author: JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID N. LAMBERT, Defendant-Appellant.
    Fourth District
    No. 4—89—0358
    Opinion filed March 15, 1990.

      Kevin R Fitzgerald, of Thomson & Weintraub, of Bloomington, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and Nathan P. Maddox, Assistant Attorneys General, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

After a jury trial, defendant was convicted of various counts of theft by deception and criminal breach of fiduciary duty. The trial court sentenced defendant to an eight-year extended term on each theft by deception conviction. No sentence was imposed on the criminal breach of fiduciary duty counts upon a finding they merged with the theft by deception convictions. Defendant appeals his convictions and sentence.

Defendant was originally charged by indictment with 31 separate counts of theft by deception, criminal breach of fiduciary duty, and unlicensed insurance production. (Ill. Rev. Stat. 1987, ch. 38, par. 16—1(b)(1); Ill. Rev. Stat. 1987, ch. 73, pars. 1065.55—1, 1065.39—2(c).) All counts related to certain checks defendant received from several individuals.

Prior to trial, one count was severed and 10 others were dismissed on motion of the State. Of the remaining 20 counts which went to the jury, 16 involved 8 transactions between defendant and Lois A. Bradley. As to each transaction defendant was charged, alternatively, with one count of theft by deception and one count of criminal breach of fiduciary duty. The final four counts charged theft by deception as to four additional transactions involving Hilda Fehr and Alphonse and Dorothy Boucher.

The jury returned guilty verdicts on 18 of the 20 counts, acquitting defendant on both counts related to one of the transactions involving Lois A. Bradley. At sentencing, at the State’s suggestion, the court found defendant’s convictions from criminal breach of fiduciary duty merged with the convictions for theft by deception. Thereafter, the court imposed an eight-year extended-term sentence on each of the 11 convictions for theft by deception, with each sentence to be served concurrently. The court further ordered restitution of $57,919.20, less any amount shown to have been repaid.

I. MOTION TO DISMISS FOR IMPROPER VENUE

Prior to trial, defendant filed a motion to dismiss for improper venue in McLean County. That motion was directed to all 14 counts which charged him with criminal breach of fiduciary duty and unlicensed insurance production. Five counts relating to unlicensed insurance production were dismissed on motion of the State and the sixth count was severed. The court denied defendant’s motion to dismiss the remaining eight counts of criminal breach of fiduciary duty. Defendant was convicted of seven of those counts.

On appeal, defendant argues that the trial court erred in denying his motion to dismiss for improper venue, maintaining that because he received the checks in question from Lois A. Bradley in Piatt County, Illinois, venue for those offenses did not lie in McLean County, Illinois. The State argues that venue was proper in McLean County.

Section 508.1 of the Illinois Insurance Code states in pertinent part:

“Any money which an insurance producer *** receives for soliciting, negotiating, effecting, procuring, renewing, continuing or binding policies of insurance shall be held in a fiduciary capacity, and shall not be misappropriated, converted or improperly withheld.
* * *
*** When an insurance producer *** knowingly misappropriates or converts to his own use or illegally withholds premiums in excess of $150, he is guilty of a Class 3 felony.” (Ill. Rev. Stat. 1987, ch. 73, par. 1065.55—1.)

Thus, under this statute, a defendant is guilty of criminal breach of fiduciary duty when he knowingly misappropriates or converts to his own use or illegally withholds fiduciary monies.

“Conversion” is defined as “[t]he unauthorized exercise of dominion or control over someone’s personal property.” West’s Legal Thesaurus/Dictionary 186 (1986).

Section 1 — 6(a) of the Criminal Code of 1961 states:

“Criminal actions shall be tried in the county where the.offense was committed.” Ill. Rev. Stat. 1987, ch. 38, par. 1—6(a).

In the present case, defendant was specifically charged with knowingly converting to his own use fiduciary monies represented by the various checks in question. Extensive evidence presented at- trial showed that the conversion of the fiduciary monies took place-upon defendant’s depositing the checks into a checking account at Champion Federal Savings and Loan in Bloomington, Illinois, located in McLean County, Illinois, and upon defendant’s writing checks from that account to himself and to cash. Venue is proper in any county where any element of the offense being tried was committed. (See People v. Brown (1982), 107 Ill. App. 3d 742, 744, 438 N.E.2d 250, 252.) Because an element of the offense of criminal breach of fiduciary duty was committed in McLean County, venue was proper in that county.

II. DEFENDANT’S CONVICTIONS FOR CRIMINAL BREACH OF FIDUCIARY DUTY

For each of the seven checks issued by Lois A. Bradley, defendant was charged with both theft by deception and criminal breach of fiduciary duty. Defendant argues it was improper for the trial court to convict him of more than one offense relative to each check because each taking of a check constituted a single act. In support of his argument, defendant cites People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, and People v. Kaye (1987), 154 Ill. App. 3d 562, 507 N.E.2d 12. Under King and Kaye, defendant maintains each count alleging criminal breach of fiduciary duty set forth the same physical act and transaction alleged in the corresponding count of theft by deception and, therefore, both convictions cannot stand. Because defendant was acquitted of two charges involving one of the Bradley transactions, defendant’s argument is irrelevant insofar as those counts are concerned.

The Illinois Supreme Court held in King that when the same physical act of the accused constitutes two or more offenses, it is proper to enter judgment of conviction and sentence only on the most serious offense. In its opinion, the court stated:

“Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than- one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other- cases where a defendant has committed several acts, despite the interrelationship of those acts. ‘Act,’ when used in this sense, is intended to mean -any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises , from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.

In Kaye, the court found three out of six bribery charges to be predicated on a different physical act — the solicitation of money rather than the receipt of money — from the theft by deception charge which involved the receipt of money. In affirming the defendant’s conviction for these counts, the court distinguished the charges and found the act of soliciting to precede the act of receiving. Kaye, 154 Ill. App. 3d at 573, 507 N.E.2d at 19.

Based upon the foregoing analysis, a comparison of requisite elements of theft by deception and criminal breach of fiduciary duty is necessary. A person commits theft by deception when he knowingly obtains by deception control over property of the owner and intends to deprive the owner permanently of the use of benefit of the property. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16—1(a)(2)(A); Kaye, 154 Ill. App. 3d at 571, 507 N.E.2d at 18.) A person commits criminal breach of fiduciary duty when he knowingly misappropriates or converts to his own use or illegally withholds fiduciary monies. Ill. Rev. Stat. 1987, ch. 73, par. 1065.55—1.

In the present case, theft by deception and criminal breach of fiduciary duty were predicated on separate criminal acts, and each of these charges is supported by the record. First, the act of conversion of fiduciary monies is distinguishable from the act of receiving another’s property by deception. Second, neither of the crimes is an included offense of the other. And third, the trial court specifically held in its judgment and sentence order that the criminal breach of fiduciary duty convictions were merged with the theft by deception convictions. As the court stated in King, “when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.” King, 66 Ill. 2d at 566, 363 N.E.2d at 845.

III. SUFFICIENCY OF THE EVIDENCE

Defendant next contends that the evidence is insufficient to prove him guilty beyond a reasonable doubt. In support of his argument, defendant argues that every reasonable hypothesis of his innocence must be excluded to sustain a conviction. People v. Evans (1981), 87 Ill. 2d 77, 83, 429 N.E.2d 520, 522-23.

Recently, however, in People v. Eyler (1989), 133 Ill. 2d 173, 191, the Illinois Supreme Court set forth the standards governing review of the sufficiency of the evidence:

“[W]e have disapproved of the use of the ‘reasonable hypothesis of innocence’ language in jury instructions, because it is both ‘obscure and misleading.’ People v. Bryant (1986), 113 Ill. 2d 497, 512.
The principles governing our review of defendant’s challenge to the sufficiency of the evidence are well established and were recently set forth in People v. Phillips (1989), 127 Ill. 2d 499, 509-10. It is, of course, the jury’s function to determine the accused’s guilt or innocence and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt. It is not this court’s function to retry the defendant. The United States Supreme Court has stated that ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; see also People v. Collins (1985), 106 Ill. 2d 237, 261.) Moreover, it is for the jury to weigh the credibility of witnesses and to resolve conflicts or inconsistencies in their testimony. (Phillips, 127 Ill. 2d at 514.)”

Accord People v. Pintos (1989), 133 Ill. 2d 286, 291.

These are the principles of which we are mindful as we review the sufficiency of the evidence with regard to each particular charge.

A. THE CHARGE INVOLVING ALPHONSE AND DOROTHY BOUCHER

Defendant was charged with one count of theft by deception of Alphonse and Dorothy Boucher. The charge concerned a check for $10,000 drawn on the Bouchers’ money market account on February 5,1987.

Mrs. Boucher testified that she and her husband were retired farmers and that her husband was 82 years old. She also testified that she and her husband purchased various Amway products from defendant and that once she purchased $1,200 in silver coins from defendant. A later appraisal revealed that the coins were worth approximately $400.

Mrs. Boucher identified the $10,000 check as one she and her husband had given to defendant on February 5, 1987. She stated that the money had come from certificates of deposit which had matured. She also testified that defendant was in her home on February 5, 1987, and that he had engaged in general conversation with her and her husband. Mrs. Boucher then stated that when Mr. Boucher mentioned they had $10,000 to invest, defendant began describing his Aztec Marketing (Aztec) operations. As a result of this conversation, Mr. Boucher agreed to invest $10,000 in Aztec at a 9.25% rate of return. Mrs. Boucher stated that it was their understanding that the investment would be for one year at 9.25% and that they could withdraw the money at any time after that year.

Mrs. Boucher testified that neither she nor her husband ever received a prospectus or literature concerning Aztec. Defendant did not provide the couple with a written agreement or a receipt for their check. Mrs. Boucher also testified that they made several requests for a receipt, but never received one. Approximately one year after the investment, Mr. Boucher asked defendant for the $10,000, but defendant said that he could not manage to return it.

On January 25, 1988, the Bouchers received a call from defendant. He stated that the police had ransacked his house, and he wanted to know if the Bouchers had known about it ahead of time.

On February 9, 1988, defendant sent the Bouchers an interest check for $950 on their $10,000 investment. A two-page agreement accompanied the check. The agreement had no time limit for repayment of the $10,000 principal. The agreement also gave defendant full authority to manage the investment and provided for forfeiture of the Bouchers’ $10,000 investment if the Bouchers withdrew from the agreement. The agreement was not consistent with the Bouchers’ understanding of their investment, and the Bouchers refused to sign it.

Mrs. Boucher also testified that shortly before trial, defendant sent them a check for $1,000 along with a document stating that defendant’s new company, Emergency Response, Inc., had assumed the “loan” which the Bouchers had made to defendant.

A checking services manager for Champion Federal Savings and Loan in Bloomington, Illinois, testified that defendant and his fiancee had a joint personal account at Champion Federal. The manager stated that there was no account at Champion Federal in the name of Aztec Marketing; however, the manager did note that the checks and deposit slips in the defendant’s joint personal account bore the name of Aztec Marketing.

Defendant testified that Aztec Marketing was his company which he ran out of his home. He stated that he was the sole employee. He claimed on direct examination that he invested the Bouchers’ $10,000 in inventory for Aztec. On cross-examination defendant admitted that he made little effort to determine the Bouchers’ financial situation before taking their $10,000 and that he deposited the $10,000 check into his personal account the same day he received it. He also admitted that after depositing the $10,000, he wrote checks on his account for bills to a chiropractor clinic and gas company, for a new stove and refrigerator, and for a down payment on a $22,000 car. Defendant claimed that he used this car in his work. Defendant further testified that the bank account he put the $10,000 into was now closed.

Defendant argues that he was not proved guilty beyond a reasonable doubt of theft by deception because the only payment which was due the Bouchers was in accordance with his agreement with the Bouchers and was paid on time. This payment, however, was made after the search of defendant’s house. At trial, it was established that defendant was made aware of the investigation into his dealings with the Bouchers after the search warrant was executed. Defendant’s payment to the Bouchers does not preclude a finding of guilt.

The evidence established at trial is not so improbable as to create a reasonable doubt of defendant’s guilt. A person commits theft by deception when he knowingly obtains by deception control over property of the owner and intends to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16—1(a)(2)(A).) Specific intent to defraud may be proved by circumstantial evidence. (People v. Rolston (1983), 113 Ill. App. 3d 727, 731, 448 N.E.2d 965, 967.) After viewing the above evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the elements of theft by deception in this count proved beyond a reasonable doubt.

B. THE CHARGES INVOLVING HILDA FEHR

Defendant was charged with three counts of theft by deception of Hilda Fehr. The charges related to checks received from Mrs. Fehr totalling $43,000.

Mrs. Fehr testified that she was 76 years old at the time of trial, lived alone, and had been a widow since 1983. Prior to retirement, she and her husband had been farmers.

Mrs. Fehr indicated that defendant first came to her home in December 1986 and sold her three insurance policies and some Amway products. She stated that defendant returned to her home often, about three times a month. Mrs. Fehr also testified that defendant sold her a burglar alarm and a water system. She got to know defendant well and liked him. Mrs. Fehr and defendant eventually began to discuss investments, and she ended up buying a $10,000 annuity through defendant from the Jackson National Life Insurance Company (Jackson National). That annuity pays her $108 per month. Thereafter, Mrs. Fehr and defendant continued to talk about investments. She told defendant that she had $25,000 in the bank but thought it was unhandy to have it there. She stated that defendant wanted the money “right away. He wanted it.” Mrs. Fehr’s testimony continued:

“Q. [Assistant Attorney General] Did you also have an $8,000 CD?
A. [Hilda Fehr] That was later on. I had got $8,000 when the certificate was due and then he said you want me to invest that too, so I was thinking this all went to the Jackson National and I would add that to it.
Q. Why were you thinking it was going to Jackson National?
A. Because he said you want to invest that. We always talked about Jackson National. I thought that was were he was going to put it.”

Mrs. Fehr then identified the checks made out on April 1, 1987, for $8,000, and April 27, 1987, for $25,000, and stated that defendant filled out these checks for her to sign. Defendant acknowledged filling out the checks. The checks were made out to Aztec Marketing. Mrs. Fehr’s monthly annuity from Jackson National did not increase. In addition, defendant did not give Mrs. Fehr a receipt for the checks or any type of agreement concerning the checks when he obtained them from her.

Mrs. Fehr testified that at a later date defendant talked to her about investing in pay phones. Defendant wanted her to give him $10,000 to invest in the pay phones. He told her it “would be a good thing and we could make a lot of money on it.” They were to be partners, and defendant said “he would take care of the money and give me my share.” He did not say what her share was supposed to be. On June 15, 1987, Mrs. Fehr gave defendant a check for $10,000 for the purchase of five pay phones. The check was cashed. Mrs. Fehr never saw any phones and was never told where they were located.

Mrs. Fehr was not given a written agreement concerning the pay phones until August 4, 1987. The agreement was backdated to April 30, 1987, and was similar to the agreement defendant had given to the Bouchers to sign. Mrs. Fehr testified she signed the agreement without reading it, and when she did read it, she did not understand it. The agreement limited her return to a share of the after-tax profit and forfeited her entire share if she withdrew from the agreement. The agreement also noted that Mrs. Fehr had given defendant $33,000 and called for a return of the “cash equivalent of Two Thousand Nine Hundred and Seventy dollars of net profit from Aztec Marketing owned and operated by David Lambert. Initial payment to commence on June 1, 1988, and to continue for eleven years.” This language fell short of providing for a return of Mrs. Fehr’s initial investment, let alone any profit.

Mrs. Fehr testified that by the time of trial, defendant had repaid her approximately $2,800. At least one of these payments came from defendant’s fiancee, rather than defendant himself. As with the Bouchers, the payments did not begin until after defendant learned that he was being investigated for his dealings with Mrs. Fehr. She stated that defendant started making payments to her “about a half a year” after she signed the pay-phone agreement. In August 1987, Mrs. Fehr was contacted by an Illinois State Police division of criminal investigation agent concerning her dealings with defendant. She informed defendant of the visit.

Several witnesses called by the State established that defendant had not carried through on the pay telephones. An employee of Amway testified that while Amway sold pay telephones, defendant did not order any such phones from Amway. An employee of the Illinois Commerce Commission (ICC) testified that ICC issues certificates of authority on applications for customer-operated pay-telephone service. Defendant filed such an application in July 1987, but had withdrawn his application by the fall of 1987. Employees of three telephone companies that serviced that Bloomington area testified that defendant had no pay telephones placed in the Bloomington area.

Defendant testified that all money received from Hilda was for investment in Aztec Marketing. He said the $33,000 obtained in April 1987 was a way for Mrs. Fehr to get a better return on her money. Defendant also testified that he had gone to great lengths to get pay telephones placed and that he was on the verge of closing a deal for them. Defendant went into great detail on this subject.

On cross-examination, defendant testified that the $33,000 investment was nonrefundable and non-interest bearing, and that any return on the investment was contingent on his making a profit. Additionally, defendant testified the $33,000 had been deposited in the personal account he shared with his fiancee and the account was now closed. He also recalled that Mrs. Fehr’s name appeared on the search warrant papers given to him at the time the search was executed and that he made his first payment to her four days later. All other payments to Mrs. Fehr had been made since defendant’s indictment. Defendant acknowledged taking the $10,000 for the pay phones and never purchasing any.

Defendant further testified that Aztec Marketing was no longer in existence and that he never informed Mrs. Fehr of this fact. Nonetheless, defendant stated that the Bouchers and Mrs. Fehr need not be concerned about the disappearance of Aztec Marketing because their “investments” in Aztec were really just “loans” to defendant. Defendant claimed there is no difference between a loan and an investment and that the absence of Aztec was irrelevant because “it’s still me. I am still liable for it.”

Defendant argues that he was not proved guilty beyond a reasonable doubt of theft by deception because failure to refund money to dissatisfied customers is not necessarily proof of a specific intent to defraud. In support of his argument, defendant cites People v. Rolston (1983), 113 Ill. App. 3d 727, 448 N.E.2d 965.

In Rolston, the defendant was charged with four counts of theft by deception. Defendant, who was in the business of installing windows on residences, had been contacted by four separate persons to have windows installed. He received down payments from each of them and gave various representations to them as to when the windows would be ordered and when they would be installed. However, the installations were delayed and the defendant made representations as to the reasons for the delays and when the installations could be expected. He knew some of the representations to be false. At one point or another each of the persons requested his money back, but the defendant indicated that he did not have the money to return to them.

At trial, defendant indicated he had taken the orders believing he could fulfill them. He used the money to pay some immediate business and living expenses, hoping to cover the cost of the first orders with subsequent orders. The subsequent orders did not come in as the defendant expected, but defendant testified he never intended to take money from his customers without delivering windows to them. The defendant was convicted on all counts. Rolston, 113 Ill. App. 3d at 728, 448 N.E.2d at 965.

On appeal, the court found that the State had failed to sustain its burden of proof. (Rolston, 113 Ill. App. 3d at 731, 448 N.E.2d at 968.) It noted the State had relied on defendant’s failing to fulfill the contracts, failing to order the windows after receiving the down payment, cashing the down payment check, and lying to several of the customers regarding the status of their orders. The court stated, however, that “[a] defendant’s failure to fulfill a contract is not proof of a specific intent to defraud.” Rolston, 113 Ill. App. 3d at 732, 448 N.E.2d at 968.

The court further noted that “a failure to refund money to dissatisfied customers is not necessarily proof of a specific intent to defraud. [Citation.] Thus, we are left with evidence of the defendant’s failure to order the windows and his false statements to customers explaining the delays.” Rolston, 113 Ill. App. 3d at 732, 448 N.E.2d at 968.

While it is true, as the defendant in the present case asserts, that there are similarities between Rolston and the case at hand, defendant fails to acknowledge the overwhelming evidence presented against him at trial. In addition, defendant’s lack of credibility as a witness takes his case beyond a mere failure to fulfill a contract.

After viewing the above evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found the essential elements of theft by deception in these counts proved beyond a reasonable doubt.

C. THE CHARGES INVOLVING LOIS BRADLEY

Defendant was charged with 16 counts concerning his dealings with Lois Bradley. For each of eight checks obtained from Mrs. Bradley, defendant was charged with one count of theft by deception and one count of criminal breach of fiduciary duty. The checks were as follows:

Payee Date Amount
Transport Life 7-22-85 $728.30
Transport Life 8-01-85 683.30
Transport Life 8-07-85 497.00
United American 3-01-85 1931.30
United American 5-08-85 870.00
United American 5-18-85 475.20
United American 7-03-85 653.40
United American 8-26-85 1012.00

Defendant was convicted of 14 of these counts and acquitted as to the March 1, 1985, transaction in the amount of $1,931.30.

Robert Bradley, Mrs. Bradley’s son, testified that his mother had been a widow since 1980 and had died on March 5, 1986, at the age of 78. He also testified his mother had had a series of heart attacks and was hospitalized in 1984. In 1985, she had another heart attack and had open-heart surgery in June or July of that year. Mr. Bradley then stated that although his mother had returned to her home after her surgery, her physical and mental health had deteriorated. She was a patient in the psychiatric ward of Mercy Hospital in September 1985 and entered a nursing home in November 1985 because she was unable to bathe or feed herself.

Mr. Bradley was aware of defendant’s dealings with his mother. He saw defendant at his mother’s home on several occasions and said his mother seemed fond of defendant, serving him iced tea and cookies whenever defendant came to her home. Mr. Bradley on one occasion asked defendant why he was selling his mother so many insurance policies and said to defendant, “The first thing you know my mother will be selling the farm if it wasn’t tied up in the will and she will be buying insurance policies with it.” Mr. Bradley testified defendant then replied, “We can break the will.”

Mr. Bradley further testified that his mother was a poor business person. He obtained power of attorney for his mother’s business affairs in November 1985 and was the executor of her estate. He was familiar with his mother’s handwriting and testified that the checks comprising the State’s exhibits were signed by his mother but were not made out by his mother. All of these checks were paid by his mother’s bank.

Robert Golwacki, marketing vice-president for Transport Life Insurance Company (Transport Life), testified as to his company’s procedures for determining whether checks made payable to Transport Life had been received and applied to a policy purchase. He testified his company had no records of any application for insurance or billings for insurance renewals that would correspond to the State’s exhibits. He further testified that defendant had never been appointed as an agent for Transport Life.

Golwacki further indicated that an Owen Haycox was an agent for Transport Life from January 1985 until June or July 1985. Two policies were issued to Mrs. Bradley in Haycox’s name. However, Golwacki was unaware of whether the signature on the applications was actually Haycox’s. He testified that the money represented by these exhibits did not bear any relationship to the insurance policies actually issued by his company to Mrs. Bradley. He also testified that general agents would sometimes utilize subagents and those sub-agents were required by the Illinois Department of Insurance to be appointed by the insurance company to write insurance for that company.

Larry Hutchison, counsel for United American, testified to the procedures of his company for determining whether a check payable to the company was ever received or applied to issuance of any policy. His records showed that the company did not receive either the funds or an insurance application that corresponded to the State’s exhibits. The company did receive an application which corresponded to one of the exhibits, but there was no record of receipt of the funds. Hutchinson identified several other exhibits as various insurance policy applications for different types of coverage issued to Mrs. Bradley. The checks contained in the State’s exhibits did not correspond to these applications.

On cross-examination, Hutchinson was questioned further about the $1,931.30 check. It was shown that his company received an application for a $1,000 annuity with a check for $1,888. In his check of the records, Hutchinson was unable to determine where the additional $888 was applied. The $1,888 check was dated March 1, 1985, and the State’s exhibit was dated March 1, 1985. Apparently, the jury found this evidence raised a reasonable doubt as to this exhibit and acquitted defendant on the charges stemming from this transaction.

Charles McGinnis, a handwriting expert for the Federal Bureau of Investigations, testified that Mrs. Bradley signed the checks in question but that defendant filled in the additional information. McGinnis testified that defendant also signed Haycox’s name to the 14 insurance applications to United American. Moreover, McGinnis testified that two insurance applications to Transport Life, allegedly signed by Haycox, had been signed by defendant. Defendant also signed Hay-cox’s name to approximately 87 checks drawn on the Gold Key Marketing account.

Defendant testified that he targeted the elderly in his insurance sales. He also testified that when he first met Mrs. Bradley, he was aware she was an elderly widow living alone. Defendant testified that Mrs. Bradley had been in good health during 1984 and stated that she bounced right back after her open-heart surgery. Defendant acknowledged that as an insurance salesman he had to be careful in making sure people did not duplicate their coverage. He testified that when he met Mrs. Bradley she had 25 to 30 insurance policies. Defendant then stated that he obtained an additional 20 to 25 checks from her for policies.

Defendant testified that he collected over $3,000 from Mrs. Bradley in October 1985 and deposited the $3,000 in a Gold Key Marketing account. Defendant also testified that he wrote checks to himself from this account. When asked if he had written a lot of checks for cash and to himself from that account, defendant stated, “I don’t know what you consider a lot, but probably.”

Defendant stated he had once been an agent for United American but had been terminated by that company. He testified that he wrote United American policies over Haycox’s signature because United American would not accept a policy with his name on it. Defendant had earlier testified that he, Haycox, and Hugh Good had formed Gold Key Marketing as an insurance agency in Illinois. He testified that Haycox was the general agent and that all money and all applications went through him. Defendant further testified that he signed Haycox’s name with Haycox’s approval.

Finally, defendant testified that he continued to sell Mrs. Bradley health insurance before and after her open-heart surgery and he did not mention her health problems in any of the insurance applications. He also testified that he had been convicted of two felonies in Indiana in 1984.

After viewing the above evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have found defendant proved guilty of these counts beyond a reasonable doubt.

IV. SENTENCING ISSUES

A. CLAIMS THAT DEFENDANT’S SENTENCE WAS EXCESSIVE

Defendant was sentenced to a total of 8 years of imprisonment on each of the 11 convictions for theft by deception. As stated by the trial court, defendant’s sentence on each count was five years, plus a three-year extended term on each conviction pursuant to section 5—5—3.2(b)(4)(ii) of the Unified Code of Corrections (Code) (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(b)(4)(h)). The trial court ordered all sentences to be served concurrently.

Before addressing defendant’s argument that the sentences imposed were excessive, we think we should comment on the sentencing procedures employed by the trial court. In sentencing defendant on each felony theft count, the court stated it was imposing a sentence of five years (the maximum sentence for a Class 3 felony under section 5—8—1(a)(6) of the Code (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—8—1(a)(6))) plus a three-year extended term pursuant to section 5—5—3.2(b)(4)(ii) of the Code (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(b)(4)(ii)). That latter section states that an aggravating factor is present and an extended-term sentence may therefore be imposed when a defendant is convicted of a felony committed against a person 60 years of age or older at the time of the offense. Section 5—8—2(a)(5) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(5)) provides that when the court finds such an aggravating factor to be present, it may sentence an offender as follows: “(5) for a Class 3 felony, a term shall be not less than 5 years and not more than 10 years.”

We conclude that under section 5 — 8—2 of the Code, there is but one sentence when the court chooses to impose an extended term. An offender who is eligible for an extended-term sentence need not be so sentenced. However, if the court in its discretion chooses to impose an extended-term sentence, then that sentence must be imposed under section 5 — 8—2 of the Code. The “bifurcated” sentence imposed here is not in accordance with the provisions of section 5 — 8—2 of the Code, and such “bifurcated” sentences ought not be utilized in the future.

Because in this case, the sentencing order is sufficiently clear to discern the trial court’s intent, we need not address this issue further.

Defendant argues that because there was no violence involved in any of the charges against him and because he has no history of violent criminal activity, his sentences were excessive. He further asserts that his sentences were excessive because there was no evidence presented that his conduct had a significant impact or effect on any of the victims.

Section 5 — 5—3.2(a) states in pertinent part:

“The following factors shall be accorded weight in favor of imposing a term of imprisonment or may be considered by the court as reasons to impose a more severe sentence under Section 5 — 8—1:
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(3) the defendant has a history of prior delinquency or criminal activity;
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(6) the defendant utilized his professional reputation or position in the community to commit the offense, or to afford him an easier means of committing it;
* * *
(8) the defendant committed the offense against a person 60 years of age or older.” (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(a).)

Section 5 — 5—3.2 then continues:

“(b) [T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5— 8 — 2 upon any offender:
* * *
(4) When a defendant is convicted of any felony committed against:
* * *
(ii) a person 60 years of age or older at the time of the offense.” (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—3.2(b)(4)(ii).)

Further, section 5 — 8—2(a)(5) states:

“Extended Term, (a) A judge shall not sentence an offender to a term of imprisonment in excess of the maximum sentence authorized by Section 5 — 8—1 for the class of the most serious offense of which the offender was convicted unless the factors in aggravation set forth in paragraph (b) of Section 5 — 5—3.2 were found to be present. Where the judge finds that such factors were present, he may sentence an offender to the following:
* * *
(5) for a Class 3 felony, a term shall not be less that 5 years and not more than 10 years.” Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—2(a)(5).

A review of the record reveals that aggravating factors in both imposing a term of imprisonment and in imposing an extended term of imprisonment were present in the case at hand. First, defendant was convicted in two counties in Indiana of felony theft and then lied about these convictions in obtaining his insurance agent’s license in Illinois. Second, defendant was sentenced on 11 different felony counts. And third, defendant’s victims were all over 60 years of age.

The sentence to be imposed is left to the discretion of the trial court. In imposing sentence, the court should consider the nature and circumstances of the offense, as well as the history, character, and condition of the offender. (People v. Almo (1985), 108 Ill. 2d 54, 70, 483 N.E.2d 203, 210.) A reviewing court will not reduce a sentence unless there is an abuse of discretion. Almo, 108 Ill. 2d at 70, 483 N.E.2d at 210.

The defendant’s criminal behavior was particularly reprehensible. He preyed upon elderly citizens, first gaining their trust and then violating it. Section 5 — 5—3.2(a)(7) of the Code provides, as an additional aggravating factor, that “the sentence is necessary to deter others from committing the same crime” (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005 — 5—3.2(a)(7)). If our elderly citizens are to be protected from con artists like this defendant, harsh sentences ought to be imposed upon criminals who prey upon the elderly. By imposing such sentences, the courts may deter similar crimes from being committed.

It is not the function of this court to second-guess trial courts regarding sentences. We find the trial court in this case did not abuse its discretion. We specifically reject defendant’s arguments that his sentences are excessive because he has no history of violent criminal activity and because there was no evidence presented that his conduct had a significant impact or effect on any of the victims.

B. THE ORDER OR RESTITUTION

Defendant argues the trial court erred in ordering restitution to be paid in the amount of $57,919.20, less any amount shown to have been paid by exhibits introduced at trial, because the order did not (1) indicate the conditions of payment of the restitution, (2) provide a time limit or method of payment, (3) take into account the ability of the defendant to pay, and (4) take into account that defendant had been sentenced to eight years in prison.

Section 5 — 5—6 of the Code states in pertinent part:

“In all convictions for offenses in violation of the Criminal Code of 1961 committed against any person 65 years of age or older in which such person received any injury to their person or damage to their real or personal property as a result of the criminal act of the defendant, the court shall order restitution as provided herein. In all other cases the court shall at the sentence hearing determine whether restitution is an appropriate sentence to be imposed on each defendant convicted of an offense. If the court determines that an order directing the offender to make restitution is appropriate the offender may be sentenced to make restitution which shall be determined by the Court as hereinafter set forth:
(a) At the sentence hearing, the court shall determine whether the property may be restored in kind to the possession of the owner or the person entitled to possession thereof; or whether the defendant is possessed of sufficient skill to repair and restore property damaged; or whether the defendant should be required to make restitution in cash, for out-of-pocket expenses, damages, losses, or injuries found to have been proximately caused by the conduct of the defendant or another for whom the defendant is legally accountable under the provisions of Article V of the Criminal Code of 1961.
(b) In fixing the amount of restitution to be paid in cash, the court shall allow credit for property returned in kind, for property damages ordered to be repaired by the defendant, and for property ordered to be restored by the defendant; and after granting such credit, the court shall assess the actual out-of-pocket expenses, losses, damages, and injuries suffered by the victim named in the charge and such other victims who may also have suffered out-of-pocket expenses, losses, damages, and injuries proximately caused by the same criminal conduct of the defendant. *** If a defendant fails to pay restitution in the manner or within the time period specified by the court, the court may enter an order directing the sheriff to seize any real or personal property of a defendant to the extent necessary to satisfy the order of restitution and dispose of such property by public sale.
* * *
(f) Taking into consideration the ability of the defendant to pay, the court shall determine whether restitution shall be paid in a single payment or in installments, and shall fix a period of time not in excess of 5 years within which payment of restitution is to be paid in full.” (Emphasis added.) (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 1005—5—6.)

Thus, the restitution provision does not require the court to hold a hearing separate from the sentencing hearing to assess the financial capacity of the defendant to make restitution, but does require the court to determine the manner and time of payment. The defendant’s financial capacity is a required consideration only (1) when determining the manner of payment, and (2) if a petition to revoke restitution is filed. Ill. Rev. Stat., 1988 Supp., ch. 38, pars. 1005—5—6(f),(g); People v. White (1985), 135 Ill. App. 3d 563, 566, 482 N.E.2d 134, 136.

The record reveals that the trial court did consider defendant’s ability to pay restitution, even though it was not required to do so. At trial, defendant’s testimony indicated that he had on hand $20,000 worth in inventory. In the presentence report, defendant stated that he had $25,000 worth in office equipment. At the hearing on defendant’s post-trial motion, the court noted that he had been informed by the probation office that the sheriff took into custody less than $300 worth of defendant’s assets. The court then discussed with counsel the nature of defendant’s assets. It was then revealed that the estimate of $25,000 worth of inventory by the defendant included his automobile, against which there was a loan of $19,000. At sentencing, the trial court entered an order requiring seizure of all of defendant’s assets, including all of his business assets and bank accounts.

That defendant has been ordered to serve a term of imprisonment in no way renders the order of restitution improper. The term of imprisonment is instead a factor to be considered by the trial court for whatever weight the court wishes to give it when assessing the defendant’s ability to pay and in determining the manner and time of payment. White, 135 Ill. App. 3d at 567, 482 N.E.2d at 136.

The restitution order in this case, however, does not provide for the manner of payment or for a time limit in which payment is to be made. Therefore, we remand to the trial court with directions to amend its order of restitution in accordance with the views expressed herein. In all other respects, the convictions and sentences imposed are affirmed.

Affirmed and remanded with directions.

KNECHT, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TIMOTHY DURK, Defendant-Appellant.
    Fourth District
    No. 4—89—0677
    Opinion filed March 8, 1990.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Peter C. Drummond, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In April 1987, defendant pled guilty to one count of forgery (Ill. Rev. Stat. 1985, ch. 38, par. 17—3). In June 1987, he was sentenced to 30 months’ probation. In October 1988, the State filed a petition to revoke defendant’s probation. After finding defendant violated conditions of his probation, the court resentenced defendant to 30 months’ probation. In June 1989, a second petition to revoke probation was filed. The court again found that defendant violated conditions of his probation. In August 1989, the court revoked defendant’s probation and sentenced him to four years’ imprisonment.

On appeal, defendant argues (1) at the second probation revocation hearing, the State’s evidence was insufficient to prove by a preponderance of the evidence that he violated conditions of his probation, and (2) the sentencing order should be amended to give defendant credit for time served on the forgery offense.

In the petition to revoke probation filed in June 1989, the State alleged that defendant violated the terms of his probation by committing the offense of unlawful delivery of a controlled substance, lysergic acid diethylamide (LSD), to confidential informant and convicted felon Lorana Boll. At the hearing on this petition, defendant stipulated to the fact that the substance Boll delivered to State Police Department of Criminal Investigation (DCI) agents was LSD and that the chain of custody was intact. Gerald Kempf, a sergeant with DCI, testified he had previously used Boll as a confidential source for drug buys. She was paid for information and services she provided to DCI. Kempf also testified that Boll was reliable and the information she provided to DCI led to approximately a dozen arrests.

On the date in question, October 31, 1988, Boll informed DCI that defendant was in possession of LSD. Arrangements were then made to make a drug buy from defendant. Before the buy, the police searched Boll for drugs or money but found none. Boll was given $10, and she and Kempf drove to the area of Fourth and Spring in Quincy, Illinois.

Kempf testified that they arrived at the location at 1:44 p.m. He saw Boll enter an apartment building. Around 1:46 p.m., he saw Boll exit the building and return to the car. He never saw defendant. He drove a few blocks, met with a surveillance agent, and turned Boll over to Lee Mangold, an inspector with DCI.

Kempf testified that when they returned to the DCI office, Man-gold produced two “hits” of LSD. Boll was searched again to determine if she was in possession of any drugs or money. Neither was found.

On cross-examination, Kempf testified the “hits” were very small and that he did not see defendant on the date in question. He also testified that normally in a drug investigation, a second buy would be attempted. However, none was attempted here.

Boll testified that on October 31, 1988, she drove to 436 North Fourth Street looking for drugs. She had previously purchased drugs from that location. She knocked on the door of an apartment and defendant answered. She asked defendant if there were any drugs around, and he said he had two “hits” of “acid” (LSD). Boll told him she would be back as soon as she got some money. She then went to the DCI office. Later that day, Boll went back to the apartment, knocked on the door, bought two “hits” of LSD from defendant, and left.

Boll admitted that on October 31, 1988, she was working as a DCI agent and she was on probation. She also stated she was a drug user and worked for DCI to make money. Boll testified that prior to the date in question, she had not purchased drugs from defendant.

Mangold corroborated much of Boll’s testimony. Like Kempf, he believed Boll to be reliable. He stated that he had worked with Boll between 18 and 20 occasions.

Defendant testified he never lived at 436 North Fourth Street. He also denied delivering or selling LSD to Boll. Defendant stated he lived at 2529 Vermont Street in the garage of a residence owned by Dr. Davis.

In a proceeding to revoke probation, the State must prove the allegations of a petition to revoke probation by a preponderance of the evidence (Ill. Rev. Stat. 1987, ch. 38, par. 1005—6—4(c)). On review, a finding to revoke probation will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Matthews (1988), 165 Ill. App. 3d 342, 344, 519 N.E.2d 126, 128.) A finding is against the manifest weight of the evidence only if a contrary result is clearly evident. Matthews, 165 Ill. App. 3d at 344-45, 519 N.E.2d at 128.

In the present case, Boll’s testimony was a direct account of the drug buy. Despite her status as an informant, drug user, and convicted felon, the court could have believed her if it so chose. Her testimony was partially corroborated. In addition, Kempf and Mangold testified that Boll was reliable. The only conflicting evidence was defendant’s own testimony. However, conflicting evidence alone is insufficient to overcome a finding of a violation of probationary conditions. People v. Whitfield (1986), 147 Ill. App. 3d 675, 679, 498 N.E.2d 262, 265.

The trial court is in a far better position than this court to weigh the credibility of the witnesses. We cannot say on this record that the trial court’s finding was contrary to the manifest weight of the evidence.

Defendant also argues on appeal that the sentencing order should be amended to give him credit for all the time he has served in jail on the forgery offense. Defendant is clearly entitled to such credit. See Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—7; People v. Willer (1985), 132 Ill. App. 3d 63, 476 N.E.2d 1385.

In the record before us there are three separate written orders pertaining to defendant’s sentence. The first order is contained in a handwritten document of the trial judge, filed August 29, 1989, in which the defendant is sentenced to the Department of Corrections for a period of four years for the offense of forgery. That document further provides that the defendant shall receive credit for time served since the filing of the petition to revoke probation on June 28, 1989, “as well as any other time spent in the Adams County jail on this offense.” (Emphasis added.) The suggestion, of course, from the trial court’s mentioning “this offense” is that there were other, unrelated charges pending at some point against defendant.

The second document is entitled “JUDGMENT OF SENTENCE” and was filed August 31, 1989, under the seal and signature of the clerk of the circuit court. This document does not bear the signature of the trial court. This document similarly shows defendant sentenced to four years in the Department of Corrections “with credit for time served since filing the pet[.] to revoke on 6/28/89.”

The third document is entitled “ORDER AND JUDGMENT ON SENTENCE” and was filed September 5, 1989. It is signed by the trial judge. That document speaks of the defendant’s sentence of four years to the Department of Corrections and states that he should receive “credit for time served since filing the petition to Revoke Probation on June 28, 1989, as well as any other time spent in the Adams County jail on this offense.”

The issue being raised on appeal concerns 14 days defendant served in March 1987 on periodic imprisonment, allegedly due to this forgery conviction, and some additional time served in 1988 after he was arrested on the first petition to revoke probation and before he posted bond.

This record and these claims demonstrate why sentencing orders should set forth the specific number of days for which the defendant is to be given credit on any sentence to the Department of Corrections, instead of referring to “credit for all time served.” To avoid problems such as have arisen here, the better practice is for the trial court, immediately after pronouncing a sentence to the Department of Corrections, to raise the issue of how much credit the defendant is due for time previously served.

Additionally, the trial court might establish a procedure in which some person or agency, such as the probation office, if a presentence investigation is ordered, or the State’s Attorney’s office, if there is to be no presentence report, would be responsible for ascertaining in the first instance the specific number of days spent in custody by the defendant on the particular offense for which the defendant is entitled to credit under Illinois law. When a presentence report is prepared, that report should routinely contain the dates on which the defendant was in jail on the offense for which he is to be sentenced and a figure representing the total number of such days. When this figure has been presented to the court by such an agency or person, defense, counsel should be asked whether he or she agrees or disagrees with the figure proposed. If there is disagreement, then the court should be able to resolve the matter upon brief fürther inquiry. If there is agreement, then the sentencing order should reflect the specific number of days of credit. If these procedures were implemented, questions on appeal such as those now before us should simply not arise.

This court has previously expressed its concern about sentencing orders that do not specify the number of days for which defendant should be given credit against a sentence of incarceration (Willer, 132 Ill. App. 3d at 66-67, 476 N.E.2d at 1388), and we hope that the guidanee provided in this opinion will abate the need for remandments for further sentencing proceedings. We emphasize that, while the statutes may not be clear as to who is to determine how much credit is due a defendant, Elinois law is clear that it is the trial judge who has the responsibility for the sentencing order.

Because of the uncertainties in the present case regarding credit for time served, we remand with directions to the trial court to conduct a hearing to determine the specific number of days to which the defendant is entitled and to enter an amended sentencing order accordingly.

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

SPITZ and McCULLOUGH, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
    DONALD FITTJE et al., Plaintiffs-Appellants and Cross-Appellees, v. CALHOUN COUNTY MUTUAL COUNTY FIRE INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant.
    Fourth District
    No. 4—89—0585
    Opinion filed March 15, 1990.

      Wiseman, Shaikewitz, McGivern, Wahl, Flavin & Hesi, P.C., of Alton, for appellants.
    Jonathan H. Barnard and Gena J. Awerkamp, both of Schmiedeskamp, Robertson, Neu & Mitchell, of Quincy, for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Plaintiffs appeal the decision of the circuit court of Calhoun County in their suit to compel the defendant insurer to pay their claim for the loss of personal and real property under the contract of insurance. The court found for plaintiff Donald Fittje but against his wife, Judy, because it found she was responsible for the fire. The court made an award to Donald, under the innocent-insured doctrine, of half the couple’s joint losses but made a setoff for the entire amount paid to the deed holders for the real property loss against Donald alone. We affirm the trial court’s decision but hold the setoff cannot be applied to the sums awarded Donald Fittje for the loss of personal property and living expenses.

In June 1985, plaintiffs Donald and Judy Fittje entered into a contract for deed to purchase a house and approximately 90 acres from James and Mildred Taviner. The plaintiffs then purchased an insuranee contract from the defendant, Calhoun County Mutual County Fire Insurance Company. The policy provided $65,000 coverage to the dwelling, $32,500 for personal property, and $13,000 for living expenses in case of damage to the residence. The Taviners were covered to the extent of their interest by a standard mortgage clause attached to the policy.

On February 13, 1986, the house was severely damaged by fire. The- defendant investigated the fire and, on the basis of its findings, denied coverage to the plaintiffs.

The plaintiffs filed their complaint on June 12, 1986. They sought enforcement of the coverage under the contract and attorney fees and penalties under section 155 of the Illinois Insurance Code (Code) (Ill. Rev. Stat. 1985, ch. 73, par. 767). The defendant raised the defense of false swearing. The defendant then filed a counterclaim against the plaintiffs in the amount of $56,930. This sum represented the amount defendant had paid to the Taviners for the damage to the house.

At trial, Karl- Swan, a friend of the Fittje family, was called and testified he was present in the home on the morning of the fire.. He did not notice the smell of smoke or kerosene during his stay. Swan had been asked to the house to look at the family’s water pump, which was not operating properly. He determined a bearing needed to be replaced. He left the home first, followed by Dawn Fittje, the plaintiffs’ daughter, and then Judy. Judy locked the door and followed Swan as he drove away. Dawn also testified she did not notice any smoke or unusual odors that day.

Judy testified to the events described by Swan. She stated she locked the door as she left. She learned of the fire while at a nearby business approximately one-half hour later. She denied any knowledge of the cause of the fire. Donald testified he was at work in Missouri at the time of the fire and had no personal knowledge of its cause.

Terry Duncan, an investigator for the defendant, testified the fire had been burning about 20 to 25 minutes by the time the fire department arrived. His investigation revealed two distinct fires, and a fire caused by natural means would not have burned through the roof as quickly as the one here did. He maintained the burn patterns on the floor were consistent with the use of a flammable liquid. There was no apparent cause of the fire in any of the appliances. He concluded the fire was incendiary in nature.

The deposition of Jimmy Pau, an analytical chemist, was entered into evidence. He analyzed several samples taken from the fire scene by Duncan and found the presence of fuel oil in several of them, indicating a petroleum-based accelerant had been used to start the fire.

James Scott, a fire investigator for the State Fire Marshal’s office, also testified as to his investigation of the fire. He stated the origin of the fire in the utility room was of an undetermined cause. He also stated he found items in the house which an arsonist would generally remove, e.g., photographs, memorabilia, etc.

The court entered its written opinion on May 31, 1989. The court found for the defendant in regard to the claim by Judy, but found Donald was an innocent insured for purposes of the contract and entered judgment for him in the amount of half the total coverage, or $50,992.33. However, the court then awarded a setoff of $56,930 to the defendant for the amount paid to cover the loss of the Taviners. It also awarded defendants $5,937.67 and costs against Judy.

In this case, the defendant raised the defense of false swearing, i.e., the sworn proof of loss submitted by the plaintiffs, which stated they had no knowledge of the origin of the fire, was false. The defendant accomplished this by showing the fire was intentionally set and establishing circumstantial evidence which strongly suggested plaintiff Judy Fittje was the one who set it. Motive, opportunity and the identity of the person starting the fire may be established by circumstantial evidence. Moore v. Farmers Insurance Exchange (1982), 111 Ill. App. 3d 401, 444 N.E.2d 220.

When a crime such as arson is an issue in a civil case, it need only be established by a preponderance of the evidence, rather than by proof beyond a reasonable doubt. The question before the reviewing court then becomes whether it was against the manifest weight of the evidence for the jury to find the preponderance of the evidence showed the plaintiff was guilty of misconduct in the origin of the fire. Moore, 111 Ill. App. 3d 401, 444 N.E.2d 220.

Here, the trial court found the evidence pointed to the conclusion Judy had set the fire. The plaintiffs contend Judy had neither opportunity nor motive to set the fire. As to opportunity, plaintiffs argue the evidence shows the last three people to leave the home left one after the other, and there would have been no time for Judy to have set the fire. However, the evidence clearly showed Judy was the last to exit the house and she locked the door behind her. The evidence showed the fire was started with a petroleum product on the floor of the family and laundry rooms. Nothing in the evidence suggested it would have taken more than few seconds to accomplish this task or ruled out the possibility the fire could have started as defendant contends.

As to motive, the plaintiffs contend they had been discharged in bankruptcy and were behind only in one loan payment on a vehicle at the time of the fire. However, the evidence showed the plaintiffs had taken on substantial financial obligations after the bankruptcy and had attempted unsuccessfully to sell their home or to arrange repurchase by the original seller. The plaintiffs continued to experience financial difficulties, and their attempts to sell their home indicated their first thought in attempting to resolve their economic dilemma focused on their home.

The use of circumstantial evidence is not limited to those situations where the circumstances support only one logical conclusion. Circumstantial evidence need not exclude all other inferences but must only be of such character that the inference drawn is reasonable. (Pace v. McClow (1983), 119 Ill. App. 3d 419, 458 N.E.2d 4.) Only when there is a complete absence of probative facts with which to support the conclusion based on the circumstantial evidence does reversible error occur. (Sandburg-Schiller v. Rosello (1983), 119 Ill. App. 3d 318, 456 N.E.2d 192.) While the circumstances here do admit of other explanations, a reasonable inference was drawn based on the facts in evidence. We find the trial court’s decision was not against the manifest weight of the evidence.

The trial court found the plaintiff Donald Fittje was an innocent insured with no responsibility for the origin of the fire. As a result, it gave judgment for him in the amount of $50,992, which represented half the coverage due under the policy. It then made a setoff of $56,930 to cover the amount paid to the Taviners under the insurance contract.

The plaintiffs contend the trial court erred and the appropriate setoff is $28,465. This represents half the property coverage under the insurance contract. We do not agree. The contract for deed is a joint obligation of the plaintiffs, and the trial court properly ordered a setoff for the amount paid to the third-party owners of the property. As both plaintiffs are jointly liable, the entire amount may be setoff against one party only. However, though this satisfactorily answers the question raised by plaintiffs on appeal, it does not dispose of the issue entirely.

Plaintiffs have relied on Watson v. State Farm Fire & Casualty Co. (1984), 122 Ill. App. 3d 559, 461 N.E.2d 57. The court’s holding there was when two insureds have a joint interest in the insured property and file separate claims, the liabilities attached to that property must be divided equally between the parties even where one party is an innocent insured and the other may be responsible for the loss. The court also held any payments made in excess of the actual liability should be recovered from the party at fault.

Watson is only persuasive given these facts. The question presented here is whether the trial court may attempt to make the insurance company whole for the compensation paid by using the setoff to take money due to the innocent insured for personal property losses and living expenses to compensate the insurer for sums paid for the insured real property. The holding in Watson, while suggesting the innocent party should not be forced to bear responsibility for the loss, is that any joint liability must be divided between the parties. The trial court’s finding for each of the parties was correct, and the setoff, as applied, had the effect of denying any coverage to Donald.

Where the husband was innocent of any wrongdoing in connection with the fire at his home, the arson of his wife could not be imputed to him so as to bar his recovery of half the insurance proceeds under the policy. (Economy Fire & Casualty Co. v. Warren (1979), 71 Ill. App. 3d 625, 390 N.E.2d 361.) An insurance policy is not an insurance of the specific thing without regard to the ownership, but is a specific agreement of indemnity with the person insuring against such loss or damage as he may sustain. Patterson v. Durand Farmers Mutual Fire Insurance Co. (1940), 303 Ill. App. 128, 24 N.E.2d 740.

In this case, the innocent insured was covered not only for the loss of his real property, but also for his personal property and living expenses. The plaintiff husband here clearly incurred such a loss and, under Warren, is entitled to the coverage in spite of the wrongdoing of his wife. For this reason, the setoff ordered by the trial court may only be applied to the portion of Donald’s award which represented the loss of real property. In the insurance contract, coverage for real property, personal property, and living expenses are separate line items. While a single premium was charged for all the coverage under the contract, defendant’s counsel represented to us that this premium necessarily includes proportional charges for coverage of personal property and living expenses. As it stands now, the insurer escapes all liability for any loss of personal property or living expenses incurred by the innocent insured. Such a result abrogates the innocent-insured doctrine and permits the insurer to escape a portion of its contractual obligation. We cannot permit such a result to stand. For this reason, the setoff will not be applied against that portion of the award made to Donald Fittje representing his loss of personal property and living expenses.

The defendant suggests such a holding is inequitable when the wife would be permitted to recover for her wrongdoing via her husband. The application of the innocent-insured rule does not provide a windfall or temptation for the unscrupulous. The recovery is limited to the innocent partner, which in this case means the couple will recover only a small portion of their actual losses. We recognize the contract for deed was a joint obligation of the plaintiffs. The setoff is not to indemnify the insurer for sums paid on behalf of the plaintiffs, but to prevent a multiple recovery by different parties for a single loss.

The plaintiffs also claim the trial court improperly denied them attorney fees and penalties authorized by section 155 of the Code. (Ill. Rev. Stat. 1985, ch. 73, par. 767.) The court must consider the totality of circumstance in determining cases involving allegations of unreasonable delays in handling insurance claims. (Fisher v. Fidelity & Deposit Co. of Maryland (1984), 125 Ill. App. 3d 632, 466 N.E.2d 332.) The allowance of fees and penalties under section 155 is within the sound discretion of the trial court, .and its determination will not be disturbed on review absent an abuse of discretion. (Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 536 N.E.2d 194.) Here, given the substantial evidence of arson, the trial court did not abuse its discretion in refusing fees and penalties against an insurer who refused to pay what turned out to be a questionable claim.

The defendant, on cross-appeal, maintains the court’s finding Donald Fittje was an innocent insured was against the manifest weight of the evidence. The defendant did not introduce any evidence of Donald’s involvement in the fire or that he had any knowledge of its origins before or after. Neither did defendant introduce any evidence he had any knowledge of his wife’s unusual behavior after the fire which would lead him to suspect her involvement. The defendant had the burden of showing the affirmative defense of false swearing. While the trial court could have inferred such knowledge, it was not required to do so. Accordingly, the trial court’s finding was properly made.

The decision of the trial court is affirmed in all respects save the application of the setoff to the award to Donald Fittje. That award now effectively becomes $22,527.33.

Affirmed in part and modified; reversed in part.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF DIANA LYNN STEEL, Petitioner-Appellee, and MARTIN LYNN STEEL, Respondent-Appellant.
    Fourth District
    No. 4—89—0712
    Opinion filed March 22, 1990.

      Timothy D. Sturm, of Law Office of Timothy D. Sturm, of Springfield, for appellant.
    Eldon H. Becker, of Knuppel, Grosboll, Becker & Tice, of Petersburg, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 20, 1988, the circuit court of Mason County entered a decree dissolving the marriage of petitioner Diana Lynn Steel and respondent Martin Lynn Steel. The decree included an approved agreement, a portion of which stated:

“That at the present time the [petitioner] is living in a house owned by [respondent’s] parents, and [respondent] agrees to pay the rent, the sum of $50.00 per month, on said home until such time as [petitioner] remarries, lives with a person of the opposite sex or the youngest child reaches the age of eighteen (18), which ever comes first.”

On July 19, 1989, petitioner requested the court to modify the decree to require respondent to continue the $50-per-month payments even if she moved. She alleged respondent’s parents had raised the rent from $50 per month, the amount required at the time of the dissolution decree, to $250 per month, and the amount of the increased rent would force her to move from the home. By an order entered August 18, 1989, the court approved an agreement made between the parties, namely that: “[respondent] is to continue paying Fifty Dollars ($50.00) a month to the [petitioner] to apply on her rent until such time as the [petitioner] remarries, lives with a person of the opposite sex or the youngest child reaches the age of eighteen (18), whichever occurs first, which shall be considered maintenance.” That order made no reference to any requirement that petitioner continue to live in the house owned by respondent’s parents.

On appeal, respondent maintains the court erred in entering the agreed order because (1) the court should have allowed his motion to dismiss petitioner’s petition to modify; (2) he was coerced into the agreement; and (3) the modification concerned a provision of a property settlement waiving maintenance, which the court could not properly do even by agreement.

We deal summarily with respondent’s contention of error in the denial of the motion to dismiss petitioner’s petition to modify the decree. He contends mainly that she did not allege a change in circumstances. However, she did allege respondent’s parents had raised her rent substantially. Moreover, our ruling on the other issues subsumes this issue. If the order on appeal is a valid consent decree, error in ruling on the motion to dismiss is waived because the parties are precluded by a valid matrimonial consent decree. Guyton v. Guyton (1959), 17 Ill. 2d 439, 161 N.E.2d 832.

The issue of coercion arises from-a statement of the court made on August 8, 1989, after it pronounced its order denying respondent’s motion to dismiss the petition to modify. The court then stated to the parties:

“I can tell the parties what is going to happen in this Petition to Modify. If the rent was raised by [respondent’s] parents, which they obviously have the right. It is their property, they can raise it any time they wish. But no doubt in my mind if in fact that was raised when the rent had been fifty dollars for all of these years that the purpose of raising that rent is simply to frustrate the agreement between the parties hereto. I clearly think that if that is what happened Mr. Becker’s client [the petitioner] may very well be entitled to expect the reasonable value of similar housing from your client [the respondent]. I will note the Petition to Modify is to require your client [the respondent] to pay fifty dollars per month on whatever rent that may be. Now, if, in fact, the [petitioner] did move out and it was not because of rent, then the result may be different. If that is what the evidence will show, I will guarantee you the Petition to Modify will be granted. Now with that in mind if you wish to proceed we can do so. If you want to talk, I will take a five minute recess.”

After hearing the court’s statement, the parties conferred and agreed to the August 18,1989,. order now on appeal.

In support of respondent’s position that we should disregard his agreement to the entry of the August 18, 1989, order, he cites only In re Marriage of Lipkin (1987), 163 Ill. App. 3d 1033, 517 N.E.2d 41, and In re Marriage of Pearson (1981), 101 Ill. App. 3d 422, 428 N.E.2d 578. Dictum in those cases accurately sets forth the well-accepted rule that agreements to settle matters in matrimonial proceedings will not be upheld if procured by fraud or coercion. No cases are cited which hold that a statement by the court similar to that here constitutes coercion, and no such cases have been called to our attention.

We do not deem a statement made by the court to the parties during the course of the proceedings explaining how the court views matters to constitute coercion. In many ways, the statements of the court concerning its rulings in the course of proceedings give the parties information as to how the court views the issues and how the court would be likely to rule under certain contingencies. Unlike in James v. James (1958), 14 Ill. 2d 295, 152 N.E.2d 582, where a consent decree was set aside for fraud .and coercion, no concealment of the assets of the parties occurred, and the court did not make a misstatement of the law.

We come now to the heart of this case. Respondent maintains the August 18, 1989, order on appeal constituted either an improper modification of the property settlement of the original decree of dissolution or an improper modification of the portion of that decree in which maintenance was waived by the petitioner.

Respondent first maintains the provision for the $50-per-month payment was property settlement because it could not have been maintenance. He relies upon the fact that item 12 of the parties’ agreed property settlement incorporated in the decree of dissolution provided that maintenance was waived “except as herein before set forth.” In a prior portion of the agreement, the parties had agreed that respondent would discharge certain bills of the parties with “the same to be construed as and for alimony or maintenance.” While the provision for the $50 payment was also approved earlier in the agreement, the statement that assumption of the bills by respondent was “as and for *** maintenance” does give some indication the $50 provision was not to be considered to be maintenance. However, we affirm in any event.

Citing In re Marriage of Lowe (1981), 101 Ill. App. 3d 317, 427 N.E.2d 1367, respondent maintains the court could not properly modify the property settlement provisions of the decree. Citing Faris v. Faris (1986), 142 Ill. App. 3d 987, 492 N.E.2d 645, he also contends that, if the modification concerned a provision waiving maintenance, it was also not subject to modification. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides in part that “[t]he provisions [of a decree of dissolution] as to property division may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this State.” (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) The cases cited by respondent and other cases containing similar holdings concern situations where the modifications were made over the objection of the party opposing the modification. No case has been called to our attention which, as here, concerns an agreed modification of a decree of dissolution.

Respondent asserts the language of the Act and the holdings in the cited cases express a public policy which would be violated if agreed modifications of the nature here were permitted. However, a public policy favoring stipulation between litigants when not arising from fraud and when not immoral has been stated as being generally applicable in Catholic Bishop v. Village of Justice (1980), 84 Ill. App. 3d 827, 832, 405 N.E.2d 1150, 1153, and in marital proceedings in Guyton and Kazubowski v. Kazubowski (1968), 93 Ill. App. 2d 126, 235 N.E.2d 664. Section 502(a) of the Act also contains language favoring settlement between the parties in regard to property, support, maintenance, and custody. Ill. Rev. Stat. 1987, ch. 40, par. 502(a).

Section 502(f) of the Act gives parties the power to specifically “preclude or limit modification of terms” of a decree except as to “support, custody or visitation of children.” (Ill. Rev. Stat. 1987, ch. 40, par. 502(f).) Commentary to that statutory provision states that a purpose of permitting this limitation on modification is to eliminate “ ‘uncertainties based on the fear of subsequent motions to increase or decrease the obligations of the parties.’ Uniform Marriage and Divorce Act (9A U.L.A.) §306, Commissioners’ Note at 138.” (Ill. Ann. Stat., ch. 40, par. 502(f), Historical & Practice Notes, at 403 (Smith-Hurd 1980).) Such a purpose does not require a prohibition against modification arising from agreement. We conclude that permitting the modification of the instant decree of dissolution would be fully consistent with the public policy of the State.

As the August 18, 1989, order on appeal was an agreed order, not contrary to public policy and not shown to have resulted from fraud or coercion, respondent can challenge it on appeal only if the circuit court lacked jurisdiction to enter it. (Guyton, 17 Ill. 2d 439, 161 N.E.2d 832.) The supreme court has indicated the circuit court’s jurisdiction in matrimonial matters is not necessarily limited by statutory provisions. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 294-95, 483 N.E.2d 1229, 1232-33.) More closely on point here is In re Custody of Sexton (1981), 84 Ill. 2d 312, 418 N.E.2d 729. There, a father sought a change-of-custody order in a dissolution proceeding less than two years after custody had been awarded to his wife. He failed to follow the requirements of then section 610(a) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 610(a)), which conditioned seeking such relief upon (1) filing an affidavit of danger to the child, and (2) obtaining court approval to proceed. The supreme court held that those requirements, although mandatory, were not jurisdictional. Accordingly, the error was held to have been waived when the issue was not raised in the trial court.

Here, at times pertinent to this case, the statutory provision limiting modifications of property dispositions (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)) arose from Public Act 85—2 (Pub. Act 85—2, eff. May 1, 1987; 1987 Ill. Laws 1). After that enactment, Public Act 85—1001 (Pub. Act 85—1001, eff. July 1, 1988; 1987 Ill. Laws 4707) was enacted, also covering section 510(a) of the Act. It made no reference to any limitation upon modifications of property disposition. As both acts were enacted by the same General Assembly, we construe those acts together to give full effect to each and treat the provision limiting modification of property dispositions to still be in effect. (Ill. Rev. Stat. 1987, ch. 1, par. 1105.) However, we do not interpret the restriction to have deprived the court of jurisdiction to enter the order on appeal.

The limitations on modification of property dispositions contained in section 510(a) are just as much a detail of the Act as were the affidavit and court-approval provisions in Sexton. Moreover, the provision permitting modification when certain types of relief are requested tends to negate giving jurisdictional significance to the limitation, as that provision would then make jurisdiction dependent upon the existence of a cause of action. Furthermore, the public policy of encouraging parties to marital disputes to settle their disputes by agreement, when the best interests of children are not damaged, would not be served by a policy depriving the court of jurisdiction to approve a modification of a property settlement reached by agreement and incorporated in a consent decree. We hold the court had jurisdiction to enter the appealed order even if it was the modification of a property disposition.

We also note the circuit court has a continuing jurisdiction to interpret matrimonial decrees during the course of their operation, (Halper v. Halper (1978), 57 Ill. App. 3d 588, 373 N.E.2d 598.) The order of August 18, 1989, indicates the court interpreted the original provision for the $50 payment as one involving maintenance, and the respondent consented to such an interpretation. The court then modified the maintenance provision. Even if the court would have been in error in so doing, that action was not contrary to any provision of the Act, and, thus, no jurisdictional question would arise. While the Act indicates a public policy of protecting the parties from repeated contest in regard to changes in maintenance, clearly no public policy is violated by permitting them to modify maintenance provisions by agreement.

For the reasons stated, the judgment of the circuit court of Mason County is affirmed.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE SPITZ

text:
    LAURA L. JILES, Plaintiff-Appellee, v. DANNY SPRATT, Defendant-Appellant.
    Fourth District
    No. 4—89—0514
    Opinion filed March 22, 1990.

      Alan L. Sternberg, of Pratt & Sternberg, P.C., of Bloomington, for appellant.
    Robert J. Lenz, of Bloomington, for appellee.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant appeals an award of medical expenses, attorney fees, and child support payments. Plaintiff filed a paternity action against defendant on October 14, 1987. On August 12, 1988, blood tests confirmed that defendant was the father of the child. The parties subsequently stipulated to paternity and entered into an agreed order of parentage and agreed temporary support in which defendant was to pay plaintiff $57 per week.

A bench trial was held on March 1, 1989, at which evidence concerning the parties’ financial situations was presented. Although both parties agreed that $57 per week was an appropriate amount of child support, the court ordered defendant to pay $186 every paycheck (twice monthly) in child support. The court also awarded plaintiff $5,975 for medical expenses incurred during pregnancy, even though plaintiff suffered only approximately $500 in out-of-pocket expense. Insurance paid nearly all the $14,250 in medical expenses, and plaintiff’s stepfather paid the premiums for the insurance. The amount awarded for medical expenses was half the total expense incurred by plaintiff, less a credit of $1,150 for payments defendant made to plaintiff. The court also awarded plaintiff costs and reasonable attorney fees, reserving the matter of attorney fees pending additional testimony.

A hearing on attorney fees and defendant’s motion to reconsider was held on May 23, 1989. The motion to reconsider argued that the court erred in awarding plaintiff medical expenses because defendant’s insurance company had already paid the bills, and no evidence of any subrogation rights was presented. The court denied defendant’s motion, stating that the collateral-source rule applied to the payment of insurance proceeds. The court also awarded plaintiff $1,929.76 in attorney fees.

On appeal, defendant argues that the trial court erred in: (1) awarding plaintiff medical expenses; (2) awarding plaintiff attorney fees; and (3) setting the amount of child support. We agree that the trial court erred in awarding plaintiff medical expenses, but affirm the court’s decision awarding attorney fees and setting the amount of child support.

We first consider defendant’s argument concerning medical expenses. The Illinois Parentage Act of 1984 (Act) provides that a judgment or order may direct the father involved in a paternity action to pay the reasonable expenses of the mother’s pregnancy and delivery. (Ill. Rev. Stat. 1987, ch. 40, par. 2514(a).) The trial court awarded plaintiff $5,975 even though plaintiff’s insurance company had already paid the bill. The court used the collateral-source rule to justify the award.

The collateral-source rule states that benefits received by an injured party from a source wholly independent of, and collateral to, the tortfeasor will not diminish damages otherwise recoverable from the tortfeasor. (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 546 N.E.2d 524.) This rule has its origins and has traditionally been applied in tort law. (See Cox v. City of Chicago (1898), 83 Ill. App. 540; Bernier v. Burris (1986), 113 Ill. 2d 219, 497 N.E.2d 763.) However, the rule has also been applied in contract law (American Fidelity Fire Insurance Co. v. General Ry. Signal Co. (1989), 184 Ill. App. 3d 601, 540 N.E.2d 557 (breach of contract claim)) and in criminal law (People v. Abraham (1980), 89 Ill. App. 3d 786, 412 N.E.2d 45 (involving restitution)). The rationale for the collateral-source rule is that a wrongdoer should not benefit from expenditures made by the injured party, or take advantage of contracts or other relations which exist between the injured party and third persons. (Wilson, 131 Ill. 2d 308, 546 N.E.2d 524.) Although injured parties may receive a windfall from the collateral-source rule, it is usually considered more just for an injured party to receive the windfall than a wrongdoer to be relieved of full resposibility for his wrongdoing. 22 Am. Jur. 2d Damages §566 (1988).

In Illinois, the collateral-source rule has been applied only where there has been a wrongdoer and an injured party. The rule, thus, applies in tort as well as criminal cases (in criminal cases, the collateral source rule has been used to affirm the amount of restitution a criminal must pay his victim. (Abraham, 89 Ill. App. 3d 786, 412 N.E.2d 45.) In contract law, the collateral-source rule will apply only where there has been an element of fraud, tort, or wilfulness (in breaching a contract). American Fidelity, 184 Ill. App. 3d 601, 540 N.E.2d 557.

At issue in the present case is whether the collateral-source rule applies to medical expenses paid by insurance in paternity cases. While Illinois has not decided the issue, the two States that have, Ohio and Missouri, both agree that the collateral-source rule does not apply in paternity cases. The Ohio Appellate Court considered the issue in Edwards v. Sadusky (1982), 4 Ohio App. 3d 297, 448 N.E.2d 506. The Edwards court held that because Ohio’s paternity statute modified common law, it should not be enlarged by implication beyond the words actually used. There was no reference to the collateral-source rule in Ohio’s paternity statute, and as such, the rule would not apply to paternity cases. Furthermore, Ohio’s paternity statute did not intend to give a mother a windfall award for having an illegitimate child.

The Missouri court of appeals in Parker v. Bruner (Mo. App. 1985), 692 S.W.2d 379, has also held that the collateral-source rule does not apply in paternity cases. The Parker court stated that the collateral-source rule applied in tort and breach of contract claims. Since the action before the court was not an action for seduction (tort), a claim for breach of contract, or a claim for subrogation, the collateral-source rule would not apply.

Defendant argues that he is not a tortfeaser or wrongdoer, and that the conception of the child in the instant case was not the result of wrongful conduct by either party. Defendant further argues that while the collateral-source rule contains an element of punishment, section 14 of the Act contains no directive to punish the father. (Ill. Rev. Stat. 1987, ch. 40, par. 2514.) Instead, the Act makes an award of medical bills discretionary. Thus, defendant argues, the collateral-source rule should not apply to the payments made by plaintiff’s insurance company.

We agree with defendant. The collateral-source rule has been applied in Illinois only where there has been a wrongdoer and an injured third party. As defendant argues, he was neither a tortfeasor nor wrongdoer. Moreover, as in Parker, plaintiff brought a paternity action, not a tort claim, against defendant, and there was no evidence that plaintiff’s insurance company had the right of subrogation. We further note that, as the statute in Edwards, the Act makes no reference to the collateral-source rule. As such, we will not read the collateral-source rule into the Act, for it is not the the province of the courts to inject provisions not found in a statute. (Ryan v. Landek (1987), 159 Ill. App. 3d 10, 512 N.E.2d 1.) We thus hold that the collateral-source rule does not apply in paternity cases where an insurance company has paid the mother’s medical expenses.

Plaintiff argues, however, that a reviewing court is not bounti to accept the reasons the trial court gave in support of its judgment and that the judgment may be sustained upon any ground that is warranted, regardless of whether the trial court relied upon it or whether the reason the court gave was correct. (In re Petition of Sullivan (1985), 134 Ill. App. 3d 455, 480 N.E.2d 1283.) We find no grounds upon which to base an award of medical expenses where plaintiff’s insurance company paid the expenses, and plaintiff’s stepfather paid the premiums. Although plaintiff paid approximately $500 in out-of-pocket expense, defendant has already paid plaintiff $1,150 for medical expenses. Accordingly, the judgment for medical expenses is reversed.

Defendant’s second contention is that the trial court erred in awarding plaintiff attorney fees. Defendant believes that the trial court erred in three ways: (1) the trial court believed the awarding of attorney fees was mandatory when plaintiff prevailed; (2) the court awarded attorney fees without hearing evidence concerning the matter; and (3) the evidence presented failed to show the inability of plaintiff to pay, or the ability of defendant to pay.

Defendant first asserts that the court erred because it believed the awarding of attorney fees was mandatory when plaintiff prevailed. The primary responsibility for the payment of attorney fees is on the party incurring them. (In re Marriage of Meyer (1986), 140 Ill. App. 3d 1031, 489 N.E.2d 906.) However, section 17 of the Act allows the award of attorney fees in paternity suits pursuant to the provisions of section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 508), which provides: “The court *** may order either spouse to pay a reasonable amount for his own costs and attorney’s fees.” (Emphasis added.) The awarding of attorney fees is discretionary. Ivanyi v. Granoff (1988), 171 Ill. App. 3d 411, 526 N.E.2d 189.

At the fee hearing on May 23, 1989, the court stated, “She [plaintiff] has been able to prevail in this case, and having prevailed, she is now entitled under the statute to the expenses of litigation and, to attorney fees.” Defendant interprets the trial judge’s statement to mean that he thought the awarding of attorney fees was mandatory. The trial judge’s comments, however, need not be interpreted as defendant argues. We interpret the court’s statement to mean that the trial judge, in his discretion, determined that plaintiff was entitled to attorney fees after she prevailed in the instant case. There was no error.

Defendant next argues that the court erred when it awarded plaintiff attorney fees at the bench trial, March 1, 1989, without hearing evidence on the matter. At the bench trial, the court stated: “I am going to enter a judgment in favor of the plaintiff and against the defendant in the sum of $5,975 plus costs plus reasonable attorney fees, and the Court will reserve that matter pending the taking of additional testimony.” Defendant argues that for a court to award attorney fees, there must be a showing that the party receiving the award has an inability to pay, and that the party paying the award has the ability to pay. (In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 522 N.E.2d 317.) Defendant argues there was no such showing at trial before the court awarded the fees.

In awarding attorney fees, factors such as the relative financial abilities of the parties, the nature of the controversy, and the skill of the attorney become evident during the proceedings, and no independent proofs need be made concerning such factors. However, factors such as the amount of time and labor involved in a case require independent proof. (Ackerman, 168 Ill. App. 3d at 443-44, 522 N.E.2d at 321.) During the bench trial, the court received extensive evidence concerning both parties’ relative income and living expenses. Defendant filed a sworn affidavit of his income and expenses. Plaintiff testified about her salary during pregnancy and at the time of the hearing, her monthly rent, insurance expense, and babysitting fees. The court awarded plaintiff attorney fees after hearing this evidence, but reserved the amount until a hearing on attorney fees could be held. A separate hearing on attorney fees was held on May 23, 1989, during which evidence was presented concerning the amount of time and labor plaintiff’s attorney put into the case. After hearing the evidence, the court awarded plaintiff $1,929.76 in attorney fees. There was no error in the court’s procedure.

Defendant finally argues that the evidence presented failed to show plaintiff’s inability or defendant’s ability to pay attorney fees. Defendant argues that an affidavit filed with the court shows his net income per month to be $2,396.14 and monthly expenses to be $2,318.75. Thus, defendant argues, it is obvious that he is financially unable to pay plaintiff’s attorney fees.

The awarding of attorney fees under the Illinois Marriage and Dissolution of Marriage Act is within the discretion of the trial court and will not be reversed absent a clear abuse of such discretion. (Ivanyi, 171 Ill. App. 3d 411, 526 N.E.2d 189.) If defendant is financially unable to pay the attorney fees, appropriate adjustments may be made. The trial court did not abuse its discretion.

Defendant’s final contention is that the trial court erred in setting the amount of child support above the amount agreed to in the preliminary support agreement. Defendant claims there was no evidence at trial to show the amount previously agreed to was inadequate. Furthermore, both counsel agreed at trial that the figure was adequate.

Section 14(a) of the Act states that the court shall use the guidelines and standards set forth in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act to determine the amount of a child support award. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a).) These standards and guidelines apply to paternity cases. (People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 529 N.E.2d 542.) Section 505 requires a parent to pay a minimum of 20% of his or her net income as defined in section 505 for the support of one child. The trial court found 20% of defendant’s income to be $186 twice monthly. A trial court may not deviate from the statutory minimum unless it finds reason to, and if so, the court must enter express findings upon which such deviation rests. (Sheppard, 124 Ill. 2d 265, 529 N.E.2d 542.) No such findings were made by the trial court. Therefore, the trial court committed no error.

Affirmed in part; reversed in part.

KNECHT, P.J., and GREEN, J., concur.