text:
      In re MARRIAGE OF STEPHANIE L. DODGE, Petitioner-Appellee, and JOHN M. DODGE, Respondent-Appellant.
    First District (5th Division)
    No. 1—87—2469
    Opinion filed May 26, 1989.

      Linda S. Kagan, of Chicago (Douglas P. Maloney, P.C., of counsel), for appellant.

      Barbara B. Hirsch, of Chicago, for appellee.
   JUSTICE LORENZ

delivered the opinion of the court:

This appeal follows a contested trial for dissolution of marriage. Respondent, John M. Dodge (John), contends the trial court abused its discretion regarding three aspects of the judgment: determination of the amount, duration, and period of review of a maintenance award to respondent, Stephanie L. Dodge (Stephanie); the requirement that John pay $184,000 to Stephanie as her share of John’s profit sharing plan; and the award of $10,000 in attorney fees and costs to Stephanie.

We affirm.

John and Stephanie were married in 1961. At the time of trial in May 1987, John was 49 years old and Stephanie was 46 years old. The Dodges had two children: a son, age 24, then emancipated and living out of State, and a daughter, age 22, then a senior at the University of Wisconsin in Madison.

Summarized below are facts pertinent to the disposition of the issues raised on appeal.

SUPPORT AND MAINTENANCE

Since 1961, John was employed with Commerce Clearing House (CCH) and, at the time of trial, was an assistant vice-president. The parties stipulated that in 1986, John earned $75,503.89 in gross salary and was awarded a year-end bonus of $11,500, receipt of which he elected to defer to 1987. Had he not deferred receipt of the bonus, John’s total income from CCH for 1986 would total $87,033.89. John stated he regularly received bonuses in December from CCH in addition to his yearly salary. John lived in a newly constructed, mortgage-free townhouse, which he purchased in 1985.

At trial, Stephanie testified she had briefly worked part-time in an obstetrician’s office and as a dental assistant. In 1975, she began part-time work at the Deerfield Public Library. She later worked at the Northbrook Public Library and began working full time there in 1980. She received $14,623.60 and $15,737.12 in compensation for years 1985 and 1986, respectively. Stephanie had recently accepted a job offer with the American Library Association (ALA) as assistant to the director in the children’s division. Stephanie was to begin in May 1987 at an annual salary of $18,000. The salary range for that position was $17,000 to $24,000.

Stephanie testified that her educational background included attending one year of college prior to her marriage, several continuing education courses, and seminars in conjunction with her library job.

Stephanie resided alone in the marital home in Deerfield where the couple had lived for 18 years. She testified that her daughter occasionally spent weekends there and that, following graduation from college, her daughter would live with her. Her son also occasionally visited over weekends.

Stephanie stated that the house was approximately 30 years old. Various repairs were needed, including minor plumbing work and repair of a hole in the kitchen floor. The home had not been recarpeted since purchase. The kitchen stove and oven as well as the washer and dryer were 18 years old. The dishwasher and garbage disposal were eight years old. A new refrigerator was installed in 1984.

A budget, containing projected monthly expenses, was offered into evidence upon John’s counsel’s stipulation that Stephanie would establish the amounts and items listed therein. The expenses totaled $4,245. John’s counsel questioned Stephanie about various projections.

With reference to the marital home, the budget contained a projection of $325 per month for appliances and home maintenance. Stephanie admitted that she had not obtained any estimates for plumbing work or painting. She also admitted that an estimate of $1,100 for repair of the kitchen floor was three years old.

With reference to insurance, Stephanie included a $100 life insurance expense in the budget even though her present employer provided life insurance and the ALA would provide $15,000 worth of life insurance. She also admitted that the ALA provided 75% of the cost of medical insurance, but had included $250 as projected medical insurance expense because of uncertainty as to the extent of the ALA plan’s coverage. The amount budgeted for medical insurance was based on a discussion she had with her sister, who was employed in the medical division of Kemper Insurance.

Regarding an expense for church contributions, Stephanie admitted that in 1986 she was only able to make contributions of $25 per month to her church, but had included projected monthly contributions of $100.

Stephanie was also questioned about the budget projection of $400 per month for clothing and $75 for dry cleaning. She stated that in April 1987 she spent close to $400 for clothing. She admitted, however, that she did not purchase clothing in the preceding months of January or March and purchased only a “small amount” in February. Stephanie stated that in April 1987 she spent approximately $35 for dry cleaning expense, but was unable to recall how much she spent in February or March. She explained, however, that the $75 projected monthly expense for dry cleaning was based on discussions with friends and the circumstances of her new job in the city.

John’s counsel pointed out discrepancies between amoimts for items contained in an earlier budget, considered in conjunction with a petition for maintenance in 1985, and that offered at trial. In her later projections, Stephanie included a $250 monthly expense for an automobile. During questioning, however, she admitted that her current car payment was only $107 and that the $250 projection was based on a new car purchase. She also explained that the earlier budget reflected a lower projection for automobile maintenance than did the later budget due to her increased knowledge of costs of maintenance and because her car was older. She similarly explained that increased projections for groceries and laundry contained in the later budget were partly due to her developing knowledge of actual expenses for those items. Stephanie stated that John was primarily responsible for the payment of bills.

Based on the evidence adduced at trial and as stipulated to, the trial court, on June 12, 1987, ordered John to pay Stephanie monthly maintenance of $2,100, which amount was reviewable at the request of either party after five years. Maintenance was to continue until such time as Stephanie remarried, entered into cohabitation on a continuous conjugal basis, or died.

THE CCH PROFIT SHARING PLAN

The parties offered into evidence a trial stipulation addressing John’s interest in the CCH “Employees Profit Sharing, Savings, and Stock Ownership Plan” (plan). As of March 31, 1987, John’s fully vested interest in the plan totaled $436,304.59. Of that amount, $184,193.52 represented John’s contributions.

The parties also agreed to the admission of two exhibits regarding the plan. The first, a group exhibit, labeled “Petitioner’s Exhibit 103,” consisted of copied pages of John’s quarterly statement of account through December 31, 1986. When examined in conjunction with the stipulation, that exhibit established that, as of December 31, 1986, John’s tax-deferred (before tax) contributions were $15,876.27, his after-tax contributions were $43,049.33, and company contributions totaled $81,172.27. The second exhibit, labeled “Petitioner’s Exhibit 104,” was a booklet summarizing the plan’s provisions.

Relevant here, paragraph 25 of the stipulation provided:

“25. JOHN M. DODGE may withdraw the amount of $184,193.52 as of March 31, 1987. Withdrawals are governed by the terms [of] par. 601A of Petitioner’s Ex. 104, but the plan has now been additionally modified so that if a person withdraws up to the amount of after-tax contributions there are no penalties.”

The parties further stipulated John could withdraw all sums from the plan after reaching the age of 59V2. Before reaching that age, John could withdraw sums from the plan under financial hardship. The plan’s provisions included, as examples of such hardship, the purchase, construction or reconstruction of a principal residence, sickness, accident, death in the family, and tuition expenses.

Based on evidence regarding the plan, the trial court found that, as of March 31, 1987, John’s fully vested interest totaled $436,304.59. The court order John to pay Stephanie $184,000 within six months of judgment, payment to represent full satisfaction of any claim as beneficiary.

ATTORNEY FEES AND COSTS

Following trial, on May 19, 1987, a hearing was held on Stephanie’s counsel’s petition for fees. The court indicated, at that time, that counsel’s verified petition, filed August 22, 1985, as modified, and supplement, filed May 12, 1987, would stand as counsel’s direct testimony. Those documents set out the dates of work performed in conjunction with the case and amount charged. The documents established fees totaling $19,846.90, of which Stephanie had paid $3,000.

John’s counsel, after reviewing the petitions, did not dispute the amount of time expended nor the reasonableness of the rate charged. Counsel argued, however, that Stephanie, by virtue of the property division, did not lack the ability to pay her own attorney fees. Imposition of fees, counsel stated, must be conditioned on proof of Stephanie’s inability to pay and John’s ability to do so and that, because of the nature of the property distribution, John would necessarily incur debt to pay the fees requested.

The court ordered respondent to pay $10,000 of the total amount of fees incurred by Stephanie. The court found that without invading the principal of the $184,000 payment from John, Stephanie did not have the ability to pay the entire amount of fees. However, the court determined Stephanie could pay the remaining balance of unpaid fees, totaling $6,846.90, and could invade the principal of the $184,000 to do so.

Opinion

We consider, in turn, each of the issues raised on appeal.

First, John contends the maintenance award is not supported by the record. He argues that because neither of the Dodges’ children lived with Stephanie in the marital home, and because it was mortgage-free, Stephanie could realize substantial proceeds from its sale, presumably in place of maintenance. John also notes that in May 1985, after a pretrial hearing, temporary maintenance was set at $1,500 per month and, although Stephanie’s gross salary was only then $14,623, she was able to increase savings and IRA account balances. John argues that budgeted expenses for clothing, church donations, medical insurance, dry cleaning, automobile, groceries, and home maintenance did not reflect actual expenses, but constituted projections of desirable amounts.

John further contends maintenance should not have been made subject to review because Stephanie was employed full time, was only 46 years old, and enjoyed good health. Rather, John argues, the award should have been limited in duration to 18 months from the date of judgment, when John was to pay Stephanie her share of John’s interest in the CCH plan.

In evaluating John’s arguments, we observe that trial courts enjoy broad discretion in awarding maintenance pursuant to section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 504), and appellate courts will interfere with such awards only where no reasonable man would agree with the judgment rendered. (In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 436 N.E.2d 228.) After carefully examining the record in light of that standard of review, we do not conclude the award was improper either in amount, duration, or because it was subject to review.

John’s contention that maintenance was unnecessary because sale of the marital home could generate substantial proceeds is based on In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336. In Bentivenga, John states, denial of maintenance to the wife was affirmed “in part, on the assumption that the wife could sell the marital residence in the near future,” suggesting a similar consideration should govern here.

We do not believe the holding in Bentivenga can be reasonably read to include such an assumption. With respect to the denial of maintenance, the court simply noted that the division of marital property to the wife, which included projected proceeds from sale of the marital home divided between the parties, was mostly in cash and, when considered with her salary, constituted sufficient income. (Bentivenga, 109 Ill. App. 3d at 971, 441 N.E.2d at 339.) Moreover, a wife has no obligation to sell her assets to generate income to support herself where the husband has sufficient income to meet his needs while meeting hers. In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.

Nor do we agree with John’s argument that the award should be disturbed in view of the amount of temporary maintenance previously set. John has provided no authority to support that position. Propriety of maintenance awards must be assessed in relation to evidence adduced at trial concerning the parties’ circumstances to determine what is just, rather than in relation to the amount of temporary maintenance ordered in preliminary proceedings.

Further, we decline to substitute our own judgment in place of the trial court’s and so alter the amount of maintenance on the basis of John’s contention that certain budget projections did not reflect actual expenses. At most, the record contains conflicting testimony as to expenses. Stephanie established, via stipulation of her testimony of items and amounts contained in the budget, the standard of living during the marriage. John, in his own testimony, presented no evidence in contradiction. The trial court had opportunity to consider Stephanie’s testimony, on cross-examination, concerning discrepancies in budgeted amounts. We are satisfied that the above evidence was carefully considered and, because the issue becomes, essentially, one of credibility, we find no basis to disturb the award. In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.

Last, we are not persuaded by John’s argument that Stephanie’s age, employment, and good health are factors which should preclude review of the maintenance award. We held in In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294, that the award of permanent maintenance to a healthy 47-year-old college-educated woman, free of raising a family, who anticipated $15,000 annual income as a travel agent, warranted review and was an abuse of discretion. While we are aware of differences between Heller and the instant case, we conclude that consideration of changes in the parties’ income and expenses which necessitated review there is also appropriate here and support the determination that review is proper. (See Heller, 153 Ill. App. 3d at 235-36, 505 N.E.2d at 1301.) Acceptance of John’s argument ignores the occurrence of such changes.

John next contends the trial court failed to give adequate consideration to adverse tax consequences to John when it awarded payment of $184,000 from the CCH plan. John states payment was based upon an inaccuracy in paragraph 25 of the trial stipulation, indicating John’s total contributions were available for withdrawal without penalty. However, John states only his after-tax contributions, totaling $43,049.33 as of December 31, 1986, could be withdrawn without penalty.

Considerable discussion was had at the trial’s outset regarding the stipulation. John’s counsel stated that paragraph 25 was inaccurate because it indicated that contributions including before-tax amounts of the total $184,193.52 interest could be withdrawn without penalty. The court acknowledged counsel’s concerns regarding paragraph 25 and stated that that portion of the stipulation could not be considered conclusive. Over Stephanie’s counsel’s objection, the trial judge indicated he would allow John’s counsel to withdraw paragraph 25 and would permit evidence on the matter. However, because Stephanie’s counsel had relied on the stipulation in excusing witnesses from CCH regarding withdrawals from the plan, the court agreed that John’s counsel could vary the stipulation only through testimony of the plan’s administrator, not John’s own testimony. The court therefore conditioned withdrawal of paragraph 25 upon John’s counsel’s production of the plan’s administrator “for the purpose of ascertaining what number should be inserted into paragraph 25, if any number other than what is there now.”

During the third day of trial, after the close of Stephanie’s case, John’s counsel advised the court that he had been in contact with CCH and had learned that, although subpoenaed by him, John Hartman, the plan administrator, would not appear to testify. The trial judge indicated that responsibility for asking the court for an order enforcing the subpoena rested with John’s counsel. The trial judge again indicated that variance with the stipulation depended on evidence presented by John’s counsel and that the court would make a determination, at that time, regarding paragraph 25. The trial judge stated he would consider the subpoena filed and continued on a daily basis. Trial proceeded.

Although John’s counsel presented evidence in the form of John’s testimony that John’s after-tax contributions totaled $43,049.33 as of December 31, 1986, the record reflects he did not call as a witness the plan administrator nor seek to enforce the subpoena.

John now asserts that although that testimony would have been “helpful,” the court had sufficient information in the form of relevant exhibits and John’s testimony to find that only $43,049.33 was available for withdrawal without penalty and, thus, remand is proper.

We begin our consideration of the issue by focusing on the language of paragraph 25 of the stipulation as set out above. While the first sentence of paragraph 25 indicates John may withdraw $184,193.52 as of March 31, 1987, from the plan, it is clear the paragraph’s second sentence is intended to explain the terms of such withdrawal. Concerning penalties for withdrawals, the first clause of the second sentence directs attention to paragraph 601A of exhibit 104, the booklet summarizing the plan’s provisions. Paragraph 601A provides for the withdrawal of any or all after-tax contributions at any time. There is no language in paragraph 601A indicating any penalties in conjunction with withdrawal of after-tax contributions. Penalties are incurred under paragraph 601A only in conjunction with withdrawal of before-tax contributions before the plan member reaches age SSVa. Penalties include a six-month suspension on contributions to the plan, limitation on employer year-end contributions to the excess of calendar year contributions over withdrawn amounts (not to exceed 6% of compensation), and potential loss of a year of service for purposes of vesting computations.

The second clause of the second sentence of paragraph 25 is curiously worded and appears to indicate paragraph 601A was modified to eliminate penalties in conjunction with withdrawal of after-tax, not before-tax amounts. The clause states the plan, as modified, allowed withdrawals “up to the amount” of such contributions without penalty. We observe that unless the language “up to the amount” is read “all contributions including both before-tax and after-tax dollars,” the purported modification does not vary the provisions of paragraph 601A.

To that extent, we agree with John that paragraph 25 of the stipulation is not conclusive as to the amount of John’s contribution which could be withdrawn without penalty. Nevertheless, we must disagree that remand is appropriate here.

We have before addressed the propriety of remand in view of parties’ obligations in marriage dissolution actions to provide, at trial, sufficient evidence enabling the court to make an informed property distribution. For example, in In re Marriage of Skahn (1986), 149 Ill. App. 3d 764, 501 N.E.2d 229, we declined respondent’s urgings to remand the matter for determination of the present value of pension benefits because, notwithstanding repeated requests by the court, respondent neglected to provide, or seek to introduce, any data to establish the value as of the time of trial. We reasoned there that remand was not appropriate because respondent had adequate opportunity to introduce evidence pertaining to property value, but failed to do so. See Skahn, 149 Ill. App. 3d at 768-69, 501 N.E.2d at 232.

Similarly, in the instant case, although John was given opportunity to present evidence to clarify the stipulation, he failed to do so. As we have noted, the record is clear that the trial judge was aware of the inconclusiveness of the stipulation regarding the potential penalties regarding withdrawals. On two occasions, discussions were had with John’s counsel concerning the need to have the plan administrator produced in order to clarify paragraph 25. The record shows John’s counsel failed to produce the plan administrator or seek a contempt citation for his failure to appear. In the absence of that testimony, the trial judge was presented with a confusing stipulation and conflicting evidence as to how much of the $184,193.52 was available for withdrawal without penalty. We decline to find fault with the trial court’s resolution of the matter and allow John to benefit by his failure to introduce, or seek to introduce by enforcement of the subpoena, the testimony of the plan administrator in light of the admonitions of the trial court to do so.

Last, John argues that by ordering payment of $10,000 in attorney fees to Stephanie, the trial court failed to balance the financial obligations imposed on John against the debt-free assets and payments awarded to Stephanie. Specifically, John points out Stephanie’s gross income, including maintenance, totaled approximately $43,200, in contrast to his own net income, after taxes and maintenance payments, of $65,000, out of which he was to pay for his daughter’s postgraduate education, if any. He also states that, apart from attorney fees, Stephanie had no substantial debts and received marital assets totaling $330,000. John also contends the trial court improperly based its order, in part, on Stephanie’s counsel’s efforts to have John held in contempt of court.

Generally, although attorney fees are the responsibility of the party for whom services were rendered, courts may order one spouse to pay the other’s fees after considering the financial resources of both. (Ill. Rev. Stat. 1985, ch. 40, par. 508; In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, 533 N.E.2d 29.) A decision regarding fees will not be disturbed on review absent an abuse of discretion. (Einhorn, 178 Ill. App. 3d 212, 533 N.E.2d 29.) The award of $10,000 in fees to Stephanie was not such an abuse.

As we have summarized above, the record reveals the trial court carefully considered the parties’ respective financial positions and Stephanie’s ability to pay fees. We are not impressed by John’s argument to the contrary, which takes into consideration Stephanie’s annual gross salary as opposed to John’s net income. Further, we find the insinuation that the trial court’s award of fees was, in part, a punitive measure based on Stephanie’s counsel’s efforts to have John held in contempt of court a mischaracterization of the record. The transcript of the court’s comments on May 19, 1987, to which John directs us, reveals that the court noted the amount of fees was justified by .efforts of Stephanie’s counsel in conjunction with “non-settlement of the case,” “trial of the case,” and “concerning rules to show cause and other matters that were in the case.” In other words, the sum total of activity associated with trial of the cause.

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

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE MURRAY

license: Public Domain

text:
    STATE FARM FIRE AND CASUALTY COMPANY, Plaintiff-Appellee and Cross-Appellant, v. STEFANIE RIXECKER, Defendant-Appellant (Matthew C. Johnston et al., Defendants; Allstate Insurance Company, Defendant and Cross-Appellee).
    First District (5th Division)
    No. 1—87—2916
    Opinion filed May 26, 1989.

      Daniel S. Hefter and Clyde M. Hettrick, both of Isham, Lincoln & Beale, of Chicago, for appellant.
    James J. Hoffnagle, of Taylor, Miller, Sprowl, Hoffnagle & Merletti, of Chicago, for appellee.
   PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

This appeal and cross-appeal arose as a result of a declaratory judgment action in which State Farm Fire and Casualty Company sought a declaration that (1) a policy of automobile liability insurance issued by it to Amulf Rixecker, the father of defendant Stefanie Rixecker, and a policy issued by Allstate Insurance Company to Morey Sachnoff did not provide liability coverage for an accident which occurred when defendant was driving Sachnoff’s car, or (2) that if the policies did provide coverage for the accident, the Allstate policy provided primary coverage and State Farm’s policy provided excess coverage. The trial court entered summary judgment in favor of Allstate on May 26, 1987, and summary judgment in favor of State Farm on August 19, 1987, ruling in both instances that defendant Rixecker was precluded from coverage under the policies because she lacked the permission or consent of the owner or person entitled to lawful possession of the car to drive it when she collided with the other vehicle.

Rixecker appeals only from the order granting State Farm summary judgment, contending that the trial court erred in using an “objective” rather than “subjective” test in determining that she lacked consent to use the Sachnoff car. State Farm, in its cross-appeal against Allstate, argues that should this court find that Rixecker is covered under the policy it issued to Rixecker’s father, then such coverage is excess coverage and the policy issued by Allstate to Sachnoff, the owner of the car, provides primary coverage for the accident. Allstate has not filed a brief in answer to State Farm’s cross-appeal pursuant to this court’s order granting a stay of that appeal until we have disposed of Rixecker’s appeal against State Farm. For the reasons set forth below, we affirm.

The record discloses that on April 17, 1983, Rixecker, while driving a 1978 Toyota owned by Morey Sachnoff, collided with a car being driven by Matthew Johnston in North Chicago. As a result, Todd Warner, one of the passengers in the Johnston vehicle, was killed. Warner's administrator subsequently filed a wrongful death action against Rixecker and others.

Prior to April 17, Morey Sachnoff had given his son Lee possession of the Toyota. Lee had parked the car in the driveway at his home in Riverwoods on the day of the accident. On the same day, Rixecker, who had been released from a hospital after a suicide attempt three days earlier and was intoxicated from the consumption of barbituates, left her house with some teenage friends to go for a car ride. She subsequently instructed the driver of the car she was riding in to drive down some streets near Bannockburn. When they came to Lee Sachnoff's driveway, Rixecker told her friend to drive the car in and stop. Even though Rixecker did not know the Sachnoffs, nor they her, she then went over to the Toyota which was parked in the driveway, found the keys in the car, and drove off. Shortly thereafter she was involved in the collision with Johnston’s car, which resulted in Todd Warner’s death.

The pertinent provisions of the State Farm policy considered by the trial court in granting State Farm summary judgment are as follows:

“The liability coverage extends to the use by an insured of a newly acquired ear, a temporary substitute car or a non-owned car.
Non-Owned Car — means a car not:
1. owned by,
2. registered in the name of, or
3. furnished or available for the regular or frequent use of: you, your spouse, or any relatives. The use has to be within the scope of consent of the owner or person in lawful possession of it.” (Emphasis in original.)

On appeal, Rixecker contends that the trial court erred in applying an “objective” rather than a “subjective” test in determining that she lacked consent to drive the Sachnoff car. The difference between the two, according to Rixecker, is that in the former case consent is determined from the perspective of Sachnoff as the owner of the car, and in the latter case it is determined from her perspective as the driver of a nonowned vehicle. While she admits that she did not have express consent to drive the Sachnoff car, at the same time she argues, in applying a subjective test, that she could “possibly” have had a “reasonable belief” that she had consent to take the car since she was “incapable of understanding whether or not she had the owner’s permission” due to her intoxication from consumption of barbituates and a mental disorder. Accordingly, she contends this was a question of fact for the trier of fact, thereby precluding entry of summary judgment. In support of her reasonable belief-subjective test argument, Rixecker relies on several Illinois cases and authority from another jurisdiction.

We find that the obvious fault in Rixecker’s argument is that since she admittedly knew she did not have the Sachnoffs’ express consent to take the Sachnoff car and did not know the Sachnoffs, then she simply could not have reasonably believed she had some kind of implied consent, which she appears to be asserting based on the authorities she relies on. We further observe that even the authorities she relies on are inapplicable under the facts before us. (See Western States Mutual Insurance Co. v. Verruchi (1977), 66 Ill. 2d 527, 363 N.E.2d 826; United States Fidelity & Guaranty Co. v. McManus (1976), 64 Ill. 2d 239, 356 N.E.2d 78; Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333, 297 N.E.2d 163.) They are inapplicable because they concern the “initial permission” rule, which provides that “where an insurer elects to include in its policy a broad provision extending liability coverage to persons operating or using a car with the permission of the owner, a further grant of permission from the initial permittee need not be shown in order to invoke the coverage,” barring theft or a tortious conversion. (United States Fidelity & Guaranty Co. v. McManus (1976), 64 Ill. 2d 239, 243, 356 N.E.2d 78.) Here, Lee Sachnoff, the initial permittee, simply did not expressly or impliedly give his consent or permission to Rixecker to take the car; she just took the car without Sachnoff’s knowledge. At best, Rixecker may have had some metaphysical belief she had Sachnoff’s consent, but we know of no authority which would support that such a belief would fall within the consent required under the subject policy provision.

We further observe that at the very least Rixecker obtained possession of the car by means of a tortious conversion (control over the car in a manner inconsistent with the Sachnoffs’ right of possession), an exception to application of the initial permission rule and, therefore, her reasonable belief argument would fail since a person’s malice, culpability or conscious wrongdoing is irrelevant where a person tortiously converts another’s property. See Landfield Finance Co. v. Feinerman (1972), 3 Ill. App. 3d 487, 279 N.E.2d 30.

We also note that the recent case of Economy Fire & Casualty Co. v. State Farm Mutual Insurance Co. (1987), 153 Ill. App. 3d 378, 505 N.E.2d 1334, further supports our rejection of Rixecker’s reasonable belief-subjective test argument. In that case, the defendant transferred title to his car to his girlfriend, who then acquired an insurance policy on the car from Economy that contained a provision denying coverage to any person using the insured car “without a reasonable belief that the person is entitled to do so.” (153 Ill. App. 3d at 383.) At a later date the defendant, while intoxicated, forcibly took the keys to the car, and subsequently was involved in an automobile collision. The court, in holding that coverage did not exist under Economy’s policy, stated that the defendant did not have a reasonable belief that he was entitled to drive the car for a number of reasons, including the fact that in his intoxicated condition it was apparent that he “just forcibly took the car without even considering whether he was entitled to do so.” (153 Ill. App. 3d at 383.) In the instant case, the facts similarly indicate that Rixecker, in her admitted intoxicated condition, also did not even consider whether she was entitled to take the Sachnoff car. We finally note that no provision of the subject policy conditions coverage for the use of a nonowned car on the driver’s “reasonable belief” that he is entitled to drive a nonowned car, as it could have so provided; it only provides coverage for the use of a nonowned car if that use is within the scope of the consent of the owner or person in lawful possession of the car.

Similarly, we find Rixecker’s reliance on Carlsson v. Pennsylvania General Insurance Co. (Pa. 1969), 214 Pa. Super. 479, 257 A.2d 861, misplaced. Rixecker relies heavily on Carlsson for the previously discussed proposition that the question of a car owner’s consent to another to use his car should be viewed from the perspective of the driver and measured by a subjective test. Under the facts in Carlsson, however, Illinois’ initial permission rule would control (see Western States Mutual Insurance Co. v. Verruchi (1977), 66 Ill. 2d 527, 363 N.E.2d 826; United States Fidelity & Guaranty Co. v. McManus (1976), 64 Ill. 2d 239, 356 N.E.2d 78; Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333, 297 N.E.2d 163), i.e., Carlsson involved the situation where a father gave his son permission to use his car and the son exceeded the scope of the permission in allowing another person to drive the car. The Carlsson court held, as we believe Illinois would have held under the same circumstances, that notwithstanding that the permission given was exceeded, where an individual has borrowed an automobile in the reasonable belief that he has the actual consent of the owner, he is covered by his own policy. (Compare Economy Fire & Casualty Co. v. State Farm Mutual Insurance Co. (1987), 153 Ill. App. 3d 378, 505 N.E.2d 1334 (reasonable belief that the defendant was entitled to drive a nonowned car did not exist).) In the instant case, as stated previously, Rixecker admitted she did not have the Sachnoffs’ express consent, she could not have reasonably believed she had Lee Sachnoff’s implied consent, and the only belief she could have had would have been in the realm of metaphysics due to her mental condition. Moreover, in Carlsson, again unlike the case here, permission had been given to the initial permittee, and the issue was only whether a subsequent permittee reasonably believed he had the actual consent of the owner.

Rixecker further argues, relying on Carlsson, that the application of an objective test rather than a subjective one is against public policy because requiring “ ‘objective’ permission would mandate a driver’s extensive investigation into who actually held title to a particular nonowned vehicle that he was borrowing, allow coverage no greater than that provided under the owner’s policy, expose the driver to unwarranted and uninsured liability above the owner’s policy, and undermine the objectives of broad insurance coverage to protect the insured driver and compensate accident victims.” (Emphasis added.) What Rixecker fails to recognize, however, is that Illinois’ initial permission rule precludes this result in combination with insurance policies, as here, which specifically provide for coverage to an insured for driving nonowned vehicles with the consent of the owner or. person lawfully entitled to possession of the vehicle.

Rixecker’s final argument is that “mental incapacity is an insured risk, and that coverage may not be denied for acts caused by an individual who lacks the mental capacity to act rationally.” In other words, Rixecker appears to be arguing that notwithstanding a specific policy provision requiring consent to drive a nonowned vehicle, that provision should be nullified because public policy requires that a mentally incapacitated person must not be denied coverage under any circumstances.

We first note that State Farm does not dispute that if Rixecker had been driving her own or her family’s car in her mentally incapacitated condition, coverage would exist under her father’s policy. We further observe that although it is well settled that a person’s mental state may be relevant to criminal cases based on intent, it has no application in the tort field based on the theory that where two innocent persons must suffer a loss, it should be borne by the one who occasioned the loss. (See Vosnos v. Perry (1976), 43 Ill. App. 3d 834, 357 N.E.2d 614.) To hold that Rixecker’s mental state rather than Sachnoff’s, the owner’s, mental state, controlled the question of permission or consent would be vicariously putting the loss on an innocent person, or an innocent insurance company, rather than the one who occasioned the loss. Finally, to hold that Rixecker’s mental state overrides a specific policy provision would result in distorting the terms of the policy and create an ambiguity where one does not exist, which this court may not do. See Allstate Insurance Co. v. Boston Whaler, Inc. (1987), 157 Ill. App. 3d 785, 510 N.E.2d 1180.

For the foregoing reasons, we affirm the trial court’s granting of summary judgment to State Farm. We also vacate our order staying State Farm’s cross-appeal and dismiss that appeal since the issues raised therein are mooted by this opinion.

Judgment affirmed; cross-appeal dismissed.

LORENZ and COCCIA, JJ., concur.


author: JUSTICE COCCIA

text:
    ELIZABETH SHICK, Plaintiff-Appellee, v. DIXMOOR PARK DISTRICT, Defendant-Appellant (Cook County Clerk, Defendant-Appellee).
    First District (5th Division)
    No. 1—89—0494
    Opinion filed May 26, 1989.
    Paul E. Russo, of Chicago, for appellant.

      Cecil A. Partee, State’s Attorney, of Chicago, and Dirk Van Beek, of South Holland (Joan S. Cherry and Robert F. Cleary, Assistant State’s Attorneys, of counsel), for appellees.
   JUSTICE COCCIA

delivered the opinion of the court:

Defendant Dixmoor Park District has taken an expedited appeal from the circuit court of Cook County’s judgment in this mandamus action. The circuit court ordered that the question of the park district’s dissolution be submitted to referendum on April 4, 1989, thereby granting the relief requested by plaintiff Elizabeth Shick, a registered voter residing in the district. On March 29, 1989, we entered an order affirming the circuit court. We now explain the reasons for that decision.

The park district has assigned three errors for our review. First, the park district argues that the circuit court erred in certifying the dissolution question to the Cook County clerk, because plaintiff failed to properly serve the petition, which supported the referendum, before the park district board of commissioners. Second, the park district argues that the circuit court erred in designating the election at which the dissolution question was to be submitted, because the court misconstrued both the Park District Code (Ill. Rev. Stat. 1987, ch. 105, par. 1 — 1 et seq.) and the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 1 — 1 et seq.). Third, the park district argues that the circuit court erred in granting the relief requested by plaintiff, because mandamus does not lie when it depends upon the acts of third parties not before the court, in this case the park district commissioners. Before we address the merits of these arguments, the procedural history of this case must be reviewed.

On February 8, 1989, plaintiff filed her complaint, naming the park district and the county clerk as defendants. Plaintiff asked that the circuit court direct the park district to certify the question of its dissolution to the county clerk for submission to the district’s legal voters on the April 4, 1989, ballot. Plaintiff alleged that her petition, which included the requisite number of signatures, was delivered to and received by the park district board on December 15, 1988. She further alleged that the board met on that date, and thereafter, with knowledge of the petition, but that it refused to certify the dissolution question, contrary to the Park District Code:

“§13 — 1. A park district may be dissolved in the following manner:
Whenever legal voters in the district, equal to two-thirds of the vote cast at the last preceding park district election for the commissioner who received the greatest number of votes, petition the board of the park district for submission of the question whether the park district will dissolve its incorporation, the board shall (1) certify that question to the proper election officials for submission to the legal voters of the district, (2) designate the election at which the question is to be submitted, and (3) give notice of the referendum as required by the general election law.” Ill. Rev. Stat. 1987, ch. 105, par. 13 — 1.

On February 15, 1989, the park district appeared and filed a motion to dismiss. The objections raised by the park district in the circuit court are similar to the errors it now assigns in this court. Following hearings on the objections, the circuit court denied the park district’s motion. On February 22, 1989, the circuit court entered an order finding that the park district was served with the dissolution petition on or about December 15, 1988, and that the requisite number of legal voters in the district petitioned the board. The court ordered that the dissolution question be submitted at the April 4, 1989, election, ruling that it was the park district’s duty and obligation to comply with section 13 — 1 of the Park District Code, including certification of the question and designation of the election. Consequently, the circuit court directed that the park district certify the dissolution question to the county clerk for submission to the district’s legal voters on April 4,1989.

On February 22, 1989, the park district’s motion to stay enforcement of the order was denied by the circuit court. Subsequently, the park district board met and decided that it would certify the dissolution question for the November 6, 1989, election, rather than the April 4, 1989, election, if the petition was legally sufficient. Plaintiff and the county clerk then joined in a motion to amend the order entered on February 22, 1989, to provide that the county clerk place the dissolution question directly on the April 4, 1989, ballot, without certification by the park district. The circuit court granted this motion on February 24,1989.

The park district requested that we stay enforcement of the circuit court’s order and that we hear its appeal on an expedited basis. On February 27, 1989, we denied the motion to stay, but allowed expedited appeal, taking the case without oral argument. We subsequently allowed the county clerk to be realigned as an appellee. And, as noted above, we affirmed the judgment of the circuit court in an order entered on March 29, 1989. Additional relevant facts will be considered in the course of our analysis.

I

With the foregoing in mind, we now come to the merits of the park district’s arguments. The park district contends that plaintiff failed to properly file the petition submitted in support of the referendum. The park district states that plaintiff’s attorney did not personally appear before the board of commissioners, although he knew they would be meeting in the evening of December 15, 1988, and that the board’s secretary was not served with the petition. The park district relies upon the following cases, which held that the filing of the documents at issue was legally insufficient: Daniels v. Cavner (1949), 404 Ill. 372, 88 N.E .2d 823, Brelsford v. Community High School District No. 36 (1927), 328 Ill. 27, 159 N.E. 237, Havens v. Miller (1981), 102 Ill. App. 3d 558, 429 N.E.2d 1292, and Frese v. Camferdam (1979), 76 Ill. App. 3d 68, 394 N.E.2d 845.

However, the facts of those cases are not analogous to the facts of this case. In Daniels, nomination papers were filed at the Venice city clerk’s residence, rather than at his office. In Brelsford, the filing of the subject petition was attempted at the circuit clerk’s office, but since it was closed the petition was given to the deputy clerk at the circuit clerk’s residence. In Havens, economic interest statements were to be filed at the county clerk’s office, but they were filed instead at the school board’s office. In Frese, absentee voters failed to mail their ballots to, or personally deliver them at, the township clerk’s office. Thus, in each of these cases an office was available for filing the documents in question.

Here, in contrast, the circuit court found that the park district has no permanent business office, that it relies upon a post office box to receive correspondence, and that it conducts business one evening per month at board meetings. The circuit court also found that plaintiff’s counsel delivered the petition to an unidentified young man at the Rosa Parks Middle School, where a park district recreational program was located. He, in turn, delivered the petition to a park district employee, and it was eventually delivered to the park district’s recreation secretary. The minutes of the December 15, 1988, meeting of the board of commissioners reflect that they examined the petition, along with a letter from plaintiff’s attorney dated December 12, 1988, which was read by the board’s president. The letter was received at the board’s designated location for correspondence, and it advised the board of the petition’s existence and the request for certification. The petition was likewise considered at subsequent board meetings. On January 23,1989, the board voted to consider the petition as invalid, because the petition’s proponents had not personally addressed them at a meeting. This decision was confirmed in a letter from the park district’s counsel to plaintiff’s counsel dated January 24, 1989, in which the former stated that the petition had not been properly served since it was received by a part-time park district secretary, rather than the board’s secretary. But the circuit court found that the board had not adopted rules or regulations concerning the filing of official documents and that no statute governed such procedures.

Section 13 — 1 of the Park District Code, set forth above, required that plaintiff’s dissolution petition be filed with the park district board. The park district’s objection assumes the existence of standards for judging the sufficiency of filing. But the park district has failed to draw our attention to any standards. And the park district has not challenged the circuit court’s finding that no standards exist, whether in the form of a statute or park district rules and regulations. Our own research indicates that this appears to be a case of first impression under the Code. Given these facts, we conclude that plaintiff’s actions, which clearly gave the park district actual notice of the petition and its contents in a timely fashion, satisfied section 13— 1 of the Park District Code. Therefore, the circuit court did not err in ruling that the petition was served properly.

II

In addition, the park district contends that the circuit court erred by designating the election at which the dissolution question was to be submitted. The park district apparently maintains that the circuit court misconstrued both the Election Code and the Park District Code. In the first place, the park district asserts that the legislature, by enacting the Election Code, intended that dissolution petitions be subject to challenge. But the park district complains that it has had no opportunity to challenge plaintiff’s petition. In the second place, based on the authority of In re Organization of Greater Algonquin Park District (1982), 103 Ill. App. 3d 1056, 432 N.E.2d 306, the park district asserts that it has discretion regarding designation of the election at which the dissolution question is to be submitted. From this it follows, reasons the park district, that mandamus does not lie, because discretionary acts cannot be compelled through such a remedy.

The park district correctly states that the legislature intended that dissolution petitions be subject to challenge. For example, objections to petitions may be grounded upon the heading or certification requirements of section 28 — 3 of the Election Code. (See Ill. Rev. Stat. 1987, ch. 46, par. 28 — 3.) The county clerk points out, however, that objections to plaintiff’s dissolution petition would not be heard by the park district board, but rather by the County Officers Electoral Board. (See Ill. Rev. Stat. 1987, ch. 46, pars. 28 — 4, 10 — 9.) Section 28 — 4 of the Election Code provides that the electoral board which would hear objections to petitions for public questions, such as plaintiff’s, is the same electoral board which would hear objections to nominating petitions of candidates for office in the political subdivision where the question is being submitted. And the Election Code’s section 10 — 9 tells us that the appropriate electoral board for the Dix-moor Park District is the County Officers Electoral Board, which includes the county clerk, the circuit court clerk, and the State’s Attorney.

Moreover, the park district has cited no authority in support of the proposition that its board is authorized to challenge plaintiff’s petition. The county clerk, although conceding that the individual commissioners of the park district can challenge the dissolution petition as registered voters, denies that the park district, as such, can challenge plaintiff’s petition. The county clerk instructs us that the last day for filing objections to the subject petition was January 23, 1989. (See Ill. Rev. Stat. 1987, ch. 46, par. 10 — 8.) That is, the county clerk argues, any voter wishing to object had until five business days after the last day for filing petitions to file objections with the County Officers Electoral Board; for the April 4, 1989, election, the last day to file petitions was January 17, 1989. Based on this fact, January 23, 1989, was the last day to file petition objections with the electoral board. The park district did not file objections until February 21, 1989, when several commissioners submitted affidavits attacking plaintiff’s petition. Section 10 — 8 of the Election Code also mandates that plaintiff’s petition is deemed valid, by operation of law, since it was not challenged in a timely manner. Thus, the park district’s contention that there was no opportunity to challenge plaintiff’s petition is without merit.

The park district further contends that section 13 — 1 of the Park District Code and section 28 — 2 of the Election Code are in conflict; therefore, following Algonquin, the more general provisions of the Election Code give way to the more specific provisions of the Park District Code. But we think Algonquin does not stand for the proposition articulated by the park district. First, at issue in Algonquin was the applicability of the Election Code’s section 28 — 3, which establishes heading and certification requirements for petitions submitted in support of referenda. (103 Ill. App. 3d at 1063, 432 N.E.2d at 311.) In contrast, section 28 — 2 of the Election Code (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 2) is at issue here. Section 28 — 2 states in part:

“If a petition initiating a public question does not specify a regularly scheduled election, the public question shall be submitted to referendum at the next regular election occurring not less than 78 days after the filing of the petition ***.” (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 2.)

Consequently, Algonquin is distinguishable from our case. Second, the reasoning of the second district in Algonquin has been rejected by the fourth district in Adsit v. Sanders (1987), 157 Ill. App. 3d 416, 510 N.E.2d 547, as well as by this court. (See In re Petition to Form a New Park District Coterminous With the Village of Maywood, Illinois, to Supercede the Existing Central Area and West Maywood Park Districts (1989), 182 Ill. App. 3d 973.) Thus, Algonquin is not precedent for the park district’s contention that the Election Code and the Park District Code are in conflict.

More importantly, we are of the opinion that the plain language of section 13 — 1 of the Park District Code and section 28 — 2 of the Election Code do not conflict. Section 13 — 1 requires that the park district “shall *** designate the election at which the question is to be submitted.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 105, par. 13 — 1.) Turning to article 28 of the Election Code, which governs the submission of public policy questions, we learn from section 28 — 2 that the park district should have designated the April 4, 1989, election. That is, as the county clerk observes, since plaintiff’s petition was served on December 15, 1988, the April 4, 1989, election was “the next regular election occurring not less than 78 days after the filing of the petition” (Ill. Rev. Stat. 1987, ch. 46, par. 28 — 2); April 4, 1989, is not less than 78 days after December 15, 1988. Section 13 — 1 tells the park district that it must designate an election, and section 28 — 2 tells it which election to designate. In light of these statutes, the park district should have designated the April 4, 1989, election, rather than the November 6, 1989, election. Because the park district had no discretion regarding which election to designate, we need not reach its claim that discretion cannot be compelled in a mandamus action.

It is not solely the plain language of these statutes which leads us to conclude that the park district has no discretion concerning election designation. This court has previously invoked the fundamental principle of statutory construction that when legislative intent is in question, the consequences resulting from various interpretations must be considered. (People ex rel. Holland v. Edelman (1975), 27 Ill. App. 3d 793, 796, 327 N.E.2d 338, 340.) Were we to interpret section 13 — 1 of the Park District Code as investing the park district with discretion regarding election designation, the consequences for the Illinois electorate would be severe. Reason and experience teach that few park district boards would miss an opportunity to delay their dissolution. Boards might attempt to postpone, perhaps indefinitely, submitting dissolution questions to referenda by designating elections far in the future. Therefore, we hold that when a petition submitted in support of a dissolution question is properly served, timely, and valid, a park district must follow the dictates of section 28 — 2 of the Election Code in designating an election. Any other construction of section 13 — 1 of the Park District Code would, in effect, give park district boards veto power over dissolution referenda. Compare Havens, 102 Ill. App. 3d at 565, 429 N.E.2d at 1297 (appellate court refuses to give chairmen of various electoral boards absolute veto power over objections to nominating petitions).

Ill

Finally, the park district contends that mandamus does not lie. In support of this contention, the park district relies upon Burnridge Brothers Almora Heights, Inc. v. Wiese (1986), 142 Ill. App. 3d 486, 491 N.E.2d 841. The park district correctly observes that the court in Burnridge stated:

“Further, it has been held that the writ [of mandamus] will not lie when the mandate depends upon the cooperation or approval of a third person who is not before the court. [Citation.]” (142 Ill. App. 3d at 490-91, 491 N.E.2d at 846.)

Since the commissioners must designate the referendum date, and since they were not named as defendants by plaintiff, the park district concludes that mandamus does not lie.

The park district, however, neglected to draw our attention to a sentence in Burnridge which immediately follows the general rule quoted in the preceding paragraph, and which states an exception that answers the objection raised by the district:

“If the cooperation of the third person is a matter of duty, however, and the third person is a public officer, the law will presume that he will do his duty, and the writ [of mandamus] will lie. [Citation.]” (142 Ill. App. 3d at 491, 491 N.E.2d at 846.)

In the circuit court and in this court, the park district has conceded that its commissioners are bound to perform the duties enumerated in section 13 — 1 of the Park District Code, set forth above. The plain language of section 13 — 1 leads us to the same conclusion. And the park district does not deny, nor could it in good faith, that its commissioners are public officers. Accordingly, we reject the park district’s claim that mandamus does not lie.

For the foregoing reasons the judgment of the circuit court, ordering that the question of the park district’s dissolution be placed on the April 4, 1989, ballot, is affirmed.

Affirmed.

MURRAY, P.J., and PINCHAM, J., concur.


author: JUSTICE SCARIANO

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS JOSE CHANATH, Defendant-Appellant.
    First District (2nd Division)
    No. 1—87—2615
    Opinion filed May 30, 1989.

      Clarence L. Burch and David Delgado, both of Burch & Delgado, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund and Paula Carstensen, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE SCARIANO

delivered the opinion of the court:

Following a jury trial, defendant was convicted of delivery of a controlled substance and sentenced to seven years’ imprisonment. He appeals, arguing that the State failed to establish that his involvement in the offense was not the result of entrapment and that the trial court erred in' admitting into evidence the opinion testimony of Chicago police officer William Haley.

At trial, Haley testified that he was working as an undercover agent on February 13, 1986, when he first met defendant at the apartment of Denise Murray, defendant’s girl friend. Haley had received information from an unidentified informant that defendant was “dealing narcotics” and that defendant’s people could supply large quantities of cocaine. Haley, who was using the name Mark, made arrangements for future purchases and, although the record is unclear, it appears that he made a narcotics purchase on that date as well. According to Haley, defendant and he talked about the price of cocaine, the quantity, what defendant could get “fronted,” and defendant stated that it was his people who would supply the cocaine. Defendant and Murray argued over whom Haley should contact for purchases, and Haley resolved the dispute by saying that he did not care who supplied him, that he would leave a message with his number on Murray’s answering machine and either defendant or Murray could call him.

Haley stated that on February 28, 1986, at approximately 2 p.m., he received a page via his pager service. He called the telephone number which appeared on his pager and spoke with defendant, who asked him if he was still interested in purchasing five ounces of cocaine. Haley responded affirmatively, and defendant replied that he had only four ounces but if Haley waited another hour, defendant would be able to supply him with a total of five ounces at $1,550 per ounce. Haley told defendant that he would not have the money until approximately 3:15 p.m. and to call back then. In response to defendant’s page, Haley called him and arranged to meet him at a restaurant. Haley delayed his arrival at the restaurant, in order to give the surveillance team time to position themselves, and while he was driving there, defendant paged him twice, urging Haley to get there as soon as possible.

When Haley finally arrived at the restaurant, he found defendant eating at a table. Haley testified that defendant advised him that the cocaine had come “off a kilo block,” which, according to Haley, is a slang term “used normally among high, middle level to upper level narcotics suppliers” to describe a very high grade block of cocaine. After defendant finished eating they went to Haley’s car. Defendant gave Haley a large plastic bag containing four ounces of “a white rocky powdery substance,” and Haley gave defendant $6,200. As defendant was counting the cash, members of the surveillance team approached the car and arrested defendant.

Defendant testified that following his graduation from high school he joined the Navy, from which he was honorably discharged, and at the time of his arrest and trial he was a student at DeVry Institute of Technology. He first met Haley at Murray’s apartment, where he was doing his homework. Murray and Haley left the apartment to engage in a narcotics transaction, and defendant accompanied them. He denied having a drug-related conversation with Haley.

Defendant next had contact with Haley on February 28, 1986, when Haley called him, seeking to purchase cocaine. Defendant was angry that Haley had called him and told him he could not supply him with cocaine. He repeated this when Haley called a second time, but, when Haley called later and begged defendant to sell him cocaine, defendant agreed to meet him at a restaurant. Upon being arrested, defendant told the police that he was not a dealer and that he was making only $300 profit on the sale.

Defendant was convicted of delivery of a controlled substance, and he now appeals.

Opinion

Defendant argues that the State failed to show that he was predisposed to sell or deliver cocaine and that his involvement in the sale was not the result of entrapment. Thus, his argument continues, his conviction must be reversed. Defendant maintains that it is clear from the evidence that Haley induced him to commit the offense, emphasizing his testimony that Haley contacted him and that he was honorably discharged from the Navy, was a student and had no criminal background.

The defense of entrapment is provided for in section 7 — 12 of the Criminal Code of 1961:

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.” (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 12.)

Once defendant presented some evidence in support of his contention that there was an entrapment, the State had to prove that defendant was not entrapped. (People v. Fisher (1979), 74 Ill. App. 3d 330, 333, 392 N.E.2d 975.) A three-part test is employed to determine whether an entrapment has occurred:

“(1) [T]he idea of committing the offense must originate not with the suspect but rather with the enforcement authorities; (2) the enforcement authorities must actively encourage the suspect to commit the offense; and (3) the purpose of the encouragement must be to obtain evidence for the prosecution of the suspect. The first part of the test involves two inquiries: [f]irst, does the suspect originate the idea of committing the offense; and second, is the suspect engaged in a course of conduct involving similar offenses, or other acts of the same offense if dealing with other persons.” Fisher, 74 Ill. App. 3d at 333-34.

Defendant relies on Fisher in support of his argument that he was entrapped. In that case, defendant was convicted of the unlawful delivery of a substance represented to be a controlled substance. The appellate court reversed her conviction, holding that the State’s evidence was insufficient to rebut defendant’s entrapment defense, stating:

“From the testimony of both witnesses it is apparent that on several occasions both prior and subsequent to the sale of the amphetamines [the police agent] had attempted to purchase drugs from the defendant. On each of these occasions he was unsuccessful. We believe his failure to obtain drugs from Fisher on these occasions was due not to an inability on the part of an otherwise willing and criminally predisposed defendant to procure the drugs sought, but was due rather to the natural disinclination of an innocent person to engage in criminal conduct.” (74 Ill. App. at 334.)

The court also noted that, “It is highly improbable that an individual, with no prior record of drug offenses, would voluntarily and unreluctantly engage in criminal conduct unless that person has been induced to violate the law.” 74 Ill. App. 3d at 335.

The State contends that the evidence presented at trial established beyond a reasonable doubt that defendant was predisposed to commit the offense and that the idea for the sale originated with him. It relies on Haley’s testimony that defendant contacted him and arranged their meeting at the restaurant, as well as his testimony that defendant argued with Murray over which one of them would contact Haley in the future. The State also relies on People v. Boalbey (1986), 143 Ill. App. 3d 362, 493 N.E.2d 369, and People v. Cross (1979), 77 Ill. 2d 396, 396 N.E.2d 812, in support of its position.

In Boalbey, the appellate court reversed Boalbey’s conviction for the unauthorized use of food stamps, concluding from the evidence that entrapment was established as a matter of law. The court stated:

“In so holding we are not choosing between conflicting witnesses or judging credibility. The evidence is simply insufficient to support a finding of predisposition on the part of the defendant.
It is clear the defendant was induced by [police officer] Dale. Without basis for suspecting the defendant, Dale suggested committing the crime, provided the necessary stamps, and agreed to sell them to defendant for a price seven times below their cash value. Dale initiated both the conversations and the negotiations. Defendant testified he had never in any capacity accepted food stamps before and Dale testified neither he nor the police department had any evidence of any kind that defendant was a suspect in this case or had a prior history of purchasing food stamps.” (Boalbey, 143 Ill. App. 3d at 365.)

The State distinguishes the instant case from Boalbey, contending that here there is sufficient evidence to support a finding of predisposition. The State also notes that the testimony in this case was conflicting and maintains that it was for the jury to weigh the credibility of both Haley and defendant.

In Cross, a consolidated case, the court affirmed Cross’ conviction, holding that the State’s evidence established beyond a reasonable doubt that Cross was predisposed to commit the offense of unlawful delivery of heroin and that the idea for the sale originated with him. While at a friend’s home, Cross responded to the knock of an undercover agent, who was looking for the owner of the home. The friend had gone out earlier and left a plastic vial containing capsules, which Cross knew to be heroin, with Cross. Cross informed the agent that his friend was not home, and then asked if he, Cross, could “take care of any business” for the agent. Cross then sold the agent the capsules of heroin. (Cross, 77 Ill. 2d at 405-07.) Also in Cross, the court affirmed Haywood’s conviction for unlawful delivery of LSD, holding that the State proved that entrapment did not exist, noting in particular defendant’s familiarity with drugs. 77 Ill. 2d at 407-08.

Haley’s testimony, if believed, established that defendant was familiar with drugs, that he was predisposed to sell cocaine and that he intended the sale. The jury heard the conflicting testimony as to who initiated the contact and believed Haley; their verdict is supported by the evidence and must be affirmed.

Defendant next argues that the trial court erred in allowing Haley to testify that telephone pagers are commonly used by drug dealers; that mid- and high-level drug dealers use certain slang terms and have certain characteristics; that defendant was a mid-level drug dealer; and that four ounces of cocaine has a street value of $1,800 to $2,500 per ounce. Defendant maintains that this opinion testimony was improper, because the State did not establish that Haley was an expert. Defendant cites People v. Owens (1987), 155 Ill. App. 3d 990, 508 N.E.2d 1088, in which case the appellate court held that it was error to admit a police officer’s testimony concerning blood-spatter analysis, because there was no evidence demonstrating “the reliability of the spatter characteristics of human blood in determining the position of a decedent when shot.” 155 Ill. App. 3d at 998.

The State responds that Haley testified that he has been a police officer for over 14 years and a narcotics agent for approximately 10 years; that he has been involved in over 300 narcotics arrests and in over 100 narcotics purchases; and that he is a group supervisor, monitoring narcotics cases for the Northeastern Metropolitan Enforcement Group, a narcotics enforcement agency. Thus, he has experience and knowledge not common to lay persons and was properly qualified as an expert.

The trial judge ruled that Haley was qualified as an expert, and this decision is subject to reversal only if it constitutes an abuse of discretion. (People v. Knight (1985), 133 Ill. App. 3d 248, 478 N.E.2d 1082.) Since there was testimony that Haley had extensive experience in narcotics cases, his qualification as an expert was not such an abuse.

Finally, defendant asserts that it was error to allow Haley to testify that his informant told him that defendant was “dealing narcotics and could supply large quantities of cocaine,” because that statement was inadmissible hearsay. However, Haley’s statement was in response to defense counsel’s question, “[W]as the purpose of your undercover work to purchase a quantity of cocaine from a known drug dealer?” The State correctly contends that where defense counsel elicits hearsay testimony, defendant waives for review the claim that such testimony was hearsay and therefore inadmissible. (People v. Tribett (1977), 54 Ill. App. 3d 777, 370 N.E.2d 115.) Moreover, there was no objection to such hearsay statement at trial.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Pursuant to People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194, and People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, a fee of $75 is granted to the State, for the costs of defending this appeal.

Affirmed.

HARTMAN and EGAN, JJ., concur.

       Justice Egan participated in the decision of this case prior to joining the sixth division.


text:
    THE PEOPLE ex rel. MARIA KELLY, Plaintiff-Appellee, v. ANTHONY PASKO, Defendant-Appellant.
    First District (2nd Division)
    No. 1—88—350
    Opinion filed May 30, 1989.

      Patrick A. Tuite and Brent D. Stratton, both of Tuite, Mejia & Giacchetti, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Caroline 0. Schoenberger, Leonard N. Foster, and Eugene S. Kraus, Assistant State’s Attorney, of counsel), for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

Defendant appeals from a jury’s verdict that he is the father of plaintiff’s child arguing that (1) the trial court erred in ruling that the action was not barred by the statute of limitations; (2) paternity was not proved by a preponderance of the evidence; and (3) he was denied a fair trial by the admission of statistical blood test results and the child’s birth certificate into evidence, as well as gestures and facial expressions plaintiff made during trial.

Plaintiff gave birth to her daughter on May 23, 1977, and on December 28, 1982, she executed a paternity complaint that alleged defendant is the father. The instant proceeding was filed on August 15, 1983. On June 28, 1984, the trial judge denied defendant’s motion to dismiss, in which he argued that plaintiff’s action was barred by the statute of limitations. On October 24, 1984, the judge ordered plaintiff, her daughter and defendant to undergo blood tests, which were performed on October 29,1984.

At trial, plaintiff testified that defendant was the principal at the elementary school where she taught. Plaintiff began teaching at the school in September 1971, and she had a business relationship with defendant until December 1974, when they began “going out.” She stated that they went out for drinks approximately once a month until May 1975, when they began to have sexual intercourse. They frequented the Chicago American Motel, located on Mannheim Road in Melrose Park and the Regal 8 Motel, also on Mannheim Road, but beginning in September 1975 they had intercourse two or three times a week, usually on Tuesdays, Thursdays and Saturdays, in plaintiff’s home.

Plaintiff testified that her relationship with defendant began to deteriorate in August 1980, when she asked him to help support their daughter. He responded by threatening to reassign plaintiff to a less desirable classroom, although she had received excellent or superior ratings from defendant prior to that time. In June 1981 she received a rating of unsatisfactory for the school year 1980-81, and she was transferred to another, “more difficult” school in September 1981.

Plaintiff told only her mother and her baby-sitter about her relationship with defendant. Her mother died prior to trial, and the trial judge barred the testimony of the sitter because she testified in a voir dire held outside the presence of the jury that she could not positively identify the man plaintiff was dating in 1975-76.

Plaintiff denied having sexual intercourse with anyone except defendant between July and October 1976, and stated that her daughter was conceived in August 1976. She told defendant that she was pregnant with his child on September 30, 1976, and he responded that it was her problem and that he would pay for nothing, although he later offered to pay for an abortion or, alternatively, suggested plaintiff place the child for adoption. Plaintiff testified that defendant brought items and gave her money for the baby, and that he purchased stock in the baby’s name.

Plaintiff further testified that defendant had a scar from a hernia operation on his right side, and she admitted that in her deposition she had said that she could not remember on which side the scar was located. She also admitted that other teachers at the school could have known about the scar because defendant had the operation shortly before his father’s wake in 1978, and that teachers attending the wake would have known about the operation.

On cross-examination, plaintiff conceded that she knew of no witnesses who could corroborate the fact that she and defendant had been at the tavern, restaurant or motel to which she had testified going with defendant; that the Chicago American Motel had been sold and that no guest registration records were available; that she did not know if any attempts had been made to locate such records from the Regal 8 Motel; that she had never talked with any of her neighbors to determine if any of them had seen defendant go into her house between 1975 and 1981; and that none of her four children had ever seen defendant at their home.

Edward Kelly, plaintiff’s ex-husband, is listed as the child’s father on her baptismal certificate; however, plaintiff claims that a church employee listed him as the father. The employee died prior to trial. Plaintiff listed Edward Kelly as the father on her daughter’s school registration, completed in February 1982, because he is listed as the father of her other children. She did not list a father’s name on the birth certificate, but did list the age of the father as 50 years old. Edward was approximately 36 years old at the time of the baby’s birth and defendant was approximately 50 years old. The results of the blood tests exclude Edward as the child’s father; however, she calls Edward “daddy,” and plaintiff has not dissuaded her from doing so.

The trial court ordered that Clare Wong, a medical technologist who supervised the blood tests, would be allowed to testify as to the results of the tests and the similarities between defendant’s blood and the baby’s as indicated by a specific test, but she was not allowed to “tie them all together” and testify as to the probability that defendant is the child’s father. Wong then testified that plaintiff has Type 0 blood and that both defendant and plaintiff’s daughter have Type B blood; she also explained the index results for each of 16 blood systems. For example, the paternity index for the ABO system was 7.9595, meaning that defendant was close to eight times more likely to be the father compared to a random man. Wong also gave her opinion that the test results did not exclude defendant as the biological father.

Defendant testified that he had four children and had been divorced since the spring of 1980. He denied ever having sexual intercourse with plaintiff or giving her money for her child. After the birth of the child, he and his wife brought baby items to plaintiff. On occasion he loaned plaintiff $5 or $10, which she repaid, and at times he gave her a ride to school when her car would not start; she did the same for him.

Defendant stated that during August 1976 he had a severe attack of bursitis in his shoulder and was also taking medication for allergies and that both conditions made it more difficult for him to have sex as well as lessened his interest in doing so.

He also stated that he had an indentation in his chest, which he had since birth. During cross-examination, plaintiff had testified that, other than the hernia scar, she did not know of any other physical abnormality of the defendant; however, after defendant testified regarding his indentation, she testified in rebuttal that her daughter also had such a malformed chest.

The jury returned a finding of paternity against defendant. The trial court denied defendant’s motion for judgment notwithstanding the verdict and ordered that defendant pay child support in the amount of $300 per month. Defendant now appeals.

Opinion

Defendant begins with the argument that the trial court erred in denying his motion to dismiss based on the running of the statute of limitations, and claims that the retroactive application of the extended statute of limitations currently in effect unconstitutionally deprived him of his property right in and to a time bar.

At the time of plaintiff’s daughter’s birth, the applicable statute of limitations provided in part: “No [paternity] action may be brought after the expiration of 2 years from the birth of the child.” (Ill. Rev. Stat. 1977, ch. 40, par. 1354.) Under this statute, a paternity suit on behalf of the child would have been barred after May 23, 1979; however, the statute was held to be unconstitutional (Dornfeld v. Julian (1984), 104 Ill. 2d 261, 472 N.E.2d 431; Jude v. Morrissey (1983), 117 Ill. App. 3d 782, 454 N.E.2d 24) after the Supreme Court invalidated similar statutes in cases from Texas (Mills v. Habluetzel (1982), 456 U.S. 91, 71 L. Ed. 2d 770, 102 S. Ct. 1549) and Tennessee (Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199). Accordingly, the following legislative enactment became effective July 1,1985:

“An action brought by or on behalf of a child shall be barred if brought later than 2 years after the child reaches the age of majority; however, if the action on behalf of the child is brought by a public agency, it shall be barred 2 years after the agency has ceased to provide assistance to the child.” Ill. Rev. Stat. 1985, ch. 40, par. 2508.

In Dornfeld, plaintiff filed a paternity suit against Julian on August 11, 1981, alleging that he was the father of her child born on June 19, 1978. Defendant moved to dismiss the action, relying on the two-year statute of limitations then in effect; however, while the case was pending in the trial court, the Supreme Court “held a Tennessee paternity statute containing a two-year limitation period unconstitutional because it denied equal protection to children bom of unwed parents in obtaining parental support.” (104 Ill. 2d at 264, citing Pickett v. Brown (1983), 462 U.S. 1, 76 L. Ed. 2d 372, 103 S. Ct. 2199.) The trial court then ruled the two-year limitation in the Illinois Paternity Act (Ill. Rev. Stat. 1981, ch. 40, par. 1354) to be unconstitutional but held the balance of the Act to be valid and denied defendant’s motion to dismiss. This became the issue before the supreme court, and, in upholding the trial court, it stated:

“[W]e are unpersuaded by the defendant’s argument that the legislature intended to create a cause of action only if the two-year time limit were operative. ***
The Paternity Act provides for the paternal support, maintenance and education of children born of unwed parents, thereby converting a father’s moral obligation of support into a legal one, and preventing such children from becoming public charges. [Citation.] Without the two-year limitation, the Paternity Act is constitutional and meets these objectives. These policy considerations indicate that the legislature intended the Paternity Act to remain a valid statute, even with the limitation period in section 4 excised. * * *
*** [T]he period of limitation for an action brought by or on behalf of a child under the new act [Ill. Rev. Stat. 1985, ch. 40, par. 2508] has been extended to two years after the child reaches the age of majority. [Citation.]
Although the new act will not become effective until July 1, 1985, it is appropriate for us to construe the present statute with an eye toward the clearly expressed present intent of the legislature [citations], and to avoid creating an unnecessary inconsistency in the law. Finally, we choose to avoid the judicial inefficiency as well as the denigration of a clearly stated public policy that would result from now dismissing this and similar causes, only to have them reinstated next July under the greatly extended limitation period of the new act.” 104 Ill. 2d at 266-67.

In denying defendant’s motion to dismiss in the instant case, the trial judge stated:

“Well, the problem is that I read the [s]upreme [c]ourt decision as protective of the rights of children. *** That — this is why they have, apparently by dictum or alternate dictum, enumerated the policy that the statute of limitations, barring the claim of paternity made on behalf of a child has no existence because an illegitimate child isn’t going to have a period of limitations. I believe [that] to be the import of the [sjupreme court decision ***.”

Defendant argues that Dornfeld is not controlling and does not require that the extended limitation, provided for in section 8 (Ill. Rev. Stat. 1985, ch. 40, par. 2508), be applied to him. He maintains that the Dornfeld court failed to consider “Illinois’ long-standing prohibition against reviving previously barred causes of action” and “the policy justifications for the previous [2-year] statute of limitations,” and he argues that applying the extended limitation in this case will deprive him of his vested property right in a limitations defense without due process. Wilson v. All-Steel, Inc. (1981), 87 Ill. 2d 28, 428 N.E.2d 489; Markley v. Kavanagh (1986), 140 Ill. App. 3d 737, 489 N.E.2d 384; Board of Education v. Blodgett (1895), 155 Ill. 441, 40 N.E. 1025.

Plaintiff responds that Illinois courts have held that the extended limitations period applies to actions pending at the time the Parentage Act of 1984 became effective, such as the one at bar. (People ex rel. Moore v. McIntosh (1985), 134 Ill. App. 3d 1070, 481 N.E.2d 833.) In that case, the trial court dismissed the paternity complaint, filed in 1983, on behalf of a child born in 1978. The appellate court reversed, stating:

“We believe, however, that to uphold a dismissal of the instant action for lack of timely filing would abrogate the expressed intent of the legislature made apparent within the new Illinois Parentage Act of 1984, effective July 1, 1985, which provides that an action brought by or on behalf of a child may be brought up to two years after the child reaches majority, and if brought by a public agency on behalf of the child, it may be filed within two years after the agency has ceased providing public financial assistance. (Ill. Rev. Stat. 1984 Supp., ch. 40, par. 2508.) We believe that the policy articulated in Dornfeld v. Julian [citation], in which the supreme court upheld a paternity action despite the unconstitutionality of part of the statute authorizing the action, should control our disposition here.” 134 Ill. App. 3d at 1073-74.

Plaintiff asserts that defendant is urging this court to overrule Dornfeld, an aetion this court cannot consider.

Plaintiff also contends that defendant did not have a vested right in the two-year limitations period, because that statute was held unconstitutional and was therefore invalid at the time the complaint was filed. She further argues that Blodgett does not prevent retroactive application of the extended limitations, because the courts have recognized a legislative intent to allow such application.

Our supreme court has applied the extended limitations period in a case filed long before that statute became effective, in order to effectuate the clearly expressed intent of the legislature to provide children born of unwed parents up to 20 years in which to enforce their right to support in a paternity action. Just as “the policy articulated in Dornfeld” controlled the disposition in Moore, it controls here; therefore, we hold that the trial court properly ruled that plaintiff’s action is not barred by the statute of limitations.

Defendant next argues that the evidence was insufficient to support a finding of paternity, claiming that plaintiff’s testimony was uncorroborated by any other evidence and that there were contradictions and factual discrepancies in her testimony. He emphasizes that the hotel they allegedly frequented cannot produce records of registered guests; that two of the witnesses who would corroborate plaintiff’s testimony are deceased; that plaintiff presented no witnesses who had seen them out socially or had seen defendant enter her home; that plaintiff listed her ex-husband as the child’s father on both her baptismal certificate and her school registration; that although the child was born in 1977, plaintiff delayed filing her complaint until shortly after defendant gave her a negative review at work; that during her deposition testimony plaintiff could not recall on which side defendant’s hernia scar was located; and that plaintiff failed to mention defendant’s chest indentation in her testimony on both direct and cross-examination. Accordingly, defendant contends, since the jury was instructed to consider the results of the blood tests only if they found that defendant had sexual intercourse with plaintiff at the time her daughter was conceived, the blood tests do not corroborate plaintiff’s testimony that she had intercourse with defendant.

Plaintiff responds that a judgment notwithstanding the verdict should be entered “only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand” (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504), and that this is not such a case. It is for the jury to resolve questions of the credibility of witnesses and the weight to be given their testimony (People ex rel. Johnson v. Hampton (1979), 70 Ill. App. 3d 555, 388 N.E.2d 782), and the jury’s findings will not be reversed unless they are clearly erroneous. (Watkins v. Martin (1983), 115 Ill. App. 3d 417, 450 N.E.2d 866.) The function of a reviewing court is to determine whether the result reached in the trial court was one which is reasonable on the facts in evidence, and not to substitute its judgment for that of the trier of fact. Burge v. Morton (1981), 99 Ill. App. 3d 266, 425 N.E.2d 539.

Neither plaintiff’s nor defendant’s testimony was corroborated, and, after observing the witnesses and hearing all the evidence, the jury chose to believe plaintiff. Their verdict is reasonable and must be affirmed.

Finally, defendant argues that the trial court erred in allowing Wong to testify as to the statistical results of the blood tests and in admitting into evidence the child’s birth certificate. In ruling on defendant’s motion in limine regarding the test results, the trial court stated;

“My ruling is basically that in your [Wong’s] opinion, you are not to refer to any percentage of probability of whether this man is a putative father here could be the child’s natural father. * * *
I am going to prevent you from giving your opinion that he is the father within 99 point whatever the percentage may be. In this case it’s under — it’s 99.95.
MR. TUITE: 99.96.
THE COURT: So, I am telling you now, if you say that, I am going to strike it from the record and ask the jury to disregard it. * * *
Out of the [16] tests she can. Explain out of the [16] tests, how rare that gene is. How, that’s what we said you can do. But see, what I said you couldn’t do is when you tie them all together and take one plus a fraction to the nineteenth power. That’s how she gets that big number. And I am not going to let you do that. * * *
So she can testify to the rarity of that trait so far as the index is concerned. Where I object is where we get to the — we tie it together; and that’s how you come up with the 99.”

Wong testified that a paternity index is “the estimation of the man’s chance of paternity in comparison to the chance of paternity of a random man of the same ethnic population in terms of the individual’s possibility of passing a sperm containing the gene that is required to be the biological father.” The paternity indexes were as follows: ABO:7.9595; HLA:48.1608; ESP:5.1026; MNSs:1.6322; Rh:1.1694; Kell:1.0471; Duffy System:0.9984; Kidd:0.9328; AcP:1.8295; PGM1:1.3297; GLO:2.3416; ESD:5.10261; H.p:2.3983; Gc:1.7576; TSF:1.0061; GM:2.8571; and Km:1.1186.

Defendant maintains that the trial judge ruled that Wong could not testify as to the probability results derived from the paternity indexes and that Wong’s testimony was in violation of this order. We do not agree with defendant’s interpretation of the judge’s ruling. He clearly stated that he would allow Wong to explain the paternity indexes, but would not permit her to tell the jury the percentage of probability, which came to nearly 100%, that defendant is the father. Wong clearly complied with this order.

Defendant also asserts that the trial judge improperly allowed such testimony. He relies on People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734, in support of his argument that such statistical evidence is more prejudicial than probative and should not have been admitted. In that case, the results of a genetic marker analysis of blood samples prepared from stained physical evidence, such as clothing, was used to connect defendant to a murder. The appellate court noted that there was “a bona fide scientific dispute” as to the reliability of these tests and ruled that the trial court erred in admitting the results, stating, “Not every useful investigative tool is necessarily admissible in a criminal trial.” (124 Ill. App. 3d at 379.) However, the court stated that it was not holding that such tests were “unreliable as a matter of law.” 124 Ill. App. 3d at 381.

Plaintiff contends that Wong’s testimony was proper under the Paternity Act, which provides in part as follows:

“(d) Expert opinion interpreting the [blood] test results shall be admissible in evidence.
(e) If the experts’ opinions or the test results exclude paternity of the alleged father, he is presumed not to be the father, and such presumption must be rebutted by clear and convincing evidence. Disagreement among experts as to the results of blood tests shall not, of itself, render the experts’ opinions inadmissible into evidence.” Ill. Rev. Stat. 1987, ch. 40, par. 2511.

Defendant has presented no authority to this court to suggest that an expert is not allowed to explain blood test results to the jury. Without an explanation as to what the results mean, the blood test would be useless in a paternity suit. Simply being told that the HLA index was 48.1608, without explaining that such a result indicates that defendant is 48 times more likely to be the biological father compared to the random man, would not contribute to the jury’s understanding of the facts in the case; therefore, the trial court properly admitted Wong’s explanation of the results into evidence.

Defendant also complains that the child’s birth certificate, which did not identify a father but listed his age as 50, should not have been admitted into evidence. He maintains that allowing such evidence effectively circumvents the prohibition against identifying a father on a birth certificate in cases where the mother and father are not married and the father has not consented to having his name entered on the birth certificate. (Ill. Rev. Stat. 1987, ch. 111½, par. 73 — 12.) Again, he fails to cite any authority to this court.

Ashford v. Ziemann (1984), 99 Ill. 2d 353, 459 N.E.2d 940, clearly supports plaintiff in her argument that the birth certificate was properly introduced into evidence. In that case, the supreme court held that a birth certificate which did not list a father but did list his age was admissible in a paternity action, to prove that there was a live birth of a child out of wedlock, an essential element in a paternity action. (99 Ill. 2d at 363.) The court also rejected the argument that such evidence was hearsay, noting that the plaintiff had supplied the information on the birth certificate and she was available and subject to cross-examination.

Defendant also contends that he was denied a fair trial by the faces and gestures plaintiff made during trial. During the trial, and in response to such conduct of plaintiff, defense counsel requested that she be instructed to stop and that she be required to sit in the audience section of the courtroom during closing arguments. He also complained about her gesturing to indicate to the jury that she was aware of the indentation in defendant’s chest, although defense counsel later stated that any negative impact had been cured. The trial judge responded by instructing plaintiff accordingly and stating that he would watch her during closing arguments. Defendant cites no authority in support of his argument that this court should reverse the jury verdict because of plaintiff’s conduct. Moreover, during the trial he did not request a mistrial, which would seem to indicate that he did not think her actions were seriously prejudicing him. Whatever faces or gestures she may have made do not constitute a sufficient basis for reversal in this case.

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

Affirmed.

BILANDIC, P.J., and EGAN, J., concur.

       Justice Egan participated in the decision of this case prior to joining the sixth division.