author: JUSTICE DUNN

text:
      In re MARRIAGE OF BARBARA WALTERS, Petitioner-Appellant, and JAMES WALTERS, Respondent-Appellee.
    Second District
    No. 2—91—1104
    Opinion filed November 24, 1992.

      Mark Schuster, of Meyers, Schuster & Meyers, of Elgin, for appellant.
    Robert Schey and Mark L. Karno, both of Robert Schey & Associates, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Petitioner and cross-respondent (hereafter referred to as petitioner), Barbara Walters, and respondent and cross-petitioner (hereafter referred to as respondent), James Walters, were divorced on October 22, 1975. The judgment of dissolution of marriage incorporated a settlement agreement which provided, inter alia, that petitioner would have custody of the parties’ three children, Sandra, Suzanne and Russell; that respondent would provide child support equal to 30% of his net income; that respondent would provide hospitalization insurance for the children and would pay for the extraordinary medical and dental expenses; and that respondent would pay for the college expenses of the children if he was financially able to do so and the child was college material. In 1989, petitioner brought an action for modification of support and for a rule to show cause against respondent for his failure: (1) to pay child support; (2) to maintain hospitalization insurance on the children; (3) to pay extraordinary medical and dental expenses; (4) to provide petitioner with proof of life insurance naming the children as beneficiaries; and (5) to contribute to the college expenses of the children. The trial court granted a temporary increase in child support to $200 per week. Respondent filed a cross-petition to reduce child support and to modify his obligation to pay college expenses.

This appeal stems from the trial court’s order regarding the parties’ petitions. The trial court reduced respondent’s obligation for child support to $75 per week; determined that respondent’s responsibility for his daughters’ education ended at the time that they married; terminated respondent’s obligation to pay college expenses for his son, Russell; accepted the parties’ stipulation that respondent owed $3,836.01 in child support and assessed a 20% charge on the money owed; determined that Barbara was responsible for payment of all past medical expenses for the parties’ children before their majority or graduation, whichever came last; and ordered that in the future Barbara had a duty to consult with James before incurring any non-emergency medical expenses for Russell and to submit the bill to James within 10 days of receipt from the care provider. The trial court further ordered Barbara to pay $6,000 plus costs of $750 for James’ attorney fees and James was ordered to pay $2,500 of Barbara’s attorney fees plus $450 in costs.

Petitioner brings this appeal, contending that: (1) the trial court erred in determining that respondent had no responsibility for the college expenses his daughters incurred after they married; (2) the trial court erred in ruling that respondent need not pay the medical expenses which were incurred for the children after the divorce; (3) the trial court erred in ruling that respondent had no further obligation for Russell’s college expenses; and (4) the trial court abused its discretion by its award of attorney fees. The following facts of record are relevant to this appeal.

For years after the dissolution of their marriage, the parties appeared frequently in court. On February 5, 1980, the trial court modified respondent’s child support obligation to $25 per week. Various post-decree proceedings were brought until November 9, 1983. After that date, the parties did not see each other until a chance meeting in a fast-food restaurant in 1989. After petitioner initiated this action, the trial court entered a temporary order modifying respondent’s support obligation to $200 per week. The order was based on evidence that James had a taxable income of $53,718 for 1988, and the order was subject to modification upon the completion of discovery.

The first issue raised by petitioner is whether the trial court correctly ruled that respondent was relieved of his obligation to pay for the college expenses of his daughters, Sandra and Suzanne, once they married. Petitioner had requested reimbursement of the sum of $1,032 for Sandra’s tuition and books at McHenry County College from 1983 to 1986. She also requested that respondent reimburse her for Suzanne’s tuition and books at McHenry County College for the years 1984 to 1989 and for tuition, books, and room and board at Northern Illinois University from 1989 through 1990. The trial court ordered respondent to pay the expenses for Sandra and Suzanne up until the dates of their marriages.

The original agreement provided, “[defendant shall be responsible for a college education for each child to the best of his financial ability, provided said child is college material.” Petitioner contends that there was no statutory mandate that emancipation through marriage relieves the party of his obligation to pay for the education expenses and maintenance associated therewith so respondent was obligated to pay for expenses and maintenance until the children finished college as long as he had the financial ability to pay. Alternatively, petitioner contends that Suzanne was never emancipated because her marriage was annulled and she continued to live at home and be supported by her mother even after her marriage.

The evidence showed that Sandra was born on September 17, 1966. She married in spring 1986 and was still married at the time of these proceedings in the trial court. The expenses incurred in connection with her college education were for the school years 1983 through 1986. Neither party disputes the court’s order that respondent must pay the education expenses claimed by petitioner because they were all incurred prior to Sandra’s marriage in spring 1986. Petitioner does dispute the court’s finding that Sandra’s emancipation by marriage relieved respondent of any further obligation to pay her education expenses.

Suzanne was born on June 26, 1968, and she married on March 6, 1987. She attended McHenry Junior College from spring 1984 until spring 1989 and then attended Northern Illinois University. Petitioner claimed to have spent over $13,000 for Suzanne’s college education, including room and board while Suzanne attended Northern Illinois University. The court awarded $423 for tuition and fees and $208.26 for books for Suzanne’s college education, an amount the trial court found to cover expenses until March 6, 1987, the date on which Suzanne married.

In this appeal, we are called upon to determine if section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 513) allows awards for college expenses and maintenance of a child who is emancipated through marriage.

The trial court found that section 513 of the Act provides for children who are not emancipated and that the daughters’ marriages emancipated them and relieved respondent of his obligation to pay for their education expenses and maintenance. Section 513 of the Act provides:

“Support for Non-minor Children and Educational Expenses. The court may award sums of money out of the property and income of either or both parties for the support of the child or children of the parties who have attained majority and are not otherwise emancipated only when such child is mentally or physically disabled; and the application therefor may be made before or after such child has attained majority age. The Court also may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. The authority under this Section to make provision for education and maintenance extends not only to periods of college education or professional or other training after graduation from high school but also to any period during which a child of the parties is still attending high school, even though he or she attained the age of 18. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including;
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.” (Ill. Rev. Stat. 1989, ch. 40, par. 513.)

The clear language of the statute allows provision for the children’s education to be made even if the child is of majority age. (In re Marriage of Falat (1990), 201 Ill. App. 3d 320, 327.) The question of whether the statute allows for provision for the children’s education to be made even if the child is emancipated other than by age appears to be one of first impression in Illinois. We hold that it does not.

We note first that a similar issue was raised in the case of In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, but the court did not address the issue, finding that the party’s failure to raise the issue at the trial level resulted in a waiver of the issue on appeal. (102 Ill. App. 3d at 947-48.) Nevertheless, the court stated that emancipation does not preclude the court from ordering the payment of education expenses, citing In re Marriage of Taylor (1980), 89 Ill. App. 3d 278. A close look at Taylor reveals that the court used the word “emancipation” as synonymous with reaching majority age in holding that education expenses may be awarded after “emancipation” even if the adult child is not mentally or physically disabled. (89 Ill. App. 3d at 282.) Thus, the issue of whether expenses may be awarded for a child emancipated by marriage has not been squarely addressed before.

The primary rule of statutory construction is to ascertain and effectuate the legislature’s intent. In doing so, a court looks first to the statutory language itself. If the language is clear, the court must give it effect and should not look to extrinsic aids for construction. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 277.) Here, the statutory language allows awards for education expenses and maintenance “whether of minor or majority age.” (Ill. Rev. Stat. 1989, ch. 40, par. 513.) It is clear that emancipation includes, but is not limited to, reaching the age of majority. Emancipation can occur when a child voluntarily leaves the parental roof, attains the age of majority, marries, of enters the armed forces. (In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 475.) The legislature could easily have allowed awards for education expenses and maintenance even in the case of emancipation, but it did not do so.

An elementary rule of construction is that when the legislature uses certain words in one instance and different words in another, it intends a different meaning. (Aurora Pizza Hut, Inc. v. Hayter (1979), 79 Ill. App. 3d 1102, 1105-06.) In section 513, the legislature uses both the term “emancipation” and the phrase “majority age” in determining when support and when awards for education are allowed. Since the statute specifically provides for awards for education expenses and maintenance even if the child reaches majority, but does not specifically allow awards in the case of other emancipating events, we conclude that the court may award education expenses and maintenance for a child who is emancipated by reaching majority age but not by other means. Accordingly, we agree with the trial court that respondent’s obligation to provide maintenance and to pay for college expenses of his daughters terminated if they became emancipated through marriage.

Our conclusion requires the resolution of petitioner’s alternate argument, which is that Suzanne was not emancipated by her marriage because she continued to live at home and be supported by her mother and because her marriage was eventually declared invalid.

Self-emancipation occurs “[w]hen a child who is physically and mentally able to take care of himself voluntarily abandons the parental roof and leaves its protection and influence and goes out to fight the battle of life on his own account.” (Iroquois Iron Co. v. Industrial Comm’n (1920), 294 Ill. 106, 109.) Other emancipating circumstances include attaining the age of majority, marriage, or entering the armed forces. (Donahoe, 114 Ill. App. 3d at 475.) What constitutes an emancipation is a question of law, but whether there has been an emancipation is a question of fact. State Farm Mutual Automobile Insurance Co. v. Differding (1977), 46 Ill. App. 3d 15, 19, rev’d on other grounds (1977), 69 Ill. 2d 103.

The evidence showed that Suzanne married Timothy Heuer on March 6, 1987. The parties stipulated that if called as a witness, Suzanne would testify that she never lived with Timothy Heuer and that she continued to reside with her mother when she was not at school. The marriage was declared invalid, although the date of the declaration is not of record. At the trial level and on appeal, the parties do not dispute the facts relevant to the determination of emancipation, but only disagree as to whether these facts indicate an emancipation.

The court relied on the case of In re Marriage of Harris (1990), 203 Ill. App. 3d 241, in determining that once Suzanne married, her father had no more obligation to support her. In that case, the parties orally agreed at the dissolution proceedings that the intention of the parties was to have the husband provide maintenance for his ex-wife until remarriage. The ex-wife remarried, but then had the second marriage annulled. An Act provision indicates that maintenance is terminated upon the remarriage of the party receiving it unless otherwise agreed by the parties in a written agreement set forth in the judgment or approved by the court. (Ill. Rev. Stat. 1987, ch. 40, par. 510(c).) The court held that “remarriage” as used in the Act means the ceremony of marriage, not the status, and the declaration of invalidity of the new marriage did not act to reinstate the maintenance obligation. (Harris, 203 Ill. App. 3d at 246.) That proposition has no application here because the Act does not provide separately for modification of the education support obligation in the event of “remarriage” or even “marriage.” In terms of providing for education expenses, the Act is silent as to marriage. Our concern is not whether a marriage which is declared invalid constitutes a “marriage” as the term is used in a statute, but whether a marriage is an emancipating event.

The evidence is uncontradicted that despite her marriage Suzanne never left home and continued to be supported by her mother until and after her marriage was declared invalid. Under these facts, we determine that Suzanne’s marriage was not an emancipating event such that her father’s obligation to provide for her education and maintenance terminated. The court ordered respondent to pay petitioner $631.26 for Suzanne’s tuition, fees and book costs. This amount covered the “identifiable expenses” for Suzanne’s college expenses until the date of her marriage. We remand this cause for a determination of the expenses incurred by Suzanne for education and maintenance after March 6, 1987, as we are unable to determine the exact amount incurred from the record. The trial court noted the difficulty in determining the exact expenditures from the pile of checks and bills submitted, and we remand in order that the trial court may review the evidence and accept any additional evidence it finds necessary to resolve this question. The trial court must then determine whether and to what extent respondent had the financial ability to contribute to these expenditures.

We turn now to the second issue raised by petitioner. She contends that the trial court erred in ruling that respondent need not pay the medical expenses that were incurred for the children after the divorce until the time petitioner initiated these proceedings.

The agreement incorporated by the judgment of dissolution of marriage provided the respondent would maintain hospitalization insurance on the minor children and be responsible for all extraordinary medical and dental expenses of the minor children. Extraordinary expenses were those in excess of $50 or “incurred by way of accident, surgery, broken bones, teeth straightening and the like.” It did not cover routine office visits, or filling of cavities. Petitioner was to consult with respondent before incurring any extraordinary expense except in case of emergency where immediate action needed to be taken.

It is undisputed that petitioner never consulted with respondent before incurring any of the expenses for which she sought reimbursement. However, petitioner contended that prior consultation was not possible because she did not know respondent’s whereabouts. Petitioner contends that since the evidence showed that she did not know of respondent’s address she should not be barred from recovering the medical expenses of the minor children despite the fact that she did not consult with respondent prior to the treatment. Her argument is that she was unable to comply with the condition precedent because of the respondent’s actions. The court chose not to believe the petitioner and found that petitioner must have known respondent’s address, but simply held onto the bills “until the right moment.” The court denied petitioner’s request for reimbursement of bills totalling over $23,000.

The evidence showed that for about one year after the parties’ divorce respondent lived with his parents in Norridge. He then moved to Round Lake until 1984 and moved to Chicago in 1984 where he kept one address until June 1988. In June 1988, he moved to Spring Grove, where he resided until the time of the proceedings below.

The evidence presented as to whether petitioner knew the whereabouts of respondent is conflicting. On the one hand, petitioner claimed that she lost track of respondent in 1983. She testified that she telephoned respondent’s parents’ home in spring 1986 in order to locate respondent, but respondent’s mother hung up without providing the information. The support checks she received from respondent had no return address. Petitioner telephoned the Cook County clerk’s office, but the most recent address they had was respondent’s Round Lake address, which was not his current address. She contacted the Round Lake postmaster, but he did not have a forwarding address. According to petitioner, she hired three investigators in an attempt to locate respondent, but had no success. Respondent’s driver’s license did not bear his most current address, and the Secretary of State did not have his most current address. Respondent explained that he used his old Chicago address because his insurance agent told him the rates would be lower with that address than his current one in Spring Grove.

On the other hand, respondent presented evidence supporting his contention that petitioner knew where to find him. First, the parties were involved in post-decree litigation until November 1983. Respondent testified that Russell always had his address and he had informed petitioner of changes of address each time he and his wife moved. Respondent submitted a card which he had sent to Sandra after her marriage with his correct return address and which bore a postmark date of November 21, 1986, and a handwritten notation, “Return to Sender.” He submitted further documents indicating that his utility bills were maintained in his correct name and address and that the Rockford Diocese had contacted him in Round Lake on August 24, 1984, regarding petitioner’s request for an annulment. The evidence established that he had always lived in the Chicago area since the dissolution of the parties’ marriage. Respondent’s wife testified that she sent petitioner a change of address card when they moved from Round Lake to Chicago. Finally, while petitioner presented evidence that she learned that respondent might be in Florida from the investigators she hired, respondent argued that he had never lived in Florida and that petitioner may have been trying to locate his present wife’s ex-husband in Florida in order to take revenge on respondent and his new wife.

It seems clear from the amount of evidence presented on both sides that there was conflicting evidence and the trial court had to determine which witnesses to believe. It is the function of the trial court to resolve conflicting testimony by assessing the credibility of the witnesses and the weight to be accorded their testimony. The finding of the trial court will not be disturbed unless it is against the manifest weight of the evidence. (In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 697.) We do not find the trial court’s determination that petitioner knew of respondent’s address to be against the manifest weight of the evidence. From the evidence presented and the inferences that could reasonably be drawn therefrom, the court could correctly determine that petitioner was not credible in her testimony that she did not know respondent’s whereabouts. We will not substitute our judgment unless the opposite conclusion is clearly evident. It is not sufficient that the record would support a contrary decision. (Nemeth v. Banhalmi (1984), 125 Ill. App. 3d 938, 962.) Therefore, we will not reverse the trial court’s finding in this regard. Accordingly, we hold that petitioner’s failure to comply with the condition precedent of consulting with respondent prior to incurring the expenses unless they were associated with an emergency bars her from recovering the expenses she would otherwise have been entitled to under the contract.

In an analogous case, this court held that, under the terms of the settlement agreement incorporated by the dissolution of marriage judgment, the wife had a duty to consult with her ex-husband before incurring extraordinary medical expenses on behalf of her children. This court held that the cause must be remanded for a determination by the trial court as to whether petitioner consulted with respondent prior to initiating a course of medical treatment and this court indicated that if the wife had not done so, the ex-husband had no duty to reimburse her for those expenses. In re Marriage of Talmadge (1989), 179 Ill. App. 3d 806, 815.

We need not address petitioner’s arguments regarding the applicability of the equitable defenses of laches and estoppel because we agree with the trial court that petitioner’s right to recover was conditioned on her compliance with the consultation provision and her failure to consult respondent relieved him of his obligation to pay the costs incurred.

The next issue petitioner raises is whether the trial court properly modified the settlement agreement to provide that respondent did not have any obligation to pay for the college expenses of his son, Russell. The settlement agreement incorporated into the parties’ dissolution judgment provided that respondent would be responsible for his children’s college education to the best of his financial ability if the children were college material. The trial court allowed respondent’s petition to modify the settlement agreement provision that he pay for college expenses if he had the ability to do so to indicate that respondent was not responsible for Russell’s college expenses. The trial court’s modification was based on respondent’s present inability to pay additional expenses.

The statute permitting the court dissolving a marriage to make provision for the education of any children does not mandate that divorced parents must in all cases provide their children with funds for a college education, but allows the court to make such an award in its discretion. (In re Support of Pearson (1986), 111 Ill. 2d 545, 551.) Similarly, the modification of a dissolution of marriage judgment rests in the sound discretion of the court, and a reviewing court will not interfere with the exercise of that discretion in the absence of its abuse. (In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 690.) Petitioner contends that the court abused its discretion by acting prematurely. Specifically, petitioner asserts that the court erred by ruling on the petition to modify respondent’s obligation to pay Russell’s college expenses because there was no evidence that Russell was college material or was planning to go to college, and there was no evidence of what his expenses would be. Respondent contends that a substantial change in the financial circumstances of the parties since the original judgment for dissolution justified the trial court’s order. He further points to sections 502(f) and 510(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, pars. 502(f), 510(a)) to suggest that, if necessary, when Russell is college-bound the trial court could modify the order again.

We agree with petitioner that the trial court abused its discretion in modifying respondent’s obligation, which was conditioned on Russell being college material and on respondent’s financial ability to provide for the expenses. Obviously, in order to make an intelligent and useful decision there would have to be facts to indicate whether Russell was college material, what his expenses would be, and respondent’s financial ability at that time to provide for the expenses. At the time respondent brought this petition, none of these things could be ascertained.

Petitioner did seek reimbursement of expenses associated with one course Russell took at McHenry County College, but that was for a course he took to correct a deficiency in order to graduate from high school. Until such time as Russell decides to pursue a college education, respondent’s financial ability to pay for college is not relevant. Obviously, by the time that a determination need be made as to respondent’s ability to pay, respondent’s financial picture may have changed considerably. We conclude that the trial court abused its discretion in determining that respondent’s inability to pay more expenses at the time respondent brought the petition justified a modification of respondent’s obligation to pay toward possible future college expenses of an unknown amount. (Cf. In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 36-37 (where the court held that the trial court did not abuse its discretion in refusing to allocate the college expenses of the minor child between the parties because the child would not enroll in college for six months and there was an expectation that the mother might have a job and be able to provide for some of the expenses by the time they were incurred).) The modified order must be vacated.

The remaining three issues raised by petitioner all relate to the award of attorney fees by the trial court. First, petitioner questions the trial court’s determination that respondent should pay $2,500 of petitioner’s fees. Petitioner’s attorney testified that he spent 40% of his time on child support issues, including the child support arrearage to which the parties eventually stipulated. Petitioner’s attorney also testified that he spent 10% of his time on matters relating to college expenses. Since the fee petition for petitioner’s attorney was in the amount of $11,875, it is petitioner’s position that the court erred in not assessing one-half of that amount to respondent.

Section 508(b) of the Act provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Ill. Rev. Stat. 1989, ch. 40, par. 508(b).)

Petitioner requested a rule to show cause why respondent had not paid child support expenses. The parties stipulated that respondent owed $3,836.01 in past-due child support. While the trial court found that respondent’s failure to pay was not contemptuous, it also found that respondent’s failure to pay was without cause or justification. Section 508(b) of the Act is mandatory, not discretionary, and does not allow for the court to exercise its discretion as to payment if the defaulting party’s conduct was without cause or justification. (In re Marriage of Clay (1991), 210 Ill. App. 3d 778, 782.) An award under section 508(b) does not depend on a party’s inability to pay the fees or the other party’s ability to pay. (In re Marriage of Cierny (1989), 187 Ill. App. 3d 334, 348.) The fee awarded is, however, subject to a determination of reasonableness based on, inter alia, the time spent, the ability of the lawyers, and the complexity of the work. In re Marriage of Stanley (1985), 133 Ill. App. 3d 963, 974.

Petitioner’s attorney testified that “child support in general probably consumed about 40 percent of my time.” He further estimated that he spent about 30% of his time dealing with medical bills, 10% on the college expense issue, 5% trying to determine if medical insurance was in effect on the children, and about 5% on whether respondent had life insurance in effect. This is the only evidence on how much time petitioner’s attorney allocated to the different issues raised in the proceedings below.

First, we note that the estimations of time spent are just that, estimations. In fact, totalling the percentages testified to by petitioner’s attorney, it is apparent that they are only rough approximations of the actual breakdown because the total is not 100%. Despite petitioner’s claim now being advanced that respondent should be ordered to pay 40% of the fees, petitioner filed a memorandum in support of attorney fees in which she claimed that she should be awarded 30% of the total fees in connection with enforcing the child support obligation. Second, under section 508(b), petitioner was entitled to fees for the amount expended in securing the child support which was in arrears, but the time the attorney expended in working on the college expense issue would not be recoverable under section 508(b) because respondent’s failure to pay for the expenses was due to petitioner’s failure to request such payment. Therefore, fees should have been awarded at approximately 30% to 40% of the reasonable fees, not the 50% figure requested by petitioner.

In regard to the determination of reasonableness, we note that the trial court found $2,500 to represent reasonable fees expended in obtaining child support arrears under the facts of this case. While that amount was less than 25% of the fees requested, we do not find an abuse of discretion. The trial court may accept or reject the testimony of the petitioning attorney as to the value of the legal services performed. The court may also rely on its own knowledge and experience in determining the value of the services rendered. (In re Marriage of Salata (1991), 221 Ill. App. 3d 336, 338-39.) In this ease, the court specifically found that both attorneys’ rates were reasonable, but that too much time was spent on all matters due to the parties’ failure to compromise, and some of petitioner’s attorney fees were not sufficiently defined. As stated in the case of In re Marriage of Mantei (1991), 222 Ill. App. 3d 933, 942, “[wjhile we recognize the purpose of the statute is to allow a spouse to contest the dissolution on an equal footing so that concerns about incurring large attorney fees will not coerce a litigant into conceding meritorious claims, it is an unreasonable expectation to anticipate that the trial court will automatically require the other party to pay such attorney fees regardless of one’s conduct during the litigation. There are times when the failure to compromise is frivolous.” The trial court did not abuse its discretion in awarding fees to petitioner in the amount of $2,500.

Next, petitioner contends that the trial court erred in awarding fees to respondent in the amount of $6,000. Respondent requested fees to be awarded in the amount of $29,300. Section 508(a) allows the court to order a party to pay reasonable costs and attorney’s fees as follows:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse, which award shall be made in connection with the following:
(1) The maintenance or defense of any proceeding under this Act.
(2) The enforcement or modification of any order or judgment under this Act.” (Ill. Rev. Stat. 1989, ch. 40, par. 508(a).)

Attorney fees are primarily the responsibility of the party for whom the services are rendered. Section 508(a) allows the trial court, after considering the financial resources of the parties, to order either spouse to pay a reasonable amount for his own costs and attorney fees and those necessarily incurred by the other party. To justify an award, the party seeking the fees must show an inability on his part and an ability by the other spouse to pay the fees. (In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 990.) The allowance of attorney fees is within the discretion of the trial court, and its determination will not be overturned unless that discretion has been abused. In re Marriage of Wardell (1986), 149 Ill. App. 3d 537, 541.

First, petitioner contends that the trial court abused its discretion in awarding fees to respondent because respondent did not present evidence as to his inability to pay his own attorney fees. Respondent was not in court during the second half of the hearing on attorney fees. For this reason, petitioner argues that respondent has waived his claim of his ability or inability to pay fees because he absented himself from the proceedings.

In this case, respondent did submit an affidavit of his assets and expenses. Petitioner’s attorney stated he had no objection to the filing of an affidavit. The affidavit showed that respondent’s monthly gross income as a salesman was $6,300. Respondent owned a house with his wife and Robert Trzinski which was worth $129,900, and on which there was a mortgage of $116,900. He also owned three automobiles which he valued at a total of $1,200, and had cash on hand of $600. On the other hand, he claimed monthly living expenses of $2,615 and deductions which resulted in a net income of $3,055 per month. He listed debts totalling $91,269.83, including a debt of over $22,000 to the Internal Revenue Service. On the first afternoon of the hearing on attorney fees, the two attorneys testified. The matter was continued to the next afternoon, at which point petitioner’s attorney announced his intention to call respondent to the stand. Respondent’s attorney informed the court that respondent was not available because he had told respondent that he did not need to be present. Petitioner objected to respondent’s absence, asserting that he wished to examine him as an adverse witness in order to question him regarding real estate which was listed on his latest affidavit but had not been on his previous affidavit presented for the support proceedings. The trial court ruled that it would make a determination based on respondent’s affidavit and prior cross-examination of respondent regarding his financial condition.

Petitioner is correct in her assertion that a waiver of a party’s claim of inability to pay fees may be found if that party refuses to present evidence or answer questions about his own financial circumstances. (Cierny, 187 Ill. App. 3d at 348.) In that case, the ex-wife petitioned for an award of fees, and at the hearing on the issue of fees the ex-husband refused to answer any questions regarding his employment or income. On appeal, the ex-husband claimed that the trial court erred in awarding his ex-wife fees because the evidence showed that he was unable to pay the fees. The appellate court held that by his refusal to answer questions regarding his financial circumstances, the ex-husband waived the issue of his ability to pay. Here, however, there is no evidence respondent refused to answer any questions regarding his financial circumstances.

According to the bystander’s report, after the testimony by the attorneys as to their fees, counsel for petitioner announced his intention to call respondent as an adverse witness. Respondent’s counsel “asserted that no process had issued that required James Walters’ appearance to testify.” Petitioner could have compelled respondent to appear as a witness by issuing a notice to appear pursuant to Supreme Court Rule 237(b). (134 Ill. 2d R. 237(b).) He did not do so. The trial court’s reliance on respondent’s and petitioner’s affidavits in the absence of any other evidence presented at the hearing was proper.

Petitioner also questions whether respondent showed by the affidavits his inability to pay and petitioner’s ability to pay some of respondent’s attorney fees. We find that he did. Petitioner owned a mortgage company and represented that she had a net worth of between $300,000 and $450,000. Respondent had a good income, but had substantial debt, the repayment of which left him with barely enough to meet expenses. A party need not be destitute in order to receive an award of attorney fees. Mantei, 222 Ill. App. 3d at 941.

Finally, petitioner questions the trial court’s assessment of $6,000 as a reasonable amount of fees. Petitioner contends that some of respondent’s counsel’s petition for fees was not specific enough to prove the services performed or the necessity of those services. He specifically questions entries of a total of 70.75 hours which denote conferences but do not specify what the conferences were about; an entry for 8.5 hours for correspondence review which does not specify what correspondence was involved; 11.5 hours of organization of unspecified documents; 3.75 hours of drafting revisions to unspecified documents; 78 hours for court appearances for other than trial and of which 3 of the 13 appearances are described; and over 19 hours for court preparation. -

Petitioner questions approximately 190 hours of the time claimed by respondent’s attorney. Petitioner ignores the fact that the trial court did reduce respondent’s attorney fees from 348 to 192 hours, a cut of 156 hours. We do not agree with petitioner’s claim that the entries of the petition as a whole are so vague as to justify a denial of the entire petition. As to specific challenges by petitioner to the petition, it is not clear whether petitioner is questioning a total of 13 appearances, including the three appearances for continuances, or whether she is questioning only the 10 which are not for continuances. Our review indicates that there are more than 13 court appearances listed on the fee petitions. While some entries for court appearances are not sufficiently detailed to allow an award of fees, our review of the petition does not show it to be inadequate for the majority of the entries. We do not, in the absence of a challenge directed at specific entries, find it necessary to evaluate each entry as to its sufficiency. We find no abuse of discretion in the trial court’s award of 192 hours billed at a rate of $100 for an award of $19,200.

Of the amount awarded in fees to respondent’s attorney, the trial court ordered petitioner to pay $6,000. This is less than one-third of the amount of fees awarded on counsel’s petition. Petitioner contends that there was no evidence of how much time respondent’s counsel spent in the defense of the action for child support in arrears, and, in the absence of an exact figure, the trial court should have reduced the total fees owing by 40%, the amount petitioner’s attorney spent in maintaining that portion of the action. Petitioner failed to examine respondent’s counsel as to how much time he spent on defense of the child support arrears and failed to make the argument that specific evidence of the amount of time spent needed to be proved. An issue not raised at the trial court cannot be raised for the first time on appeal. (In re Estate of Halas (1991), 209 Ill. App. 3d 333, 350.) Relying on its own experience and considering such factors as the expertise of the attorney, the trial court did award an amount it felt was reasonable for the services rendered. Since the trial court’s award left respondent responsible for over 65% of his own attorney’s fees, the trial court may have required respondent to pay the amount of fees that respondent’s counsel charged in conjunction with the unsuccessful defense of the claim for past due child support. All reasonable presumptions are in favor of the action of the trial court, and absent an affirmative showing to the contrary, the reviewing court will assume that the trial court understood and applied the law correctly. In re Estate of Elson (1983), 120 Ill. App. 3d 649, 656-57.

In consideration of petitioner’s final challenge, that the issues were not novel and that petitioner’s counsel testified that some of the fees may have been related to unsuccessful petitions respondent filed, we again point to the fact that the trial court did not award full fees against the petitioner. We presume that the trial court’s award of reasonable fees took these facts into consideration. We find no abuse of discretion in the court’s order requiring petitioner to pay $6,000 of respondent’s attorney fees.

For the reasons stated above, we revérse that portion of the judgment which denied the petition for reimbursement of Suzanne’s college expenses and maintenance after her marriage and remand the cause for a determination of the amount incurred. We affirm those portions of the trial court’s judgment denying the petition for medical expenses and awarding attorney fees. We reverse and vacate the trial court’s modification of respondent’s obligation for Russell’s college expenses.

Affirmed in part; reversed and remanded in part; and reversed and vacated in part.

BOWMAN and DOYLE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE UNVERZAGT

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES E. NIVENS, Defendant-Appellant.
    Second District
    No. 2-89-0891
    Opinion filed November 19, 1992.

      . G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, and Charles M. Schiedel and Susan E. Alesia, both of State Appellate Defender’s Office, of Springfield, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and David A. Fernandes, of Champaign (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

After a trial in absentia, a jury acquitted defendant, Charles E. Nivens, of one count of theft (Ill. Rev. Stat. 1987, ch. 38, par. 16— 1(a)(1)) and convicted him of one count each of possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 4—103(a)(1)) and sale of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 4—103(a)(1)). Holding that the conviction of possession merged into that for sale, the court sentenced defendant to one term of 30 months’ probation and 6 months’ incarceration with credit for time served. The court also ordered the defendant to pay $5,000 restitution.

On appeal, the defendant argues that (1) the State did not prove beyond a reasonable doubt that he was the same Charles Nivens who possessed and sold the stolen automobile; (2) the State did not prove beyond a reasonable doubt that, at the time he possessed or sold the vehicle, he knew the vehicle was stolen or converted; and (3) the trial court should have granted his post-trial motion for a new trial because his absence from trial was not willful (see Ill. Rev. Stat. 1987, ch. 38, par. 115—4.1). We affirm.

On May 15, 1989, with defendant and his lawyer present, the court set defendant’s trial for July 18, 1989. When the defendant did not appear that day, the court continued the trial to July 19, 1989, and allowed defendant’s attorney to call defendant. When his attorney was unable to contact him, defendant was tried in absentia on July 19 and 20,1989.

Michael Fitzgerald testified that, on the morning of August 4, 1987, he parked his 1985 Chevrolet Suburban van in the Medinah, Illinois, Metra station parking lot. When he returned that evening, the van was gone. Fitzgerald had given nobody permission to take the van. Fitzgerald and his wife purchased the van in 1985 for $16,500. The vehicle was in excellent condition as of August 4,1987.

Fitzgerald next saw the van on December 22, 1988, when officers from the Illinois Secretary of State’s police brought it to his house. The van’s distinctive features convinced Fitzgerald that it was the one stolen from him on August 4, 1987. However, the vehicle identification number (VIN) affixed to the dashboard had been changed. The car had been modified in other respects since Fitzgerald last saw it.

Fitzgerald identified People’s exhibit No. 2-C as the certificate of title he and his wife received after they paid off the loan on the van. The certificate and People’s exhibit No. 2-B, the bill of sale, both bore the Fitzgeralds’ signatures.

Charles Victor testified that, in the summer of 1987, he owned a 1984 Chevrolet Suburban van. An accident had damaged the van so badly that the vehicle could not be driven or repaired. Therefore, Victor advertised the van for sale. Late in July or early in August 1987, after receiving numerous responses, Victor sold the van for $2,000. The buyer came to Victor’s place of business, made an offer which Victor promptly accepted, and towed the van away.

At trial, Victor did not remember who bought his van. Defendant’s attorney showed him a photograph of defendant. Later, the photograph was admitted into evidence as defendant’s exhibit No. 1 and People’s exhibit No. 8. Victor admitted that he did not recognize the man in the photograph. On the day that he sold the van, Victor’s place of business was crowded with potential buyers, and the actual sale took very little time. After examining a photograph of the Fitzgeralds’ 1985 Suburban, Victor testified that he had never seen the Fitzgeralds’ van.

When Victor sold his van, he gave the buyer the van’s certificate of title. At trial, an accurate photocopy of the certificate was admitted into evidence as People’s exhibit No. 1-E. The front of the certificate identifies the van as a 1984 Chevrolet Suburban and lists the van’s VIN. It also identifies Victor as the owner. On the back of the certificate, in the section headed “Assignment of Title,” appears Victor’s signature. The document lists the sale date as August 31, 1987. Above Victor’s signature, after the standard words “The undersigned hereby certifies that the vehicle described in this title has been transferred to” appear the hand-printed words “William and Barbara S. Barkstrom.” In similar printing, the Barkstroms’ address is given as “8935 Palisades, Hinsdale.” Victor testified that, when he sold his van, he signed his name on the back of the certificate; the signature on the exhibit was his. However, he left the space above his signature blank. The writing identifying the Barkstroms as buyers was not there when Victor tendered title to the buyer of his 1984 van.

William and Barbara Sue Barkstrom both testified that they were acquainted with Charles Nivens, as, some years before 1987, Nivens had lived in their neighborhood. The Barkstroms purchased their home from Nivens’ grandmother. The Barkstroms both identified the man in People’s exhibit No. 8 as Charles Nivens.

The Barkstroms testified that, on August 30, 1987, Nivens drove to their home in Hinsdale. At trial, the Barkstroms were shown a photograph of the Fitzgerald van. They identified the van in the photograph as the one that Nivens drove. Nivens told the Barkstroms that the Suburban belonged to a friend who was having financial difficulties and wanted to sell the van. After William Barkstrom said he would like to buy the van, Nivens said that his friend would sell it for $7,000.

On September 8, 1987, Nivens returned in the Fitzgeralds’ van to the Barkstroms’ residence. Nobody rode with him. The Barkstroms gave him $7,000 cash. Nivens gave them the van, the keys, and a certificate of title. Since then, the Barkstroms had not seen or heard from Nivens.

William Barkstrom identified People's exhibit No. 1-C as the title certificate that he received when he took possession of the van that Charles Nivens sold him. The certificate states that, on August 1, 1986, Wheels, Inc., of Skokie, Illinois, transferred the title to the 1984 Chevrolet Suburban to Charles Victor of Northbrook. At trial, Barkstrom recollected that the van’s title was in Victor’s name at the time the Barkstroms purchased the van. Also, the VIN on the vehicle’s dashboard matched that on the title certificate. Both Barkstroms identified People’s exhibit No. 1-F as a form that Barbara Barkstrom filled out and signed when she withdrew $7,000 from a currency exchange. The form states that on August 31, 1987, the Barkstroms bought a 1984 Chevrolet Suburban from Charles Victor.

The State’s final witness was Officer Richard Romero of the Illinois Secretary of State’s police. Romero was the leader of a 1988 investigation regarding the 1984 Chevrolet Suburban that Victor had sold. The investigation stemmed from a State investigation of a used car dealership.

Romero explained that the police use VINs to track changes in the possession of vehicles. The VIN is the number the dealer assigns to identify a specific vehicle. The VIN is on a tag attached to the dashboard of the vehicle. It is also possible to derive the VIN from sets of numbers that are printed on locations elsewhere in or upon the vehicle. For each vehicle, the VIN appears on all change of title forms. The Secretary of State’s office keeps records of all changes in a vehicle’s title.

Romero recounted that, in December 1988, the Barkstroms agreed to let him and a colleague inspect the van they had bought from Charles Nivens. Romero discovered that the VIN on the dashboard did not match the derived VIN. The police ran checks on the VINs, ordered copies of certified title changes for the Barkstroms’ van and the Fitzgeralds’ van, and confiscated the Barkstroms’ van.

The police discovered that the true VIN (the one recorded by the Secretary of State) for the Barkstroms’ van matched the derivative VIN and the VIN on the Fitzgeralds’ certificate of title. The VIN on the dashboard of the van had been taken off of a separate vehicle-one that came out of the dealership that the police had been investigating. Romero eventually learned that Charles Victor had previously owned this vehicle. Romero testified that, according to State records, Victor had “signed the vehicle off” and that title was transferred to the Barkstroms.

The jury found defendant guilty of the possession and the sale of the stolen Fitzgerald van.

Defendant moved for a new trial. His written motion alleged that his absence from trial was not willful. The court heard the motion, with defendant as the sole witness. Defendant stated on direct examination that he posted bond in January 1989 and had not missed a court date until trial. At the time he was arrested, he was living in his mother’s house. Shortly before the trial itself, his mother sold the house and moved out of Illinois. Since late June 1989, defendant, who was on parole on unrelated charges, had been living with a friend. Within a week of his move, he notified his parole officer of his new address.

On direct examination, defendant stated that the first time he learned that he had been tried and convicted in absentia was when he went to the courthouse on July 24, 1989, and Mr. Sotomayor of the public defender’s office told him that the trial had already taken place. On cross-examination, defendant admitted that this account was untruthful. He acknowledged that on July 21 or 22, 1989, Mrs. Barkstrom told him that he had missed his trial. Defendant also stated that he had not missed his May 15,1989, court date.

The court denied the motion for a new trial. Judge Telander noted that the defendant and his attorney were present in court on May 15, 1989, when Judge Robert Cox, then assigned to the case, set the trial for July 18, 1989. The transcript of the May 15, 1989, proceeding confirms this observation. Judge Telander concluded that defendant had a responsibility to get his court dates straight and to inform his attorney of his whereabouts. The judge therefore found no reason to vacate the judgment. After defendant was sentenced, he timely appealed.

Defendant argues first that the evidence was insufficient to show that he was the Charles Nivens who possessed the Fitzgerald van and sold the van to the Barkstroms. Acknowledging that somebody with his name performed these actions, defendant maintains that mere identity of names is legally insufficient to establish identity of person. Defendant cites several appellate court decisions enunciating this principle. See People v. Newbern (1989), 183 Ill. App. 3d 995; People v. Johnston (1987), 160 Ill. App. 3d 536; People v. Broyld (1986), 146 Ill. App. 3d 693.

As the State notes, however, our supreme court has rejected the argument upon which defendant relies. In People v. Smith (1992), 148 Ill. 2d 454, the court held that identity of names raises a presumption of identity of persons; if this presumption is unrebutted, identity of person is established beyond a reasonable doubt. (Smith, 148 Ill. 2d at 465; see People v. Davis (1983), 95 Ill. 2d 1, 31.) As defendant introduced no evidence to rebut this presumption, the State adequately established that he was the Charles Nivens who possessed and sold the stolen Fitzgerald van.

Also, we agree with the State that there was evidence of identity beyond the identity of names. Defendant’s attorney conceded (and defendant does not now argue) that the photograph admitted as People’s exhibit No. 8 (and used by defendant’s attorney in cross-examining Charles Victor) is that of defendant and not a picture of some other person by the same name.

Defendant argues second that the evidence did not establish beyond a reasonable doubt that, when he possessed and sold the Fitzgeralds’ van, he knew the vehicle was stolen or converted. The State replies that the jury could properly infer defendant’s guilty knowledge from his unexplained possession of recently stolen property. We agree.

As it was instructed, the jury could infer the defendant’s culpable state of mind from his exclusive and unexplained possession of recently stolen property. (See Illinois Pattern Jury Instructions, Criminal, No. 13.21 (2d ed. 1981); People v. Ferguson (1990), 204 Ill. App. 3d 146, 151; People v. Mijoskov (1986), 140 Ill. App. 3d 473, 477.) Although a defendant may rebut this inference with an explanation, the defendant must offer a reasonable story or be judged by its improbabilities. The trier of fact need not accept the defendant’s explanation, but may evaluate its probability or improbability in light of the surrounding circumstances. Ferguson, 204 Ill. App. 3d at 151; Mijoskov, 140 Ill. App. 3d at 477.

The jury had ample reason to disbelieve defendant’s account to the Barkstroms that he was selling the car for “a friend” and did not know that the car was stolen. As the prosecutor noted in closing argument, it is less than believable that a friend (who was otherwise unidentified) would entrust defendant with a $7,000 sale without so much as appearing at the offer or sale. Moreover, defendant gave the Barkstroms a certificate of title that represented that the van was owned by Charles Victor. Either defendant did not know Charles Victor, in which case his story that he was selling the car for “a friend” was false, or he did know Charles Victor, in which case he realized that the certificate of title was misleading and that Victor never owned the 1985 Suburban that defendant sold to the Barkstroms. Moreover, defendant sold the van for cash and conveniently fell out of touch after the Barkstroms paid him. The jury did not have to believe that defendant was an unknowing victim of circumstances.

Defendant argues finally that the trial court erred in finding that defendant’s absence from the trial was willful. The defendant’s willful absence is a prerequisite to trial in absentia. (Ill. Rev. Stat. 1987, ch. 38, par. 115—4.1.) To establish a prima facie case of willful absence, the State must prove that the defendant was advised that his failure to appear may result in a trial in absentia-, was advised of his trial date; and did not appear. (People v. Smith (1989), 189 Ill. App. 3d 80, 83.) Without dispute, the State proved these elements.

Because it is the defendant’s duty to keep track of his court dates, to appear when required, and to keep the court informed of his whereabouts, absence resulting from confusion or forgetfulness will not warrant a new trial. (People v. Canal (1991), 210 Ill. App. 3d 733, 736; Smith, 189 Ill. App. 3d at 83-84.) The defendant rebuts the finding of willful absence only by proving that his absence was not his fault and was due to circumstances beyond his control. (Canal, 210 Ill. App. 3d at 735.) Defendant did not meet this burden. The trial court properly denied his motion.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

GEIGER and DOYLE, JJ., concur.


author: JUSTICE HOWERTON PRESIDING JUSTICE RARICK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID W. MILLNER, Defendant-Appellee.
    Fifth District
    No. 5-89-0510
    Opinion filed July 12, 1991.
    Rehearing denied January 22, 1992.
    Paul Hillis, Jr., State’s Attorney, of Salem (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    R. Edward Veltman, Jr., of Crain, Cooksey & Veltman, Ltd., of Centralia, for appellee.
   JUSTICE HOWERTON

delivered the opinion of the court:

Initially this case presents two jurisdictional issues that involve the Illinois Constitution and Supreme Court Rule 603 (134 Ill. 2d R. 603), and those issues must be addressed before this court rules on the substantive issue involving constitutional law. Those jurisdictional issues are: (1) whether the circuit court of Marion County ruled that section 11—501.2 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.2(c)) was invalid as applied to defendant because it deprived him of due process of law and violated his right against self-incrimination as secured by the Illinois Constitution; and (2) whether this case is directly reviewable by the Illinois Supreme Court under Rule 603 (134 Ill. 2d R. 603).

Defendant was arrested for driving under the influence of alcohol and was warned that refusal to take a breath test would result in summary suspension of his driver’s license.

Defendant refused the test.

Section 11—501.2(c) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501.2(c)) provides that evidence of the refusal to take the test is admissible in any civil or criminal case that arises out of acts committed while defendant was driving or in actual physical control of a motor vehicle.

Charged with driving under the influence, defendant filed a pretrial motion in limine asking the court to prohibit the State from using the refusal against him. He argued that, although he had been warned that refusal would result in suspension, he had not been warned that his refusal would be introduced into evidence against him at trial, and he relied on State v. Denney (1987), 130 N.H. 217, 536 A.2d 1242, and State v. Neville (S.D. 1984), 346 N.W. 2d 425 (overruled by State v. Hoenscheid (S.D. 1985), 374 N.W.2d 128). These cases are interpretations of State constitutions by courts of last resort, and each recognizes the freedom of a State to interpret its own constitution as guaranteeing a higher degree of personal freedom than that guaranteed by the United States Constitution, a concept that was present at the creation of the Union and repeatedly has been asserted by the United States Supreme Court. (See Cooper v. California (1967), 386 U.S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788.) As evidence of precedential authority for this case, each of these two cases ultimately involves the extent to which this State is wedded to the so-called “lockstep” method of analyzing provisions of the Illinois Constitution. In “lockstep” analysis, provisions in the Illinois Constitution are assigned meanings identical to corresponding provisions of the United States Constitution. This method of analysis the Illinois Supreme Court sometimes uses and other times discards. Compare Rollins v. Ellwood (1990), 141 Ill. 2d 244, 565 N.E.2d 1302, with Fumarolo v. Chicago Board of Education (1990), 142 Ill. 2d 54, 566 N.E.2d 1283.

In the case at bar, the circuit court prohibited the State in limine from introducing evidence of defendant’s refusal, saying in its order:

“1. Article I, Section 10 of the Constitution of Illinois 1970 provides ‘no person shall be compelled in a criminal case to give evidence against himself ***.’
2. Although the alcohol test results are physical evidence, the refusal to take the test is testimonial and not physical.
3. The public policy of Illinois is to encourage the taking of blood/alcohol tests by motorists and admonitions concerning consequences of refusal are consistent with that public policy.
4. The court finds State v. Denney, 536 A.2d 1242 and State v. Neville, 346 N.W.2d 425 persuasive.
5. Defendant in the immediate case was not clearly advised that his refusal to take the blood/alcohol test could be admitted in evidence against him at a criminal trial and the use of his refusal at trial under such circumstances would violate his due process rights and his right against self-incrimination.”

The State appealed pursuant to Supreme Court Rule 604. (134 Ill. 2d R. 604(a)(1).) The rule allows the State to appeal an order that suppresses evidence and provides:

“In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in dismissing a charge for any of the grounds enumerated in section 114—1 of the Code of Criminal Procedure of 1963; arresting judgment because of a defective indictment, information or complaint; quashing an arrest or search warrant; or suppressing evidence.” 134 Ill. 2d R. 604(a)(1).

Under the 1970 Illinois Constitution, the final authority to prescribe the scope of interlocutory appeals by the State in a criminal case rests exclusively with the supreme court (People v. Taylor (1971), 50 Ill. 2d 136, 139-40, 277 N.E.2d 878), and whether a particular order may be appealed depends solely upon its construction of Rule 604(a)(1).

The State can appeal the circuit court’s order under Rule 604(a)(1), because: (1) that order excludes otherwise probative and admissible evidence; and (2) the State’s Attorney has certified that the exclusion of evidence substantially impairs the State’s ability to prosecute the case, the court thereby relying on the good-faith evaluation by the prosecutor of the impact of this ruling upon the case, and relying as well upon the State’s need to allocate heavily taxed resources as the only deterrent to a prosecutor’s abuse of discretion. People v. Young (1980), 82 Ill. 2d 234, 247, 412 N.E.2d 501, 506; People v. Wallace (1982), 106 Ill. App. 3d 567, 435 N.E.2d 960.

The circuit court’s order prohibited the State from introducing defendant’s refusal even though section 11—501.2(c) provides that defendant’s refusal is admissible. The explicit basis of that order is that admission of that evidence would have the effect of depriving defendant of due process of law and of his right not to incriminate himself as guaranteed by the Illinois Constitution. What is not explicit in the order is implied: that the statute, as applied, violates the Illinois Constitution. We feel, however, that on a matter this serious, the issue first should be framed explicitly, rather than by logical implication. We can remand for a particular purpose while retaining appellate jurisdiction under Supreme Court Rule 615(b). (134 Ill. 2d R. 615(b); People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E.2d 784.) We, therefore, remand to the circuit court for its explicit ruling on whether section 11 — 501.2(c) violates the Illinois Constitution in that it deprives defendant: (1) of due process; or (2) of his right not to incriminate himself.

Remanded with directions.

GOLDENHERSH, J., concurs.

PRESIDING JUSTICE RARICK,

dissenting:

Because I believe defendant was adequately advised that his refusal to take a blood-alcohol test would be admitted into evidence against him at a criminal trial, I must dissent. At the bottom of the standard “Warning to Motorist” was written in by hand an additional paragraph which read: “Evidence can be used for or against you in court.” The text of the rest of the warning itself clarified what such “evidence” was. Taking the warning as a whole then, defendant was indeed advised that a refusal could be used against him. Moreover, due process does not require that an individual be warned, either orally or in writing, of the consequences of his refusal to take a blood-alcohol test as he does not have the constitutional right to refuse such a test. (See In re Summary Suspension of Driver’s License of Rakers (1989), 187 Ill. App. 3d 27, 32, 542 N.E.2d 1311, 1314; see also South Dakota v. Neville (1983), 459 U.S. 553, 565, 74 L. Ed. 2d 748, 760, 103 S. Ct. 916, 923.) For these reasons, I respectfully dissent.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VITTORIO J. AQUINO, Defendant-Appellant.
    Fourth District
    No. 4-92-0139
    Opinion filed December 23, 1992.
    Daniel D. Yuhas and Gloria A. Morris, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In June 1991, the State charged defendant, Vittorio J. Aquino, with attempt (first degree murder) (Ill. Rev. Stat. 1991, ch. 38, pars. 8—4(a), 9—1(a)(1)) and aggravated battery with a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 12—4.2(a)). In September 1991, defendant waived his right to a jury trial, and the trial court conducted a bench trial and found defendant guilty of both offenses. In January 1992, the court sentenced defendant to 20 years in prison. Defendant appeals, arguing that (1) the trial court considered an improper factor in reaching its verdict, and (2) his conviction for aggravated battery with a firearm should be vacated. We disagree with defendant’s first argument, but agree with his second and remand accordingly.

I. Background

Because defendant does not challenge the sufficiency of the evidence, we need not discuss it in great detail. A summary of the evidence presented at trial is as follows.

In June 1991, defendant and his wife, Debbie Aquino, the victim in this case, had an argument about her ex-husband. She decided to take the children to a movie, and as she changed her clothes to do so, defendant shot her in the head. Mrs. Aquino was seriously injured but did not die. Two of Mrs. Aquino’s children witnessed the shooting, and one said that she saw defendant put the gun up to her mother’s head, take two steps back, and shoot.

Defendant admitted that he and his wife were arguing when he shot her, but he claimed the shooting was an accident. He explained that as she was getting dressed, he noticed that his handgun was on the dresser instead of in the closet where it belonged. He decided to put the gun away, and in the process of trying to unload it by removing its clip, he accidentally fired it. However, defendant’s behavior after the shooting — as even testified to by him, but particularly as testified to by the children — was not consistent with defendant’s claim of accident.

One of the police officers who responded to the scene testified that after he arrested defendant, defendant volunteered that “they” were fighting over the gun. At trial, defendant’s counsel attempted to show that defendant’s brother made that statement, not defendant. However, the officer insisted that defendant, not his brother, made the statement, although he appeared somewhat confused when he testified regarding the use of “we” as opposed to “they.”

In announcing its guilty verdict, the trial court explained at length how it viewed the evidence. The following excerpts from the trial court’s remarks pertain to the issues on appeal:

“In summary, it appears that there had been some trouble on the evening of the day in question, June 15th, and although no big arguments took place or no prior violence, according to the testimony there was indication that the defendant was upset or agitated.
Police Officer Heath said that the defendant told him shortly after the incident when he went to the defendant’s home that they were fighting over a gun.
The defendant’s testimony attempted to show that the shooting was an accident. The Court has found that the defendant’s testimony is substantially not credible.
At no time did the defendant tell anyone, either immediately after the shooting, or soon thereafter when the police came, that this had been an accident. It wasn’t until the trial testimony by the defendant that it was presented as an accident. This was not credible and the Court considered that to be very important evidence.
The defendant admitted that he was upset at the time of the shooting. Earlier the wife, the victim, had left against his wishes for a brief period of time, had come back, then she was leaving again. He told her two or three times not to go to the movies. She was going. So there was some evidence of agitation.
* * *
The defendant’s description of the actual shooting is just not consistent with the facts. Without mentioning everything, *** the victim said she was standing, he said she was squatting or stooping. He said he had always kept the gun loaded and cocked, and that the night before he took it down from the box where it had always been kept to clean it, [he] put it in the drawer, and at the time of the discussion when she was getting ready to leave the defendant says that he was trying to unload the gun to put it back in the box. This was not consistent.
The defendant’s explanation of what happened after the shooting is not consistent with an explanation of it being an accident. There was [sic] no, as I said, no statements to that effect, which it would seem would have been a natural thing to do, no matter what, would be to express it being an accident.
He made no real efforts to help, in fact, he hindered the efforts, and although obviously it was a traumatic experience for all, he was a trained person in medical type matters [(defendant worked as a nurse’s assistant)], and everything that he did or said he did or that others said he did certainly did not indicate that he was attempting to assist. The victim had to get up and leave herself and take herself to the hospital.
In summary the totality of the facts do not support the description of this event as being an accident. The gun could not have been fired accidentally as described by the defendant and in light of all of the other facts that were brought into this case, some of which I mentioned, the Court in this case finds that the shooting was intentional.”

Defendant filed a post-trial motion which alleged in pertinent part the following:

“The Court erred in considering the absence of any statement by Defendant that he told anyone that the shooting was an accident. Said inference is unsupported by the evidence, violates Defendant’s constitutional right to remain silent, and cannot be considered an admission by silence under the rules of evidence.”

The trial court denied the motion and stated that the court’s guilty verdict “was based on only what was related at the trial and certainly not based on anything that [defendant] did not say or any silence that chose to take advantage of at the time of the arrest and the time the police came.”

II. The Alleged Doyle Violation

The record reveals that no witness ever testified that defendant was given the Miranda warnings. While acknowledging that fact, defendant argues on appeal that “his possible failure to make an exculpatory statement should not have been used as a chief reason to convict him of attempt first degree murder.” Defendant further argues that “[i]t is fundamentally unfair to breach the promise implicit in the Miranda warnings that ‘silence will carry no penalty’ by using that silence against the defendant at trial.” In support of these arguments, defendant primarily cites Doyle v. Ohio (1976), 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240, and Doyle’s progeny, Wainwright v. Greenfield (1986), 474 U.S. 284, 88 L. Ed. 2d 623, 106 S. Ct. 634. We disagree with defendant’s argument that Doyle applies to this case.

First, defendant did not remain silent after he was taken into custody; instead, the arresting police officer testified that defendant volunteered the information that he and his wife had been fighting over a gun. In People v. Johnson (1988), 170 Ill. App. 3d 828, 834, 525 N.E.2d 546, 551, this court pointed out that an exception to the Doyle rule exists

“where defendant’s exculpatory testimony at trial is manifestly inconsistent with statements made after arrest[; thus] any comment or evidence concerning his failure to give the same statement at that time will not violate the Doyle rule. Anderson v. Charles (1980), 447 U.S. 404, 408, 65 L. Ed. 2d 222, 226, 100 S. Ct. 2180, 2182.”

We note that defendant’s statement that he and his wife had been fighting over a gun is “manifestly inconsistent” with the accident scenario to which he testified at trial.

Second, because the police never gave defendant his Miranda warnings, Doyle does not apply to the facts of this case. In a remarkably similar case, Brecht v. Abrahamson (7th Cir. 1991), 944 F.2d 1363, cert. granted (1992), 504 U.S. 972, 119 L. Ed. 2d 563, 112 S. Ct. 2937, the Seventh Circuit Court of Appeals presented a most comprehensive and persuasive analysis of the current state of the law regarding Doyle. In Brecht, the defendant was convicted of murder in a Wisconsin State court. The defendant in Brecht claimed that he accidentally shot the victim, his brother-in-law, when defendant tripped while running with a loaded rifle. Defendant revealed this “accident scenario” for the first time at his trial.

Because nothing in the trial record implied that defendant was told until his arraignment that he had a right to remain silent, the supreme court of Wisconsin rebuffed all of defendant’s claims that the State had improperly used his silence to impeach him when he testified. (See State v. Brecht (1988), 143 Wis. 2d 297, 421 N.W.2d 96; Brecht, 944 F.2d at 1365.) However, the Wisconsin Supreme Court assumed that the trial court had informed defendant of his right to remain silent at his arraignment. The supreme court then concluded that the prosecutor violated Doyle (1) by asking defendant whether he told anyone at any time before trial that the shooting was accidental, and (2) by remarking in closing argument that defendant had told no one. Nonetheless, the Wisconsin Supreme Court affirmed defendant’s conviction, finding these few references in a four-day trial to be peripheral and harmless beyond a reasonable doubt.

The Federal district court disagreed with this finding and granted habeas relief. (Brecht v. Abrahamson (W.D. Wis. 1991), 759 F. Supp. 500.) The Seventh Circuit reversed, reinstated the conviction, and discussed the Doyle issue as follows:

“[In] Jenkins v. Anderson, 447 U.S. 231, 235-39, 100 S. Ct. 2124, 2127-30, 65 L. Ed. 2d 86 (1980), [the United States Supreme Court] *** held that use of silence to impeach a testifying defendant does not violate the self-incrimination clause of the federal Bill of Rights. Turning to the due process inquiry, the court observed that prosecutors may use as impeachment silence preceding the delivery of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). See Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490 (1982). ***
‘Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. Each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative.’ Jenkins, 447 U.S. at 239, 100 S. Ct. at 2129 (citations omitted). If Brecht indeed shot [his brother-in-law] by accident, he had every reason to tell the police early and often. How else was he to win release from prison — or to ensure that investigators preserved evidence that would support his version of events? Why would an innocent man keep his sister in the dark about the circumstances of her husband’s death? Would he not at least apologize for the accident? Silence supports an inference that it took Brecht a while to cook up a story. Fabricated defenses are best withheld until after the [S]tate has rested, not only to catch the opposition off guard but also to avoid any blatant inconsistencies with the facts the prosecution adduces.
But for Doyle v. Ohio, the prosecutor would have been entitled to ask the questions and argue the case precisely as he did. Doyle holds that however natural the inference from silence may be, the prosecutor may not undermine the implications of the Miranda warnings. A suspect told that he has a right to remain silent, Doyle concluded, may not be bushwhacked by an argument that silence implies guilt. Fletcher establishes that Doyle applies exclusively to silence after the suspect has been informed about the privilege of silence. Nothing in this record implies that Brecht received such advice before his arraignment. Thus, as the Supreme Court of Wisconsin held, questions and arguments about silence before arraignment are proper, while the questions and remarks in closing argument concerning whether Brecht told his story ‘at any time’ before trial stand condemned by Doyle, for they referred in part to post-warning silence. ***
* * *
In the years since Doyle the Court has thought better of its suggestion that no argument from silence may be presented to a jury. Jenkins allowed a prosecutor to urge inferences from pre-arrest silence, remarking that ambiguity ‘is a question of state evidentiary law.’ 447 U.S. at 239 n. 5, 100 S. Ct. at 2130 n. 5. Fletcher extended this treatment to post-arrest silence by suspects who did not receive Miranda warnings. Although one could have said that most suspects know of their privilege to remain silent whether or not the police tell them, and that this knowledge creates the same ambiguity mentioned in Doyle, the Court held that difficulties of inference are subjects for state law. *** [Thus, Doyle’s] real foundation [is] the desire to prevent the [S]tate from undercutting the value of the Miranda warnings. ***
*** Doyle put it this way:
‘[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.’
426 U.S. at 618, 96 S. Ct. at 2245. Jenkins, which allows reference to pre-arrest silence, and Fletcher, which allows reference to post-arrest silence if the officers neglected to give Miranda warnings, emphasize that the [S]tate did not afford — and therefore could not renege on — any assurance that silence is costless. Cf. Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 2182, 65 L. Ed. 2d 222 (1980) (‘Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.’). *** Doyle thus rests on a single proposition: Having implied when giving warnings that silence is safe, the government may not reverse course at trial. The rule of Doyle reduces the chance that Miranda warnings will injure the persons they are supposed to protect. Doyle makes the world safe for Miranda." (Emphasis added.) Brecht, 944 F.2d at 1365-70.

We agree with the Seventh Circuit’s analysis and find no evidence in the present case suggesting that the State had implied to defendant that “silence is safe.” Accordingly, we conclude that no violation of Doyle occurred both because defendant did not remain silent and because he was never given any Miranda warnings to induce him to believe that “silence is safe.”

III. Multiple Convictions

Defendant next argues, and the State concedes, that his conviction for aggravated battery with a firearm cannot stand if we affirm his conviction for attempt (first degree murder). (See People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (same physical act cannot provide the sole basis for multiple convictions).) We agree, vacate defendant’s conviction for aggravated battery with a firearm, and remand with directions that the trial court amend the sentencing order to reflect only the conviction for attempt (first degree murder).

IV. Conclusion

For the reasons stated, we affirm defendant’s conviction of attempt (first degree murder), vacate his conviction of aggravated battery with a firearm, and remand with directions.

Affirmed in part; vacated in part, and remanded with directions.

KNECHT and GREEN, JJ., concur.