author: JUSTICE UNVERZAGT

text:
      In re MARRIAGE OF MARLENE HUNTER, Petitioner-Appellee, and ROBERT L. HUNTER, Respondent-Appellant.
    Second District
    No. 2 — 91—0428
    Opinion filed January 23, 1992.
    Rehearing denied February 27, 1992.

      Peter F. Carroll, of Steffen & Carroll, of Elgin, for appellant.
    Peter D. Michling and Martin J. Coonen, both of Weisz & Michling, of Woodstock, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Respondent, Robert Hunter, appeals the judgment of the circuit court of McHenry County which dissolved his marriage to petitioner, Marlene Hunter, and distributed the marital and nonmarital property. On appeal, respondent contends that the court erred in finding that property given by petitioner’s parents to the couple in joint tenancy was petitioner’s nonmarital property and that the court erred in the valuing of respondent’s business.

The parties were married in 1970. They had no children. They stipulated to grounds of irreconcilable differences. At the time of trial, petitioner was a factory worker earning approximately $286 per week. Respondent was self-employed. His business, known as Hunter’s Welding, does lawn mower, tractor and small machinery repair.

In its “Memorandum and Preliminary Order,” the trial court found that the marriage was marked by “unusual financial arrangements.” Virtually throughout the marriage, the parties maintained separate bank accounts, and each was responsible for certain expenses. Petitioner, for example, purchased groceries while respondent was solely responsible for paying the mortgage. At trial, the parties testified that they had sold their first home and divided the proceeds between themselves.

At the time of trial, the parties owned four major assets: the marital home, the husband’s business, certain certificates of deposit and a second residence, which was being rented. It was undisputed that the marital home, located on 25 acres of farmland on Reese Road (the Reese Road property), and respondent’s business were marital property. The second residence was located on Rose Farm Road (the Rose Farm Road property). In 1975, petitioner’s parents deeded the latter property to the parties in joint tenancy, reserving a life estate to themselves.

Petitioner’s father continued to occupy the residence until 1987. While he resided there he paid most of the expenses associated with the property, except that petitioner usually paid the real estate taxes from her bank accounts. After her father moved out, petitioner (alone) managed and maintained the premises. She located tenants for the property, collected the rent and deposited the rent into her personal accounts. She frequently made improvements at the premises herself or in conjunction with family members. She testified that respondent did not work on the premises except on one occasion when he helped repair a steam pipe. On that occasion, she paid him for his labor. On the other hand, respondent testified that he did considerable work at the Rose Farm Road property and could not recall being paid for it.

The parties each presented expert witnesses to testify concerning the value of Hunter’s Welding. Petitioner’s expert was Joan Baurer. She testified that she was a certified financial planner who holds bachelor’s degrees from Queens College, Flushing, New York, and California State-Bakersfield. She had attended numerous seminars in her field, including one in small business evaluation. In the course of her occupation as a financial planner, she had evaluated approximately 15 to 20 small businesses, including a welding business. She had given expert testimony concerning the valuation of small businesses in McHenry County on two or three prior occasions.

Baurer further testified that she had reviewed respondent’s business ledgers, the parties’ income tax returns and lists and photographs of respondent’s business equipment. She concluded that Hunter’s Welding had a fair-market value of $90,000.

Respondent presented two expert witnesses, Michael Powers and Robert Horvath. Powers testified that the fair-market value of the equipment, tools, machinery and office furnishings of Hunter’s Welding was $17,000. Horvath testified that the machinery and equipment of the business were worth $8,380. Respondent testified that, in his opinion, Hunter’s Welding could be sold as a going concern for $32,000 to $37,000.

There was considerable additional evidence about everything from tractors to animals. In its memorandum, the court noted that “[t]ractors consumed a significant portion of the trial time.” The court also stated that “the parties have identified certain guns and animals. They have also generally placed some dollars-and-cents values on these items. The dog is lame but professionally trained, the peacocks are rare and reasonably expensive and the purpose of the pygmy goat is still a mystery!”

At the conclusion of all this evidence, the court awarded the Rose Farm Road property to petitioner as her nonmarital property. The court found that Hunter’s Welding had a fair-market value of $55,000 and that the Reese Road property had a fair-market value of $80,000. The court awarded both these assets to respondent so that he could maintain his business, which was located on the Reese Road property. The court further ordered that respondent reimburse petitioner $2,200 for a gift she made to Hunter’s Welding. The court awarded petitioner the certificates of deposit and ordered respondent to pay $57,500 to petitioner. The judgment further provided that all the tractors were marital property and that the parties would attempt to divide the personal marital property between themselves.

Respondent timely filed a motion to reconsider the judgment, which the court denied. Respondent now appeals. On appeal, respondent contends the court erred in finding that the Rose Farm Road property was petitioner’s nonmarital property and that the court erred in its valuation of Hunter’s Welding.

Respondent’s first contention is that the court abused its discretion in finding that the Rose Farm Road property was petitioner’s nonmarital property since it was deeded to the parties in joint tenancy. Respondent also points out that petitioner’s parents gave the parties money for use in the construction of the residence upon the property. These checks, too, were given to the parties jointly.

Petitioner’s parents apparently were deceased at the time of trial. Thus, there was no direct evidence of their intention at the time the gift was made. Other than the deed and the checks themselves, the only evidence on the subject was the way the parties subsequently dealt with the property. Allowing for the trial court’s resolution of conflicts in the testimony, this evidence generally showed that the parties treated the property as petitioner’s alone. With help from her parents and siblings, petitioner solely maintained the premises, even after her father ceased to reside there. She located tenants, collected the rent and deposited the rent in accounts which were in her name only. Respondent, however, contends that this evidence was insufficient to overcome the presumption of a gift to the parties jointly.

The starting point for our decision of this issue is section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503). This section provides that all property acquired by either spouse during the marriage is marital property except for property acquired in certain specified ways, such as by gift or devise. (Ill. Rev. Stat. 1989, ch. 40, par. 503(a).)

“For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership ***. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.” Ill. Rev. Stat. 1989, ch. 40, par. 503(b).

The Act thus creates a presumption that all property acquired during the marriage is marital property regardless of the manner in which title is held. Generally, the placing of title to nonmarital property in joint tenancy raises the presumption of a gift to the marital estate. (Zito v. Zito (1990), 196 Ill. App. 3d 1031, 1035; In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 443.) The presumption can only be overcome by clear and convincing evidence. (In re Mar riage of Rogers (1981), 85 Ill. 2d 217, 222-23; Zito, 196 Ill. App. 3d at 1035.) The factors used to determine whether the presumption of gift to the marital estate has been overcome include the making of improvements, the payment of taxes and mortgages, the occupancy of the premises as a home or business and the extent of control and management of the property. In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 574.

Although the literal language of the statute refers to interspousal gifts, and the vast majority of cases involve such a factual pattern, respondent argues that the presumption of a gift to the marital estate should apply to this case, where the property was a gift from respondent’s parents. In In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, the court applied the presumption that the engagement ring worn by Mrs. Weinstein was a gift by Mr. Weinstein’s parents to the parties jointly and thus was marital property. The husband failed to present any evidence to overcome the presumption. (Weinstein, 128 Ill. App. 3d at 247-48.) In In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, the wife’s father presented her with certain stock certificates. The court held that the presumption that property acquired during the marriage is marital property and the presumption of a gift to the wife individually cancelled each other out and a simple manifest weight of the evidence standard applied. Rosen, 126 Ill. App. 3d at 771-72.

The instant case, of course, is not strictly analogous to either Weinstein or Rosen. The Rose Farm Road property was deeded to the parties in joint tenancy. Unfortunately, no direct evidence of the donors’ intent was available. Under these circumstances, applying the four factors listed in Wojcicki, we are unable to conclude that the trial court’s finding was against the manifest weight of the evidence in determining that the Rose Farm Road residence was petitioner’s non-marital property. The court apparently accepted petitioner’s testimony that she alone, or in conjunction with various family members, made improvements on the property. On the one occasion that respondent assisted, he was paid for his efforts. Petitioner paid the taxes on the property from accounts held in her name. Petitioner never occupied the property, but used it as a source of rental income, which was deposited in accounts solely in her name. In this regard, petitioner solely managed the property, which included finding renters and collecting the rent.

We note that in our review of the evidence we consider only evidence of the parties’ activities after petitioner’s father ceased to occupy the premises in 1987. Prior to that he had occupied the residence pursuant to a life estate reserved in the deed. That petitioner should have helped her father maintain and improve the premises while he occupied them pursuant to a life estate is unremarkable. That this pattern continued after her father moved out is much more significant. Additionally, we note that respondent did testify that he assisted in improving the property and to the best of his recollection was not paid for his efforts. This conflict in the evidence was for the trial court, as the trier of fact, to resolve, and we will not disturb the court’s resolution of the conflicting evidence. See In re Marriage of Strang-Reynolds-Conour (1991), 218 Ill. App. 3d 467, 468.

One author has suggested that in resolving questions of this type, courts should be guided by concepts of sharing and mutual dependence. (Gregory, Marital Property in Illinois: The Complexities Wrought by the Presumption of Gift, Transmutation, and Commingling, 1982 S. Ill. U. L.J. 159, 182 (hereafter Gregory).) Thus, “[wjhen the parties have led their lives with great independence, and when there has been little reliance on long-term assumptions about the nature of the marriage or its continuation, the parties’ own lifestyles demonstrate best that there has been no sharing.” (Gregory, 1982 S. Ill. U. L.J. at 182.) In the instant case, the parties’ lifestyles show that there was little “sharing.” The parties maintained their own careers and their own bank accounts. The court found that “the relationship between these two parties sorely tests the outer limits” of the concept of marriage under the Act. The court did find that the parties each made contributions to the marital home and respondent’s business, which it found to be marital assets. Such evidence was lacking, however, with regard to the Rose Farm Road property. This evidence, or lack thereof, further reinforces our conclusion that the trial court did not err in finding that the Rose Farm Road residence was petitioner’s nonmarital property.

The second issue which respondent raises concerns the court’s valuation of Hunter’s Welding. Respondent raises four subissues under this general heading. Respondent contends that Joan Baurer was not properly qualified as an expert witness, that her testimony should have been stricken as based upon hearsay, that the court “erred in assuming that the equipment at Hunter’s Welding is worth $50,000,” and that, because of these various infirmities in petitioner’s evidence, the court was required to accept respondent’s evidence as the only reliable evidence of the value of the business.

Respondent first contends that the court erred in qualifying Joan Baurer as an expert in the valuation of small businesses. He contends that “her only expertise in evaluating a small business comes from one seminar and two or three other occasions when she placed a value on businesses in McHenry County” and that she “has no experience or training in evaluating welding and machine repair equipment.”

Respondent acknowledges that the trial court has broad discretion to determine whether a witness has been qualified as an expert. (Black v. Iovino (1991), 219 Ill. App. 3d 378, 388; Robinson v. Greeley & Hansen (1983), 114 Ill. App. 3d 720, 729.) To lay a proper foundation for expert testimony, the party offering his testimony must show that the expert has some special knowledge or experience in the area about which he expresses his opinion. (Robinson, 114 Ill. App. 3d at 729.) We believe respondent seeks to define the relevant field of expertise much too narrowly. Respondent focuses only on Baurer’s experience in evaluating small businesses in McHenry County and welding equipment. Baurer, however, testified that she evaluates businesses “constantly” in her work as a financial planner. Specifically, she has evaluated 15 to 20 small businesses in northern Illinois, including one welding business. The fact that only two or three of these businesses were located in McHenry County is not significant absent evidence that special factors make businesses in McHenry County fundamentally different from those in other northern Illinois counties.

Similarly, Baurer’s relative lack of experience concerning welding equipment did not render her an incompetent witness. Respondent has failed to demonstrate that welding equipment is so fundamentally different from that used in other types of small businesses as to render Baurer’s opinion concerning this equipment worthless. At any rate, Baurer stated that she relied primarily on the income method of valuation and that the value of the equipment was relatively unimportant in her appraisal of the business. Moreover, respondent’s counsel thoroughly cross-examined Baurer concerning her qualifications and experience. The court was aware of any deficiencies in this regard.

Respondent next contends that Baurer’s entire testimony should have been stricken because it was based on hearsay. This argument is based entirely on Baurer’s statement that LeRoy Mueller and his brother helped her evaluate the equipment of the business. Other than a single case, which refers generally to the hearsay rule, respondent does not cite any authority for the proposition that this testimony was improper. Thus, this argument could be considered waived for failure to cite relevant authority. 134 Ill. 2d R. 341(e)(7).

To the extent that an expert witness is not personally familiar with the facts of the case, her opinion will necessarily be based upon information given to her by someone else. An expert witness may base his opinion on data not in evidence, including the opinions of others. The critical question is whether experts in the field ordinarily rely on such data in formulating their opinions. Cross-examination is the appropriate method to elicit the basis of the expert’s opinion. (Lebrecht v. Tuli (1985), 130 Ill. App. 3d 457, 482.) In the instant case, respondent does not contend that the information which Baurer relied on, including the opinions of the Mueller brothers, is not of the type generally used by experts in her field. Based on the record before us, we cannot conclude that the trial court abused its discretion in refusing to strike Baurer’s testimony.

Even if the court did err in admitting Baurer’s testimony based on the Muellers’ opinions, such error was harmless. Once again, respondent’s counsel thoroughly cross-examined Baurer concerning the basis of her opinion. Moreover, Baurer stated that her conclusions were based primarily on the business’ financial history and future earnings potential. She stated that even if the value of the equipment were shown to be dramatically different, it would not alter her opinion very much.

Respondent makes much of the fact that the Muellers are from Algonquin and allegedly were easily available to petitioner. Presumably, however, if respondent felt their testimony would have been favorable to him, he could also have called the Muellers to testify. In any event, respondent fully explored the basis of Baurer’s opinions on cross-examination, and the court was fully aware of it. In denying respondent’s motion to strike Baurer’s testimony, the court stated that the basis of her opinions would go only to the weight of the evidence, not its admissibility. We hold that the court did not abuse its discretion in accepting Baurer’s testimony.

Respondent next argues, without citation of authority, that the court erred in concluding that the equipment at Hunter’s Welding is worth $50,000. Generally, an argument not supported by citation of relevant authority is deemed waived. (134 Ill. 2d R. 341(e)(7).) We therefore find that respondent has waived consideration of this issue.

Even if we were to consider the merits of this argument, we would find it unfounded. Respondent’s argument is based on a single statement in the trial court’s memorandum, taken out of context. The court first referred to Powell’s testimony that to start anew a business such as Hunter’s Welding would require $50,000. The court then stated, “If that information is then considered in conjunction with the testimony presented about the actual purchase price of the equipment, it is apparent that such a business start-up would necessarily involve used equipment.” From this, respondent concludes that the court valued the equipment of the business at $50,000. There is no indication in the court’s opinion that this is what it did.

The court did not fully state the basis for its $55,000 valuation. If it assumed that the used equipment was worth $50,000, then only $5,000 would be left for goodwill and all the other factors. Powell clearly testified that the equipment of Hunter’s Welding in its current condition was worth no more than $17,000. Absent some clearer indication, we will not assume that the trial court misinterpreted the evidence.

Respondent’s final contention is that the court erred in not accepting respondent’s own estimate of the value of Hunter’s Welding. This argument, however, assumes that Baurer’s testimony must be completely disregarded because Baurer was an incompetent witness. As we have already held that Baurer’s testimony was competent, this argument must fail as well.

The valuation of marital assets is a matter for the trial court, and as long as the court’s valuation is within the range testified to by the experts it ordinarily will not be disturbed on appeal. (In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 260; In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 181.) In the instant case, the expert opinions of the value of Hunter’s Welding ranged from approximately $8,000 to $90,000. The court’s valuation of $55,000 was well within that range. We note that this value was closer to respondent’s own opinion of $32,000 to $37,000 than to Baurer’s figure of $90,000. To the extent that the court did rely on Baurer’s testimony, the court was aware, through cross-examination, of any deficiencies in her qualifications or in the valuation process.

All respondent’s arguments are apparently based on the idea that the value of the business must be predicated solely on the value of the equipment. There are several methods of valuing a small business, including the income and replacement cost methods. Baurer testified that her opinion was based primarily on the income method. While not stating specifically what method it used, the court obviously considered factors beyond the mere replacement cost of the equipment. Respondent himself testified that his opinion of the value of the business was based on the value of the equipment plus a certain amount for goodwill. Respondent’s arguments apparently proceed from the premise that the court was required to use the replacement-cost method.

Here, the trial court’s valuation was well within the range established by the expert testimony, and its valuation was not against the manifest weight of the evidence.

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

Affirmed.

INGLIS and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE E. CARTER, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0068
    Opinion filed January 30, 1992.

      Daniel D. Yuhas and Charles L. Jones, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Johnnie Carter appeals the dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 1 et seq.). We reverse and remand.

On November 24, 1987, defendant was charged by information with one count of residential burglary. (111. Rev. Stat. 1987, ch. 38, par. 19 — 3.) On December 1, 1987, the public defender was appointed to represent him. On December 17, 1987, the grand jury returned an indictment against defendant, charging him with the same residential burglary offense as was contained in the information. Defendant retained Harvey Welch as private counsel, who entered his appearance for defendant on December 30, 1987. On February 10, 1988, the day the trial was set to begin, defendant appeared before the trial judge and requested a continuance to secure substitute counsel. He indicated dissatisfaction with his present counsel and gave the trial judge the name of an attorney, Mr. Ratcliffe, whom defendant claimed would represent him. After speaking with Mr. Ratcliffe, the trial judge determined that he had not been hired by defendant. The judge then denied the motion for continuance.

The trial began on the following day. Mr. Welch moved to withdraw as counsel for defendant, but that motion was also denied. Defendant waived his right to be present during the trial. He was convicted and subsequently sentenced to the maximum term of 15 years’ imprisonment.

On direct appeal of his conviction to this court, defendant’s sole claim of error was that the trial court had erred in not granting the motion for continuance to secure substitute counsel. In an order filed on September 21, 1988, defendant’s conviction was affirmed. People v. Carter (1988), 173 Ill. App. 3d 1161 (unpublished order under Supreme Court Rule 23).

On July 18, 1990, defendant filed a pro se petition for post-conviction relief under the Act. He alleged in his petition that he was denied the effective assistance of counsel because his trial counsel failed to adequately investigate his case and did not subject the State’s case to adversarial testing during the trial, and because defendant did not have his choice of counsel. He also alleged that his appellate counsel was ineffective for failing to argue the ineffectiveness of his trial counsel on the direct appeal. He further alleged that there was insufficient evidence to support his conviction, the trial court failed to properly instruct the jury, and his sentence was excessive.

Counsel was appointed to represent defendant on his petition. Counsel thereafter filed an amended petition in which he alleged that (1) defendant was denied his right to the effective assistance of counsel under the sixth amendment to the United States Constitution because his motion for a continuance of the trial to obtain substitute counsel was denied; and (2) defendant’s sentence of 15 years’ imprisonment constituted cruel and unusual punishment in violation of his rights under the eighth amendment to the United States Constitution. The amended petition contained no facts to support these allegations, and it attached no affidavits in support thereof. It asked the trial court to take judicial notice of the record in the case. Attached to the petition was a copy of the first 13 pages of the transcript of proceedings before the trial judge, which had taken place on February 10, 1988, in which the judge had denied defendant’s request for a continuance to seek substitute counsel. The petition was not signed or verified by defendant, but contained only the signature of his attorney.

The State moved to dismiss the amended petition, alleging it did not clearly set forth the claimed constitutional violations. The motion also pointed out that defendant’s allegation he was improperly denied a continuance to seek substitute counsel had been decided in the direct appeal of his case and was, therefore, res judicata. The motion also stated that allegations of an excessive sentence within the statutory range of penalties do not raise a constitutional issue.

On December 19, 1990, a hearing was held on the State’s motion to dismiss. Defense counsel’s argument at that hearing in response to the State’s motion consisted of the following:

“[Defense counsel]: Your Honor, I would object to the Motion to Dismiss the State’s Motion on the Amended Petition. Other than the two typographical errors which [the assistant State’s Attorney] has just pointed out, and as correctly amended, the case does set out clearly, the Petition does set out clearly the respects of which Mr. Carter’s constitutional rights were violated. Among other things, I would ask the Court to take judicial notice of the Court file in cause number 87 — CF—1641 which would indicate to the Court when the final rendition of the trial court matters were had, and Post-Conviction Relief based upon any appellate court work that may have been done. I waive argument on Paragraph II concerning the allegation of the Petitioner having raised this on direct appeal having been dealt with as to Motion to Dismiss. Paragraph III, the allegation of excessive sentence, I would argue that I do believe that the Amended Petition does set up a cause for relief in the excessive sentence paragraph styled Roman Numeral II in the Amended Petition for Post-Conviction Relief and would ask to be heard on both paragraphs Roman Numerals I and II in this matter.”

At the conclusion of this hearing, the trial court granted the State’s motion and dismissed defendant’s amended petition. This appeal followed. Defense counsel did not file a certificate in compliance with Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)).

On appeal, defendant claims that his appointed counsel in the post-conviction proceeding was ineffective because there was no showing on the record, nor did counsel certify, that he consulted with defendant to ascertain his claims of constitutional error or that counsel examined the record of the trial proceedings. He also claims counsel’s ineffectiveness was further demonstrated by the content of his amended petition and his argument at the hearing on the State’s motion to dismiss. Rule 651(c) provides:

“Record for Indigents; Appointment of Counsel. Upon the timely filing of a notice of appeal in a post-conviction proceeding, if the trial court determines that the petitioner is indigent, it shall order that a transcript of the record of the post-conviction proceedings, including a transcript of the evidence, if any, be prepared and filed with the clerk of the court to which the appeal is taken and shall appoint counsel on appeal, both without cost to the petitioner. The record filed in that court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person to ascertain his contentions of deprivation of constitutional right, has examined the record of the proceedings at the trial, and has made any amendments to the petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c).

The committee comments to Rule 651(c) indicate that the last sentence was added in 1969 to implement decisions of the Illinois Supreme Court regarding the responsibilities of an attorney who represents an indigent petitioner in a post-conviction proceeding. (134 Ill. 2d R. 651, Committee Comments.) In one of those decisions, the court made the following observation:

“To the end that the complaints of a prisoner with respect to the validity of his conviction might be adequately presented, the statute contemplated that the attorney appointed to represent an indigent petitioner would consult with him either by mail or in person, ascertain his alleged grievances, examine the record of the proceedings at the trial and then amend the petition that had been filed pro se, so that it would adequately present the prisoner’s constitutional contentions. The statute can not perform its function unless the attorney appointed to represent an indigent petitioner ascertains the basis of his complaints, shapes those complaints into appropriate legal form and presents them to the court.” People v. Slaughter (1968), 39 Ill. 2d 278, 285, 235 N.E.2d 566, 569.

Under Rule 651(c), counsel must certify, or the record must affirmatively show, that counsel fulfilled three requirements: (1) consultation with petitioner, either in person or by mail; (2) examination of the trial record; and (3) amendment of the pro se petition, if necessary, to adequately present petitioner’s claims of constitutional violation. In the absence of a certificate, if all of these elements are not affirmatively shown by the record on appeal, there has not been compliance with Rule 651(c) and the case must be remanded for further hearing.

In People v. Alexander (1990), 197 Ill. App. 3d 571, 554 N.E.2d 1078, defendant filed a pro se petition for post-conviction relief, alleging he was denied the effective assistance of counsel at trial and on direct appeal. The public defender was appointed to represent him. The State filed a motion to dismiss, alleging defendant had failed to allege a substantial denial of a constitutional right. The trial court granted the motion, and defendant appealed. His counsel did not file a certificate of compliance with Rule 651(c). The appellate court stated that failure to file such a certificate is harmless error, if an examination of the record shows that counsel met the requirements of the rule. But of. People v. Yarbrough (1991), 210 Ill. App. 3d 710, 569 N.E.2d 211 (holding that failure to file Rule 651(c) certificate is not error at all).

In the Alexander case, the record showed, and defendant admitted, that his counsel had communicated with him. The court then considered the question of amendment of the pro se petition. Unlike many pro se petitions, the one filed by defendant was well drafted and contained citations to the record, and an affidavit and exhibits were attached. Counsel did not file an amended petition and the court found there was no need for him to have done so. However, the court found no evidence in the record to show counsel had examined the trial record. At the hearing on the State’s motion to dismiss, the assistant State’s Attorney argued the evidence and the trial proceedings. Defendant’s counsel made no response to these arguments. His presentation at the hearing did not show he had a familiarity with the trial record. Without an affirmative showing in the record, the court refused to presume that counsel had fulfilled his obligation to review the record. As this last requirement was not demonstrated by the record, the court could not conclude that defendant was provided with adequate post-conviction representation. Alexander, 197 Ill. App. 3d at 573, 554 N.E.2d at 1079.

The State points out in its brief that counsel in the instant case did file an amended petition. The State also believes defendant’s attorney could not have reiterated defendant’s arguments in the amended petition, had he not consulted the court file, and argues that it is a “reasonable assumption” that defense counsel also consulted with defendant to obtain his “input” into the amended petition. The State concludes this portion of its argument by saying that defense counsel was faced with the obvious — there were no meritorious issues to raise on defendant’s behalf. However, these arguments are completely without merit under the existing case law.

We are not entitled to assume counsel complied with Rule 651(c). There must be an explicit showing in the record that he did, in fact, fulfill the rule’s requirements. (See People v. Bennett (1980), 82 Ill. App. 3d 596, 601, 403 N.E.2d 50, 55.) Such a showing is woefully lacking in this case. Further, it is error to dismiss a post-conviction petition on the pleadings absent a showing of adequate representation by counsel, even where the petition failed to present a substantial constitutional claim. Alexander, 197 Ill. App. 3d at 574, 554 N.E.2d at 1080; see also People v. Jones (1969), 43 Ill. 2d 160, 162, 251 N.E.2d 218, 220; People v. Wilson (1985), 132 Ill. App. 3d 48, 51, 477 N.E.2d 24, 26.

In the instant case, counsel did file an amended petition. Defendant’s pro se petition had alleged several claims upon which he sought relief. Defendant’s reasoning was, in some respects, difficult to follow. He attached no affidavits, but the pro se petition contained some factual support. The amended petition filed by appointed counsel alleged only two grounds for relief, contained no facts upon which the alleged constitutional violations could be found, and had no affidavits attached. The only attachment consisted of the portion of the transcripts of pretrial proceedings to which we previously referred. The trial court correctly found that the allegations contained in counsel’s amended petition were deficient — the first, alleging denial of his right to effective assistance of counsel, because the matter had already been decided against defendant on the direct appeal to this court; and the second, challenging the length of sentence, because it raised no constitutional issue. However, we cannot affirm the dismissal of the amended petition because of these deficiencies where we cannot determine whether defendant had adequate representation in the post-conviction proceeding.

There is no affirmative showing in the record that counsel consulted with defendant, either in person or by mail, in order to ascertain his claims of constitutional violation. The record is devoid of any correspondence and counsel made no statements at the hearing on the State’s motion to dismiss which would lead us to believe there had been any such contact with defendant.

We do not find any affirmative indication that counsel had examined the trial record. While he did attach 13 pages of the transcript of the pretrial proceedings to his amended petition, this merely shows that he had read the portions of the transcript relevant to his argument concerning the trial court’s denial of defendant’s motion for a continuance. It does not provide affirmative evidence of counsel’s familiarity with other portions of the trial record. Counsel must examine the entire trial record to ascertain all possible violations of defendant’s constitutional rights. We cannot determine from the record whether this was done.

We, therefore, reverse the dismissal of defendant’s amended petition for post-conviction relief and remand to the trial court for further proceedings.

Reversed and remanded.

GREEN and McCULLOUGH, JJ., concur.


text:
    DELMAR W. DURDLE, Ex’r of the Estate of Clarence G. Miller, Deceased, Plaintiff-Appellee, v. DELMAR W. DURDLE, Ex’r of the Estate of Lawrence F. Miller, Deceased, et al., Defendants (Karla Mae Bartels, Defendant-Appellant).
    Fourth District
    No. 4 — 91—0489
    Opinion filed January 16, 1992.

      Charles K. Smith, of Grosboll, Becker, Tice, Alvarez & Smith, of Peters-burg, for appellant.
    Don P. Boggs, of Boggs & Knuppel, P.C., of Havana, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

A trust beneficiary, Karla Mae Bartels, filed a petition to convert the trust real estate to an asset generating greater income. The trial court dismissed the petition. (Ill. Rev. Stat. 1989, ch. 110, par. 2— 619.) The beneficiary now claims on appeal that (1) the trustee’s motion to dismiss should not have been granted; (2) the trust instrument does not preclude sale of the real estate; and (3) even if the trust did preclude sale of the real estate, the court has authority to order a sale.

The trust involved in this case was established by the will of Clarence G. Miller, who died on October 23, 1982. The will provides the trustee is to pay the trust’s income to Clarence’s brother, Lawrence, for the remainder of his life. Lawrence died prior to the closing of Clarence’s estate. Upon Lawrence’s death, the will directed the trustee:

“(1) To pay the net income of the trust at least annually in equal shares to Verla Hill and Karla Mae Bartels.
(2) At the death of Verla Hill or Karla Mae Bartels, the decedent’s share shall be paid to the decedent’s children. If either Verla Hill or Karla Mae Bartels dies without children surviving them, then that share shall be paid to the survivor of Verla Hill and Karla Mae Bartels.”

The will contains additional provisions for distribution of the trust income and real estate subsequent to the death of Hill and Bartels which do not concern us here.

The will further directs the trustee to employ William L. Durdle, the trustee’s son, to farm the real estate owned by the trust “on the customary crop share basis so long as he shall farm the said land in a husband-like manner.” The will also gives the trustee several other powers which will be further explained.

Since establishment of the trust, the beneficiaries have received approximately $7,500 each. Hill has objected to every annual trust accounting since its inception. This court heard the appeal of the first accounting; we remanded with instructions to correct only minor defects in the accounting, but affirmed the trial court’s acceptance of the accounting in all other respects. (Durdle v. Durdle (1986), 141 Ill. App. 3d 12, 489 N.E.2d 1142.) In 1989, this case was again before our court. At issue again was whether the trustee had mismanaged the trust property to an extent which would require his removal. (Durdle v. Durdle (1989), 187 Ill. App. 3d 1126 (unpublished order under Supreme Court Rule 23).) The issues were substantially similar to those of the first appeal. This court held that Hill’s claims were barred by the doctrine of collateral estoppel. Durdle, 187 Ill. App. 3d 1126 (slip Rule 23 order at 15).

Beneficiary Bartels claims that the trustee’s motion to dismiss her petition to convert the real estate should not have been granted. We disagree.

The portion of the petition to convert assets of testamentary trust relevant to this opinion are as follows:

“5. That Delmar W. Durdle was named as trustee of said Testamentary Trust and is presently acting as said Trustee.
6. That since the establishment of said Testamentary Trust in 1985, the two sole beneficiaries have received from 1985 through 1989, approximately $7,500.00 each in distributions from said Trust.
7. That the annual distributions to each beneficiary from said Trust have averaged approximately $1,250.00.
8. That the fees paid to Don Boggs, attorney for the Estate of Clarence G. Miller, Deceased, as well as fees paid to him for acting as attorney for the Trustee, have now exceeded the sum of $12,903.16.
9. That fees paid to Delmar W. Durdle as Executor of said estate and as trustee for said Trust have now exceeded the sum of $7,801.00.
10. That there are still outstanding amounts due said attorney for said Trust and said Trustee with regard to the filing of Current Reports herein and with regard to litigation involving said Trust.
11. That objections to each Current Account filed herein have been filed by beneficiary Verla Hill.
12. That objections have also been filed herein by beneficiary Karla Mae Bartels.
13. That there have been numerous and lengthy Court proceedings with regard to said objections.
14. That beneficiary Verla Hill has taken her objections to the Appellate Court and there have been numerous and lengthy proceedings therein.
15. That there will continue to be numerous and lengthy legal proceedings herein resulting in further attorneys fees and Trustee’s fees to be paid from the Trust.
16. That the objections to the accountings herein primarily relate to the Trustee’s manner of renting and farming Trust farm real estate, and lack of farm management abilities to provide reasonable and adequate trust income.
17. That the primary asset of said Testamentary Trust is approximately 80 acres of farm real estate, which asset is not sufficient to generate a reasonable amount of annual income so as to justify continuation of the Trust in its present form.
18. That the intended purpose of the Trust, as is evident from its terms, is the production of income for the beneficiaries of said Trust.
19. That as is evident from the proceedings herein, the only people benefiting from said Testamentary Trust are the attorney[s] for the Trust and the Trustee.
20. That the Trustee has a vested interest in the continuation of the Trust in its present form in that his son farms said real estate.
21. That nowhere in the terms and provisions of said Trust does it prohibit or prevent the sale of said farm real estate nor is there any statement therein whereby the testator requires that the real estate remain unsold during the term of said Trust.
22. That beneficiary Bartels’ share of income proceeds from the Trust are annually being reduced by the ongoing legal expenses related to the Trust.
23. That setting aside said expense, the Trust fails to produce reasonable and sufficient income to justify its continuation in its present form.”

The trial court’s ruling provided:

“MEMORANDUM OF OPINION
For purposes of this motion the Court assumes (without deciding) that petitioner Bartels can prove each factual allegation (excluding legal conclusions) of the October 31 Petition to Convert Assets of the trust by a preponderance of the evidence. Even assuming such proof the Court would not be authorized to grant the prayer of the petition. A reading of the trust instrument makes it clear that a changing of the trust assets would completely frustrate the intent of the testator.
An additional reason exists for dismissing the Petition to Convert Trust Assets. The same parties litigated a petition to terminate the same testamentary trust which resulted in a final appealable order in early 1990. There is absolutely no reason why the prayer for relief presented in the October 31, 1990[,] petition could not have been litigated in the earlier proceeding upon the petition to terminate the trust. Substantially the same allegations and issues were raised in each petition.
ORDER
This cause is before the Court upon the motion to dismiss the Petition to Convert Trust Assets, and the Court having heard the arguments of Counsel and having examined the briefs of Counsel and being fully advised of the premises, hereby enters an Order dismissing the Petition to Convert Trust Assets for the reasons set forth in the Court’s Memorandum of Opinion.”

The beneficiary contends that the decedent’s will did not preclude the sale of the real estate.

A court’s primary concern in construing a trust instrument is to discover the intent of the settlor when he executed that instrument. (Williams v. Springfield Marine Bank (1985), 131 Ill. App. 3d 417, 475 N.E.2d 1122.) After first viewing the language of the trust itself, a court may then consider the surrounding circumstances at the time of the execution to determine the settlor’s intent. Department of Mental Health & Developmental Disabilities v. Phillips (1986), 114 Ill. 2d 85, 500 N.E.2d 29.

However, if the instrument creating the trust contains language that is unambiguous and perfectly clear, then the intent must be ascertained from that language. (Estate of Sacks (1967), 89 Ill. App. 2d 1, 11, 231 N.E.2d 688, 694.) The instrument must be considered as a whole, and the provisions are not to be read in isolation. In re Support of Halas (1984), 104 Ill. 2d 83, 92, 470 N.E.2d 960, 964.

In the instant case, the beneficiary claims that had the settlor intended to expressly preclude the sale of the real estate, it is apparent that he would have stated such in his will. Upon examination of the will, it is clear that the testator did not intend to have the real estate sold.

The will provided specific measures to be used in dealing with the real estate. It directed the trustee to employ William Durdle to farm “my farm real estate on the customary crop share basis so long as he shall farm the said land in a husband-like manner.” The will also stated:

“With respect to farm property, plant and harvest crops; breed, raise, purchase and sell livestock; lease on shares; purchase and sell equipment and farm produce of all kinds; make improvements, construct, repair or demolish any building; engage agents, managers, and employees and delegate powers to them; set up reasonable reserves for depreciation out of income to replace improvements and equipment; to fertilize and improve the soil, to engage in the growing, improvement and sale of trees and other forest crops, and to perform any other acts deemed necessary or desirable to operate the property.”

Further, it provided the trustee shall rent or lease the residence held in trust to a family unit. If William Durdle became unable to farm the real estate, the real estate was to be rented under the same terms and conditions to another farmer, excluding certain individuals. Finally, the will required that the trust terminate 20 years after the date of the death of the last of the surviving named beneficiaries.

It is true, as the beneficiary argues, that the testator did not specifically state that the real estate should not be sold. Given the above-cited provisions, however, it is clear that the testator did not intend the land to be sold.

Finally, the beneficiary contends that even if the will is interpreted as forbidding the trust real estate from being converted, the court still has the authority to do so. We conditionally agree with the beneficiary; however, this is not one of those cases.

Section 17.1 of the Trusts and Trustees Act (Act) (Ill. Rev. Stat. 1989, ch. 17, par. 1687.1) applies to the instant case. It states, in pertinent part:

“Where lands or any estate therein are subject to any legal or equitable future interest of any kind or to any power of appointment, whether a trust is involved or not, and it is made to appear that such lands or estate are liable to waste or depreciation in value, or that the sale thereof and the safe and proper investment of the proceeds will inure to the benefit and advantage of the persons entitled thereto, or that it is otherwise necessary for the conservation, preservation or protection of the property or estate or of any present or future interest therein that such lands or estate be sold, mortgaged, leased, converted, exchanged, improved, managed or otherwise dealt with, the court may *** authorize and direct the sale of such property, either at a public sale or at private sale, and upon such terms and conditions as the court may direct, and in such case may authorize the trustee or trustees to make such sale and to receive, hold and invest the proceeds thereof under the direction of the court for the benefit of the persons entitled or who may become entitled thereto according to their respective rights and interests ***.” (Emphasis added.)

The beneficiary claims that the emphasized statutory language gives the court carte blanche to order a sale of trust assets if it will be beneficial to the trust beneficiaries. To support this contention, the beneficiary relies on this court’s holding in American State Bank v. Kupfer (1983), 114 Ill. App. 3d 760, 449 N.E.2d 1024.

In Kupfer, this court determined that a certain 1929 amendment to the provision which was the predecessor of section 17.1 of the Act (Ill. Rev. Stat. 1981, ch. 17, par. 1687.1) and Shamel v. Shamel (1954), 3 Ill. 2d 425, 121 N.E.2d 819, widely broadened the court’s power to order a sale of trust assets. The beneficiaries neglect to acknowledge that Kupfer declines to construe section 17.1 of the Act so broadly as to annul all restraints on alienation found in trust instruments or to allow current beneficiaries to profit at the expense of future beneficiaries. Kupfer, 114 Ill. App. 3d at 768, 449 N.E.2d at 1029.

The statute and prestatute case law recognized in Kupfer indicates that “judicial intervention is appropriate only when there has been a change in circumstances affecting the trust which was unforeseen by the donor, and any resulting order must be tailored to implement the intention of the donor.” (Kupfer, 114 Ill. App. 3d at 768-69, 449 N.E.2d at 1029-30.) In the instant case, there has been no change in circumstances involving the trust property. The beneficiary’s sole reason for desiring the conversion of the real estate into more liquid assets is that she has not been receiving satisfactory distribution payments. It appears the reason for this is that the beneficiaries have mounted a legal barrage assailing the trustee and his administration of the trust, at a cost of several thousand dollars in legal fees to the trust assets. Previously, the beneficiaries have shown insignificant merit in their numerous contests of the trustee’s accountings. In fact, Bartels has testified in the past that she had no quarrel with the way the trustee was managing the trust. She is only complaining now because her cobeneficiary continues to generate litigation which requires the trust income be drained to defend her actions.

We decline to extend our holding in Kupfer to allow conversion of trust property only because it may be beneficial to those currently receiving the trust income. There are no allegations in the petition to convert assets which indicate waste or depreciation in value. The petition basically rests on the theory that litigation expenses, precipitated by the current beneficiaries’ legal attacks against the trustee, justify the sale of trust assets. We find no authority for the proposition that legal-expense blackmail by current beneficiaries, by itself, is reason to liquidate an investment. If we did adopt such a view, trustees could not plan for long-time investments, and the wishes of trust settlors as to retention of certain types of investments would be meaningless.

The petition to convert did not make allegations which would justify an order of conversion or reinvestment, and the trial court was correct in dismissing the petition. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(9).) Because of our resolution of this issue, we need not discuss the argument that dismissal of the petition to terminate the trust (Durdle v. Durdle (Mason Co. Cir. Ct., Jan. 19, 1990), No. 83 — CH—25 (order of dismissal)), from which no appeal was taken, supports dismissal of the instant petition based on res judicata (Ill. Rev. Stat. 1989, ch. 110, par. 2-619(a)(4)).

Affirmed.

GREEN, P.J., and COOK, J., concur.


author: PRESIDING JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TODD W. BRYANT, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0444
    Opinion filed January 17, 1992.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Denise Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This case concerns the operation of the requirement of section 103 — 5(a) of the Code of Criminal Procedure of 1963 (Code) that “[ejvery person in custody *** for an alleged offense shall be tried *** within 120 days from the date he was taken into custody unless” certain types of delay are “occasioned” by that prisoner. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) The question presented is whether the 120-day period which begins with the incarceration of a defendant is tolled by delay “occasioned” by that defendant before incarceration when he failed to appear for trial. We hold that it does not.

On April 17, 1990, the State charged defendant Todd W. Bryant and a codefendant in the circuit court of Vermilion County with the offense of residential burglary. (Ill. Rev. Stat. 1989, ch. 38, par. 19— 3.) Defendant was then released on bond and subsequently a trial date of July 30, 1990, was set. Defendant failed to appear on that date and a warrant was issued for his arrest. Law enforcement officers later captured defendant and he was extradited and returned to Illinois, where he was placed in the Vermilion County jail on November 28, 1990. On that date, the circuit court set defendant’s case for trial on March 4, 1991. No trial was held on that date. The record does not indicate why that was so. On April 26, 1991, defendant filed a motion to have the cause dismissed and him discharged because the 120-day period of section 103 — 5(a) of the Code, which started on November 28, 1990, had expired. On May 1, 1991, the court allowed that motion. The State has appealed pursuant to Supreme Court Rule 604(a)(1). (134 Ill. 2d R. 604(a)(1).) We affirm.

Relying principally upon the decision in People v. Martin (1989), 185 Ill. App. 3d 547, 542 N.E.2d 27, the State contends that because of defendant’s unexcused failure to appear for trial on July 30, 1990, the 120-day period of section 103 — 5(a) of the Code did not start to run until March 4, 1991, which, according to the State, was the first available trial date after the defendant was taken into custody. On appeal, the State also maintains, for the first time, that defendant caused delay from March 4, 1991, until the time of his motion for dismissal and discharge, thus tolling the running of the time period of section 103 — 5(a) of the Code before the 120 days had elapsed.

We need not decide whether the State’s second contention has been waived because, in any event, it has no merit. “Delay will not *** be presumed to be attributable to the defendant on *** a silent record.” (People v. Reimolds (1982), 92 Ill. 2d 101, 106, 440 N.E.2d 872, 875.) Furthermore, even if the record was ambiguous as to which party was guilty of delay because of the lack of a trial being held on March 4, 1991, on review, the ambiguity should be resolved in such a way as to support the decision of the circuit court. Reimolds, 92 Ill. 2d at 107, 440 N.E.2d at 875.

The case of Martin, upon which the State relies in support of its major contention, concerns the operation of section 103 — 5(b) of the Code (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b)), rather than section 103 — 5(a), which is involved here. Section 103 — 5(b) of the Code states that persons “on bail or recognizance shall be tried *** within 160 days from the date defendant demands trial unless delay is occasioned by the defendant.” (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(b).) There, a defendant who, while on bail, had made a demand for trial failed to appear upon the trial date set after his demand. More than 160 days after the demand and before a trial had been held, the defendant moved for a dismissal and discharge, which was allowed by the trial court. On appeal, the appellate court concluded the running of the 160-day period had been tolled from the time the defendant failed to appear for trial until the next reasonable time for the trial to be held. Thus, the 160-day period was tolled for a sufficient time so that it had not run when the request to discharge was made. The appellate court reversed. See also People v. Dotson (1988), 173 Ill. App. 3d 541, 527 N.E.2d 881.

We cannot agree that the situation under section 103 — 5(b) of the Code in Martin and Dotson is analogous to the situation under section 103 — 5(a) of the Code here. By the very wording of section 103 — 5(b), the 160-day period begins to run upon the filing of a demand for trial. A failure to appear for a subsequently set trial creates delay during the time the statutory period is running. The wording of section 103 — 5(a) of the Code makes clear that the 120-day limitation period described there extends “from the date [the defendant] was taken into custody.” (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 5(a).) Thus, here, the failure of the defendant to appear for trial occurred before the statutory period began to run. The difficulties of bringing defendant to trial within 120 days of his incarceration in Vermilion County on November 28, 1990, were not increased by his earlier failure to appear.

The circuit court and the defense both rely upon the case of People v. Hatch (1982), 110 Ill. App. 3d 531, 442 N.E.2d 655, as bearing upon the decision to be made here. There, a defendant had been arrested in Du Page County and released on bond that day with his arraignment set for November 7, 1980. That defendant failed to appear for the arraignment. Subsequently, that defendant was arrested in Kane County, temporarily returned to Du Page County on December 12, 1980, and then sent back to Kane County to be held for charges pending there. On January 23, 1981, that defendant was sent back to Du Page County and began an incarceration there. The appellate court held that defendant was not in custody within the meaning of section 103 — 5(a) of the Act until January 23, 1981, at which time no further obstacle existed to keep the State from trying him in Du Page County. Our determination that the instant defendant’s custody started on November 28, 1990, and that the 120-day period began to run then is consistent with the decision in Hatch.

We carry no torch for defendants in criminal cases who fail to appear on dates set for trial. Various appropriate sanctions are available. However, we cannot determine that an inexcusable failure to appear for such a setting delays the trial of a defendant after that defendant has subsequently been taken into custody. The circuit court properly allowed the defendant’s motion to dismiss and for discharge.

We affirm.

Affirmed.

COOK and LUND, JJ., concur.