author: JUSTICE BOWMAN

text:
    ALBERTA RASMUSSEN, Plaintiff-Appellant, v. NANCY LaMAGDELAINE, Defendant-Appellee.
    Second District
    No. 2—90—0374
    Opinion filed January 30, 1991.

      Alex J. Victor, of Victor & LaFayette, of Rockford, for appellant.

      No brief filed for appellee.
   JUSTICE BOWMAN

delivered the opinion of the court:

Plaintiff, Alberta Rasmussen, appeals from the judgment of the circuit court granting a directed finding in favor of defendant, Nancy LaMagdelaine. Plaintiff contends that the trial court erred in directing a finding in favor of defendant at the close of plaintiffs case because defendant had the burden to prove that certain joint accounts were inter vivos gifts from plaintiff to defendant.

We will summarize only those facts relevant to the issue on appeal. Plaintiff filed a complaint alleging that defendant, her daughter, converted approximately $20,000 from plaintiffs checking accounts which, plaintiff alleged, were convenience accounts. The undisputed facts are as follows. In 1987, plaintiff, then 85 years old, owned her home in Lake Zurich, Illinois. She had a joint savings account with defendant at the First National Bank of Barrington (Barrington account) in the amount of $10,000. On November 7, 1987, plaintiff sold her house for $63,422.82 (sale proceeds). Defendant deposited the sale proceeds in a joint checking account at First Federal Savings and Loan Association in Rockford (First Federal account). Plaintiff moved into defendant’s home in Rockford.

On September 16, 1987, defendant closed the Barrington account and put the $10,000 into a certificate of deposit account in both plaintiff’s and defendant’s names. Plaintiff signed the signature card for the certificate of deposit account. On January 4, 1988, defendant cashed the certificate before its maturity date and received $9,978.98, which she kept for herself.

On November 9, 1987, plaintiff purchased a new automobile for defendant which was paid for by a check from the First Federal account. The check was signed by plaintiff. Plaintiff also signed the checks for the title and insurance for the automobile.

On November 11, 1987, defendant issued a check from the First Federal account payable to E.F. Hutton in the amount of $40,000. Of that amount, $30,000 was used to purchase securities in plaintiff’s and defendant’s names jointly, and the remaining $10,000 was used to purchase securities in defendant’s name only. Defendant subsequently sold the securities from the latter account for cash.

At the bench trial, plaintiff called defendant as an adverse witness. Defendant testified that before plaintiff sold her house, defendant stayed with plaintiff on the weekends. Plaintiff occasionally stayed at defendant’s house. Defendant cooked meals for plaintiff, but plaintiff paid for the groceries. Plaintiff helped defendant out with her mortgage payments when defendant was going to school. Plaintiff also reimbursed defendant for expenses defendant incurred when helping plaintiff.

Defendant further testified that plaintiff moved into defendant’s home after the sale of plaintiff’s house and plaintiff agreed to pay defendant $400 per month for room and board. Defendant stated that plaintiff signed the check for the purchase of the automobile because defendant “would not sign that -check.” According to defendant, plaintiff told defendant the money for the certificate was defendant’s, so plaintiff should not pay taxes for that account. Defendant stated that plaintiff told her to close the Barrington account and to move the money to Rockford, since plaintiff would not be living near Barrington. Defendant had student loans, which she paid off with the funds from the securities account.

Plaintiff testified that she had a checking and a savings account at the Barrington bank and that she did not authorize anyone to close the savings account. Plaintiff had approximately $10,000 in the account. She learned that the account had been closed when she went into the bank in January 1988 to withdraw some money from the account. Plaintiff was told that the account had been closed by defendant. At that time, plaintiff was unaware that defendant’s name was on the account.

Plaintiff testified that she deposited the sale proceeds into an account at First Federal. Plaintiff’s attorney asked her if the account was in the name of “Nancy LaMagdelaine and Alberta Rasmussen.” Plaintiff responded:

“[Nancy’s] name wasn’t on it, I don’t think.
***
That was my money.”

Plaintiff’s attorney again asked her if defendant was on the account, to which plaintiff answered:

“I don’t remember. Was it or wasn’t it? I don’t think it would have been. It shouldn’t have been.”

A third time, plaintiff was asked by her own attorney if defendant was on the First Federal account. Plaintiff said she was not. Plaintiff’s attorney then showed plaintiff a check from the First Federal account. The following colloquy then ensued:

“A. Her name is on it. This is First Federal? In Rockford?
Q. [Plaintiff’s attorney]: Of Rockford. Is her name on that account?
A. Yes, it was. But it isn’t on it now.
Q. No, no. We’re talking about now; we’re talking about then. When you brought this money to Rockford, it was put in First Federal, is that correct?
A. Yes.
Q. And it was put into an account which reads Nancy LaMagdelaine and Alberta Rasmussen, is that right?
A. Yes.
Q. So that she had control of this money, is that correct?
A. She wasn’t supposed to.
Q. Now, just answer my question.
A. Well, I guess she could have.”

Plaintiff further testified that she and defendant talked about investing some of the money from the sale of the house. Plaintiff did not go with defendant to E.F. Hutton when defendant went to purchase the stock. After plaintiff asked her attorney to investigate the closing of the Barrington account, plaintiff learned that defendant had used $10,000 of the money that was allocated for the stock to purchase her own stock.

Plaintiff denied that she ever promised to pay for defendant’s stuloans. Plaintiff stated that she gave defendant the automobile as a gift because defendant was driving plaintiff’s old automobile and it was not safe to drive. Plaintiff moved in with defendant in November 1987 and paid defendant $400 per month for room and board. Plaintiff signed two checks made out for that amount to defendant. Plaintiff also signed the checks for the purchase of the automobile and the insurance and title for it.

Plaintiff again testified that she did not authorize defendant to close the Barrington account, nor did she authorize defendant to take $10,000 from the proceeds of the sale of the house to put stock in defendant’s own name. Plaintiff’s only assets were the sale proceeds and the $10,000 in the Barrington account.

While plaintiff was living in Lake Zurich, defendant used to take plaintiff shopping. Plaintiff paid defendant’s mortgage payments numerous times. Plaintiff testified that every time defendant asked for money, plaintiff gave it to her. Plaintiff had “given her as much as $500 at a time.” Plaintiff had thought she could trust defendant and even put defendant’s name on plaintiff’s safety deposit box.

In the latter part of 1987, plaintiff “was blind” and had undergone cataract surgery. Subsequently, plaintiff had implants in both eyes, and, at the time of trial, her vision had improved. During the time that defendant allegedly converted plaintiff’s money, plaintiff “couldn’t see much,” and several times during that period, defendant brought plaintiff papers for plaintiff to sign. When defendant told plaintiff that something needed to be signed, plaintiff signed it because she “believed anything” defendant told her.

During cross-examination, plaintiff stated that she had been having trouble with her eyes for about three or four years. After she received the implants, her vision improved, but she needed a magnifying glass to be able to read. According to plaintiff, prior to her eye surgery, she would sign her checks, but most of the time someone else filled in the body of the check, and she would just sign it.

Plaintiff stated that defendant’s name was not supposed to be on the checking account at the Barrington bank, “but it got on there somehow because she wrote a check on it.” Plaintiff asked defendant how her name got on the account, and defendant told plaintiff she put her name on plaintiff’s account so defendant’s sister would not be able to take plaintiff’s money.

Defendant’s attorney further questioned plaintiff as follows:

“Q. [Ms. Greenlee]: Mrs. Rasmussen, in your complaint, you say that your daughter’s name was on the checking account at the Barrington Bank. That’s what you say in your complaint. Now you just told us that it wasn’t supposed to be there, that she just did it on her own. Which is right?
A. Well, now, she wrote a check on it so it must have — oh, that’s the account that her name got on it. I asked her how it got on there because I don’t know why it was there when I saw it was on it one day.”

Plaintiff denied that she ever had a joint account with defendant at the Barrington bank, even though defendant’s attorney had bank records which showed that there was a joint account at that bank which was closed in March 1984. Defendant’s attorney asked if plaintiff remembered it, and plaintiff stated that she did not remember that account, but admitted that she might have opened that account with defendant. Plaintiff also admitted that she had trouble with her memory.

When asked whether the First Federal account was opened with plaintiff’s consent, plaintiff stated:

“I never gave her permission to open that account at First Federal. What year was that in?”

On further questioning, plaintiff reiterated that she used to trust defendant, so plaintiff might have had a joint account with defendant and forgot about it.

Plaintiff stated that she did not know that the E.F. Hutton account was a joint account with defendant. When shown the joint tenancy agreement, plaintiff acknowledged that her signature appeared at the X, but when asked if the document was the joint tenancy agreement, plaintiff responded that she could not see it. Defendant’s attorney asked plaintiff if she could have forgotten that she opened the account as a joint tenancy, to which plaintiff responded that she did not know. Plaintiff denied knowing how her signature got on the agreement.

Plaintiff also did not remember if she went with defendant to First Federal to open a joint checking account, but she acknowledged that she “could have done it” because plaintiff “used to trust” defendant.

During redirect examination, plaintiff explained that she did not read the joint tenancy agreement before she signed it because she was unable to see. Plaintiff stated, “[ajnything I couldn’t see I trusted her to tell me it was all right or not” to sign and that anything defendant told her to do “was all right.” Plaintiff thought that everything was fine until after she moved out of defendant’s home, when she learned that the Barrington account had been closed. Plaintiff lost all trust in defendant.

After plaintiff’s testimony, defendant made a motion for a directed finding. The court found that the signature cards for the joint accounts created a presumption of a donative intent. The court stated that plaintiff’s testimony was “contradictory” and, therefore, plaintiff failed to establish a prima facie case. The court granted defendant’s motion for a directed finding and entered judgment for defendant.

Plaintiff filed a motion to reconsider the judgment. Plaintiff argued the judgment was based on two erroneous findings: first, that the joint tenancy agreement created a presumption of a gift to defendant; and second, that plaintiff failed to prove by clear and convincing evidence that there was no donative intent. Following a hearing, the court denied the post-trial motion. Plaintiff’s timely appeal followed.

Although defendant has not filed an appellate brief, we may resolve the issue presented on the merits without the aid of an appellee’s brief in conformance with the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,131-33.

Plaintiff contends that the court’s decision to direct a finding in favor of defendant was erroneous. In a nonjury case, when ruling on a motion for a directed finding at the close of plaintiff’s case in chief, the court is to take into account all the evidence, including any which supports defendant’s position; make judgments regarding the credibility of the witnesses; draw inferences from the testimony; and consider the weight and quality of the evidence. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1110; Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154.) A reviewing court may reverse the determination made by the trial court only if it is contrary to the manifest weight of the evidence. Kokinis, 81 Ill. 2d at 154.

When presented with a motion to direct a finding, the trial court must first determine, as a matter of law, whether the plaintiff has made out a prima facie case. (Kokinis, 81 Ill. 2d at 154-55.) A plaintiff has made out a prima facie case if she has presented at least some evidence on every element essential to the cause of action. (Kokinis, 81 Ill. 2d at 154.) If a prima facie case has been presented, the trial court must go further and, after weighing the plaintiff’s evidence, decide if any of the evidence necessary to plaintiff’s prima facie case has been negated. If it has, then the action must be dismissed. (Kokinis, 81 Ill. 2d at 155; Illinois Education Association v. Illinois Federation of Teachers (1982), 107 Ill. App. 3d 686, 688.) In our opinion the conclusions drawn by the trial court, after it took each of the steps set forth above, are not contrary to the manifest weight of the evidence and, therefore, the court did not err in granting defendant’s motion for directed finding.

Plaintiff has brought an action for conversion of her funds. The elements which must be shown in an action for a conversion are: (1) unauthorized and wrongful assumption of control, dominion, or ownership by defendant over the personal property of another; (2) the plaintiff’s right in the property; (3) the plaintiff’s absolute and unconditional right to immediate possession of the property; and (4) a demand by plaintiff for possession of the property. (Illinois Education Association, 107 Ill. App. 3d at 689.) Review of the pleadings, testimony, and exhibits shows that at least some evidence was presented on each of these elements. Defendant admitted in her answer that she had received the money, in the amounts alleged, for her own use and that plaintiff had demanded the return of the money. Plaintiff’s own testimony constituted evidence that she had provided all the money in the accounts, that she intended and thought that the money belonged only to her, and that she had never authorized her daughter to take money from the accounts without permission. In light of this evidence, the trial court could properly have concluded that plaintiff made out an initial prima facie case.

When the court proceeded to weigh the evidence and determine the credibility of the witnesses, it took into consideration the effect of a presumption which, as urged by defendant and found by the court, had arisen from evidence that plaintiff and defendant were joint tenants in both of the relevant accounts. While plaintiff steadfastly insists that the trial court erred in applying a presumption, her position is not supported by the law on this issue. When a valid joint tenancy is shown, a presumption arises that the joint tenant who provided funds for the account did so with the intent of making a gift to the other joint tenant. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 70-71; Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill. 2d 587, 590.) The presumption can be overcome only by clear and convincing evidence that a gift was not intended, and the burden of proof is on the one who claims it was not a gift. (Murgic, 31 Ill. 2d at 591.) Whether a gift was intended must be determined as of the time the joint account was created, and it is irrelevant that the donor may have later changed his mind about having the donee as a joint tenant. (In re Estate of Marx (1973), 11 Ill. App. 3d 727, 728-29.) In this case it was essentially undisputed that Mrs. Rasmussen had established both accounts as joint tenancy accounts with her daughter as a joint tenant. While Mrs. Rasmussen testified that she did not remember creating the two accounts, she admitted that her signature was on various bank records pertinent to the creation of both of the accounts. The validity of the bank documents was not otherwise challenged. On these facts the trial court correctly recognized the presumption that Mrs. Rasmussen had created the accounts with the intent of making a gift to her daughter.

We think the trial court also correctly concluded that plaintiff was unable to rebut the presumption by clear and convincing evidence. As a whole, the record reveals little to show that plaintiff did not have donative intent at the time the joint accounts were established. Mrs. Rasmussen’s testimony regarding her intent focused almost exclusively on events occurring after the accounts were in place. What testimony she did give regarding the accounts themselves conflicted with the allegations of her complaint. There were also significant inconsistencies and contradictions within the plaintiff’s testimony itself. Mrs. Rasmussen admitted that she had “all sorts of trouble” remembering.

In contrast to the above, it appears clear from other evidence that Mrs. Rasmussen had been close to, and had great trust in, her daughter. In fact, Mrs. Rasmussen testified that she had never previously confronted Nancy about problems with the accounts because she had trusted her daughter. It seems evident that Mrs. Rasmussen’s confidence in Nancy remained intact right up until the time this dispute arose between them. The controversy began after both of the accounts in controversy had been established. Finally, Nancy testified that the money had been a gift to her from her mother and that she considered the money her own.

The trial court was required to consider plaintiff’s intent at the time the joint accounts were established. In light of the meager evidence of Mrs. Rasmussen’s intent at that time, the poor quality of her testimony, and the evidence that the money in the joint accounts was a gift, we can find no error in the lower court’s conclusion that plaintiff did not rebut the presumption of donative intent by clear and convincing evidence. Accordingly, the court could correctly find that the money provided by Mrs. Rasmussen for the joint tenancy accounts constituted a gift to her daughter. It follows then that the money belonged to Nancy and she had a right to take and use it as she wished. Since defendant did not wrongfully assume control over the personal property of another, one element of conversion could never be shown. After all the evidence was weighed and evaluated, it negated some of the evidence necessary to plaintiff’s prima facie case, and the court properly directed a finding in favor of defendant. Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 155.

There is no merit in plaintiff’s further claim that the trial court focused on donative intent to the exclusion of the other elements necessary for a valid inter vivos gift. The elements of a valid gift are donative intent, the donor’s surrender of exclusive dominion and control over the subject of the gift, and delivery of the gift to the donee. (Wencordic Enterprises, Inc. v. Berenson (1987), 158 Ill. App. 3d 913, 919.) The Frey court established that a showing of voluntary creation of a joint tenancy in property is sufficient to demonstrate both the donor’s surrender of exclusive dominion over the subject of the gift and delivery of the gift by the donor. (Frey v. Wubbena (1962), 26 Ill. 2d 62, 72.) Donative intent, as we have already concluded, was adequately shown here by the joint tenancy accounts. Thus, an inter vivos gift was sufficiently established.

For the reasons set forth above the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

NICKELS and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE J. BARTEE, JR., Defendant-Appellant.
    Second District
    No. 2—89—0256
    Opinion filed January 30, 1991.

      G. Joseph Weller, Francine Harrison, and Kathleen J. Hamill, all of State Appellate Defender’s Office, of Elgin, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant Eddie J. Bartee, Jr., was charged by indictment with one count of attempted armed robbery (Ill. Rev. Stat. 1989, ch. 38, pars. 8 — 4(a), 18 — 1(a)). Following trial by jury, defendant was found guilty as charged and sentenced to a 12-year term of imprisonment. Defendant now appeals his conviction. We affirm.

Midway through the trial, defendant’s counsel advised the court “that during the course of the trial something happened” between defendant and him which required counsel to withdraw from the case and forbade his placing defendant on the stand to testify. Counsel stated that he was precluded from telling the court the exact nature of the problem that had arisen but did cite to the court the case of Nix v. Whiteside (1986), 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988, which dealt with an attorney’s obligations when he knows his client intends to commit perjury, and Supreme Court Rules 4 — 101, 2— 110(b)) and 7-102 (107 Ill. 2d Rules 4-101, 2-110(b), 7-102). The court denied counsel’s motion to withdraw, but ruled that defendant would testify in a narrative form without questioning from his counsel. The court also ordered defense counsel not to comment on defendant’s testimony in his closing argument. Defendant did testify in a narrative form.

Defendant now contends that he was denied the right to effective assistance of counsel and a fair trial by the court’s order requiring him to testify in a narrative form. Defendant argues that the court should not have accepted counsel’s opinion that defendant was going to commit perjury without first determining that counsel had a firm factual basis for his belief. He, therefore, prays this court to remand the cause for an evidentiary hearing. To support this theory, defendant cites United States v. Long (8th Cir. 1988), 857 F.2d 436. The court there held that defense counsel was “required to take such measures as would give him ‘a firm factual basis’ for believing [defendant] would testify falsely.” (Long, 857 F.2d at 444.) The court further held that “a clear expression of intent to commit perjury is required before an attorney can reveal client confidences.” (Long, 857 F.2d at 445.) While attempting to factually distinguish the case of Nix v. Whiteside (1986), 475 U.S. 157, 89 L. Ed. 2d 123, 106 S. Ct. 988, the Long court often relied on the rationale of certain concurring opinions from Nix. The court reasoned, as did Justice Blackmun in Nix, that an attorney that informs the court of his belief of possible perjury by his client “takes on the role of the fact finder, a role which perverts the structure of [an] adversary system.” (Long, 857 F.2d at 445.) The court also focused on the reasons given by Justices Blackmun and Stevens for limiting court notification of possible perjury to “announced plans” to commit perjury: counsel’s perceptions may be incorrect, the client may more clearly recollect certain details that contradict prior recollections, and that even a stated intent to perjure one’s self does not necessarily mean that the client will lie once sworn in on the stand. (Long, 857 F.2d at 445.) These reasons, and others, compelled the Long court to hold that “it is absolutely essential that a lawyer have a firm factual basis before adopting a belief of impending perjury.” (Long, 857 F.2d at 445-46.) Because the record did not disclose whether defense counsel had such a basis for believing his client would testify falsely, such a finding could only be adequately determined after an evidentiary hearing. Long, 857 F.2d at 446.

We note that this State has never adopted the “firm factual basis” test proposed in Long. While not dealing with the exact issue present in the case before us, People v. Flores (1989), 128 Ill. 2d 66, provides guidance and implicitly rejects the Long standard. In Flores, defendant contended in a petition for post-conviction relief that his attorney had been ineffective because, among other things, he had not called several of defendant’s family members to testify in support of defendant’s alibi. Defense counsel testified at the post-conviction hearing that he did not call the family members to testify because he found the alibi to be unreliable; defendant’s various statements were contradictory, as were those of members of defendant’s family. (Flores, 128 Ill. 2d at 105-07.) On appeal to the supreme court, defendant argued that mere suspicion by defense counsel that testimony is perjurious is insufficient; actual knowledge of the perjury is required before counsel can refuse to call an alibi witness. The supreme court disagreed, holding:

“[D]efense counsel should have discretion to make a good-faith determination whether particular proposed witnesses for the defendant would testify untruthfully. Absent some showing that counsel’s decision was unreasonable under the circumstances, we cannot say that the defendant was denied a fair trial as a consequence of counsel’s election not to call the members of his family to present an alibi. For the same reason, defense counsel was not incompetent in refusing to permit the defendant to testify to the purported alibi.” (Emphasis added.) (Flores, 128 Ill. 2d at 107.)

The court clearly adopted a less stringent test of a “good-faith determination” by defense counsel that witnesses will perjure themselves. Defendant here argues that the Flores approach does not apply to this case because the defendant’s right to testify was not involved in Flores. Defendant’s reading of Flores is incomplete. The court applied the same reasoning to counsel’s refusal to permit defendant to testify to the alibi. (See Flores, 128 Ill. 2d at 107.) We are not told how counsel was able to refuse to permit defendant to testify to the alibi. However, the court granted great discretion to defense counsel in determining whether the testimony would be truthful. There is no indication that our supreme court requires a demonstrable “firm factual basis” for counsel’s belief. Additionally, the court’s holding in no way refers to defendant’s choice of remedy, a hearing to determine the basis for counsel’s belief. Defendant would require an evidentiary hearing before counsel could move to withdraw or have a defendant testify in narrative form. Defendant cites no case, other than Long, that would require such action. We decline to adopt the holding in Long and conclude that defendant was not denied a fair trial or effective assistance of counsel by having to testify in the narrative.

Defendant next contends that the court erred in not giving him an opportunity to present redirect testimony after he was cross-examined by the State. Neither defendant nor his attorney requested such an opportunity. The scope of redirect examination is within the discretion of the trial court. (People v. Washington (1984), 127 Ill. App. 3d 365, 382.) The court can hardly be accused of abusing its discretion when it was not asked to exercise and did not exercise its discretion. Defendant has failed to show an abuse of discretion; no new trial is required on this basis.

Defendant next contends that he was improperly denied the opportunity to impeach the complaining witness Antonio Delgado with proof that Delgado’s trial testimony differed from the statement Delgado gave to the police the day after the offense occurred. On cross-examination, Delgado denied giving to police officer Brictson a statement of the events of the night in question which differed in many material respects with the testimony he had just given on direct examination. Defendant later called Officer Brictson to testify as to what Delgado told him on the day after the alleged incident. The State objected, arguing that the proper foundation had not been laid to impeach Delgado. Delgado had given his statement to Brictson through Delgado’s wife, who acted as interpreter; Delgado spoke little English while Brictson spoke no Spanish. The State successfully contended that the proper party to impeach Delgado was Delgado’s wife; defense counsel never called her to testify.

Officer Brictson was the proper party to impeach Delgado. However, Delgado’s wife was necessary to the foundation needed for Brictson’s testimony. Only Delgado’s wife could testify as to the accuracy of the statement given to Brictson. Without testimony from Delgado’s wife that she accurately interpreted her husband’s statements and accurately related them to Brictson, Brictson’s testimony was inadmissible. The court, therefore, properly excluded Officer Brictson’s testimony.

Defendant next argues that he was denied a fair trial by the complaining witness’ testimony on redirect examination. We note that defendant failed to object at trial on the grounds raised here and to include the issue in his post-trial motion. Such failures waive the issue. See People v. Enoch (1988), 122 Ill. 2d 176, 186.

Even if we were to consider this issue, defendant’s argument would fail. During cross-examination, defendant questioned Delgado about Delgado’s refusal to cooperate with defense counsel prior to trial. On redirect, the prosecutor asked:

“Mr. Delgado, is it correct that you and your family have been threatened not to come to testify in court?”

A defense objection to the question was sustained, and the jury was instructed to disregard Delgado’s affirmative response. The court, however, allowed the State to go into the issue to show why Delgado refused to talk to defense counsel. When asked about a particular telephone call received prior to a hearing date, Delgado responded:

“I was called on that very day and told that if I showed up in court — .”

The court did not allow Delgado to get into the substance of the telephone call. However, Delgado later asserted that he recognized the voice from the phone call “as the voice of a black person.” Defendant here is black. No objection was made to this answer.

Defendant now argues that the redirect examination was not designed to show why Delgado refused to speak to defense counsel before trial, but to insinuate that defendant, or someone on his behalf, was attempting to intimidate Delgado. Furthermore, defendant argues, no evidence was ever presented to tie defendant to the alleged intimidating call.

Where the door to a subject is opened by the defense on cross-examination, the State may, on redirect, question the witness to explain or clarify matters brought out during cross-examination. (People v. Thompkins (1988), 121 Ill. 2d 401, 444.) A witness may be questioned in such a way as to remove unfavorable inferences or impressions raised during cross-examination. (People v. Sanchez (1979), 73 Ill. App. 3d 607, 610.) The decision to admit or exclude such evidence is within the discretion of the trial court. (People v. Chambers (1989), 179 Ill. App. 3d 565, 577.) Here, defendant attempted to show that Delgado was not cooperative with defense counsel’s preparation of a defense. We conclude that it was not erroneous to allow the State to rehabilitate its witness by allowing him to testify as to why he was uncooperative.

For these reasons, the judgment of the circuit court of Kane County is affirmed.

Affirmed.

REINHARD, P.J., and GEIGER J., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSE HURTADO, Defendant-Appellant.
    Second District
    No. 2—89—1042
    Opinion filed January 30, 1991.

      Peter A. Staben and Richard S. Kopsick, both of Staben & Kopsick, of Waukegan, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Following a jury trial, defendant, Jose Hurtado, was found guilty of the offense of the unlawful sale of a firearm (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3(g)). Defendant raises three issues on appeal: (1) whether section 24 — 3(g) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3(g)) applies to the facts of this case; (2) whether the State proved all the elements of the offense beyond a reasonable doubt; and (3) whether defendant’s acts fell within the exemption provided by section 24 — 3(g)(1) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3(g)(1)).

Defendant was charged by complaint with the offense of the unlawful sale of a firearm by knowingly delivering a 30-30 caliber rifle to Victor Valdez without withholding delivery of the rifle for 24 hours after Valdez applied to purchase it. Subsequently, the State filed additional counts against defendant in an information. In count II, the State charged defendant with the offense of the unlawful use of weapons (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1(a)(10)); counts III and IV both charged the offense of failing to have a firearm owner’s identification card (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 2(a)).

At the trial, special agent Victor Valdez, of the Illinois State Police, testified that on January 25, 1989, he and another special agent were working undercover to investigate the illegal sale of weapons in Lake County, Illinois. On that evening, Valdez and special agent Chevarria went to Fernando’s Tap in North Chicago to meet Rafael Carranza. Valdez had met with Carranza a week earlier, and they agreed to meet on January 25 “[t]o make arrangements to purchase weapons.” After meeting Carranza at Fernando’s, the agents followed Carranza to his house in Waukegan. Carranza told the agents to wait in their vehicle. Carranza then went into the house and emerged a half hour later with defendant. Carranza introduced defendant to the agents, and then Carranza instructed the agents to follow them to defendant’s house. At defendant’s house, the four engaged in a brief conversation; then defendant went into the house. Defendant returned carrying a rifle case and a box of shells. Defendant unzipped the case and showed the rifle to the agents. Valdez examined the rifle and then handed Carranza $350, “the agreed amount *** to purchase the weapon.” Defendant handed the rifle to Valdez.

Valdez further testified that defendant never asked why Valdez wanted the rifle, nor did he ask to see a firearm owner’s identification card. About one month after the purchase of the rifle, Valdez arrested defendant. Valdez asked defendant if he had owned the rifle. Defendant told Valdez that he had purchased the rifle two months earlier at Fernando’s, for $200. Defendant also admitted to Valdez that, out of the $350 from the sale of the rifle, defendant kept $300 and gave $50 to Carranza.

On cross-examination, Valdez stated that defendant told him that, when the agents and Carranza arrived at Carranza’s house on January 25, defendant had been asleep and Carranza woke him up. Valdez explained that at the meeting with Carranza the week before January 25, they made arrangements to purchase a weapon on the 25th. At this point, the following exchange occurred:

“Q. When you made arrangements for the purchase of the weapons on the 25th[,] you and Mr. Carranza agreed to the purchase of the weapon[,] to go head *** out and look for the weapon, is that correct?
A. Sure.
Q. That was the agreement between the two of you and Mr. Jose Hurtado was not part of that, at that time?
A. No.”

Valdez was the State’s only witness, and, at the close of his testimony, defendant made a motion for a directed verdict. The court granted the motion as to counts II through IV, but denied the motion as to count I.

Defendant did not present any evidence but renewed his motion for a directed verdict on count I, which was denied. The jury subsequently found defendant guilty of the offense of the unlawful sale of a firearm.

Defendant filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. In the motion, defendant specifically alleged that the State failed to prove his guilt beyond a reasonable doubt and that the court erred in not granting the motion for a directed verdict. At the hearing on the motion, defendant argued that the evidence showed that more than 24 hours had passed since Valdez made an “application” to purchase the rifle and that the State failed to show that an “application” was made. Defendant also argued that he could not be convicted of the offense because the purchaser of the rifle was a police officer. The court stated its belief that the exemption in the statute had an implied element of knowledge that the person to whom the weapon is sold is a police officer. Since defendant was not aware that Valdez was a police officer, the court found that the exemption was not applicable. The court denied the motion in its entirety. Defendant’s timely appeal followed.

Defendant first contends that he could not be convicted of the offense of the unlawful sale of a firearm because his actions do not fall within the purview of the statute. Section 24 — 3(g) of the Criminal Code of 1961 (Code) provides in pertinent part that a person commits the offense when he knowingly:

“[Djelivers any rifle, shotgun or other long gun, incidental to a sale, without withholding delivery of such rifle, shotgun or other long gun for at least 24 hours after application for its purchase has been made.” (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3(g).)

According to defendant, this statute applies only to firearm dealers who, in the ordinary course of business, provide and accept applications for the purchase of firearms.

In construing a statute, the court must discover the intent of the legislature in order to give it effect. (People v. Parker (1988), 123 Ill. 2d 204, 209.) The intent may be discerned from the statutory language itself and the purpose of the legislation. (People v. Haywood (1987), 118 Ill. 2d 263, 271.) Although criminal statutes must be construed strictly in favor of the defendant and may not be extended to apply to facts which do not, by the strictest construction, come under their provisions (People v. Parvin (1988), 125 Ill. 2d 519, 525), they must not be so rigidly construed as to defeat the intent of the legislature (Haywood, 118 Ill. 2d at 271).

The statute makes it an offense for “[a] person” to sell a firearm without waiting the requisite time period. (See Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3.) A “person” includes individuals (Ill. Rev. Stat. 1989, ch. 38, par. 2 — 15), so defendant could be liable under the statute.

Defendant also argues that the term “application” in the statute must refer to a written application. The parties have not cited, nor have we found, any authority which construes section 24 — 3(g). When a statute does not define its terms, those terms will be given their ordinary and popular meaning. (Haywood, 118 Ill. 2d at 276.) Black’s Law Dictionary defines “application” as:

“A putting to, placing before, preferring a request or petition to or before a person. The act of making a request for something. A petition.” (Black’s Law Dictionary 90 (5th ed. 1979).)

This definition allows for both an informal request or a formal petition.

When a statute is ambiguous, courts may look to similar statutes as an aid to construction. (People v. Badoud (1988), 122 Ill. 2d 50, 55.) Section 24 — 4 of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 4) indicates that the informal request is the correct definition for “application” in the statute. Section 24 — 4 provides that a seller “shall keep a register of all firearms sold or given away” and that “[s]uch register shall contain the date of the sale or gift, the name, address, age and occupation of the person to whom the weapon is sold or given, the price of the weapon, the kind, description and number of the weapon, and the purpose for which it is purchased and obtained.” (Ill. Rev. Stat. 1989, ch. 38, pars. 24— 4(a), (b).) The seller must retain the register and allow a peace officer to inspect it. (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 4(c).) Similarly, section 83 — 3(b) of the Code, which requires a person who transfers a firearm to keep a record of the transfer, lists the information which must be included in the record and provides that the person must allow a peace officer to inspect it. (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 3(b).) Section 24 — 3(g), unlike sections 24 — 4 and 83 — 3(b), does not specify what should be included on the “application” or what shall be done with it. This leads us to the conclusion that, had the legislature intended the “application” to be a formal, written document, the legislature would have prescribed what information was necessary on the “application” and what was to be done with it.

Defendant, however, argues that because the term “application” is used in section 83 — 4 (Ill. Rev. Stat. 1989, ch. 38, par. 83— 4), the section regarding applications for firearm owners’ identification cards, the term “application” as used in section 24 — 3(g) must necessarily include a form. The language of section 83 — 4 refutes this argument. Section 83 — 4 states that “[e]ach applicant *** shall *** [mjake application on blank forms prepared and furnished *** by the Department of State Police.” (Ill. Rev. Stat. 1989, ch. 38, par. 83 — 4(a)(1).) Section 83 — 4 specifically states that the “application” shall be made on a form; section 24 — 3(g) does not contain this requirement. Thus, the use of the term “application” in section 83 — 4 is not at odds with the interpretation of the term as merely “a request.” We therefore conclude that the legislature intended that the term “application” have the meaning of “request” and the statutory requirement is an informal request to purchase a firearm. Since we believe the legislature intended that “application” mean “request,” we shall use the terms “application” and “request” interchangeably.

Defendant next contends that the State failed to prove beyond a reasonable doubt that he did not withhold delivery of the rifle for 24 hours after application for its purchase. The standard for determining whether a defendant has been proved guilty beyond a reasonable doubt usually is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) Because the facts in this cause are undisputed and the decision turns only on the proper interpretation of the statute, we may, instead, review the issue as a matter of law. People v. 1946 Buick, VIN34423520 (1989), 127 Ill. 2d 374, 378.

According to defendant, Valdez requested to purchase the rifle one week prior to the January 25, 1989, delivery, when he set up the meeting with Carranza. Defendant concludes that this request constitutes an application more than 24 hours prior to delivery of the rifle.

The jury instructions stated that the State was required to prove that defendant delivered the rifle “within 24 hours after application for its purchase had been made.” The instructions did not inform the jury that defendant could not be found guilty of the offense if the initial application was made more than 24 hours before the time of delivery. The State proved that a request for the purchase of the rifle was made within minutes of its delivery. The statute cannot be interpreted to mean that any request made within 24 hours of delivery will support a conviction. Otherwise, if a seller was required to withhold delivery of a weapon after any request, not just the initial request, the weapon could never be delivered because every time the purchaser asked for it, a new waiting period would commence. It is axiomatic that the legislature could not have intended such an absurd result. (People v. Steppan (1985), 105 Ill. 2d 310, 316.) Consequently, the statute must be interpreted to mean that an accused violates the statute if he does not withhold delivery of a rifle for 24 hours after the initial request for its purchase.

The State argues that the evidence showed that the arrangements for the purchase made by Valdez one week prior to January 25 were with Carranza, not with defendant. The State argues that defendant was not chargeable with knowledge of the earlier application for the purchase. Defendant responds that the statute does not require that the request be made in person to the one who delivers the weapon. We agree with this interpretation because criminal statutes must be construed strictly in favor of the accused. People v. Chandler (1989), 129 Ill. 2d 233, 254.

The evidence showed that the officers and Carranza met at the tavern on January 25, for a few minutes. They then went to Carranza’s house, where defendant was waiting. The four then proceeded to defendant’s home to get the rifle. Carranza handled the negotiations and accepted the cash. Defendant gave Carranza $50 out of the $350 Valdez paid for the rifle.

It is evident from Valdez’s testimony that Carranza was acting as defendant’s agent. (See Clapp v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 469, 472 (an agent is one who acts under authority from another to transact business for him).) The law considers the acts of an agent to be those of the principal. (Braught v. Board of Education of Mount Prospect Public School District No. 57 (1985), 136 Ill. App. 3d 486, 489.) Valdez, in effect, requested to purchase the rifle from defendant one week prior to the delivery date.

Even .if Carranza was not defendant’s “agent,” the exact time when defendant learned of the previous request for the purchase is immaterial, so long as defendant knew that the request was made more than 24 hours before the time that he delivered the rifle. The wording of the statute is such that there must be a request for the purchase, but the statute does not mandate that the person delivering the rifle have knowledge 24 hours in advance that the request had been made 24 hours prior to the time of the delivery. (See Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3(g).) The burden was on the State to prove that defendant did not know that the original request for the purchase of the rifle was made more than 24 hours prior to the time of delivery. This the State failed to demonstrate. The evidence showed that Valdez made arrangements for the purchase of the rifle one week prior to the delivery, and the State did not establish that defendant was unaware of that fact. We therefore conclude that the application for purchase of the rifle was made more than 24 hours prior to its delivery.

The State argues that, even if Carranza was acting in defendant’s behalf, the arrangement to purchase a rifle one week prior to January 25 could not constitute an “application” because there is no evidence they made arrangements for the purchase of a particular weapon. This argument is based on the assumption that the statute requires a request to purchase the exact weapon. It must be remembered that criminal statutes are to be construed in favor of the defendant (Chandler, 129 Ill. 2d at 254) and that the legislature did not intend absurdity, inconvenience or injustice (Steppan, 105 Ill. 2d at 316).

The statute applies to retail sellers of firearms as well as individuals. (See Ill. Rev. Stat. 1989, ch. 38, pars. 24 — 3(g), 2— 15.) It would be illogical to require a firearm dealer to set aside the exact gun a customer chooses to purchase until the waiting period has ended, when the dealer may have many guns of the same type in stock. Furthermore, under the State’s interpretation, a retailer would not be able to take an order for a firearm which was one of a number of identical weapons in a shipment that had not arrived at the store. The most logical interpretation of the statute is that a person must state a request to purchase a type of firearm, not a particular gun, and then must return either 72 or 24 hours later, depending on what type of firearm he or she intends to purchase. (See Ill. Rev. Stat. 1989, ch. 38, par. 24 — 3(g).) Under this construction of the statute, the agreement to meet the following week to close the deal constitutes an application to purchase the rifle. Since this application was made more than 24 hours prior to delivery of the rifle, the State failed to prove defendant’s guilt beyond a reasonable doubt.

Due to our conclusion that defendant’s conviction must be reversed, we need not address defendant’s remaining appellate contention.

The judgment of the circuit court is reversed.

Reversed.

GEIGER and McLAREN, JJ., concur.


author: JUSTICE NICKELS

text:
    JEAN K. JAKUBIK, n/k/a Torchy Chirafisi, Plaintiff-Appellee, v. JAMES C. JAKUBIK, Defendant-Appellant.
    Second District
    No. 2—90—0272
    Opinion filed January 24, 1991.
    Rehearing denied March 6, 1991.

      James C. Jakubik, of Libertyville, appellant pro se.

    Richard F. Lanciloti, of Roselle, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant, James C. Jakubik, appeals the entry of a garnishment judgment order by the circuit court of Du Page County garnishing his individual retirement account (IRA) with Fidelity Management Trust Company (Fidelity), which is located in Massachusetts. Richard F. Lanciloti (wife’s attorney) represented defendant’s ex-wife, Jean K. Jakubik, n/k/a Torchy Chirafisi, in a post-dissolution proceeding to obtain an order increasing plaintiff’s child support and for the payment of future college education costs: The court awarded attorney fees, the amount of which is not appealed, directly to wife’s attorney in connection with those proceedings. Wife’s attorney obtained a non-wage garnishment of husband’s IRA account and a turnover order to enforce that award. On subsequent motions to reconsider and to vacate the turnover order (garnishment judgment), defendant asserted section 12 — 1006 of the Illinois Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 1006), which exempts the IRAs from judgment. The court rejected defendant’s argument, holding that Illinois’ strong public policy favoring collection of child support and maintenance obligations created an exception to the property exemption statute for attorney fees incurred in collection of support obligations. We reverse.

This court first addresses the choice-of-law question raised by wife’s attorney, which we find not well taken.

Fidelity, the custodian of defendant’s IRA, is located in Massachusetts. Fidelity’s custodial agreement included a choice-of-law provision stating that Massachusetts law would control. Thus, wife’s attorney asserts that Massachusetts law, which does not contain a property exemption for IRAs, governs the execution of judgment by garnishment of defendant’s IRA in this instance.

Generally, contract choice-of-law questions are dictated by the terms of the contract itself, and a court will not disturb the parties’ choice of what law will govern disputes arising between them under their contract. (Hofeld v. Nationwide Life Insurance Co. (1975), 59 Ill. 2d 522.) However, wife’s attorney was not a party to the contract he asserts as a basis for applying Massachusetts law. Therefore, wife’s attorney was neither bound by its terms, nor can he invoke its terms as a bar to the application of Illinois law. Iser Electric Co. v. Ingran Construction Co. (1977), 48 Ill. App. 3d 110, 113.

Spindle v. Schreve (1884), Ill U.S. 542, 28 L. Ed. 512, 4 S. Ct. 522, cited by wife’s attorney, is not controlling in that it addresses the validity of a trust containing a provision in restraint of alienation, not the application of an exemption from judgment. (111 U.S. at 547-48, 28 L. Ed. at 513-14, 4 S. Ct. at 524-25.) The Court further found the bankruptcy trustee’s attempt to reach the property to satisfy creditors moot, either by the nonalienation provision itself or by a prior blanket conveyance of all the bankrupt’s assets if the provision was, in fact, invalid. Thus, it was unnecessary to resolve the choice-of-law issue raised by the trustee. 111 U.S. at 548, 28 L. Ed. at 514, 4 S. Ct. at 525.

It was the court’s exercise of its powers to enforce its own order, which arose from the underlying marriage contract between defendant and his former spouse, and its eventual dissolution, that framed the issue for choice-of-law determination. Thus, Illinois law applies because the parties have invoked the statutory power of the Illinois courts to grant dissolution. (Morrow v. Morrow (1957), 15 Ill. App. 2d 109.) Further, Illinois applies the most significant contacts rule in contract actions where the parties have neglected to make an effective choice of law. (See Illinois Tool Works, Inc. v. Sierracin Corp. (1985), 134 Ill. App. 3d 63, 69.) Thus, Illinois as the parties’ domicile and where the contract was both executed and to be performed has the most significant contacts to this action. See Illinois Tool Works, 134 Ill. App. 3d at 69, citing Champagnie v. W.E. O’Neil Construction Co. (1979), 77 Ill. App. 3d 136.

Having determined that Illinois law applies, section 12 — 1006 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 1006) exempts defendant’s IRA from judgment, subject to statutory exceptions. Child support and maintenance obligations are subject to such a statutory exception. Generally, however, attorney fees enjoy no exception to the exemption statutes. Wife’s attorney argues that fees generated during a proceeding that concerns the support obligation assume the same quality as the support obligation and, therefore, enjoy the same benefit of statutory exception from the property exemption statutes as child support and maintenance obligations.

Initially, we note that Bobowski v. Bobowski (1909), 242 Ill. 524, cited by wife’s attorney, is not controlling. In Bobowski, the court was expressly authorized by statute to dispose of a spouse’s homestead exemption at the time of the divorce settlement. (Bobowski, 242 Ill. at 530.) The supreme court found that the creation of lien at the time of the divorce upon the real property of the husband for alimony and attorney fees was an implicit disposal of the husband’s homestead exemption for that property. Thus, at the time the judgment was executed against the real property, no exemption existed. In contrast in this instance, defendant’s property exemption for his IRA remained intact at the time of the garnishment judgment.

Because wife’s attorney asserts that attorney fees incurred in obtaining a modification of child support obligations enjoy the same exception from the property exemption statutes as child support and maintenance obligations, our inquiry begins with the language of the statutes that are the basis of the support obligation exception. The primary rule of statutory construction is to ascertain and effectuate the intent of the legislature in interpreting the language of a statute. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) Clear language must be given effect without resort to extrinsic aids. People v. Boykin (1983), 94 Ill. 2d 138, 141.

The withholding provisions for child support and maintenance of both section 706.1 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1983, ch. 40, par. 706.1) and section 1107.1 of the Non-Support of Spouse and Children Act (the Non-Support Act) (Ill. Rev. Stat. 1983, ch. 40, par. 1107.1) expressly take precedence over contrary laws. “Any other State or local laws which limit or exempt income [available to pay child support or maintenance] shall not apply.” (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(A)(4)(e); ch. 40, par. 1107.1(4)(e).) So, too, both allow withholding of income “regardless of source” for the purpose of securing support obligations. (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(A); ch. 40, par. 1107.1.) Thus, the express language of the Dissolution Act and the Non-Support Act unequivocally creates an exception to the personal property exemption statutes for child support and maintenance obligations without mention of attorney fees.

Further, the withholding provision of the Non-Support Act is clearly addressed to a spouse who has refused to recognize his responsibility to support his family. (Ill. Rev. Stat. 1983, ch. 40, par. 1101.) So, too, the original withholding provision of the Dissolution Act was originally limited to only delinquent obligors. (Ill. Rev. Stat. 1983, ch. 40, par. 706.1(B).) The Dissolution Act’s revision, effective in 1989, allowed an order of withholding to be entered immediately upon the initial order of support only if no agreement between the spouses that adequately assured payment of the support obligation had been reached. (Ill. Rev. Stat. 1989, ch. 40, par. 706.1(B).) However, even as revised, it is clear that an order of withholding is only required when an obligor has been or is delinquent, and an order of withholding remains within the discretion of the court when support obligations are being timely met. Thus, the focus of the withholding provisions of both the Non-Support Act and the Dissolution Act is the delinquent obligor and not a spouse who is timely meeting his or her support obligations. Here the obligations that were the basis for attorney fees were future obligations.

In granting wife’s attorney his fees, it was the incurring of attorney fees in connection with collection of support obligation that swayed the trial court: “The court in finding at this time that based on Bobowski, that public policy reasons would require that the exemption provided for in the statute would not extend to fees which were reduced to judgment for the collection of child support.” Thus, the court, too, focused on the delinquent status of the obligor. However, the facts in this instance are that the fees were generated not in collection of past-due child support, but rather to modify and enlarge defendant’s future obligation.

The cases cited by wife’s attorney interpreting the language of the Dissolution Act and the Non-Support Act offer no basis upon which this court may extend the exception to permit garnishment of an IRA to satisfy a judgment for attorney fees. In both Logston and In re Support of Matt (1985), 105 Ill. 2d 330, the exempt property was taken to satisfy unpaid support obligations. (See, Logston, 103 Ill. 2d at 283-84 (exempt status of income no defense to contempt proceeding for failure to pay support obligation); In re Support of Matt (1985), 105 Ill. 2d 330 (exempt status of spendthrift trust income did not prevent the garnishment of the income, but not principal, from the trust to pay past-due child support).) Thus, the language of both the Dissolution Act and the Non-Support Act contains no clear indication of a legislative intent to create an exception to property exemption statutes for attorney fees generated in connection with support obligations. Rather, the language of the Dissolution Act and Non-Support Act is that only support obligations enjoy the exception from property exemption.

Wife’s attorney argues the public policy that supports the Dissolution Act and the Non-Support Act warrants the extension of the exception he seeks. Wife’s attorney correctly summarized the public policy that underpins both the provisions of the Dissolution Act and the Non-Support Act, which is to ensure that support judgments are enforced by all available means. (People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 271.) Our supreme court has recognized a “national child support crisis.” (Sheppard, 124 Ill. 2d at 270.) The withholding provisions of the Dissolution Act and the Non-Support Act “fulfillD an important social need in terms of declaring an obligation of support and improving Illinois’ method of enforcement” through a more disciplined and uniform approach. Sheppard, 124 Ill. 2d at 272.

However, the public policy that supports the various personal property exemption statutes is identical to that which is the basis of the Dissolution Act and the Non-Support Act. The property exemptions allow a debtor to retain sufficient assets so that he or she may continue to meet family obligations of support, thereby avoiding the public expense of assuming such obligations. Logston, 103 Ill. 2d at 279.

Wife’s attorney argues that, absent the ability to collect awarded fees, a spouse will be unable to obtain representation to protect his or her rights. However, wife’s attorney is free to enforce his judgment against other of defendant’s nonexempt assets, as may any other judgment creditor. Illinois’ public policy favors the payment of child support and maintenance obligations from exempt property to promote the support of the family, not the support of attorneys. Indeed, payment of attorney fees from sources held exempt for family obligations could deplete such resources so as to leave no assets available to satisfy the support obligation itself. The attorney fees as an extension of the exception would thus defeat the support obligation that is the very essence of the exception. The long and well-established public policy enunciated in the Dissolution Act and the NonSupport Act, as well as the property exemption statutes, is to maintain assets for family support. That policy would be subverted, not promoted, if exception to the personal property exemptions was extended to attorney fees.

Having decided that the court erred in allowing garnishment of defendant’s IRA in execution of a judgment for attorney fees, we now turn to wife’s attorney’s liability for improper garnishment of exempt property. Section 12 — 1005 of the Code (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 1005) imposes civil liability of double the value of the exempt property improperly taken. Wife’s attorney argues that section 12— 1005 is inapplicable because his conduct was taken in good faith based upon the published law, and also a good-faith argument for the extension, modification, or reversal of existing law.

Section 12 — 1005 does not contain a requirement of unreasonable conduct or bad faith. Although an available remedy for nearly 100 years, little case law exists interpreting it and none in the last 50 years. However, the purpose of section 12 — 1005 is punitive. (See, e.g., Johnson v. Larcade (1903), 110 Ill. App. 611, 618.) It imposes a penalty of double the value of property improperly seized upon an officer who fails to ascertain the exempt status of such property. (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 1005; Johnson, 110 Ill. App. at 618.) Thus, section 12 — 1005 is analogous in purpose to section 2— 611, which imposes the penalty of an opponent’s attorney fees upon an attorney who fails adequately to investigate a claim prior to bringing suit. (See Ill. Rev. Stat. 1983, ch. 110, par. 2 — 611.) Therefore, by further analogy, the good-faith or honest-mistake defense to a section 2 — 611 claim should also be extended to a claim for a penalty under section 2 — 1005. See Peoples Gas Light & Coke Co. v. Black Steer Provision Co. (1985), 131 Ill. App. 3d 387.

Although section 12 — 1006 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 1006) exempting defendant’s IRA from judgment was effective August 30, 1989, it was not published until October 1989, one month after the garnishment proceeding. Section 12 — 1006 contains a special effective date, some 10 months earlier than that which would normally occur. Wife’s attorney’s conduct was based on the law as was available to him at the time he instituted garnishment proceedings against the defendant’s IRA. We find that because of the peculiar timing of the action taken in this case, wife’s attorney acted reasonably and in good faith, and section 12 — 1005 does not impose liability upon wife’s attorney of double the value of the exempt property improperly taken.

The judgment of the circuit court garnishing defendant’s IRA is reversed, and the cause is remanded for further proceedings not inconsistent with this decision.

Reversed and remanded.

INGLIS and BOWMAN, JJ., concur.