He prescribed amitriptyline, a mood elevator, as a mild sedative at bedtime and Norgesic Forte, a muscle relaxant. In March 1985, Dr. Kozlowski prescribed Motrin for pain in Loretta’s muscles and back. In February 1986, Loretta complained of joint pain, headaches, and severe oral ulcers.

In May 1987, further tests were conducted. There were no symptoms of lupus recorded by the doctor and the antinuclear antibody and rheumatoid arthritis tests were negative. A urinalysis showed a trace of protein and blood, which sometimes indicates an inflammatory kidney condition related to lupus. At that time, Dr. Kozlowski treated Loretta for musculoskeletal pains and prescribed Amoxicillin, an antibiotic, for an upper respiratory infection.

In April 1988, Dr. Kozlowski prescribed Imipramine for fibromyositis. On May 27, 1988, Dr. Kozlowski saw Loretta for leg pain and swelling, but did not prescribe any medication.

On October 27, 1989, Loretta complained of aching all over, poor sleep, and awakening feeling tired. An examination showed tender joint trigger points. Dr. Kozlowski prescribed Flexeril, a muscle relaxant, and Naprosyn, an anti-inflammatory pain reliever.

In November 1989, a complete blood profile showed abnormal results, including anemia, iron deficiency, elevated cholesterol, and a positive antinuclear antibody factor, related to lupus. No medications were prescribed at that time. A repeated complete blood count on November 19, 1989, indicated that Loretta was no longer considered anemic.

Although Dr. Kozlowski testified that Loretta possibly had lupus, he could not state with any medical certainty that Loretta was suffering from lupus. He based his opinion on her symptoms, which included muscular pain, joint pain, fatigue, sensitivity to the sun, a low-level positive antinuclear antibody test, and mild anemia.

Dr. Kozlowski’s opinion was that Loretta’s fibromyositis and possible lupus has an effect on her ability to be employed because her fatigue, weakness, and lack of exercise capacity impair her ability to function in the workplace. Fibromyositis makes it difficult to maintain energy and alertness during the workday. The lack of exercise capacity makes it difficult to sustain any physical activity for any significant length of time. Loretta’s muscle condition also creates a sense of weakness, making it difficult to lift any significant amount of weight. Dr. Kozlowski stated that he did not feel that physical therapy would be effective to treat Loretta’s condition.

On May 14, 1987, the trial court ordered Loretta to be evaluated by Dr. Robert G. Strnad, an internal medicine doctor who was Richard’s expert witness. After explaining lupus and fibromyositis, Dr. Strnad testified that 80% to 90% of lupus cases and fibromyositis cases are treated with anti-inflammatory drugs, including aspirin and ibuprofen. In addition, many fibromyositis cases are also treated with muscle relaxants.

Dr. Strnad stated that he examined Loretta on August 4, 1987, and took a personal history. Prior to the examination, he had reviewed medical records from other doctors. In November 1987, Dr. Strnad performed tests, including an antinuclear antibody analysis, a sedimentation rate, and an anti-DNA test, which did not indicate any inflammation. Dr. Strnad explained that fibromyositis does not involve inflammation.

According to Loretta’s doctor reports, Dr. Strnad testified that Loretta was treated for allergic inflammation of the nasal passage from 1978 to 1984, and fibromyositis from the early 1970’s to the middle 1980’s. The October 1983 Mayo Clinic records indicated that Loretta suffered from stress myalgia, which is muscle pain due to stress.

Dr. Strnad’s opinion was that Loretta did not suffer from lupus or any other inflammatory disease and was not restricted from functioning in any way. He did not, however, consider the laboratory tests he performed as conclusive. Although moderate to severe lupus would probably show up in those tests, Dr. Strnad explained, moderate or severe fibromyositis probably would not appear in those tests.

Further, Dr. Strnad testified that Loretta’s complaints could be symptomatic of many diseases, including fibromyositis. Dr. Strnad explained that the pain from fibromyositis can be reasonably severe and affect a person’s ability to function to certain limited degrees.

At the end of the trial, Loretta’s attorneys petitioned for the balance of their attorney fees of $3,732.31 for Jeanne Jardine, $4,000 for David Goldstein, and $10,787.50 for Norman Becker and Selwyn Blum. Richard’s attorneys petitioned for the balance of their attorney fees of $13,633.50 for Anthony Albergo and John Pennie, and $6,850 for Ira Feldman.

The trial court found that Loretta did not have lupus, but has some medical problem and is under medical care, which would not preclude her from seeking appropriate employment. The trial court entered a judgment for dissolution of marriage as follows:

1. Loretta was awarded rehabilitative maintenance of $600 per month for 36 months, with any further maintenance barred.
2. The marital residence was to be sold and divided 65% to Loretta and 35% to Richard.
3. Loretta was to keep the 1986 automobile.
4. Loretta was to receive one-half of Richard’s interest in his pension plan and employer savings and investment plan that had accrued up to the date of the entry of the judgment.
5. Richard was to be liable for the payment of Colleen’s future tuition, books, and supplies while she attends Du Page College.
6. The sum of $1,600 held by Loretta’s former attorney, David Goldstein, was to be divided equally.
7. Richard was to pay $1,000 toward attorney Jeanne Jardine’s fees and Loretta was to pay the $800 balance.
8. Richard was to pay $1,000 toward attorney David Goldstein’s fees and Loretta was to pay $1,000.
9. Richard was to pay $3,000 toward attorneys Joseph H. and Norman Becker’s fees, and Loretta was to pay $4,500.
10. The parties were to each pay one-half of Dr. Stmad’s outstanding $1,700 bill.
11. Richard was liable for the payment of $4,700 to attorneys Albergo and Pennie and $5,000 to attorney Ira Feldman.
12. All other rights, claims, and demands were barred.

The parties later agreed that Loretta could purchase Richard’s interest in the marital home without prejudice to her right to appeal the judgment.

On appeal, Loretta asserts that the trial court abused its discretion in awarding her rehabilitative maintenance limited to 36 months. Loretta argues that the trial court should have ordered permanent maintenance that would be modifiable based on the parties’ changing needs and terminable if the court felt that Loretta was not making reasonable attempts to secure employment. Alternatively, Loretta asserts that the court should have reserved jurisdiction to review the award instead of barring any maintenance after 36 months.

As to her contention that she should receive permanent maintenance, Loretta contends that rehabilitative maintenance is inappropriate because the evidence is insufficient for determining her future employability. Even if it can be assumed that she could secure future employment, Loretta maintains that there was no showing that she was employable at an income that would provide the standard of living enjoyed during the marriage.

Loretta states that the evidence showed that she was 46 years old and had been a housewife raising two children during most of the 24-year marriage. Although she has a current teaching certificate, Loretta maintains that her responsibilities as a housewife raising two children for 24 years kept her from the job market, from obtaining a permanent teaching position, or acquiring any type of teaching seniority or tenure. She indicates that it is speculative that she can even get a full-time teaching position, especially one with any type of security for the future or one that will allow her to enjoy the high standard of living established during the marriage. Moreover, Loretta argues, there was no evidence of current or future salaries for teachers with her qualifications.

Loretta emphasizes that her medical problems affect her future employability. Although there is uncertainty whether she suffers from lupus, the trial court found that Loretta has some medical problem and is under medical care. Even if she were not prevented from presently seeking employment, Loretta argues, her medical condition could lead to future impairment of her employability.

Richard responds that the trial court did not abuse its discretion by denying permanent maintenance and limiting rehabilitative maintenance to 36 months. Since Loretta has a current teaching certificate, several years of teaching experience, and some business experience, Richard contends that 36 months are adequate for Loretta to find appropriate full-time employment.

Richard also argues that Loretta is mentally and physically capable of doing the type of work for which she is trained, experienced, and qualified. He asserts that Loretta is alleging health problems only to avoid becoming self-sufficient. Furthermore, Richard states that the property distribution was fair and adequate, and the children are adults in college.

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1989, ch. 40, par. 504) provides that the court may grant a maintenance order in a dissolution of marriage proceeding only if it finds that the spouse seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs, and
(2) is unable to support [her]self through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” Ill. Rev. Stat. 1989, ch. 40, par. 504(a).

The IMDMA authorizes rehabilitative, or time-limited, maintenance so that the spouse receiving the support has the incentive to use diligence in getting the training or skills necessary to attain self-sufficiency. (In re Marriage of Kusper (1990), 195 Ill. App. 3d 494, 500; In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 229.) This goal must be balanced against a realistic appraisal of the likelihood that the spouse receiving support will be able to support herself in some reasonable approximation of the standard of living established during the marriage (In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 523), especially where the marriage was of a long duration and the spouse has had a long absence from the labor market. In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 464-65.

In determining the amount and duration of maintenance, the court must consider all relevant factors, including:

“(1) the financial resources of the party seeking maintenance, including marital property apportioned to [her], and [her] ability to meet [her] needs independently ***;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

Illinois courts have approached future maintenance in three ways. Where the spouse is not employable or is employable only at a low income, as compared to her previous standard of living, permanent maintenance is awarded. (Albiani, 159 Ill. App. 3d at 524.) Permanent maintenance may be appropriate when the spouse seeking support has no realistic prospect of obtaining employment, after a long marriage, especially where the spouse was insulated from developing her skills or career. (Jones, 187 Ill. App. 3d at 229.) Illinois courts give careful consideration to a permanent maintenance award to a wife who has undertaken to have children, raise and support the family, and who have lost or been substantially impaired in maintaining their skills for continued employment during the years her husband was getting his education and becoming established in his career. In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 40.

Rehabilitative maintenance may be appropriate under circumstances where the evidence indicates future employability (Jones, 187 Ill. App. 3d at 229) at an income that would provide approximately the standard of living established during the marriage (Albiani, 159 Ill. App. 3d at 523-24). The doctrine of rehabilitative maintenance requires that the trial court consider the extent to which the receiving spouse has either the present ability or the future ability to become self-sufficient or the future ability to acquire skills that would allow entry into the job market. (Jones, 187 Ill. App. 3d 206.) Rehabilitative maintenance should be based on the actual evidence presented, not on mere speculation. In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 798.

Many Illinois courts have taken a third approach where they have reserved jurisdiction to encourage a spouse to become self-sufficient while providing the court with an opportunity to review the award at the end of a fixed period to determine what efforts the spouse has made toward achieving this objective and whether those efforts have been successful. (Jones, 187 Ill. App. 3d at 229; Albiani, 159 Ill. App. 3d 519; In re Marriage of Asch (1981), 100 Ill. App. 3d 293.) Where the record is speculative as to the spouse’s future ability to support herself, the appellate court has refused to affirm awards of rehabilitative maintenance with automatic termination dates. In such cases, the court has remanded the matter with directions to the trial court to retain jurisdiction over the maintenance award in order to review the parties’ respective circumstances at a later date and reevaluate the need for future maintenance. See Kusper, 195 Ill. App. 3d at 500; In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 61; In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 716; In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 352; In re Marriage of Campise (1983), 115 Ill. App. 3d 610, 614; Asch, 100 Ill. App. 3d at 297-98; In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 845.

Some of the cases cited by the parties have similar facts as this case. In Carney, the court reversed and remanded the wife’s five-year rehabilitative maintenance because the true ability of the wife to support herself was unknown and speculative. (Carney, 122 Ill. App. 3d at 717.) The wife, who was suffering from emotional stress, severe depression, and alcoholism, had a high school education and no vocational skills or training. (Carney, 122 Ill. App. 3d at 707.) The wife’s doctor testified that she was mentally and physically employable, but her mental functions had been impaired as a result of long-term alcohol consumption even though she had stopped drinking alcohol. (Carney, 122 Ill. App. 3d at 708.) The appellate court stated that the trial court abused its discretion and should be more flexible in its approach. Carney, 122 Ill. App. 3d at 716.

The court in In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 569, ruled that justice would be better served by the trial court retaining jurisdiction to be able to later review the maintenance award. The wife had Ph.D. and J.D. degrees, but had failed to pass the bar examination three times. Additionally, she suffered from Gaucher’s disease, a form of anemia, which would not limit her employment potential. Rothbardt, 99 Ill. App. 3d at 569.

In Courtright, the court affirmed the trial court’s order of rehabilitative maintenance reviewable after two years. (Courtright, 155 Ill. App. 3d at 61.) The court stated that the order, which provided for complete review at the end of two years, was appropriate since both parties’ conditions were fluid at the time of the judgment. (Courtright, 155 Ill. App. 3d at 61.) The wife, who was in her mid-50’s, had a bachelor of arts degree in education from Northwestern University, but was not currently licensed to teach. The only work she had done outside the home since 1958 had been seasonal work as a switchboard operator, earning $5.75 per hour. She was generally in good health even though she had some arthritis in her right foot and a lingering disability in her left foot from childhood polio, which prohibited her from standing on her feet for long periods of time. (Courtright, 155 Ill. App. 3d at 57.) The marriage had lasted for 29 years and there were four adult children from the marriage. Courtright, 155 Ill. App. 3d at 56.

A maintenance award is within the trial court’s discretion. (Albiani, 159 Ill. App. 3d at 524.) It will not be disturbed on review unless it is an abuse of discretion or against the manifest weight of the evidence. (Jones, 187 Ill. App. 3d at 227.) An abuse of discretion occurs when no reasonable person would take the view adopted by the trial court. Jones, 187 Ill. App. 3d at 227.

Although the trial court did not abuse its discretion in denying permanent maintenance, it did abuse its discretion in ordering a 36-month limitation on the rehabilitative maintenance. Although Loretta does not have systematic lupus, she has a medical condition for which she is under a doctor’s care. Since the record is speculative as to her future ability to support herself at the standard of living established during the marriage, the trial court’s 36-month limit on the award of rehabilitative maintenance is reversed and remanded. On remand, the trial court is instructed to retain jurisdiction in order to fully review and reevaluate the need for future maintenance after the 36-month period has expired.

Next, Loretta asserts that the trial court abused its discretion in awarding an inadequate amount of maintenance to meet her reasonable needs measured by the standard of living enjoyed during the marriage. We disagree.

To determine the amount of maintenance, the court must determine the reasonable needs of the spouse seeking maintenance in light of the overall circumstances. (In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 1013.) Except where the financial situation of the paying spouse, the duration of the marriage, or the health of the parties indicates otherwise, the amount of maintenance should be sufficient to provide the spouse with the standard of living established during the marriage. Krupp, 207 Ill. App. 3d at 793.

In determining the ability to meet one’s needs, the party seeking maintenance is not required to liquidate assets or impair capital in order to maintain the standard of living established during the marriage. (Holman, 122 Ill. App. 3d at 1013-14.) Other factors to consider include the duration of the marriage, the financial resources of the spouse seeking maintenance, the spouse’s ability to become self-supporting, any income-producing property of the spouse, the value of the nonmarital property, and the ability of the spouse from whom maintenance is sought to meet his reasonable needs as well as his maintenance responsibility. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b); Krupp, 207 Ill. App. 3d at 792; Kusper, 195 Ill. App. 3d at 499; Jones, 187 Ill. App. 3d at 228; Courtright, 155 Ill. App. 3d at 61; Holman, 122 Ill. App. 3d at 1013-14.) No one factor is determinative. (Jones, 187 Ill. App. 3d at 228.) The court has wide latitude in considering what factors should be used in' determining the reasonable needs. Krupp, 207 Ill. App. 3d at 793.

After adequately considering all the relevant evidence, the trial court did not abuse its discretion by ordering a $600-per-month maintenance award. Thus, we affirm that award.

Loretta then asserts that the trial court erred in refusing to order Richard to adequately contribute to the children’s college education. At the time of the November 1990 judgment, Michael had graduated from college and Colleen had IV2 more years of nursing school.

While the court is authorized to order payment of a child’s college expenses, including reasonable living expenses, from the property and income of either or both parents (In re Marriage of Falat (1990), 201 Ill. App. 3d 320, 327), it is not mandated to do so. The legislative intent of the IMDMA’s section 513 is that the trial court have discretion in determining this issue. (In re Support of Pearson (1986), 111 Ill. 2d 545, 551.) In making its determination, the trial court must consider all relevant factors that appear reasonable and necessary, including financial resources of both parents, standard of living the child would have enjoyed had the marriage not been dissolved, and the financial resources of the child. Ill. Rev. Stat. 1989, ch. 40, par. 513.

The trial court carefully considered all relevant factors. It did not abuse its discretion by ordering Richard to pay only Colleen’s future college tuition, books, and supplies, without reimbursing Loretta for Colleen’s first-year college expenses or any of Michael’s college expenses.

Next, Loretta asserts that the trial court erred when it failed to order Richard to reimburse her for marital debts, including the mortgage and medical expenses paid by Loretta. Loretta maintains that she had the sole responsibility of assuming substantial marital debts that arose when Richard failed to support the family for a substantial period of time from 1984 until 1987. In the alternative, Loretta requests that the issue of the outstanding medical bills be remanded to the trial court since the trial court did not address that issue. This argument has no merit.

The trial court ordered Richard to continue making the mortgage payment on the marital house until it was sold. In addition to hearing evidence from both Loretta and Richard about the mortgage payments, the trial court examined the various receipts and other exhibits. There was evidence that Richard gave Loretta the money to pay the mortgage and other household expenses from 1984 to April 1987 while he was still living in the marital home. From June 1987 through the November 1990 judgment, Richard was paying court-ordered support as well as the mortgage. While there was some evidence that Richard’s payments were irregular from April 1987 through February 1989, it was stipulated that he made all the re- . quired payments after that time.

There was no abuse of discretion in the apportionment of the marital debt. The trial court carefully considered all the relevant evidence over many months. Thus, we affirm.

Next, Loretta asserts that the trial court erred by not ordering Richard to reimburse Loretta for the children’s high school expenses while the dissolution of marriage was pending in court. We do not agree.

Even though Loretta filed the petition for dissolution of marriage in September 1984, Richard did not move out of the marital home until April 1987. At that time, Michael was 18 years old and out of high school. Colleen was 16 years old and a junior in high school. There was evidence that Richard continued to support his family while he was still living in the marital home and paid $830 toward Colleen’s high school tuition and $750 toward Michael’s high school tuition. In addition, Richard was paying Loretta monthly unallocated support from 1987 until the judgment.

Retroactive allowance of child support, including private school expenses (In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304), is within the trial court’s discretion if such allowance is fit, reasonable, and just. (In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 410.) Although the court may make a provision for education and maintenance of the children whether it is requested before or after the child has become an adult (Ill. Rev. Stat. 1989, ch. 40, par. 513), the trial court did not abuse its discretion by not ordering Richard to pay retroactive educational expenses.

Next, Loretta asserts that the trial court erred in ordering her to pay one-half of Dr. Stmad’s outstanding $1,700 bill since he was appointed by the trial court pursuant to Supreme Court Rule 215 (134 Ill. 2d R. 215) at Richard’s request. Moreover, Loretta argues that it is not equitable to assess any portion of Dr. Stmad’s fees against her. Richard responds by arguing that Loretta was not cooperative in being examined by Dr. Strnad, that the trial court does not have to abide by previous court orders entered by other judges, and that the parties agreed to the apportionment of the fees.

We affirm the trial court’s ruling. Although the original court order appointing Dr. Stmad specifically required Richard to pay the cost of the examination, the court has the inherent power to amend and revise interlocutory orders by other judges any time before the final judgment. (Towns v. Yellow Cab Co. (1978), 73 Ill. 2d 113, 120-21.) Furthermore, the apportionment term was. handwritten and initialed in the final order by Loretta’s attorney even though the trial court did not mention Dr. Stmad’s fee in his opinion. Once those changes were agreed to, Loretta cannot assign it as error on appeal. Thomas v. First National Bank (1985), 134 Ill. App. 3d 192, 212.

Loretta then asserts that the trial court erred in failing to order Richard to account for the cash value of a joint life insurance policy. This argument is without merit.

During the marriage, the parties acquired a $10,000 life insurance policy that had a cash value of $4,000. In 1983, the insurance agent cashed in the policy and absconded with the funds. After Loretta petitioned the court in 1987, the court ordered Richard to cooperate with New York Life to preserve the policy’s cash value by contacting the appropriate officer. Richard took no action. As a result, Loretta argues, he should have been required to account for the lost funds.

The trial court did not address the insurance policy issue because it was not asked to address the issue. Furthermore, the testimony is uncontradicted from both parties that neither Loretta nor Richard was responsible for the $4,000 loss. The original court order was for Richard to cooperate with the insurance company, not to recover the funds or to pay Loretta the equivalent amount. Therefore, the trial court did not err by not addressing this issue.

We reject Loretta’s next argument, which is that the trial court erred in requiring her to pay a majority of her attorney fees. Although section 508(a)(3) of the IMDMA provides that the trial court may order either party to pay a reasonable amount for attorney fees necessarily incurred by the other party (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)(3)), the payment of attorney fees is the primary obligation of the spouse on whose behalf the services are rendered. Jones, 187 Ill. App. 3d at 230.

To justify Richard being required to pay more of her attorney fees, Loretta must show her financial inability to pay them as well as Richard’s ability to do so. (In re Marriage of Hazard (1988), 167 Ill. App. 3d 61, 71.) Financial inability exists where payment would strip the person of the means of support and undermine her economic stability. (In re Marriage of Gable (1990), 205 Ill. App. 3d 696, 700.) It is not necessary for Loretta to be destitute in order for the court to award attorney fees (In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 964), nor is she required to liquidate her assets to pay her own fees before there can be a finding of inability. Piccione, 158 Ill. App. 3d at 964.

After careful consideration of all the relevant factors, the trial court did not abuse its discretion in its apportionment of the attorney fees. We affirm that apportionment.

Finally, Loretta asserts that the $4,500 attorney fees awarded to attorney David Goldstein were unreasonable. Loretta argues that he did not participate in the trial, did not take any depositions, and basically reviewed what Loretta’s previous attorney had done during the six months that he represented her.

Attorney Goldstein represented Loretta from February 11, 1988, until September 19, 1988, for which Loretta paid him a $2,500 retainer fee. Attorney Goldstein filed a verified petition for fees documenting 52 hours spent in consultations, conferences, preparations of pleadings, court appearances, letters, telephone calls, and court filings at a rate of $125 per hour. Although Goldstein requested a total of $6,500 in attorney fees, the trial court awarded him $4,500, minus the $2,500 retainer fee already paid.

The appropriate amount of attorney fees to be awarded depends on the facts and circumstances of each case and is within the trial court’s discretion. (In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 782.) The trial court carefully considered the evidence and did not abuse its discretion in awarding the additional attorney fees to Gold-stein. Thus, we affirm the trial court’s ruling.

Based on the foregoing, the circuit court’s rehabilitative maintenance award of $600 per month is affirmed, but the 36-month limit is reversed and remanded. On remand, the trial court is instructed to retain jurisdiction in order to fully review and reevaluate the need for future maintenance after the 36-month period has expired. All other circuit court rulings are affirmed.

Affirmed in part; reversed and remanded in part with instructions.

GREIMAN, P.J., and TULLY, J., concur.


text:
    F M C CORPORATION, Plaintiff-Appellee, v. LIBERTY MUTUAL INSURANCE COMPANY et al., Defendants-Appellants.
    First District (3rd Division)
    No. 1—91—2168
    Opinion filed September 30, 1992.
    Peterson & Ross, of Chicago (Stephen M. Hoke, of counsel), for appellant Rayment and Companies.

      Buchalter, Nemer, Fields & Younger, of Los Angeles, California (Victoria Pynchon, of counsel), for appellant AIU Insurance Company.
    Kirkland & Ellis, of Chicago (Douglas J. Kurtenbach and Bowen H. Tucker, of counsel), for appellee FMC Corporation.
    Sidley & Austin, of Chicago (Michael J. Sweeney and Erica M. Lands-berg, of counsel), for appellee KPMG Peat Marwick.
   PRESIDING JUSTICE GREIMAN

delivered the opinion of the court:

This is an appeal from the circuit court's order to quash a subpoena duces tecum served upon KPMG Peat Marwick on the grounds that the accountants’ workpapers which were subpoenaed are protected from disclosure under the accountant privilege established in section 27 of the Illinois Public Accounting Act (Ill. Rev. Stat. 1987, ch. Ill, par. 5533).

The sole issue on appeal is whether the statutory accountant privilege protects the subpoenaed documents from disclosure.

These proceedings are ancillary to a declaratory judgment action filed in California by plaintiff, FMC Corporation (FMC), against numerous insurance companies including defendants, Rayment and Companies and AIU Insurance Company (insurers). In the California action, FMC is seeking a declaration that would require defense and indemnity coverage under certain insurance policies for FMC’s claimed environmental liabilities at over 75 sites across the country.

KPMG Peat Marwick (Peat Marwick) is a firm of certified public accountants and is not a party to the California action. FMC is headquartered in Illinois and has retained Peat Marwick or its predecessor to audit FMC’s financial statements since 1928.

The subpoena served upon Peat Marwick sought, in general, to obtain documents relating to FMC’s contingent environmental liabilities.

On motion of Peat Marwick and FMC, the circuit court quashed the subpoena and expressly found that the matter sought was privileged under section 27 of the Illinois Public Accounting Act, which provides:

“5533. Accountant as witness
§27. A public accountant shall not be required by any court to divulge information or evidence which has been obtained by him in his confidential capacity as a public accountant. This Section shall not apply to any investigation or hearing undertaken pursuant to this Act.” Ill. Rev. Stat. 1987, ch. Ill, par. 5533.

The trial court took great care to indicate that the supreme court’s decision in In re October 1985 Grand Jury No. 746 (1988), 124 Ill. 2d 466, 530 N.E.2d 453, did not apply to the facts in this case. October was the first Illinois decision to interpret the statutorily created accountant’s privilege and determined that it did not apply to tax information which the client could reasonably expect would be disclosed to third parties and therefore not received by the accountant in confidence.

In October, the court suggests that documents or information turned over to an accountant in connection with the preparation of a client’s tax return are not confidential because there is a likelihood that they will be disclosed to a third party. The court concludes that a “tax client provides information to his accountant with the understanding that there may be, at the accountant’s discretion and judgment, a disclosure of it to a third party, the State, or other parties, e.g., Federal and other taxing authorities.” (October, 124 Ill. 2d at 477.) The October court assumes that the tax client puts at risk the confidentiality attached to the information and such communications therefore are beyond the scope of the section 27 privilege. October, 124 Ill. 2d at 477.

The October decisions provide an exception to the privilege as it relates to tax returns and accountants’ workpapers and information necessary to prepare such returns. (In re October 1985 Grand Jury No. 746 (1987), 154 Ill. App. 3d 288, 507 N.E.2d 6, vacated (1988), 124 Ill. 2d 466, 530 N.E.2d 453.) It is clear that the basis for such a ruling was concern that one seeking to evade tax or reporting requirements might attempt to shield such information by merely transferring to his accountant all documents relating to his tax liability. Oc tober, 154 Ill. App. 3d at 296; Paper Corp. of America v. Schneider (Fla. App. 1990), 563 So. 2d 1134.

Although this concept has been extended to at least one other area (In re Estate of Berger (1987), 166 Ill. App. 3d 1045, 520 N.E.2d 690 (information given to an accountant in connection with preparation of a current or final account for probate court proceedings)), we do not believe that it may be extended to an accountant whose limited task is to perform an audit for the client.

To establish parameters for the accountant’s privilege, the October court recognized four factors to be considered in regard to the privilege:

“ ‘(1) The communications must originate in a confidence that they will not be disclosed.
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.
(4) The injury that would inure to the relation by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation.’ ” (Emphasis in original.) (October, 124 Ill. 2d at 475, 530 N.E.2d 453, quoting 8 J. Wigmore, Evidence §2285, at 527 (McNaughton rev. ed. 1961).)

We are concerned here only with whether the documents held by Peat Marwick “originated in a confidence,” i.e., FMC’s intention that they not be disclosed.

In considering any privilege, we must be mindful that privileges, by their nature, tend to adversely affect the fact-finding process and often stand as a barrier against illumination of truth. Therefore, privileges are not to be expansively construed because they are exceptions to the general duty to disclose during discovery. Illinois Educational Labor Relations Board v. Homer Community Consolidated School District No. 208 (1989), 132 Ill. 2d 29, 34, 547 N.E.2d 182; Maxwell v. Hobart Corp. (1991), 216 Ill. App. 3d 108, 111, 576 N.E.2d 268.

However, we are required to balance this inconvenience with the interest that society has in protecting privileged relationships in general. Our legislature has determined that the accountant-client relationship is one of substantial significance and by enactment of section 27 encourages people to make use of professional accounting services and to be frank and candid with such professionals. Accordingly, it is critical to our analysis that we do not carve out a series of exemptions that would emasculate the straightforward language of section 27.

In the instant case Peat Marwick was not a preparer of tax returns, Security and Exchange Commission filings or other similar documents, reports or returns, but rather was limited to providing audit services and determining that FMC’S accounting procedures were appropriate. However, in order to comply with the mandate of October, Peat Marwick will be required to produce any documents that have previously been filed with third parties and any claims or communications received from third parties since these materials did not originate in confidence.

We now address our findings as to each category of documents requested. The first category of documents listed in the subpoena for production provides:

“All communications and documents including, without limitation, work papers, accounting and financial records and tax returns, tax accrual worksheets, and federal and state tax returns concerning any accounting reserves or disclosures created, established or made by FMC in connection with any environmental liability costs at the FMC sites.”

We find that any documents in the possession of Peat Marwick which pertain to or were prepared for the State and Federal tax returns filed by FMC must be produced.

The second category of information requested for production states:

“All communications and documents concerning any governmental and/or third-party environmental claims or action against FMC arising out of or related to FMC’s activities at the FMC sites.”

Any material regarding the designated subject matter which Peat Marwick or FMC received from or sent to third parties must be produced, excluding documents which fall within the scope of privileged communications in the course of litigation. Any environmental claims filed against FMC in court would be a matter of public record. Communications and documents which were transmitted only between FMC and Peat Marwick are not subject to disclosure.

The third group of information designated in the document request asks for:

“All documents concerning any environmental liability costs or environmental expenses arising at any time at the FMC sites.”

We find that all material within this request is privileged as it does not in any way relate to information conveyed to or received from third parties.

The fourth document category requests:

“All communications between or among you and FMC of any other person concerning environmental liability costs, expenses, or anticipated costs, expenses of liabilities arising at any time at the FMC sites.”

To the extent any communication was received by or given to a third party, outside the privileged confines of pending litigation, such communications must be produced. However, communications conveyed only between FMC and Peat Marwick are protected.

The fifth and final category of documents specified in the subpoena states:

“All communications and documents concerning expenditures for capital improvements undertaken to control, maintain, monitor, prevent and/or detect the release, dispersal or spillage of any hazardous substances or chemical waste at any of the FMC sites.”

Such information is to be produced only to the extent that “expenditures for capital improvements” are disclosed, if at all, in documents filed with a third party, such as taxing authorities.

We agree with the trial court that the majority of documents requested in the subpoena are within the scope of the accountant privilege. However, we reverse and remand to allow the trial court to give effect to those portions of the subpoena for which we have required Peat Marwick’s compliance.

Reversed and remanded with directions.

RIZZI and CERDA, JJ., concur.

       Prior Federal cases have construed the accountant privilege statute of Illinois as having established a privilege which can be claimed only by the accountant, but those cases did not address the scope of the privilege. (Western Employers Insurance Co. v. Merit Insurance Co. (N.D. Ill. 1979), 492 F. Supp. 53; Dorfman v. Rombs (N.D. Ill. 1963), 218 F. Supp. 905.) In contrast, accountant privilege statutes in other States provide the holder of the privilege to be the client. E.g., Georgia (Gearhart v. Etheridge (1974), 232 Ga. 638, 208 S.E.2d 460); Indiana (Ernst & Ernst v. Underwriters National Assurance Co. (1978), 178 Ind. App. 77, 381 N.E.2d 897); New Mexico (Ash v. H.G. Reiter Co. (1967), 78 N.M. 194, 429 P.2d 653); and Tennessee (Federal Insurance Co. v. Arthur Anderson & Co. (Tenn. 1991), 816 S.W.2d 328).

       In a cogent dissent, Justice Clark limited the matter exempt from the privilege to information given by the clients “to the extent that it was actually disclosed upon their [tax] return.” (October, 124 Ill. 2d at 482 (Clark, J., dissenting).) Accordingly, the communications and documents rendered to the accountant would all be privileged except those materials actually disclosed. Although the analysis in the dissent appears to fulfill the legislative goal of section 27, it is not for an intermediate court of review to ignore recent pronouncements of our supreme court.