author: JUSTICE SLATER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK MUNN, Defendant-Appellant.
    Third District
    No. 3 — 90—0809
    Opinion filed August 2,1991.
    Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Gary L. Spencer, State’s Attorney, of Morrison (Judith Z. Kelly, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Mark Munn, appeals his eight-year sentence for four burglary convictions (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 1). We affirm.

The record shows that the defendant entered an open plea of guilty to four counts of burglary. At the guilty plea hearing, the court admonished him as required by Supreme Court Rule 402 (134 Ill. 2d R. 402). In particular, the defendant was informed that he was eligible for an extended term because he had committed the same or greater class felony within the past 10 years.

The factual basis for the pleas showed that on March 21, 1990, the Coleta Convenience Store in Coleta, Illinois, was burglarized. On March 23, 1990, and again on March 24, 1990, Arnie’s Happy Spot in Deer Grove, Illinois, was burglarized. The First Evangelical Lutheran Church of Jordan, located in Whiteside County, Illinois, was also found burglarized on March 24, 1990. Two officers of the Whiteside County sheriff’s department would have testified that after receiving Miranda warnings, the defendant and a codefendant admitted their involvement in the commission of each of the burglaries.

According to the presentence report, twice in 1987 the defendant was hospitalized suffering from depression and alcohol abuse. He was discharged to a residential treatment program for a 30-day assessment and treatment. The defendant left the program after only two days, before treatment goals could be formed.

In September of 1989, the defendant was convicted of attempted obstruction of justice in Bureau County, Illinois. In October of 1989, he was convicted of unlawful consumption of alcohol by a minor. In November of 1989, he was again convicted of this offense, placed on one year of conditional discharge, and ordered to undergo an alcohol evaluation within 30 days, with treatment to be completed within four months. The defendant failed to undergo the evaluation. In June of 1990, the defendant was convicted of driving under the influence of alcohol.

The report also showed that in April of 1989, the defendant was placed on probation for two years following a burglary conviction in Cook County. He was also convicted of violating his bail bond in Cook County and sentenced to six months in the county jail and an additional year of probation. The defendant was still on probation when the instant offenses occurred.

On June 13, 1990, the defendant pled guilty in Bureau County to four counts of burglary and one count of attempted burglary for offenses occurring in March of 1990. The defendant was sentenced to six years’ imprisonment for the four burglary counts and three years’ imprisonment for the attempted burglary.

The presentence report also showed that the defendant had been employed full time grading lumber at a sawmill in Missouri from July 1987 to August 1988. After being laid off due to a work-related injury, he was sporadically employed. The defendant was engaged to be married on August 1, 1990. Following his arrest in the instant case, he attempted suicide and was subsequently diagnosed as being alcohol dependant.

Patrick Carney, a Whiteside County sheriff’s detective, testified at the defendant’s sentencing hearing. According to Carney, following his arrest for the instant burglaries, the defendant confessed his involvement in these burglaries, as well as several other uncharged burglaries he had also committed in Whiteside County during March of 1990. The defendant was cooperative with Carney and told him that his drinking problem contributed to his involvement in the burglaries.

Following arguments of counsel, the court stated that it had reviewed all the factors in aggravation and mitigation. It then imposed an eight-year term of imprisonment, to run concurrently with the six-year sentence for the Bureau County burglaries. The court then asked the defendant if he wanted to make a statement. The defendant said he wanted to apologize to the owners of the businesses he burglarized. He also stated that he committed the burglaries because he was “going for alcohol and liquor.”

The defendant subsequently filed a motion to withdraw his plea, alleging that at the time of his plea he was not aware of what he was doing and lacked a complete understanding of the consequences of his plea. Counsel filed the requisite Supreme Court Rule 604(d) certificate (134 Ill. 2d R. 604(d)). At the hearing, the defendant stated that he did not understand his rights, nor the defenses which could have been raised. He also complained that his sentence was too long. The court found that the defendant had understood the possible consequences of his plea and denied the motion.

On appeal, the defendant first argues that the trial court failed to comply with Supreme Court Rule 605(b)(5) (134 Ill. 2d R. 605(b)(5)). He contends the court should have provided him with a free copy of the transcript of his sentencing hearing since he filed his motion to vacate his guilty plea because he felt his eight-year extended sentence was excessive. We note that the defendant did receive a copy of the transcript of his guilty plea hearing, which his counsel reviewed prior to the hearing on the motion.

In support of his argument, the defendant relies on cases which have construed Supreme Court Rule 604(d): People v. Vickery (1991), 207 Ill. App. 3d 574, 566 N.E.2d 495, and People v. Mabry (1991), 209 Ill. App. 3d 976. We find those cases inapposite to the case at bar.

Supreme Court Rule 604(d), entitled “Appeal by Defendant from a Judgment Entered upon a Plea of Guilty,” contains conditions precedent which a defendant must fulfill to preserve his right to appeal. In both Vickery and Mabry, this court remanded the causes for further post-plea proceedings in compliance with the portion of Rule 604(d) which provides that the defendant’s attorney shall file with the trial court a certificate stating that the attorney has consulted with the defendant either by mail or in person to ascertain his contentions of error in the entry of the plea of guilty, has examined the trial court file and report of proceedings of the plea of guilty, and has made any amendments to the motion necessary for adequate presentation of any defects in those proceedings.

In contrast, Supreme Court Rule 605(b), entitled “Advice to Defendant On Judgment and Sentence Entered on a Plea of Guilty,” provides in pertinent part as follows:

“In all cases in which a judgment is entered upon a plea of guilty, at the time of imposing sentence, the trial court shall advise the defendant substantially as follows:
(1) that he has a right to appeal;
(2) that prior to taking an appeal he must file in the trial court *** a written motion asking to have the judgment vacated and for leave to withdraw his plea of guilty; [and]
* * *
(5) that if he is indigent, a copy of the transcript of the proceedings at the time of his plea of guilty and sentence will be provided without cost to him and counsel will be appointed to assist him with the preparation of the motions ***.” 134 Ill. 2d R. 605(b)(5).

The defendant would have us impose a strict obligation upon the trial court to provide indigent defendants with transcripts of their sentencing hearings. We find no such requirement in Rule 605(b). In contrast to Rule 604(d), which clearly calls for providing a transcript of the plea hearing anytime an indigent defendant seeks to withdraw his guilty plea, Rule 605(b) merely mandates that the court shall advise the defendant of his right to request a transcript of his plea and sentencing hearings. At that point, it is the defendant’s obligation to request the transcript of the sentencing hearing if he needs it.

Here, the trial court properly advised the defendant pursuant to Rule 605(b). The defendant made no request for a transcript. Accordingly, no error occurred.

At one point in his Rule 605(b) argument, the defendant also contends that he was denied his right of allocution since the trial court asked him if he wished to make a statement after it had already imposed sentence. We disagree.

The failure of the trial court to ask a defendant if he wishes to make a statement is a technical error which does not require reversal. (People v. Lewis (1988), 175 Ill. App. 3d 156, 529 N.E.2d 752.) The instant defendant was afforded ample opportunity to present evidence in mitigation and to be heard at the sentencing hearing. Through the evidence and testimony presented at the sentencing hearing, the court had already been made aware of the defendant’s asserted remorse for the burglaries and his belief that they were induced by alcohol. Therefore, no error occurred in this regard at the sentencing hearing.

The defendant next argues that the court erred in imposing an eight-year, extended-term sentence for the offense of burglary. He contends the court failed to give sufficient mitigating weight to his alcohol problem and to the other mitigating factors.

Burglary is a Class 2 felony, punishable by not less than three and not more than seven years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 19 — 1(b), 1005 — 8—1(a)(5).) Where the defendant has committed within the past 10 years a felony of the same or greater class, he may be sentenced to not less than 7 and not more than 14 years’ imprisonment. (Ill. Rev. Stat. 1989, ch. 38, pars. 1005 — 5—3.2(b)(1), 1005 — 8—2(a)(4).) The imposition of a sentence is a matter of judicial discretion, and absent an abuse of that discretion, the sentence of the trial court may not be altered on review. (People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.) Where mitigating evidence is before the court, it is presumed the judge considered the evidence, absent some indication other than the sentence itself to the contrary. People v. Sawyer (1985), 139 Ill. App. 3d 383, 487 N.E.2d 662.

We find no abuse of discretion by the trial court. The defendant was on probation for burglary when he committed the instant offenses and the Bureau County burglaries. Altogether, excluding the instant convictions, the defendant had six prior burglary convictions. Additionally, he had committed numerous other crimes. Alcohol appears to have played a role in inducing some of his crimes, but he has never followed through on any attempts to overcome his problems. The trial court imposed a prison term only one year over the minimum extended term of imprisonment and only two years over the concurrent term imposed in Bureau County. Under these circumstances, we find that the defendant’s eight-year sentence was not excessive.

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

Affirmed.

BARRY and McCUSKEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE BARRY

license: Public Domain

text:
    EDWARD ROSE BUILDING COMPANY, Plaintiff-Appellant, v. THE PROPERTY TAX APPEAL BOARD et al., Defendants-Appellees.
    Third District
    No. 3 — 90—0646
    Opinion filed August 2, 1991.

      Vonachen, Lawless, Trager & Slevin, of Peoria (Gregg N. Grimsley, of counsel), for appellant.
    Roland W. Burris, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and John A. Morrissey, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

Edward Rose Building Co., hereafter Rose, owner of a 460-unit apartment complex in East Moline, Illinois, appeals from an order of the circuit court of Rock Island County affirming a decision of the Property Tax Appeal Board, hereafter PTAB, which based the 1986 assessed valuation of the property on a fair market value of $5,752,890. This is about $1,370,000 higher than the fair market value asserted by Rose.

According to the record on appeal, the Board of Review of Rock Island County assessed the apartment complex owned by Rose utilizing a fair market value of $5,330,000. Rose then appealed to the PTAB. At the hearing before the PTAB, Michael Myers testified for Rose that, using the income approach, the market value of the property is $4,380,358. Myers, who is a vice-president of Rose, based his computations upon the actual income statement for the complex for 1986.

Testifying for the Board of Review was James E. Anderson, an independent real estate appraiser, who used all three standard methods of valuation with the following results: Market data approach-range of $5,600,000 to $6,250,000; reproduction cost approach— $6,110,000; income approach — $5,385,000. After correlation and reconciliation of the three approaches, Anderson concluded that the market value of the property was $5,750,000, and in reaching that conclusion, he stated that he gave the most weight to the market data approach.

In its written decision, the PTAB stated that the appraisal of Anderson was the best evidence of value in the record. The PTAB expressly found that the market data approach, utilizing seven comparable sales of apartment buildings, provided the best indication of value.

Rose sought administrative review of the PTAB decision in the circuit court of Rock Island County. After hearing arguments and reviewing the record, the court affirmed, finding that the manifest weight of the evidence supported the decision of the PTAB as to the value of the disputed property and as to the method used in determining value.

On appeal Rose first contends that the PTAB erred in relying primarily upon the market data approach. Rose insists that the income approach is preferred when assessing rental property. The general rule in such cases was stated by this court in Robinson v. Property Tax Appeal Board (1979), 72 Ill. App. 3d 155, 156-57, 390 N.E.2d 939, 944, as follows:

“While we have examined the claims that one means of establishing value is somehow more appropriate than another, we have not done so for the purpose of determining which method is better, more appropriate, or more accurate, but rather to ascertain whether the decision of the Appeal Board was based on sufficient evidence. Upon administrative review, it is not the function of this court or the trial court below to substitute its judgment for that of the Appeal Board [citation], but to insure that an objective, rational decision was arrived at after a fair hearing at which competent evidence was introduced.”

The usual standard for judicial review of a decision of the PTAB, like all administrative decisions, is whether that decision is contrary to the manifest weight of the evidence (Commonwealth Edison Co. v. Property Tax Appeal Board (1984), 102 Ill. 2d 443, 468 N.E.2d 948), and a court will not interfere where there is merely a difference of opinion as to the cash value of the property. (Kankakee County Board of Review v. Property Tax Appeal Board (1989) 131 Ill. 2d 1, 544 N.E.2d 762.) Rose contends that the issue here is whether the PTAB relied upon an improper method of valuation, and in support of its view that the income approach was the only proper method, Rose cites several cases where the income approach was approved for use in assessing rental property. (E.g., Springfield Marine Bank v. Property Tax Appeal Board (1970), 44 Ill. 2d 428, 256 N.E.2d 334; Kankakee County Board of Review v. Property Tax Appeal Board (1987), 163 Ill. App. 3d 811, 516 N.E.2d 1006, aff'd (1989), 131 Ill. 2d 1, 544 N.E.2d 762.) The cases relied upon by Rose involved disputes as to the treatment of government rent subsidies when valuing rental property.

We cannot say that the appraisal method used by Anderson and adopted by the PTAB was improper as a matter of law. Anderson computed a valuation for this property by each of three accepted methods and then, based on the factual circumstances of this case, concluded that the market data approach was entitled to more weight than the other two approaches. The market value fixed by Anderson was in the middle of the range of values computed by the three methods. The PTAB found the testimony of Anderson, an independent appraiser, more reliable than that of Myers, an officer of Rose and manager of the property in question. By experience and training, Anderson was far better qualified to prepare appraisals of real estate than Myers. Under the circumstances, reliance by the PTAB on Anderson’s analysis and valuation was supported by the manifest weight of the evidence.

Rose further argues that, even if the market data approach was appropriate here, then the market value determined by Anderson and adopted by the PTAB was contrary to the manifest weight of the evidence. Rose challenges one of the comparable sales used by Anderson because the sale price of those apartments ($1,700,000) was later renegotiated downward to $1,200,000 in order to avoid the costs of repossession. In effect, Rose would give different weight to the market data than did the PTAB and would reach a different appraised value.

Differences of opinion as to appraised valuations cannot be the basis for reversing an assessment (Robinson v. Property Tax Appeal Board (1979), 72 Ill. App. 3d 155, 390 N.E.2d 942), and the fact that reasonable minds could differ as to the value would not make an assessment contrary to the manifest weight of the evidence. Board of Review v. Property Tax Appeal Board (1982), 104 Ill. App. 3d 859, 433 N.E.2d 692.

Additionally, Rose contends that Anderson made several factual errors in computing the value of the property according to the income approach while the computation of Myers was more accurate. It would unduly lengthen this opinion to discuss each claimed error. After careful review of the record, we conclude that these are matters of differences of opinion between two appraisers, and as such, cannot be a basis for reversal.

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

STOUDER, P.J., and HAASE, J., concur.


text:
      In re MARRIAGE OF BETTY L. GALLENTINE, n/k/a Betty L. Snyder, Petitioner-Appellant, and ARLO E. GALLENTINE, Respondent-Appellee.
    Third District
    No. 3 — 91—0003
    Opinion filed August 2,1991.

      Nelson, Kilgus, Richey & Hauptman, of Morrison (Lon M. Richey, of counsel), for appellant.
    Paul A. Osborn, of Ward, Murray, Pace & Johnson, of Sterling (Daniel C. Hawkins, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Betty L. Gallentine (the wife) and Arlo E. Gallentine (the husband) executed an property settlement agreement purporting to dispose of all the assets of their 30-year marriage which was approved by the court and incorporated into a judgment dissolving their marriage on February 2, 1989. The property settlement agreement stated in relevant part as follows:

“3. The husband shall pay and be responsible for and hold the Wife harmless from liability on the outstanding indebtedness owed to River Valley Savings Bank, which constitutes a lien on the real estate awarded to the Wife herein.
The obligation of Husband to pay the debts (as required by this paragraph) is acknowledged by the Husband to be a means of assisting Wife in providing for her needs, and is also in consideration of the disparate incomes of the parties. Therefore, it is agreed that the obligation of Husband to pay such debts is in the nature of maintenance and that such obligation by Husband is an exception to discharge of indebtedness under the United States Bankruptcy Code.
* * *
6. Each of the parties agrees to waive any claim against the other for alimony or maintenance, and agrees that they shall be forever barred from having, claiming or receiving alimony or maintenance from the other.”

At the time of the dissolution the husband was 52 years of age and had been employed at Northwestern Steel and Wire Company for 26 years. The wife was employed at Community General Hospital and earned significantly less than the husband. Together they had reared two children who were both emancipated at the time of the dissolution.

Pursuant to the property settlement agreement, the husband received any and all retirement benefits acquired through his place of employment. The evidence showed that his retirement benefits were currently vested at the sum of $814 per month when he reached retirement age. He also received an unencumbered 1988 Chrysler New Yorker automobile. The wife received the marital residence, which was valued at $45,000, and the husband agreed to “pay and be responsible for *** the outstanding indebtedness owed to River Valley Savings Bank.”

After the dissolution, the husband faithfully met his obli gations. The wife remarried approximately one year later. In October 1990 she filed a petition in the circuit court asking for modification of the judgment to allow her to sell the marital residence and force the husband to secure alternative financing. The husband countered by filing an affirmative defense claiming that the payments he had been making were “periodic maintenance” and that obligation terminated upon the wife’s remarriage. (Ill. Rev. Stat. 1989, ch. 40, par. 510(c).) On appeal, the husband asserts that since a property settlement is nonmodifiable, the wife, having filed the petition to modify, is estopped from claiming his obligation is anything other than periodic maintenance. We find this argument to be without merit. Both parties here were equally aware of the facts, and the only dispute is on the applicable law. The husband has not been misled or relied on the wife’s erroneous position. Paulik v. Village of Caseyville (1981), 100 Ill. App. 3d 573, 427 N.E.2d 213.

It is the wife’s contention that the husband’s obligation relative to the former marital residence was not periodic maintenance because there was a specific waiver of maintenance in the property settlement agreement. She further contends that the language “in the nature of maintenance” was used in the agreement for the purpose of attempting to assure the husband’s obligation would be nondischargeable in the event of his bankruptcy.

The issue is whether assumption of the debt to River Valley Savings Bank is a nonmodifiable property settlement in lieu of maintenance or whether it was periodic maintenance. The trial court found that while a clear waiver of maintenance was set out in the agreement, the “in the nature of maintenance” language created an ambiguity which should be construed against the drafter. The document was drafted by the wife’s attorney. The trial judge determined that the obligation to pay $378.79 per month for 15 years in effect constituted maintenance which terminated on the wife’s remarriage. We disagree. We believe that the debt at issue here is in the nature of a property settlement and that the trial court was in error as a matter of law. In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 523 N.E.2d 664.

The testimony of the wife’s attorney showed that the husband was not represented by counsel at the time he signed the property settlement agreement. In drafting the document, the wife’s attorney’s purpose was to incorporate the terms that the parties had agreed upon. The “in the nature of maintenance” language was designed and used solely to give his client protection from the husband’s possible bankruptcy

Both the husband and wife met with the wife’s attorney prior to the execution of the property settlement agreement. The husband specifically told the lawyer that if she (the wife) ever got remarried he was not going to make any more payments. Wife’s attorney refused to change the agreement, explaining to the husband that the house mortgage payments were a trade off for the wife’s rights in the husband’s pension. On a later date, the husband signed the agreement, apparently knowing that his requested changes had not been made.

Neither the label attached nor the method of payment prescribed in the judgment conclusively determines the nature of the obligation. (In re Marriage of Rowden (1987), 163 Ill. App. 3d 869, 516 N.E.2d 1041; In re Marriage of Lytle (1982), 105 Ill. App. 3d 1095, 435 N.E.2d 522.) The court must look to the substance of the judgment to determine the essential character of the obligation.

In the case at bar, the circumstances surrounding the execution of the document support the conclusion that the obligation is a property settlement, a trade off of wife’s rights in the husband’s pension in exchange for husband’s obligation to pay the mortgage. The mortgage was for a specific sum to be paid over a specific period of time. Periodic maintenance differs in that it is payable for an indefinite period of time. (In re Marriage of Davis (1984), 124 Ill. App. 3d 1088, 465 N.E.2d 155.) The judgment also provided for a specific waiver of maintenance. The husband’s specific request during negotiations to terminate payments upon the wife’s remarriage was specifically denied and excluded from the property settlement agreement. In addition, the parties had “disparate incomes” with the husband earning considerably more than the wife. The language “in the nature of maintenance” was expressly used by the wife’s attorney as a measure of protection for her in the event that the husband filed bankruptcy. It was designed to serve as a deterrent to the husband in the event he decided to try to avoid his obligation. Whether the debt was in fact dischargeable is a matter of Federal, not State, law and is not at issue in this proceeding. Periodic maintenance was specifically waived by the unequivocal language of paragraph 6 of the agreement.

We hold that the trial court’s application of the rule that an ambiguity should be construed against the drafter was inappropriate where the court could have ascertained the intent of the parties. It is the intent of the parties which must govern the interpretation of a settlement agreement. (In re Estate of Kite (1974), 19 Ill. App. 3d 932, 312 N.E.2d 366.) The intent of the parties to this agreement is clearly to require the husband to pay all the mortgage payments.

We hold that the trial court erred in finding that the husband’s obligation to pay the outstanding indebtedness owed to River Valley Savings Bank amounted to periodic maintenance terminable on the wife’s remarriage. We further hold that the obligation was a property settlement in lieu of maintenance. Accordingly, the trial court’s order on this issue is reversed. In that a property settlement is non-modifiable (Ill. Rev. Stat. 1989, ch. 40, par. 510(b); In re Marriage of Workman (1980), 89 Ill. App. 3d 886, 412 N.E.2d 614), the order denying the wife’s petition to modify is affirmed.

Affirmed in part; reversed in part.

HAASE and BARRY, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JASON C. OAKS, Defendant-Appellant.
    Third District
    No. 3 — 90—0647
    Opinion filed June 27, 1991.

      Michael L. Wassell, of Braud/Warner, Ltd., of Rock Island, for appellant.
    Greg McClintock, State’s Attorney, of Monmouth (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Jason C. Oaks, was charged with home invasion and armed violence (Ill. Rev. Stat. 1989, ch. 38, pars. 12 — 11, 33A — 2). A jury subsequently found him guilty of both counts. On the defendant’s motion, the trial court vacated the conviction of armed violence. It thereafter sentenced him to 10 years’ imprisonment. The defendant appeals.

At trial, witnesses testified that in Monmouth, Illinois, at approximately 6 p.m. on January 18, 1990, Mike Moore came to the back door of the home of Gladys Lester, the defendant’s grandmother. When Lester answered the door, Moore indicated he was from the gas company. He then forced his way into her home, grabbed her, and used a stun gun on her chest. After Moore demanded money, Lester gave him some currency, including a quantity of change. Moore left shortly thereafter.

On January 19, 1990, in response to an anonymous telephone tip, Detective Owens of the Monmouth police department went to the defendant’s residence. Owens spoke with the defendant, who subsequently gave him a stun gun he had recently purchased and agreed to go to the police station to talk. After being advised of his constitutional rights, he gave a written statement. In his statement, the defendant said that earlier in the day he had been with Ron Smith and that the two of them had gone to Moore’s house, where they met Moore. Sometime later, the defendant and Moore dropped Smith off at someone else’s house. Between 3 p.m. and 4 p.m., Moore and the defendant bought some beer and went back to Moore’s house to drink. The statement indicated that at 5:05 p.m. the defendant went to his girlfriend’s place of employment. She appeared to have already left, so the defendant got some food and went back to Moore’s house.

Other testimony showed that on January 20, 1990, Lester and the defendant went to the Monmouth police department. After looking at the stun gun taken from the defendant, Lester stated that it was not the one used on her.

The next day, however, the defendant wrote and signed a second statement indicating he had been aware of Moore’s plan to burglarize Mrs. Lester’s house. In his statement, he admitted he knew Moore had planned to take the stun gun. He also admitted driving Moore to his grandmother’s house and waiting for him to return. After Moore returned, they went back to his house and then went to the Hy-Vee store to convert the change to paper money. At trial, the defendant claimed he had fabricated this second statement to protect his family, because Moore had threatened to harm them.

The defendant’s girlfriend, Amy Johnson, testified that on the day of the crime she saw the defendant in Burlington, Iowa, around 5:15 p.m. She further noted that it takes 45 to 50 minutes to get from there to Monmouth.

In rebuttal, the State introduced a letter written by the defendant to Johnson. The letter essentially asked Johnson to fabricate an alibi for the defendant.

On appeal, the defendant raises three issues. First, he claims that the trial court erred in allowing the State to place in evidence letters he wrote while incarcerated in the Warren County jail awaiting trial. The defendant argues that although he was aware jail personnel would “shake down” letters, he did not believe they would read his outgoing mail. He claims that the seizure of the letters he wrote constituted an unreasonable search and seizure or a denial of free speech (U.S. Const., amends. I, IV; Ill. Const. 1970, art. I, §§4, 6).

A pretrial jail inmate’s right of free speech is not absolute, but must be weighed against the important governmental interests in regulating jail safety. (Bell v. Wolfish (1979), 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861.) Federal courts have long held that letters written by a prison inmate while awaiting trial may be seized by prison officials pursuant to an established practice and may be introduced against the defendant at trial. (Stroud v. United States (1919), 251 U.S. 15, 64 L. Ed. 103, 40 S. Ct. 50.) Illinois courts have likewise concluded that a prisoner’s letters may be admitted into evidence if the letters were taken pursuant to reasonable regulations and the prisoner had knowledge that prison officials might scrutinize them. People v. Reddock (1973), 13 Ill. App. 3d 296, 300 N.E.2d 31.

In the instant case, the defendant admitted that he had voluntarily written the seized letters and had given them to sheriff’s personnel for mailing. Additionally, he admitted he left the letters unsealed so the sheriff’s office could examine them. Testimony at trial also indicated that one reason the defendant’s mail was inspected and read was because family members had indicated he was a suicide risk. We therefore hold that the trial court did not err in admitting the letters.

The second issue raised on appeal is whether the trial court erred in failing to allow the defendant to impeach a witness for bias by questioning him about the particulars of a prior felony conviction.

The State, on direct examination of its witness Ronald Smith, brought out that Smith had been previously convicted of second degree theft in Iowa. On cross-examination, defense counsel attempted to question Smith about the particulars of that conviction. The State objected, and the objection was sustained. The defendant now argues that he should have been allowed to impeach the witness for bias. He contends that it was his checks Smith used to commit the theft and that he would have testified against Smith if Smith had not pled guilty. The defendant concludes that if he had been allowed to question Smith about the particulars of the theft conviction, he could have shown bias and implied a reason why Smith would lie.

The scope of cross-examination concerning the circumstances of a witness’ prior conviction is within the trial court’s sound discretion. Absent an abuse of that discretion which results in manifest prejudice to the defendant, the ruling should not be overturned on review. People v. Boclair (1989), 129 Ill. 2d 458, 544 N.E.2d 715.

In the instant case, the trial judge originally decided to permit a limited inquiry by the defendant. However, the State suggested that such an inquiry would not produce evidence of bias. It indicated to the court that if Smith were questioned about the circumstances surrounding his theft conviction, he would testify that he and the defendant worked together to commit the thefts. He and the defendant would buy goods with bad checks, then return the goods to the store for a cash refund. The State informed the court that Smith was prepared to testify that his theft conviction was premised on falsely obtaining money from businesses, rather than for the theft of checks from the defendant.

Rather than conducting a trial within a trial and forcing the jury to decide the basis of Smith’s conviction, the trial court excluded these collateral matters. We note that the jury was still in a position to judge Smith’s demeanor and credibility based upon his testimony as well as the substance of the cross-examination. Considering the totality of the circumstances, prohibiting the defendant from going into the particulars of the witness’ prior conviction did not constitute an abuse of discretion by the trial court.

The defendant’s final argument is that he was not proved guilty beyond a reasonable doubt. He claims the victim denied that the defendant’s stun gun was used on her, the testimony of Smith and Moore conflicted in many aspects, he had no motive to commit the crime, and he had an alibi that was uncontradicted.

A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) It is axiomatic that the credibility of the witnesses and the weight to be afforded their testimony are determinations exclusively within the province of the jury. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) The relevant question for this court to address is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In the instant case, the defendant admitted in his second statement that he committed the offense. While at trial he denied the veracity of that statement, the jury was not required to believe him. Given the defendant’s statement and the other evidence against him, we find that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of home invasion.

The judgment of the circuit court of Warren County is therefore affirmed.

Affirmed.

SLATER and McCUSKEY, JJ., concur.


author: JUSTICE GORMAN JUSTICE SLATER,

text:
      In re MARRIAGE OF DANIEL MARK CARLSON, Petitioner-Appellee, and BRENDA LAURETTE CARLSON, Respondent-Appellant.
    Third District
    No. 3-90-0622
    Opinion filed August 2,1991.
    SLATER, J., dissenting.

      James L. Neppl, of Ruud, Scovil & Neppl, of Rock Island (Douglas C. Scovil, of counsel), for appellant.
    Braud/Warner, Ltd., of Rock Island (Donovan S. Robertson, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

This appeal is from the circuit court’s denial of the petition of Brenda Carlson (the mother) to remove her two minor children from Illinois. This petition was opposed by Daniel Carlson (the father), who was formerly married to Brenda Carlson. We reverse and remand.

The parties were married in August 1976. Their first child was born in October 1980. Their second child was born in July 1984. The parties’ marriage was dissolved in April 1985. Incorporated into the decree of dissolution of marriage was a settlement agreement, which included provisions for joint custody of the two children. While the mother was denoted therein as the “primary custodian of the children,” the father was granted custody of the children for extensive periods of time. In addition, the custody provisions stated:

“The [father] shall be responsible for major decisions with regard to the education and religious training of the children. It is specifically agreed by the parties that the [father] shall register the children for school from his residence *** [in] East Moline, Illinois.”

While some disagreements arose over interpretation of certain joint custody provisions, the joint custody arrangement has worked reasonably well in this case. The parties have been fit parents and have taken very good care of their children. The children have been excellent students, and have been enrolled in programs for gifted children at their school, the public school in their father’s school district. The father has taken great interest in his children, and especially in their education. He has helped them with their homework almost every school day. The father also has been active in his children’s school activities, and has participated in school programs. The mother has been involved in school activities, but has not assisted the children with their homework since the father has kept that role to himself.

At some point the father remarried, but stayed in East Moline. The father’s new wife has gotten along well with the children and has become involved with some of the children’s school activities and with some school programs.

Sometime around 1987 or 1988, the mother began seeing a man to whom, in December 1989, she became engaged to be married. This man is a vice-president of a bank in Dubuque, Iowa, and owns a small home and the one-acre parcel of land on which the home stands. He has arranged financing for a new, larger home to be built on that land in the event the mother would be allowed to bring her children to Dubuque. The Dubuque area is about 75 miles away from East Moline and about 90 minutes away by car. The mother's plans, in the event she would be permitted to move with her children to Dubuque, are to marry her fiance, quit her job, and move with her children into her husband’s home. She plans to devote her energies primarily to the care of her husband and her children rather than to employment outside the home.

In March 1990 the mother filed a petition under section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (111. Rev. Stat. 1989, ch. 40, par. 609), seeking leave to remove her children from Illinois after her marriage to her fiance. The father opposed this petition. A hearing was held on the petition on May 22, 1990. By the time of the hearing on the petition, the mother and her fiance had set a date for the wedding in August 1990. The trial court denied the petition on August 2, 1990. Afterwards, but also on August 2, 1990, the mother moved for reconsideration of the denial of her petition, a hearing was held on her motion, and the trial court denied her motion. The mother filed her notice of appeal on August 31,1990.

The sole issue is whether the trial court erred in denying the mother’s petition.

We note that in joint custody cases, it is section 609 of the Act that applies to petitions to remove a child from Illinois, rather than section 610 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610), which deals with the more general matter of modifications of custody judgments. (See Winebright v. Winebright (1987), 155 Ill. App. 3d 722, 508 N.E.2d 774; In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 496 N.E.2d 1149.) Section 609 of the Act states in relevant part:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal.” (Ill. Rev. Stat. 1989, ch. 40, par. 609(a).)

A trial court’s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. In re Marriage of Eckert (1988), 119 Ill. 2d 316, 328, 518 N.E.2d 1041,1046.

The Illinois Supreme Court in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, examined the application of section 609 of the Act. While Eckert involved custody awarded to the mother “subject to rather extensive visitation rights” in the father (rather than joint custody), section 609 makes no distinction between cases of joint custody and cases of custody in only one of the parents, and so we find the principles enunciated in Eckert to be applicable to this case. Where both parents have joint custody of a child, a parent’s request to remove the child from Hlinois should be given particularly close judicial scrutiny. (In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 712, 496 N.E.2d 1149, 1154.) However, the trial court must determine whether current circumstances are such that removal from Illinois is in the best interests of the child, and the court is not bound by the prior custody arrangements, even when those arrangements have been by agreement of the parents. Cf. Falk v. Falk (1979), 77 Ill. App. 3d 13, 395 N.E.2d 750 (holding that the best interests of the child overrode a custody provision preventing removal of the child from the Quad Cities area).

In Eckert the Illinois Supreme Court stated:

“A determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. [Citations.] There are, however, several factors which may aid a trial court in determining the best interests of the child. The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. [Citations.] The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. [Citations.] Similarly, the court should consider the motives of the noncustodial parent in resisting the removal. [Citation.] It is also in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered. [Citations.] Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed. [Citation.]
A reasonable schedule is one that will preserve and foster the child’s relationship with the noncustodial parent.” Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.

In this case no question has been raised that the motives of the parents are anything other than honorable. Inasmuch as the distance from East Moline, Illinois, to Dubuque, Iowa, is only about 75 miles, and travelling time is only about 90 minutes, a realistic and reasonable schedule for custody of the children can be reached if the move is allowed. The determination of the best interests of the children in this case depends largely on whether the move is likely to enhance the general quality of life of the children and of their mother.

If only direct benefits to affected children were considered, there would almost never arise a situation where removal would be permitted where children were in a good environment with good schools, good parents, and good friends. However, it is necessary to also consider indirect benefits to the children from the proposed move.

The present case is similar to In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 559 N.E.2d 1150. In that case a mother wished to move from Illinois to Virginia to be near her new husband, who was in the United States Navy, and whose ship was based at Norfolk, Virginia. She wished to remove her minor child from Illinois to take the child with her to Virginia. The trial court denied her petition to do this, but the appellate court reversed, holding that the trial court’s determination of what was in the best interests of the child was against the manifest weight of the evidence. The appellate court noted that while the general quality of the child’s life would not be directly enhanced by the move to Virginia, the move would enhance the mother’s quality of life significantly, and in that way would indirectly enhance the child’s quality of life.

In the present case the principal indirect benefit to the children of granting the petition to remove would derive from the effect on their mother from the establishing of a new and successful marriage relationship. The mother’s quality of life would be significantly improved, both by being able to live with her new husband and by not needing to work outside the home. In the new arrangement the mother would have the time and energy to be a part of her children’s life in ways that had not been possible in the past, which would certainly enhance the mother’s quality of life. Somehow the trial court believed that the intended marriage of the mother with her fiance was “far from certain,” despite uncontroverted testimony that they were engaged to be married and that a date had been set for the wedding. In failing to give proper consideration to the enhancement of the general quality of life of the mother, the trial court erred.

The children in this case have the good fortune of having been raised in one very good environment, and of having another very good environment to which their mother wishes to take them. They are young enough that they would be expected to make new friends and otherwise adapt to their new environment without undue hardship. While they would lose the near-daily contact with their father and other relatives, they would live close enough to spend some weekends with their father and to maintain ties with other relatives. In addition, arrangements could be made to let the father have additional periods of custody in the summer or during school vacations, thereby helping to maintain ties with the father and other relatives. Occasions for disagreements over custody (which have continued to arise more than five years after the dissolution of marriage) would be greatly lessened, with benefits for the children as well as the parents. The children would live in a traditional family setting while with their mother, and on school.days would not have to be shuttled around from place to place as has had to be done in East Moline in order to mesh their school and activity schedules to their parents’ work schedules and the joint custody schedule. The mother’s fiance has the ability and willingness to provide a good home and sufficient resources to permit the mother to stop working outside the home. This would permit the mother to spend more time with her children and to see that they get the assistance and attention they need with their schoolwork and other activities.

While it might appear that in moving to Dubuque the children would lose the benefit of their father’s guidance in their education and religious training, this would not have to be the case. While the mother would certainly have to become more involved in these areas, to carry out the wishes of the father if for no other reason, the father within reason could continue to make “major decisions with regard to the education and religious training of the children” in Dubuque. There is ample evidence of the availability in Dubuque of quality public education and of religious training in the father’s religious denomination.

When circumstances change, what is called for is a redetermination of what is in the best interests of the children in light of the changed circumstances. The inquiry becomes not what is “fair” or “unfair” for each parent, but what is best for the affected children. While the effects on the parents of granting or denying the removal petition must be considered, they must be considered with a view to determining how they would affect the children, either directly or indirectly.

In this case the trial court’s determination that the mother failed to demonstrate that the best interests of the children would be served by their moving with her to Dubuque, Iowa, is against the manifest weight of the evidence. We reverse that ruling and grant the petition to remove. We remand this cause to the circuit court for consideration of those changes in the joint custody provisions (especially the custody schedules) made necessary or desirable as a result of our decision.

Reversed and remanded.

HAASE, J., concurs.

JUSTICE SLATER,

dissenting:

I do not agree that the trial court’s decision was against the manifest weight of the evidence and therefore I respectfully dissent. The record shows that the children’s father was involved in the PTA, helped the children with their homework after school, and participated in extracurricular activities. He has been a room parent since the children began attending school. On the other hand, the children’s mother stated that she helps the children with their homework “once in a great while.” In addition, the children’s maternal and paternal grandparents live in the Quad Cities area, and the children have friends at school. The majority speculates about the benefits of the “new and successful marriage relationship” (216 Ill. App. 3d at 1081) to be established by the mother which would provide the children with a “traditional family setting” (216 Ill. App. 3d at 1082) where the mother does not work and she can devote her time and energy to the children. The majority decides that these benefits outweigh the loss of daily contact between the children and their father and the diminished opportunities for the children to visit their grandparents. While such a finding is not inherently unreasonable and might be appropriate if this court were the trier of fact, I find such a decision unacceptable from a court of review for several reasons.

First, the mother bears the burden in this case of proving that removal of the children is in their best interests. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326, 518 N.E.2d 1041, 1045.) The evidence here was closely balanced and the trial court found that the mother failed to carry this burden. Under the facts presented here, I do not believe the court’s decision “is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred” (emphasis added) (Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046).

Second, “[wjhen a parent has assiduously exercised his or her visitation rights, ‘a court should be loath to interfere with it by permitting removal of the children for *** unpersuasive or inadequate reasons.’ ” (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046, quoting D’Onfrio v. D’Onfrio (1976), 144 N.J. Super. 200, 206, 365 A.2d 27, 30.) There is no question that the children’s father was intimately involved in raising and educating them and I believe that the majority’s decision fails to give sufficient weight to this fact.

Finally, I agree with the majority that the proper inquiry in cases of this nature is “not what is ‘fair’ or ‘unfair’ for each parent, but what is best for the affected children” (216 Ill. App. 3d at 1082). This case illustrates just how difficult it can be to make such a determination. That is why it is paramount for a court of review to give proper deference to the trial court, which has the opportunity to observe the parents and other witnesses and “ ‘assess and evaluate their temperaments, personalities, and capabilities. *** The presumption in favor of the result reached by the trial court is always strong and compelling in this type of case’ ” (Eckert, 119 Ill. 2d at 330, 518 N.E.2d at 1047, quoting Gallagher v. Gallagher (1978), 60 Ill. App. 3d 26, 31-32, 376 N.E.2d 279, 283). I would affirm the decision of the circuit court.


author: JUSTICE BOWMAN

text:
      In re MARRIAGE OF SHOSHANA WINTON, Petitioner-Appellee, and JEFFREY B. WINTON, Respondent-Appellant (David I. Grand, Appellee).
    Second District
    No. 2 — 90—0592
    Opinion filed April 19,1991.
    — Rehearing denied June 11,1991.

      E. Kenneth Suskin, of Suskin, Menaehof & Associates, Ltd., of Libertyville, and Matthew Kaplan, of Waukegan, for appellant.
    Stephen H. Katz, of Waukegan, and David I. Grund, of Grund, Marcus, McNish, Knabe & Nadler, and Gerald L. Fishman, of Fishman & Merrick, P.C., both of Chicago, for appellee David I. Grund.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, Jeffrey B. Winton, is appealing two orders entered in a dissolution proceeding wherein his marriage to petitioner, Shoshana Winton, was dissolved. He raises three issues on appeal: (1) whether the trial court erred in ordering him to pay attorney fees to one of petitioner’s attorneys, David Grund, in the amount of $13,205.56 based, in part, on an hourly rate of $250 for court time, a rate which the trial court found to be excessive; (2) whether the trial court erred in ordering him to pay $6,029.33 for expert’s fees when there was no proof of the reasonableness of the fees; and (3) whether the trial court erred in finding respondent in contempt for violation of court orders.

A judgment of dissolution of marriage was entered February 13, 1990, which incorporated an agreement of the parties as to the division of marital property and other issues. That same day, petitioner’s attorney, David Grand, filed a petition for attorney fees and costs, stating his customary and reasonable charge for representation in such actions was $175 per hour for noncourt time and $250 per hour for court time, and he had expended 100.4 hours of office time and 33.4 hours of court-related time in handling the case. The petition further stated that other persons in his office had expended time on the case. The itemized statements attached to the petition showed that his office had billed petitioner a total of $34,308.35 for attorney fees and costs. This included $2,500 paid to Jerome Lipman, an accountant retained by Grand for the purpose of auditing and evaluating respondent’s businesses. The itemized billings also reflected that petitioner had paid Grand a $2,500 retainer. Pursuant to a court order which followed a petition for temporary attorney fees and expert costs, respondent had paid $8,000, and petitioner had paid an additional $4,000. The balance claimed by Grand was $19,808.35.

The petition further stated that attorney Stephen H. Katz was hired as co-counsel for petitioner and that his fees totalled $4,860, based on an hourly rate of $175. The petition further stated that Jerome Lipman was still owed a balance of $9,044.90. Lipman’s invoice was attached to the petition. It showed total charges of $11,544.90, and reflected the payment of $2,500. The statement listed the services performed by Lipman but did not state the date any of the services were performed, the amount of time spent on any of the listed activities, or the hourly rate charged. Lipman’s nine-page curriculum vitae is also included in the record.

A hearing regarding the attorney fees petition was held on April 23, 1990. No court reporter was present, but a bystander’s report of the proceedings was certified by the trial judge. According to the report, respondent challenged various items included in Grand’s billings and the reasonableness of the fees in general. He also presented to the court a copy of the “valuation report” prepared by Lipman and testified that, in his opinion, the value of Lipman’s work was perhaps $2,500, but not $11,000.

The five-page report prepared by Lipman is included in the record. The first two pages consist of Lipman’s opinion of the value of respondent’s 50% interest in a corporation, Radionic Hi-Tech, Inc., and a short statement of the documents reviewed and the accounting method used in making his determination. Page three of the report states:

“RADIONIC HI-TECH, INC.
SCHEDULE OF TOTAL VALUE JULY 31, 1989
BOOK VALUE 231,941
ROYALTY RECEIVABLE 27,800
TOTAL VALUE 259,741
50% INTEREST 129,871”

Page four is a copy of the balance sheet of the corporation showing the $231,941 figure, and page five is a five-line computation of the royalty receivable figure.

Following the hearing, an order was entered on May 3, 1990, in which the court found that, under the circumstances of this case, $175 per hour was the appropriate rate of compensation for Grand for both court and office time. It further found that “[w]hile [respondent] disputes some double counting of items and disputes the value of Jerome Lippman’s [sic] services, the record is devoid of evidence that such double counting took place or that Lippman’s [sic] services were overpriced or otherwise unreasonable.” The court then found that respondent should pay two-thirds of the fees of Grand, Katz, and Lip-man and ordered that he pay $13,205.56 to Grand, $3,240 to Katz, and $6,029.33 to Lipman.

On April 16, 1990, petitioner filed a petition for rule to show cause alleging that respondent failed to pay $316 in court-ordered child support and maintenance and $11,500 for a new car pursuant to the terms of the marital settlement agreement. A hearing was held regarding the petition, and an order was entered May 18, 1990, nunc pro tunc to May 3, 1990, which found respondent in contempt for failing to comply with the judgment of dissolution of marriage. The order further stated that “[tjhis cause is continued to May 18, 1990 for the purpose of conducting a hearing on appropriate sanctions to be imposed upon [respondent] in connection with findings of contempt.” A subsequent order, also dated May 18, 1990, stated that respondent had purged himself of contempt by making the required payments. No penalty was therefore assessed.

Respondent has appealed from the orders awarding attorney and expert witness fees and the orders which found him in contempt.

Respondent contends the court erred in finding him in willful contempt of court. We note that neither the order finding respondent in contempt nor, as far as we can discern, anything else in the record shows that the court characterized respondent’s contempt as willful. Respondent, however, cites People v. Boucher (1989), 179 Ill. App. 3d 832, for the following principles: (1) only willful violations of court orders constitute contempt, and (2) insofar as the nature of the contempt found against respondent was criminal, his innocent and well-justified state of mind in refusing to pay was relevant. Respondent evidently concludes that the court must have found him in willful contempt and argues that the court wrongly disregarded evidence that his conduct was not willful in nature. Specifically, respondent focuses on (1) evidence which showed that his refusal to pay petitioner’s claim was the result of a good-faith and well-founded dispute over the amount owed, and (2) evidence of his motivation and right to withhold part of a support payment.

We observe initially that respondent errs in characterizing the finding of the trial court as criminal contempt. A “criminal contempt” is conduct directed against the majesty of the law or the dignity and authority of the court or judge acting judiciously, whereas a “civil contempt” ordinarily consists in failing to do something ordered to be done by a court in a civil action for the benefit of an opposing party therein. (Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 551-52.) The test for determining if a contempt proceeding involves criminal contempt or civil contempt is whether the proceeding, in the totality of the circumstances, is coercive or punitive. In re Marriage of Miller (1980), 88 Ill. App. 3d 370, 373.

In light of these principles the instant contempt proceeding appears to have involved civil contempt. The record reveals that respondent admitted withholding maintenance payments and failing to provide a formulated amount of money to purchase a new automobile for petitioner as required by the judgment of dissolution of marriage. He justified withholding the maintenance payments because petitioner allegedly owed him money for debts incurred after entry of the judgment of dissolution of marriage, and he disputed the amount of money owed petitioner pursuant to the formula set out in the judgment of dissolution of marriage.

The only reasonable conclusion to be drawn from the record before us is that the trial court found respondent in civil contempt for failing to make payments as provided by the judgment of dissolution of marriage. The record is void of conduct by the respondent directed against the majesty, dignity, or authority of the court which would justify a finding of criminal contempt.

We note additionally that the case respondent relies on, People v. Boucher (1989), 179 Ill. App. 3d 832, is inapposite. Boucher is a criminal case involving a violation of probation by defendant. The central issue therein relates to whether the alleged violation of probation must be prosecuted as provided by the Unified Code of Corrections rather than by means of contempt of court.

Because respondent has premised his argument on a finding of criminal contempt, citing one inapposite criminal case in support of such argument, we deem respondent’s argument and citations of authority to be a violation of Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(e)(7)), which provides in pertinent part:

“The appellant’s brief shall contain the following parts ***:
* * *
(7) Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities ***. Points not argued are waived ***.”

A court of review is entitled to have the issues clearly defined and to be cited to pertinent authority. (Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358, 361-62.) The appellate court is not a depository in which the appellant may drop the burden of argument and research. (Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719.) Arguments which do not satisfy the requirements of Supreme Court Rule 341(e)(7) do not merit consideration on appeal. (Rockford Memorial Hospital, 167 Ill. App. 3d at 362.) In consideration of these rules and respondent’s failure to present properly his argument on this issue, we find respondent’s challenge to the trial court’s finding of contempt waived.

Regarding the order awarding attorney fees, respondent first argues that the trial court erred in ordering him to pay two-thirds of the entire fee requested by Grand when the court found that a rate of $250 for court time was excessive. We note that petitioner has not filed an appellee’s brief. However, Grand has filed a brief on his own behalf. He concedes that the award of attorney fees must be modified based on the trial court’s findings. We agree that the amount charged for 33.4 hours of court time must be reduced from $8,350, based on $250 per hour, to $5,845, based on the $175-per-hour rate which the court found appropriate. Thus, the dollar amount of the fees requested by Grand must be be reduced to $17,303.35. Respondent is therefore required to pay two-thirds of that amount or $11,535.56, rather than $13,205.56 as stated in the order.

Respondent next argues that the trial court erred in ordering him to pay a portion of Lipman’s fees in the absence of proof of the reasonableness of the fees.

Grand has argued that “a party is not required to prove the reasonableness of hourly rates or any itemizations of the time spent of an expert witness.” He contends that cases requiring that an attorney must provide detailed itemized records of services rendered simply do not apply to an expert witness. He further argues that, as he entered into a contract with Lipman, on behalf of his client, petitioner, to evaluate respondent’s business, it must be presumed that the fees charged are reasonable. We cannot agree.

Initially, we note that the cases cited by Grand do not support his position. The reasonableness of witness fees was not an issue in Hallmark Personnel, Inc. v. Pickens-Kane Moving & Storage Co. (1980), 82 Ill. App. 3d 18, cited by Grand for the proposition that “the cost of witness fees are [sic] in the trial court’s discretion.” Also, while the court in Victory Memorial Hospital v. Rice (1986), 143 Ill. App. 3d 621, 623-24, does state that, “[i]n Illinois, *** where there is a contract, express or implied, under which one party supplies articles or services to another and there is no provision setting out the amount the supplier is to be compensated, the law implies that there is an agreement to pay a reasonable price for the goods and services,” it goes on to state: “[t]herefore, to recover under such a contract, the supplier has the burden of proving that its charges were reasonable.” This case cannot be read, as Grand has suggested, to provide authority for the proposition that the fees must be presumed reasonable.

The request for payment of Lipman’s fees was part of a petition for attorney fees filed by Grand pursuant to section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 508(a)). The statute provides, in pertinent 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 *** by the other spouse, which award shall be made in connection with the following:
(1) The maintenance or defense of any proceeding under this Act.” Ill. Rev. Stat. 1989, ch. 40, par. 508(a).

Therefore, under the statute, the court may order the other spouse to pay a reasonable amount for attorney fees for services rendered in a proceeding under the Act. (In re Marriage of Bashwiner (1987), 155 Ill. App. 3d 531, 535.) “The awarding of attorney fees and the proportion to be paid are within the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion.” (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299.) However, the amount awarded should be fair compensation only for those services which were reasonable and necessary to the action. In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 111.

The criteria for determining whether fees are reasonable include: the number of hours expended; the skill and standing of the attorneys; the difficulty of the questions at issue; the importance of the subject matter, especially from a family law standpoint; the degree of responsibility involved in the management of the case; the usual and customary charge in the community; and the benefit resulting to the client. (In re Marriage of Malec (1990), 205 Ill. App. 3d 273, 285; In re Marriage of McFarlane (1987), 160 Ill. App. 3d 721, 729.) Of these factors, the most important is the amount of time necessarily spent on the case. Malee, 205 Ill. App. 3d at 285.

The fees allowed should only be in the amount necessary to compensate for services actually rendered and should be fair to both the party required to pay and the attorney requesting them. (Malec, 205 Ill. App. 3d at 285; Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, 582.) Justification of a fee requires more than the presentation of a compilation of hours multiplied by a fixed hourly rate. (Pitulla, 202 Ill. App. 3d at 112.) A petition for fees must specify the services performed, by whom they were performed, the time expended on the services listed, and the hourly rate charged. Pitulla, 202 Ill. App. 3d at 112; see also In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 444.

Although Grand is obviously correct that Lipman’s fees cannot be properly characterized as attorney fees, Grand was seeking to recover the fees under section 508(a) of the Act, apparently as necessary costs in the proceeding. Expert fees have been awarded under section 508(a). (See, e.g., Head v. Head (1988), 168 Ill. App. 3d 697, 703-04.) We hold that, in order to recover expert fees as necessary costs under section 508(a), the reasonableness of the fees must be established. The case law setting out the standards for determining the reasonableness of attorney fees provides useful guidelines for making this determination.

In order to recover the cost of the expert’s fees, it was therefore Grand’s burden to show that they were reasonable. We decline to put the burden on respondent, as Grand suggests, to “conduct the proper discovery” and present evidence to dispute the reasonableness of the fees. The trial court therefore erred in putting the burden on respondent to show that Lipman’s fees were unreasonable.

We conclude that, under these facts, Grund did not meet his burden to establish the reasonableness of Lipman’s fees. The record contains only Lipman’s curriculum vitae, which established that he has sufficient credentials to be considered an expert, Lipman’s invoice, which does not indicate the time spent on any of the listed services or the hourly rate charged, and the rather unimpressive five-page report Lipman prepared. The bystander’s report of proceedings does not relate any testimony regarding Lipman’s fees. This record does not contain facts to establish the necessity and reasonableness of the expert witness’ fees.

For the foregoing reasons, we modify that portion of the trial court’s order which ordered respondent to pay Grund’s attorney fees to state that the amount owed is $11,535.56, and we reverse that portion of the order which ordered respondent to pay Lipman’s fees in the amount of $6,029.33.

Affirmed in part as modified; reversed in part.

REINHARD, P.J., and McLAREN, J., concur.


author: PRESIDING JUSTICE REINHARD

text:
    A & B FREIGHT LINE, INC., Plaintiff-Appellant, v. RAY RYAN et al., Defendants (West Bend Mutual Insurance Company, Defendant-Appellee).
    Second District
    No. 2 — 90—1464
    Opinion filed July 30,1991.
    — Rehearing denied August 30, 1991.

      Randall K. Reese and William E. Gottfred, both of Reese & Reese, of Rockford, for appellant.
    James K. Borcia, John Maniatis, Daniel R. Formeller, and Jacqueline A. Criswell, all of Tressler, Soderstrom, Maloney & Priess, of Chicago, for appellee.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

On September 4, 1987, A&B Freight Line, Inc., plaintiff, brought suit in the circuit court of Winnebago County against West Bend Mutual Insurance Co. (defendant) and other defendants not parties to this appeal. Plaintiff alleged that Ray Ryan, the owner of Dean Lyman Agency, acted as an agent for defendant and that during the agency Ryan overbilled plaintiff $451,425.14 for insurance policies issued by defendant. Defendant later filed a counterclaim against plaintiff for certain premiums it alleged are owed. On November 11, 1989, plaintiff moved for summary judgment, and on May 15, 1990, defendant filed a cross-motion for summary judgment, both on the original complaint. On November 29, 1990, the trial court granted defendant’s motion for summary judgment, and plaintiff appeals pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

The sole issue plaintiff raises on appeal is whether the trial court erred in entering summary judgment for defendant.

The record, including depositions on file, reveals the following facts. At one time, defendant employed Ray Ryan as a regional sales manager. Ryan is also the brother-in-law of John R. Dedrick, the president of defendant. In 1978, Ryan became the sole shareholder of the Dean Lyman Agency (Lyman), an independent insurance broker. Defendant and Lyman had an agency agreement which authorized Lyman to bind defendant to a policy with an insured. As an agent, Lyman, through Ryan, was authorized to bill and collect premiums and to sign and deliver endorsements on behalf of defendant, although Ryan was not authorized to prepare endorsements. Although Lyman had agency agreements with 10 insurance companies, a majority of Lyman’s business was transacted with four or five companies, and most of Lyman’s business was with defendant. Ryan was compensated by receiving a commission calculated as a percentage of the premium an insured paid defendant.

In 1982, plaintiff obtained insurance through Ryan from defendant, although Ryan could have procured insurance from several other companies. From 1982 to 1987, all insurance that plaintiff obtained through Ryan was from defendant, and plaintiff did not know that Ryan could obtain insurance from any other insurance company. Also, the only insurance company Ryan mentioned was defendant. During the time that Ryan obtained insurance for plaintiff, Ryan would deliver the policies to plaintiff, bill plaintiff for the policies and collect the premiums from plaintiff. According to Bruce Shelton, an employee of plaintiff, Ryan said that he was West Bend’s representative. Shelton believed that Ryan was “an employee in essence of [defendant].”

In 1987, plaintiff felt that there were discrepancies between what it had been paying for insurance and what the coverage actually cost. On July 14, 1987, Ryan was confronted with the discrepancies, and he confessed to the overbilling. Plaintiff alleges that, as a result of Ryan’s activities, plaintiff had been overbilled $451,425.41.

Because this case was determined on a motion for summary judgment, we initially note the proper standard to be applied. A motion for summary judgment should be granted only when the pleadings, depositions, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).) The purpose of summary judgment is to determine whether there are any issues of triable fact. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867.) Although the use of summary judgment is to be encouraged to aid in the expeditious disposition of a lawsuit, summary judgment is a drastic means of disposing of litigation and, therefore, should be allowed only when the right of the moving party is clear from doubt. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) To determine the presence of a genuine issue of material fact, courts must construe the pleadings, depositions, admissions, exhibits and affidavits on file strictly against the movant and liberally in favor of the opponent. (Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) An order granting summary judgment will be reversed if the pleadings, depositions and admissions show that a genuine issue as to a material fact existed (Adkins v. Sarah Bush Lincoln Health Center (1989), 129 Ill. 2d 497, 506, 544 N.E.2d 733) or if the judgment for the movant was incorrect as a matter of law (United States Fidelity & Guaranty Co. v. Wilkin Insulation Co. (1989), 193 Ill. App. 3d 1087, 1092, 550 N.E.2d 1032; International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571, 532 N.E.2d 493).

Plaintiff contends that the trial court erred in determining that Ryan was plaintiff’s agent when it granted summary judgment for defendant. Plaintiff asserts that under both Roby v. Decatur Steel Erectors, Inc. (1978), 59 Ill. App. 3d 720, 375 N.E.2d 1355, and section 505 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 1065.52 (repealed by Pub. Act 81 — 999, §4.4, eff. October 1, 1987)) Ryan was an agent of defendant. Defendant contends that the trial court by granting its motion for summary judgment correctly concluded that Ryan was plaintiff’s agent. Alternatively, defendant contends that even if it was Ryan’s principal, it cannot be held liable for his acts because he was acting outside the scope of his authority.

The question of whether an insurance broker is an agent for the insured, the insurer, or both is generally a question of fact. (Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 629, 379 N.E.2d 1206.) However, when the evidence clearly shows that the insurance broker is the agent of the insured, the issue becomes a question of law. Davidson v. Comet Casualty Co. (1980), 89 Ill. App. 3d 720, 723, 412 N.E.2d 19.

Independent insurance agents possess a certain duality which allows them to act as both agents and brokers. (Zannini v. Reliance Insurance Co. (1990), 206 Ill. App. 3d 910, 916, 565 N.E.2d 118, appeal allowed (1991), 137 Ill. 2d 673.) Although earlier case law drew a distinction between insurance agents and insurance brokers (see, e.g., DeGraw v. State Security Insurance Co. (1976), 40 Ill. App. 3d 26, 33, 351 N.E.2d 302; Lynn v. Village of West City (1976), 36 Ill. App. 3d 561, 564-65, 345 N.E.2d 172; Galiher v. Spates (1970), 129 Ill. App. 2d 204, 206, 262 N.E.2d 626), a person’s conduct and not title determines the relationship between the independent insurance agent, the insured and the insurer. (Zannini, 206 Ill. App. 3d at 916, 565 N.E.2d at 122; Krause v. Pekin Life Insurance Co. (1990), 194 Ill. App. 3d 798, 805, 551 N.E.2d 395.) Under certain circumstances, an independent insurance agent may be an agent of both the insured and the insurer. See City of Chicago v. Barnett (1949), 404 Ill. 136, 142, 88 N.E.2d 477; International Administrators, Inc. v. Life Insurance Co. of North America (N.D. Ill. 1982), 553 F. Supp. 82, 85.

Illinois Appellate Court decisions have adopted four factors to consider in determining whether an independent insurance agent was acting as the agent of the insured or insurer: (1) who first set the agent in motion; (2) who controlled the agent’s action; (3) who paid the agent; and (4) whose interests the agent was attempting to protect. Zannini, 206 Ill. App. 3d at 916, 565 N.E.2d at 122; Krause, 194 Ill. App. 3d at 805, 551 N.E.2d at 399; Roby v. Decatur Steel Erectors, Inc. (1978), 59 Ill. App. 3d 720, 725, 375 N.E.2d 1355; Moone v. Commercial Casualty Insurance Co. (1953), 350 Ill. App. 328, 335,112 N.E.2d 626.

The initial point of contention between the parties is on what aspect of the relationship should the court focus when applying the factors enumerated above. Plaintiff contends that the issue of agency must focus on the point when the wrongful act occurs or on the function Ryan was serving at the time of the overbilling. Defendant contends that the entire relationship between the parties must be examined and that plaintiff’s “strained attempt to define Ryan’s role by resorting to one period of time in isolation is not supported by the law.” However, defendant’s contention is without merit. An independent insurance agent’s conduct at the time of a specific transaction defines the relationship and determines liability. (Zannini, 206 Ill. App. 3d at 916, 565 N.E.2d at 122.) Thus, we must focus on the facts surrounding the overbilling to determine whether the trial court correctly entered summary judgment for defendant on the basis argued by defendant, namely, that Ryan was plaintiff’s agent.

Applying the four factors to the facts surrounding the over-billing shows that Ryan was not solely plaintiff’s agent at the time of the transactions at issue. First, defendant set Ryan in motion by allowing him to bill and collect premiums. Defendant’s answer admitted that it authorized Ryan to bill directly and collect premiums from plaintiff for defendant’s policies and to issue and deliver those policies to plaintiff. Second, because defendant authorized Ryan to bill and collect premiums, it controlled Ryan’s actions. If defendant did not authorize Ryan to bill and collect the premiums, plaintiff would have paid its premiums directly to defendant. Third, defendant paid Ryan a commission for the premiums Ryan sold, although this factor is not given much weight (Lazzara v. Howard A. Esser, Inc. (7th Cir. 1986), 802 F.2d 260, 264 n.1, citing Browder v. Hanley Dawson Cadillac Co. (1978), 62 Ill. App. 3d 623, 379 N.E.2d 1206). Fourth, although defendant correctly argues that Ryan was protecting his own interests by overbilling plaintiff, Ryan was protecting defendant’s interests while billing and collecting the premiums for defendant because he was ensuring that defendant was compensated for the coverage.

Defendant cites Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 525 N.E.2d 539, and Lazzara v. Howard Esser, Inc. (7th Cir. 1986), 802 F.2d 260, to support its contention that Ryan was plaintiff’s agent. Those cases involved the procurement of insurance, and because our focus must be on the specific transaction of billing and collecting premiums, those cases are distinguishable.

Because we have determined from the pleadings and depositions that defendant has not shown as a matter of law that Ryan was plaintiff’s agent relative to the transactions at issue and a factual issue remains, we need not address in this appeal plaintiff’s alternative contention that Ryan was defendant’s agent pursuant to section 505 of the Illinois Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 1065.52 (repealed by Pub. Act 81 — 999, §4.4, eff. October 1,1987)).

Defendant also briefly presents the argument that it cannot be held liable for Ryan’s actions, even if he were defendant’s agent, because Ryan was acting outside the scope of his authority when he allegedly overbilled plaintiff. Although this precise contention was not raised or ruled on below and is waived (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872), nevertheless, it is not a basis to support affirmance of the trial court’s granting of summary judgment in defendant’s favor.

Defendant may be liable to plaintiff if Ryan was an agent apparently acting within his authority while placed in a position by defendant which enabled Ryan to overbill plaintiff. (See Restatement (Second) of Agency §261 (1958).) It is inconsequential whether the agent acted according to his instructions if he was acting within the scope of his apparent authority. (J. Appelman, Insurance Law & Practice §8872.25, at 343 (1981).) Further, the scope of an agency relationship (see Milwaukee Mutual Insurance Co. v. Wessels (1983), 114 Ill. App. 3d 746, 749, 449 N.E.2d 897) and an agent’s apparent authority (see Hofner v. Glenn Ingram & Co. (1985), 140 Ill. App. 3d 874, 882, 489 N.E.2d 311) are generally questions of fact (Fried v. Barad (1988), 175 Ill. App. 3d 382, 388, 530 N.E.2d 93). Based on the facts in the record before us, defendant is not entitled to summary judgment on this basis.

Because the trial judge incorrectly granted summary judgment in favor of defendant, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded as factual issues still remain on the pleadings.

Reversed and remanded.

UNVERZAGT and NICKELS, JJ., concur.


author: JUSTICE DUNN

text:
    DENNIS R. LOWER, Plaintiff-Appellee, v. RICK L. RUCKER, Defendant (Douglas J. Pomatto, Contemnor-Appellant).
    Second District
    No. 2 — 90—1237
    Opinion filed July 17, 1991.
    Rehearing denied August 28,1991.

      Karen L. Kendall and Gary D. Nelson, both of Heyl, Royster, Voelker & Allen, of Peoria, and Douglas J. Pomatto and Richard K. Hunsaker, both of Heyl, Royster, Voelker & Allen, of Rockford, for appellant.
    Joseph G. McGraw and Harold L. Turner, both of Street, Larson & Turner, of Rockford, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Douglas Pomatto, an attorney, appeals from an order of the circuit court of Ogle County finding him in contempt of court for failure to comply with a discovery order. On appeal, Pomatto contends that production of the specified document would violate the attorney-client privilege.

Rick and Julie Rucker are the co-owners of an automobile and the named insureds on an automobile liability policy with Economy Fire & Casualty Company. On August 12, 1989, while Rick was driving and Julie was a passenger, their car struck two pedestrians, killing one. After the accident, Economy retained Roum Adjustment Company to investigate. During the course of the investigation, Roum employee Adam Mandel took statements from Rick and Julie Rucker and prepared handwritten summaries thereof. These were forwarded to Economy along with the rest of the Roum investigation file.

On January 2, 1990, David Lower, the surviving pedestrian, filed suit against Rick Rucker. Economy retained attorney Douglas Pomatto to represent Rucker, and the discovery process commenced. Lower’s attorney requested production of, among other things, the Roum investigation file. Apparently, Economy declined to produce the file, and Lower filed a “Motion in Aid of Discovery” requesting that the court order Economy to produce the file. At the hearing on the motion, Lower’s attorney represented to the court that he was not seeking production of the statements of Rick and Julie Rucker. The court granted the motion but allowed Economy to redact certain portions of the file to exclude the “opinions, conclusions and recommendations” of Roum.

Some time later, however, Lower filed a second “Motion in Aid of Discovery” requesting production of the entire Roum file including the Ruckers’ statements. In the motion, Lower alleged that the Ruckers’ statements were made before counsel was retained by Economy to represent Rick, so the statements were not subject to the attorney-client privilege; further, Rick and Julie were divorced, so no marital privilege attached to Julie’s statement. Following a hearing on this motion, the court found that Julie’s statement was not privileged and ordered Economy to produce it. Economy failed to produce the statement, and Lower filed a petition for a rule to show cause why Rick or his attorney, Douglas Pomatto, should not be held in contempt for failing to comply with the production order. At the hearing on the petition, Pomatto persisted in his contention that Julie’s statement was privileged. The court disagreed and found Pomatto in contempt for failure to comply with the order and fined him $50. Pomatto filed a timely notice of appeal.

On appeal, Pomatto contends that the court erred in finding that Julie’s statement to the Roum investigator was not privileged.

Communication between an insured and an insurer where the insurer is under an obligation to defend the insured is privileged. (People v. Ryan (1964), 30 Ill. 2d 456, 460; Chavez v. Watts (1987), 161 Ill. App. 3d 664, 672.) The privilege attaches even where such communication is made to a layman, and not an attorney, and even where no lawyer is actually retained to defend the insured, because the insured may properly assume that the communication is made to the insurer as an agent for the dominant purpose of transmitting it to an attorney for the protection of the interests of the insured. (Ryan, 30 Ill. 2d at 460-61.) In this case, Julie was a co-owner of the car which was involved in the accident, and she was in the car at the time of the accident. When she made her post-accident statement to Adam Mandel, the possibility existed that she would be made a defendant in lawsuits that might arise as a result of the accident, and she could reasonably assume that statements made to her insurer would be transmitted to an attorney for the protection of her own interests.

The problem with the communication in this case is that it was not made directly to the insurer but to an independent contractor retained by the insurer to conduct the investigation of the accident. This situation is similar to that presented in Shere v. Marshall Field & Co. (1974), 26 Ill. App. 3d 728. In Shere, the statement at issue was given to Safety and Claims Service, an independent contractor retained by the defendant and the defendant’s excess-public-liability insurer to investigate and adjust claims. The court determined that Safety was not an insurer, that it had no contractual duty to defend the insured, and that there was “no reason to assume that it was an agent for the defendant’s attorney.” The court held that attorney-client privilege had never been extended to cover communications to such third parties and that there was no reason to extend the privilege to Safety. (26 Ill. App. 3d at 731.) The court distinguished the situation from that presented in Ryan where the statement found to be privileged was given to an employee of the insurer, and the insurer had a contractual obligation to defend the insured.

While we appreciate the factual distinction between a statement given by an insured to an employee of his insurer and a statement given by an insured to an independent contractor retained by his insurer, in our view, and for purposes of the privilege, it is a distinction without a difference. In either case, the statement is given at the request of the insurer who had an obligation to defend the insured, and we fail to see how the motives and interests of an insured in giving a statement about an accident would be any different depending on whether he was communicating with an employee of the insurer who was investigating the accident or with an independent contractor who was investigating the accident on behalf of the insurer. If the communication between the insured and the insurer is privileged (Ryan, 30 Ill. 2d at 460), we can perceive of no reason why the communication between the insured and the independent investigator should not also be privileged. To the extent that the holding in Shere is applicable here, we decline to follow it.

We conclude that Julie Rucker’s statement to Adam Mandel was privileged and that the judgment of contempt was erroneous.

The judgment of the circuit court of Ogle County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

WOODWARD and BOWMAN, JJ., concur.