author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF SHEILA MANTEI, Petitioner-Appellant, and ADOLF MANTEI, Respondent-Appellee.
    Fourth District
    No. 4—90—0868
    Opinion filed December 19,1991.
    Rehearing denied January 22,1992.

      Howard Feldman and Fredric Benson, both of Feldman & Wasser, of Springfield, for appellant.

      Edward W. Huntley, of Morse, Giganti & Appleton, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

The petitioner, Sheila Mantei, appeals from the judgment of the circuit court of Sangamon County dissolving her marriage to respondent, Adolf Mantei. The issues raised concern the valuation and distribution of respondent’s pension, the sufficiency of the award of maintenance, and the refusal of the trial court to order the respondent to pay petitioner’s attorney fees.

The petition for dissolution of marriage was filed in July 1986. Therein it was alleged petitioner (bom March 24, 1944) and respondent (bom July 2, 1940) were married in March 1964. The parties have three children: Mark (bom September 23, 1964), Paul (bom June 15, 1971), and Matthew (bom December 2,1975).

On October 24, 1989, the trial court dissolved the parties’ marriage and reserved all other issues. On October 11, 1990, the trial court issued a memorandum of decision in which the issues previously reserved were addressed. The memorandum of decision recognized the parties had stipulated to a fair and reasonable division of some of the property. The court then proceeded to distribute the remaining assets and liabilities, assigning value to assets where the value was disputed. Respondent was ordered to pay $400 per month to petitioner as maintenance, commencing October 1990 and ending September 1993. At the direction of the trial court, an order of withholding was prepared and filed in November 1990. Each party was ordered to pay his or her own attorney fees and court costs because the trial court found the parties to be inflexible and uncompromising. Custody of Matthew was awarded to respondent, but because of petitioner’s present inability to pay, she was not ordered to pay child support.

The first issue is whether the trial court committed an abuse of discretion in distributing and arriving at a value for the respondent’s pension. The trial court concluded that because of petitioner’s smaller earning capacity, she should get a larger share of the marital estate. The judge felt even more compelled to give her a larger share because of the valuation of the pension, which he found to be $25,851.61. After dividing the assets, the trial court noted the marital assets distributed to petitioner were “valued at approximately $9,000 more than those allocated to” respondent.

We agree with petitioner that the valuation of the pension resulted from an abuse of discretion. Respondent’s financial affidavit indicates his equity in the retirement fund is $25,851.61. The same dollar amount is indicated for its present value.

Thomas Langford was called as a witness on behalf of petitioner. Respondent did not challenge his qualifications to testify regarding the value of respondent’s pension. Langford testified that the present cash value as of October 24, 1989 (the date of dissolution), of the annuities respondent would receive upon retirement at age 60 was $77,846.73. Based on current statutory benefits, respondent would begin receiving monthly payments of $1,636.03 commencing July 2, 2000, and those payments would increase by 3% each year beginning January 1, 2002. In arriving at the present cash value, Langford assumed a long-term interest rate of 8.015% per year. That figure is based on the annual average of the effective yield of Treasury notes and bonds as of January 2, 1990, as reported in the Wall Street Journal. He admitted on cross-examination that he did not have available at the time of testifying the rate as of October 24, 1990, and that a different rate as of that date would have resulted in a different valuation.

There was also evidence that the surviving spouse’s benefit in the pension was valued at $18,280.13. Langford admitted there had to be a surviving spouse to have a surviving spouse’s annuity. Based on the fact the parties’ marriage was dissolved and respondent had no't remarried, on the motion of respondent, the trial court struck Langford’s testimony with regard to the value of the surviving spouse’s annuity.

In its memorandum of decision, the trial court accepted respondent’s valuation of the pension, but indicated its belief that respondent would get considerably more on retirement. This is a clear recognition of the difficulty in placing a present value on the pension based on the evidence adduced.

Petitioner argues the trial court should have chosen either the “reserved-jurisdiction” approach or the “total-offset” approach. Respondent argues that neither of these is a method of valuation, but instead are methods of distribution once valuation is set. Respondent contends the trial court properly used the “total-offset” approach. This court’s explanation in In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 281-82, 518 N.E.2d 1316, 1320-21, indicates the differences between those two methods of distribution:

“Decisions of this State have firmly established that pension rights, whether matured, vested, contributory or noncontributory, constitute property ‘acquired’ during the marriage under section 503 of the Act. (In re Marriage of Hobbs (1982), 110 Ill. App. 3d 451, 455, 442 N.E.2d 629, 632.) An employee-spouse’s contractual right to a pension plan is thus marital property subject to division under the Act to the extent such rights accrued during the marriage. (In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 442 N.E.2d 557; In re Marriage of Coram, (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418.) Problems arising in this area have involved placing a present value on pension rights as well as determining the marital portion of those rights. There is no way the other spouse may be accorded some defined interest to a benefit without first determining its value to the employed spouse during the marriage. In re Marriage of Evans (1981), 85 Ill. 2d 523, 426 N.E.2d 854.
Courts have followed two basic methods in dividing these interests. The first, termed the ‘reserved jurisdiction’ method, allows the court to delay actual division of the pension by entering an order stating how it will be divided ‘if, as and when’ it is actually paid out. (In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.) This method is best employed where it is difficult to place a present value on a pension due to uncertainties regarding vesting or maturation. (78 Ill. App. 3d 653, 397 N.E.2d 511.) The second approach is referred to as the ‘total offset’ method and was the one utilized below. A trial court under this scheme must determine the actual value of the pension according to actuarial evidence, discounting an amount in light of the risk that the pension will not vest, discounting also to present value, and then determining the marital portion of that amount. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300; Hunt, 78 Ill. App. 3d 653, 397 N.E.2d 511.) Usually expert testimony will be required, and the approach itself is most often utilized where retirement is imminent and there are sufficient other assets to allow an offset to the ‘nonpensioner’ spouse. Wisniewski, 107 Ill. App. 3d 711, 437 N.E.2d 1300.”

As this court noted in In re Marriage of Wiley (1990), 199 Ill. App. 3d 169, 556 N.E.2d 809, the trial court has discretion in choosing the method to apportion the present value of the marital property interest in retirement benefits. The trial court here did not commit an abuse of discretion in choosing to use the total-offset approach. However, the value of the marital property interest in the pension was not arrived at properly.

Petitioner contends that, since this court has indicated there is a need for expert testimony about pension valuation, the trial court committed an abuse of discretion in refusing to accept her expert’s testimony in light of the fact there was no contrary expert testimony. Although we do not necessarily agree that the trial court was required to accept Langford’s valuation since the bases for his estimation of present value of respondent’s pension were, to some extent, successfully challenged on cross-examination, the trial court did indicate that the value was considerably more than respondent’s contributions. We agree with this finding and, therefore, further find that it was an abuse of discretion to merely accept the amount of respondent’s contributions as the value for the pension. As a result, the valuation and distribution of the pension will be reversed and the cause "will be remanded for reconsideration on this question. On remand, after the trial court establishes the marital value of the pension, that property should be equally distributed between the parties.

The second issue is whether the trial court committed an abuse of discretion by setting maintenance at $400 per month for three years. Section 504 of the Marriage and Dissolution of Marriage Act (Act) sets out the factors to be considered by the court in determining whether maintenance is necessary and, if so, how much. (Ill. Rev. Stat. 1989, ch. 40, pars. 504(a), (b).) The court should consider the parties’ financial and physical condition, the standard of living during marriage, and the duration of the marriage. (In re Marriage of Smith (1979), 77 Ill. App. 3d 858, 396 N.E.2d 859.) The trial court must not only answer the question of whether the party needs maintenance, but also whether the other party has the ability to pay. (In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 437 N.E.2d 1300.) In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 916, 466 N.E.2d 925, 933, summarizes the law relative to awards of maintenance:

“Section 504 of the Act provides that the trial court may issue a maintenance order only if it finds that the spouse seeking it lacks sufficient property to provide for her reasonable needs, and is either unable to support herself through appropriate employment or is otherwise without sufficient income. (Ill. Rev. Stat. 1981, ch. 40, par. 504(a).) The Act further provides that the amount and duration of an appropriate maintenance award shall be ‘as the court deems just’ after consideration of all relevant factors including the financial resources of the party seeking maintenance and her ability to meet her needs independently (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(l)); the time necessary to acquire sufficient education or training to enable her to find suitable employment (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(2)); the standard of living established during the marriage (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(3)); the duration of the marriage (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(4)); the age, physical and emotional condition of both parties (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(5)); the ability of the spouse from whom maintenance is sought to meet his needs while yet meeting those of the recipient spouse (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(6)); and the tax consequences of the property division (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(7)). The propriety of a maintenance award, as well as the amount and duration thereof, are matters which lie within the discretion of the trial court, for whose judgment we will not substitute our own absent an abuse of that discretion which occurs ‘only where no reasonable man would take the view adopted by the trial court.’ (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 508, 436 N.E.2d 228, 232.)”

In In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269, 511 N.E.2d 156,166, this court further commented:

“While an award may be for a definite time frame, it should not be based on speculation as to the future conditions, but on circumstances disclosed by the evidence. (In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 351, 461 N.E.2d 447, 456.) Where the court has specific evidence regarding educational background, present educational pursuits, and income at the time of dissolution, there is sufficient evidence to set a specific period of time for maintenance. In re Marriage of Wisniewski (1982), 107 Ill. App. 3d 711, 719, 437 N.E.2d 1300,1306.
Maintenance for a limited period is appropriate where the spouse is employable at an income not overly disproportionate from the standard of living established during the marriage. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 465, 426 N.E.2d 1087, 1096.) Conversely, where the spouse is not employable or is employable only at a low income, as compared to the previous standard of living, permanent maintenance would be appropriate.
*** [The ex-wife] does have an affirmative obligation to seek appropriate employment and to make a good-faith effort- to become financially independent. In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.”

Three parcels of real estate owned by the parties were sold: the marital residence, a commercial property in which petitioner had previously operated an antique and gift shop, and a duplex. The net proceeds from the sale of the real estate, divided equally, netted each of the parties approximately $116,100 ($94,000, $9,600, and $12,500, respectively).

By agreement, the parties divided all the household furnishings and appliances. In addition, the inventory of the gift shop sold for approximately $861 and was divided equally. The respondent received additional personal property assets in the amount of $7,205. In total, the trial court’s distribution to the respondent amounted to $123,735.50 and the pension valued at $25,851.61 or a total of $148,587.11. The petitioner received a 1985 Mercury automobile valued at $4,539 and her IRA valued at $36,378.78, which, when added to her distribution of the real estate sales proceeds, amounted to $157,017.78. The trial court also allocated the unpaid marital debts in the total amount of $8,233.83, the respondent to pay the petitioner 50% of that debt. In addition, the respondent was directed to pay petitioner $300 as an arrearage for utility bills, and previously paid marital debts were allocated between the parties, with the total reimbursement of the respondent to the petitioner amounting to $4,345.33.

Petitioner’s testimony at the January 16, 1990, hearing indicated she was currently renting a house in which she and her 18-year-old son, Paul, reside. Paul is a full-time student at Lincoln Land Community College and works part time. She is employed working 20 to 25 hours per week managing a booth at a mall. She is paid $6 per hour. She also has craft items such as cotton afghans, lace collars, lace table cloths and Christmas decorations which she makes and sells at the store. The owner of the store gets 15% of the sales. In November and December 1989, petitioner earned $800 gross from these sales. Deducting her costs involved, she estimates she netted around $400. The sales in January had not kept pace with those in November and December, dropping about 75%. In January she also began selling Avon products.

Based on an examination of the factors listed in section 504 of the Act, the award of maintenance was not an abuse of discretion. Although the parties had a marriage of relatively long duration, petitioner has resources to meet her needs independently, and these resources will be increased after the trial court revalues and redistributes respondent’s pension. She was 46 years old at the time the trial court ordered maintenance and has in the past been employed as a bookkeeper for 21 years and self-employed at various entrepreneurial endeavors. She has marketable skills. There was no evidence of any physical or emotional impediments to petitioner’s employability. Any income she derives from employment will be supplemented from the income generated by her investments of the monies received from the sale of marital assets. In addition, petitioner is not the custodian of the minor child, and has not yet been ordered to pay child support. It is clear respondent’s ability to meet his needs and those of his minor son was also limited. During the three-year period for which petitioner will get rehabilitative maintenance, she will have the opportunity to acquire sufficient education or training to increase her marketable skills in an effort to find employment which would provide a higher income.

Petitioner’s primary complaint is that her lifestyle is not the same as it was. As petitioner points out in her brief, the resources of the parties dictate whether they can maintain their lifestyle after dissolution.

“In some failed marriages, the parties are fortunate enough to have resources adequate to satisfy both of their reasonable needs in full. The spouse seeking maintenance would therefore be awarded the whole difference between her resources and her reasonable needs. But the Simmonses, like most divorced couples, do not have enough to go around. Living apart costs most couples more than living together. The court is unable to provide both parties with the standard of living they enjoyed during marriage; one or both have to take a cut. The court must apportion the deficit.” (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 661, 409 N.E.2d 321, 328.)

In this case, the parties simply do not have enough assets for each to maintain their lifestyle following dissolution. Therefore, no abuse of discretion occurred in awarding rehabilitative maintenance of $400 per month for three years.

Finally, we consider whether the trial court committed an abuse of discretion in refusing to order respondent to pay petitioner’s attorney fees. The award of attorney fees is also a matter of discretion which will not be overturned absent an abuse of discretion. Although the trial court may order one party to pay the other’s attorney fees, the primary obligation for payment rests on the party on whose behalf the services are rendered. The trial court must consider the financial circumstances of the parties to ascertain if one ex-spouse has an inability to pay and the other ex-spouse has the ability to pay attorney fees incurred by the opposing party. Ill. Rev. Stat. 1989, ch. 40, par. 508; In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119.

The affidavit of respondent’s attorney shows fees and costs incurred and anticipated in the amount of $19,688.74. Petitioner’s attorney fees and costs were $23,920.59 as of April 26, 1990. According to her amended financial affidavit, petitioner had already paid $11,654.64 of her attorney fees as of October 1989.

While petitioner need not be destitute in order to receive an award of attorney fees (In re Marriage of Ziemer (1989), 189 Ill. App. 3d 966, 546 N.E.2d 229), the respondent need not be destitute to avoid paying petitioner’s attorney fees. Neither party’s estate should be exhausted, nor their economic stability undermined.

Petitioner has demonstrated her ability to pay by already having paid about half of the fees. She does not ask that respondent be ordered to pay a portion of the unpaid remainder, but demands he pay all of the attorney fees, including what she has already paid. Respondent also has incurred about $20,000 in fees on his own behalf. While the trial judge did not expressly state he considered the parties’ financial circumstances in refusing to award attorney fees to petitioner, clearly the parties’ financial circumstances were considered because the court was ruling on property distribution and maintenance as well as attorney fees. The trial court determined that the attorney fees resulted from the parties’ unwillingness to compromise. A party cannot enter into such a battle and expect to come out unscathed. While we recognize the purpose of the statute is to allow a spouse to contest the dissolution on an equal footing so that concerns about incurring large attorney fees will not coerce a litigant into conceding meritorious claims, it is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regardless of one’s conduct during the litigation. There are times when the failure to compromise is frivolous. The parties should have been aware of the expenses they were incurring in order to split up the limited pot they were contesting. The trial court found neither party was absolved from the responsibility of paying for his or her own fees. Since the trial court is in a much better position than is this court to make such a determination, we will not overturn the trial court’s order with regard to attorney fees.

For the foregoing reasons, the judgment of the circuit court of Sangamon County is reversed with regard to the valuation and distribution of the marital portion of respondent’s pension, and the cause is remanded for further proceedings with directions. In all other respects, the judgment is affirmed.

Affirmed in part; reversed in part, and cause remanded.

GREEN, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE BOWMAN

license: Public Domain

text:
      In re MARRIAGE OF JANIS L. CUMMINGS, Petitioner and Contemnor-Appellant, and JOHN R. CUMMINGS, Respondent-Appellee.
    Second District
    No. 2—91—0369
    Opinion filed December 19,1991.

      Mary Robinson, of Robinson & Skelnik, of Elgin, for appellant.
    Carl W. Telford, of Law Offices of Carl William Telford, Ltd., of La Salle, for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Petitioner, Janis L. Cummings, appeals her conviction of indirect criminal contempt entered against her by the trial court. Petitioner raises two issues on appeal: whether the conviction of indirect criminal contempt must be reversed because she was denied due process, and whether the conviction must be reversed because the evidence did not show beyond a reasonable doubt that petitioner willfully violated the orders of the trial court.

Petitioner’s marriage to respondent, John R. Cummings, was dissolved on December 15, 1989. Petitioner was awarded custody of the parties’ three young children. Subsequently, petitioner married Philip Hartle. On April 26, 1990, respondent filed a petition for modification of custody, alleging that Hartle was “a self-proclaimed and self-admitted transvestite and alcoholic” and that the children were in imminent danger because in the past Hartle had “engaged in games, acts and conduct of sexual abuse perversion, and fondling of other minor children.” According to respondent, Hartle engaged in inappropriate games with other children, and a game with the parties’ children “referred to by *** Hartle as ‘Mr. Easier’ wherein he has, on repeated occasion [sic], tied up and bound at least two of the minor children *** and stroked, rubbed, touched or otherwise assaulted said children with a knife.”

In support of his allegations, respondent submitted the report of a licensed clinical psychologist who reviewed a videotape made by Hartle of himself and writings and fantasies written by Hartle. The report related to acts by Hartle regarding his son from a former marriage. The hearing on the petition was continued several times and eventually set for March 28,1990.

On May 3, 1990, the trial court entered an order prohibiting all contact between Hartle and the children. Again, on June 26 the court ordered that all contact whatsoever between Hartle and the children was prohibited.

On August 17, 1990, respondent filed a petition for a rule to show cause against petitioner because she allegedly allowed Hartle to communicate by telephone with the children and to approach the residence and wave at the children. In an agreed order, dated September 17, the court ordered that “Hartle shall not be in, on, upon or remain at any residence wherein the minor children are present.”

In her answer to respondent’s request for admissions, petitioner stated that she and Hartle separated on April 26, 1990. Petitioner had not personally witnessed Hartle engaging in cross-dressing, but had seen him doing so in a videotape shown to petitioner by respondent on April 26, 1990.

On February 1, 1991, respondent filed the petition for a rule to show cause, which is the subject of this appeal. Respondent alleged that petitioner violated the orders of May 3, June 26, and September 13, 1990, by allowing Hartle to appear at petitioner’s residence on January 5, 1991. Respondent alleged that this conduct was willful and contumacious. Respondent requested the court to enter a rule to show cause against petitioner and for a further order finding her in contempt “and remanding [petitioner] to the common jail of McHenry County till [sic] she shall purge herself of her said contempt.” The court issued a rule to show cause against petitioner on February 11. Two days later, the court allowed petitioner’s attorneys to withdraw from representing her. The court then entered the following order:

“Cause coming on for hearing on Rule To Show Cause issued against Petitioner] Janis L[.] Cummings; Petitioner] appearing Pro Se [sic]; Respondent] appearing personally and by Atty [sic] Telford; Petitioner] Janis Cummings admonished as to nature of proceedings, possible civil and criminal penalties and her right to counsel; the Court advised as to Petitioner[’s] request for counsel;
It is Ordered
1) This cause is set for hearing on all pending matters on 3-6-91 ***
2) Petitioner] Janis Cummings is ordered to appear on said date 3-6-91 and Rule To Show Cause is continued for Petitioner] to obtain counsel.”

In her answer to the petition, petitioner admitted that she met with Hartle on January 5, but she denied that he entered the residence or associated with the children.

At the outset of the hearing, the trial court instructed respondent’s counsel to call his first witness; the court then corrected itself and noted that since a rule to show cause had been issued, the burden had shifted. Petitioner then called her first witness, Mandi Pappa. Pappa, the 13-year-old baby-sitter, testified that Hartle drove her to petitioner’s house, but Hartle did not enter the house. Pappa could not recall by which door she entered the house.

Petitioner testified that on the day in question Hartle called her because he wanted to meet with her to discuss their impending annulment. Sometime after 8 p.m., Pappa was at the front door. She handed petitioner a basket of fruit. Petitioner had already put the two younger children to bed, and she told Pappa that the other child was upstairs in his bedroom. Pappa informed petitioner that Hartle wanted petitioner to bring something out to him. Petitioner took her two dogs out to the end of the driveway. Petitioner walked past Hartle’s car, which was parked in the driveway with the engine running and the lights on. On her way back to the house, petitioner stopped to ask Hartle what he needed from the house. Petitioner then brought the dogs in, changed her clothes, gave Pappa a few instructions, and then left. Hartle had waited in the car the whole time.

Petitioner explained that she thought the September 13 order was very ambiguous. Her former attorney told her that the order meant that Hartle was not to be in the house when the children were there. It was not petitioner’s understanding that the order meant that Hartle was not supposed to be around or near the residence.

Melissa Gadosh, respondent’s fiancee, and her mother, Sharon, testified for respondent. Melissa and Sharon “staked out” petitioner’s home because respondent was out of town. Melissa and Sharon parked behind the house and brought binoculars. They did not have a clear view of the front of the house, but they could see the driveway. Hartle pulled into the driveway in his car, and a girl got out. Hartle then exited the car and followed. Hartle left the car running and its lights on. Hartle entered the garage. Melissa then moved the car around to the front of the house, where they were able to see into the garage. After about 45 minutes, Hartle and petitioner walked out of the garage and got in the car. Neither Melissa nor Sharon saw anyone walking dogs that night, nor did they see anyone actually enter or exit the house. Although Melissa testified that they had the same view, she testified that she could see the door inside the garage, whereas Sharon testified that she could not see that door. Although they had binoculars and could have looked in the windows of the house, they never looked through the windows. Melissa admitted that she had a civil suit pending against petitioner.

After respondent rested his case, the court asked petitioner if she had any rebuttal evidence. Since petitioner did not, her attorney started his closing argument by saying, “Judge, since the burden is on me, I guess, I would say that [respondent] failed to prove *** that [petitioner] is in willful contempt of this court.” In stating its findings, the court found that Hartle entered the garage, and, therefore, it did not need to determine whether he actually entered the house because merely being in the garage constituted an entry upon the residence. The court concluded that petitioner’s acquiescence to Hartle’s presence was a willful violation of the court’s orders. Before imposing a sanction, the court asked petitioner’s attorney’s opinion. Counsel stated that since it was indirect civil contempt, petitioner should be given an opportunity to purge herself. The court responded:

“I believe she knew that Mr. Hartle was not to be on or at her residence in any way, shape or form. She chose to take a chance. And in my opinion she now must pay for that. I find her actions in direct — strike that — in direct [sic] criminal contempt. That is nonpurgeable.”

The court then sentenced petitioner to seven days in the county jail.

Petitioner filed a motion to reconsider alleging the grounds that she raises on appeal. Petitioner also filed a motion for a stay pending appeal. The court denied the motion to reconsider, but allowed the stay. Petitioner’s timely appeal followed.

Petitioner first contends that her conviction of indirect criminal contempt must be reversed because the proceedings did not comport with the requirements of due process. Petitioner was convicted of indirect criminal contempt, which is intended to vindicate the dignity and authority of the court. (People v. Ernest (1990), 141 Ill. 2d 412, 421.) “A court has the inherent power to punish, as contempt, conduct that is calculated to impede, embarrass, or obstruct the court in its administration of justice or derogate from the court’s authority or dignity, or to bring the administration of the law into disrepute.” Ernest, 141 Ill. 2d at 421.

“Criminal sanctions are retrospective in nature; they seek to punish a contemnor for past acts which he cannot now undo. Civil sanctions are prospective in nature; they seek to coerce compliance at some point in the future. That point might be immediate compliance in open court or whenever the contemnor chooses to use his ‘key’— namely, compliance — to open the jailhouse door.” (Emphasis in original.) (In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 46.) The trial court here noted that there was no way for petitioner to purge herself of contempt because she already violated the order of the court.

Despite respondent’s implications to the contrary, the process due to individuals in civil contempt proceedings is different from that which must be afforded an individual charged with criminal contempt. (Betts, 200 Ill. App. 3d at 52, 58.) In a civil contempt proceeding, the contemnor is only entitled to minimal due process, consisting of notice and an opportunity to be heard. (Betts, 200 Ill. App. 3d at 53.) Conversely, in a criminal contempt proceeding, the contemnor is entitled to the privilege against self-incrimination, the presumption of innocence, and the right to be proved guilty beyond a reasonable doubt. In re Marriage of Ruchola (1991), 208 Ill. App. 3d 971, 978.

We disagree with respondent’s assertion that the procedure employed in the present case consisted merely of shifting the burden of going forward. Not only has respondent failed to cite any authority for the proposition that the court may arrange the presentation of the evidence to require the alleged contemnor to go forward with the burden of production, but also, as the record demonstrates, the trial court here believed that the burden of proof had shifted as well. Logic dictates that if an alleged contemnor is not required to present any evidence whatsoever (because she is not required to incriminate herself and the burden is on the other party to prove her guilt beyond a reasonable doubt) (see Ruchala, 208 Ill. App. 3d at 978), then the court cannot order her to go forward with evidence. Moreover, petitioner was required to “show cause” why she should not be held in contempt. That amounts to an impermissible shifting of the burden of proof. (Ruchala, 208 Ill. App. 3d at 978.) Consequently, the contempt adjudication must be reversed.

Petitioner further argues that the form of the notice to her was insufficient to alert her that she could be held in criminal contempt. Respondent asserts that it was not respondent’s fault that petitioner’s attorney, who began representing her after the citation had issued, was confused about the form of the contempt proceeding. According to respondent, it is not necessary that the petition for a rule to show cause, or the rule itself, state which type of contempt is at issue and that the Appellate Court, Fourth District, in Betts stated only that it is preferred that the notice specify what type of contempt is contemplated. Betts, 200 Ill. App. 3d at 58-59.

Depending on the circumstances, an act may support a finding of both criminal and civil contempt. (People v. Gholson (1952), 412 Ill. 294, 298-99.) The Appellate Court, Fourth District, reconsidered the procedural requirements for notice in a contempt proceeding in In re Marriage of Alltop (1990), 203 Ill. App. 3d 606. The court held that to avoid surprise and confusion, “due process requires that before criminal sanctions may be imposed upon a [contemnor] as a result of indirect criminal contempt proceedings, notice must be provided to the alleged contemnor that such sanctions are being sought and might be imposed.” (Alltop, 203 Ill. App. 3d at 616.) The reason for such notice is that if not informed of the nature of the proceeding, the alleged contemnor will be precluded from asserting her due process rights, including the right not to incriminate herself. In re J.L.D. (1989), 178 Ill. App. 3d 1025, 1031.

In the present cause, not only was the pleading entitled “Petition For Rule to Show Cause,” but it also prayed that petitioner be found in contempt and allowed to purge herself of that, contempt. Although, according to the written order, petitioner was informed that she was subject to criminal penalties, at that particular hearing petitioner appeared pro se. From the record, it appears that respondent’s counsel and petitioner’s new counsel believed that the proceeding was for civil contempt and that the trial court never stated at the beginning of the hearing that it was adjudicating a criminal contempt charge. We conclude that neither the pleading nor the procedure adequately informed petitioner that she could be found in criminal contempt.

The adjudication of contempt is also defective on another ground. When a contemnor has been found guilty of indirect criminal contempt, the court must recite either at the hearing or in the written order that the contemnor was found guilty beyond a reasonable doubt. (Betts, 200 Ill. App. 3d at 61.) While such a requirement is not necessary in all cases, here, petitioner’s attorney’s confusion demonstrates that the nature of the contempt was not clear, and it is not apparent from the record that petitioner was found guilty beyond a reasonable doubt. (See Ernest, 141 Ill. 2d at 429; Betts, 200 Ill. App. 3d at 61.) By reason of the inadequate pleadings, procedures and findings of the trial court as discussed above, the contempt order of the trial court against Janis L. Cummings is hereby vacated.

Because of our conclusion that the contempt conviction must be reversed, we need not address the remaining issue.

The judgment of the circuit court is reversed.

Reversed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE ex rel. THE TOWN OF AURORA et al., Plaintiffs-Appellees, v. THE CITY OF AURORA, Defendant-Appellant.
    Second District
    No. 2—91—0269
    Opinion filed December 24,1991.

      Valerie D. Brown and Ronald R. Moses, Corporation Counsel, of Aurora, for appellant.
    Bruce A. Brown and Bruce L. Goldsmith, both of Goldsmith, Thelin, Schiller & Dickson, of Aurora, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

The City of Aurora (City) passed an ordinance purporting to disconnect from its corporate limits a portion of property that it had annexed two years earlier. The plaintiffs, the Town of Aurora (Town) and Richard Hammond, as Town highway commissioner, brought an action in quo warranto and for a declaratory judgment, seeking a determination that the attempted “deannexation” was null and void and that the City retained responsibility for the repair and maintenance of portions of two streets adjacent to the purportedly “deannexed” territory.

The trial court ruled for plaintiffs, holding that the “deannexation” was void ab initio because the City lacked the authority to disconnect the property at issue. On appeal, the City argues that section 7 — 3—4 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 3— 4) gives municipalities the power to disconnect municipal property owned by the municipality itself. We disagree and hold that a municipality has no statutory authorization unilaterally to disconnect its own property. We therefore affirm.

The parties agree on most of the relevant facts. On November 3, 1987, the City, by ordinance, validly annexed territory previously owned by the Kane County Forest Preserve District. The area, to the east of the previous City limits, is bounded on the west by Hill Avenue, on the north by Morningside Drive, which was platted but has never been used as a street, on the south by a private property line, and on the east by Loucks Street, a two-lane street to the west of a residential area. By operation of the annexation statute (Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1 et seq.), the territory annexed included the full width of those parts of Morningside Drive, Hill Street and Loucks Street adjacent to the territory. The Town borders the annexed area on the north, east and south.

On August 15, 1989, the City passed “An Ordinance Disconnecting Property from the City of Aurora (Loucks and Morningside Avenúes [sic]).” The ordinance purported to disconnect the easterly 159 feet of the approximately 500 feet of territory between Hill Avenue and Loucks Street annexed in 1987. As authority for the disconnection, the ordinance invoked section 7 — 3—4 of the Municipal Code, which provides:

“Any territory, within any municipality, which is upon the border but within the boundary of the municipality may be disconnected from the municipality, in the discretion of its corporate authorities as follows:
A written petition, signed by owners of record representing a majority of the area of land in such territory, shall be filed with the clerk of the municipality, requesting that the specified territory be disconnected from the municipality. The petition shall be filed at least 30 days before it is considered by the corporate authorities. The petition shall be accompanied with the certificate of the proper county clerk, showing that all city taxes or assessments due up to the time of presenting the petition are fully paid. The corporate authorities, in their discretion, may disconnect the territory from the municipality, by an ordinance passed by a majority of the members elected to the city council, or board of trustees, as the case may be.” Ill. Rev. Stat. 1989, ch. 24, par. 7 — 3—4.

There is no dispute that the City owns all of the property in the area sought to be disconnected, that the area is unpopulated and undeveloped, and that it does not include, according to a literal reading of the disconnection ordinance, the eastern lane of Loucks Street or any of Morningside Drive.

The plaintiffs brought a two-count complaint against the City. Count I, in quo warranto, asserted that the disconnection ordinance was void because (1) the parts of Morningside Drive and Loucks Street remaining in the City were “isolated” from the rest of the City; (2) the City had proceeded in bad faith and in violation of the “spirit” of section 7 — 3—4 by disconnecting only part of the property in order to saddle one or both of the plaintiffs with the obligation to repair and maintain the City’s portions of Morningside Drive and Loucks Street; and (3) the City had not met the procedural requirements of section 7 — 3—4 inasmuch as it had not filed the required petition and any “petition” was not signed by all owners of record, was not filed at least 30 days before it was considered by the City, and was not accompanied by the proper certification that all taxes and assessments were paid to date or that no taxes were owing.

Count II of the complaint sought a declaration that the City retained the responsibility to maintain and repair the portions of Momingside Drive and Loucks Street adjacent to the area purportedly deannexed.

At the hearing on the complaint, the parties stipulated that before the 1987 annexation the portion of Loucks Street now at issue was under the jurisdiction of the Town road commissioner. The City decided to disconnect the eastern one-third of the recently annexed property after it completed building a new fire station on the rest of the property. Counsel for the City maintained that the City disconnected the eastern third of the property because that property was unneeded, as the entrance to the fire station was on Hill Street. Counsel for the plaintiffs did not stipulate to the reasons for deannexation; rather, the plaintiffs sought, through the testimony of Town highway commissioner Rich Hammond, to show that the City deannexed the property to avoid its obligations to maintain the part of Loucks Street previously annexed.

Hammond testified that the new fire station fronts on Hill Avenue. There is a distance of about 150 feet from the back of the station to Loucks Street; the vacant part of the property thus takes up somewhat more than a quarter of the 550-foot width of the annexed area. This eastern part of the property was (and apparently remains) undeveloped vacant land.

Before November 1987, the Town maintained all of Loucks Street. The annexation transferred responsibility for maintaining the now-disputed area to the City. Around June 1987, Hammond told Bill Kearney, an engineer for the City, that the Town would do repair work on the City’s portion of Loucks Street if the City would supply the materials. These materials would cost about $6,000. Kearney^ spoke to the mayor, who turned down the offer. In August 1989, the City passed the disconnection ordinance. The Town never agreed to reannex any of the property and had not since done any repair or maintenance of the disputed part of Loucks Street.

The trial court ruled for the plaintiffs on both counts of the complaint. The court ruled that the City had no authority under home rule, statute or ordinance to deannex the property at issue. The court therefore held the disconnection ordinance void ab initio. The City now appeals.

The City argues that section 7 — 3—4 of the Municipal Code (set out above) authorizes it to disconnect the property at issue. The City reasons that section 7 — 3—4 plainly states that it may disconnect “[a]ny territory on its border but within its limits” and that nothing in the Municipal Code restricts disconnection to populated territory. Plaintiffs reply that section 7 — 3—4 was intended to afford private property owners relief from the burdens of municipal government and not to empower a municipality to avoid its responsibilities by undoing a prior annexation.

We agree with plaintiffs that the City lacked authority to deannex its own property. We therefore need not consider plaintiffs’ further argument that, assuming arguendo that the City had such authority, it failed to exercise that authority in the manner required by statute.

In construing a statute, a reviewing court must ascertain and fulfill the intent of the legislature. (In re Disconnection of Certain Territory from the Village ofMachesney Park (1984), 122 Ill. App. 3d 960, 965.) Although the City argues that the language of section 7 — 3—4 unambiguously allows a municipality to disconnect property regardless of whether the property is populated or privately owned, the plaintiffs point out that the section requires in each case a landowners’ petition, a waiting period between the filing of the petition and approval by municipal authorities, and a certification that taxes and assessments are paid up. The plaintiffs argue persuasively that because such requirements make no sense as applied to a municipality trying to disconnect its own land, the legislature could not have intended section 7 — 3—4 to authorize such proceedings. Plaintiffs note further that statutory authorizations of municipal power are to be construed narrowly (see La Salle National Bank v. Village of Brookfield (1981), 95 Ill. App. 3d 765, 769) and that the legislature chose not to provide a companion to the annexation statute (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 1—1) that would have allowed “deannexation” by ordinance.

Our courts have long held that the purpose of the Municipal Code’s disconnection provisions (Ill. Rev. Stat. 1989, ch. 24, par. 7— 3 — 1 et seq. and predecessors) is to allow holders of property that is not being used for municipal purposes to disconnect that property in order to avoid the burdens of municipal taxation and regulation. (Punke v. Village of Elliott (1936), 364 Ill. 604, 611; In re Disconnection of Certain Territory from the Village of Machesney Park (1984), 122 Ill. App. 3d 960, 965; American Community Builders, Inc. v. City of Chicago Heights (1949), 337 Ill. App. 263, 269-70; Woodward Governor Co. v. City of Loves Park (1948), 335 Ill. App. 528, 539; Vance v. Rankin (1901), 95 Ill. App. 562, 565, rev’d on other grounds (1902), 194 Ill. 625.) The parties are correct that the present situation is most unusual; indeed, we have found no published opinion from Illinois or elsewhere that passes directly on a municipality’s attempt to disconnect its own property from its corporate limits. Nonetheless, we believe that American Community Builders, Inc. v. City of Chicago Heights (1949), 337 Ill. App. 263, although cited by neither party, is dispositive of this case.

Section 7 — 3—4 requires a petition signed by “owners of record representing a majority of the area of land” in the territory sought to be disconnected. The meaning of the word “owner” in a disconnection statute is to be determined in light of the object that the statute seeks to accomplish. (Woodward Governor Co., 335 Ill. App. at 538.) In American Community Builders, private landowners sought court-ordered disconnection pursuant to a statute which required a petition from the owners of record of the land involved. The defendant municipality urged that the plaintiffs’ petition was invalid because the municipality did not join in the petition even though it owned an easement for highways in portions of the property involved. The court disagreed. It explained that because the purpose of the statute was to enable landowners to avoid the burden of municipal taxation and regulation of property not used for municipal purposes, the municipality could not be considered an “owner” under the statute. The defendant, the court noted, was “not a taxpayer but a taxeater.” American Community Builders, 337 Ill. App. at 270.

We find the reasoning of American Community Builders persuasive and fully applicable to the case at bar. To allow the City’s creative attempt at self-mutilation would be inconsistent with the purpose of section 7 — 3—4, which (as is true of statutory disconnection provisions generally) does not contemplate that the City itself may be an “owner” entitled to bring a disconnection petition. We also concur with the plaintiffs’ arguments that adopting the City’s reading of section 7 — 3—4 would be inconsistent with the section’s specific procedural provisions. As plaintiffs observe, the legislature could have provided a simple means for a municipality to “deannex” its own property by ordinance, and it chose not to do so. We therefore hold that the trial court correctly concluded that the 1989 disconnection ordinance was null and void.

We also agree with the plaintiffs that even had the City validly disconnected the disputed property it would not thereby have shed its burden to repair and maintain the portion of Loucks Street that it owned. Section 7 — 4—2 of the Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 7 — 4—2) states that “[a]ll property which (1) is owned by a municipality, and (2) lies outside the corporate limits of the municipality, and (3) does not lie within the corporate limits of any municipality, shall be subject to the ordinances, control, and jurisdiction of the municipality in all respects the same as the property owned by the municipality which lies within the corporate limits thereof.” The property in dispute is owned by the City and has not been annexed by any other municipality. Even if validly disconnected and thus made into unincorporated territory, the property would fall within the plain meaning of section 7 — 4—2 and the City’s burden to repair and maintain the property would not be lessened.

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

Affirmed.

McLAREN and INGLIS, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL T. ELSTON, Defendant-Appellant.
    Second District
    No. 2—90—0170
    Opinion filed December 19,1991.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State's Attorney, of Wheaton, and Robert J. Morrow, of Early, Collison, Tousey, Regan, Wlodek & Morrow, of Elgin (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Daniel T. Elston, was found guilty in a jury trial in the circuit court of Du Page County of the offenses of unlawful possession with intent to deliver 100 grams or more but less than 400 grams of a substance containing cocaine, a controlled substance (Ill. Rev. Stat., 1988 Supp., ch. 56½, par. 1401.2), and unlawful possession of a stolen vehicle (Ill. Rev. Stat. 1989, ch. 95½, par. 4 — 103(a)(1)) and was sentenced to concurrent 25- and 6-year terms of imprisonment, respectively, and fined $10,000 based on the street value of the substance containing cocaine.

Defendant raises three issues in this appeal: (1) that the trial court abused its discretion in allowing an assistant State’s Attorney not involved in the actual prosecution of the case to testify as a rebuttal witness; (2) that the 25-year sentence imposed was an abuse of sentencing discretion; and (3) that the $10,000 street value fine should be vacated because of a lack of evidence to establish such value and that defendant should receive a $5-per-day credit against the fine for each day he was incarcerated awaiting trial.

We need only summarize the facts adduced at trial relevant to the issues raised. Defendant was stopped for a traffic violation after which it was determined that he was driving an automobile reported to be stolen. Cash totalling $3,510 was found in a Kleenex box in the vehicle. Substances containing cocaine were subsequently recovered from a box in a brown gym bag found in the trunk of the vehicle and from a small container which defendant said he left in the squad car which transported him to the police station. The total weight of the cocaine was 110.97 grams. A police officer testified that the street value was from $7,000 to $8,000, although he also opined that the cocaine would sell in a range of $75 to $90 per gram. Defendant told officers that he had picked up the cocaine from a dealer, and he was to deliver it to Chicago. He also told officers that $2,250 of the cash found was drug money. At trial, defendant denied that he stole the car and denied making the statements that he knew the cocaine was in the car.

Matthew Dwyer, a close friend of defendant testifying in defendant’s behalf, stated among other things that several days prior to the trial he was visited by Assistant State’s Attorneys Dave Bayer and Joseph Solon, the latter being one of the prosecutors in the instant trial. He said he told the prosecutors that he saw another person put a cigar box in the trunk of the vehicle in which defendant was later stopped.

In rebuttal, Assistant State’s Attorney Dave Bayer, who was not involved in the prosecution of the instant case, was allowed over defendant’s objection to testify, inter alia, that Dwyer had told him and Assistant State’s Attorney Solon that he did not see another person put anything into the vehicle.

Defendant first contends that the trial court abused its discretion in allowing Assistant State’s Attorney Dave Bayer to testify in rebuttal to a conversation he and prosecuting attorney Joseph Solon had with defense witness Matthew Dwyer several days before trial. Relying on People v. Janes (1985), 138 Ill. App. 3d 558, 486 N.E.2d 317, defendant argues that the policies served by the witness-advocate rule were violated when Assistant State’s Attorney Bayer was allowed to testify and, accordingly, the court abused its discretion in allowing such testimony. Defendant also argues that this error was exacerbated by prosecuting attorney Solon’s final arguments which stressed that the prosecution did not manufacture evidence, a reference which defendant contends was to Bayer’s conversation with defense witness Dwyer.

In Janes, this court agreed with the policies served by the witness-advocate rule set forth in United States v. Johnston (7th Cir. 1982), 690 F.2d 638, as it applied to an assistant State’s Attorney who testified as a rebuttal witness in a trial which he was prosecuting and then used his own testimony extensively in his closing argument, and found reversible error under the circumstances. (Janes, 138 Ill. App. 3d at 567-71, 486 N.E.2d at 323.) We find, however, that Janes is in-apposite here where the testifying assistant State’s Attorney was not involved in the prosecution of the case.

We know of no prohibition against such testimony, nor does the witness-advocate rule articulated in Johnston refer to the situation present here. In Johnston, the prosecutor assigned to the case testified in a pretrial suppression hearing. Moreover, the court in Johnston referred in a footnote to its prior decision in United States v. Cerone (7th Cir. 1971), 452 F.2d 274, cert, denied (1972), 405 U.S. 964, 31 L. Ed. 2d 240, 92 S. Ct. 1168, which held that the mere fact that a United State’s Attorney holds an office of public trust should not disqualify him as a witness so long as he does not otherwise participate in the trial. Cerone, 452 F.2d at 288.

Defendant has not cited any relevant authority to support his proposition that the witness-advocate rule applies to the circumstances present here. Further, in examining the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.1 et seq.), we note that Rule 3.7(c), pertaining to a lawyer as a witness, expressly provides that “[e]xcept as prohibited by Rule 1.7 or Rule 1.9 [not pertinent hereto], a lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm may be called as a witness” (134 Ill. 2d R. 3.7(c)). We also observe that standard 3.1(f) of the American Bar Association Project on Standards for Criminal Justice Relating to the Prosecution Function and the Defense Function (Approved Draft 1971) acknowledges the use of a prosecutor in interviewing a prospective witness and recommends only that the prosecuting attorney should withdraw from the case in order to present his impeaching testimony. As Assistant State’s Attorney Bayer was not involved in prosecuting the instant case, we find no error in permitting his testimony in rebuttal and in allowing reference to such testimony in final argument. The fact that the prosecuting attorney, Joseph Solon, was present during the conversation which Bayer testified to is not significant as Solon did not become a witness and, therefore, did not fall within the witness-advocate rule.

Defendant’s second contention is that the 25-year sentence of imprisonment for unlawful possession of cocaine with intent to deliver is an abuse of sentencing discretion because the trial court failed to give proper consideration and weight to the mitigating factors of his previous rehabilitation for heroin addiction in 1982, the death of his wife in 1988 which led to the resuming of his drug abuse habits, his recent good employment record, and his lack of criminal activity while he abstained from drugs. Defendant asks that this court reduce his sentence or remand for a new sentencing hearing.

Imposition of a sentence in a criminal case is a matter of judicial discretion, and, absent an abuse of discretion, the sentence of the trial court may not be altered upon review. (People v. Perruquet (1977), 68 Ill. 2d 149, 153, 368 N.E.2d 882.) The trial judge is charged with the often difficult and delicate responsibility of fashioning a sentence which will not only protect the interests of society but also will allow for the possibility of rehabilitation of the offender. (Perruquet, 68 Ill. 2d at 155, 368 N.E.2d at 884.) Rehabilitation is not the only goal, but dual consideration is given to the seriousness of the offense and the rehabilitation of the offender. People v. Young (1988), 124 Ill. 2d 147, 156, 529 N.E.2d 497.

In the case at bar, the trial judge expressly stated that he considered the presentence report, the facts at trial, the evidence in aggravation and mitigation, the defendant’s remarks at sentencing, and the arguments of counsel at the sentencing hearing. The trial judge also stated that he gave credit to defendant for his army service in Vietnam and other positive factors presented in mitigation of sentence. Nevertheless, the court sentenced defendant to a 25-year term of imprisonment considering the amount of the controlled substances possessed and his prior record of criminal convictions, which include: burglary in 1971 and a sentence of 15 years’ imprisonment in 1972 upon a violation of his probation; escape from prison in 1975 and stealing a vehicle during that time; and burglary and theft in 1978 for which he was sentenced to 10 years’ and 5 years’ imprisonment. Testimony at the sentencing hearing also was adduced that prior to the arrest in the instant case defendant was arrested twice in 1989 during which he was found in possession of cannabis and unlawful possession of a weapon.

Unlawful possession of 100 but less than 400 grams of cocaine with intent to deliver is a Class X felony with a penalty of not less than 9 but not more than 40 years’ imprisonment. The sentence here was within the statutory range, and, considering all the sentencing factors present in this case, we find no abuse of sentencing discretion in the trial court’s balancing of the factors and sentencing defendant to a 25-year term of imprisonment.

Defendant’s final contentions are (1) that his $10,000 fine must be vacated either because it is not a street value fine or, if it was, it should be reduced as the only testimony was that it had a street value of $7,000 to $8,000; and (2) that his fine must be reduced to reflect a $5-per-day credit due to 166 days’ incarceration prior to sentencing.

The State concedes that defendant is entitled to $5 a day credit against his fine for each day of incarceration, and we modify defendant’s $10,000 fine to $9,170.

As to defendant’s argument that the $10,000 fine was not a “street value” fine pursuant to section 5 — 9—1.1 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 9—1.1), we reject this contention as the sentencing order expressly imposes the $10,000 fine as a “street value fine.” Alternatively, defendant maintains that the only testimony was that the street value was $7,000 to $8,000, and we must reduce the fine accordingly. The State responds that the Appellate Court, Second District, has held that section 5 — 9— 1.1 mandates only a minimum “street value” fine and the fine imposed here is proper. People v. Garcia (1991), 217 Ill. App. 3d 350, 351-52, 577 N.E.2d 183; People v. Pehrson (1989), 190 Ill. App. 3d 928, 933, 547 N.E.2d 613.

Although as pointed out in People v. Garcia (1991), 217 Ill. App. 3d 350, 351, 577 N.E.2d 183, the decisions in other districts of the appellate court may suggest views inconsistent with this court’s determination that the “street value” is only the minimum fine authorized by section 5 — 9—1.1, we adhere to Garcia.

The judgment of the circuit court of Du Page County is affirmed as modified.

Affirmed as modified.

UNVERZAGT and DUNN, JJ., concur.