text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID BATES, Defendant-Appellant.
    First District (3rd Division)
    No. 1-88-2377
    Opinion filed August 7, 1991.

      James Chadd, of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, William Pistorius, and Steven Klacyznski, Assistant State’s Attorneys, of counsel), for the People.

       Justice White participated in this opinion prior to his retirement.

   JUSTICE RIZZI

delivered the opinion of the court:

Defendant David Bates and his codefendant Gregory Banks were charged with the murder and armed robbery of Leon Barkan, and the attempted murder and aggravated battery of Jeltro Givens. Both defendants filed pretrial motions to quash arrest and suppress evidence. The court denied both defendants’ motions. Banks was tried by a jury and found guilty of the murder and armed robbery of Barkan and the aggravated battery of Givens. The court sentenced him to concurrent terms of 50 years on the murder conviction, 30 years on the armed robbery conviction, and 10 years on the aggravated battery conviction. Banks’ conviction was subsequently reversed on appeal and the cause remanded for a new trial because this court found that his confession was procured through police brutality and racial intimidation. (People v. Banks (1989), 192 Ill. App. 3d 986, 549 N.E.2d 700.) In a contemporaneous, but separate, bench trial, the court found Bates guilty of the murder and armed robbery of Leon Barkan and the attempted murder and aggravated battery of Jeltro Givens. He was subsequently sentenced to serve concurrent sentences of 20 years on the murder charge, 10 years on the attempted murder charge and 10 years on the armed robbery charge. On appeal, defendant Bates argues that the trial court erred in denying his motions to quash arrest and suppress statements. We remand with directions.

At the hearing on defendant’s motions, the following evidence was presented. Chicago police detective Edmund Leracz testified that on October 29, 1983, he received an assignment from Sergeant John Byrne to go to 9614 South Wentworth to arrest defendant. Leracz did not review the police reports in the case and was not familiar with the police investigation. At approximately 8 a.m. that morning, Chicago police detectives Leracz, Bird and Lacy went to defendant’s home. When the officers arrived they knocked, asked for defendant and were admitted by a woman and directed to the basement of the home, where defendant was sleeping. Leracz testified that he told defendant that he was under arrest and that he would have to come with them. After defendant was dressed, the officers took him to Area Two police headquarters. Leracz did not read defendant his rights.

Detective Leonard Bajenski testified that he interviewed defendant at approximately 11 a.m. on October 29, 1983. While defendant was handcuffed to a ring on the wall of the detention cell, Bajenski read him his Miranda rights and questioned him for approximately 5 to 10 minutes. Bajenski did not interview defendant again during his detention, and he testified that he did not strike or observe any other officer strike defendant.

Detectives Bryne and Grunhard testified that they did not participate in the interrogation of defendant. In fact, according to the police testimony, no one talked with defendant again until 12 a.m. the following day. Detective Robert Dwyer testified that at approximately 12:15 a.m. on October 30, 1983, he spoke with defendant in an interview room at Area Two headquarters. He testified that he read defendant his Miranda rights and that defendant indicated that he understood them. According to Dwyer, the conversation lasted approximately 20 to 30 minutes. Later, at around 2:15 a.m., Dwyer interviewed defendant along with Assistant State’s Attorney Bas-tounes. Bastounes read defendant his Miranda rights again, and defendant gave a. court-reported statement to Bastounes and Dwyer at approximately 3:40 a.m. Dwyer testified he never struck or observed anyone else strike, threaten or make promises to defendant. Assistant State’s Attorney Bastounes’ testimony essentially corroborated Dwyer’s.

Defendant, age 19 at the time of his arrest, testified that on the morning of his arrest he was asleep in his bedroom, located in the basement of his family’s home, when police officers entered his room, woke him up and handcuffed him. When they reached police headquarters, defendant was placed in a small interrogation room where he was handcuffed to the wall or with his hands behind his back while interrogated on and off over a period of two days. Defendant testified that during this time period the police failed to advise him of his constitutional rights. He further testified that he was repeatedly interrogated by Sergeant Byrne and Detective Grunhard. Defendant testified that these two police officers interrogated and tortured him four or five separate times during the day of October 29. He testified that they punched him in the stomach with closed fists and slapped him in the face. Defendant testified that this treatment continued until he hollered or pretended to lose consciousness.

Defendant testified that Bryne and Grunhard also placed a plastic bag over his head and pulled it until the air was cut off and he nearly passed out. He testified that at one point, one officer punched him in the stomach while the other held a bag over his head. He further testified that the officers told him, “[t]hat’s okay, we’ll take care of you on the graveyard shift. We’re gonna take you outside in the forest or somewhere over there where we can do what we want to. You’ll say something then.” Defendant testified that following another torture session involving the plastic bag and punches to his stomach, another officer told him that if he cooperated, he would get probation or be let loose. He further testified that the officers notified him that if he did not give a statement, Byrne and Grunhard were going to take him out to the forest. Defendant then agreed to give a statement and was taken to another room where he made a court-reported admission.

Clarence Burch testified that on October 30, 1983, he was defendant’s attorney. He testified that on that date, he went to Area Two headquarters to see defendant. Defendant told Burch that he gave the police a statement because the police had put a plastic bag over his head and tightened it around his neck. According to Mr. Burch, defendant showed him a small abrasion on his neck and told him that he had contusions on his chest and stomach.

A stipulation was entered that Lee Holmes would testify that on September 10, 1982, he was interrogated at Area Two by four detectives, including Bryne and Dignan. Mr. Holmes would testify that he was beaten with a flashlight and tortured with a plastic bag held over his head. Mr. Holmes received medical treatment for his injuries and filed a complaint with the Office of Professional Standards against Byrne and Dignan. Following the hearing, the court denied defendant’s motions to quash arrest and suppress statements. Defendant’s statement was subsequently admitted into evidence at trial.

On appeal, defendant does not challenge the sufficiency of the evidence, so we will not set out the underlying facts of this case. Following the court’s finding of guilt and sentence, this appeal followed.

Defendant’s sole contention on appeal is that the trial court erred in denying his motion to quash arrest and suppress statements. Defendant first argues that the trial court should have granted his motion to quash arrest because the police did not have probable cause to arrest him.

The State first responds that defendant has waived his objection to the alleged lack of probable cause to arrest him where he failed to raise it in his motion to quash arrest. Where the contention that a defendant was arrested without probable cause is not made in a motion to suppress during trial, or in a post-trial motion, and the issue is raised for the first time on appeal, the claim of error is waived. People v. Accardo (1985), 139 Ill. App. 3d 813, 816, 487 N.E.2d 664, 666.

Here, defendant’s motion to quash arrest clearly raised the issue of probable cause to arrest where the motion provided in part: We find as a matter of law that defendant’s motion to quash arrest sufficiently raised at the trial level and preserved for appellate review the question of whether the police lacked probable cause to arrest him.

“In support of this motion the [defendant asserts: (4) That the arrest of the [petitioner was made without authority of a valid search or arrest warrant. (5)(a) The conduct of the petitioner prior to his arrest was not such as was reasonably interpreted by the arresting officers as constituting probable cause that the petitioner had committed or was about to commit a crime, (b) At the time of the arrest, the petitioner was not violating any law. (c) There existed no exigent circumstances. *** (7) That the alleged victim, *** provided a physical description of his assailants as ‘Two males of unknown description.’ ”

We next decide whether the evidence adduced at the pretrial hearing and at trial provided sufficient probable cause to support defendant’s arrest.

To meet its burden of establishing probable cause for an arrest, the State must show that the facts and circumstances within the arresting officer’s knowledge are sufficient to warrant a man of reasonable caution to believe that an offense has been committed and that the arrestee has committed the offense. The probable cause determination is a commonsense, practical question to be determined by the totality of the circumstances. Illinois v. Gates (1983), 462 U.S. 213, 231-32, 76 L. Ed. 2d 527, 544, 103 S. Ct. 2317, 2328-29.

This standard seeks to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. It also seeks to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. (Brinegar v. United States (1949), 338 U.S. 160, 176, 93 L. Ed. 1879, 1891, 69 S. Ct. 1302, 1311.) An arrest is not unlawful merely because the information on which it is based is wrong. The police have probable cause if they believe, with reason, that their informant was telling the truth. McKinney v. George (7th Cir. 1984), 726 F.2d 1183, 1187.

Once the defendant has made a prima facie case that the police lacked probable cause (i.e., by evidence that the police had no warrant, and that defendant was doing nothing unusual at the time of his arrest), the burden of going forward -with evidence to demonstrate the legal justification for the search shifts to the State. (People v. Broge (1987), 159 Ill. App. 3d 127, 140, 511 N.E.2d 1321, 1329.) When examining the probable cause ruling on review, a reviewing court will not disturb the trial court’s finding unless manifestly erroneous and it may consider any evidence adduced at trial which assists in establishing the legality of the arrest. People v. Mackey (1990), 207 Ill. App. 3d 839, 858, 566 N.E.2d 449, 460.

Defendant argues that the State failed to introduce any evidence during either the hearing on the motions to quash arrest and suppress statements or at trial which demonstrated that the police had probable cause to arrest him. The State concedes that evidence of sufficient probable cause to arrest is absent from the record and contends that this case should be remanded for an additional probable cause hearing. The State argues that an additional hearing is required in order to demonstrate that, although arresting officer Leracz was not familiar with the details of the crime or of the offender’s description, Sergeant Byrne and Detective Dignan possessed information obtained from codefendant Banks which provided sufficient probable cause to support Bates’ arrest. In fact, defendant Banks’ statement, which has been suppressed by this court, named Bates as an alleged participant in the charged offenses. However, Banks’ statement was not introduced into evidence during Bates’ separate, but contemporaneous, pretrial hearing or trial.

The State argues that Banks’ statement would have provided sufficient probable cause for defendant’s arrest. However, the State failed to present evidence on the issue of probable cause. At the pretrial hearing, the State’s only mention of police probable cause to arrest Bates was in rebuttal argument following the hearing on the pretrial motions. At that hearing, the following argument was made:

“ASSISTANT STATE’S ATTORNEY: Judge, first of all, as to the Defendant Bates on the motion to quash, whether or not Detective Leracz had consent to enter and place Defendant Bates under arrest is a matter of credibility. You heard the officer testify that he did, in fact, have the consent to enter. Whether or not he had probable cause to make the arrest is another matter. In fact, he did, judge. He had the co-defendant, Banks, give up Bates. What more probable cause can an officer have than one co-defendant naming another?
DEFENSE ATTORNEY: Objection. That was not the testimony. The officer said that he did not even read the reports. He was just told to arrest him.
THE COURT: Let’s proceed. This is argument.”

The State’s argument that Banks’ statement “giving up” Bates was sufficient probable cause to support arrest was clearly inappropriate argument since it was not based on the evidence adduced at the hearing. No one testified that Bates was arrested based on Banks’ statement, although that inference can be gleaned from the copy of Banks’ court-reported statement which was subsequently introduced at Banks’ trial. Since the State had every opportunity to present evidence and, based on rebuttal argument, knew that probable cause to arrest was at issue, its failure to elicit testimony in support of its position was apparently made knowingly. Therefore, the State will not be allowed to establish at the appellate level what it failed to do at the trial level, and remand for an additional probable cause hearing in order to elicit additional testimony from Sergeant Bryne and Detective Dignan, who were available and testified at the pretrial hearing, is denied. See People v. Adams (1989), 131 Ill. 2d 387, 395, 546 N.E.2d 561, 564-65.

The State’s failure to introduce any evidence of probable cause to arrest at the hearing, combined with the fact that the only evidence available — i.e., Banks’ statement — which was not introduced in evidence at Bates’ pretrial hearing or trial and has now been suppressed by this court, leads us to but one conclusion. The trial court erred in denying defendant’s motion to quash arrest. The State had notice that defendant challenged the police’s probable cause for his arrest. However, despite this fact, the State failed to elicit any evidence which demonstrated that they had probable cause to arrest defendant. Additionally, assuming arguendo that the coerced inculpatory statement of a detained criminal codefendant would have been admissible, it was not sufficiently reliable or corroborated to provide probable cause for Bates’ arrest.

While the police are allowed to make reasonable mistakes and do not lack probable cause to arrest if they reasonably believe the statement of an informant which later proves to be incorrect, the police cannot claim that they reasonably believed that a forcibly obtained confession was either reliable or true. In addition, it would be inappropriate to reward flagrantly illegal police activity by allowing the use of a coerced statement as probable cause for a subsequent arrest.

Here, the evidence adduced demonstrated that the surviving victim did not see the offenders’ faces. The officer who arrested Bates testified that he was not familiar with the investigation and that he arrested defendant on orders from Sergeant John Byrne. Sergeant Byrne did not testify regarding his involvement in Bates’ arrest. Further, both Byrne and Dignan denied any involvement in defendant Bates’ interrogation. No testimony was elicited regarding the basis of Byrne’s order to Lecracz to arrest Bates. Further, throughout the hearing and trial, no one testified as to why defendant was arrested. There was clearly no admissible evidence upon which the trial court could base its finding that the police had probable cause to arrest defendant. The State failed to rebut defendant’s prima facie showing that his arrest was illegal. Thus, the trial court’s finding that the State had probable cause to arrest defendant is manifestly erroneous.

Additionally, assuming arguendo that the State had introduced evidence that Bates was arrested on the basis of Banks’ statement, we would still find that the police lacked probable cause to arrest Bates because they could not have reasonably believed that a forcibly coerced statement was reliable.

Violation of another person’s fifth amendment rights may rise to the level of a violation of defendant’s right to a fair trial. (United States v. Chiavola (7th Cir. 1984), 744 F.2d 1271, 1273.) Due process is implicated when the government seeks a conviction through use of evidence obtained by extreme coercion or torture. (Chiavola, 744 F.2d at 1273.) Here, the State’s attempted use of a coerced statement to support police probable cause for the arrest of Bates is inappropriate and violative of defendant’s right to a fair trial. The State’s contention that the statement was corroborated by evidence retrieved as a result of Banks’ statement is without merit where the evidence obtained failed to directly link Bates to the commission of the crime. This case is clearly distinguishable from People v. James (1987), 118 Ill. 2d 214, 514 N.E.2d 998, where there was no evidence in that case that the co-offender’s inculpatory statement was forcibly coerced. Accordingly, the trial court’s order denying Bates’ motion to quash arrest is reversed and his motion to quash arrest is granted.

The next issue for consideration is whether defendant’s subsequent statement was sufficiently attenuated from the taint of his illegal arrest and sufficiently an act of his own free will to permit its admission and use as substantive evidence.

The defendant argues that the State failed to meet its burden of showing that defendant’s statements were an act of free will that purged the taint of the illegal arrest. The State contends that the evidence demonstrates that defendant’s confession was the product of free will sufficient to purge the primary taint. The State further contends that although the record does not demonstrate evidence of intervening circumstances, this absence was the result of the fact that the State won the motion to quash arrest and suppress statements. The State therefore urges this court to remand for an additional attenuation hearing if it finds the intervening circumstances factor to be important to its determination.

The determination that an illegal arrest has occurred is not dispositive of the issue of the admissibility of a subsequent confession. (People v. Foskey (1990), 136 Ill. 2d 66, 85, 554 N.E.2d 192, 201.) The relevant inquiry is whether the confession was obtained by exploitation of the illegality of the arrest. (Brown v. Illinois (1975), 422 U.S. 590, 600, 45 L. Ed. 2d 416, 425, 95 S. Ct. 2254, 2260.) Evidence ob-tamed after an illegal arrest need not be suppressed if such evidence was obtained by means sufficiently distinguishable to be purged of the primary taint. People v. White (1987), 117 Ill. 2d 194, 222, 512 N.E.2d 677, 687; Wong Sun v. United States (1963), 371 U.S. 471, 487-88, 9 L. Ed. 2d 441, 455, 83 S. Ct. 407, 417.

Under Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, factors to be considered in determining whether a confession was the product of the illegal arrest are: (1) the proximity in time between the arrest and the confession; (2) the presence of intervening circumstances; (3) the purpose and flagrancy of the police misconduct; and (4) whether Miranda warnings were given. (422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62.) The burden of showing redeeming attenuation as to evidence obtained through an illegal arrest is on the prosecution. White, 117 Ill. 2d at 222; Foskey, 136 Ill. 2d at 86.

The threshold requirement of voluntariness was satisfied as discussed below. We find that defendant was given his Miranda warnings on several separate occasions and that his statement was not coerced.

Here, the key question is whether a causal connection exists between defendant’s illegal arrest at 8 a.m. on October 29, and his statement made at 3:40 a.m. on October 30, 1983. The Brown decision’s focus on the causal connection between the illegality and the confession reflects the two policies behind the use of the exclusionary rule to effectuate the fourth amendment. When there is a close causal connection between the illegal seizure and the confession, not only is exclusion of the evidence more likely to deter similar police misconduct in the future, but use of the evidence is more likely to compromise the integrity of the courts. Dunaway v. New York (1979), 442 U.S. 200, 217-18, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259.

Here, however, the trial court was not presented with the attenuation issue. We therefore remand this matter for the trial court’s determination of whether sufficient attenuation exists to purge the statements made by defendant from the taint of his illegal arrest. (See People v. Vega (1990), 203 Ill. App. 3d 33, 44, 560 N.E.2d 983, 991.) If the court finds such attenuation, it is directed to reinstate the judgment of conviction. If the court finds no such attenuation, it is directed to suppress the statements and to conduct further proceedings consistent with this opinion. See People v. Beamon (1991), 213 Ill. App. 3d 410, 426-27, 572 N.E.2d 1011, 1022-23.

Defendant next argues that the trial court erred in denying his motion to suppress his statements. Defendant contends that his statement was coerced through the use of physical torture.

The State bears the burden of establishing by a preponderance of the evidence that a confession is voluntary. (People v. Caballero (1984), 102 Ill. 2d 23, 33, 464 N.E.2d 223, 227.) The trial court’s findings will not be reversed unless they are against the manifest weight of the evidence. (Caballero, 102 Ill. 2d at 33.) In determining whether a confession has been voluntarily given, courts have utilized the tests of whether, considering the totality of the circumstances, the confession is found to have been made freely and voluntarily without compulsion, or whether the defendant’s will was overborne at the time he confessed so as not to be the product of rational intellect and free will. (People v. Prude (1977), 66 Ill. 2d 470, 475, 363 N.E.2d 371, 373; People v. O’Leary (1970), 45 Ill. 2d 122, 125, 257 N.E.2d 112, 114.) On review, the trial court’s decision will not be reversed absent an abuse of discretion. People v. Mackey (1990), 207 Ill. App. 3d 839, 860, 566 N.E.2d 449, 462.

Defendant contends that his statement was procured through police brutality. Specifically, he testified that Sergeant Byrne and Detective Grunhard beat and tortured him on four to five separate occasions on October 29, 1983. In addition, defendant’s attorney on the day of his arrest testified that at approximately 10:30 p.m. on October 30, he interviewed defendant at Area Two police headquarters. Defendant told him that he gave a statement to the police because a plastic bag had been placed over his head and tightened. Attorney Burch also testified that he observed a small abrasion on defendant’s neck. However, defendant failed to introduce any additional evidence to corroborate his claim of coercion. Here, unlike in Banks, there was no corroborative medical evidence of physical injuries, and no indication that defendant made a prompt outcry to other police personnel. Under these circumstances, we cannot find as a matter of law that the trial court’s findings are against the manifest weight of the evidence.

The State’s evidence which consisted of the testimony of five police officers and an assistant State’s Attorney who all testified that defendant was given his Miranda warnings on numerous occasions and that they did not strike or coerce or observe anyone else strike or coerce defendant was sufficient to meet the State’s burden of establishing the voluntariness of defendant’s statement by a preponderance of the evidence. Defendant’s testimony and evidence failed to adequately rebut the State’s case. We therefore conclude that the trial court did not err in denying defendant’s motion to suppress his statement as involuntarily given.

Accordingly, we affirm the order of the circuit court which denied defendant’s motion to suppress statements on the basis of voluntariness; reverse the order which denied his motion to quash arrest; and remand this matter for an attenuation hearing and further proceedings in accordance with this opinion.

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

CERDA, P.J., and WHITE, J., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. N L INDUSTRIES, INC., et al., Defendants-Appellees.
    First District (3rd Division)
    No. 1-89-1148
    Opinion filed August 7, 1991.

      John M. O’Malley, State’s Attorney, of Chicago (Mercer Cook, Eric Dun-ham, and Jennifer A. Whitfield, Assistant State’s Attorneys, of counsel), for the People.
    Altheimer & Gray, of Chicago, for appellee Cole Taylor Bank.
    Larry G. Stone, of Chicago, for appellee M & T Enterprises, Inc.
    Feiwell, Galper & Lasky, of Chicago, for appellee American National Bank.
    Robert J. Zaideman, of Chicago, and Robin Rosenberg and Daniel Riesel, both of New York, New York, for appellee N L Industries, Inc.
    Kwiatt & Silverman, of Chicago (Scott E. Tuckman, of counsel), for ap-pellees ARTRA Group, Inc., John J. Harvey, and Peter R. Harvey.
    Bell, Boyd & Lloyd, of Chicago, for appellee Goodwill Industries of Chicago and Cook County, Illinois.
    Gloria Schaffer, of Chicago, for appellee Martin S. Bieber.

       Justice White participated in this opinion prior to his retirement.

   JUSTICE RIZZI

delivered the opinion of the court;

Plaintiff People of the State of Illinois brought this action seeking compensatory and punitive damages, civil fines, and attorney fees pursuant to the Illinois Environmental Protection Act (Act) (HI. Rev. Stat. 1989, ch. HV-k, par. 1001 et seq.) against defendants NL Industries, Inc., ARTRA Group, Inc., John J. Harvey, Peter R. Harvey, American National Bank as trustee under trust Nos. 48495 and 55976, John Heck-ens, Goodwill Industries of Chicago and Cook County, La Salle National Bank as trustee under trust No. 105679, M & T Enterprises, Inc., Lavon Tarr, Martin S. Bieber, Randall Polk, individually and d/b/a Wrip Wrecking Company, and Cole Taylor Bank as trustee under trust No. 84141, all of which were alleged to have owned and/or operated the “Dutch Boy” paint-producing facility located at 12054 South Peoria Avenue, Chicago, Illinois (Site). Defendants moved to dismiss plaintiff’s complaint, alleging that the circuit court did not have jurisdiction over the subject matter of plaintiff’s action because the Illinois Pollution Control Board (PCB) has exclusive original jurisdiction to adjudicate issues relating to monetary damages under the Act.

The trial court dismissed the action on the grounds that the circuit court did not have original subject matter jurisdiction over the claims asserted in plaintiff’s complaint and that the claims should have been brought before the PCB. We affirm.

Beginning in 1986, the Illinois Environmental Protection Agency (IEPA) undertook an extensive investigation of the release of hazardous substances at the Site. The IEPA engaged in significant analyses of the Site, made administrative determinations to clean up the Site, and identified various potentially responsible parties. Because of the perceived threat of the release of hazardous substances, the IEPA issued a record of decision in which it found that immediate removal of the hazardous materials from the Site was necessary to mitigate any risk of harm to both human health and the environment. The IEPA thereafter issued cost recovery notices pursuant to section 4(q) of the Act to each of the defendants for recovery of the costs of the removal/remedial action incurred by the IEPA. HI. Rev. Stat. 1989, ch. 111V2, par. 1004(g).

On December 28, 1988, the State’s Attorney, on behalf of the People of the State of Illinois, filed this civil action in the circuit court seeking compensatory damages for recovery of the estimated $3 million expended by the IEPA in the cleanup of the Site, civil penalties, attorney fees, and punitive damages arising out of the alleged violations of the Act.

Specifically, the complaint alleges that defendant N L Industries, Inc., manufactured paint and lead products at the Site since before 1930 until 1976, and that during its ownership, quantities of hazardous substances were caused to be manufactured, stored, transported, used, released, discarded, and disposed of in the air, beneath and upon the ground of the Site. The other defendants were all subsequent title holders of the Site who allegedly failed to adequately store and dispose of the hazardous substances.

On January 10, 1989, defendant ARTRA Group, Inc. (ARTRA), moved to dismiss the complaint, contending that plaintiff had failed to exhaust its administrative remedies before the PCB and that the circuit court did not have subject matter jurisdiction to hear the action. On April 7, 1989, the trial court issued an order dismissing the complaint as to ARTRA, concluding that the PCB, not the circuit court, had primary and exclusive jurisdiction to hear the action. On April 21, 1989, the trial court issued an order dismissing the remaining defendants for the same reasons set forth in the April 7, 1989, order. It is from this dismissal that plaintiff appeals.

The Illinois Constitution grants the circuit courts original jurisdiction for all justiciable matters, with some exceptions where jurisdiction lies exclusively in the supreme court. (Ill. Const. 1970, art. VI, §9.) While the legislature has no power to limit or preclude the courts’ constitutional jurisdiction to hear a matter, when the legislature creates a right having no counterpart in common law or equity, the legislature may limit the courts’ jurisdiction to hear a matter involving that right since the legislature itself has created the right and the justiciable matter in enacting the statute. See Skilling v. Skilling (1982), 104 Ill. App. 3d 213, 219, 432 N.E.2d 881, 886; DeKing v. Urban Investment & Development Co. (1987), 155 Ill. App. 3d 594, 596-97, 508 N.E.2d 377, 379.

In the present case, it is undisputed that the Act provides concurrent original jurisdiction to the PCB and the circuit courts for certain forms of injunctive relief. (Ill. Rev. Stat. 1989, ch. llV-k, pars. 1042(e), 1043(a).) The plain language of the statute allows the State’s Attorney or the Attorney General to “institute a civil action for an injunction to restrain violations of this Act” or in cases of substantial danger to the environment or the public welfare to “institute a civil action for an immediate injunction to halt any *** activity causing or contributing to the danger or to require such other action as may be necessary.” (HI. Rev. Stat. 1989, ch. HV-k, pars. 1042(e), 1043(a).) There is no language in the Act, however, that permits the State’s Attorney or the Attorney General to initiate civil actions in the circuit courts for any other type of relief against alleged violators of the Act. Moreover, there is no law in Illinois outside the Act that permits such actions for violations of the Act to be initiated in the circuit courts. See Village of South Elgin v. Waste Management of Illinois, Inc. (1978), 62 Ill. App. 3d 815, 379 N.E.2d 349; Currie, Enforcement Under the Illinois Pollution Law, 70 N.W. L. Rev. 389, 445 (1976).

Under the circumstances, we conclude that with the exception of in-junctive relief as provided by the Act, all relief for violations of the Act must first be sought from the PCB. We therefore hold that the circuit court did not have original jurisdiction to grant the relief sought by the plaintiffs in this case.

Accordingly, the order dismissing the action is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.


text:
    WEST CHICAGO SCHOOL DISTRICT No. 33, Petitioner-Appellant, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents-Appellees.
    First District (3rd Division)
    No. 1-89-1429
    Opinion filed August 7, 1991.

      Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Chicago (Fred B. Lifton and Michael J. Foley, of counsel), for petitioner.
    Roland W. Burris, Attorney General, of Springfield (William D. Frazier, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Winston & Strawn, of Chicago (Gregory J. Malovance and Rex L. Sessions, of counsel), for respondent Elementary Teachers’ Association of West Chicago.

       Justice White participated in this opinion prior to his retirement.

   JUSTICE RIZZI

delivered the opinion of the court:

Petitioner West Chicago School District No. 33 (School District) appeals on direct administrative review from an order of respondent Illinois Educational Labor Relations Board (IELRB) holding that School District violated sections 14(a)(1) and 14(a)(5) of the Illinois Educational Labor Relations Act (Ill. Rev. Stat. 1987, ch. 48, par. 1701 et seq.) by refusing to bargain in good faith over changes in teacher compensation, workload, and preparation time. On review, School District contends that the IELRB erred when it concluded that (1) School District’s actions constituted changes in mandatory subjects of bar-gaming; and (2) respondent Elementary Teachers’ Association of West Chicago, IEA-NEA (Association), did not waive its right to bargain over the subjects in issue. We affirm.

Association is the exclusive bargaining representative of a unit of professional certificated personnel employed by School District. School District and Association have been parties to nine collective bargaining agreements from 1972 through 1989. Beginning in the spring of 1986, School District imposed various changes in the terms and conditions of employment of represented teachers, including the establishment of eight in-service training days, the addition of certain classes to the following school year’s schedule, and changes in the compensation provided for curriculum writing, summer school teaching, test scoring, and membership in the “Building Leadership Team” and “Science of Teaching” Cadre.

Association demanded to bargain with School District regarding the various changes instituted by School District’s board, but School District refused to bargain on any of these subjects, asserting that Association had waived its right to bargain during the term of the parties’ collective bargaining agreement pursuant to Articles XV(A) and (E) of that agreement. In the fall of 1986, additional changes were instituted by School District, including the addition of certain classes and a decrease in the teachers’ class planning time. Again, Association issued a demand to bargain with School District, and School District again refused.

On September 5, 1986, Association filed unfair labor practice charge No. 86 — CA—0061—C against School District with the IELRB, alleging that School District had violated sections 14(a)(1) and 14(a)(5) of the Educational Labor Relations Act (Act) by failing to bargain with Association regarding the various changes unilaterally instituted by School District. (Ill. Rev. Stat. 1987, ch. 48, pars. 14(a)(1), (a)(5).) On February 13, 1987, Association filed unfair labor practice charge No. 87 — CA—0002—C with the IELRB, alleging that School District had violated sections 14(a)(1) and 14(a)(5) of the Act by refusing to bargain in good faith over changes in working conditions. Ill. Rev. Stat. 1987, ch. 48, pars. 14(a)(1), (a)(5).

On July 10, 1987, the IELRB issued a complaint in case No. 87— CA — 0002—C. School District filed a timely answer to the complaint. On August 13, 1987, the IELRB issued a complaint in case No. 86— CA — 0061—C, and consolidated it with case No. 87 — CA—0002—C. School District did not file an answer to this complaint.

At a hearing held on October 5, 1987, the hearing officer concluded that School District’s failure to file a timely answer to the complaint in case No. 86 — CA—0061—C constituted an admission of all material facts contained within the complaint. On October 8, 1987, the hearing officer certified that there were no determinative issues of fact that required his recommended decision and ordered the matter removed to the IELRB for decision.

On May 2, 1989, the IELRB ruled that School District had violated sections 14(a)(1) and 14(a)(5) of the Act by refusing to bargain in good faith over the changes unilaterally instituted by School District. In so ruling, the IELRB held that the changes in question constituted mandatory subjects of bargaining, and that the parties had not waived the right to further bargaining by the terms and conditions of their collective bargaining agreement. On June 2, 1989, School District appealed directly to this court from the May 2,1989, order.

Before addressing the merits of this case, we must first determine whether this court has jurisdiction to consider this appeal. School District filed its petition for review on June 2, 1989, 31 days after the IELRB’s decision. The IELRB contends that this court is without jurisdiction to hear this appeal because School District filed its petition for review after the 30-day filing period promulgated by Supreme Court Rule 303(a) (134 Ill. 2d R. 303).

The IELRB cites County of Cook v. Illinois Local Labor Relations Board (1989), 189 Ill. App. 3d 1057, 1059-62, 551 N.E.2d 229, 231-32, where the first district held that the 30-day filing period set forth in Supreme Court Rule 303(a) governed direct appellate court review of IELRB orders, rather than the 35-day filing period set forth in section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 103). Recently, the first district in Central City Education Association v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 559, 563, 557 N.E.2d 418, 421, and the fourth district in Board of Regents of Regency Universities v. Illinois Educational Labor Relations Board (1991), 208 Ill. App. 3d 220, 228-29, 566 N.E.2d 963, 969, held that a petition for review filed within 35 days after an IELRB order was issued was timely filed on the grounds that the appellant should not be penalized for relying upon recent decisions which either implicitly suggested or expressly held that the 35-day filing period in the Administrative Review Law is applicable for review of administrative agency decisions. (See American Federation of State, County & Municipal Employees, Council 31 v. State Labor Relations Board (4th Dist. 1990), 196 Ill. App. 3d 238, 553 N.E.2d 415; Board of Education of Jacksonville, School District No. 117 v. Illinois Educational Labor Relations Board (4th Dist. 1989), 183 Ill. App. 3d 972, 539 N.E.2d 882; Hardin County Educational Association v. Illinois Educational Labor Relations Board (4th Dist. 1988), 174 Ill. App. 3d 168, 528 N.E.2d 737; City of Benton Police Department v. Human Rights Comm’n (5th Dist. 1986), 147 Ill. App. 3d 7, 497 N.E.2d 876.) Petitions for leave to appeal were granted by the Illinois Supreme Court for both Cermak and Central City, and both cases have been taken under advisement. County of Cook, 131 Ill. 2d 558, 553 N.E.2d 394 (argued November 28, 1990); Central City, 133 Ill. 2d 553, 561 N.E.2d 687 (argued March 20, 1991).

Under the circumstances, we see no reason to again express the reasons stated in recent appellate court opinions whether the 30-day or 35-day filing period should apply for direct appellate review of administrative agency decisions. We believe it is sufficient to merely state our conclusion that we have jurisdiction to decide the merits of this appeal.

School District’s first contention on review is that the IELRB erred when it concluded that School District’s actions constituted changes in subjects requiring mandatory bargaining. School District argues that any actions that it took as employer were actions that maintained the status quo, and should not be considered changes at all. Accordingly, School District contends that maintaining the status quo did not require mandatory bargaining under the Act. We disagree.

A respondent to an unfair labor practice complaint must file an answer within 15 days after service of the complaint, and any failure to file a timely answer will be deemed to be an admission to the material facts in the complaint. (13 Ill. Reg. § 1120.30(d) (1989).) School District, by virtue of its failure to answer the complaint in case No. 86 — CA—0061—C, has admitted that the instituted changes did not maintain the status quo. Then, the issue remains as to whether those changes involved subjects requiring mandatory bargaining.

In Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 536 N.E.2d 743, the appellate court affirmed the IELRB’s adoption of a balancing test to determine whether an action taken by an employer involves a mandatory subject of bargaining. The balancing test is essentially a three-part test.

Section 10(a) of the Act provides that changes affecting wages, hours, or terms and conditions of employment are mandatory topics of collective bargaining. (Ill. Rev. Stat. 1987, ch. 48, par. 1710(a).) Part I of the balancing test determines whether the action taken by the employer directly or indirectly involves one of the mandatory subjects of bargaining set forth in section 10(a) of the Act.

Section 4 of the Act specifically denotes that employers do not have to bargain over matters of inherent managerial policy, which the Act enumerates to include such areas of discretion or policy as the functions of the employer, standards of services, its overall budget, the organizational structure and selection of new employees and direction of employees. (Ill. Rev. Stat. 1987, ch. 48, par. 1704.) Part II of the balancing test determines whether the action taken by the employer is a matter of inherent managerial policy as defined in section 4 of the Act.

Part III of the balancing test applies only if the action taken by the employer involves both a mandatory subject of bargaining under part I of the test and a matter of inherent managerial policy under part II of the test. If both a section 10 employee right and a section 4 employer right exist, then the IELRB must balance the employees’ right to bargain with the policy of protecting the employers’ inherent managerial rights and determine whose interests are more at risk. See Decatur Board of Education, 180 Ill. App. 3d at 773-77, 536 N.E.2d at 745-48; see also American Federation of State, County & Municipal Employees v. Illinois State Labor Relations Board (1989), 190 Ill. App. 3d 259, 546 N.E.2d 687 (AFSCME); accord Board of Education, LeRoy Community Unit School District No. 2 v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 347, 556 N.E.2d 857.

The IELRB applied the three-part test to the actions taken by School District. Applying part I, the IELRB determined that the unilateral changes instituted by School District constituted changes in subjects requiring mandatory bargaining as defined in section 10(a) of the Act. This finding is not contrary to the manifest weight of the evidence. The establishment of in-service days, addition of certain classes to the schedule, and pay adjustments for extracurricular activities all clearly fall within the definition of “wages, hours and terms and conditions of employment” set forth in section 10(a) of the Act.

Applying part II of the balancing test, the IELRB concluded that the changes instituted by School District were not changes which involved an inherent managerial right as defined under section 4 of the Act. This finding is also not contrary to the manifest weight of the evidence. The establishment of in-service days, addition of certain classes to the schedule, and pay for extracurricular activities do not involve matters of critical importance to management, such as standards of services, the overall budget, the organizational structure, the selection of new employees, the direction of employees, or any other inherent managerial right.

Part III of the balancing test, which applies only when conflicting interests exist between section 10 employees’ rights and section 4 employers’ rights, is inapplicable in this case because the changes instituted by School District did not include changes involving inherent managerial rights under section 4 of the Act.

The IELRB concluded that School District, by virtue of section 10(a) of the Act, must give notice and opportunity to Association to bargain any of the changes made, and that School District’s refusal to engage in midterm bargaining over these items was a violation of sections 14(a)(1) and 14(a)(5) of the Act. We hold that the IELRB’s conclusion is consistent with the evidence presented. The changes instituted by School District certainly do not maintain the status quo as School District argues, and clearly fall within the definition set forth in section 10(a) of the Act for subjects requiring mandatory bargaining.

School District’s second contention on review is that even if mandatory bargaining was required for any of the changes instituted, Association waived its right to bargain by virtue of Articles XV(A) and (E) of the collective bargaining agreement. We disagree.

The parties’ collective bargaining agreement contains an express provision which defines the requirements for modification, change, alteration or deletion of terms of the contract, and a waiver of the parties’ right to negotiate all items not removed by law during the term of the contract.

When parties have fully bargained a mandatory subject of bargaining or have reached an agreement which is incorporated into the collective bargaining agreement, the parties may waive further bargaining. (See generally East Richland Education Association v. Illinois Educational Labor Relations Board (1988), 173 Ill. App. 3d 878, 528 N.E.2d 751.) However, a midterm bargaining obligation may continue for items which are not fully bargained or set forth in the agreement. (Board of Education, LeRoy Community Unit School District No. 2 v. Illinois Educational Labor Relations Board (1990), 199 Ill. App. 3d 347, 365, 556 N.E.2d 857, 868.) In order for a contractual waiver to be found, the language of the agreement in light of any evidence presented on bargaining history must demonstrate a “clear and unmistakable” agreement to waive midterm bargaining. See AFSCME, 190 Ill. App. 3d at 269, 546 N.E.2d at 694; Board of Education, LeRoy Community Unit School District No. 2, 199 Ill. App. 3d at 366, 556 N.E.2d at 869.

The IELRB held in this case that the waiver clause, which is commonly referred to as a “zipper clause,” is not all-encompassing, and that Association could not have waived its bargaining rights regarding the disputed issues during precontract negotiations since the nature of the changes was then unknown. This finding is not contrary to the manifest weight of the evidence.

The waiver clause at issue states that the parties waive the opportunity to negotiate all items not removed by law. Thus, if the action taken by the employer was not a subject of mandatory bargaining covered by the Act, then the item undoubtedly would be waived. However, the plain language of Article XV states that the parties do not waive the right to bargain subjects that are covered by law such as those present in this case.

School District does not rely on any extrinsic evidence to support a claim that the language of the clause should be construed to provide for such a waiver. The record reflects that at the time the instant waiver clause was negotiated, Association did not intend to relinquish its midterm bargaining rights. Moreover, the bargaining history demonstrates that Association would not agree to any such waiver.

The waiver clause in this case is almost identical to the waiver clause found in Board of Education, LeRoy Community Unit School District No. 2, 199 Ill. App. 3d at 366, 556 N.E.2d at 869, where the court held that the language of the clause did not demonstrate a “clear and unmistakable” waiver of the right to further bargaining. The plain language of the waiver clause in this case, while clearly precluding the opportunity for additional negotiation on items not removed by law, does not waive the right of the parties to further bargain any items removed by law. We therefore hold that the clause at issue does not contain the “clear and unmistakable” language necessary to constitute a waiver of its right to bargain over the subjects at issue.

Accordingly, the decision of the Illinois Educational Labor Relations Board is affirmed.

Affirmed.

CERDA, P.J., and WHITE, J., concur.

        ‘ARTICLE XV — Effect of Agreement

      A. The terms and conditions set forth in this Agreement represent the full and complete understanding and commitment between the parties hereto. The terms and conditions of this Agreement may be modified by alteration, change, addition to, or deletion only through the voluntary, mutual consent of the parties in written amendment executed in accordance with the provisions of this Agreement.
      E. The parties acknowledge that they have had the opportunity to negotiate all items not removed by law, and therefore, each waives the right to negotiate any other subject during the term of this Agreement, except by mutual consent.”

      See footnote 1 for the full text of Articles XV(A) and (E) of the parties’ collective bargaining agreement.


author: JUSTICE GREIMAN

text:
      In re MARRIAGE OF MARJORIE ORLANDO, Petitioner-Appellee, and ANTHONY T. ORLANDO, Respondent-Appellant.
    First District (3rd Division)
    Nos. 1-89-3032, 1-90-0322 cons.
    Opinion filed August 7, 1991.

      John D. Kightlinger, of Mt. Prospect, for appellant.
    Neil A. Robin, of Chicago (Paul R. Jenen, of counsel), for appellee.

      Justice White concurred with this opinion prior to his retirement.

   JUSTICE GREIMAN

delivered the opinion of the court:

The respondent, Anthony Orlando (Anthony), appeals from portions of a judgment for dissolution of his marriage to petitioner, Marjorie Orlando (Marjorie). Anthony contends that the circuit court erred in (1) classifying certain assets (i.e., a certificate of deposit and stock) as Marjorie’s nonmarital property; (2) allocating two-thirds (66.7%) of the marital property to Marjorie and one-third (33.3%) to Anthony; (3) ordering Anthony to pay $242 per month for spousal support and maintenance; (4) requiring Anthony to pay Marjorie’s attorney fees; and (5) supplementing its judgment after 30 days. In addition, Marjorie submits that this court should reconsider our denial of her motion to dismiss this appeal.

For the reasons which follow, we reverse the circuit court’s decision regarding the classification of a certificate of deposit and stock and find that these assets are marital property. We affirm the circuit court’s judgments on all of the other issues raised. We also find that this court has jurisdiction to hear this appeal and decline to reconsider our previous denial of Marjorie’s motion to dismiss the appeal.

Anthony and Marjorie were married in 1947, separated in 1985, and divorced in 1989. Two sons, Douglas and Christopher, were born during their marriage. At the time of their divorce, Anthony was 61 years old, Marjorie was 60 years old, Douglas was 32 years old and emancipated, and Christopher was 16 years old.

Marjorie testified that after high school she worked for three months as a secretary and then married Anthony. Marjorie worked either full time or part time until the birth of her younger son, Christopher, in 1972. Marjorie did not have outside employment from 1972 through 1984. During the last three years, 1986-1989, Marjorie was fired from 8 to 12 jobs. Her highest gross annual income was $10,000.

Marjorie further testified that since 1985 she has been receiving medical treatment for back problems which limit her ability to sit for more than 20 hours a week at a job. At times she wears a steel brace to relieve the back pain. Additionally, in December 1988 Marjorie was diagnosed with diverticulitis which was controlled, but not cured, by antibiotics and thus remains an ongoing concern.

Since 1987 Marjorie has been receiving treatment from a psychologist, Dr. Donald Gorsline, who testified as to Marjorie’s mental condition and diagnosed Marjorie as having a borderline personality disorder. Over the years, Dr. Gorsline has increased his time spent with Marjorie from once a week to twice a week and then three times per week. Dr. Gorsline testified that Marjorie’s mental disorder is affecting her ability to find or keep a job but opined that she could function fairly normally within two to three years. Dr. Gorsline recommended part-time employment of no more than four hours a day for Marjorie at this time.

Anthony testified that he has a college degree in accounting and has been doing accounting work for 30 years. For the last 10 years Anthony has been employed by Commons-Allison Incorporated as the director of corporate taxes and earns a gross annual salary of $44,000. In addition Anthony receives a bonus calculated on the company’s profits. He received $1,000 as a bonus for the years of 1987 and 1988 but received no bonus for the previous eight years. Anthony also supplements his income by preparing tax returns for outside clients and friends.

The following list represents the assets of Anthony and Marjorie as determined by the circuit court:

Marital Property
Family Home (equity) $210,000.00
1988 Buick (equity) 3,500.00
1982 Reliant car and 1976 car (no equity)
IRA 2,000.00
401-K 6,225.02
TOTAL 221,725.02
Marjorie’s Nonmarital Property
Keystone stock 4,678.92
Certificate of Deposit 18,000.00
TOTAL 22,678.92

The Keystone stock was inherited by Marjorie from her father, and the stock was subsequently put into joint tenancy with Anthony. In 1972, Marjorie’s father died and the Keystone stock was divided three ways: one-third to Agnes Miller (Marjorie’s mother), one-third to Marjorie’s sister (Marilyn), and one-third to Marjorie. In 1978, Agnes Miller transferred her one-third stock share equally to Marjorie and Marilyn. Marjorie testified that she first saw the stock certificates in joint name with Anthony in 1979, a fight ensued with Anthony, and she executed the necessary paperwork out of fear of her husband. Anthony testified that Marjorie voluntarily transferred the stock into joint tenancy to avoid any probate problems if Marjorie should die. The stock at issue today is the same stock which Marjorie received from her father in 1972 and it has remained in joint tenancy since 1978 or 1979.

Marjorie’s mother, Agnes Miller, had a $30,000 certificate of deposit which was to pass to Marjorie when Agnes died. However, in 1974, Agnes, while still alive, gave $15,000 from the certificate of deposit to Marjorie which was used by Marjorie toward the purchase of her previous marital home with Anthony. In 1981, when Agnes died the remaining $15,000 certificate of deposit passed to Marjorie. Anthony testified that he put the $15,000 in joint accounts. Neither Anthony nor Marjorie made any subsequent contributions to the certificate of deposit but the interest on the certificate of deposit was put into a marital account for expenses before their separation. After their separation, Marjorie transferred the certificate of deposit into Christopher’s name alone to prevent Anthony from accessing those funds. Marjorie currently uses some of the interest for living expenses.

The trial court found that Anthony’s net monthly income is $2,487. His monthly required payments amount to $1,511 for the following obligations: mortgage ($685); child support ($486); Marjorie’s health insurance ($98) and maintenance ($242). Anthony testified that he lives with his older brother in an apartment and voluntarily pays virtually all of their expenses.

On October 10, 1989, the circuit court entered the judgment for dissolution of marriage. Marjorie was granted custody of Christopher, and they were given the right to remain in the marital home until Christopher graduated from high school. Three months after Christopher’s graduation from high school (i.e., September 1991), the marital home is to be sold and the net proceeds are to be divided 66.7% to Maxjorie and 33.3% to Anthony.

The judgment for dissolution of marriage also provided, in relevant part, that: (1) the marital property would be divided two-thirds (66.7%) to Maijorie and one-third (33.3%) to Anthony; (2) Anthony would pay to Marjorie $242 per month for spousal support and maintenance until December 15, 1991; and (3) the stock and certificate of deposit received from Marjorie’s parents were nonmarital assets.

Marjorie also filed a petition for attorney fees. Following a December 29, 1989, hearing on her petition, the circuit court ordered Anthony to pay $6,031 to her attorneys.

Initially we address Marjorie’s contention that this court should reconsider its October 24, 1990, order denying her motion to dismiss this appeal on the grounds that this court did not have the record or her reply to Anthony’s objection to her motion when we ruled. We find Marjorie’s arguments unpersuasive and decline to reconsider our denial of her motion to dismiss.

Anthony first asserts that the circuit court erred in classifying the certificate of deposit and the Keystone stock as nonmarital property. We agree.

The Illinois Marriage and Dissolution of Marriage Act (Act) creates the presumption that all property acquired diming marriage is marital property, including nonmarital property transferred into some form of co-ownership between the spouses. (Ill. Rev. Stat. 1989, eh. 40, par. 503(b).) Property acquired by gift, legacy or descent is excepted from marital property and is classified as nonmarital property. Ill. Rev. Stat. 1989, ch. 40, par. 503(a)(1).

The placing of title to nonmarital property in joint tenancy with a spouse raises a presumption that a gift was made to the marital estate and the property becomes marital property. (In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 257, 483 N.E.2d 316.) However, in Rink this court recognized the legislative intent to preserve the character of nonmarital property where the actions of the parties have not created ambiguity in that regard. Accordingly, the “donor” spouse may rebut the presumption of gift with clear, convincing and unmistakable evidence. Rink, 136 Ill. App. 3d at 257.

Cases which have found that the evidence was sufficient to rebut the presumption of gift are distinguishable from the present case. Where the wife’s nonmarital funds were acquired by inheritance but were not deposited into a joint bank account or applied toward the purchase of a jointly owned home, the court held that the wife presented sufficient evidence to overcome any presumption of gift to the marriage. (In re Marriage of Simmons (1981), 101 Ill. App. 3d 645, 428 N.E.2d 1032.) In Rink, this court affirmed the classification of certain bank accounts opened in joint tenancy during the marriage to be the husband’s nonmarital property where the husband, who was blind, testified that he never intended to give his wife an ownership interest in the accounts, never allowed her to make a withdrawal, and never gave her access to the passbooks. (In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316.) The sole purpose for joint tenancy of the bank accounts in Rink was convenience because of the husband’s disability. Also, in In re Marriage of Guerra (1987), 153 Ill. App. 3d 550, 505 N.E.2d 748, the husband rebutted the presumption of gift where he had kept nonmarital stock acquired prior to the marriage separate after the marriage; he and his wife controlled and used separate bank accounts; the spouses separated their financial affairs and dealt at arm’s length; and clear evidence existed when the husband had intended to give gifts to the wife, such as a car titled in her name alone.

Marjorie primarily relies on In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028, which held that the property at issue was nonmarital because no gift was intended. We find Woj-cicki factually distinguishable.

The Wojcicki case involved a second marriage for both parties and each spouse entered into the marriage with substantial property. This second marriage lasted about four years. The dispute concerned real property which had been acquired by the husband many years before his second marriage. The husband purchased a Schaumburg residence 15 years before his second marriage and held his Wisconsin property 21 years before his second marriage. The husband, who had emigrated from Poland and had a limited education, encountered difficulties in clearing title in these properties after the death of his first wife. Accordingly, the husband testified that he transferred the property into joint tenancy with his second wife to avoid similar difficulties in the event of his or his second wife’s death. However, the wife contended that the husband intended to convey a present interest in the properties to her. The Wojcicki court considered numerous factors to be significant including the intent of the parties; payment of the purchase price, taxes and mortgage; making improvements on the property; occupancy of the premises; and the exercise of control and management of the property.

In light of the statutorily created presumption of gift regarding all property acquired during marriage and nonmarital property transferred into co-ownership with a spouse, the presumed intent of a gift as to property placed in joint tenancy with a spouse, and the high standard of proof required to rebut the presumption of gift, we find that the stock and certificate of deposit in this case should be classified as marital property. The marital property presumption was formed when Marjorie’s inherited assets were transferred into joint tenancy with Anthony, and the evidence does not support the trial court’s finding that these assets retained their character as Marjorie’s nonmarital property.

Since the record contains sufficient facts to enable us to order a redistribution, we do not need to remand the matter to the trial court to reexamine its distribution. (In re Marriage of Madoch (1991), 212 Ill. App. 3d 1007, 571 N.E.2d 1029.) We direct that the stock and the certificate of deposit be classified as marital property and that the value of these assets ($22,678.92) be allocated in the same proportion as the other marital property, i.e., two-thirds to Marjorie ($15,119.28) and one-third to Anthony ($7,559.64).

Second, Anthony contends that the trial court abused its discretion by dividing the marital property with two-thirds (66.7%) to Marjorie and one-third (33.3%) to Anthony. We disagree.

On appeal, a property division can be disturbed only upon a showing of an abuse of discretion. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676.) An abuse of discretion occurs where no reasonable person would take the view adopted by the trial court. (Partyka, 158 Ill. App. 3d at 550.) A reviewing court is not justified in substituting its discretion for that of the trial court. In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 222, 543 N.E.2d 119; In re Marriage of Wolf (1989), 180 Ill. App. 3d 998, 1004, 536 N.E.2d 792.

Section 503(d) of the Act directs the court to divide the marital property in “just proportions” and to consider all relevant factors including the value of the property set apart to each spouse, the duration of the marriage, the economic circumstances of each spouse upon the division of the property, the reasonable opportunity of each spouse for future acquisition of capital assets and income, and each spouse’s age, health, employability and sources of income. Ill. Rev. Stat. 1985, ch. 40, par. 503(d).

Courts have repeatedly and consistently held that the “just proportions” requirement does not mandate an equal division of marital property but an equitable division. (Jones, 187 Ill. App. 3d at 223.) The touchstone of apportionment of marital property is whether the distribution is equitable, and each case rests upon its own facts. Jones, 187 Ill. App. 3d at 222.

The record reveals that under the facts of this case the trial court properly considered the relevant statutory factors, and we find no abuse of discretion. Similar cases have reached the same result. In re Marriage of Gentry (1989), 188 Ill. App. 3d 372, 544 N.E.2d 435 (no abuse of discretion was found in awarding 66% of assets to the wife, who had a limited education and had been a homemaker, thus removed from the work force, for nearly 20 years); In re Marriage of Agazim (1988), 176 Ill. App. 3d 225, 530 N.E.2d 1110 (a 76/24 division of assets in favor of the wife was upheld where the husband was the principal wage earner throughout the marriage and the wife’s wage-earning capacity as an ice-skating teacher was hampered by physical injuries); In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 303, 524 N.E.2d 695 (after a 28-year marriage, a 70/30 distribution of assets in favor of the 49-year-old wife was upheld because the court found a vast difference in future earning capacities of the parties where the wife was entering her fifties, had no job experience in over 20 years, and had poor employment prospects); In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E.2d 14 (following a 36-year marriage, no abuse of discretion was found where the wife was awarded 62.2% of the assets and the husband was awarded 37.8%); In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151 (the court found adequate support to award 60% of the property to the wife given the length of the marriage (24 years) and the wife’s more limited opportunity for future acquisition of assets since she worked as a secretary and earned less than $1,000 a month); In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748 (following a 32-year marriage, there was no abuse of discretion in awarding approximately 60% ($112,400) of the assets to the wife and 40% ($76,600) to the husband where the 53-year-old wife was only a high school graduate with three weeks of secretarial training, suffered from arthritis, and had not been employed since she got married).

A nearly equal apportionment of marital assets, i.e., approximately 50% to each spouse, was reversed and remanded for reconsideration of the property distribution award because the court concluded that the wife had not received an equitable share of the assets. (In re Marriage of Campise (1983), 115 Ill. App. 3d 610, 450 N.E.2d 1333.) The court in Campise specifically noted the wife’s age (51), educational background (a high school graduate), extended absence from the work force (14 years), poor physical health (back and neck problems) which prevents her from sitting in one position for any extended period of time, and consultations with a psychiatrist. In contrast, the husband in Campise had both full-time and part-time employment which afforded him a greater opportunity to acquire capital assets and income. Similarly, this court reversed the marital property division where we found that the trial court had not adequately taken into account the parties’ past earnings and potential to accumulate future income. (Partyka, 158 Ill. App. 3d at 554-55.) In Partyka, the husband had an advanced degree, enjoyed steady employment for over 14 years, and earned a yearly salary of as much as $138,000. The wife, in contrast, had remained at home to raise the children during the marriage and was earning only $44 per day as a substitute teacher.

The Orlandos’ marriage lasted for 42 years, and each spouse is now over 60 years old. While Anthony worked throughout the marriage, Marjorie was unemployed for 12 years. Anthony is currently employed while Marjorie has been discharged from about 12 jobs in the last three years. Anthony’s current annual salary is $44,000, and the highest gross annual income Marjorie ever earned was $10,000. Anthony acquired a college degree in accounting, and Marjorie has a high school education. Anthony testified that he is in good health. In contrast, Marjorie suffers from physical as well as emotional problems. Given the facts of this case, we believe that the trial court rendered an equitable and conscientious decision in apportioning the marital property between the spouses.

Third, Anthony asserts that payment of spousal support and maintenance in the amount of $242 per month is unreasonable when considered in the context of his total financial situation. Anthony acknowledges that the maintenance and child support awards by themselves are not excessive. We find that the maintenance award in this case is proper.

Like a property division, an award of maintenance is within the discretion of the trial court, and it will not be disturbed by a reviewing court unless there is an abuse of discretion or a determination that the award is against the manifest weight of the evidence. (Jones, 187 Ill. App. 3d at 227.) An abuse of discretion will occur where no reasonable man would take the view adopted by the trial court. (Jones, 187 Ill. App. 3d at 227.) The trial court’s determination as to maintenance is presumed to be correct. Kristie, 156 Ill. App. 3d 821, 510 N.E.2d 14.

Section 504 of the Act governs the granting of a maintenance award. (Ill. Rev. Stat. 1985, ch. 40, pars. 504(a), (b).) To award maintenance the court must find that the spouse seeking maintenance lacks sufficient property to provide for his reasonable needs, is unable to support himself through appropriate employment, or is otherwise without sufficient income. (Ill. Rev. Stat. 1985, ch. 40, par. 504(a).) Maintenance may be awarded in any amount and for any time period which the court deems just after considering all relevant factors including, inter alia, the financial resources of the party seeking maintenance, his ability to meet his needs independently, the duration of the marriage, the age and the physical and emotional condition of both parties, and the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. Ill. Rev. Stat. 1985, ch. 40, par. 504(b).

Maintenance may be appropriate where a spouse has little prospect of earning sufficient income to meet her needs, even if she is employed. (Kristie, 156 Ill. App. 3d at 823 (the court upheld a permanent maintenance award to a wife who had been employed for 10 years).) The paying spouse’s net income is a factor to be considered in determining the amount of maintenance. (Kristie, 156 Ill. App. 3d at 823.) An amount equal to approximately 10% of the paying spouse’s income is reasonable. In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71 (the court upheld a maintenance award of $150 per month where the paying spouse had a net monthly income of $1,450).

Courts have found that time-limited maintenance is appropriate where the evidence indicates future employability, encourages a spouse to become self-sufficient, and affords the court an opportunity to review the award at the end of a fixed period. Jones, 187 Ill. App. 3d at 229.

In the present case, the judgment of dissolution provides that Anthony will make monthly maintenance payments in the amount of $242, which constitutes less than 10% of his monthly net income ($2,487), and that the maintenance provisions will be reviewed on December 15, 1991. Clearly the time-limited maintenance award is scheduled for review following the high school graduation of their son Christopher, the sale of the marital home, which is set for September 1991, and Marjorie’s anticipated further recovery from psychological disorders which impede her ability to enter the job market and to be self-sufficient. The record reveals that the trial judge considered the statutory criteria regarding an award of maintenance and acknowledged that the interim arrangement would be a “stiff bill” for Anthony but that his problems are short term. We find that the trial court did not abuse its discretion in awarding two-year maintenance payments to Marjorie.

Fourth, Anthony contends that the trial court erred in ordering him to pay Marjorie’s attorney fees on the grounds that the fees were not proven by sufficient evidence and Marjorie has a greater ability than he to pay the fees. There is no dispute regarding the reasonableness of the hourly rates charged.

Generally, each party has the primary obligation to pay his own attorney fees but the court has discretion to award fees. (Pahlke, 154 Ill. App. 3d at 263.) Section 508 of the Act provides that the court, after considering the financial resources of the parties, may order a spouse to pay a reasonable amount for the costs and attorney fees necessarily incurred by the other spouse. (Ill. Rev. Stat. 1985, ch. 40, par. 508.) The allowance of attorney fees rests within the sound discretion of the trial court and that discretion will not be disturbed unless it is clearly abused. McNeeley, 117 Ill. App. 3d at 329.

Anthony primarily relies on Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, to support his assertion that insufficient evidence was presented to determine the legal services performed and the time required. The Kaiser case involved a petition for attorney fees filed by a lessor which prevailed in the underlying action to enforce a commercial lease agreement. The Kaiser court held that a fee award must be predicated on sufficiently detailed information as to the bases for the legal charges and thus disallowed portions of the bill which noted only vague and general descriptions of legal tasks performed.

In addition to adequately detailed records, a court may rely on its own knowledge and experience in determining the value of legal services and the amount of a fee to be awarded. In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 423, 480 N.E.2d 513, cited with approval in Kaiser, 164 Ill. App. 3d at 984, 518 N.E.2d at 427.

Following a hearing on the petition for fees, the trial court expressly found that the amount of time expended was reasonable and sufficiently limited to allow a finding on the information provided. The trial court then entered judgment for $6,031, which represented approximately 87% of the fees requested ($6,937.35).

We believe that the record, including a summary of the fees and the attorney’s testimony at the hearing on the petition for fees, reveals that sufficient evidence was provided to substantiate the trial court’s finding as to the amount of attorney fees awarded.

Where one spouse is in a superior position to acquire income and additional capital assets, a fee award does not constitute an abuse of discretion. (McNeeley, 117 Ill. App. 3d at 330.) In Pahlke, the court upheld the fee award which required the husband to pay approximately 95% of the wife’s attorney fees. (In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71.) Like Marjorie, the wife in Pahlke had limited resources, no income-producing assets, and uncertain employment prospects. Like Anthony, the husband in Pahlke had a stable earnings history and a greater ability to acquire future assets.

Similarly, a husband can be responsible for the full amount of a wife’s attorney fees where she would have to deplete part of her principal if she were required to pay attorney fees. (In re Marriage of Kasper (1990), 195 Ill. App. 3d 494, 500, 552 N.E.2d 1023.) Financial inability to pay attorney fees does not mean destitution, but that the payment would strip the spouse of her means of support and undermine her financial stability. (In re Marriage of Osborn (1990), 206 Ill. App. 3d 588, 602, 564 N.E.2d 1325.) The Osborn court held that the husband should absorb the wife’s attorney fees where the wife, like Marjorie, received a majority (72%) of the marital assets, did not work outside the home for 11 years, and was unemployed at the time of the divorce.

In light of the parties’ economic circumstances, we find that the trial court’s decision to have Anthony pay Marjorie’s attorney fees was reasonable and not an abuse of discretion.

Fifth, Anthony maintains that the trial court erred in entering an order on January 10, 1990, which clarified a provision of the judgment of dissolution entered on October 10, 1989. Anthony submits that the trial court lost jurisdiction 30 days after the entry of the October 1989 order and Marjorie’s motion should have conformed to the requirements of section 2 — 1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401).

A court has inherent authority over the enforcement of its judgments. (Adam Martin Construction Co. v. Brandon Partnership (1985), 135 Ill. App. 3d 324, 326, 481 N.E.2d 962; Klier v. Siegel (1990), 200 Ill. App. 3d 121, 127, 558 N.E.2d 583 (“ ‘That judicial power essentially involves the right to enforce the results of its exertion is elementary,’ ” quoting Virginia v. West Virginia (1918), 246 U.S. 565, 591, 62 L. Ed. 883, 886, 38 S. Ct. 400, 402; see also Comet Casualty Co. v. Schneider (1981), 98 Ill. App. 3d 786, 424 N.E.2d 911 (the trial court had full power to entertain enforcement proceedings after the dismissal and passage of 30 days from the rendition of the consent decree); Cities Service Oil Co. v. Village of Oak Brook (1980), 84 Ill. App. 3d at 384-85 (“Illinois law is clear that the court has power to compel compliance with its orders and to punish for failure to do so”).) Even though the subject matter jurisdiction of a court generally is lost and its final decree in a civil case is a conclusive adjudication after 30 days from its entry, the court in a dissolution proceeding retains jurisdiction for the purpose of enforcing its judgments. In re Marriage of Redmer (1982), 111 Ill. App. 3d 317, 320, 443 N.E.2d 1075.

The judgment of dissolution specifically ordered Anthony to pay Marjorie’s “outstanding medical bills as of the entry of Judgment for Dissolution of Marriage [October 10, 1989], which are approximately $2,300.00.” At the December 28, 1989, hearing on Marjorie’s fee petition, the trial court observed that no time period had been set for the payment of the $2,300 for outstanding medical bills. Thereafter Marjorie filed a motion with the trial court to set a specific date for payment by Anthony. When the proceedings reconvened on January 10, 1990, the trial court addressed Anthony’s nonpayment of the $2,300 in medical expenses and ordered that this sum be paid out of Anthony’s share of the proceeds from the future sale of the marital home.

We find that Anthony’s obligation to pay the $2,300 was clearly delineated in the judgment of dissolution, and the trial court had the power to compel Anthony to comply with the judgment.

Judgment affirmed in part; reversed in part and remanded with directions.

CERDA, P.J., and WHITE, J., concur.


author: JUSTICE LaPORTA

text:
      In re ESTATE OF AUDREY ZUKERMAN, Deceased.
    First District (6th Division)
    No. 1-90-3009
    Opinion filed August 9, 1991.

      Robert A. Coe & Associates, Ltd., of Chicago (Judith V. Stein and Hugh E. Pollard, of counsel), for appellant.
    Fishman & Merrick, P.C., of Chicago (Charles A. Janda and Kenneth F. Berg, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

The subject of this appeal is an order entered by the circuit court of Cook County which found that Louis Rotfeld, deceased, held certain bonds in trust for the benefit of Audrey Zukerman, also deceased, and which awarded those bonds to the estate of Audrey Zu-kerman. The executor of the estate of Louis Rotfeld appeals the decision of the trial court, contending that the court erred in finding that Rotfeld intended and established a trust for the benefit of Zuker-man.

The record indicates that Louis Rotfeld and Audrey Zukerman lived together in Chicago, Illinois, for 12 years. On December 2, 1988, Rotfeld and Zukerman both died from injuries they sustained in an automobile collision in Kenosha, Wisconsin.

In June 1987, V-k years before he died, Rotfeld went to the Oak Trust & Savings Bank and spoke to Robert Sullivan, a vice-president of the bank about reregistering a Commonwealth Edison bond in the amount of $125,000. Rotfeld delivered the Commonwealth Edison bond certificate to Sullivan and requested that the bank hold the bond in a customer safekeeping account. Rotfeld told Sullivan that, upon his death, he wanted Zukerman to have the bond. Rotfeld requested that Sullivan handle the reissuance of the bond in the name of “Louis Rotfeld, as Trustee for Audrey Zukerman,” and Rotfeld executed a bond power authorizing Continental Illinois National Bank, the transfer agent for Commonwealth Edison, to reregister the bond in that name. In accordance with Rotfeld’s request, Sullivan had the bond reissued in the name of “Louis Rotfeld, as Trustee for Audrey Zuker-man.” No formal trust agreement was ever executed by Rotfeld.

In August 1987, Rotfeld again spoke with Sullivan about a second bond to be held by the bank for safekeeping. This bond, a Ford Motor Credit Corporation bond in the amount of $75,000, was uncertificated and was registered by means of a book entry. Rotfeld told Sullivan that he also wanted Zukerman to have this bond in the event of Rot-feld’s death.

Although Sullivan attempted to have the Ford bond retitled in accordance with Rotfeld’s instructions, this was never actually accomplished.

Sullivan requested that La Salle National Bank, the transfer agent for Ford Motor Credit Corporation, reregister the Ford bond in the name of “Louis Rotfeld, as Trustee for Audrey Zukerman.” La Salle National Bank sent Oak Trust and Savings Bank a “confirmation of the delivery of the Ford bond,” and Oak Trust and Savings Bank issued a safekeeping receipt to Rotfeld which indicated that La Salle National Bank was holding the bond in safekeeping. Both the confirmation of delivery from La Salle National Bank and the safekeeping receipt from Oak Trust and Savings Bank bear the name “Louis Rot-feld, as Trustee for Audrey Zukerman.”

Because Rotfeld, individually, continued to receive interest payments on the Ford bond, Zukerman telephoned Sullivan to inquire as to whether the Ford bond had been properly reregistered. In late July 1987, Sullivan contacted M.B. Vick, the broker on whose books the Ford bond was recorded, to find out whether La Salle National Bank had accepted delivery of the bond. Without advising Sullivan or Rot-feld, La Salle National Bank apparently had returned the bond to M.B. Vick without having changed the registration of the Ford bond.

Sullivan and M.B. Vick continued in their efforts to reregister the Ford bond in early 1988. They did not, however, succeed in reregis-tering the Ford bond prior to Rotfeld’s death.

Rotfeld told Sullivan that he wanted both bonds to go to Zuker-man upon his death or in the event that something happened to him. Rotfeld specified that future interest payments were to be made to him as trustee for Zukerman.

Sullivan testified that the interest checks for the Edison bond were sent to Rotfeld as trustee and deposited into one of the accounts at Oak Trust and Savings Bank, where Rotfeld had both individual accounts and joint tenancy accounts with Zukerman. Sullivan could not recall, however, into which account the interest payments were deposited and could not say whether they were deposited into an account held by Rotfeld individually or into a joint account held by both Rot-feld and Zukerman. The interest checks for the Ford bond were delivered to Rotfeld's broker, M.B. Vick, and deposited into Rotfeld’s account with the brokerage house. Rotfeld also declared the interest income on his individual income tax returns. At the time of his death, both bonds were registered under Rotfeld’s social security number.

The evidence adduced at trial includes a copy of Rotfeld’s will in which he devised to Zukerman certain items of personal property and 45% of his residuary estate if she survived him by 30 days.

After the deaths of Rotfeld and Zukerman, the executor of the estate of Rotfeld contacted Sullivan and asked him to turn over the Commonwealth Edison bond. Sullivan complied with this request without questioning who was entitled to the bond. The executor of the estate of Rotfeld also requested that M.B. Vick turn over the Ford bond, and M.B. Vick complied with this request. Without the knowledge or consent of the estate of Zukerman, the executor sold the Ford bond. The executor still holds the Commonwealth Edison bond.

On March 22, 1990, the administrator of the estate of Zukerman instituted citation proceedings in the probate division of the circuit court of Cook County, seeking to recover the Commonwealth Edison bond and the proceeds of the Ford bond. After an evidentiary hearing, the trial court found that Zukerman was the beneficiary of an express inter vivos trust created by Rotfeld and that her estate was entitled to possession of both bonds.

The executor of the estate of Rotfeld appeals, asserting that there was insufficient evidence that Rotfeld intended to establish a trust for the benefit of Zukerman and insufficient evidence of the trust purpose or the manner in which that purpose was to be accomplished.

The trial court in the case at bar specifically found that Rotfeld established a valid inter vivos trust for the benefit of Zukerman, and we hold that this finding was not against the manifest weight of the evidence.

The requirements of a valid express trust include (1) intent of the parties to create a trust, which may be shown by a declaration of trust by the settlor or by circumstances which show that the settlor intended to create a trust; (2) a definite subject matter or trust property; (3) ascertainable beneficiaries; (4) a trustee; (5) specifications of a trust purpose and how the trust is to be performed; and (6) delivery of the trust property to the trustee. In re Estate of Wilkening (1982), 109 Ill. App. 3d 934, 940-41, 441 N.E.2d 158, 163; Price v. State (1979), 79 Ill. App. 3d 143, 148, 398 N.E.2d 365, 370-71.

An oral express trust is valid and may be established by parol evidence, but must be proven by clear and convincing evidence. (Caudill v. Beil (1984), 127 Ill. App. 3d 847, 850, 469 N.E.2d 257, 260; Wilkening, 109 Ill. App. 3d at 941, 441 N.E.2d at 163; Price, 79 Ill. App. 3d at 148-49, 398 N.E.2d at 371.) The acts or words relied upon must be so unequivocal as to lead to but one conclusion, and if the evidence is doubtful or capable of reasonable explanation upon any other theory, it is not sufficient to establish an oral express trust. Wilkening, 109 Ill. App. 3d at 941, 441 N.E.2d at 163; Price, 79 Ill. App. 3d at 149, 398 N.E.2d at 371.

Yet, no particular form of words is necessary to create a trust, when the writing makes clear the existence of a trust. (Orr v. Yates (1904), 209 Ill. 222, 237, 70 N.E. 731; Albert v. Albert (1948), 334 Ill. App. 440, 457, 80 N.E.2d 69, 77.) Wherever an intention to create a trust can be fairly collected from the language of the instrument and the terms employed, such intention will be supported by the courts. Orr, 209 Ill. at 237.

A trial court’s finding as to the existence of a trust will not be disturbed on review unless it is against the manifest weight of the evidence. Caudill, 127 Ill. App. 3d at 850-51, 469 N.E.2d at 260; Wilkening, 109 Ill. App. 3d at 941, 441 N.E.2d at 163; Price, 79 Ill. App. 3d at 149, 398 N.E.2d at 371.

In the instant case, the evidence established that all of the requirements of a valid inter vivos trust were satisfied. Rotfeld deliberately and voluntarily acted to have both bonds retitled in his name “as trustee for” Zukerman. Rotfeld repeatedly told Sullivan that he wanted the bonds to be turned over to Zukerman upon his death or “if anything happened to him.” This conduct clearly indicates that he intended to create a trust for the benefit of Zukerman. The trust property, beneficiary, and trustee were specifically identified.

Although the trust purpose and manner in which it was to be performed were not spelled out in detail, it is not necessary to the validity of a trust that every required element be so clearly expressed in detail that nothing can be left to inference or implication. (Orr, 209 Ill. at 237; Albert, 334 Ill. App. at 457, 80 N.E.2d at 77.) It can fairly be inferred that Rotfeld created the trust in order to provide additional financial security to his long-time companion after his death. The manner in which this purpose was to be effectuated was clear from Rotfeld’s instructions to Sullivan that he was to receive the interest income as trustee for Zukerman and control of the two bonds was to be turned over to Zukerman upon Rotfeld’s demise.

Sullivan testified that the interest checks for the Edison bond were sent to Rotfeld as trustee and deposited into one of the accounts at Oak Trust and Savings Bank, where Rotfeld had both individual accounts and joint tenancy accounts with Zukerman. Sullivan could not recall, however, into which account the interest payments were deposited and could not say whether they were deposited into an account held by Rotfeld individually or into an account held in joint tenancy by both Rotfeld and Zukerman.

Although the bonds were registered under Rotfeld’s social security number and the interest income was declared on his individual income tax return, we do not believe that these circumstances alone are sufficient to indicate that Rotfeld did not intend to create a trust for the benefit of Zukerman. It was necessary that the bonds be registered and that the interest payments be declared as income in filings with the Internal Revenue Service. We hold that the manifest weight of the evidence supports the finding of the trial court that Rotfeld intended and created a trust for the benefit of Zukerman.

Zukerman was the sole beneficiary, and there was no evidence that Rotfeld reserved the power to revoke the trust. Thus, when Rot-feld declared the trust, Zukerman acquired a vested equitable interest in the entire trust property and, at her death, it passed to her estate.

Respondent, the executor of the estate of Rotfeld, contends that the trust was invalid as an attempted testamentary disposition or the creation of a “Totten” trust. The trial court rejected this contention, and we hold that this determination was not against the manifest weight of the evidence.

Rotfeld’s conduct indicates an intent to create an immediate trust in his lifetime and to have the bonds turned over to Zukerman at his death. This conclusion is confirmed by the fact that Rotfeld left other property to Zukerman in his will and could have done the same with the bonds at issue. Yet, he did not. Rather, Rotfeld deliberately had the bonds retitled in his name as trustee for Zukerman and told Sullivan that he was to receive the interest income as trustee for her.

A settlor may create a trust of personal property whereby he names himself trustee for the beneficiary, and the reservation of a life interest in the property will not defeat the trust. (Farkas v. Williams (1955), 5 Ill. 2d 417, 425-26, 125 N.E.2d 600, 605; In re Estate of Petralia (1965), 32 Ill. 2d 134, 137-38, 204 N.E.2d 1, 3.) A settlor may reserve the power to consume the interest income or the principal of the trust property without destroying the vested equitable interest of the beneficiary. Farkas, 5 Ill. 2d at 429-30, 125 N.E.2d at 607.

Use of the words “at death,” “after death,” or “upon death” in the devise of a remainder refer not to the time when the remainder is to vest in interest, but to the time when it is to fall into possession of the remaindermen. (Dyslin v. Wolf (1950), 407 Ill. 532, 542, 96 N.E.2d 485, 490.) Whenever the person who is to succeed to the estate in remainder is in being and is ascertained, and the event which by express limitation will terminate the preceding estate is certain to happen, the remainder is vested. (Dyslin, 407 Ill. at 542, 96 N.E.2d at 490.) In the case at bar, Zukerman was in being and ascertained, and Rotfeld’s eventual death was certain to happen. Consequently, Zuker-man’s interest vested immediately upon the declaration of the trust, although she was not to actually receive possession of the bonds until Rotfeld’s demise.

The declaration of trust immediately creates an equitable interest in the beneficiary although the enjoyment of that interest is postponed until the death of the settlor. The fact that the beneficiary’s actual enjoyment of the trust is contingent upon the settlor’s death does not negate the existence of a present interest in the beneficiary during the settlor’s lifetime. Farkas, 5 Ill. 2d at 425-26, 125 N.E.2d at 605; In re Estate of Petralia, 32 Ill. 2d at 137-38, 204 N.E.2d at 3.

Based upon the evidence presented, the trial court properly concluded that the conduct of Rotfeld was sufficient to create a valid and enforceable inter vivos trust for the benefit of Zukerman. The evidence established that upon declaration of the trust, Zukerman acquired an immediately vested interest in the two bonds at issue, the enjoyment of which would commence after Rotfeld’s death. Thus, this interest passed to her estate at her death despite the fact that she did not survive Rotfeld.

Respondent claims that the trust must fail because Rotfeld did not adequately describe the purpose of the trust or the manner in which that purpose was to be effectuated. We find this argument unpersuasive.

As stated above, it is not necessary to the validity of a trust that every required element be so clearly expressed in detail that nothing can be left to inference or implication. Orr, 209 Ill. at 237; Albert, 334 Ill. App. at 457, 80 N.E.2d at 77.

It can fairly be inferred that Rotfeld created the trust in order to provide additional financial security to his long-time companion after his death. The manner in which this purpose was to be effectuated was clear from Rotfeld’s instructions to Sullivan that he was to receive the interest income as trustee for Zukerman and control of the two bonds was to be turned over to Zukerman upon Rotfeld’s demise.

Respondent argues further that the trust must fail because Rotfeld did not name a successor trustee and because he did not specify a certain date for the termination of the trust. Neither of these arguments is convincing. A trust will not fail for want of a trustee (Golstein v. Handley (1945), 390 Ill. 118, 125, 60 N.E.2d 851, 854; Jones v. Katz (1945), 325 Ill. App. 65, 80, 59 N.E.2d 537, 544), and accordingly, a trust should not be declared invalid merely because the settlor neglected to name a successor trustee. In addition, it is not necessary that there be a specific date for the termination of a trust. If from the terms of the instrument, the termination date can be clearly and fairly arrived at, the trust is not subject to attack on the ground of uncertainty of termination. (Wood v. Continental Illinois National Bank & Trust Co. (1952), 411 Ill. 345, 349, 104 N.E.2d 246, 248.) In the instant case, Rotfeld’s instructions clearly indicated that the trust was to terminate upon his death and that the two bonds were then to be turned over to Zukerman. Thus, we hold that there was no uncertainty as to the date of the termination of the trust.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

RAKOWSKI, P.J., and McNAMARA, J., concur.