text:
    JOHN P. MILLER, Plaintiff-Appellee, v. AMERICAN NATIONAL FIRE INSURANCE COMPANY, Defendant-Appellant.
    Third District
    No. 3 — 91—0182
    Opinion filed November 8, 1991.
    — Rehearing denied December 23, 1991.
    Law Offices of Day & Day, of Peoria (Robert G. Day, Jr., of counsel), for appellant.
    Kuhfuss, Kuhfuss & Kepple, of Pekin (W. Thad Kuhfuss, of counsel), for appellee.
   JUSTICE McCUSKEY

delivered the opinion of the court:

The defendant, American National Fire Insurance Company, appeals the entry of summary judgment by the trial court in favor of the plaintiff, John Miller. We affirm.

Miller owned certain farmland and a 50% interest in the crops located thereon. A tenant farmer owned the other 50% interest. The tenant farmer is not a party in this appeal.

During the crop year in question, Miller obtained multiple-peril crop insurance which insured his 50% interest in the corn and soybean crops planted on his farmland. The insurance policy covered loss of crops due to adverse weather such as hail, wind, etc.

Miller’s insurance policy covered his interest in a soybean field not following a crop (NFAC), as well as his interest in a separate soybean field following a crop (FAC). Miller paid two separate and distinct insurance premiums for each of the two soybean fields insured. The term “following a crop” means that soybeans have been planted in the same field that has had another crop during the same planting season. The insurance carrier, because of the different risks involved with the NFAC fields and the FAC fields, uniformly charges different rates when insuring such fields. Miller suffered hail damage to the soybeans planted on the FAC field.

The provisions of Miller’s insurance policy contained price and bushel guarantees for each field (FAC and NFAC). The price for both fields was identical ($6.17), but the bushel guarantee was different. The guarantee for the soybean field planted FAC was 1,333 bushels. The guarantee for the soybean field planted NFAC was 1,749 bushels.

There was no dispute that the soybean production for the FAC soybean field was nil while the production of the NFAC field was 2,694 bushels. The insurance carrier allotted Miller the full bushel production and price guarantee of 1,333 bushels at $6.17 per bushel respectively, which amounted to a total loss of $8,225. This amount was reduced to reflect Miller’s 50% interest in this field for an actual loss of $4,112.

The NFAC soybean field produced 2,694 bushels, which exceeded the production guarantee by 945 bushels. The insurance carrier multiplied those excess bushels by the price guarantee of $6.17 per bushel and determined that the NFAC field produced a surplus of $5,831 over the guarantee. The insurance carrier calculated the surplus attributable to Miller to be $2,916, which represented his 50% interest in the crops on the NFAC field. The insurance carrier then combined Miller’s loss of $4,112 on the FAC field and subtracted from it the $2,916 surplus from the NFAC field. The insurance carrier finally determined Miller’s net insurable loss to be $1,196. Miller, however, insisted that he was entitled to the net insurable loss from the FAC field ($4,112) without any offset from the NFAC field.

Miller sued the insurance carrier to recover the $4,112. Miller claimed that because the FAC soybean field was separately scheduled on his insurance policy, he was entitled to the loss he suffered exclusively on that field. Both parties filed motions for summary judgment. The trial court granted Miller’s motion for summary judgment and the insurance carrier appeals.

The insurance carrier contends the trial court erred in holding that the crop damage should be determined solely from the FAC field without considering the overall production of both fields. The insurance carrier claims the terms of the insurance policy permit it to combine the production from both fields to compute the total loss payable.

It is undisputed Miller suffered a total soybean crop loss on the FAC field. The schedule of insurance for that field provided coverage limits of $4,112. Miller made no claim whatsoever for damage to the

NFAC field. Each field was separately scheduled with a separate premium set forth on the insurance policy.

The insurance policy provides in pertinent part:

“3. CROP, ACREAGE AND SHARE INSURED.
The crop(s) insured for each crop year will be:
a. those shown on your Schedule of Insurance;
b. that for which we provide a guarantee and a premium rate and will include:
(1) field corn planted for harvest as grain;
(2) soybeans planted for harvest as beans; or
(3) combine-type grain sorghum planted for harvest as grain;
4. CLAIM OF LOSS.
A. You must establish the total production of the insured crop on the farm unit and the amount of any loss of production that has been directly caused by one or more of the insured causes during the insurance period.
B. Losses will be determined by us for each farm unit and will be calculated from the information you supplied on your acreage report or the information determined by us to be correct. If you cannot establish the total production of the insured crop for any optional unit we will determine your loss by combining those optional units so that the total production can be determined.
C. We will pay you the deficiency, if any, between the amount of insurance for the farm unit show [sic] on your Schedule of Insurance and your production to count multiplied by your insured crop price election times your share.
D. The total production to be counted from all insurable acreage for the farm unit will include all appraised and harvested production of the insured crop(s), and, on a weight basis, production from any other crop(s) growing with the insured crop.” (Emphasis added.)

The soybeans FAC constitute an “insured crop” under paragraph 3 of the policy because they are the crop shown on the insurance schedule for which a guarantee and individual premium rate are charged. The premium rates for each field are different. The premium rate for soybeans FAC is $263, while the soybeans NFAC is $237. Each crop possesses a different risk. For instance, the risk of crop damage to soybeans FAC is higher since the soybeans cannot be planted until the wheat harvest has been completed. The growing season is shorter, and when combined with the late planting, the crop is more susceptible to damage, which is reflected by the higher premium rate. Com and soybeans are both grown on the FAC field while only soybeans are grown on the NFAC field.

The claim of loss provision contained within section 4 of the policy requires plaintiff to establish the total production of the “insured crop” on the “farm unit.” Since each crop (NFAC and FAC) was separately scheduled, each was a separate crop for which coverage was provided under the policy. Miller is entitled to recover for all loss of a particular crop, i.e., either NFAC or FAC, which occurs on the entire “farm unit.”

The terms of the policy are sufficiently clear and unambiguous. Courts should enforce the provisions of an insurance policy that are clear and unambiguous. (Galindo v. Guarantee Trust Life Insurance Co. (1980), 91 Ill. App. 3d 61, 414 N.E.2d 265.) To the extent possible, the trial court should give effect to all provisions of an insurance policy and interpret the words according to their plain, ordinary, and popular meanings. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) The trial court’s ruling was consistent with the terminology and provisions contained within the policy. In interpreting the provisions of an insurance policy, the intent of the parties is a significant factor the court should also consider. Kaufmann v. Economy Fire & Casualty Co. (1979), 76 Ill. 2d 11, 389 N.E.2d 1150.

Therefore, the trial court’s ruling was consistent with the intent and clear meaning of the provisions of the policy. The trial court’s interpretation was appropriate under these circumstances because Miller had two separate and distinct farm units for which he had paid two separate and distinct premiums.

For the reasons heretofore indicated, the circuit court of Tazewell County is hereby affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GORMAN PRESIDING JUSTICE STOUDER,

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOEL C. CAIN, Defendant-Appellant.
    Third District
    Nos. 3 — 90—0785, 3 — 90—0738 cons.
    Opinion filed October 25, 1991 .
    — Rehearing denied December 23, 1991.
    STOUDER, P.J., dissenting.
    Verlin R. Meinz and Robert Agostinelli, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, Joel C. Cain, was convicted of seven counts of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3). The trial court initially sentenced him to four years’ probation under supervision of the Treatment Alternatives to Street Crime (TASC) program. It later revoked his probation when it found he had committed a residential burglary during his sentence. Following a hearing, it resentenced him to seven concurrent 15-year prison terms.

On appeal, the defendant contends that the court improperly considered two aggravating sentencing factors. He first objects to the following remarks by the court:

“Did the criminal conduct cause or threaten serious physical harm to another? Well, if physical harm is mental harm, in the original cases, which is why we’re here on [sic], the individuals who were burglarized have indicated in letters to the Court, which are part of the January 29 pre-sentence investigation, that they were having problems coping with the fact that their home had been invaded and some of their children were having problems adjusting and worrying about the nighttime hours and the fact their home had been invaded. That’s not an uncommon feeling, and that’s certainly, I think, one that should be considered by a burglar when he enters a residence, and certainly the legislature has contemplated that by making it a mandatory prison sentence except in the limited areas ***.”

The defendant contends that the trial court improperly relied on the causation or threat of harm as an aggravating factor, because such factors are implicit in residential burglary. See People v. Allen (1981), 97 Ill. App. 3d 38, 422 N.E.2d 254.

We begin our analysis by noting several well-established principles. The rule that a court may not consider a factor inherent in the offense is not meant to be applied rigidly, because sound public policy dictates that a sentence be varied in accordance with the circumstances of the offense. (People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138.) Accordingly, the degree of harm to a victim may be considered as an aggravating factor, even if that factor is arguably implicit in the offense. (See Saldivar, 113 Ill. 2d at 269, 497 N.E.2d at 1143.) The psychological harm to the victim may also be considered as an aggravating factor. (People v. Ehrich (1988), 165 Ill. App. 3d 1060, 519 N.E.2d 1137; People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233.) Lastly, the trial court can consider the letters in the presentence report as evidence of the impact on the victims. Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 3— 2(a)(3); People v. Hengl (1986), 144 Ill. App. 3d 405, 494 N.E.2d 937.

Applying the foregoing principles to the instant case, we find no error. A residential burglary can result in varying degrees of psychological harm, depending on the circumstances of the offense and the victim’s disposition. We find that the trial court could consider the letters as evidence of the varying levels of psychological harm suffered by the victims.

The defendant also contends that the trial court erred in stating that “[the defendant] received compensation for committing the offense. Certainly, that’s the nature of burglary.” The defendant argues that the court improperly considered his receipt of proceeds as an aggravating factor, because that factor is implicit in residential burglary. See People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906.

We find no error. The court made the remarks while generally discussing the list of mitigating and aggravating factors found in the statutes (see Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.1, 1005 — 5—3.2). In our judgment, the court did not rely on the receipt of proceeds as an aggravating factor. Rather, it merely recognized that such a factor is inherent in residential burglary.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

BARRY, J., concurs.

PRESIDING JUSTICE STOUDER,

dissenting:

I disagree with the majority’s conclusion that the trial court did not err in considering as an aggravating factor whether the defendant’s conduct caused or threatened serious harm. The defendant in the instant case was convicted of residential burglary, which the Code defines thusly: “A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.” (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 3.) The defendant had no contact with the property owners in this case. This was strictly a property crime. In my view the majority is allowing the provisions of the statute governing factors in aggravation (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—3.2) to be stretched beyond reason and in a manner which is fundamentally unfair to the defendant.

The case law relied on by the majority is readily distinguishable. The cases all involve some physical contact or at least presence of the victim, and the crimes contain some element of wrongdoing against a person. People v. Saldivar (1986), 113 Ill. 2d 256, 497 N.E.2d 1138 (voluntary manslaughter); People v. Ehrieh (1988), 165 Ill. App. 3d 1060, 519 N.E.2d 1137 (home invasion); People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233 (indecent liberties).

In Ehrieh, the fourth district upheld the trial court’s consideration of the psychological injury to two small children which resulted from the defendant's entry of their home. The defendant had entered the home after a day and evening of drinking. He went to the room of a young girl, and was found holding the girl by her father. A struggle ensued between the father and the defendant. At trial, evidence was presented that both the girl and her brother suffered from psychological trauma as a result of the incident. After discussing the Saldivar case, the fourth district concluded that since the home invasion caused harm (psychological harm to children) which was not the end result of all home invasions, the trial court properly considered this harm as an aggravating factor.

Again, in the instant case there was no contact with any of the property owners. The owners in this case experienced the same sense of violation and insecurity that all victims of a residential burglary feel. Though I am sympathetic to the trauma these owners experienced, I do not believe the statute governing aggravating factors supports this kind of consideration in a purely property offense.

In addition, there is the difficulty of considering the specific injury attributable to each owner. Each of the burglaries involved a different residence; however, the effects were considered in gross in determining sentence and were not given individual consideration. For these reasons, I dissent.


author: JUSTICE SLATER JUSTICE HAASE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CLEMIE LINER, Defendant-Appellant.
    Third District
    No. 3 — 90—0602
    Opinion filed November 21, 1991.
    HAASE, J., dissenting.
    Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The trial court found the defendant, Clemie Liner, guilty of retail theft (Ill. Rev. Stat. 1989, ch. 38, par. 16A — 3(a)). His prior conviction for retail theft was subsequently proved up and the court convicted him of a Class 4 felony. The court imposed an 18-month term of imprisonment. The defendant appeals.

At trial, police officer Marshall Dunnigan testified that he and Officer Vincent Wieland were seated in their squad cars near a Walgreens store on the night in question. They were talking to each other when they observed the defendant and Darvis “Pookey” Thornton walking together. Officer Dunnigan suggested that Officer Vincent should familiarize himself with Pookey.

So that Vincent could get a better look, the officers drove to the Walgreens store which they had observed the defendant and Pookey enter. According to Dunnigan, as he and Marshall entered Walgreens, Pookey was hurrying out of the store, holding something under his coat. Dunnigan heard someone yelling that a black male had just stolen his wallet. He then chased Pookey, but was unable to catch him. Dunnigan came across a broken bottle of whiskey on the street during his pursuit of Pookey, but did not observe him drop it.

Officer Vincent Wieland’s testimony corroborated Dunnigan’s. He added that he believed Pookey was carrying a liquor bottle when exiting Walgreens, because he saw dark-colored glass in Pookey’s jacket and his hand holding it underneath the hem. As Wieland was chasing Pookey, he saw him throw a bottle away. A search resulted in the recovery of a broken bottle of Seagrams whiskey.

As the officers searched for Pookey, the defendant approached Officer Wieland and told him that the man they had been chasing had stolen his wallet at Walgreens. When Wieland asked the defendant if he knew the subject, the defendant denied knowing him. Wieland then placed the defendant under arrest and took him back to Walgreens, where the clerk identified him. After Officer Wieland read the defendant his rights, the defendant said he understood them and wished to talk with Wieland.

The defendant first told Wieland that when he had laid his wallet on the counter at Walgreens to purchase some beer, an unknown black male had taken the wallet and run away. When Wieland told the defendant that he had seen him with Pookey before they entered the store, the defendant changed his story. He admitted that he and Pookey had intended to steal a fifth of Seagrams from the store. The defendant’s role was to create a disturbance, which he did by claiming Pookey had stolen his wallet. The defendant also told the officers that Pookey had been staying with him and they could probably find him at the defendant’s home. The officers went to the defendant’s address and arrested Pookey.

Scott Toft, the Walgreens liquor clerk on duty at the time of the incident, testified that the defendant and another black man had come into the store together. After they brought a bottle of Seagrams gin to the counter, one man had accused the other of stealing his wallet and a loud argument had ensued for approximately three to five minutes. Toft’s attention was on the men the whole time. Toft stated that he motioned to his manager to come over and escort them out, but the two men left on their own. The bottle of Seagrams gin remained on the counter when they left. Toft noted that he did not see anyone take anything from the store.

At the close of evidence, the trial court found the defendant guilty of retail theft. On appeal, the defendant argues that he was not proven guilty beyond a reasonable doubt since the State failed to show that the Walgreens store was missing any merchandise.

It is well established that on review of a conviction, this court must examine all the evidence in the light most favorable to the State to determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E .2d 267.) It is also well settled that the State must prove each element of the crime charged beyond a reasonable doubt. (In re Winship (1970), 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068.) In particular, the State must prove the following essential elements of retail theft: (1) that the defendant knowingly took possession of, carried away, transferred, or caused to be carried away or transferred, any merchandise; (2) that the merchandise was displayed, held, stored, or offered for sale in a retail mercantile establishment; and (3) that the defendant intended to retain such merchandise, or intended to deprive the merchant permanently of the possession, use, or benefit of such merchandise, without paying the full retail value of such merchandise. People v. Wynn (1980), 84 Ill. App. 3d 591, 406 N.E .2d 35.

After reviewing the evidence in the light most favorable to the prosecution, we conclude that the defendant’s conviction must be reversed due to the State’s failure to prove, beyond a reasonable doubt, the second element of retail theft listed above. The record reveals that the State did not offer any evidence that the Walgreens store was missing any merchandise. Toft, the Walgreens clerk, did not testify that anything was missing from the store. In fact, he affirmatively stated that he did not see the defendant or Pookey take anything from the store. Additionally, although Officer Wieland testified that he saw Pookey throw a bottle during the chase, which the officers later discovered was a broken bottle of Seagrams whiskey, the State did not offer any evidence to connect that particular bottle to the Walgreens store. In fact, the State did not introduce any of the bottle fragments into evidence at trial. We believe that something more was required to show that the whiskey bottle had actually come from the Walgreens store and was not already in Pookey’s possession when he entered the store. Under these circumstances, we conclude that the State’s evidence left a reasonable doubt about the defendant’s guilt.

The judgment of the circuit court of Peoria County is reversed.

Reversed.

GORMAN, J., concurs.

JUSTICE HAASE,

dissenting:

I hereby respectfully dissent from the opinion of the court in this case. The commission of any offense may be established entirely by circumstantial evidence. (People v. Williams (1977), 66 Ill. 2d 478, 484.) Circumstantial evidence is defined as the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. See Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. Supp. 1989).

In this case the defendant admitted that he and Darvin “Pookey” Thornton entered the Walgreens store with the intent to create a diversion and steal alcohol. The evidence showed that the two men entered the store and did create a diversion. Officer Wieland testified he saw “Pookey” carrying what he believed to be a liquor bottle out of the store. Wieland testified that “Pookey” had the bottle under the hem of his jacket. As Wieland chased “Pookey,” he saw “Pookey” throw a bottle away. A search of the area turned up a broken bottle of Seagrams whiskey. This happened to be the exact same type of alcohol and the same brand of whiskey the defendant admitted he and “Pookey” intended to steal.

The majority opinion concludes that the defendant’s conviction must be reversed because of the State’s failure to prove, beyond a reasonable doubt, that the merchandise in question was displayed, held, stored, or offered for sale in a retail mercantile establishment. They opine that the case is fatally defective on this element of proof due to the fact that no one from the Walgreens store testified that anything was missing from the store. They further rely on the fact that Toft, the Walgreens clerk, did not testify that anything was missing from the store. The majority analysis seems to require that someone see a defendant take the product from the store (i.e., have direct evidence of the theft) or that the store personnel be able to testify that a specific item was missing. In a situation in which no one sees the actual theft, the majority view would require something akin to an inventory of the department in order to establish whether or not an item was gone. That is a burden which I do not believe the law requires the prosecution to undertake.

In this case there was overwhelming circumstantial evidence of the intent of the defendant to steal the item. There was also overwhelming circumstantial evidence that the defendant and a co-conspirator entered the store to steal a bottle of Seagrams whiskey and that they caused a diversion in order to accomplish that. There is also strong evidence that when the codefendant left the store he was carrying the very type of item which he is accused of taking and that he threw it away when observed by the police. In my opinion, there was more than sufficient evidence to satisfy the test stated by our supreme court in People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267. Under that test, when the court examines all the evidence in the light most favorable to the State, the court must determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Upon a review of the record in this case, it is my opinion that the trier of fact could have so found the defendant guilty beyond a reasonable doubt. Accordingly, I respectfully dissent from the majority opinion herein.


author: JUSTICE CHAPMAN

text:
    VERNA JOHNSON, Plaintiff-Appellee, v. DONALD E. HERMANSON, Defendant-Appellant (Unknown Owners, Defendants).
    Fifth District
    No. 5 — 90—0686
    Opinion filed November 20, 1991.

      Willis L. Hog, of Lebanon, for appellant.
    Terry J. Neubauer, of Fairview Heights, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This action originated from a “Bond for Deed” agreement entered into by the parties in July 1988. On October 23, 1989, plaintiff filed a “Complaint Forcible Detainer” claiming possession of said property under “Bond for Deed Agreement, Declaration of Forfeiture and Extinguishment of Rights.” On February 26, 1990, after stipulating as to certain payments and expenses to be paid by defendant, the parties agreed to present the remainder of their dispute before the court. The only issue before the court was the amount “due and owing” on the “Bond for Deed” agreement. On March 6, 1990, the court found the remaining amount of the “balloon payment” owed to be $15,709.19 and instructed counsel to prepare a final order.

The parties thereafter agreed to a closing date of Monday, March 26, 1990. According to plaintiff, on Friday, March 23, 1990, she contacted defendant’s attorney and expressed her expectation to be paid at the time of closing an additional $478.33 in per diem costs for defendant’s use of the subject property from February 15, 1990, until the date of closing. Defendant claims this request was not made until 10 minutes after the scheduled closing time of 2 p.m., March 26, 1990. Defendant had already deposited the previously ordered sum in escrow, and consequently he refused to pay the additional per diem amount. Plaintiff refused to close under those circumstances. Defendant subsequently filed a “Motion to Compel Settlement and Conveyance of Deed” to the defendant. The circuit court entered judgment for plaintiff based on its conclusion that defendant failed to tender all monies due under the “Bond for Deed” including the per diem interest to the date of closing. The court found the demand for per diem was timely made by the plaintiff, and that in view of defendant’s refusal to pay the per diem, plaintiff was not required to tender the deed and was within her rights in terminating the “Bond for Deed.”

Defendant argues that on February 26, 1990, the parties entered into a stipulated settlement agreement and that only the issue of the amount “due and owing” remained to be decided by the court. Defendant contends that there was a binding settlement agreement which could not be unilaterally altered. For the reasons which follow, we hold that the circuit court erred in its holding and we therefore reverse.

When the parties appeared before the court on February 26, 1990, they had already stipulated to the following payments due and owing: real estate taxes for 1988; interest on said taxes; the fair rental value of the property for November and December 1989 and January and February 1990; and contract payments for September and October 1989. Both parties stated that only the amount due and owing on the “balloon payment” remained at issue. On March 6, 1990, the court issued an order determining the amount due and owing on the “balloon payment” and instructing counsel to prepare a final order disposing of all issues. No mention of any per diem costs or interests occurred at the hearing or were noted in the order. The issue thus becomes, was there a settlement agreement reached by the parties on February 26, 1990, and finalized by the court in its March 6 order? The record indicates that both parties considered all issues “moot” with the exception of the “balloon payment” and demonstrates that the parties had entered into an oral agreement to finalize the transaction pending the March 6 order. We hold that such an agreement, once finalized by the order on the “balloon payment,” was tantamount to a settlement agreement.

Settlements based on oral agreements may be enforced as long as there is clearly an offer and an acceptance and a meeting of the minds as to the terms of the agreement. (Sheffield Poly-Glaz, Inc. v. Humboldt Glass Co. (1976), 42 Ill. App. 3d 865, 868-69, 356 N.E.2d 837, 840.) The fact that this dispute had lingered on for an extended period of time without conclusion and, as the record shows, the litigants became willing to settle their differences and place before the court the final issue clearly indicates an offer and an acceptance of a compromise. To establish a cause of action for enforcement of a settlement agreement, its proponent must not only show offer and acceptance, he must also show that the agreement was supported by good consideration. (Thornberry v. Board of Education (1972), 8 Ill. App. 3d 351, 353, 290 N.E.2d 360, 361.) The mutual concessions of termination of the litigation constituted sufficient and valid consideration to support the settlement agreement to end the dispute. (Knoll v. Swanson (1968), 92 Ill. App. 2d 398, 403, 234 N.E.2d 543, 546.) The record establishes that the parties knowingly and voluntarily accepted the settlement. We hold that there was a meeting of minds as to the terms of the agreement. Any misunderstanding was unilateral, and the plaintiff in this case is bound to the agreement knowingly entered. Kalman v. Bertacchi (1978), 57 Ill. App. 3d 542, 548, 373 N.E.2d 550, 555.

When the parties brought the remaining issue of “all sums due and owing” before the court on February 26, 1990, they were entering into a settlement agreement. The fact that the parties had specifically stipulated on amounts due and owing, even to the interest on the 1988 real estate taxes which amounted to only $36.28, establishes that they had come to terms on all amounts due and owing with no essential terms left to future negotiations and only the issue of the “balloon payment” still to be decided by the court. Upon entering its March 6, 1990, order, the court, fully aware of the elements and stipulations, approved and finalized the settlement agreement.

Public policy favors settlements and dictates that, in the absence of fraud or duress, settlements once made should be final. (Fitzgerald v. Theisen (1981), 101 Ill. App. 3d 193, 196, 427 N.E.2d 1044, 1046.) Once a court approves a settlement, it merges all included claims and causes of action and is a bar to further proceedings. (Keim v. Kalbfleisch (1978), 57 Ill. App. 3d 621, 624, 373 N.E.2d 565, 568.) Agreements in settlement of litigation cannot be unilaterally altered as to material terms without the consent of both parties. (In re Marriage of Maher (1981), 95 Ill. App. 3d 1039, 1043, 420 N.E.2d 1144, 1147.) The record shows no sign of fraud or duress, and the March 6 order was equivalent to an approval by the court of the settlement agreement. The addition of the per diem to the finalized settlement was a unilateral alteration as to a material fact, “all amounts due and owing,” without the consent of both parties. As such, the circuit court erred in its September 18, 1990, order by including the per diem amount as part of the “total amount of monies due” and in finding that a proper tender of monies due under the said “Bond for Deed” had not been made by the defendant. Where the contract requires money to be paid by the vendee and deed delivered by the vendor at a certain time, those covenants are mutual and dependent. Relief will not be denied where there is a fair and valid contract and the party seeking performance has performed, or offered to perform, all the terms and conditions required of him. Miller v. Shea (1921), 300 Ill. 180, 184, 133 N.E. 183, 184.

For the foregoing reasons, we hold that the circuit court erred in its September 18, 1990, finding for the plaintiff, Verna Johnson. We, therefore, reverse and remand to the trial court for a disposition consistent with this opinion.

Reversed and remanded.

GOLDENHERSH and HARRISON, JJ., concur.


author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDALL BLAKE, Defendant-Appellant.
    Third District
    Nos. 3 — 90—0439 through 3 — 90—0444 cons.
    Opinion filed August 14, 1991.
    — Modified opinion filed September 3, 1991.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Marshall E. Douglas, State’s Attorney, of Rock Island (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Randall Blake, was convicted of eight counts of aggravated criminal sexual abuse and two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 16, 12 — 14). He appeals three of the convictions for aggravated criminal sexual abuse and one of the convictions for aggravated criminal sexual assault. We reverse.

We shall limit our discussion to the facts relevant to the convictions being appealed. In case number 3 — 90—0440, the State charged the defendant with two counts of aggravated criminal sexual abuse. Specifically, it alleged that in the summer of 1984 he committed two acts of sexual conduct with J.M. In case number 3 — 90—0441, the State charged the defendant with one count of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. There, it alleged that in the summer of 1984 he committed one act of sexual conduct and one act of sexual penetration with B.K.

At trial, J.M. testified that one day in the summer of 1984 she was playing in a swimming pool when the defendant touched her breasts and vagina. He also made her touch his penis. Later that day, he drove her and B.K. to his mother’s house, where he again touched her breasts and vagina. He also placed his mouth on her breast and tried to insert his penis in her vagina. She could not identify the day or month in which the offenses occurred.

B.K. testified that one day in the summer of 1984 she was playing in a swimming pool when the defendant touched her vagina and placed her hand by his penis. Later that day, he drove her and J.M. to his mother’s house, where he touched her breasts and vagina. He also tried to insert his penis in her vagina. Like J.M., she could not identify the day or month in which the offenses occurred.

The trial court found the defendant guilty on all four counts. However, it made no findings as to when the offenses occurred. Following a sentencing hearing, it sentenced him in case number 3 — 90— 0440 to seven years for each count of aggravated criminal sexual abuse. In case number 3 — 90—0441, it sentenced him to nine years for aggravated criminal sexual assault and seven years for aggravated criminal sexual abuse. All of the sentences were to be concurrent.

On appeal, the defendant notes that the statutes under which he was charged were enacted by Public Act 83 — 1067 (the Act), which became effective on July 1, 1984. (Ill. Rev. Stat. 1985, ch. 38, pars. 12— 14, 12 — 16.) He further states that the informations alleged and the witnesses testified that he committed the offenses in the summer of 1984. Consequently, he argues that his convictions must be reversed because the State failed to allege and prove that his offenses occurred after the effective date of the statute.

Initially, we note that the defendant did not raise this issue at trial or in a post-trial motion. Consequently, we shall reverse only if plain error occurred. People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.

We further note that the Act substantively changed the law governing sex offenses in Illinois. (See People v. Fisher (1985), 135 Ill. App. 3d 502, 481 N.E.2d 1233.) Therefore, it may not be applied retroactively. People v. J.S. (1984), 103 Ill. 2d 395, 469 N.E.2d 1090.

Applying the foregoing principles to this case, we find that the defendant’s convictions must be reversed. Since the Act took effect on July 1, 1984, the information was only effective for alleging offenses after that date. (People v. Streit (1990), 193 Ill. App. 3d 443, 550 N.E.2d 244.) However, the State’s witnesses merely testified that the instant offenses occurred in the summer of 1984. Since the offenses could have occurred before the effective date, we must conclude that the defendant was not proved guilty beyond a reasonable doubt. We therefore reverse his convictions and vacate his corresponding sentences as plain error. People v. Wasson (1988), 175 Ill. App. 3d 851, 530 N.E.2d 527.

The defendant’s convictions in case numbers 3 — 90—0440 and 3— 90 — 0441 are reversed, and his corresponding sentences are vacated.

Reversed and sentences vacated.

STOUDER, P.J., and GORMAN, J., concur.


author: JUSTICE HAASE

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL R. JOHNSON, Defendant-Appellee.
    Third District
    No. 3-90-0771
    Opinion filed November 19, 1991.

      Kevin W. Lyons, State’s Attorney, of Peoria (Elizabeth A. Klug, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Joseph M. Gibson, of Peoria, for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

The defendant, Michael Johnson, was charged by indictment with aggravated criminal sexual abuse. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(c)(2)(i).) The defendant filed a motion to suppress statements. Following a hearing, the trial judge determined that the defendant’s statement to an investigator from the Department of Children and Family Services (DCFS) was involuntary. The trial judge also suppressed the defendant’s subsequent statement to police. The State appeals. We affirm.

The defendant lived with his grandmother, Augusta Faulkner. Faulkner is a licensed foster parent in Illinois. On June 3, 1990, a Sunday, Jay Brenneman, a DCFS investigator, contacted Faulkner by phone and requested that both she and the defendant come to his office. Brenneman informed Faulkner he wished to speak to her and the defendant about a problem with her foster parent license. After they arrived, Brenneman informed Faulkner he wished to speak with the defendant alone. Brenneman then took the defendant into a 10- by 14-foot windowless office. Brenneman questioned the defendant about an alleged sexual abuse case involving a five-year-old foster child who had been placed with Faulkner. The defendant adamantly denied he had improperly touched the child. After more than 45 minutes of questioning, however, the defendant orally admitted his involvement. During this time, Faulkner interrupted the interview several times and informed Brenneman that she wished to speak to the defendant. Brenneman informed Faulkner that the interview would be over in a few minutes and that she would have to wait in the hall outside the office. Brenneman then had the defendant sign a written statement admitting his guilt and contacted the police. At no time did Brenneman inform the defendant of his constitutional rights.

The police then came to the DCFS offices and arrested the defendant. David Nelson, a Peoria police officer, interviewed the defendant at the police station. After informing the defendant of his Miranda rights, Nelson asked the defendant if he wished to talk about the incident. The defendant indicated he did and Nelson began the inter-view. The defendant informed Nelson that he had not improperly touched the foster child. After several minutes of questioning, Nelson confronted the defendant with a written copy of the statement he gave to Brenneman. The defendant ultimately admitted his guilt.

At the suppression hearing, Brenneman testified that the defendant was not under arrest during the interview and that he informed the defendant he was not a police officer. Brenneman did inform the defendant he was a criminal investigator with DCFS and that he worked together with the police and State’s Attorney’s office. According to Brenneman, the defendant was free to go at any time during the interview and he did nothing to make the defendant believe otherwise.

Augusta Faulkner, the defendant’s grandmother, testified defendant had lived with her for 16 years, that he was enrolled in special education classes because he was slow, and that he was susceptible to suggestion. She also testified that he was taking the prescription medication Ritalin, which had been prescribed by Dr. Robert Hart because her grandson was hyper and for being kind of slow. She further testified that the investigator refused to let her accompany Michael during the interview. She stated that after 45 minutes she knocked on the door to the interview room and the investigator told her that Michael would be out in about five minutes. She said that 30 to 35 minutes more elapsed, at which time she knocked on the door again and asked “What’s going on?” She testified the investigator said “Oh, we be out, just give us a few more minutes.” She said later on the police came and took Michael away in handcuffs.

On cross-examination, she stated that Michael had always been held back in school and that he was never in regular classes and that he had been in special education ever since he had been out of kindergarten.

Michael Johnson, the defendant, testified about an interview that he had with Investigator Brenneman. He said that he kept saying to Investigator Brenneman that “I didn’t do it.” Michael said he was in a room with the door closed with his grandmother out in the hallway. He further stated that the investigator told him:

“If I would tell him this happened, he would let me go home. But if I didn’t tell him this happened, he — he’d have the police take me, like, to a police station, ask me questions; and when I go to trial, I would get — they would act, turn it around like I did criminal sexual assault, and I would go to the penitentiary. But if I didn’t, if I did sign the paper, I would I get counseling. They would come to my office. He could come to my house, see a couple of guys a week at least one day a week, two days a week to give me counseling if I sign the paper; and I would get to go home and there wouldn’t be nothing else. That, that’s the reason — then he said — that’s the reason, the reason I signed the paper. I told him that because I didn’t do nothing to Jeffy Evans. I want to go home. He wouldn’t let me leave unless I did that.”

The defendant further testified that the police officer wouldn’t allow him to leave and told him that if he did leave he, the investigator, would call the police and have him taken to the police station.

At the conclusion of the evidence, the court ruled that the confession to Brenneman was involuntary and should be suppressed. Following our recent decision in People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628, the court ruled the confession made to Nelson was also inadmissible. The court based its decision on the fact: (1) the defendant was one day over 17 years old at the time of the confession; (2) was denied access to his grandmother; (3) had developmental and learning problems; (4) was on medication for hyperactivity; and (5) was questioned in a custodial setting without the benefit of Miranda warnings. Given all of the above, the court ruled the confession to Brenneman was involuntary and should be suppressed.

Defendants have confessed to DCFS workers about child abuse and neglect in a number of cases in recent years. (See People v. Kerner (1989), 183 Ill. App. 3d 99, 538 N.E.2d 1223; People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628; People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121.) Some confusion has arisen about the admissibility of inculpatory statements made to DCFS workers and whether subsequent inculpatory statements made to the police are also admissible evidence. We attempt to clarify these questions at this time.

The Department of Children and Family Services was created by the legislature to protect and promote the welfare of the children of the State of Illinois. (Ill. Rev. Stat. 1989, ch. 23, par. 5001 et seq.) In charging DCFS with this weighty responsibility, the legislature vested DCFS with certain investigative powers. (Ill. Rev. Stat. 1989, ch. 23, par. 5021.) These powers include the right to subpoena the attendance and testimony of witnesses and the production of books and papers relevant to any DCFS investigation. In addition, the agency employs trained “Child Protective Investigators.” (Ill. Rev. Stat. 1989, ch. 23, par. 5021.) These investigators are required to be trained in: (1) the detection of symptoms of child neglect and drug abuse; (2) dealing with families and children of drug abusers; and (3) child development, family dynamics and interview techniques. (Ill. Rev. Stat. 1990, ch. 23, par. 5021(d).) As we noted in People v. Hagar (1987), 160 Ill. App. 3d 370, 375, the role of DCFS “investigators” is to inquire into abuse and neglect charges and instigate charges where appropriate. These investigators, however, are not police officers and do not have powers of arrest. See Ill. Rev. Stat. 1989, ch. 38, pars. 2 — 13, 107 — 2.

In determining whether any inculpatory statement made to a DCFS investigator is admissible, a trial court must first determine whether the suspect’s statement was voluntary. The United States Supreme Court has long recognized that involuntary statements procured by State actors are inherently unreliable and their use in criminal trials is not permitted. (Hopt v. People of Territory of Utah (1884), 110 U.S. 574, 28 L. Ed. 262, 4 S. Ct. 202 (adopting the common law rule prohibiting the use of confessions obtained by inducements, promises or threats); Zaing Sung Wan v. United States (1924), 266 U.S. 1, 69 L. Ed. 266, 45 S. Ct. 1; see also People v. Fox (1925), 319 Ill. 606, 150 N.E. 347.) This prohibition against the admission of involuntary confessions has been recognized and adopted by the Illinois legislature:

“Prior to the trial of any criminal case a defendant may move to suppress as evidence any confession given by him on the ground that it was not voluntary.” Ill. Rev. Stat. 1989, ch. 38, par. 114 — 11(a).

The test to determine whether a confession is voluntary is whether the defendant’s will was overborne at the time of the confession. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) This determination must be based on the totality of the circumstances. Consideration of a defendant’s age, education, mental capacity, emotional characteristics, and experience in criminal matters are all relevant in making this determination. (People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466; People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.) In People v. Berry (1984), 123 Ill. App. 3d 1042, 463 N.E.2d 1044, for example, the court suppressed a confession given by a 17-year-old of subnormal intelligence when the police conduct “border[ed] on deception.” In People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263, the court overturned the admission of a 17-year-old boy’s confession to indecent liberties with a child. The emotional vulnerability of the defendant was the primary factor leading to suppression of the statement. When confronted with a youthful defendant of subnormal intelligence, the greatest care must be taken to assure that a confession was voluntary and that it was not the “product of ignorance of rights or of adolescent fantasy, fright or despair.” In re Application of Gault (1967), 387 U.S. 1, 55, 18 L. Ed. 2d 527, 561, 87 S. Ct. 1428, 1458; see also People v. Simmons (1975), 60 Ill. 2d 173, 326 N.E.2d 383.

Subnormal mentality does not, however, ipso facto make a confession involuntary. As long as the defendant has the capacity to understand the meaning and effect of the confession, it may be held voluntary. (People v. Hester (1968), 39 Ill. 2d 489, 237 N.E.2d 466.) Mental subnormality is, however, a factor to be considered when determining the voluntariness of a confession, and, “where accompanied by other factors indicative of an absence of voluntariness, will require that the confession be excluded.” People v. Hester (1968), 39 Ill. 2d 489, 500, 237 N.E.2d 466, 474.

The State bears a heavy burden of showing that the statement was knowingly, intelligently and voluntarily made. (People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508.) If the trial court finds that the confession was not voluntary, a broad application of the “fruit of the poisonous tree” doctrine is mandated. (Oregon v. Elstad (1985), 470 U.S. 298, 307, 84 L. Ed. 2d 222, 231, 105 S. Ct. 1285, 1292.) This does not mean that all the “fruits” of an involuntary statement are lost forever. Subsequently obtained evidence may be admitted as competent evidence where intervening events break the causal connection between the illegally obtained confession and the subsequently obtained evidence. (Wong Sun v. United States (1963), 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.) In order to break the causal connection between an involuntary confession and a subsequently obtained confession, the State must show the second confession was sufficiently an act of free will so as to purge the primary taint. As the Supreme Court noted in Clewis v. Texas (1967), 386 U.S. 707, 18 L. Ed. 2d 423, 87 S. Ct. 1338, when a prior statement is actually coerced, the time that passes between confessions, the change in place of interrogations, and the change in identity of the interrogators all bear on whether the coercion has carried over into the second confession.

In the case at bar, the trial judge, after listening to all the evidence, determined that the defendant’s statement was not voluntary. In a motion to dismiss, a trial court’s factual determination is entitled to great weight and is not to be reversed on appeal unless it is against the manifest weight of the evidence. (People v. Mallett (1970), 45 Ill. 2d 388, 259 N.E.2d 241.) Based on a review of the record in this case, we are unable to state that the trial court’s finding on the issue of voluntariness was against the manifest weight of the evidence. We, therefore, affirm the order of the trial court.

Another issue raised in this appeal deals with the question of whether or not Miranda warnings must be given by investigators for the Illinois Department of Children and Family Services. Only after a confession has been determined to be free from actual compulsion does the question of Miranda warnings become relevant. In this case, where the trial court found that the defendant’s statement was not voluntary due to his age, mental capacity, medication and the custodial setting and technique of the investigator, it is not necessary to rule on the Miranda issue and we decline to do so at this time.

For the foregoing reasons, the judgment of the circuit court of the Tenth Judicial Circuit, Peoria County, Illinois, is hereby affirmed.

Judgment affirmed.

McCUSKEY and SLATER, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant, v. JACK E. PUCKETT, Petitioner-Appellee.
    Third District
    No. 3-91-0122
    Opinion filed November 14, 1991.

      Marshall E. Douglas, State’s Attorney, of Rock Island (Terry A. Mertel, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Gregory J. McHugh, of Appleton & McHugh, of Aledo (Mark A. Appleton, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Petitioner, Jack Puckett, filed a petition to rescind the statutory summary suspension of his driver’s license. The trial court granted the rescission based on the failure to hold a hearing within 30 days of petitioner’s request for judicial review as required by statute. The State appeals, and we affirm.

The record shows that on November 3, 1990, the petitioner was arrested and charged with the offense of driving under the influence of alcohol (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501(a)(2)). He was also served with notice of the statutory summary suspension of his driver’s license based on his refusal to submit to a breathalyzer test (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 501.1). A confirmation of statutory summary suspension was sent to the petitioner indicating that his license would be suspended as of December 19,1990.

On December 7, 1990, the petitioner filed a petition for judicial review of the summary suspension. On January 18, 1991, the petitioner filed a motion to immediately rescind the summary suspension on the grounds that no hearing had been conducted within 30 days of the filing of his petition for judicial review as required under section 2— 118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b)). Following a hearing on January 23, 1991, the trial court denied the motion to immediately rescind the suspension. On January 25, after reviewing additional case law, the trial court granted the petitioner’s motion to reconsider and ordered the summary suspension rescinded.

The issue raised on appeal is whether the statutory right to a hearing within 30 days begins to run upon the filing of a petition for judicial review of the statutory summary suspension with the circuit clerk, or whether the petitioner must do something more in order to commence the 30-day period (i.e., attempt to secure a hearing date).

Section 2 — 118.1(b) of the Illinois Vehicle Code provides in relevant part:

“Upon the notice of statutory summary suspension served under Section 11 — 501.1, the person may make a written request for a judicial hearing in the circuit court of venue. The request to the circuit court shall state the grounds upon which the person seeks to have the statutory summary suspension rescinded. Within 30 days after receipt of the written request or the first appearance date on the Uniform Traffic Ticket issued pursuant to a violation of Section 11 — 501, *** the hearing shall be conducted by the circuit court having jurisdiction.” Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).

The State argues that the mere filing of a petition for judicial review of a summary suspension is not a sufficient request for a hearing under section 2 — 118.1(b). The State contends that the petitioner must also attempt to set a hearing date in order to begin the 30-day period. We do not agree.

This issue was recently addressed by this court in People v. Johnson (1990), 202 Ill. App. 3d 809, 560 N.E.2d 430, where the petitioner filed a petition to revoke his statutory summary suspension with the circuit clerk and did nothing further. After 30 days elapsed, the petitioner filed a motion to strike the summary suspension for failure to hold a timely hearing. The motion was granted, and the State appealed. In affirming the rescission, this court noted that a petitioner seeking rescission of his summary suspension bears the burden of proceeding and the burden of proof. (Johnson, 202 Ill. App. 3d at 811, 560 N.E.2d at 431.) However, we held that once a petition for a rescission hearing has been filed with the clerk, the petitioner has met his burden under section 2 — 118.1 and the burden then shifts to the State to ensure that a hearing is held within 30 days. We further held that the failure to hold a hearing within 30 days is a violation of the right to due process and that the only appropriate remedy is to rescind the summary suspension. Johnson, 202 Ill. App. 3d at 812, 560 N.E.2d at 431.

We are aware that other districts have reached a different conclusion on this issue. (People v. Hill (4th Dist. 1991), 219 Ill. App. 3d 259; People v. Sowers (5th Dist. 1990), 203 Ill. App. 3d 1059, 561 N.E.2d 469; People v. Grange (2d Dist. 1989), 181 Ill. App. 3d 981, 537 N.E.2d 1153.) In order to grant the State’s requested relief, we would have to reverse our decision in Johnson. We decline to do so.

In In re Summary Suspension of Driver’s License of Trainor (1987), 156 Ill. App. 3d 918, 923, 510 N.E.2d 614, 618, the court held that “in order to comply with due process requirements, the hearing required in section 2 — 118.1 must be held within the 30 days unless delay is occasioned by the defendant, and failure to do so will require rescission of the suspension.” In the case at bar, the delay was not occasioned by the petitioner. The statute requires that the petitioner make a written request for a judicial hearing to the circuit court of venue. Petitioner met this requirement by filing his petition for judicial review with the clerk of the circuit court and by sending a copy of the petition to the State’s Attorney’s office. The statute also requires that “[wjithin 30 days after receipt of the written request *** the hearing shall be conducted by the circuit court having jurisdiction.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 951/2, par. 2 — 118.1(b).) No hearing was held within 30 days of the petitioner’s request.

The confirmation of statutory summary suspension which was sent to the petitioner clearly set forth the procedure for obtaining judicial review. In relevant part, it stated as follows:

“You have the right to petition for judicial review of the Statutory Summary Suspension. Petitions must be filed in writing and submitted to the Clerk of the Circuit Court of the Court shown on the front of this Confirmation of Statutory Suspension.”

Petitioner met the filing requirements of section 2 — 118.1 and thus fulfilled his burden of proceeding with the petition. Because no hearing was held within 30 days of the filing of the petition for judicial review by the petitioner, the trial court correctly rescinded the statutory summary suspension.

For the reasons stated above, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

GORMAN and HAASE, JJ., concur.


text:
    BANK USA, S.A., f/k/a United Savings Association, Plaintiff-Appellee, v. ANDREW L. SILL et al., Defendants-Appellants.
    Third District
    No. 3 — 90—0744
    Opinion filed November 27, 1991.
    HAASE, J., dissenting.
    Greg G. Chickris, of East Moline, for appellants.
    N.L. McGehee, of McGehee, Boling, Whitmire & Olson, Ltd., of Silvis, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

This is an appeal from the circuit court of Rock Island County wherein the trial court, by judgment dated September 24, 1990, entered a deficiency judgment in a foreclosure proceeding in favor of plaintiff and against defendants Andrew L. Sill and Jean E. Sill (the Sills).

The Sills purchased a home in the City of East Moline on July 26, 1983, and secured financing for the purchase from United Savings Association of Silvis, Illinois, plaintiff’s predecessor in interest. The Sills executed a 30-year note and mortgage providing for a monthly payment of $214 with interest at 13.25%. The Sills desired to sell the home in 1986 to defendants Paul and Cindy Williams (the Williams). The Sills contacted Bill Grimes, plaintiff’s loan officer, concerning an assumption of the mortgage by the Williams. Mr. Grimes consented to the sale but no written agreement was entered into between any of the parties at that time.

Subsequent to the completion of the sale, plaintiff and the Williams entered into a “Loan Modification Agreement,” wherein the parties reduced the monthly payment and interest rate on the remaining unpaid balance of the Sills’ loan, but maintained the same amortization period. The agreement further provided that the terms and conditions of the original note and mortgage were to remain in full force and effect. This document was executed without the Sills’ knowledge.

In August of 1987, the Williams became delinquent in their payments to plaintiff prompting a notice of acceleration letter from plaintiff’s attorneys to the Sills. In this letter plaintiff’s attorneys acknowledged that the Williams “assumed and agreed to pay” the debt but nonetheless maintained the Sills were obligated to cure the default under the original note and mortgage. The default was thereafter cured by the Williams. In September of 1987, a second notice of acceleration letter was sent to the Sills indicating that the Sills were liable under the note and mortgage but referring to the loan modification agreement as an “Assumption Agreement.” This default was not cured, and a foreclosure proceeding was commenced resulting in a deficiency judgment against the Sills for $9,982.60.

Two issues are raised on appeal: first, whether plaintiff’s execution of the loan modification agreement released the Sills from liability under the original note and mortgage; and second, whether plaintiff’s actions of altering the terms of the note and mortgage without notice to the Sills released the Sills from liability under the original note and mortgage.

Regarding the first issue, paragraph 17 of the mortgage reads, in part, as follows:

“Transfer of the Property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, *** Lender may, at Lender’s option declare all sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing to the effect that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in paragraph 17, and if Borrower’s successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and Note ***.”

Clearly, plaintiff did not exercise its option to accelerate the note pursuant to the provisions of paragraph 17. The question then is whether the loan modification agreement was in effect an assumption agreement accepted by plaintiff thereby releasing the Sills from liability. The loan modification agreement specifically states that all conditions and terms of the original note and mortgage, not altered by the agreement, were to remain in full force and effect. With this in mind, it is not unreasonable for plaintiff to have entered into a loan modification agreement with the Williams so long as the Sills would still be ultimately responsible for any liability that might arise in the future due to any default under the note and mortgage.

Additionally, the Sills’ argument that plaintiff must have believed the loan to have been assumed by the Williams through the use of the assumption language in deficiency notices is without merit. Even though this language was used, it is clear that plaintiff sent these notices to the Sills and unquestionably stated that the Sills were obligated to cure the default or be subject to foreclosure proceedings.

Finally, paragraph 10 of the mortgage states that “[ejxtension of the time for payment or modification of the sums secured by this mortgage granted by lender to any successor in interest of borrower shall not operate to release, in any manner, the liability of the original borrower.” This clause further supports plaintiff’s argument that the loan modification agreement was not an assumption of the debt, but merely a revision of the amortization of the loan which the Williams agreed to pay.

Secondly, the Sills argue that plaintiff, by entering into the loan modification agreement, materially altered the terms of the original note and mortgage. The changes complained of are a lowering of the interest rate by 2.5% and a lowering of the monthly payment by $34.40 per month. These changes were made without the Sills’ knowledge or consent. As authority, the Sills cite Prudential Insurance Co. of America v. Bass (1934), 357 E. 72, 191 N.E. 284, Conerty v. Richtsteig (1942), 379 Ill. 360, 41 N.E.2d 476, and Prudential Savings & Loan Association v. Nadler (1976), 37 Ill. App. 3d 168, 345 N.E .2d 782. These cases, however, are distinguishable because in each case, the mortgagee and the grantee of the original mortgage entered into agreements extending the payoff dates of the original notes to the detriment of the original mortgagors. In each respective case, the court reasoned that when the mortgagee accepted benefits from the grantee, the mortgagor became a surety of the underlying debt. Thereafter, when the debt was extended without the knowledge or consent of the surety, the surety no longer had the option of paying off the debt after the original maturity date and then seeking to recover the amount paid from the grantor. The surety instead had to wait until the extension period had expired. Because of this detriment to the surety, each court determined that the original mortgagor had been discharged as a surety of the debt. See Bass, 357 Ill. 72, 191 N.E. 284; Conerty, 379 Ill. 360, 41 N.E .2d 476; Nadler, 37 Ill. App. 3d 168, 345 N.E.2d 782.

In this case, the SEs may arguably be construed as sureties of the underlying debt, but no detriment to the SEs resulted from the subsequent execution of the loan modification agreement by plaintiff and the WEiams. The payoff date of the loan remained the same. There is no evidence that the balance due at any given time would be greater under the modified amortization schedule than under the original amortization schedule. In fact, it appears that the modification agreement was a benefit to the SEs because in the event the WEiams defaulted in paying the debt, interest did not accrue as rapidly on the debt as it would have under the original amortization schedule thereby decreasing the balance due.

We therefore affirm the trial court’s order and judgment.

Affirmed.

GORMAN, J., concurs.

JUSTICE HAASE,

dissenting:

I respectfully dissent from the opinion of the court in this case. This transaction was governed by paragraph 17 of the mortgage, which reads in part as follows:

“Transfer of the property; Assumption. If all or any part of the Property or an interest therein is sold or transferred by Borrower without Lender’s prior written consent, *** Lender may, at Lender’s option, declare all sums secured by this Mortgage to be immediately due and payable. Lender shall have waived such option to accelerate if, prior to the sale or transfer, Lender and the person to whom the Property is to be sold or transferred reach agreement in writing to the effect that the credit of such person is satisfactory to Lender and that the interest payable on the sums secured by this Mortgage shall be at such rate as Lender shall request. If Lender has waived the option to accelerate provided in paragraph 17, and if Borrower’s successor in interest has executed a written assumption agreement accepted in writing by Lender, Lender shall release Borrower from all obligations under this Mortgage and Note ***.”

The language of paragraph 17 of the mortgage deals with two topics. The first, under the heading “Transfer of the Property,” is a due on sale clause. It gives the lender the right to declare all sums due and payable upon a transfer of the property. The next sentence of the paragraph provides for a waiver by the lender of the option to accelerate. Under that sentence, the waiver occurs if the lender and the buyer of the property reach agreement in writing that the credit of the buyer is satisfactory to the lender and that the interest payable on the sum secured shall be at such rate as lender shall request. That sentence states that such agreement is to occur prior to the sale or transfer.

The agreement did not occur prior to the sale in this case. Therefore, the waiver did not occur precisely in accordance with the terms of paragraph 17 of the mortgage. However, the parties agree in their briefs that the lender’s action in continuing to accept payments and not accelerate the loan amounted to a waiver.

The second portion of paragraph 17 deals with assumption agreements. Under that language, it says that if the lender has waived the option to accelerate, and if borrower successor in interest has executed a written assumption agreement accepted in writing by lender, lender shall release borrower from all the obligations under this mortgage and note. In this case, a waiver did occur, albeit not precisely in accordance with paragraph 17. Subsequent to the completion of the sale, the plaintiff and the buyer entered into a “Loan Modification Agreement.”

The issue presented in this case was whether that loan modification agreement constituted an assumption agreement accepted by plaintiff in writing thereby releasing the Sills from liability. The loan modification agreement which was entered into between plaintiff’s predecessor, United Savings Association of Silvas, Hlinois, and defendants’ successors in interest, Paul and Cindy Williams, does several things. First, it recites the original obligation between Andrew Sill, Jean Rimkus, and United Savings Association in the amount of $19,000. It further recites that the parties (the Williams and United Savings Association) acknowledge mutual considerations to revise the terms of payment of said indebtedness. The agreement further sets forth the unpaid balance of $18,818.83 and recites that the borrowers promise to pay the indebtedness with interest at the rate of 10.75% upon the unpaid balance. That interest rate was less than the original interest rate. In the final paragraph the agreement states that “In all other respects said note and mortgage contract shall remain in full force and effect, and the undersigned promise to pay said indebtedness as hereinstated and to perform all of the obligations of said mortgage contract, as herein revised.”

The majority opinion in this case reasons that it was “not unreasonable for plaintiff to have entered into a loan modification agreement with the Williams so long as the Sills would still be ultimately responsible for any liability that might arise in the future due to any default under the note and mortgage.” (221 Ill. App. 3d at 600.) I respectfully submit that the issue is not the reasonableness of the conduct of the bank, but rather whether under paragraph 17 of a mortgage document drafted by the bank and under a loan modification agreement drafted by the bank the legal effect of those documents is to release defendants Andrew and Jean Sill.

It has long been the law that when a document is prepared by one party and not by the other, any ambiguities should be resolved in favor of the party who did not draft the document. Also, it seems clear that what a party who drafts a document calls it is not determinative of the issue. What is important is the language in the body of the document taken together with all of the facts of the case. The fact that the bank chose to call the agreement a “Loan Modification Agreement” merely shows one of its purposes in drafting the agreement, i.e., to reduce the interest rate and extend the time for payment which made the agreement more attractive to the new buyers. However, the bank was also obtaining the agreement of the Williams to pay the outstanding balance and comply with the rest of the terms of the original note and mortgage.

Black’s Law Dictionary defines the legal term “ASSUMPTION” as:

“The act or agreement of assuming or taking upon one’s self. The undertaking or adoption of a debt or obligation primarily resting upon another, as where the purchaser of real estate ‘assumes’ a mortgage resting upon it, in which case he adopts the mortgage debt as his own and becomes personally liable for its payment. The difference between the purchaser of land assuming a mortgage on it and simply buying subject to the mortgage, is that in the former case he makes himself personally liable for the payment of the mortgage debt, while in the latter case he does not. When he takes the conveyance subject to the mortgage, he is bound only to the extent of the property. Where one ‘assumes’ a lease, he takes to himself the obligations, contracts, agreements, and benefits to which the other contracting party was entitled under the terms of the lease.” Black’s Law Dictionary 123 (6th ed. 1990).

In this case the new buyers promised to pay the balance of the sums owed on the original note and mortgage subject to the new interest rate and payment schedule and to perform all the obligations of the original mortgage contract. Very clearly they assumed the terms of the note and mortgage and are bound personally on the note and mortgage. The fact that the bank called the agreement a loan modification agreement is of no import.

It is also significant that the bank used the term “assumption” in deficiency notices that it sent. A review of the record in this case shows that the bank believed that this was an assumption situation although it is also clear that the bank was not intending to release the Sills because they continued to send the Sills notices.

Returning then to paragraph 17 of the mortgage, we have, by agreement of the parties, a waiver of the option to accelerate and we have an executed written assumption agreement which has been accepted in writing by the lender. Those two conditions having been met, the lender shall release the borrower from all obligations under this mortgage and note. The lender did not have to draft paragraph 17 in the way that it did. It could have included language that said that even on an assumption agreement, the lender shall release the original borrower from all obligations only for additional consideration, or that the lender shall release the borrower only upon application by the borrower, or that the borrower shall still be bound unless there is a specific release executed by the lender. No language of that kind appears in the mortgage at all. Therefore, I believe that all of the requirements of paragraph 17 have been satisfied and that the Sills should be released by operation of the language of paragraph 17 from any further obligation under the mortgage and note.

Therefore, I respectfully dissent and would reverse the trial court’s order entering a deficiency judgment against the Sills.


author: JUSTICE GORMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. T.L. SMITH, Defendant-Appellant.
    Third District
    No. 3 — 90—0859
    Opinion filed December 9, 1991.
    David P. Bergschneider and Lawrence J. Essig, both of State Appellate Defender's Office, of Springfield, and Robert Agostinelli, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GORMAN

delivered the opinion of the court:

The defendant, T.L. Smith, was indicted on one count of aggravated criminal sexual assault for allegedly fondling and having sexual intercourse with L.H., an 11-year-old girl.

At the time of the incidents, Smith was living with L.H., her mother, her brother and her sister. L.H. testified as to two separate instances of abuse. The first time, Smith came into the bedroom which the victim shared with her siblings. Smith woke up L.H., moved her from the bed to the floor and undressed her. He then inserted his finger into her vagina following which he had intercourse with her. The victim then returned to bed and went back to sleep. The following morning, she told her sister about the event. Later that same day, L.H. also reported it to her mother.

The second instance of abuse occurred a few days later when no one else was home. The acts performed were substantially the same. The victim again told her mother of the incident.

Sometime later, the victim’s family and defendant went to Dallas to visit the children’s natural father. During this time, L.H.’s father learned of the incidents and questioned L.H. about them. The father’s girlfriend also questioned L.H. about the events. The victim further discussed the abuse over the phone with Tommie Moton, a juvenile detective for the Peoria police department.

At trial, L.H.’s sister, L.H.’s father, the father’s girlfriend and the detective all testified that the victim told them substantially the same story.

Jay Brenneman, an investigator with the Department of Children and Family Services (DCFS), testified during rebuttal that he interviewed the defendant at the DCFS office. During the interview, Brenneman stated that he believed the girl and that there was the possibility of the children being removed from the home for their protection. Brenneman had never interviewed the child but instead relied on the report of a Texas official which found L.H. credible. At some point during the interview, Smith signed an admission which was drafted by Brenneman.

During trial, Smith repeatedly denied abusing L.H. The jury found Smith guilty, and he was sentenced to five years’ imprisonment. This appeal followed.

The defendant claims that the trial court erred in admitting testimony concerning statements made by L.H. He contends that such evidence is precluded unless a pretrial hearing is held pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10). No such hearing was held in this case.

The prosecution of sexual abuse cases always presents special problems of proof. The most obvious difficulty is the fact that usually the only witness to the crime is a young child who may not be able to testify adequately about what occurred. (People v. Rocha (1989), 191 Ill. App. 3d 529, 547 N.E.2d 1335.) Youthful victims’ complaints obviously become more credible, reliable and understandable when supported by corroborative testimony from adults. (People v. Branch (1987), 158 Ill. App. 3d 338, 511 N.E.2d 872.) The legislature has provided section 115 — 10 as a mechanism for allowing into evidence the out-of-court statements of children who are victims of sexual abuse.

Section 115 — 10 governs the admissibility of “testimony of an out of court statement made by [the complainant-child] describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.” Ill. Rev. Stat. 1989, ch. 38, par. 115— 10(a)(2).

The statute provides:

(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement. (Emphasis added.) Ill. Rev. Stat. 1989, ch. 38, pars. 115 — 10(b)(1), (b)(2).

This rule has built in protections to insure that that only credible evidence is admitted. The statement must show a “particularized guarantee of trustworthiness.” (People v. Coleman (1990), 205 Ill. App. 3d 567, 581, 563 N.E.2d 1010; accord Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139.) The required finding that the statement provides “sufficient safeguards of reliability” must be understood to be of a comparable nature with a finding that the circumstances of the statement render the declarant particularly worthy of belief. (Coleman, 205 Ill. App. 3d at 584, 563 N.E.2d at 1021.) Therefore, in order to insure the defendant a fair trial, it is imperative that the trial court first examine the hearsay evidence before its submission to the jury-

Initially, the State is correct in its assertion that there was no error in allowing the testimony of the victim’s mother or the DCFS worker. L.H.’s mother was called as a defense witness, and the complained-of comments were elicited by defense counsel. Brenneman, the DCFS investigator, never testified as to any statements made by the victim.

The problem lies with the testimony of the other witnesses. Their statements are clearly within the purview of section 115 — 10. The State argues that Smith waived the right to a hearing and that failure to conduct a hearing was not plain error.

A recent case has dealt with the issue of admitting similar hearsay statements without holding the required hearing. (People v. Kargol (1991), 219 Ill. App. 3d 66, 578 N.E.2d 1356.) In Kargol, the court found that the failure to hold a hearing was error and was not waived by the defendant’s failure to object. The court held that the proponent of the evidence, i.e., the State, bore the burden of requesting the admissibility hearing. The court remanded, ordering the trial court to hold the requisite hearing.

The State relies on People v. Roy (1990), 201 Ill. App. 3d 166, 558 N.E.2d 1208, for the proposition that the issue was waived. Roy, however, is inapplicable here. A bench trial was involved in Roy. The appellate court assumed that the trial judge only considered proper evidence in passing judgment and that he therefore must have found the statements reliable, despite the fact that he did not make a specific, express finding.

Here, we are dealing with a jury trial. There was no hearing as mandated by section 115 — 10 to make the necessary determination prior to submission of the evidence to the jury. Additionally, the jury was not given the statutorily required direction pursuant to section 115 — 10(c) regarding the weight to be given such evidence. The simple fact that the evidence was admitted does not establish its admissibility. “Since the hearsay exception contained in section 115 — 10 is not a firmly rooted hearsay exception [citations], the statement must show a particular guarantee of trustworthiness to be admissible.” (Coleman, 205 Ill. App. 3d at 583, 563 N.E.2d at 1020.) Thus the hearing is a necessary prerequisite to the admission of the hearsay statements.

Sections 115 — 10(b)(l) and (d) indicate that a hearing must be held and the proponent of a statement must give the adverse party notice of the intent to use the statement. (Ill. Rev. Stat. 1989, ch. 38, pars. 115— 10(b)(l), (d).) In Kargol, the court remanded without reversal to determine at a hearing pursuant to section 115 — 10 whether the requirements of the statute were met. It is important to note that in Kargol the jury received the mandated directions for the consideration of the hearsay evidence.

Here, the State sought to use the hearsay statements at trial. By so doing, it assumed the burden of requesting the statutorily mandated admissibility hearing prior to the actual in-court testimony. No hearing was held. Thus the admission of the testimony without a hearing constitutes reversible error. The State may well have assumed that defense counsel would certainly insist on the required hearing. We point this out as a dangerous assumption because it clearly raises the clearest possible claim of incompetence on the part of defense counsel.

Since we reverse on these grounds, we need not address Smith’s contention that section 115 — 10, as written, violates sixth amendment confrontation clause principles under the standard propounded in Idaho v. Wright (1990), 497 U.S. 805, 111 L. Ed. 2d 638, 110 S. Ct. 3139. It is only after examining the determination made by the trial court following such a hearing that a reviewing court can determine whether the requirement of Wright has been met. Kling, The Confrontation Clause & Illinois’ Hearsay Exception for Child Sex Abuse Victims, 79 Ill. B.J. 560 (1991).

For the foregoing reasons, the judgment of the circuit court of Peoria County is reversed and the cause remanded for a new trial, with instructions that the court hold an admissibility hearing prior to the introduction of the hearsay statements.

Reversed and remanded.

BARRY and SLATER, JJ., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF REX CARR, Petitioner-Appellant and Cross-Appellee, and EDNA MAE CARR, Respondent-Appellee and Cross-Appellant.
    Fifth District
    No. 5-90-0643
    Opinion filed December 5, 1991.

      Katherine J. Tillery and Rex Carr, both of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis, for appellant.
    Robert G. Heckenkamp, of Heckenkamp, Simhauser & LaBarre, P.C., of Springfield, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

In this marriage dissolution matter in the circuit court of St. Clair County, petitioner Rex Carr was ordered to pay $20,000 of the $54,144.82 attorney fees and costs incurred by respondent Edna Mae Carr. Petitioner appeals from that order, contending that the order requiring him to pay respondent’s attorney fees was erroneous. Respondent cross-appeals, contending the trial court should have required petitioner to pay all the $54,144.82, plus certain paralegal fees. We affirm.

Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides, in relevant part:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse ***.” (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).)

The award of attorney fees in a dissolution case is within the discretion of the trial court and will not be disturbed unless there is an abuse of that discretion. (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 919, 466 N.E.2d 925, 935.) H. Joseph Gitlin, in his text on divorce, includes the following comment:

“Much of the case law comments upon the necessity of showing that the party seeking payment of fees lacks the ability to pay his or her own fees and that his or her spouse has the ability to pay the fees. This is an overstatement and oversimplification of the actual case holdings. The case law compares the relative abilities of the parties, plus other factors. Courts have held that proving financial inability does not require a showing of destitution. Rather, the court, in measuring a party’s financial ability to pay attorney’s fees, examined whether the estate of the party seeking fees would be exhausted, or the party’s means of support would be stripped and his or her economic viability would be undermined if the fee award were not made.” (2 H. Gitlin, Gitlin on Divorce par. 19.03(M), at 509 (1991).)

However, the cases cited in the footnotes to the above passage were heard before the effective date of the Act. With the creation of “marital property” and the adoption of section 503 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 503), the allocation of attorney fees appears to have become a factor in the overall allocation of the financial resources of the parties. In In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 626, 453 N.E.2d 90, 94, the court stated:

“Thus, our statutory scheme requires the trial court to consider the property received by each party, their respective incomes and financial obligations before allocating responsibility for payment of attorney fees. Necessarily, attorney fees should be allocated before the reviewing court can properly assess the trial court’s division of property and decisions regarding maintenance and child support. Since the allocation of attorney fees judgment is dependent upon and integrally related to decisions regarding property, maintenance and child support, their allocation cannot fairly be characterized as collateral or incidental to the divorce decree.”

In In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 305, 524 N.E.2d 695, 699, the court held one of the factors in determining the reasonableness of an award of attorney fees was the relative financial positions of the parties. In Hanson, the beneficiary of the award of fees also received 70% of the marital property and maintenance for five years; the ex-husband’s higher earning ability was considered justification for the division of marital property. The court referred back to the significant disparity in financial position as between the parties in ordering the ex-husband to pay $5,000 of the $9,486 in attorney fees charged to the ex-wife.

The court, in In re Marriage of Wright (1986), 180 Ill. App. 3d 911, 920-21, 536 N.E.2d 700, 705-06, upheld the trial court’s order directing the ex-husband to pay $12,000 of the $24,000 in attorney fees incurred by the ex-wife, where both parties challenged this portion of the judgment. There, the court remarked that financial inability, for purposes of section 508 of the Act, is not to be equated with “destitution,” and noted that the trial court had been aware of each party’s financial situation. The Wright court stated that the trial court had correctly concluded that the ex-husband’s financial resources were sufficiently greater than the ex-wife’s to warrant ordering him to pay $12,000 of her attorney fees, and that she had failed to demonstrate that she was financially unable to pay the remainder while he was able to do so.

The opinions in both In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1027, 471 N.E.2d 1008, 1017, and Weinberg (125 Ill. App. 3d at 919, 466 N.E.2d at 935) hold that even if the spouse is awarded ample capital assets, she should not be required to deplete her capital assets or impair her economic stability by paying attorney fees, if the other party is able to provide part or all of that payment. We conclude the allocation of assets, liabilities, the award of any maintenance, and the relative earning abilities of the parties should be considered when determining an allocation of attorney fees pursuant to section 508(a) of the Act.

We do not completely abandon the previous decisions, such as In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 147-48, 398 N.E.2d 1243,1245, which included the following statement:

“The allowance of attorney fees under section 508(a)(2) requires a consideration of the financial resources of the parties. It is not sufficient simply to show that one party has a greater ability to pay, but rather the court requires a showing of the inability of one party to pay and the ability of the other party to pay. Imes v. Imes (1977), 52 Ill. App. 3d 792, 367 N.E.2d 1075.”

However, “inability to pay” must be determined relative to the party’s standard of living, employment abilities, allocated capital assets, existing indebtedness, and income available from investments and maintenance.

In the present case, we have a respondent who will not be employed. During the marriage, the parties enjoyed a relatively high standard of living. Funds were available for travel, and domestic help was available in the home. Petitioner’s earned income, at times, was approximately $1 million per year. The petitioner was, and is, a very successful trial attorney. The dissolution decree awarded him most of the $4,300,000 worth of marital assets, while ordering him to pay approximately $1 million, in marital debts. Respondent was awarded $105,000 in available assets, together with $1 million to be paid by petitioner over nine years, with interest to be paid on the unpaid balance of 9% per annum. Maintenance was awarded to respondent in the amount of $5,000 per month, with a provision that it be reduced to $4,000 per month on January 1, 1991.

Respondent purchased a home, which required that she borrow considerable funds. She would initially be in a cash bind because of this expenditure but, considering the life-style previously maintained by the parties, the expenditure was not unreasonable. A finding that payment of the entire fee would impair her economic stability would be within the trial court’s discretion.

Each decision allocating attorney fees and costs must necessarily be based on the facts presented in the case. Seldom will cases have similar facts. Different standards of living, with different incomes and assets, require different determinations. The trial court is in the best position to decide the various economic allocations. The decision allocating $20,000, and only $20,000, of respondent’s fees and costs to petitioner was not against the manifest weight of the evidence.

Because the trial court considered all the evidence and knew a petition for fees was to be presented, we also conclude, under the facts in this case, that the fee and cost allocation should be affirmed as a necessary consideration affecting the provisions dividing assets and providing maintenance. We recognize this will not be true in many dissolution cases, but a $54,000 obligation is a significant factor to consider when allocating marital assets. The trial court’s determination of allocation of respondent’s attorney fees and costs is affirmed.

Affirmed.

LEWIS and KNECHT, JJ., concur.