text:
      In re MARRIAGE OF KIMBERLY ANN LOMBAER, Petitioner-Appellant, and FOREST LOMBAER, JR., Respondent-Appellee.
    First District (3rd Division)
    No. 1—89—2929
    Opinion filed June 27, 1990.

      Schiller, DuCanto & Fleck, Ltd., of Chicago (Charles J. Fleck and Sarane C. Siewerth, of counsel), for appellant.
    Handel, Lipton & Stevenson, of Chicago (Richard L. Handel, R. Peter Carey, and Uve R. Jerzy, of counsel), for appellee.
   JUSTICE RIZZI

delivered the opinion of the court:

This matter is before the court as an interlocutory appeal from orders entered directing the deposition of a psychiatrist, the tendering of hospital records, exclusive possession of the marital residence, supervised visitation and temporary custody of the children. On appeal, petitioner-appellant, Kimberly Ann Lombaer (Kimberly), argues that the trial court erred (1) in ordering the discovery deposition of her psychiatrist and the turnover of hospital records; (2) in awarding temporary custody of the minor children to the respondent-appellee, Forest Lombaer, Jr. (Forest); (3) in ordering supervised visitation; and (4) in awarding exclusive possession of the marital residence to respondent. We reverse and remand.

The parties married in 1978. Their two children were born in 1983 and 1987, respectively. Kimberly became a full-time homemaker after the birth of their second child.

In January of 1989, Forest, a practicing attorney for 11 years, was notified by his law firm that his position would be terminated at the end of the year. Forest did not tell Kimberly of his termination until August of 1989. The parties discussed dissolving their marriage during the summer of 1989.

According to Kimberly, on July 31, 1989, Forest struck and beat her. Forest denied these allegations and averred that he had to “physically restrain her to prevent her from harming herself by avoiding [prescribed] treatment.” On August 1, 1989, Forest called the police and had Kimberly taken to Northwestern Memorial Hospital, where she remained until August 9,1989.

On August 25, 1989, Forest again summoned the police and Kimberly was taken to Illinois Masonic Medical Center. Kimberly was hospitalized from August 25 until October 23, 1989. While hospitalized, Kimberly spoke to the children everyday. She talked to the older child about her homework, school projects and her brother. Approximately once a week, Forest brought the children to visit Kimberly.

Kimberly learned that Forest had transferred over $45,000 from their joint banking account to an account in his name. She responded by transferring approximately $15,000 to an account in her name. In her petition for dissolution of marriage which she filed while hospitalized, Kimberly alleged that Forest subjected her to extreme cruelty, including striking and beating her and threatening to have her confined to a mental hospital. Kimberly requested custody of the children, restoration to and exclusive possession of the marital residence, support, an injunction restraining Forest from abusing her and interfering with her personal liberty and an order directing the redeposit of all funds into joint accounts.

On September 26, 1989, on a pass from the hospital and in anticipation of her immediate release, Kimberly presented an emergency motion for temporary child support, custody and exclusive possession of the marital apartment. The court set her motion for hearing on September 29, 1989, and granted Forest until September 28, 1989, to respond.

September 28, 1989, Forest filed an answer to the petition for dissolution of marriage and a counterpetition for dissolution in which he alleged that he had been forced to call for police assistance to get Kimberly to the. hospital to prevent her from harming herself by avoiding treatment, that she had several episodes of mental illness, needed psychiatric care, was unable to care for the children and should not be allowed exclusive possession of the residence. Forest also served notice that on the next day, he would be presenting a petition for order of protection and for change of venue.

On September 29, 1989, the trial court, instead of hearing Kimberly’s motion for temporary relief, granted Forest’s motion for a change of venue and the matter was reassigned to another judge. The new judge set Kimberly’s emergency petition for temporary relief, as well as Forest’s petition, for hearing on October 26,1989.

On October 10, 1989, Forest filed the petition for an order of protection, motions pursuant to Supreme Court Rule 215(d) (107 Ill. 2d R. 215(d)) for a psychiatric examination of Kimberly, and for the issuance of subpoenas for the discovery depositions of psychiatrists Dr. Carl Jackson and Dr. Harry Whiteley.

On October 23, 1989, after her release from Illinois Masonic Medical Center, Kimberly arrived at the marital residence, accompanied by two police officers, and attempted to enter her home. Forest refused to allow her to enter, stating that it was not in the children’s best interest to be disrupted by her arrival at 10:30 p.m. because a “scene” might take place or the children might be damaged. Kimberly tried to return to Illinois Masonic Hospital, but since there were no beds available, she went to Charter Barclay Hospital, where she stayed for two days prior to the October 26,1989, hearing.

On October 24, 1989, notwithstanding the scheduled October 26, 1989, hearing, Forest filed an emergency motion seeking to restrain Kimberly from communicating with their daughter’s school, taking custody of the children and returning to the marital home. Within the motion it is stated that Kimberly’s counsel would not return from vacation until October 25, 1989, and that Forest’s attorney gave telephonic notice of the motion to the office secretary. The motion states that “[t]here is a need for ex parte relief for the protection of the children and the stability and preservation of the status quo until the next court hearing.”

Forest and his attorney presented the motion ex parte. Forest’s counsel advised the court that Kimberly’s counsel was on vacation; that the previous evening after her release from the hospital she returned home at 10:30 p.m., and had “constantly” called the school. They sought exclusive possession and temporary custody for two days. The testimony elicited during this October 24, 1989, hearing was as follows:

“THE COURT: You want exclusive possession? Does your wife have some facility? Does she have a place to live?
THE WITNESS [Forest]: I attempted to talk to her.
THE COURT: Does she have any relatives or friends?
THE WITNESS [Forest]: She has a couple of friends. That may be who she stayed with.
THE COURT: She stayed with one?
MR. LOMBAER [Forest]: Yes.”

The court granted the emergency motion ex parte allowing Forest exclusive possession of the residence, temporary custody of the children and an injunction forbidding Kimberly from harassing, entering or calling the school.

During the October 26, 1989, hearing, Kimberly informed the court that she had no place to go and that a women’s shelter had advised her on the night of October 23, 1989, to have the police escort her home. Forest’s counsel argued that Kimberly’s mental condition was at issue because she had been confined to psychiatric hospitals for 21k months; that the hospitalization was evidence that Kimberly would harm the children; and that he had a right to examine her treating physician because she had waived any privilege.

During the October 26, 1989, hearing, when asked by the court, “Have you exerted a privilege as to confidentiality between you and your doctor?” the following exchange occurred:

“THE WITNESS: I don’t understand that question.
THE COURT: Well, the question is did you tell the doctor not to discuss your condition with your husband?
THE WITNESS: Yes, I did.
THE COURT: That is all the question is.
[COUNSEL FOR RESPONDENT]: What medication are you on? 1
A. None.
Q. None?
A. None.
Q. Was any medication prescribed to you while you were in the hospital?
A. Yes, sir.
Q. What medication was prescribed to you while you were in the hospital?
A. This is sort of private.
[COUNSEL FOR PETITIONER]: Just a moment. That is going to open the door on the question of waiving the privilege. I would have to object to that.
[COUNSEL FOR RESPONDENT]: There is no privilege on that kind of a question. This is not a confidential statement.
[COUNSEL FOR PETITIONER]: The doctor had to prescribe something and that opens the door to the basis for his prescription.
THE COURT: I don’t believe so. The objection is overruled. If she knows what medication she got, she should answer the question.”

Thereafter, in response to the court’s request for evidence that the mother’s presence in the residence would harm the children, counsel stated that Kimberly had engaged in bizarre behavior, such as being awake all night, walking and waking the children. The court noted that even if Kimberly’s conduct was unusual, it would not necessarily be harmful to the children and therefore the only condition under which he would exclude her from the residence would be for one week in order for her to participate in an independent medical examination.

Forest’s counsel further argued for temporary custody, supervised visitation, and exclusive possession of the residence. In support thereof, Forest stated that Kimberly was restless, losing weight, irritable, nervous and short-tempered with the children. Forest stated that Kimberly did not properly supervise the children. He stated that their son, who was an extremely active toddler, had the “run of the apartment” with the result that it was messy when he arrived home in the evening.

When further describing her bizarre behavior, Forest related that Kimberly looked out of binoculars at other high-rise buildings, ate baby food, and after a “stop-smoking” class, felt someone had drugged her water. Forest acknowledged, however, that throughout most of their lives, Kimberly had been a good mother to the children, bathing, cooking and managing their activities and schooling.

Forest’s counsel argued that Kimberly’s refusal to take prescribed medications caused problems and requested the court to order Dr. Jackson’s deposition, stating that because he was no longer Kimberly’s treating psychiatrist, deposing him would not interfere with the patient-physician privilege. The court agreed and ordered Dr. Jackson’s deposition.

The court ordered that “until further order of court the status quo shall remain” and granted Forest temporary custody of the children and ordered supervised visitation based upon Kimberly’s failure to take the prescribed medication. The court stated: “And I have observed Kimberly, but I am not a doctor. She seems to me to be able to care for her children and she doesn’t seem to be under any problem at this time. If a doctor recommends that a patient take medication upon release from a mental ward, there is a good reason for it. And the fact that there is no problem today doesn’t mean that there won’t be a problem later.” Given Forest’s promise to provide housing, the court entered an order continuing his exclusive possession of the residence.

This court stayed enforcement of the trial court’s orders pending the resolution of this interlocutory appeal. In Illinois, the confidentiality of patient-physician communications, and the medical records relating to the resulting treatment, are protected by the Mental Health and Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1989, ch. 911/2, par. 810) and the physician-patient privilege (Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802). Information contained in such communications or records may be ordered under the specific exceptions listed in the statutes or after a conscious waiver of the privilege by the patient. Gottemoller v. Gottemoller (1976), 37 Ill. App. 3d 689, 695, 346 N.E.2d 393, 397.

“No physician or surgeon shall be permitted to disclose any information he or she may have acquired in attending any patient in a professional character, necessary to enable him or her professionally to serve such patient, except *** in all actions brought by or against the patient *** wherein the patient’s physical or mental condition is an issue.” (Ill. Rev. Stat. 1989, ch. 110, par. 8—802.) In the event of a conflict between this section and the Mental Health and Developmental Disabilities Confidentiality Act, the Mental Health and Developmental Disabilities Confidentiality Act shall control. Ill. Rev. Stat. 1989, ch. 110, par. 8 — 802.

The Mental Health and Developmental Disabilities Confidentiality Act provides that all records and communications shall be confidential and shall not be disclosed except as provided in the Act. (Ill. Rev. Stat. 1989, ch. 911/2, par. 803(a).) The records and communications may be disclosed only with the written consent of the recipient. Ill. Rev. Stat. 1989, ch. QV-k, par. 805(a)(3).

In any civil, criminal, administrative or legislative proceeding, or in any proceeding preliminary thereto, a recipient, and a therapist on behalf and in the interest of a recipient, has the privilege to refuse to disclose and to prevent the disclosure of the recipient’s record or communications, except where the recipient introduces his or her mental condition or services received for such condition as an element of his or her claim or defense, and the court finds, after in camera examination of testimony or other evidence, that it is relevant, probative, not unduly prejudicial or inflammatory, and otherwise clearly admissible; that other satisfactory evidence is demonstrably unsatisfactory as evidence of the facts sought to be established by the evidence; and that disclosure is more important to the interests of substantial justice than protection from injury to the therapist-recipient relationship or to the recipient or other whom disclosure is likely to harm. Ill. Rev. Stat. 1989, ch. 91V2, par. 810(a)(1).

In any action brought or defended under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.), however, mental condition shall not be deemed to be introduced merely by making such claim and shall be deemed to be introduced only if the recipient or witness on his behalf first testifies concerning the record or communication. (Ill. Rev. Stat. 1989, ch. 9IV2, par. 810(a)(1).) Any order to disclose or to not disclose shall be considered a final order for purposes of appeal and shall be subject to interlocutory appeal. Ill. Rev. Stat. 1987, ch. 9IV2, par. 810(b).

Forest argues that this appeal was improperly filed pursuant to Supreme Court Rule 307(a)(1). (107 Ill. 2d R. 307(a)(1).) We disagree and find that we have jurisdiction to review the orders directing the doctor’s deposition and the production of the medical records, which, in effect, enjoin Kimberly and her physician from asserting their privilege. In addition, we will review the orders enjoining Kimberly from entering and residing in the marital home, and having custody of and unsupervised visitation with her children.

Most importantly, Kimberly did not first testify concerning the privileged communications or records. She did not introduce her mental condition into the proceedings. Rather, Kimberly and her counsel tried to assert her right to confidentiality and her physician-patient privilege. Therefore, we reverse the order directing the deposition of Kimberly’s psychiatrist, Dr. Carl Jackson, and the disclosure or production of the hospital records relative to her psychiatric treatment. We are not persuaded by the argument that since the physician-patient relationship had been terminated, the privilege no longer exists.

The statutory privilege is a legislative balancing between relationships which society thinks should be fostered through the shield of confidentiality and the interests served by disclosure of the information in court. The legislature has determined that, except for limited purposes, there is more value to encouraging and sustaining this kind of relationship. (In re Westland (1977), 48 Ill. App. 3d 172, 176-77, 362 N.E.2d 1153, 1156.) The beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny unless the patient affirmatively places her mental condition into issue. (Tylitzki v. Triple X Service, Inc. (1970), 126 Ill. App. 2d 144, 149, 261 N.E.2d 533, 536.) This patient-physician privilege should not be eroded by judicial construction. (Tylitzki, 126 Ill. App. 3d at 150.) We are mindful of the welfare of the children and note that psychiatric testimony deemed necessary in order to determine the best interests of the children may be obtained via the court-ordered psychiatric examination.

In addition to the trial court’s failure to observe Kimberly’s decision not to introduce her mental condition into the proceedings, the trial court did not comply with the other statutory requirements when it compelled the therapist’s deposition and the production of the records. The record reveals that an in camera examination did not take place. There were no findings that the testimony and/or evidence was relevant, probative, not unduly prejudicial or inflammatory; that other satisfactory evidence was demonstrably unsatisfactory; and that disclosure was more important to the interests of substantial justice than protection from injury to the therapist-recipient relations or to the recipient. We cannot condone such disregard of the statutory mandate.

Similarly, the trial court erred when making the temporary child custody determination. The court may award temporary custody under the standards of section 602 and subsection (a) of section 602.1, after a hearing, or, if there is no objection, solely on the basis of the affidavits. (Ill. Rev. Stat. 1989, ch. 40, par. 603(a).) The standards within section 602 provide that the court shall determine custody in accordance with the best interest of the child giving consideration to:

“(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.” Ill. Rev. Stat. 1987, ch. 40, par. 602.

The trial court failed to conduct a hearing in accordance with these statutory requirements. While specific findings of fact are not required under section 602, there must be some indication in the record that the court considered the various factors. (In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 585, 487 N.E.2d 739, 741.) Here, there is no indication that the court considered the various factors. Virtually no evidence was adduced as to the children’s best interests. Rather, the court ¿warded Forest temporary custody based upon Kimberly’s failure to take medication. Since there was no fair or adequate consideration of all of the aforementioned factors, we reverse the order granting Forest temporary custody of the children and remand for a determination of temporary custody based upon the best interests of the children in accordance with the statutorily mandated considerations. Parenthetically, we note that when making a custody determination an important consideration is which parent provided the primary care to the children. Cooper v. Cooper (1986), 146 Ill. App. 3d 943, 951, 497 N.E.2d 805, 810.

Although we are remanding this matter for a determination of temporary custody, we will address the visitation issue. This discussion, however, in no way suggests which parent should be awarded custody or excludes the possibility of joint custody. Custody determinations are for the court below after consideration of the previously referred to proper factors.

Deficiencies occurred when the court ordered supervised visitation. “A parent not granted custody of the child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1989, ch. 40, par. 607(a).) “The court *** shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1989, ch. 40, par. 607(c).) The custodial parent bears the burden of proving by a preponderance of the evidence that visitation would seriously endanger the children. (In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048, 428 N.E.2d 1093, 1095.) The court must conduct a hearing on the issue of restricted visitation and grant supervised visitation only after making the extraordinary finding that visitation would endanger seriously the child’s or children’s physical, mental, moral or emotional health. In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 906, 405 N.E.2d 1289, 1293.

We find as a matter of law that the evidence of Kimberly’s hospitalization and failure to take medication is insufficient to meet the onerous standard of serious endangerment, particularly in light of the absence of expert testimony that the medication was necessary to prevent her from harming herself or others, Forest’s acknowledgment that Kimberly had been a good mother over the years, and Kimberly’s testimony that she was not required to take the medication. (In re Marriage of Johnson (1981), 100 Ill. App. 3d 767, 427 N.E.2d 374.) Accordingly, we reverse the order providing for Kimberly’s supervised visitation of her children.

The right to exclusive possession of the marital residence may be granted only upon the party’s presentation of sufficient evidence that the “physical or mental well being of either spouse or their children is jeopardized by occupancy of the marital residence by both spouses, and only upon due notice and full hearing, unless waived by the court on good cause shown.” Ill. Rev. Stat. 1989, ch. 40, par. 701.

We find that the evidence is insufficient, as a matter of law, to establish that the mental or physical well being of the parties or the children would be jeopardized by Kimberly’s presence within the marital residence. (In re Marriage of Hofstetter (1981), 102 Ill. App. 3d 392, 430 N.E.2d 79.) Likewise, we find the evidence insufficient to establish a risk of abuse by Kimberly and/or that the balance of hardships favors Forest. Specifically, there is nothing in the record to support the October 24, 1989, finding of the trial court that: “The Court has considered the nature, frequency, severity, pattern and consequences of past abuse and the likelihood of future abuse to Petitioner or any member of Petitioner’s or Respondent’s family or household.”

Additionally, we find no basis for the ruling that the harm that the protective order was intended to prevent would have been likely to occur if respondent had been given prior notice or greater notice than that which was given, particularly because no evidence of harm was presented. The order prohibiting Kimberly from entering and calling her daughter’s school was overly restrictive and not within the parameters of the court’s discretion. Accordingly, we reverse the October 26, 1989, order and the October 24, 1989, protective order, granting, inter alia, exclusive possession of the marital residence, and remand for hearing in accordance with the statute.

In summation, we reverse the orders of October 24, 1989, and October 26, 1989, granting temporary custody, exclusive possession and supervised visitation; prohibiting Kimberly from entering and calling the school; directing Dr. Jackson’s deposition; the production of the hospital records; and remand for hearing consistent with this opinion. The provision of the October 26, 1989, order granting the psychiatric examination pursuant to Supreme Court Rule 215(a) was not addressed on appeal and that provision of the order remains in effect.

Reversed and remanded.

CERDA, RJ., and FREEMAN, J., concur.


source: Caselaw Access Project

author: JUSTICE JOHNSON

license: Public Domain

text:
    A.E. STALEY MANUFACTURING COMPANY, f/k/a Staley Continental, Inc., Plaintiff and Counterdefendant-Appellee, v. WILLIAM S. ROBERTSON, Defendant and Counterplaintiff-Appellant (The American Arbitration Association, Inc., Defendant).
    First District (4th Division)
    No. 1—89—0498
    Opinion filed June 28, 1990.

      John A. McDonald and Robert E. Arroyo, both of Keck, Mahin & Cate, of Chicago, for appellant.
    Walter R Loomis, Jr., and Mark A. Casciari, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

William S. Robertson, defendant and counterplaintiff (hereinafter defendant), brings this appeal from an order of the circuit court of Cook County denying his cross-motion for judgment on the pleadings and granting the motion for judgment on the pleadings brought by A.E. Staley Manufacturing Co., plaintiff and counterdefendant (hereinafter plaintiff). The American Arbitration Association, Inc., is not a party to this appeal. Defendant presents the following issues for review: (1) whether the trial court erred in finding that his claim against plaintiff, concerning the amount of his retirement benefits, is not arbitrable pursuant to plaintiff’s management retention agreement; and (2) whether defendant is entitled to attorney fees pursuant to this same agreement.

We reverse.

On April 8, 1986, defendant, an executive with plaintiff, entered into a contractual agreement drafted by plaintiff. The agreement known as the “Management Retention Agreement” (hereinafter MRA) provides, in pertinent part, as follows:

“2C. For purposes of calculating his retirement benefits under this Paragraph 2C, Executive will be credited immediately with the equivalent of thirty-six (36) months of service and thirty-six (36) months of age, which shall be added to his actual service and age. If there are fewer than thirty-six (36) whole or partial months remaining from the date of Executive’s termination to his normal retirement date at his actual age 65, the service and age credits provided for in this Paragraph 2C will be reduced by multiplying them by a fraction; the numerator of which is the number of whole or partial months so remaining to his normal retirement date at his actual age 65 and the denominator of which is 36. Executive (or his estate or beneficiary) shall be eligible to receive, at the later of age 55 or the Executive’s attained age at termination, a retirement benefit equivalent to the retirement benefits payable under all retirement plans of Staley (or its successor), including any supplemental retirement plans, immediately prior to such Change in Control or termination, whichever is greater, to Executive at age 55 or Executive’s age (as computed under this Paragraph 2C including the added service credit), whichever is greater, and with Executive’s years of service with Staley (and its successor) (as computed under this Paragraph 2C including the added service credit), and with the payment under Paragraph 2A above used in the average monthly earnings calculation, assuming that such payments] were made in substantially equal monthly installments over the period of imputed service. Any portion of the benefits provided for in this paragraph that would not be payable from the retirement plan funds of Staley (or its successor) due to federal or state law, or for any other reason, shall be paid out of the general revenues of Staley (or its successor) at such time as payments are regularly made from the retirement plan funds of Staley (or its successor). [Emphasis added.]
* * *
6. If, with respect to any alleged failure by Staley (or its successor) to comply with any of the terms of this Agreement, Executive hires legal counsel with respect hereto, or institutes any negotiations or institutes or responds to legal action to assert or defend the validity of, enforce his rights under, or recover damages for breach of the same, Staley (or its successor) shall pay, as they are incurred, his actual expenses for attorneys’ fees and disbursements, together with such additional payment, if any, as may be necessary so that the net after-tax payments to Executive equal such fees and disbursements.
7. Any controversy or claim arising out of or relating to this Agreement, or any breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association.”

This agreement was entered for the purpose of assuring the continued services of certain executives in the event of a take-over. These executives were afforded retirement benefits in exchange for their continued services during a “difficult” period.

Subsequently, defendant entered into a “Supplemental Executive Retirement Plan” (hereinafter SERF) which provided the chief executive officer and other selected executives with additional retirement benefits. Defendant’s participation in this plan became effective June 16, 1986. However, the SERF did not provide any specific recourse to its participants in the event of a dispute.

On June 30, 1988, plaintiff terminated defendant’s employment shortly after its take-over. Pursuant to defendant’s contractual termination benefits under the MRA, he received $511,885 on July 1, 1988. On August 1, 1988, he received $258,978 as retirement benefits under the SERF.

Defendant, however, claims that he only received partial payment of his retirement benefits. He contends that plaintiff improperly reduced his SERF benefits by $389,879.78. Defendant proceeded to demand full payment of his SERF benefits. Plaintiff refused to pay the claimed amount, and defendant sought to arbitrate the matter pursuant to paragraph 7 of the MRA. On or about September 30, 1988, one of defendant’s attorneys had a telephone conversation with one of plaintiff’s attorneys. During that conversation, defendant alleges, plaintiff’s attorney informed his attorney that plaintiff would take the position that defendant’s claim was not arbitrable unless defendant agreed to plaintiff’s choice for an arbitrator.

On October 7, 1988, plaintiff filed a complaint for declaratory judgment and an application to stay arbitration. Defendant then filed a counterclaim to compel arbitration. On November 10, 1988, the court authorized the American Arbitration Association to appoint an arbitrator, but ordered that an arbitration hearing could not be scheduled until the court reached a decision on the underlying issue of arbitrability of the dispute.

Motions for judgment on the pleadings were filed by both plaintiff and defendant. On January 20, 1989, the court granted plaintiff’s motion for judgment on the pleadings and denied defendant’s cross-motion. The court found that the dispute was not arbitrable under the MRA. It is from this decision that defendant appeals.

Section 1 of the Uniform Arbitration Act (hereinafter Act) provides:

“A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration atiy controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract ***.” Ill. Rev. Stat. 1989, ch. 10, par. 101.

Section 2(a) of the Act (Ill. Rev. Stat. 1989, ch. 10, par. 102(a)) authorizes the circuit court to compel arbitration upon the showing of the agreement described in section 1 of the Act. (Ill. Rev. Stat. 1989, ch. 10, par. 101.) “While arbitration is a favored method of dispute resolution, courts have consistently cautioned that an agreement to submit to arbitration is a matter of contract. Before an issue can properly be referred to an arbitrator, therefore, the particular dispute must be of the type that the parties have agreed should be submitted to arbitration.” United Cable Television Corp. v. Northwest Illinois Cable Corp. (1989), 128 Ill. 2d 301, 306.

The threshold issue to be determined here is whether the MRA authorizes the arbitration of this particular dispute. The parties agree, pursuant to paragraph 7 of the MRA, that controversies which arise out of or that relate to the MRA must be settled by arbitration. It is not claimed, by either party, that the language in the clause is ambiguous. The SERF, however, does not address the means to be utilized in resolving disputes. Plaintiff maintains that the controversy does not arise out of or relate to the MRA. On the other hand, defendant argues, pursuant to paragraph 2C of the MRA, that the SERF must be construed as a part of the MRA. Therefore, their dispute must be resolved by arbitration in accordance with the “generic” language in paragraph 7 of the MRA. We agree with defendant.

A “generic” arbitration clause is nonspecific in its designation of arbitrable disputes. (Ozdeger v. Altay (1978), 66 Ill. App. 3d 629, 632.) Arbitration clauses that provide that all claims “arising out of” or “relating to” an agreement have been properly categorized as “generic” arbitration clauses. (J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 670.) To determine the scope of these clauses the court must examine the wording of the clause and the terms of the contract in which the clause is included. (See Harrison F. Blades, Inc. v. Jarman Memorial Hospital Building Fund, Inc. (1969), 109 Ill. App. 2d 224.) To be within the scope of a “generic” arbitration clause, the dispute must arise out of the “subject matter of the contract.” Ozdeger, 66 Ill. App. 3d at 632.

In Ozdeger, we held that a clause in a construction contract which provided for arbitration of disputes "arising out of, or relating to” this written contract applied to a subsequent oral agreement between the parties since the subject matter was the same in both agreements.

The parties’ written agreement, in Ozdeger, provided that the defendants were to act as architects and general contractors in the construction of plaintiffs’ house. A “generic” arbitration clause was contained in the written agreement. The clause, however, was part of a form contract of the American Institute of Architects (hereinafter AIA). An addendum was attached to this form that outlined defendants’ duties as general contractors. Subsequently, the parties entered into an oral agreement that defendants would also act as carpentry managers.

Plaintiffs became dissatisfied with defendants’ performance and filed suit against defendants alleging breach of duties as architects, general contractors and carpentry managers. Defendants then filed a motion to compel arbitration. Plaintiffs, in objecting to defendants’ motion to compel arbitration, reasoned that the clause was not applicable to the oral agreement. The trial court later found, after plaintiffs had filed an amended complaint, that plaintiffs had sufficiently alleged a separate and distinct oral agreement to which the arbitration clause was inapplicable.

The appellate court, in reversing the trial court’s decision, found that the language of the arbitration clause was “generic” and applied to “all disputes arising out of the subject matter of the contract, that is, the construction of plaintiffs’ home.” Ozdeger v. Altay (1978), 66 Ill. App. 3d 629, 632.

Similarly, in the instant case, we find the subject matter of both of the agreements to be the same, that is, benefits to be afforded to defendant in the event of his retirement or termination. In Ozdeger, the issue was not that the clause applied only to defendants’ services as architects, merely because it was contained in the AIA form, nor did we find that the clause only applied to defendants’ services as general contractors or carpentry managers. We found that the subject matter was the same, that being the construction of plaintiffs' house, in both the written and oral agreements at issue.

We are not persuaded by plaintiff’s argument, in the instant case, that the MRA and the SERF are two unrelated and distinct documents. Plaintiff reasons that the MRA only guarantees the continuation of the SERF benefit and not the formula used to calculate the SERF. It argues that because this is a formula dispute, it is not covered by the MRA. Plaintiff’s characterization of the controversy as a formula dispute is a distinction without a difference. As plaintiff admitted in oral argument, certain aspects of the SERF are contained within the MRA. In order to get the full scope of defendant’s benefits, the documents must be read in conjunction. Defendant aptly points out that a contract must be read as a whole and all parts construed together. (Preski v. Warchol Construction Co. (1982), 111 Ill. App. 3d 641, 645.) We find that the SERF may properly be construed as part of the MRA. This dispute, therefore, is arbitrable pursuant to the “generic” language contained in paragraph 7 of the MRA.

Defendant also argues that he is entitled to attorney fees, pursuant to paragraph 6 of the MRA. There is no comparable provision contained in the SERF. The trial court denied the fees, finding that the dispute had not arisen under the MRA. We, however, previously found that the SERF may properly be construed as part of the MRA. We, therefore, find that the dispute arises out of or relates to the MRA. Accordingly, we find that defendant is entitled to attorney fees pursuant to paragraph 6 of the MRA.

The decision of the trial court is, therefore, reversed and the cause is remanded with directions to compel arbitration.

Reversed and remanded with directions.

LINN and JIGANTI, JJ., concur.


author: JUSTICE JIGANTI

text:
    LISA F. GRANT, Plaintiff-Appellee, v. BOARD OF REVIEW OF THE ILLINOIS DEPARTMENT OF EMPLOYMENT SECURITY et al., Defendants-Appellants.
    First District (4th Division)
    No. 1—89—1754
    Opinion filed June 28, 1990.
    Neil F Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellants.
    No brief filed for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Lisa E Grant, filed a pro se complaint for administrative review (Ill. Rev. Stat. 1987, ch. 110, par. 3—101 et seq.) seeking to reverse a decision by the Board of Review of the Illinois Department of Employment Security (hereinafter Board) that she was ineligible to receive unemployment benefits. The circuit court of Cook County reversed the Board’s decision, and the Board has appealed contending that it properly determined that the plaintiff was ineligible for benefits under sections 601(A) and 500(C) of the Unemployment Insurance Act (Ill. Rev. Stat. 1987, ch. 48, pars. 431(A), 420(C)). The Board contends that the plaintiff left work voluntarily without good cause attributable to the employing unit by remaining home to care for her newborn baby following her maternity leave. The Board contends further that she subsequently failed to conduct an active search for work by making only six job contacts by telephone or resume over a two-week period. The plaintiff has failed to file a brief on appeal, and we therefore consider this matter pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33, 345 N.E.2d 493.

The October 11, 1988, administrative hearing was conducted by referee Roy Olson. The plaintiff appeared pro se, and her employer, WTTW-TV, appeared through Fred Flaxman. The plaintiff worked as an executive producer producing children’s programs, performing arts programs, cultural programs and live-event television. Toward the end of her pregnancy, she worked at home for two weeks. After the two-week period of working at her home, she began a leave of absence due to her pregnancy. After the plaintiff’s child was born, the plaintiff was ill and was unable to return to work, and she so informed Mr. Flaxman in a telephone conversation. About one week later, she called Mr. Flaxman back, indicated that she wanted to stay with her baby, and asked him whether it would be possible to hold her job open for the rest of the year. He told her that he could not hold the job open indefinitely but that she was a “terrific employee” and he would try to help her if she eventually were ready to return to work. When the plaintiff subsequently called Mr. Flaxman to return to work, he informed her that there was a hiring freeze at WTTW. During the following two weeks, the plaintiff made six job contacts by telephone or resume.

The Board affirmed the denial of benefits after incorporating the decision of referee Olson, who found that work remained available up to the point that the plaintiff indicated that she had no definite date for returning to work and that she wanted to remain home with her child. The referee further found that plaintiff had not made a realistic search for work.

In reversing the Board’s decision, the circuit court in effect held an improper trial de novo (see Crabtree v. Illinois Department of Agriculture (1989), 128 Ill. 2d 510, 517, 539 N.E.2d 1252), eliciting facts which were not disclosed during the administrative hearing. The Board has appealed.

In an unemployment insurance case, the Board is the trier of fact and its factual findings are treated as prima facie true and correct. (Pearson v. Board of Review of Department of Employment Security (1990), 194 Ill. App. 3d 1064, 1068, 551 N.E.2d 1021; Jackson v. Board of Review of Department of Labor (1985), 105 Ill. 2d 501, 510, 513, 475 N.E.2d 879; Barron v. Ward (1987), 165 Ill. App. 3d 653, 659, 517 N.E.2d 591; Ill. Rev. Stat. 1987, ch. 110, par. 3-110.) Our function with respect to the Board’s factual findings is to determine whether they were against the manifest weight of the evidence. Jackson v. Board of Review, 105 Ill. 2d at 513; Finik v. Department of Employment Security (1988), 171 Ill. App. 3d 125, 133, 524 N.E.2d 1148; Mangan v. Bernardi (1985), 131 Ill. App. 3d 1081, 1084, 477 N.E.2d 13.

Section 601(A) of the Unemployment Insurance Act states in part as follows:

“An individual shall be ineligible for benefits for the week in which he has left work voluntarily without good cause attributable to the employing unit ***.” (Ill. Rev. Stat. 1987, ch. 48, par. 431(A).)

Whether or not good cause attributable to the employing unit exists is generally a question of fact for the Board. (Pearson v. Board of Review, 194 Ill. App. 3d at 1068, 551 N.E.2d at 1023; Farmers Insurance Exchange v. Department of Labor (1989), 186 Ill. App. 3d 493, 501, 542 N.E.2d 538; Finik v. Department of Employment Security, 171 Ill. App. 3d at 132.) Good cause is “ ‘such cause [which] justifies an employee in voluntarily departing the ranks of the employed and in joining the ranks of the unemployed.’ ” (Farmers Insurance Exchange v. Department of Labor, 186 Ill. App. 3d at 501, quoting Burke v. Board of Review, Department of Labor (1985), 132 Ill. App. 3d 1094, 1101.) Good cause depends upon the plaintiff’s “unique personal circumstances” and the reasonableness of her actions. Farmers Insurance Exchange v. Department of Labor, 186 Ill. App. 3d at 501.

The focus is upon the conduct of the employer and not the conduct of the employee when determining whether good cause for leaving is attributable to the employer. (Pearson v. Board of Review, 194 Ill. App. 3d at 1069, 551 N.E.2d at 1024.) The Board must examine the employer’s conduct to determine whether the cause for leaving was attributable to the employer. (Pearson v. Board of Review, 194 Ill. App. 3d at 1070, 551 N.E.2d at 1024.) The employer need not have been at fault, and “[i]t is enough that the facts overwhelmingly establish that [the employer’s] conduct caused the employment termination to occur”; it is sufficient if one cause or causal factor on the part of the employer caused the termination. (Pearson v. Board of Review, 194 Ill. App. 3d at 1070, 551 N.E.2d at 1025.) Maternity leave may or may not constitute a voluntary termination for good cause. See generally Wimberly v. Labor & Industrial Relations Comm’n (1987), 479 U.S. 511, 515, 93 L. Ed. 2d 909, 914, 107 S. Ct. 821, 824 (the Court observed in dictum that a State can deny unemployment insurance benefits to pregnant women if other claimants, who leave work for reasons not connected to work, are treated the same way).

In the case at bar, the evidence established that the plaintiff left work voluntarily for personal reasons unrelated to her employer. She remained home to care for her newborn baby. At that time, work was still available, and her employer’s conduct was not causally connected to her termination. The subsequent imposition of a hiring freeze by the employer is irrelevant because the plaintiff already had voluntarily terminated her employment. Given these circumstances, the Board’s factual finding that the plaintiff left work voluntarily without good cause attributable to the employing unit was consistent with the manifest weight of the evidence. In view of our conclusion that the plaintiff is disqualified from receiving benefits under section 601(A) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 431(A)), we need not address the question whether she also is disqualified under section 500(C) of the Act due to an inadequate search for work. Ill. Rev. Stat. 1987, ch. 48, par. 420(C).

The order of the circuit court is reversed.

Reversed.

JOHNSON and LINN, JJ., concur.


text:
    SOUTHWEST FINANCIAL BANK OF ORLAND PARK, Plaintiff-Appellant, v. JACQUELINE McGRATH, Defendant-Appellee.
    First District (4th Division)
    No. 1—89—2035
    Opinion filed June 28, 1990.
    C. Richard Farmer and Carol S. McMahan, both of Carroll, Hartigan & McCauley, Ltd., of Chicago, for appellant.
    Martin J. McNally, of Hilliard & McNally, of Olympia Fields, for appellee.
   JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiff, Southwest Financial Bank of Orland Park (Southwest), appeals from an order of the trial court dismissing its foreclosure action against the defendant, Jacqueline McGrath, on the grounds that there was another action pending between the same parties for the same cause. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(3).) Although Southwest had moved only for the dismissal of McGrath’s affirmative defense, the trial court on its own motion dismissed the entire action. Southwest contends on appeal that the trial court abused its discretion in dismissing the foreclosure action. Southwest also contends that the affirmative defense filed by McGrath was properly dismissed on the grounds that McGrath had another action pending in Federal court for the same cause.

On October 31, 1988, Southwest filed its amended complaint for foreclosure against McGrath alleging a default in the terms of the underlying note and mortgage. In response McGrath filed an answer setting forth an affirmative defense. Essentially, the affirmative defense recited that on June 27, 1988, Fidelity Guaranty Life Insurance Company filed a Federal interpleader action naming McGrath and Southwest as defendants. The action was brought to determine the distribution of proceeds from a life insurance policy on the life of Brian McGrath, Jacqueline McGrath’s husband. McGrath filed a cross-claim against Southwest in the interpleader action alleging economic coercion, breach of fiduciary duty, breach of the duty of good faith and fair dealing, intentional interference with a contractual relationship and conspiracy based on Southwest’s assertion of a claim upon the life insurance proceeds. McGrath’s cross-claim alleged that she, Brian McGrath and two other persons obtained a personal loan which was secured by the life insurance policy and other assets. The mortgage involved in the instant cause was then obtained, and the proceeds were used to satisfy the initial loan. The cross-claim further alleged that Southwest had no valid claim upon the life insurance proceeds. In her affirmative defense to the foreclosure action here, McGrath alleged that “[Southwest] knew that by making a claim on the life insurance proceeds that SOUTHWEST had reduced [Mc-Grath’s] ability to repay any obligations.” The affirmative defense further alleged that the Federal court “dismissed [Southwest’s] claim to the insurance proceeds, but the proceeds remain tied up in litigation.”

Southwest moved to dismiss McGrath’s affirmative defense pursuant to section 2 — 619(a)(3) of the Code of Civil Procedure on the grounds that there was another action pending between the same parties for the same cause. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(3).) McGrath then moved to withdraw her answer and to dismiss the foreclosure action pursuant to section 2 — 619(a)(3).

Following a hearing on Southwest’s motion to dismiss the affirmative defense, the trial court found that there was a substantial similarity of issues between the foreclosure action and the Federal inter-pleader action based on transactions involving a personal loan secured by the life insurance policy, a second loan secured by the mortgage and note, and use of proceeds from the second loan to satisfy the initial loan and the assignment or release of the insurance policy. The court then issued an order stating that “this action is dismissed sua sponte pursuant to Section 2 — 619(a)(3) as a prior pending action exists in the federal court.”

Southwest first contends that the trial court abused its discretion in dismissing the foreclosure action because it does not involve the “same cause” as the Federal interpleader action.

Section 2 — -619(a)(3) of the Code of Civil Procedure provides that a party against whom a claim is asserted may seek an involuntary dismissal of the action or other appropriate relief upon the grounds that there is another action pending between the same parties for the same cause. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619(a)(3).) In Skolnick v. Martin (1964), 32 Ill. 2d 55, 57, 203 N.E.2d 428, 429, the Illinois Supreme Court considered the “same cause” requirement and stated that actions are for the same cause “when relief is requested on substantially the same state of facts.” In A.E. Staley Manufacturing Co. v. Swift & Co. (1980), 84 Ill. 2d 245, 252, 419 N.E.2d 23, 27, the court stated that “[t]he purpose of section 48(l)(c) [recodified as section 2 — 619(a)(3)] is to avoid duplicative litigation [citations], and the trial court’s analysis should be geared toward effectuating that purpose.” The court further interpreted section 2— 619(a)(3) as giving the trial court discretion to refuse to dismiss an action even where there exists another action pending between the same parties for the same cause where it determines that both actions should proceed. In Kellerman v. MCI Telecommunications Corp. (1986), 112 Ill. 2d 428, 447-48, 493 N.E.2d 1045, 1053, the court held that the factors which should be considered in determining whether relief under section 2 — 619(a)(3) is warranted include, “comity; the prevention of multiplicity, vexation, and harassment; the likelihood of obtaining complete relief in the foreign jurisdiction; and the res judicata effect of a foreign judgment in the local forum.”

In the case at bar, the only action pending between Southwest and McGrath in Federal court is McGrath’s cross-claim against Southwest for economic coercion, breach of fiduciary duty and the duty of good faith and fair dealing, interference with a contractual relationship and conspiracy. Southwest’s claim to the insurance proceeds has been dismissed. The issue of mortgage foreclosure is not before the Federal court, nor are any of the underlying facts or documents which would support foreclosure. There is therefore no likelihood that Southwest would obtain complete relief in the Federal court unless it initiated a complaint for mortgage foreclosure. However, if Southwest were to file its foreclosure claim in the Federal court, the court would be faced with deciding a new issue on facts not currently before it. Thus, considerations of comity, multiplicity of actions and res judicata do not apply. There is no evidence of vexation or harassment because Southwest did not initiate the Federal court action and is not seeking to prosecute the same cause in different forums. Essentially, Mc-Grath’s argument appears to be that the Federal case involves proceeds which would have been available to pay the mortgage had Southwest not made a claim upon them. McGrath has failed to explain the relevance of this argument to the issue of mortgage foreclosure. In our view, the trial court abused its discretion in dismissing Southwest’s foreclosure action pursuant to section 2 — 619(a)(3).

The next issue is whether the trial court acted properly in dismissing McGrath’s affirmative defense. Section 2 — 619(a)(3) allows the trial court discretion to dismiss an action or to grant other appropriate relief to avoid duplicative litigation where there is another action pending between the same parties for the same cause. As stated earlier, McGrath’s affirmative defense recited essentially the same allegations contained in her cross-claim against Southwest in the Federal interpleader action. A determination of those allegations would involve litigation of the same issues which are currently before the Federal court and would therefore pose a danger of inconsistent results. In our view, the court properly dismissed the affirmative defense.

Accordingly, the judgment of the circuit court is affirmed in part, reversed in part and remanded to the trial court for further proceedings.

Affirmed in part; reversed in part and remanded.

McMORROW, P.J., and JOHNSON, J., concur.


author: JUSTICE GORDON

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANCISCO ALGARIN, Defendant-Appellant.
    First District (5th Division)
    No. 1—87—3645
    Opinion filed June 29, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Paul D. Bellendir, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, William D. Carroll, and Darlene White, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GORDON

delivered the opinion of the court:

Defendant, Francisco Algarin, was charged with the child abduction (Ill. Rev. Stat. 1987, ch. 38, par. 10—5(b)(2)), aggravated kidnapping (Ill. Rev. Stat. 1987, ch. 38, par. 10—2(a)(5)), and aggravated unlawful restraint (Ill. Rev. Stat. 1987, ch. 38, par. 10—3.1) of an 11-year-old girl. Defendant was the girl’s natural father but was never married to her mother. At a bench trial, the court granted defendant’s motion for a directed finding on the child abduction charge. The court denied, however, defendant’s motion for a directed finding on the aggravated kidnapping charge and, after hearing all the evidence, found defendant guilty of aggravated kidnapping and aggravated unlawful restraint. Before sentencing, the court vacated the unlawful restraint conviction and sentenced defendant to 10 years in prison for aggravated kidnapping. On appeal, defendant contends: (1) the trial court improperly denied his motion for a directed finding on the aggravated kidnapping charge; and (2) he was not proven guilty of aggravated kidnapping beyond a reasonable doubt. We reverse and remand on the first ground with no further need to determine the merits of the second ground.

This case involves the seizure of an 11-year-old girl by the defendant, her natural father. There is no dispute in the record that defendant is her biological father. This fact was also acknowledged by the trial court. However, he was never married to the child’s mother and had not lived with the child or her mother at any time after her birth. Defendant had been incarcerated since the date of the child’s birth and had never seen her except on two brief occasions within a few months prior to this occurrence. There was evidence, however, that he had written to the child from prison but no indication of how often. Although the right to custody of the child never was the subject of a court determination, the mother had physical custody of her at all times. At the time of the incident, the girl was living with the mother, her stepfather and two sisters and brother in an apartment on Cortez Street in Chicago.

The State’s evidence showed that the girl had briefly seen her father for the first time early in 1987, when she turned to look upon hearing him call out her name as she proceeded to enter her home. She did not then recognize who he was. Early in March 1987, she again saw defendant when he walked into a laundromat where she was standing with a friend and ordered her to accompany him, stating that her mother had given permission. Upon his persistence, she reluctantly acquiesced to his walking her home. When they arrived at her door, he told her to call out to her mother that she would be leaving with him. Instead, she ran inside and told her mother that defendant was bothering her. Her mother then admitted defendant into the home, where he then again insisted that the victim come away with him. When she refused, he left. Shortly thereafter, the child’s mother called the police and informed them of what had happened.

The girl next encountered defendant on March 25, 1987. At about 2 a.m. on that day, Reinaldo, the child’s stepfather, was awakened by someone pounding on his front door. When he opened the door, he saw defendant, who said that he had come to see his daughter. Reinaldo told him that the hour was too late, she was asleep and she had to go to school later that morning. Nonetheless, defendant forced his way in and saw his daughter asleep on the couch in the living room. Defendant awakened her by touching and kissing her. She began to cry and scream for her mother. Defendant told her that he wished to take her to his home for a while, stating that he was her father and that nobody could keep him from taking her with him.

Maria, the mother, was awakened by her screaming and came into the living room to investigate. When she saw defendant there, she gave him a “dirty look” and then went to call the police. When she returned, defendant was telling the child to come with him. She continued to cry and refused. Maria then began arguing with defendant. Meanwhile, the child left the living room and went into the kitchen. Defendant followed her there. He grabbed her and told her that she was coming with him, “the good way or the bad way.” She persisted in her refusal.

When the police knocked at the door, defendant opened his jacket to reveal a knife in his waistband as he warned Maria not to let the police know he was there. Maria then told the police that nothing was wrong and they left.

Defendant then urged Maria to give the child to him because she had three other children. When Maria refused, he replied that he would take her anyway.

While defendant was distracted, Maria opened the front door and attempted to flee the apartment with the child. Defendant chased after them and caught up with them outside. He grabbed the child and pulled his knife from his waistband. He then fled with her through various gangways, alleys, and backyards. At one point during the flight, the child heard her brother’s godfather calling for her and she called out to him. Defendant then put his hand over her mouth to keep her from calling out again. When her brother’s godfather appeared, defendant pulled his knife and attempted to stab him. The godfather then fled.

Eventually, defendant and the child arrived at a big fence. At about the same time, the child’s uncle arrived and asked the defendant to leave the child. Defendant released her, climbed the fence and ordered her to follow him. When she refused, he left without her. The child then ran to her uncle.

At about 4:20 a.m., the police spotted defendant running without shirt or shoes and arrested him. During the arrest, he threatened to kill the police. The police searched him and the area where the victim was found but found no knife.

The defendant testified that in January of 1987, he first saw the victim coming out of school and called out her name. He knew that she was his daughter because someone had pointed her out to him. He then followed her to her home. When she arrived there, Maria, her mother, came out and called his name. He then left but returned later that evening with several gifts for his daughter, including a television, stereo, headphone, calculator and watch. Maria did not attempt to stop him from giving them to their daughter. He next returned to her home in February of 1987 when Maria allowed him to enter and give $20 to their daughter.

He arrived at his daughter’s apartment at about 11 p.m. on March 24, 1987. He said that Maria had given him permission to take her overnight. When the child came out of the apartment, however, she was angry and suddenly took off down a gangway. Defendant then gave chase. As he was chasing her, two persons suddenly began chasing him. At one point during the chase, one fired a gun at him and the other pulled a knife on him. He was still running from these individuals when he was arrested.

Defendant was convicted and sentenced for aggravated kidnapping, which is a kidnapping, as defined in the kidnapping statute (Ill. Rev. Stat. 1987, ch. 38, par. 10—1), committed while armed with a dangerous weapon (Ill. Rev. Stat. 1987, ch. 38, par. 10—2(a)(5)).

The provisions of the kidnapping statute which relate to this appeal are:

“(a) Kidnaping occurs when a person knowingly: _
* **
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or
***
(b) Confinement of a child under the age of 13 years is against his will *** if such confinement is without the consent of his parent or legal guardian.” (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 1.)

Defendant contends that the trial court should have granted his motion for a directed finding on the aggravated kidnapping charge because as the victim’s biological father, he is a parent under the kidnapping statute and cannot therefore be charged with the kidnapping of his own child. We agree with this contention.

The term “parent” is not defined by the kidnapping statute. Defendant urges that the term must be given its plain and ordinary meaning of father or mother related by blood because the kidnapping statute is not ambiguous. If the term were to be given this meaning, defendant would qualify as a parent. Alternatively, he suggests that if we conclude that the statute is ambiguous, we should be guided by the definition of “parent” in the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.) and the Parental Right of Recovery Act (Ill. Rev. Stat. 1987, ch. 70, par. 601 et seq,). The Adoption Act defines parent as either “the father or mother of a legitimate or illegitimate child.” (Ill. Rev. Stat. 1987, ch. 40, par. 1501(E).) The Parental Right of Recovery Act defines “parent” as “any natural or adoptive parent of a minor.” (Ill. Rev. Stat. 1987, ch. 70, par. 602(4).) Thus, defendant would be a parent under either of these acts.

The State, on the other hand, contends that we should be guided by the definition of “parent” in the Juvenile Court Act. (Ill. Rev. Stat. 1983, ch. 37, pars. 701—1 et seq.) There, “parent” is defined as

“the father or mother of a legitimate child, or the mother of an illegitimate child, and includes any adoptive parent. It also includes the father of an illegitimate child whose paternity has been established under the law of this or another jurisdiction.” (Ill. Rev. Stat. 1985, ch. 37, par. 701—14.)

The State argues that since defendant’s paternity has not been adjudicated, he would not qualify as a legal parent. Further, the State suggests that where, as here, the parents are not married, there is a presumption, as under the child abduction statute (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(a)(3)), that the mother has legal guardianship and right to custody. The State contends that under the kidnapping statute, as under the child abduction statute, only the parent with a right to custody can consent to the taking of the child. Additionally, the State suggests that even without reference to any other statutes or authority, the child’s mother in the present case is the. sole parent qualified to consent to a taking of this child since she is the only parent this child had ever known.

We agree with defendant that the term “parent” in the kidnapping statute should be given its plain and ordinary meaning of father or mother related by blood. (See Black’s Law Dictionary 1003 (5th ed. 1979) (defining “parent” as “[o]ne who procreates, begets, or brings forth offspring”); Webster’s Third New International Dictionary 1641 (1986) (defining parent as “one that begets or brings forth offspring: FATHER [or] MOTHER” and tracing its root to the Latin, “parere,” which means “to give birth to, beget, produce”); 11 The Oxford English Dictionary 222 (2nd ed. 1989) (defining “parent” as “a person who has begotten or borne a child; a father or mother”); 7 The New Encyclopaedia Britannica 754 (Micropaedia ed. 1974) (stating that in Western societies, the term “parenthood, with its several obligations, rests strongly on biological relatedness, that is, sexual reproduction”).) Absent any ambiguity, language in a statute should be given its plain and ordinary meaning. (See Maloney v. Bowers (1986), 113 Ill. 2d 473, 479, 498 N.E.2d 1102, 1104.) When the language is clear and unambiguous, courts will not read restrictions or enlargements into that language. (See People v. Goins (1988), 119 Ill. 2d 259, 265, 518 N.E.2d 1014, 1016.) When a statute contains language with an ordinary and popularly understood meaning, it is presumed that is the meaning intended by the legislature. People v. Haywood (1987), 118 Ill. 2d 263, 276, 515 N.E.2d 45, 51.

The State’s contention that we must be guided by the Juvenile Court Act to determine the meaning of “parent” under the kidnapping statute is not well founded. First, the meaning of the term by itself as used in the kidnapping statute is clear and unambiguous and therefore does not justify a search beyond its four corners to ascertain its scope and meaning. Second, there is no affinity or mutuality of purpose between the Juvenile Court Act and the criminal felony statute setting forth the crime of aggravated kidnapping. Thus, there would be no greater reason to adopt the definition under it than under the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(E)) or the Parental Right of Recovery Act (Ill. Rev. Stat. 1987, ch. 70, par. 602(4)) which would favor the defendant’s position. (See People v. Harman (1984), 125 Ill. App. 3d 338, 345, 465 N.E.2d 1009, 1015.) Moreover, even if the Juvenile Court Act were to apply and a court determination of the biological paternity were required as under that act, that requirement would have been satisfied in this case. Here the paternity of the defendant was undisputed in the evidence and was acknowledged by the trial court, the court having explicitly found that this defendant was the natural father but having held that this factor alone was not dispositive under the aggravated kidnapping statute. Additionally, a contrary finding concerning defendant’s biological parenthood clearly would have been against the manifest weight of the evidence since defendant’s paternity was undisputed.

Similarly, the child abduction statute (Ill. Rev. Stat. 1987, ch. 38, par. 10—5) cannot predetermine the meaning of the word “parent” under the kidnapping statute. The fact that “parent” has a plain and unambiguous meaning which precludes reference outside of the four corners of the statute to ascertain its meaning applies to the child abduction statute as it does to the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 701—1 et seq.). Additionally, as used in the child abduction statute, the basic term, “parent,” does not connote anything more than biological fatherhood or motherhood. Where a custodial interest, marriage, or legally adjudicated paternity becomes a consequential factor under its provisions, it is clearly and explicitly spelled out. (See, e.g., section 10—5(b)(7) of the child abduction statute (Ill. Rev. Stat. 1987, ch. 38, par. 10—5(b)(7)).) None of these factors are presumed by the drafters of that statute to be inherent in the term “parent” itself. Consequently, if the meaning of the word “parent” itself, as used in the child abduction statute, were to determine the meaning of that word under the kidnapping statute, it would be consistent with its dictionary definition, denoting only the biological, blood relationship with the offspring.

Furthermore, there is no reason to presuppose that the legislature ever intended that the kidnapping statute encompass parental abductions as does the child abduction statute. Historically, all parents were excluded from kidnapping statutes and are explicitly excluded from the provisions of the Federal kidnapping statute (18 U.S.C. § 1201(a) (1988)). (See Comment, The Tort of Custodial Interference— Toward a More Complete Remedy to Parental Kidnappings, 1983 U. Ill. L. Rev. 229, 234-35.) In fact, it was this pattern of exclusion which led to the enactment of child abduction statutes by various States, including Illinois, specifically designed to protect the custodial right of one parent from the abductive abuses of another. (See Fleck, Child Snatching by Parents: What Legal Remedies for “Flee and Plea”? 55 Chi.-Kent L. Rev. 303, 313-14 (1979).) Thus, the child abduction statute was not designed to be coextensive with the kidnapping statute but rather to open as a new frontier the area of parental abduction which the kidnapping statute was not intended to reach.

The State has urged that the court look to the quality of the relationship between the putative father and the child to determine whether the kidnapping statute applies. The State contends that because this defendant has no custodial rights to the child, did not contribute to the child’s support and has not established meaningful emotional ties with the child, the parental consent required under the kidnapping statute should not be deemed to apply to this defendant. In effect, the State would have this court inject, by judicial fiat, legal and societal values into the term “parent” that reach far beyond the plain meaning of the term itself.

There is no question that the legislature would be free under the kidnapping statute to distinguish between parents based upon their relative right to custody of a child. It has in fact done so under the child abduction statute. Moreover, there is little doubt that the legislature would be free in enacting a kidnapping statute to make qualitative distinctions predicated upon the degree of interest or commitment of a putative father towards the child. (See Stanley v. Illinois (1972), 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208; Lehr v. Robertson (1983), 463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (where such facts were considered by the United States Supreme Court in determining the scope of a putative father’s constitutionally protected interest in his offspring).) However, such delineations would have to be incorporated into a criminal statute by legislative articulation so as to provide sufficient standards and guidelines to satisfy the requirements of due process. In order to avoid a due process-vagueness challenge, a “statute must give a person of ordinary intelligence a reasonable opportunity to know what conduct is lawful or unlawful” and “provide standards, so as to avoid arbitrary and discriminatory enforcement and application by police officers, judges and juries.” (People v. O’Donnell (1987), 116 Ill. 2d 517, 522, 508 N.E.2d 1066, 1068.) Without the articulation of such standards and guidelines by the legislature, this court is not free to devise its own catalogue of distinctions among the infinite variety of parental relationships or patterns of interaction between a parent and child.

The result we reach in this case is consistent with the decision in People v. Shephard (1988), 171 Ill. App. 3d 977, 525 N.E.2d 1102. There, the defendant, an unmarried father, was charged with the aggravated kidnapping and child abduction of his natural child from her mother’s home. After the trial court found defendant to be the natural father of the victim, it refused to convict him of aggravated kidnapping because an element of the offense was thé lack of parental consent. Nonetheless, it did convict him of child abduction. On appeal, the reviewing court affirmed and, by doing so, tacitly agreed with the trial court that biological parenthood alone is a defense to an aggravated kidnapping charge and may be established at the trial of the charge. Similarly, in the present case, the trial court acknowledged that defendant was the natural father of the victim and, additionally, that fact was undisputed in the evidence. As with Shephard, the fact that defendant was a biological parent establishes a defense to the aggravated kidnapping charge.

The case of People v. Marin (1971), 48 Ill. 2d 205, 269 N.E.2d 303, is also on point. Marin involved the question whether individuals could be convicted of the aggravated kidnapping of a seven-year-old child under circumstances where they agreed with the father of that child to take the child for purposes of extorting money from his grandfather. Without considering the nature of the father-child relationship or even the manner or motive of the taking, the court found the father’s agreement to the plan indicated his consent to the taking and stated:

“[T]here can be no kidnapping of a child under the age of 13 if the confinement occurs with the consent of his parent. And there can be no aggravated kidnapping unless there is a kidnapping.” (Marin, 48 Ill. 2d at 210, 269 N.E.2d at 305.)

Similarly, in the present case, defendant cannot be convicted of aggravated kidnapping. Though his relationship with his daughter was minimal and the circumstances of the taking were most serious, he, like the father in Marin, is a parent and, therefore, removed from the scope of the aggravated kidnapping statute.

The State argues that if we overturn defendant’s conviction for aggravated kidnapping we would “open the door for strangers to suddenly appear and upset children’s emotions and the stability of their environment.” We disagree. The legislature has provided other criminal statutes to protect children against abduction, whether by force or otherwise by a putative father. As previously discussed, the child abduction statute (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5) is 'specifically designed to protect a child from abduction by a putative father such as the defendant. Section 10 — 5(b)(3) of that statute (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(3)) provides that a person commits the felony of child abduction when he “[intentionally conceals, detains or removes the child without the consent of the mother or lawful custodian of the child if the person is a putative father and has not established paternity of the child.” The child abduction statute further provides that aggravation can be found and a more, severe sentence imposed in the event, as in this case, the court finds “that the defendant committed the abduction while armed with a deadly weapon.” (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(d)(5).) In the present case, the State did charge defendant with a violation of the child abduction statute, but under a different provision, section 10 — 5(b)(2) (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 5(b)(2)), which required proof that a court order awarding custody was violated. When upon trial the State was unable to prove that such a court order was entered, the trial court directed a finding on that charge.

Additionally, the aggravated unlawful restraint statute (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 3.1) protects against the type of conduct involved in the present case. That statute provides that a person commits the felony of aggravated unlawful restraint when he knowingly and without authority detains another with the use of a deadly weapon. In the present case, the State did charge defendant with aggravated unlawful restraint and obtained a finding of guilt on that charge. But, the trial court vacated the finding of guilt on the basis that it was a lesser offense of the aggravated kidnapping. See People v. Kittle (1986), 140 Ill. App. 3d 951, 957, 489 N.E.2d 481, 485.

The circumstances in this case clearly support an aggravated unlawful restraint conviction. An aggravated unlawful restraint occurs when a person knowingly and without legal authority detains another while using a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, par. 10 — 3.1.) Proof of defendant’s seizure and detention of his daughter with his knife drawn was sufficient to establish his guilt of aggravated unlawful restraint beyond a reasonable doubt. (See People v. Jones (1981), 93 Ill. App. 3d 475, 417 N.E.2d 647.) Upon the remand of this matter to the trial court, the finding of guilty on the unlawful restraint charge may be reinstated. See People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117.

Accordingly, we reverse defendant’s aggravated kidnapping conviction and remand this matter to the trial court to permit it to reinstate and sentence defendant on the aggravated unlawful restraint conviction.

Reversed and remanded.

COCCIA, P.J., and LORENZ, J., concur.

       It should be noted that this provision was amended, effective July 1, 1985, so that “parent” was defined as “the father or mother of a child.” (Ill. Rev. Stat. 1985, ch. 37, par. 701—14.) The Juvenile Court Act of 1987 replaced the Juvenile Court Act, effective January 1, 1988, but continued to define “parent,” as “the father or mother of a child.” Ill. Rev. Stat. 1989, ch. 37, par. 801—3 (11).

       The Laws of England specifically provided that “no person who shall have claimed to be the father of an illegitimate child, or to have any right to the possession of such child, shall be liable to be prosecuted by virtue hereof (of child stealing), on account of his getting possession of such child, or taking such child out of the possession of the mother, or any other person having the lawful charge thereof.” 4 W. Blackstone Commentaries, Of Public Wrongs: Of Offences Against the Public Health, and the Public Police or Economy, 168 n. 26 (1863). See generally Fleck, Child Snatching by Parents: What Legal Remedies for “Flee and Plea”? 55 Chi.-Kent L. Rev. 303, 313 n.52.

       Since its enactment in 1979, the Illinois child abduction statute has developed from legislation directed at the specific problem of the violation of a court order awarding custody (Ill. Rev. Stat. 1979, ch. 38, par. 10—5) to the current legislation which covers a broad range of child abduction and child snatching problems (Ill. Rev. Stat. 1989, ch. 38, par. 10—5).


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES GRIFFIS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—0139
    Opinion filed June 29, 1990.
    Rehearing denied July 26, 1990.
    Michael J. Pelletier and Linda Signer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Elizabeth Sklarsky and Marie Quinlivan Czech, Special Assistant State’s Attorneys, and Renee Goldfarb, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows a jury trial in which James Griffis was convicted of solicitation to commit murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8—1, 9—1), solicitation to commit aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 8—1, 12—4), solicitation to commit robbery (Ill. Rev. Stat. 1985, ch. 38, pars. 8—1, 18—1), and solicitation to commit arson (Ill. Rev. Stat. 1985, ch. 38, pars. 8—1, 20—1).

We affirm.

The record indicates that on March 22, 1985, defendant approached Joey McLain, then 15 years old, to ask McLain to set fire to a trailer in which defendant had once briefly lived with his estranged wife, Marilyn. Defendant also asked McLain to rob and beat defendant’s grandmother, Marsha McMahen, and to murder defendant’s uncle, Louis McMahen. McLain declined to be involved in the murder of defendant’s uncle but, at defendant’s urging, contacted Scott Epley, also then 15 years old, for the task.

Defendant’s actions were apparently attributable to circumstances surrounding the deterioration of his marriage. Briefly, defendant and Marilyn were married in September 1984. Within days thereafter, Marilyn was hospitalized for a heart condition and underwent open-heart surgery. For about one month following her release from the hospital in October 1984, defendant and Marilyn lived together in a trailer. Marilyn twice left defendant and, in December 1984, began a relationship with defendant’s uncle. Defendant, a previously diagnosed manic depressive, admitted himself to the mental health unit of Christ Hospital in January 1985. In February 1985, while still at Christ Hospital, Marilyn served defendant with notice that she had filed a divorce proceeding against him.

During January and February 1985, when she was not hospitalized, Marilyn lived with defendant’s parents.

Joey McLain lived across the street from where defendant’s parents lived in Oak Lawn. He testified at trial that either on March 15 or 16,1985, defendant telephoned him, inquiring after Marilyn.

On March 22, 1985, McLain testified, defendant showed him the trailer that defendant wanted McLain to set on fire. Defendant had indicated to McLain exactly how to accomplish the task and told McLain he would be paid for his effort. That same day, McLain testified, he went to Joliet with defendant and delivered a note to Marilyn. McLain stated that, during the drive, defendant told him that he wanted Martha McMahen, his grandmother and Louis McMahen’s mother, beaten. Defendant indicated she had money in the trailer where she lived and that McLain could take whatever he wanted.

McLain testified that on March 23, 1985, he went with defendant to see Scott Epley, a friend of McLain’s. McLain explained that defendant had asked McLain to kill Louis McMahen. McLain said he would not murder McMahen, but that he knew of someone who would, and suggested the name of Scott Epley. Defendant drove McLain and Epley to where McMahen worked, pointed out McMahen’s vehicle, and indicated how he wanted McMahen murdered. McLain testified defendant said he would pay $400 for the murder.

McLain testified that when he arrived home that night, police officers were there. Marilyn Griffis was also present. At that time, McLain related the events of the day to the police and agreed to cooperate with them. McLain subsequently was fitted with a concealed transmitter, or “wire,” and a tape recorder. He recorded conversations with defendant on March 28 and 29, 1985. Those conversations corroborated McLain’s testimony concerning the solicitation for murder.

Epley also testified at trial on behalf of the State and corroborated McLain’s testimony concerning defendant’s solicitation for the murder of Louis McMahen.

Defendant’s motion for a new trial was denied on September 4, 1986, and this appeal followed.

Opinion

Defendant first argues that comments made by the assistant State’s Attorney during opening and closing summations were improper and violated defendant’s right to a fair trial under both our Federal and State constitutions. Defendant concedes no timely objection was made in the trial court as to any of the comments identified by defendant as being improper and that defendant’s post-trial motion similarly failed to include the contention that the comments were improper. Although both steps are necessary to properly preserve arguments on appeal (People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124), defendant urges us to consider the impropriety of the comments under the plain error doctrine (107 Ill. 2d R. 615(a)). Under the doctrine of plain error, we may consider matters not otherwise properly raised in the trial court where the evidence is closely balanced or the error is of such magnitude that the commission thereof denies the accused a fair and impartial trial. People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 453.

The evidence in the instant case was anything but closely balanced. Both McLain and Epley testified that defendant solicited their services, together or independently, to murder Louis McMahen. McLain provided further testimony to establish that defendant solicited his services for the other offenses charged. The tapes corroborate the testimony of McLain and Epley. Thus, we find no basis to disturb the verdicts rendered below on the basis of the evidence presented.

In considering the magnitude of the argued errors, we find it helpful to address, together, the allegedly improper comments identified by defendant with the reason defendant gives for the claimed impropriety.

First, defendant identifies comments which, defendant argues, implied the police would not have investigated or arrested him if he was not, in fact, guilty. The following comments are from the State’s initial comments at the close of evidence:

“We [(the assistant State’s Attorneys)] played you [(the jury)] the *** entire tape. Twenty minutes of music we sat there and listened to so that you knew from the time that tape recorder was on [McLain’s] body to the time that he ended his conversation with this defendant that you heard everything. The questions, the directions, the request made on those tapes were from [defendant], not Joe McLain.
*** On March 29th those tape recordings, or the one tape recording from the 29[th], [was] taken off [McLain’s] body. The police then arrested [the defendant] later that evening, and that was the conclusion of the investigation, once [the police] knew what Joe McLain and Scott Epl[e]y told the police was true.”

And:

“I [(one of the assistant State’s Attorneys)] think you’ll agree with us at the end of the case that [the defendant] is guilty as charged.”

Defendant also notes the following comments made during rebuttal:

“I [(one of the assistant State’s Attorneys)] couldn’t disagree more [with defense counsel’s assessment in his closing that defendant was ‘kind of stupid’]. [Defense counsel] says [the defendant] is stupid. If he was stupid he would have walked into [Louis McMahen’s place of employment] with a bat in his hand and whacked [McMahen] in front of about fifty people, if he was stupid.”

And:

“Remember when I said [during opening statement] it[’]s a crime of words, commandfment], encourage[ment], requestf?] And there’s a big difference between bar room talk and solicitation to commit murder. That’s why [the police] had to present a phone book or paperwork to various judges and [the police] had to go before all kinds of judges, had to get orders written or prepared. They don’t take this lightly.
I mean [the police] did everything by the book because this was more than bar room talk. This is serious business.”

And:

“Remember what the tapes said. Remember what the witnesses said. It doesn’t matter if [McLain and Epley] were going to do it or not. And I think Joe McLain, if I recall the evidence correctly, *** said on the stand, and I don’t know whether [McLain] would have or not, but he said he probably would have [committed the offenses for defendant]. He seemed like a punk enough to us [(the assistant State’s Attorneys)]. I think he would burn down the trailer. He said he would have done it.”

We do not agree with defendant that the above comments encouraged the jury to base its verdict on personal opinions, rather than evidence. Contrary to defendant’s argument, the comments made in the initial closing statement by the State, when read in context, merely set out a chronological summary of the events leading up to defendant’s arrest and are otherwise proper as inference based on evidence presented at trial. While we do not condone the statement that the assistant State’s Attorney believed the jury would agree with the State, we simply do not agree that that particular statement can be construed as encouraging the jury to base its decision on personal belief rather than as a statement of what the evidence would prove, at the trial’s end.

As to the other comments above, made during the State’s rebuttal argument, we conclude each was invited by defendant’s counsel. The comment as to defendant being “stupid” was clearly in response to defendant’s counsel’s own statement that, while he was not suggesting defendant was a “good guy,” he believed defendant only to be “kind of stupid.” The comments with regard to the seriousness of defendant’s statements were invited by defendant’s counsel’s characterization, in his opening statement, that defendant’s solicitations were merely “bar talk.” Like the statement above concerning what the assistant State’s Attorneys believed the jury would conclude, we cannot condone the comment that the assistant State’s Attorneys believed McLain was “punk enough” to commit the offenses. However, we conclude the statement can reasonably be construed as a response to argument made by defendant’s counsel that defendant’s solicitations were not to be taken seriously.

Defendant also argues that the State implied the jury had a duty to convict defendant because the jury was urged to “send a message” through its verdict. Defendant cites the following portion of comment by one of the assistant State’s Attorneys:

“As members of the jury, as members of our community, neighborhood, you have a duty, a responsibility, to decide the guilt or innocence of somebody. You have a duty to decide and send a message, send a message to him, and when you send a message to him you send a message to the community at large. No, if you have problems, you can’t solve your problems by recruiting fifteen and sixteen year old punks in the neighborhood, or recruiting anybody for that reason to commit crimes.
You can’t ask someone, or tell someone, I want you to kill Uncle Lou and this is how I want you to do it, and this is where you do it and how you do it. You can’t do that. You send a message out. It’s not a defense that someone ran away with his wife. That’s no defense. You send a message and make that message clear that when you do the things Mr. Griffis did, what Mr. Griffis did back in March of ’85, that you have to answer to the law. What you did was wrong. The People of the State of Illinois have proven that through live witnesses, through tape recordings, and you are guilty as charged. I am confident when you use your common sense and your every day experience, that is the only result that you can reach, and I ask you to do that.”

Contrary to defendant’s assertions, we do not believe the above comments could have operated to shift the jury’s focus from the evidence to the message that a guilty verdict would send. Rather, the comments are fairly interpreted as stating that defendant’s conduct constituted criminal conduct and such should not be tolerated.

Defendant next argues that the State disparaged defendant’s counsel by accusing him of employing improper tactics. Defendant cites to the following portion of rebuttal argument, asserting the State, through those comments, attempted to indicate that defendant’s counsel put Louis McMahen on the stand to shift the jury’s focus from the defendant:

“You know, [defendant’s] counsel made several arguments. I’d like to respond to them real quick. *** [H]e read the indictment several times, and I’m glad he did, because from what I heard of his argument, Uncle Lou is on trial and Marilyn Griffis is on trial here. But they’re not. He’s the focus of your attention, James Griffis, whether counsel wants you to focus on him or not. He’s the man that’s charged with these crimes.
Uncle Lou’s lifestyle and Uncle Lou’s morality, and Marilyn Griffis’ lifestyle and her morality, they are not on trial here. This guy is fifty years old. If he wants to go and get involved with some woman, I think he’s old enough to make up his own mind and to what he wants to do. He’s not on trial here for what he did. [The defendant] is on trial.”

Defendant argues the State also insinuated defendant’s counsel acted improperly in impeaching Scott Epley by the following comments:

“[Defense counsel] says Scott Epley testified so that he would get out of his juvenile car theft case. Where’s the evidence of that? WTty didn’t [defense counsel] ask him when he was on the stand? Why didn’t [defense counsel] say [‘] was the State going to do something for you on your car theft case?[’] Why didn’t he ask him that? But instead, [defense counsel would] rather have you guess as to what’s going on instead of presenting evidence. There’s not one bit of evidence on this trial that Scott Epley is going to get any type of consideration whatsoever in [j]uvenile [c]ourt for that car theft case, and that’s the only evidence.
You can guess as to what happened, but you’d be violating your instructions. The instructions are to decide the case on the evidence.
* * *
[Defendant’s counsel] says some other things that apparently accuses Detective Smith of fabricating or conveniently forgetting crucial, crucial evidence. What’s this crucial evidence? That Scott Epley, when he was eleven years old, had some type of adjudication against him in a juvenile court for a battery[?] What does that have to do with this case? Anything? If there’s a reason, [defendant’s counsel] didn’t provide us with one. I don’t know of one. It has nothing to do with it. Another puff of smoke.”

We believe the above comments were invited by defendant’s counsel’s closing statements. In his closing argument, defendant’s counsel argued that Marilyn and Louis McMahen were not credible witnesses. Defendant’s counsel pointed to the fact that McMahen insisted he and Marilyn did not have sexual intercourse prior to their marriage despite evidence that they shared a bedroom for years before the marriage and that Marilyn could not remember when they had, in fact, had intercourse.

Defendant’s counsel similarly invited the comments regarding Epley. Counsel argued to the jury that Epley had a motive to testify because he “might be hoping to get a reduced sentence” in his pending auto theft case. Defendant’s counsel had also informed the jury that Epley had been convicted of battery as a juvenile.

Last, defendant argues the following comments were an improper attack on defendant’s credibility and were not based on the evidence:

“When the defendant takes the stand and testifies, ladies and gentleman, I ask you to view his testimony as you view all other witnesses. What does he have to gain? What does he have to lose? As he takes that witness stand he has the most to gain and the most to lose. Who has the motive to lie here? Who has the motive to squirm up there when he’s asked direct questions and he doesn’t give direct answers?”

We do not interpret the above comments to represent an improper attack on defendant’s credibility. Rather, the comments suggested to the jury that defendant’s testimony should be considered in the same light as any other individual’s testimony.

Because we do not conclude any of the above comments are of such magnitude as to have denied defendant a fair trial, we find no reason to disturb defendant’s convictions for that reason.

The next issue raised by defendant concerns whether the trial judge improperly admitted Marilyn’s testimony that she left defendant because he repeatedly beat her. Defendant argues that testimony was irrelevant to the crimes charged and its admission was prejudicial. Again, defendant concedes he failed to properly preserve the issue for review, but urges the court to consider the argument under the plain error rule.

The record indicates that immediately after that testimony was elicited, the trial judge called a side bar and inquired as to the relevancy of the testimony. The trial judge sustained defense counsel’s, objection, made during the side bar, to admit into evidence photographs of Marilyn, which apparently showed evidence of the beatings. The record indicates defendant’s counsel made no objection to the testimony itself during the side bar.

Nevertheless, the testimony itself was proper to the extent it was in response to testimony elicited by defendant’s counsel in the cross-examination of Ruth Panzica that defendant loved his wife and that the reason she left him was because of defendant’s mental condition.

Defendant last argues that his sentences should be reduced. Defendant was sentenced to concurrent prison terms of 11 years for solicitation to commit murder and three years for each of the offenses of solicitation to commit robbery, solicitation to commit arson, and solicitation to commit aggravated battery.

Defendant contends, generally, his sentences were excessive in light of his age, the absence of a criminal record, save for a misdemeanor conviction for battery, and because, shortly before his arrest, defendant was a skilled worker with a steady record of employment. Defendant also urges the court to note the deterioration of defendant’s mental condition in the months preceding his arrest.

In the absence of an abuse of discretion by the trial court, we have no basis upon which to disturb the sentences imposed (People v. La Pointe (1981), 88 Ill. 2d 482, 431 N.E.2d 344), and must decline to substitute our own judgment of what we might consider more appropriate sentences. We note the sentence imposed was well within the maximum terms of imprisonment provided by statute for each of the offenses for which defendant was convicted (see Ill. Rev. Stat. 1985, ch. 38, pars. 8—1, 12—4, 18—1, 20—1, 1005—8—1). And, although the circumstances noted by defendant are certainly important mitigating factors, we cannot conclude those circumstances establish that the sentences imposed constituted an abuse of discretion.

Affirmed.

MURRAY and GORDON, JJ., concur