author: JUSTICE NICKELS

text:
    ELOY SALAZAR et al., Plaintiffs-Appellants, v. WILEY SANDERS TRUCKING COMPANY, INC., et al., Defendants-Appellees.
    Second District
    No. 2 — 90—0927
    Opinion filed July 26,1991.

      Ray, Rizowy & Fleischer, of Chicago (Allen L. Ray, of counsel), for appellants.
    Gary W. Klages, of Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Waukegan, and D. Kendall Griffith and Joshua G. Vincent, both of Hinshaw & Culbertson, of Chicago (Gary J. Bazydlo, of counsel), for appellees.
   JUSTICE NICKELS

delivered the opinion of the court:

Plaintiffs, Eloy and Elva Salazar, appeal from a July 24, 1990, order of the circuit court of Lake County which denied their section 2— 1301(e) motion of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e)) and section 2 — 1401 petition of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401) to vacate a November 22, 1988, order which dismissed their personal injury complaint against defendants, Wiley Sanders Trucking Company and Eddie K. Blair, for want of prosecution. The issues raised on appeal are whether the trial court erred in denying the section 2 — 1301(e) motion and whether the trial court abused its discretion in denying the section 2 — 1401 petition.

On July 19, 1988, plaintiffs filed a complaint against defendants which alleged that on July 19, 1986, Blair, as an agent of Sanders Trucking engaged in his employment duties, fell asleep and his five-axle freight liner vehicle overturned, blocking two lanes of traffic. Plaintiffs’ vehicle struck the freight liner, and they suffered injuries as a result. Plaintiffs also alleged that Sanders Trucking negligently entrusted the vehicle to Blair. David Z. Feuer represented plaintiffs and filed the complaint.

Pursuant to defendants’ section 2 — 615 motion to dismiss, the court dismissed plaintiffs’ complaint on September 30, 1988, and allowed plaintiffs 21 days to file an amended complaint. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) However, on November 22, 1988, the cause was dismissed for want of prosecution (DWP order) on the court’s own motion. No amended complaint was ever filed.

On December 21, 1988, Feuer filed a section 2 — 1301(e) motion to vacate the DWP order. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e).) The motion was set for hearing on December 30, 1988.

Nothing further appears in the record until April 25, 1990, when plaintiffs filed a section 2 — 1401 petition to vacate the DWP order. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401.) The petition was filed by attorney Allen L. Ray of the law firm where Feuer was formerly employed. The petition alleged that from the time plaintiffs’ case was brought to the firm in July 1986 and all relevant times thereafter Feuer had complete responsibility for plaintiffs’ case. It was alleged on “information and belief” that Feuer did not appear at defendants’ motion to dismiss. It provided that Feuer failed to file an amended complaint. The petition also alleged that while Feuer filed a section 2 — 1301(e) motion to vacate the DWP order, he failed to present the motion to the court “[f]or reasons unknown then and now” and the motion was stricken.

The petition also alleged that Feuer never advised members of the law firm that the cause was DWP’d, but told them after December 30, 1988, that the matter was pending. Feuer resigned on July 31, 1989, and later informed the firm that he was suffering from medical depression and was under psychiatric care. “Upon information and belief” Feuer was alleged to be incapacitated while this case was in his control. The petition was accompanied by Ray’s affidavit and plaintiff Eloy’s affidavit which provided that he communicated with Feuer from time to time and was told the matter was progressing and discovery was pending.

Defendant filed a motion to dismiss plaintiffs’ section 2 — 1401 petition. However, plaintiffs filed an amended motion on June 13, 1990, which sought a ruling on Feuer’s section 2 — 1301(e) motion to vacate the DWP order filed December 21, 1988, which plaintiffs now alleged was still pending as no order was ever entered on it. The motion incorporated by reference the previous section 2 — 1401 petition. Alternatively, plaintiffs again sought to vacate the DWP order by a section 2 — 1401 petition. Ray’s affidavit with the amended motion stated that letters from defendants’ attorney dated June 1, 1989, regarding rescheduling of depositions until early October 1989 were in Feuer’s file. No other information in the file showed the disposition of Feuer’s section 2 — 1301(e) motion. Defendants filed a motion to dismiss plaintiffs’ amended motion.

The matter was set for a hearing on July 20, 1990. Plaintiffs filed an affidavit by Roneen Blank, M.D., a psychiatrist, which provided that Blank treated Feuer from October 1989 through April 1990. Feuer was diagnosed with an adjustment disorder with depressed mood. In Blank’s professional opinion it was “highly likely” that Feuer suffered from this condition since at least early 1988.

Following a hearing at which no court reporter was present according to plaintiffs, the court denied plaintiffs’ section 2 — 1301(e) motion and section 2 — 1401 petition. The July 24, 1990, order provided that: the December 21, 1988, section 2 — 1301(e) motion to vacate the DWP order was stricken on December 30, 1988, and was not pending; the parties stipulated that this motion had been stricken; in any event, if it were still pending it was stale and should be denied; Dr. Blank’s affidavit was inadequate because it failed to show that Feuer suffered from a mental illness or was being treated prior to July 31, 1989; and nine months elapsed between Feuer’s resignation and the filing of the section 2 — 1401 petition which showed lack of due diligence.

Plaintiffs initially contend the trial court’s finding that the section 2 — 1301(e) motion was stricken on December 30, 1988, is incorrect because there is no basis in the record to support the finding. They also claim that they never stipulated that the motion had been stricken. Defendants argue that plaintiffs have supplied an inadequate record, and doubts must be resolved against them as appellants. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389.) In reply plaintiffs point out that the record is nonexistent for any proceeding on December 30, 1988, because Feuer was not present in court.

While plaintiffs have offered an explanation for the lack of supplying a record for December 30, 1988, they have failed to submit to this court a report of proceedings or its substitutes as provided in Supreme Court Rule 323 (134 Ill. 2d R. 323) for the hearing held on their amended motion on July 20, 1990. (Marshall E. Winokur, Ltd. v. Shane (1980), 89 Ill. App. 3d 551, 552-53.) According to the July 24, 1990, order, counsel were present, arguments were heard, and the court was “advised in the premises,” and yet plaintiffs have not furnished any form of a record for this proceeding. An appellant has the duty to present a complete record on appeal, and in the absence of an adequate record, it will be presumed that the trial court’s judgment conforms to the law and has a sufficient factual basis. (Lakeland Property Owners Association v. Larson (1984), 121 Ill. App. 3d 805, 808.) The July 24, 1990, order states the parties stipulated that the motion was stricken on December 30, 1988, and since plaintiffs have failed to supply a record for the proceeding in which such a stipulation may have occurred, we resolve any doubt against plaintiffs as appellants. (In re Estate of Jacobs (1989), 189 Ill. App. 3d 625, 629.) Plaintiffs’ contention in their reply brief that defendants had an opportunity to supplement the record to show a stipulation is not persuasive as it was incumbent upon plaintiffs as the party seeking to have the judgment reviewed to present a record of proceedings to show the errors from which they complain. (Jacobs, 189 Ill. App. 3d at 629; In re Custody of Caruso (1989), 185 Ill. App. 3d 739, 743.) A party cannot generally dispute stipulated matters on appeal. Dawdy v. Sample (1989), 178 Ill. App. 3d 118, 127.

Plaintiffs also make the unsubstantiated statement in their brief that a “chance call” to the clerk’s office in April 1990 gave them notice that no order had been entered on the section 2 — 1301(e) motion. Assertions in an appellant’s brief cannot substitute for a proper record. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 557.) The record does not indicate any evidence which was presented to the trial court to support this statement such as half sheets or other records from the clerk’s office or even an affidavit. We will not consider this statement as fact.

While plaintiffs have failed to present a record of the July 20, 1990, hearing, we do note that the July 24, 1990, order indicates some uncertainty on the trial court’s part as to the status of the section 2 — 1301(e) motion on July 20, 1990. The order provided that the motion was stricken on December 30, 1988, and that the parties stipulated to that fact; however, the order further stated that if the motion was pending, it was stale and should be denied. Generally, a party cannot dispute stipulated matters on appeal (Dawdy, 178 Ill. App. 3d at 127), but since the end result of the trial court’s order actually was to deny the section 2 — 1301(e) motion due to staleness, we will consider that issue on appeal.

Defendants assert that the trial court found the section 2 — 1301(e) motion stale and denied it pursuant to local court rules. Plaintiffs argue that the order does not refer to local court rules and there is no support for the proposition that the court based its ruling on local court rules. Once again, plaintiffs are disputing the basis for the trial court’s finding and yet have failed to supply a record of the hearing wherein such basis may be found. The record does contain the motions and accompanying arguments which were before the trial court at the hearing. (See Walker v. Iowa Marine Repair Corp. (1985), 132 Ill. App. 3d 621, 625-26.) Based on these documents, the trial court was presented with a staleness issue under local court rules. The order recites that the motion was “stale” and should be denied. Therefore, the record before this court establishes that the trial court denied the section 2 — 1301(e) motion pursuant to local court rules due to the failure of plaintiffs to present it in a timely manner, and plaintiffs have failed to prove otherwise.

Circuit courts have the power to enact and enforce rules regulating their calendars and dockets as long as the rule does not conflict with supreme court rules or statutory law. (Martin Brothers Implement Co. v. Diepholz (1982), 109 Ill. App. 3d 283, 286.) Although Supreme Court Rule 184 (134 Ill. 2d R. 184) provides that either party may call up a motion, the failure of a nonmoving party to call up a motion does not preclude the trial court from exercising its discretion to deny a motion which the moving party has failed to call for a hearing. (Terrill v. St. Louis Southwestern Ry. Co. (1987), 154 Ill. App. 3d 983.) Trial courts have inherent authority to control their business. (Terrill, 154 Ill. App. 3d at 986.) Under local Rule 2.03(E) of the Rules of the Circuit Court of Lake County, the court may consider a motion denied by reason of delay if it has not been called within 90 days from the date it is filed. (19th Jud. Cir. R. 2.03(E).) Such denial or dismissal is discretionary with the trial court, and a reviewing court will not overturn the trial court’s determination in the absence of facts constituting an abuse of discretion. See Marshall E. Winokur, Ltd., 89 Ill. App. 3d at 553; People ex rel. Carey v. Forberg (1975), 33 Ill. App. 3d 161,166.

Plaintiffs argue that the trial court applied the wrong standard and should have vacated the DWP order under the circumstances of this case in the interest of substantial justice. (People ex rel. Reid v. Adkins (1971), 48 Ill. 2d 402; Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460; People ex rel. Department of Revenue v. Coun tryman (1987), 162 Ill. App. 3d 134.) These cases involved section 2— 1301(e) motions which were decided on their merits and not denied due to the failure of plaintiffs to call the motion for a hearing for about 18 months. In determining whether the trial court properly denied plaintiffs’ section 2 — 1301(e) motion due to the delay, the question is whether the court abused its discretion. (See Marshall E. Winokur, Ltd., 89 Ill. App. 3d at 553; Carey, 33 Ill. App. 3d at 166.) Since plaintiffs’ reasons and arguments given for the delay in calling the section 2 — 1301(e) motion for a hearing are the same as those offered in support of their argument for section 2 — 1401 relief, we examine the circumstances of this case to determine whether the trial court abused its discretion in denying the section 2 — 1301(e) motion due to the delay in calling it for a hearing and whether the trial court abused its discretion in denying the section 2 — 1401 petition.

We note that in Belluomini v. Lancome (1990), 207 Ill. App. 3d 583, the Appellate Court for the First District found that a “stricken” section 2 — 1301(e) motion did not constitute an adjudication on the merits, and the motion remained pending for four years. However, the motion was not “denied” or “dismissed” as the July 24, 1990, order provides herein. Also, the defendants in that case made no argument before the trial court concerning local Rule 2.3 of the rules of the circuit court of Cook County concerning denial of a motion not called within 90 days, and the court would not consider it on appeal. Additionally, the instant plaintiffs have not argued that if the motion was only “stricken” on December 30, 1988, it remained pending.

To be entitled to relief under section 2 — 1401 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401), petitioner must affirmatively set forth specific allegations supporting: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting this defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21.) In order to prevail under section 2 — 1401, petitioner must prove his/her right to the relief sought by a preponderance of the evidence. (Morski & Associates, Inc. v. R & R Resources, Inc. (1990), 198 Ill. App. 3d 359.) The determination of whether to grant the petition lies in the discretion of the trial court and will not be disturbed absent an abuse of discretion. (O’Malley v. Powell (1990), 202 Ill. App. 3d 529.) Initially, this court notes that the trial court denied plaintiffs’ petition for post-judgment relief based solely on plaintiffs’ lack of due diligence. Therefore, this court need not address whether plaintiffs’ section 2 — 1401 petition alleged facts establishing a meritorious claim. Smith, 114 Ill. 2d at 221-22; Dassion v. Homan (1987), 161 Ill. App. 3d 141.

Due diligence requires that petitioner show that his/her inaction was the result of an excusable mistake and that petitioner acted reasonably, not negligently, when he/she failed to pursue the cause of action. (Dassion, 161 Ill. App. 3d at 145.) Whether a litigant has acted reasonably is judged by all the circumstances surrounding entry of the judgment, including the conduct of the litigants and their attorneys. City National Bank v. Langley (1987), 161 Ill. App. 3d 266.

Plaintiffs claim that since their attorney, Feuer, was mentally ill, they have a reasonable excuse for not prosecuting their claim or timely seeking to vacate the DWP order. (Campbell v. White (1989), 187 Ill. App. 3d 492.) The Campbell court noted that the attorney “apparently” had some difficulty with alcohol during a portion of the period in question, but the court examined a number of factors in determining that substantial justice required that the default be vacated.

The illness of an attorney is always a persuasive excuse for his failure to comply with a court requirement. (Kaufman v. Kaufman (1974), 22 Ill. App. 3d 1045.) However, plaintiffs failed to establish that Feuer was ill at the time the DWP order was entered or at the time he failed to appear on December 30, 1988, for the motion to vacate. The section 2 — 1401 petition stated only that the action was DWP’d on November 22, 1988, because Feuer failed to appear at a pretrial conference and failed to file an amended complaint. It stated that “for reasons unknown then and now” Feuer failed to appear on December 30, 1988, for the section 2 — 1301(e) motion. The amended motion did not specifically allege that Feuer’s mental illness was present and/or caused the failure of plaintiffs to diligently pursue their claim or to present their section 2 — 1301(e) motion for hearing. See George F. Mueller & Sons, Inc. v. Ostrowski (1974), 19 Ill. App. 3d 973.

Although no counteraffidavits were filed by defendants, plaintiffs’ affidavits do not establish that Feuer suffered from mental illness at the times in issue. Ray’s affidavit merely stated that Feuer informed him subsequent to resigning that Feuer’s illness “caused him to be unable to respond to various job responsibilities while with the firm.” Dr. Blank’s affidavit established that Feuer did not begin treatment until October 1989. The doctor could only state that it was “highly likely” that Feuer’s symptoms and conditions were present early in 1988. These affidavits shed little light on the question of Feuer’s condition at the times in question. (Diacou v. Palos State Bank (1976), 65 Ill. 2d 304.) In fact, the affidavit of Ray shows that Feuer filed the section 2 — 1301(e) motion on December 21, 1988, and set the matter for hearing on December 30, 1988. Such activity on Feuer’s part suggests that he was engaged in the practice of law and not “incapacitated.” Diacou, 65 Ill. 2d at 312.

In Campbell (187 Ill. App. 3d 492), relied upon by plaintiffs, the attorney therein specifically stated in his affidavit that he relapsed into alcoholism for the first two to three weeks of December 1987, the times in issue, while in Kaufman (22 Ill. App. 3d 1045), the attorney was ill for a month and one-half after filing a motion to vacate but did not explain his inaction for hVz months. In People ex rel. Carey v. Forberg (1975), 33 Ill. App. 3d 161, the attorney explained that he was taken ill soon after filing his post-trial motion, was hospitalized, operated on, and was recuperating until a few days before he took action on the motion. Plaintiffs failed to establish that Feuer’s illness resulted in the delay in presenting the section 2 — 1301(e) motion for a hearing in a timely fashion, nor did they establish due diligence under section 2 — 1401 in prosecuting their claim in the original action.

Plaintiffs contend that Feuer misled all of them on the status of the cause. They point to the June 1, 1989, letters from defendants which rescheduled depositions for October 1989 claiming that these letters reasonably led plaintiffs to believe the matter was reinstated.

A party is normally responsible for following his lawsuit and will be bound by the negligence of his attorney. (O’Malley v. Powell (1990), 202 Ill. App. 3d 529.) The affidavit of plaintiff Eloy shows that he communicated with Feuer on several occasions, including after November 22, 1988, and was told that the case was progressing. Under Tucker v. McNulty (1988), 173 Ill. App. 3d 722, plaintiffs claim Eloy reasonably relied upon Feuer’s representations in regards to the progress of his case. However, litigants have a duty to follow the progress of their case rather than merely to assume that counsel is doing everything necessary and proper. (City National Bank, 161 Ill. App. 3d 266.) While Eloy’s affidavit refers to communications with Feuer, it does not show that Eloy made inquiries after Feuer resigned. The court’s July 24, 1990, order found a lack of diligence after July 31, 1989 (Feuer’s resignation), and the filing of the section 2 — 1401 petition, a nine-month period. Eloy’s affidavit offers no evidence of his diligence in inquiring of the case’s status during that time period.

Plaintiffs are accountable for any deception caused by their original attorney, and it makes no difference that the fraud was perpetrated on plaintiffs as opposed to some other party or the court. (Dassion, 161 Ill. App. 3d at 145.) Section 2 — 1401 cannot be used to relieve parties from the consequences of their own mistakes or their attorney’s deception. Harris Trust & Savings Bank v. Illinois Fair Plan Association (1990), 194 Ill. App. 3d 761.

Plaintiffs’ attorneys also claim that they were misled by Feuer regarding the status of the case. Knowledge of one member of a law firm is imputed to all of its members, and an attorney is responsible for the negligence of others in the firm. (Burton v. Estrada (1986), 149 Ill. App. 3d 965.) Just as plaintiffs are accountable for any deception caused by their original attorney, Feuer’s law firm is not necessarily excused by Feuer’s deception. (See Dassion, 161 Ill. App. 3d at 145.) In any event, plaintiffs’ attorneys did not show diligence with respect to the case’s status after Feuer resigned.

Plaintiffs claim that Feuer’s file reasonably led them to believe that the matter had been reinstated, relying upon Martin v. Kargman (1971), 133 Ill. App. 2d 545. They do not suggest that defendants deliberately tried to mislead plaintiffs with these letters.

First, in Martin the defendant’s attorney who continued with settlement negotiations after a dismissal had constructive knowledge of the dismissal due to the fact that a member of his firm obtained it. Defendant’s attorney was found to be in the better position as opposed to plaintiff’s attorney to know what went on in his firm. Thus, despite defendants’ attorney’s letters in the file herein, plaintiffs’ law firm would be in a better position to know the status of their section 2 — 1301(e) motion. While defendants’ attorney probably would not have sent these letters if he were aware the action had been dismissed (O'Malley, 202 Ill. App. 3d at 534), plaintiffs’ attorneys had a duty to follow the progress of the case irrespective of the opponent’s actions. Burton, 149 Ill. App. 3d at 974.

Plaintiffs did not explain the notation on “Exhibit No. 2 of A” which is a “true and correct” copy of a June 1, 1989, letter from defendants’ attorney which states “closed [or closure] 11-22-88.” They do not offer an explanation regarding the fact that they knew the complaint was originally dismissed yet no amended complaint was ever filed.

Irrespective of all of the above, plaintiffs have offered no explanation regarding their inaction after October 1989. Defendants’ attorney’s letters indicated depositions would be taken early in October 1989. Even if plaintiffs reasonably relied on these letters to believe the matter was reinstated, there is no evidence that plaintiffs made any attempt (nor did their attorneys) to keep abreast of defendants’ actions with respect to the depositions. Plaintiffs had a duty to follow the progress of their case (Flisk v. Central Area Park District (1990), 203 Ill. App. 3d 253; Morski, 198 Ill. App. 3d 359), as did plaintiffs’ attorneys (Burton, 149 Ill. App. 3d at 974). Here, plaintiffs’ original attorney resigned and told Ray that his illness made him unable to respond to various job responsibilities. Despite this knowledge, plaintiffs relied solely on letters from defendants’ attorney to advise them of the status of their case. Then, plaintiffs failed to follow the progress of their case after Feuer resigned and did nothing until April 1990. As previously noted, no amended complaint had been filed. Plaintiffs state that they had no reason to check the court file for status but offer no explanation for their failure to check the status of their file for over six months. Section 2 — 1401 is not intended to relieve the parties from the consequences of their own mistakes or their attorneys’ negligence. (Dassion, 161 Ill. App. 3d at 145.) Plaintiffs failed to show due diligence in bringing the section 2 — 1401 petition.

Lastly, plaintiffs rely on Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, for the principle that despite a lack of due diligence, equity and justice require that their case be reinstated. Although plaintiffs claim to have been diligent, they argue that equity requires that their cause be determined on the merits and that defendants will receive an unjustified windfall.

Equitable principles may require that a judgment be set aside even though there has been a lack of due diligence by the petitioner. (Dassion, 161 Ill. App. 3d at 146.) Section 2 — 1401 invokes the equitable powers of the trial court which should prevent enforcement of a judgment when it would be unfair, unjust or unconscionable. (See Smith, 114 Ill. 2d at 225.) Under the facts of this case, defendants do not gain an unjust, unfair or unconscionable advantage which requires a relaxation of the due diligence standard.

There is no evidence which points to unfair, unjust or unconscionable conduct on the part of defendants or their attorney. (Smith, 114 Ill. 2d at 228.) Plaintiffs do not claim that defendants deliberately or fraudulently sought to mislead plaintiffs with the June 1989 letters. Plaintiffs point to no affirmative misconduct on defendants’ part or defendants’ counsel which would overcome plaintiffs’ lack of due diligence or which would bring their case within Elfman. (Flisk v. Central Area Park District (1990), 203 Ill. App. 3d 253.) There is no suggestion of fraud or unconscionable behavior on the part of the litigants or the court, but it is apparent that the case was DWP’d and the section 2 — 1401 petition denied due to the lack of due diligence by the plaintiffs. See Esczuk v. Chicago Transit Authority (1968), 39 Ill. 2d 464; Canton v. Chorbajian (1980), 88 Ill. App. 3d 1015.

In summary, the trial court properly exercised its discretion in striking plaintiffs’ section 2 — 1301(e) motion under local court rules for failure to timely present it to the court for a hearing. The trial court properly denied plaintiffs’ section 2 — 1401 petition for a lack of due diligence.

The judgment of the circuit court is affirmed.

Affirmed.

BOWMAN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TIMOTHY L. KILPATRICK, Defendant-Appellee.
    Second District
    No. 2 — 90—0617
    Opinion filed July 26,1991.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Donald J. Ramsell, of Ramsell & Associates, of Wheaton, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

The State appeals from an order of the circuit court of Du Page County which granted the motion in limine of defendant, Timothy L. Kilpatrick, and prohibited the State from introducing the results of defendant’s breathalyzer test into evidence at trial. The sole issue raised by the State on appeal is whether the trial court properly excluded evidence of the breathalyzer test based on the alleged improper certification of the breathalyzer machine. We reverse and remand.

On December 3, 1989, defendant was charged with speeding (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 601(b)), driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501(a)(2)), and driving with an alcohol concentration in his blood or breath in excess of 0.10 (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501(a)(1)). Also on that date, Officer Tony Klotka prepared a “law enforcement sworn report” and served notice upon defendant of the summary suspension of his driver’s license pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.1). The report stated that defendant submitted to testing which disclosed an alcohol concentration of .13.

Defendant filed a petition for a hearing seeking rescission of the summary suspension of his driver’s license. The trial court rescinded the statutory summary suspension, finding that the breathalyzer machine was not shown to be properly certified. This ruling was not appealed. Defendant subsequently filed an amended motion in limine asking that the State be prohibited from using evidence of the results of the chemical test administered to defendant at trial because: (1) the instrument used for the testing was not accurate within ± 0.01% W/V as required by the relevant regulations; and (2) there was a failure to comply with the 20-minute continuous observation period prior to administering the test.

A hearing was held regarding the motion in limine. The parties stipulated that the testimony of Officer Tony Klotka from the prior hearing regarding defendant’s petition for rescission of the statutory summary suspension could be considered as evidence. At the prior hearing, Klotka initially testified that he began observing defendant at 1:12 a.m. and obtained an analysis of defendant’s breath at 1:31 a.m. Klotka later testified, however, during cross-examination by the State, that he actually began observing defendant five minutes prior to 1:12 a.m. He then stated that he did not lose sight of defendant from 1:07 a.m. until 1:31 a.m. and that, during that time period, defendant did not eat, drink, smoke, vomit or regurgitate. Klotka stated that 1:12 a.m. was actually the time when he read defendant the “warning to motorists.”

At the hearing regarding the defendant’s motion in limine, Klotka again testified and identified the logbook for the Intoxilyzer 5000 machine that was used to test defendant’s breath. He testified that the logbook showed that the machine was tested on December 8, 1989, by John Dorko, a Department of Public Health inspector. Dorko’s entry in the logbook stated that the solution used to test the machine was lot number 89 — 145. The results of the test registered in the logbook were “.09” and “.09.” At the prior hearing, Klotka testified that the logbook indicated that the machine was certified on December 8, 1989. He also testified that the machine is capable of reading three digits, but only printed two. He stated that their instrument only records a two-digit number.

Dietmar Grohlich, a toxicologist for the Department of Public Health, testified that he produced the simulator solution designated as lot No. 89 — 145. The certificate of analysis for that solution was admitted into evidence. It showed that the solution had a recorded value of 0.101% W/V BAG. A certified copy of the Intoxilyzer model 5000 operator’s manual was also admitted into evidence.

The prosecutor requested a directed finding following this evidence. He first argued that the evidence presented was sufficient to establish an observation period in excess of 20 minutes. The prosecutor also contended that, in order to agree with defendant’s argument that the machine was not certified as accurate within ± 0.01 as required by the regulations, the court would have to conclude that subtracting .09 from .101 resulted in a difference of .011. The prosecutor stated that this was not correct because he did not believe that it was possible to make that subtraction or compare those two numbers. He argued that .09 is not equivalent to .090 because the third digit could be any of the 10 digits, 0 through 9. He stated that he did not believe that evidence in a criminal case should be kept out on the basis of speculation alone.

Defense counsel argued that the operator’s manual states that the machine used in this case was capable of reading three digits, and he maintained that it was the State’s burden to establish what the third digit was. He pointed out that, according to the operator’s manual, a switch on the machine could have been turned on to read and print the third digit. Defense counsel contended that, absent proof to the contrary, .09 can only be .09 and cannot be .091, so must be considered the equivalent of .090.

In response, the prosecutor noted that the operator’s manual states that the machine used just truncates or drops off the third digit. It does not round off the numbers, but just drops off anything after the two digits which were printed. He then stated that the “only way you can compare these numbers without having any idea what that third digit is in the .09 reading is to truncate the third digit in the .101.” He also stated that the Department of Public Health standards do not require measurement in terms of thousandths.

The trial court noted that Klotka’s testimony regarding the 20-minute observation period was “possibly ambiguous” and “marked by some inconsistencies.” It then stated, however, that “the principal thrust of the motion *** really goes to the certification of the machine.” It then determined that .09 would be .090 if extended one more place and there was therefore a variance of .011 between the sample and the test result which was one-thousandth greater than the accepted margin of error according to the regulations. It then denied the State’s motion for a directed finding.

The State then recalled Dr. Grohlich. Grohlich testified that he has a B.S. degree in chemistry, a master’s degree in German linguistics and a Ph.D. in pathology. He is the supervisor of the toxicology laboratory. He stated that, based on his training and experience, a tolerance of .01 means that an acceptable test result would be .09, .10 or .11. He also testified that the difference between .101 and .09 is .01. He stated that this was because he did not know what the third digit in the second number was, so he would disregard the third digit in the first number. Grohlich testified that breathalyzer machines are always certified to two digits.

During cross-examination, Grohlich stated that he did not know whether anybody had ever certified a machine to more than two digits. In responding to defense counsel’s questions, he also gave the following testimony:

“Q. [I]f you were to take these two numbers and you were required to go to the third decimal, what would be the difference between .101 and .09?
A. If I would be required to go to the third decimal?
Q. Right. If you had to carry these two numbers, .101 and .09, you were to find the difference between the two of them to the third digit, what mathematically, pure mathematics, is the difference between those two numbers?
A. I would actually place a 0 then.
Q. What would the result be?
A. And the result, .011.
Q. Mathematically that is how you would do that equation, correct?
A. That is right.”

During redirect examination, Grohlich acknowledged that placing the zero after .09 would be speculation on his part and stated, “[a]s a teacher, I would say it is actually wrong because I added the 0 on my own account” which would be “defining] a value which in essence is not defined.”

Following this testimony, the trial judge admitted that he was no expert in mathematics and noted that “these are very minute, infinitesimally small quantities we are talking about here.” He nevertheless determined that the mathematical result derived from comparing the two numbers was “.Oil or eleven thousandths which is one thousandth greater than the acceptable margin of error.” He therefore granted defendant’s motion in limine.

The State filed a certificate of impairment and a timely notice of appeal.

On appeal, the State argues that the trial court’s decision must be reversed because the court improperly required the test to be performed to a standard higher than that required by the rules of the Department of Public Health and prior decisions of this court. It contends that figures pertaining to breathalyzer measurement are intended by the regulations to be measured only to two digits. We agree, and we reverse.

The results of chemical tests are admissible in a criminal DUI prosecution only when there is compliance with section 11 — 501.2 of the Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11 — 501.2) and the regulations promulgated thereunder. (People v. Hamilton (1987), 118 Ill. 2d 153, 160; People v. Zator (1991), 209 Ill. App. 3d 322, 326-27.) Section 11 — 501.2(a)(1) provides that, in order for chemical tests “to be considered valid,” they “shall have been performed according to standards promulgated by the Department of Public Health in consultation with the Department of State Police.” Ill. Rev. Stat. 1989, ch. 95½, par. 11-501.2(a)(l).

In People v. Caruso (1990), 201 Ill. App. 3d 930, we held that the court in People v. Orth (1988), 124 Ill. 2d 326, set out all of the foundational requirements for the admission of a breath-analysis result. (Caruso, 201 Ill. App. 3d at 939.) The court in Orth stated that the foundational requirements include:

“(1) evidence that the tests were performed according to the uniform standard adopted by the Illinois Department of Public Health, (2) evidence that the operator administering the tests was certified by the Department of Public Health, (3) evidence that the machine used was a model approved by the Department of Health, was tested regularly for accuracy, and was working properly, (4) evidence that the motorist was observed for the requisite 20 minutes prior to the test and, during this period, the motorist did not smoke, regurgitate, or drink, and (5) evidence that the results appearing on the ‘printout’ sheet can be identified as the tests given to the motorist.” (Orth, 124 Ill. 2d at 340.)

In People v. Keith (1990), 206 Ill. App. 3d 414, appeal allowed (1991), 137 Ill. 2d 669, the court held that, in ruling on a motion in limine, “it is proper to require the State to show the standards were met, by laying the foundation set forth in Orth, before admitting the test results.” Keith, 206 Ill. App. 3d at 421.

The issue raised in this case is whether the trial court erred in determining that the State did not meet its burden to show that the breath-analysis machine used to test defendant’s breath was properly certified as accurate pursuant to the statute and applicable regulations. As relevant here, the regulations state:

“An instrument must be accurate within ± 0.01% W/V [weight of alcohol in the volume of breath] to be certified. To determine accuracy of instruments, an inspector shall perform two (2) analyses on a certified controlled reference sample at least once a month at intervals not to exceed 45 days. The inspector shall record test results of his certification in the instrument log book. The original certification test results will be retained by the inspector.” 77 Ill. Adm. Code §510.100(a) (1985).

We stated in Caruso that, in order for the State to meet the requirement set out in Orth that the machine was tested regularly for accuracy and was working properly, the State need only show that the machine was inspected and certified within 45 days (and at least once a month) and that the machine did not exhibit any malfunction at the time of the test. (Caruso, 201 Ill. App. 3d at 941.) The evidence in this case established that the machine was certified on December 8, 1989; this was only 22 days prior to the date of the test, December 30,1989.

Here, however, defendant presented evidence that the solution used for testing the machine had a value of .101% W/V and the test results on December 8, 1989, were .09 and .09. This was enough to raise a question as to whether the machine was certified accurate within ± 0.01% W/V as required by the regulation. Cf. People v. Stein (1991), 212 Ill. App. 3d 164, 167 (mere inference that a machine was unreliable rebutted by evidence of the inspector’s certification).

In this case, then, the State had the additional burden of proving that, as required by the regulation, the machine had been certified accurate within ± 0.01% W/V. We conclude that the State met this burden.

The same rules used in the construction of statutes apply when construing regulations promulgated by an administrative agency. (People v. England (1989), 188 Ill. App. 3d 9, 13, citing Northern Illinois Automobile Wreckers & Rebuilders Association v. Dixon (1979), 75 Ill. 2d 53, 58.) Therefore, the language of the regulation should be given its plain and ordinary meaning. England, 188 Ill. App. 3d at 13.

The regulation at issue provides that the acceptable margin of error on a breathalyzer machine is 0.01%. This margin of error is accounted for throughout the statutory scheme. (People v. Davis (1989), 180 Ill. App. 3d 749, 754.) The statutory and regulatory scheme does not require accuracy greater than +0.01% to -0.01%. See People v. Crabbe (1990), 195 Ill. App. 3d 163, 166-67 (regulation requiring that an instrument be accurate within ± 0.01% does not require a margin of error of less than ± 0.01%).

Grohlich testified that, based on his training and experience, a margin of error of .01 means that a test result of .09, .10 or .11 would be acceptable. In this case, the test results were .09 and .09, and the machine was certified as accurate.

Defendant argues that, based on Grohlich’s testimony during cross-examination, it is “undisputed that the mathematical difference between [the] two values is .011.” He contends that .011 is clearly greater than the .01 margin of error allowed by the regulation so the trial court’s ruling must be affirmed.

We acknowledge that this is a compelling argument, one which was understandably accepted by the trial court. We also can see the logic in the State’s argument before the trial court that, because .09 does not necessarily equal .090, .09 cannot be accurately subtracted from .101 so that, to compare the two numbers, .101 must be considered .10. We decline, however, to require courts to determine the relative merit of various mathematical theories and practice in order to determine if a breathalyzer machine has been properly certified. This was not the intention of the legislature or the regulators. For purposes of the narrow issue presented here, we hold that accuracy beyond two digits is not required by the regulations. Therefore, where a breathalyzer machine tests a certified controlled reference sample and the result is .09, .10 or .11, the machine may be considered accurate within ± 0.01% as required by the relevant regulation and may be properly certified.

We recognize that the court in People v. Crabbe (1990), 195 Ill. App. 3d 163, in reaching its conclusion that accuracy within ± 0.01% does not require a margin of error of less than ± 0.01%, noted that the machine used in that case was capable of yielding numerical results of only two digits to the right of the decimal point. (Crabbe, 195 Ill. App. 3d at 166.) There was evidence presented in this case that the machine was capable of yielding numerical results of three digits to the right of the decimal point. This does not affect our conclusion that accuracy beyond two digits is not required by the statutory and regulatory scheme involved.

We also disagree with defendant’s argument that the failure of the State to include the Intoxilyzer model 5000 operator’s manual in the record on appeal requires that the trial court’s ruling be affirmed. Defendant contends that he cannot argue that this evidence supported the trial court’s findings because the record is incomplete. We note that it was defendant who requested leave to remove the operator’s manual in the trial court. The prosecutor did not object, noting that he could refer to the transcript if necessary. We conclude that the report of proceedings does contain adequate references to the manual for purposes of our resolution of the issue raised.

The State has also argued that the trial court’s ruling cannot be affirmed based on defendant’s assertion that the police officer failed to comply with the required 20-minute observation period. It contends that this was not the basis of the trial court’s decision and notes that the evidence supports a finding that defendant was observed for more than 20 minutes. Defendant has not argued on appeal that the trial court’s ruling should be affirmed on this alternative basis. We conclude that, while the trial court stated that Klotka’s testimony regarding the 20-minute observation period was “possibly ambiguous” and “marked by inconsistencies,” it implicitly found that the evidence was sufficient to establish that this requirement was met by basing its decision solely on its finding that the machine was not properly certified. We agree that there was sufficient evidence to show compliance with the 20-minute observation requirement. See People v. Zator (1991), 209 Ill. App. 3d 322, 327-28.

For the foregoing reasons, the judgment of the circuit court of Du Page County which granted defendant’s motion in limine is reversed, and the cause is remanded for trial.

Reversed and remanded.

WOODWARD and BOWMAN, JJ., concur.


author: PRESIDING JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEONIA DAVIS, Defendant-Appellant.
    Second District
    No. 2 — 89—0684
    Opinion filed July 25,1991.
    G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, and Terrence R. Lyons, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Leonia Davis, pleaded guilty to the charge of State benefits fraud (Ill. Rev. Stat. 1985, ch. 38, par. 17 — 6(a)) and was sentenced by the circuit court of Du Page County to a two-year term of probation conditioned on, inter alia, payment of restitution in the amount of $22,800. The circuit court subsequently granted the State’s petition to revoke defendant’s probation for failure to pay restitution. A new sentence of 30 months’ probation, including a 30-day jail sentence and a restitution order as conditions thereof, was imposed.

Defendant raises two issues on appeal: (1) whether the trial court erred in revoking defendant’s probation based on its finding that defendant willfully failed to pay restitution; and (2) whether the court erred in sentencing defendant to 30 days in jail and reinstating the same restitution order.

Defendant was charged in an amended indictment with the offense of State benefits fraud in that, between January 1, 1983, and May 31, 1986, she received benefits from the Du Page County Housing Authority by misrepresenting her name, social security number and that her only source of income was public aid when, in fact, she was employed under the name Carol Simpson and was using different social security numbers at her employment. She was also charged with theft based on the same conduct for the period between October 15,1981, and December 31, 1982.

Pursuant to a negotiated plea agreement, defendant pleaded guilty to the instant offense on May 4, 1987, and the State recommended a sentence of two years’ probation conditioned upon defendant serving 30 weekends in jail, serving 100 hours of community service, and paying $22,800 in restitution. The restitution was to be paid in the following manner: $200 per month the first year, beginning May 1987; $300 per month the second year; $400 per month the third year; and $500 per month the fourth and fifth years. The State also agreed to nol-pros the theft charge. The trial court imposed the agreed-upon sentence.

On September 29, 1988, a petition to revoke defendant’s probation was filed alleging that defendant willfully failed to pay $21,980 in restitution.

A hearing on the State’s petition to revoke probation was conducted on May 5, 1989. Nancy Pauling, a probation officer with the Du Page County Probation Department, testified that defendant, who had been employed on a part-time basis from May 1987 to October

1987, had completed eight hours of public service. Defendant made four payments of $200 for a total of $800. Since that time, defendant paid an additional $38, with the last payment of $3 being received in May 1989. Defendant also paid all of her work release fees.

Pauling stated that defendant had not been employed since October 1987. Defendant had some type of blood problem associated with her pregnancy and was hospitalized for the birth of her child in July

1988. Defendant had not informed Pauling of any medical problems which prevented her from being employed after the birth of the baby. After the baby was born, defendant’s husband had not maintained full-time employment and took jobs as a truck driver when he could. Pauling did not know how much money defendant’s husband was making during this period of time.

Pauling testified that defendant had three children, two of whom, including the baby, currently live with her. Defendant was not living with her husband at the time of the hearing. Defendant had been evicted from her apartment because she was unable to pay rent and, since April 1989, was living with her sister in Bolingbrook. Pauling was not aware of whether defendant’s husband provided financial support of the baby.

Pauling had not asked defendant to provide her with information or documentation regarding her efforts to obtain employment. Defendant told her that she had “not been able to make payments, due to having a small child” and that “it would cost her approximately $90 a week to provide day care for the child and for her to find work there would not be much surplus of money between the two.” Pauling stated that defendant had not been able to leave the baby with relatives because defendant had no transportation. The sister with whom defendant lives is employed.

Pauling further testified that she did not know how defendant maintained financial support of herself, that she did not know what defendant’s financial assets were and that defendant did not own an automobile. To her knowledge, defendant had not had any funds available to pay the restitution after defendant stopped working.

Following this testimony, defense counsel requested a finding in defendant’s favor, arguing that the State had not met its burden of showing that defendant had the ability to pay and willfully failed to pay the restitution. The State argued that there was no medical reason why defendant could not be employed except for a short period of time around July 1988 and that defendant was required to take some initiative in becoming employed. The court then noted that the testimony regarding defendant’s difficulties in obtaining employment was “all very vague.” It determined, however, that it was “inferable” that there was a willful refusal to pay and concluded that the noncompliance was willful, stating, “[t]he facts here are such there is nothing to indicate she doesn’t have the ability to obtain employment and work.” The court later stated:

“I am not minimizing the fact that being a mother is a job, but I think we all know there are lots of women who have children, and they are out there working as soon as they are up and around on their feet, and making some arrangements to get out and work.”

The court then denied defendant’s motion for a directed finding.

Defendant presented no evidence. Finding that defendant willfully failed and refused to pay restitution and that she failed to complete the public service requirement, the circuit court revoked defendant’s probation.

Thereafter, defendant submitted a written statement to be considered by the circuit court at her sentencing hearing. Defendant stated that she had found public service work on her own and stated that she was presently looking for employment. Medical records were also submitted to the court which stated that defendant’s pregnancy was complicated by a low platelet count, that defendant’s baby was delivery by cesarian section, and that defendant was in the hospital from July 11 to July 15,1988.

At the sentencing hearing, the State stipulated that defendant had completed the public service requirement. A letter is included in the record which states that defendant served 92 hours at Du Page Township between May 15, 1989, and June 8, 1989. The letter also stated that defendant was a very good worker. Defendant addressed the court, stating that she never intended not to pay the restitution; she just was not able to pay it. She stated that, when she tried to find a job, she was not able to find one that would allow her to work, pay child care and have enough to survive on. She was seeking help through the displaced homemakers’ program to improve her job skills.

The circuit court sentenced defendant to a term of 30 days in the Du Page County jail and a term of 30 months’ probation with credit of 15 months and 23 days for time she served on probation prior to the filing of the petition to revoke probation. The court also ordered that the remaining restitution be paid within a five-year period and stated that it would request that the probation department monitor defendant’s improvement in the work field and adjust the restitution payments accordingly. This appeal followed. Pursuant to defendant’s motion in this court, we stayed imposition of defendant’s jail sentence upon the posting of a $1,000 personal recognizance bond.

On appeal, defendant concedes that she did not make the required restitution payments. Instead, she contends that the State failed to meet its burden of proving that her failure to comply with the financial conditions of her sentence was willful.

Section 5 — 6—4(d) of the Unified Code of Corrections (Code) provides, in pertinent part, as follows:

“Probation *** shall not be revoked for failure to comply with conditions of a sentence or supervision, which imposes financial conditions upon the offender unless such failure is due to his willful refusal to pay.” Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 6—4(d).

Section 5 — 5—6(h) of the Code is also instructive and provides:

“A sentence of restitution may be modified or revoked by the court if the offender commits another offense, or the offender fails to make restitution as ordered by the court, but no sentence to make restitution shall be revoked unless the court shall find that the offender has had the financial ability to make restitution, and he has willfully refused to do so. If the court shall find that the defendant has failed to make restitution and that the failure is not willful, the court may impose an additional period of time within which to make restitution. The length of said additional period shall not be more than 2 years.” (Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-6(h).)

This section is applicable to restitution which is required as a condition of probation. People v. Whitfield (1986), 146 Ill. App. 3d 322, 327, 496 N.E.2d 743.

In a probation revocation proceeding, the State must establish, by a preponderance of the evidence, that the defendant violated a condition of his probation. (Ill. Rev. Stat. 1989, ch. 38, par. 1005— 6 — 4(c); People v. Crowell (1973), 53 Ill. 2d 447, 451, 292 N.E.2d 721.) Before probation can be revoked based upon the failure to comply "with the financial conditions of a sentence of probation, however, it is also incumbent upon the State to prove that the defendant willfully refused to pay. (People v. Harder (1975), 59 Ill. 2d 563, 567, 322 N.E.2d 470.) Willful failure to pay means a voluntary, conscious and intentional failure. (See Department of Revenue v. Joseph Bublick & Sons, Inc. (1977), 68 Ill. 2d 568, 576-77, 369 N.E.2d 1279.) The trial court’s ruling on a petition to revoke probation will not be disturbed on appeal unless it is against the manifest weight of the evidence. People v. Houston (1987), 118 Ill. 2d 194,199, 514 N.E.2d 989.

As noted above, probation may be revoked for nonpayment of restitution only if the probationer is able to pay and willfully fails to do so. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(h).) A probationer who is unemployed, of course, may lack the financial ability to make restitution. As the following review of the cases in this area reveals, however, unemployment is not a sufficient excuse for nonpayment if the unemployment constitutes, in effect, the vehicle by which the probationer willfully evades payment of restitution. The central question in the instant case, then, is whether defendant’s failure to find employment effectively constituted a willful failure to pay restitution.

In People v. Harder (1975), 59 Ill. 2d 563, 322 N.E.2d 470, the State’s evidence showed only that defendant had failed to pay restitution; the State did not contest the defendant’s explanation of why she was unable to pay. The supreme court held that this was insufficient to show willful nonpayment of restitution by the defendant. (Harder, 59 Ill. 2d at 567, 322 N.E.2d at 472.) Additionally, in Harder, as is the case here, the cause of defendant’s inability to pay restitution arose after she had promised to make restitution. See Harder, 59 Ill. 2d at 567, 322 N.E.2d at 472.

In reliance on Harder, this court in People v. Bullard (1977), 52 Ill. App. 3d 712, 367 N.E.2d 1017, held that the defendant’s failure to pay restitution was not proved to be willful where he explained that he could not afford to make his payments due to unemployment and time spent learning a trade. (Bullard, 52 Ill. App. 3d at 714, 367 N.E.2d at 1019.) A similar conclusion was reached in People v. Smolk (1976), 40 Ill. App. 3d 281, 282-84, 352 N.E.2d 269, where the State did not contest the defendant’s testimony that he was unable to work because he “passed out on the job” and was being treated by physicians.

In this case, the State’s only witness, Pauling, testified that defendant made restitution payments before becoming unemployed. Pauling also testified that, to her knowledge, defendant had not had any funds available to pay the restitution since October 1987, when defendant stopped working. There was nothing in Pauling’s testimony to establish that defendant had the ability to pay the restitution, and the fact that defendant was evicted from her apartment further demonstrates the deterioration of her financial condition. Pauling also offered no testimony that defendant was employable or that she had not sought work.

Even though defendant did not offer evidence, the gist of her explanation of being unemployed was related by Pauling: defendant experienced a blood disorder during her pregnancy and, following the birth of the child, defendant could not find employment sufficient to enable her to afford both child care and restitution. Here, as in Harder, Bullard and Smolk, the State did not contest the defendant’s explanation of her failure to pay or, more precisely in the instant setting, the cause of her unemployment. Insofar as the cause of defendant’s unemployment is concerned, in fact, the State did not offer evidence either in support of its position or in contradiction of defendant’s explanation to Pauling. We note that the State did not call defendant as a witness to elicit such information. See Minnesota v. Murphy (1984), 465 U.S. 420, 435-36 n.7, 79 L. Ed. 2d 409, 424-25 n.7, 104 S. Ct. 1136, 1146-47 n.7 (compelling probationer to appear to discuss noncriminal violations of probation does not offend the privilege against self-incrimination); 3 W. LaFave & J. Israel, Criminal Procedure §25.4, at 164 (1984). Contra People v. Yantis (1984), 125 Ill. App. 3d 767, 466 N.E.2d 603 (effectively overruled by Murphy).

We find the State’s reliance on People v. Moaton (1989), 182 Ill. App. 3d 161, 537 N.E.2d 989, and People v. Cottrell (1986), 141 Ill. App. 3d 364, 490 N.E.2d 950, to be misplaced. In Moaton, the defendant made no effort either to pay the restitution or to explain why he was unable to do so; he made no effort to obtain employment and did not inform the probation officer of his predicament until the hearing on the State’s petition to revoke probation. (Moaton, 182 Ill. App. 3d at 166-67, 537 N.E.2d at 992-93.) Similarly, in Cottrell the defendant claimed he looked for work repeatedly, but he failed to apply at the local job service agency; he further admitted that he had not looked for work recently and that he probably could have paid the money but just forgot. Cottrell, 141 Ill. App. 3d at 367, 490 N.E.2d at 952; see also People v. Nowman (1980), 87 Ill. App. 3d 42, 44, 409 N.E.2d 95 (the defendant’s failure to meet his financial obligations was caused by his willful failure to find work where there was evidence that the defendant was informed of but did not apply for available work).

We note that these cases differ somewhat from the instant case because here defendant did not present any evidence. Accordingly, it is difficult to derive from the cases a general rule as to what evidence the State must present to support a finding of willfulness. Here, however, the strength of the State’s evidence, though unrebutted, was undercut by two factors. First, the State’s only witness had no knowledge of defendant’s efforts to find work. Second, even though defendant did not testify, the State’s witness related the crux of defendant’s explanation for her unemployment. On the facts in this record, we hold that the State failed to meet its burden in the instant case. While the requisite mental state may generally be inferred from the actor’s conduct and from other circumstances (see People v. Tye (1990), 141 Ill. 2d 1, 15, 565 N.E.2d 931), we believe that, in the present context, simply providing evidence of the probationer’s unemployment, without more, is not sufficient to show willfulness.

In conclusion, we note that although a probationer’s failure to make sufficient efforts to find employment in order to pay restitution may reflect an insufficient concern for paying the debt owed to society for the crime (Bearden v. Georgia (1983), 461 U.S. 660, 668, 76 L. Ed. 2d 221, 230, 103 S. Ct. 2064, 2070), the record here does not show that defendant refused to work merely to avoid making restitution. We conclude, therefore, that the circuit court’s finding that defendant’s failure to pay restitution was willful is against the manifest weight of the evidence.

Because of our conclusion that defendant’s probation should not have been revoked, there is no need to reach the sentencing issue raised by defendant. We further note that, even without a finding of a willful failure to pay restitution, the circuit court has the authority to impose an additional period within which restitution may be paid. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 5—6(h).) We, therefore, remand the cause to allow the circuit court to consider whether such an extension is appropriate here.

The judgment of the circuit court of Du Page County is reversed, and the cause is remanded with directions.

Reversed and remanded with directions.

UNVERZAGT and NICKELS, JJ., concur.


author: JUSTICE BOWMAN

text:
      In re MARRIAGE OF RONALD F. ROEHN, Petitioner-Appellant, and LINDA L. ROEHN, Respondent-Appellee.
    Second District
    No. 2 — 90—1259
    Opinion filed July 26,1991.

      LeRoy W. Gudgeon, of Northfield, for appellant.
    Neal W. Cerne, of Mirabella & Kincaid, of Wheaton, for appellee.
    John F. Kelly, of Thomas F McGuire & Associates, Ltd., of Long Grove, for amicus curiae Lisle-Woodridge Fire Protection District Fire Department.
   JUSTICE BOWMAN

delivered the opinion of the court:

Petitioner, Ronald F. Roehn, appeals the trial court’s grant of a motion by respondent, Linda F. Roehn, to enforce the marital settlement agreement embodied in the judgment dissolving the parties’ marriage. The trial court entered a qualified domestic relations order (QDRO) pursuant to section 1056(d)(3) of the Retirement Equity Act of 1984 (Act) (29 U.S.C.A. §1056(d)(3) (West 1985)). The QDRO provides that respondent will receive a portion of petitioner’s pension benefits directly from the pension fund of his employer, the LisleWoodridge Fire Protection District Fire Department. On appeal, petitioner argues that the QDRO was not authorized by either the Act or article 4 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1989, ch. IO8V2, par. 4 — 101 et seq.). We agree. We therefore reverse and remand.

Petitioner and respondent were married on October 18, 1969. On May 18, 1989, petitioner filed his petition for dissolution of the marriage, and on July 14, 1989, respondent filed a counterpetition for dissolution. On December 6, 1989, the trial court entered a judgment for dissolution embodying the parties’ marital settlement agreement. Paragraph 16 of the judgment specified that the parties would equally divide pension benefits that petitioner had accrued from the Lisle-Wood-ridge Firefighters’ Pension Fund (the Fund) during the marriage and that the benefits flowing to the wife were to be “set forth in a qualified domestic relation [sic] order.”

Respondent subsequently moved to enforce paragraph 16 of the judgment of dissolution. She prayed that the court enter a QDRO or, in the alternative, determine the present value of petitioner’s pension plan. She attached a proposed QDRO with the motion. Petitioner replied that his pension benefits could not be the subject of a QDRO because the Fund, as a “governmental plan,” was exempt from the provisions of the Act (see 29 U.S.C.A. §§1002(32), 1003(b)(1) (West 1985)).

The court granted respondent’s motion. In its supplemental judgment order, the court stated that in order to give effect to the division of marital property set forth in the judgment of dissolution, it was entering a QDRO according to section 1056(d)(3) of the Act (29 U.S.C.A. § 1056(d)(3) (West 1985)). The order made respondent an “alternate payee” as defined by that section of the Act and thereby assigned her a portion of the benefits to which petitioner had acquired a right during the marriage.

In explaining his decision to enter the QDRO, the trial judge expressed his belief, contrary to petitioner’s assertions, that the court had the authority to assign a portion of petitioner’s pension rights to respondent. The judge expressed some uncertainty about whether the Fund could be required to pay respondent directly, but told respondent’s attorney that “[i]f they don’t and they advise you that they don’t, I’ll tell you again you can file a motion before me and I will direct [petitioner] when he receives the funds to pay that portion he’s supposed to pay [respondent].” Petitioner then brought this appeal.

Petitioner argues, as before, that neither the Federal Act nor the State Code authorized the trial court in this dissolution proceeding to require the Fund to pay a portion of petitioner’s future pension benefits directly to respondent. He maintains that the QDRO is therefore invalid even though the parties stipulated to it as part of the settlement agreement.

We have granted the Lisle-Woodridge Fire Department (Department) leave to appear as amicus curiae. The Department also argues that the QDRO is unauthorized by Federal or State law. Finally, respondent has moved to confess error, conceding that the Fund is not subject to the provisions of a QDRO.

We agree with the parties and the Department that the court lacked authority to enter the QDRO. The court could not order the Fund to pay any of petitioner’s benefits directly to the nonemployee respondent. However, under settled Illinois law, the court may in its discretion require that petitioner pay an allocated share of future pension benefits, as those benefits are disbursed, to respondent. We therefore reverse and remand for further proceedings on respondent’s motion to enforce the dissolution judgment. In so doing we grant respondent’s motion insofar as it confesses error but deny her request to dismiss the appeal without prejudice.

The trial court’s purported authority for the QDRO was section 1056(d)(3) of the Act, which authorizes State domestic relations courts to enter QDROs as an exception to the general provision, contained in section 1056(d)(1) of the Act, that benefits under pensions covered by the Act may not be assigned or alienated (29 U.S.C.A. §§1056(d)(l), (d)(3) (West 1985)). However, the Act is simply irrelevant to this case. The Act expressly does not apply to any governmental pension plan (29 U.S.C.A. § 1003(b)(1) (West 1985)). A pension plan established or maintained by a political subdivision, agency or instrumentality of a State government is a “governmental plan” (29 U.S.C.A. §1002(32) (West 1985)). The Fund is plainly outside the reach of the Act.

The Federal statute therefore provides no escape from the established rule in Illinois that a court may not order a pension plan established under the Code to pay benefits directly to a nonemployee divorced spouse. (In re Marriage of Johnston (1990), 206 Ill. App. 3d 262, 268-69 (Rizzi, J., specially concurring); In re Marriage of Papeck (1981), 95 Ill. App. 3d 624.) The Code does not provide for QDROS. (Ill. Rev. Stat. 1989, ch. 108½, par. 101 — 1 et seq.; Johnston, 206 Ill. App. 3d at 266 (Rizzi, J., specially concurring).) Article 4 of the Code, involved here, provides only that “[a] firefighter” upon retirement “shall receive a monthly pension.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 108½, par. 4 — 109(a).) Although article 4 also provides for payments to a surviving spouse (Ill. Rev. Stat. 1989, ch. 108½, par. 4 — 114(a)), a spouse whose marriage to a covered employee has been dissolved is not a “surviving spouse.” In re Marriage of Hannon (1991), 207 Ill. App. 3d 329.

We therefore hold that the trial court lacked authority to enter the QDRO. However, on remand the court may order (as the trial judge foresaw doing even under the QDRO) that petitioner pay to respondent an allocated share of pension benefits that he will receive.

Petitioner’s future benefits from the Fund are a form of deferred compensation and therefore property. (In re Marriage of Hackett (1986), 113 Ill. 2d 286, 292-93.) Insofar as petitioner’s beneficial interest in the Fund was acquired during the marriage, respondent upon dissolution of the marriage became a co-owner of the pension benefits as marital property. Haekett, 113 Ill. 2d at 292; Papeck, 95 Ill. App. 3d at 629.

In allocating this form of marital property, a trial court may in its discretion order the employee spouse to pay a certain portion of the benefits, as disbursed, to the nonemployee spouse, while retaining jurisdiction to enforce the decree. (In re Marriage of Wiley (1990), 199 Ill. App. 3d 169, 177; In re Marriage of Degener (1983), 119 Ill. App. 3d 1079, 1082.) Alternatively, the court may determine the present value of the pension benefits, award the benefits to petitioner, and offset this amount with other marital property of similar value. (In re Marriage of Johnston (1990), 206 Ill. App. 3d 262, 269 (Rizzi, J., specially concurring); Wiley, 199 Ill. App. 3d at 177.) As the marital property has already otherwise been allocated, this latter approach would not seem desirable, particularly as the “reserved jurisdiction” approach is more in line with the basic intention of the court and petitioner’s retirement does not appear imminent. (Wiley, 199 Ill. App. 3d at 179.) We note, however, that in contrast to the QDRO, under the “reserved jurisdiction” approach respondent will receive an allocated portion of petitioner’s benefits as those benefits are disbursed to petitioner, and not at some earlier date (such as the earliest date under which petitioner could elect to receive benefits).

In sum, respondent may be awarded a portion of petitioner’s retirement benefits, but the payments must go triangularly from the Fund to petitioner to respondent — not in a straight line from the Fund to respondent.

The judgment of the circuit court of Du Page County is reversed and the cause remanded for further proceedings.

Reversed and remanded.

DUNN and WOODWARD, JJ., concur.


text:
      In re E.D. McC., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. E.D. McC., Respondent-Appellant).
    Second District
    No. 2 — 89—0750
    Opinion filed July 26,1991.
    G. Joseph Weller and David Devinger, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

Respondent, E.D. McC., appeals from orders of the circuit court of Ogle County which found him to be a delinquent minor, made him a ward of the court and placed him on probation for a period of two years. The disposition order also provided, among other things, that respondent was to apologize to the victim by letter and that respondent’s mother was to pay restitution in the amount of $80. Respondent’s sole contention on appeal is that the State’s failure to notify respondent’s father of the adjudicatory hearing deprived the trial court of jurisdiction so that the orders appealed from are void for lack of jurisdiction.

According to the juvenile probation officer’s report, dated July 3, 1989, respondent was 11 years old. Respondent’s mother, Carrie Wade, and father, Eugene Marth, were never married, but lived together for several years and had two children, respondent and his brother, Scott. Respondent’s mother married Curtis Wade in 1984. Respondent then lived with his mother and Wade until he was removed from the home in 1986 following a finding that his mother and stepfather were guilty of neglect. Respondent was in foster care from September 1986 to January 1987, when he was placed with his father. He then lived with his maternal grandmother from August 1987 to January 1989, when he was returned to the custody of his mother. The report stated that respondent’s father had no contact with his sons because, the father stated, their mother did not allow it. The father also stated that he would like to have custody of respondent, if there was no visiting with the mother.

The record shows that the State filed a petition on February 24, 1989, alleging that respondent was delinquent pursuant to section 5— 3 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 3). The petition alleged that, on or about August 6, 1988, respondent committed the offense of theft and stated that a hearing would be held on March 9, 1989. It named Curtis Wade as respondent’s father and Carrie McC. as his mother. Summons was served on respondent, Curtis Wade and Carrie Wade. Respondent, Curtis Wade and Carrie Wade appeared at the March 9 hearing. Respondent was admonished by the court, and the public defender was appointed to represent him.

An amended petition was filed on March 10, 1989. The petition was essentially identical to the original petition, but named Eugene Marth as respondent’s father and Carrie Wade as his mother and stated that a pretrial conference was set for April 6, 1989. Respondent and Carrie Wade were again served with summons and notice of the hearing date. In addition, Eugene Marth was served with summons which stated that, on April 6, 1989, at 9 a.m, there would be a pretrial conference “on the attached Amended Petition.”

On April 6, 1989, respondent, his appointed counsel, and his mother appeared. His father was not present. Respondent’s counsel asked that the cause be set for an adjudicatory hearing, and a hearing was set for April 18, 1989. No notice of this hearing was given to Eugene Marth.

Respondent, his counsel, and his mother appeared at the adjudicatory hearing. At the hearing, various witnesses testified regarding the theft of a scooter and a bicycle. After hearing the evidence, the trial court found respondent guilty of the offense of theft (Ill. Rev. Stat. 1989, ch. 38, par. 16 — 1(a)(1)) and entered an order finding that he was a delinquent minor. A wardship and dispositional hearing was set for May 25, 1989. Eugene Marth was served with summons advising him of the date of the wardship and dispositional hearing. On May 25, the hearing was continued to July 6, 1989. Written notice of this hearing was mailed to Eugene Marth.

Eugene Marth did not appear at the July 6, 1989, hearing. At that hearing, respondent was made a ward of the court and was placed on probation for two years. He was also ordered to send an apology to the victim of the theft, and his mother was ordered to pay restitution in the amount of $80. A review hearing regarding restitution status was set for October 12, 1989. Respondent filed a timely notice of appeal.

Respondent argues on appeal that, as respondent’s father was not given notice of the adjudicatory hearing, the trial court lacked jurisdiction to conduct the delinquency hearing and all subsequent proceedings were rendered void. We cannot agree.

The basic requirements of due process and fairness must be satisfied in juvenile court proceedings. (In re Application of Gault (1967), 387 U.S. 1, 30-31, 18 L. Ed. 2d 527, 548, 87 S. Ct. 1428, 1445.) In a juvenile proceeding, due process requires adequate notice to a minor and his parents. Gault, 387 U.S. at 33, 18 L. Ed. 2d at 549, 87 S. Ct. at 1446-47; In re J.P.J. (1985), 109 Ill. 2d 129, 135; In re J.K. III (1989), 191 Ill. App. 3d 415, 417.

The Act requires that petitions set forth the names and the addresses of the minor, the parents, and the legal guardian or the person or persons having custody and control of the minor. (Ill. Rev. Stat. 1989, ch. 37, par. 805-13(2); J.K., 191 Ill. App. 3d at 416.) Section 5 — 15 of the Act provides that, when a petition is filed, the clerk of the court shall issue a summons with a copy of the petition attached and that the “summons shall be directed to the minor’s legal guardian or custodian and to each person named as a respondent in the petition.” (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 15(1).) The summons “shall require each respondent to appear and answer the petition on the date set for the adjudicatory hearing.” (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 15(3).) Through the notice provisions of the Act, the legislature has therefore determined that parents are necessary respondents who must be named and served with notice in order for the trial court to conduct an adjudicatory hearing. People v. R.S. (1984), 104 Ill. 2d 1, 6; In re T.A. (1989), 181 Ill. App. 3d 1034, 1038.

Respondent contends that his father did not receive notice of the adjudicatory hearing as required by the statute and this lack of notice rendered the proceedings below void. He relies on People v. R.S. (1984), 104 Ill. 2d 1, In re J.K. III (1989), 191 Ill. App. 3d 415, and In re D.L.W. (1989), 187 Ill. App. 3d 566. These cases are inapposite, however.

In R.S., no notice of any of the proceedings was served on the minor’s mother, even though she was named a respondent and her address was listed in the petition for adjudication. She did not appear at any of the proceedings. (R.S., 104 Ill. 2d at 3.) In J.K., the minor’s mother also did not appear at any of the proceedings, and the record showed that, although her address was known, she was not served or otherwise notified of the petition for adjudication. (J.K., 191 Ill. App. 3d at 416.) Both courts therefore held that the failure to serve a named parent, whose address was contained in the petition, violated the right of the parent and the child to due process so that the trial court’s jurisdiction was not properly invoked and the court’s orders were void. (R.S., 104 Ill. 2d at 6; J.K., 191 Ill. App. 3d at 418-19; see also In re S.L.S. (1989), 181 Ill. App. 3d 453, 456-57; People v. D.J. (1988), 175 Ill. App. 3d 491, 494-95.) This is true even where the unserved parent does not have custody or a close relationship with the minor. (S.L.S., 181 Ill. App. 3d at 455.) In this case, however, it is not disputed that respondent’s father was served with the amended petition and was given notice of the first hearing regarding the amended petition.

Respondent’s reliance on D.L.W. is also misplaced. In D.L.W., neither of the minor’s parents was given formal, written notice of a dis-positional hearing. The court held that this fact required reversal of the order entered at that hearing which revoked the minor’s probation and committed him to the Department of Corrections. (D.L.W., 187 Ill. App. 3d at 570-72.) The jurisdiction of the court to conduct an adjudicatory hearing was not at issue. The only issue was whether reversible error occurred because of the lack of proper notice to the parents of the dispositional hearing. (D.L.W., 187 Ill. App. 3d at 571-72; see also In re J.I.D. (1988), 177 Ill. App. 3d 733, 736-37.) In this case, respondent’s father was served with notice of the dispositional hearing.

The State, citing In re J.P.J. (1985), 109 Ill. 2d 129, argues that the issue raised by respondent has been waived because it was not raised prior to appeal. The facts of J.P.J., however, are also inapposite to the facts of this case. In J.P.J., the supreme court held that the State’s diligence in identifying or locating a parent whose identity or address was not known to the State at the start of the proceedings may not be attacked on appeal if the question was not raised in the trial court. (J.P.J., 109 Ill. 2d at 139-40; see also In re T.A. (1989), 181 Ill. App. 3d 1034, 1038; In re L.C.C. (1988), 167 Ill. App. 3d 670, 672.) Waiver was therefore applied under circumstances where the petition set forth that the whereabouts of the parent were unknown. That is not the situation here because the address of respondent’s father was known and was listed on the amended petition. While it has no effect on this case, we note that the Act was amended, effective July 1, 1990, to provide that a party who was properly served or who appeared at the adjudicatory hearing or an earlier proceeding cannot claim that an order or judgment is void because of the failure to serve a necessary party unless that claim is raised before the start of the adjudicatory hearing. Ill. Rev. Stat. 1989, ch. 37, par. 801 — 14 (now Ill. Rev. Stat., 1990 Supp., ch. 37, par. 801 — 15 (see Pub. Act 86— 1475, eff. Jan. 10, 1991)).

The narrow issue presented in this case was not addressed in any of the cases cited by the parties. The issue is whether the failure to serve respondent’s father with notice of the adjudicatory hearing deprived the court of jurisdiction where the father was served with the underlying petition, notice of the first hearing on the petition, and notice of the dispositional hearing. A very similar issue, however, was addressed by the court in In re G.L. (1985), 133 Ill. App. 3d 1048, a case cited by neither party. In G.L., the minor’s noncustodial father was served with notice that the juvenile petition, which alleged that the minor was delinquent, would be heard on September 4, 1984. He did not appear at that hearing. The adjudicatory hearing was continued to September 10, 1984. The father was not given notice of the hearing and did not appear. Prior to the September 10 hearing, the State filed a supplemental juvenile petition alleging two additional counts based on the same events underlying the allegations in the earlier petitions. (G.L., 133 Ill. App. 3d at 1049.) At the September 10 hearing, the court found the minor guilty of three counts of the petition. A dispositional hearing was later held. The father was not given notice of the dispositional hearing and did not appear. G.L., 133 Ill. App. 3d at 1049-50.

On appeal, the minor in G.L. similarly argued that the court lacked jurisdiction for the adjudicatory and dispositional proceedings because the father was not given notice of the September 4 continuance, the filing of the September 10 supplemental petition and the dispositional proceedings. The court, in interpreting section 4 — 4(4) of the Juvenile Court Act (now section 5 — 16(4) of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 16(4))), held that the section:

“[I]ntends that respondents be notified of the first date of proceedings on the petition. Due process requires that parties who may wish to participate in proceedings involving their rights be informed as to when the proceedings will begin. To that end, the section requires additional notice to the respondents when the hearing date specified in the original notice has been changed and no hearing on the petition will occur on the formerly noticed date. Continuances following the first hearing do not constitute ‘resetting of the date’ for hearing. Further, upon occurrence of the first, noticed hearing, all participating parties will have actual notice of continuances ordered. We find no due process violation in failure to notify a defaulting party of continuances after initial hearing on a petition.” (G.L., 133 Ill. App. 3d at 1051.)

The court then held that the trial court had jurisdiction on September 4, 1984, when the original petition was presented as noticed and concluded that due process did not require notice of the continuance to the nonappearing father. (G.L., 133 Ill. App. 3d at 1051.) The G.L. court also rejected the minor’s argument that the court lacked jurisdiction because the father was given no notice of the supplemental petition and was not given notice of the dispositional hearing. G.L., 133 Ill. App. 3d at 1052-53.

We conclude that the reasoning in G.L. is sound and can be applied to this case. Respondent’s father was given notice of the first hearing on the amended petition. He was therefore given notice, in accordance with due process, of when the proceedings on the amended petition would begin. A hearing was held on that date. Based on the reasoning in G.L., due process did not require notice of subsequent proceedings when he failed to appear at the proceeding for which notice was given. See G.L., 133 Ill. App. 3d at 1051.

We recognize that respondent’s father in this case was served with notice of a “pretrial conference” rather than notice of an adjudicatory hearing. Respondent has argued that actual notice of the adjudicatory hearing itself is the goal of section 5 — 15(3) of the Act as it states that summons “shall require each respondent to appear and answer the petition on the date set for the adjudicatory hearing.” (Ill. Rev. Stat. 1989, ch. 37, par. 805 — 15(3).) While that may be true, we hold that notice of the actual date the adjudicatory hearing is to be held is not necessarily jurisdictional. We agree with the court in G.L. that the trial court obtained jurisdiction of the parties and the subject matter after the original notice of the filing of the delinquency petition was properly served. (G.L., 133 Ill. App. 3d at 1051; see also In re J.I.D. (1988), 177 Ill. App. 3d 733, 736.) It is not disputed that respondent’s father was served with the amended petition and notice of the first proceeding on the amended petition. The juvenile court therefore had continuing jurisdiction over respondent to enter its orders relating to the petition. See G.L., 133 Ill. App. 3d at 1052; see also In re J.M. (1988), 170 Ill. App. 3d 552, 568 (overruled on other grounds in People v. R.G. (1989), 131 Ill. 2d 328, 341-42).

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

Affirmed.

GEIGER and INGLIS, JJ., concur.