author: PRESIDING JUSTICE STEIGMANN JUSTICE McCULLOUGH,

text:
      In re MARRIAGE OF SLOAN C. HARLOW, Petitioner-Appellee, and CAROL HARLOW, Respondent-Appellant.
    Fourth District
    No. 4—92—0795
    Argued August 18, 1993. —
    Opinion filed September 30, 1993.

      McCULLOUGH, J., dissenting.
    Christopher Koester (argued) and Stephen R. Ryan, both of Ryan, Bennett & Radloff, of Mattoon, for appellant.
    Paul L. Stone (argued), of Stone & Stone, of Sullivan, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In February 1991, the trial court entered a judgment dissolving the marriage of petitioner, Sloan Harlow, and respondent, Carol Harlow. In its judgment of dissolution, the court ordered Sloan to pay Carol $500 per month in maintenance until May 1992, at which time the maintenance payments would terminate unless either party sought review of the matter prior to June 1, 1992. In May 1992, Carol brought a petition seeking to have the maintenance extended. After a hearing, the court continued the monthly maintenance payments of $500 through August 1992, at which time it held another hearing on the matter. After the August 1992 hearing, the court ordered Sloan to continue to make the monthly payments through August 1993. However, the court reduced the payments to $300 and ordered that maintenance would terminate at the end of August 1993.

Carol appeals that order, alleging that she is entitled to an award of permanent maintenance or, in the alternative, to continued temporary maintenance payments of $500 per month subject to further review after five years. We find that the trial court erred by extending Carol’s maintenance for only one year at the reduced amount of $300 per month and thereafter terminating her maintenance. We therefore reverse and remand this case for reconsideration of the duration and amount of the maintenance payments.

I. Background

On February 4, 1991, the trial court entered a judgment dissolving the 32-year marriage of Sloan and Carol. Carol was then 50 years of age and Sloan was 51 years of age. During their marriage, they had three children: Shane, bom in April 1962, Kenneth, bom in June 1964, and Michael, bom in January 1972. During the course of their marriage, Carol had primary responsibility for raising the children and all the domestic chores around the house. This included cleaning the house, cooking, washing dishes, laundry, shopping, and taking care of the children.

When Carol and Sloan moved to central Illinois from Ohio in 1967, Carol obtained a job as a factory worker. She remained in that position for approximately 11 years, when she quit to stay at home with Michael. He had behavioral problems in school and with baby-sitters. He also had a learning disability.

In August 1988, Carol moved with Michael to Massachusetts and lived with Shane. She enrolled Michael in a special school there. She had hoped that he would complete his schooling there and learn a trade. However, Michael quit school and entered the Job Corps. While living in Massachusetts, Carol worked as an assembly line worker, earning approximately $13,000 per year.

In February 1989, Sloan filed a petition for dissolution of his marriage with Carol. In April 1989, Carol returned to Illinois from Massachusetts and in June 1989, underwent surgery. In August 1989, after she recovered from her surgery, she obtained part-time employment as a salesclerk with Wal Mart. She worked there approximately 20 to 25 hours per week at a salary of $4.10 per hour. In August 1989, she also enrolled in Lakeland Community College to obtain an associates degree in business. Additionally, she worked in a work study program while she went to school, earning approximately $150 per month.

During their marriage, Sloan held various jobs until April 1979, when he obtained employment with the Illinois Power Company (Illinois Power). Since then Sloan had been continuously employed with Illinois Power, working full-time as a lineman. In February 1991, at the time of the dissolution of their marriage, his salary was $18.41 per hour. His gross income for years 1985 through 1990 was as follows:

1985 $33,882

1986 34,337

1987 36,677

1988 33,555

1989 38,485

1990 43,583.

Sloan testified that his 1990 wages were high because of “excessive” overtime.

In the trial court’s judgment of dissolution it ordered that the marital property be split in the following manner. Carol received (1) the 1988 Ford Escort, subject to all outstanding debt; (2) a whole life insurance policy with State Farm Insurance Company; (3) an annuity with State Farm Insurance Company; (4) 60% of the net proceeds (approximately $8,875) from the sale of the marital residence, with 60% of the accrued interest; and (5) 50% of the balance in Sloan’s retirement account with Illinois Power (approximately $3,500). Sloan received (1) the 1987 Ford truck, subject to all outstanding debt; (2) the mobile home where he resided, subject to any debt; (3) the proceeds from an annuity with Metropolitan Life Insurance Company that had been cashed ($2,750); (4) the proceeds from Illinois Power stock that had been sold (approximately $550); (5) the balance remaining in a credit union account; (6) sale proceeds from a camper they owned during their marriage ($200); (7) 40% of the net proceeds (approximately $5,900) from the sale of the marital residence, with 40% of the accrued interest; and (8) 50% of balance in his retirement account with Illinois Power.

As stated earlier, the trial court also ordered Sloan to pay Carol $500 per month in maintenance through May 1992, at which time the matter was subject to review upon petition by either party. The court further ordered that if neither party filed a petition by June 1, 1992, maintenance would terminate.

On May 5, 1992, Carol filed a petition for review of the maintenance payments, requesting that the trial court “extend the maintenance payments due and payable by [Sloan] to [Carol].” The trial court held a hearing on May 22, 1992, and heard the following additional evidence. Carol had recently completed her associate degree of applied science in management at Lakeland College. She still held her part-time job with Wal Mart, earning a gross income of approximately $108 a week, but could no longer participate in the work study program. She had recently sent out numerous resumes seeking employment, had a few interviews, but had not received any job offers.

Regarding Carol’s financial situation at that May 1992 hearing, she testified to the following. In her financial affidavit, she listed her monthly expenses as $1,336.75, not including a $180 monthly payment on her car and a $50 monthly payment for student loans she took out while attending Lakeland College. She had spent much of the $8,875 she had received from the sale of the marital residence for living expenses, with only about $1,800 remaining at that time. She had rolled over her share of Sloan’s retirement account with Illinois Power into an individual retirement account. She retained the annuity (valued at $400) and the life insurance policy (valued at $1,500) with State Farm.

At the conclusion of the May 1992 hearing, the trial court ordered Sloan to continue to pay Carol $500 per month through August 1992. It further ordered that another hearing would be held in August 1992 to again review the matter. The court also told Carol to continue to vigorously seek employment with her completed education.

At the August 1992 hearing, the trial court heard the following additional evidence. Sloan’s circumstances had basically remained unchanged since the proceedings leading up to the February 1991 judgment of dissolution. In 1991, he earned $43,069. Carol had recently taken a part-time job, 35 to 40 hours a week, with Illinois Consolidated Telephone Company as an operator. Her salary was $6.41 per hour (or about $240 per week). She was under probationary status until September 9, 1992, at which time she would be able to join the union and bid for a permanent, full-time position. She had been told that she could expect to get a permanent position after working anywhere from six months to three years. She stated that she only had $1,300 left of her proceeds from the sale of the marital home.

Based on that evidence, the trial court ordered that the “rehabilitative” maintenance be reduced to $300 per month beginning September 1992 and continue in that amount through August 1993, at which time it would terminate. Respondent appeals from this August 1992 order.

II. Analysis

Primarily relying on this court’s decisions in In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 551 N.E.2d 737, In re Marriage of Kerber (1991), 215 Ill. App. 3d 248, 574 N.E.2d 830, and In re Marriage of Carpel (1992), 232 Ill. App. 3d 806, 597 N.E.2d 847, Carol argues for the first time on appeal that she is entitled to permanent maintenance or, in the alternative, to an extension of the $500 payments for maintenance subject to review in five years. The award of maintenance to a spouse is a matter within the sound discretion of the trial court, and on appeal, we will not reverse its decision unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Morse (1993), 240 Ill. App. 3d 296, 307, 607 N.E.2d 632, 640; In re Marriage of Tietz (1992), 238 Ill. App. 3d 965, 971-72, 605 N.E.2d 670, 675.) Sloan responds that Carol is not entitled to continued maintenance under section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 504(a)) and that the trial court’s determination to terminate maintenance, based on the factors listed in section 504(b) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 504(b)), was not against the manifest weight of the evidence.

Under section 504(a) of the Act, the court may grant maintenance when it finds the spouse seeking maintenance lacks sufficient property, including marital property, to provide for her reasonable needs and is unable to support herself through employment or is otherwise without sufficient income. Ill. Rev. Stat. 1991, ch. 40, par. 504(a); Morse, 240 Ill. App. 3d at 307, 607 N.E.2d at 640; Kerber, 215 Ill. App. 3d at 252, 574 N.E.2d at 832.

Under section 504(b) of the Act, the court shall set the maintenance order in such amounts and for such periods of time as the courts deems just after considering all relevant factors, including the following:

“(1) [T]he financial resources of the party seeking maintenance, including marital property apportioned to [her], and [her] ability to meet [her] needs independently ***;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) the standard of living of the parties;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1991, ch. 40, par. 504(b).
“The benchmark for a determination of maintenance is the reasonable needs of a spouse seeking maintenance in view of the standard of living established during the marriage, the duration of the marriage, the ability to become self-supporting, the income-producing property of a spouse, if any, and the value of the nonmarital property.” (In re Marriage of Cheger (1992), 213 Ill. App. 3d 371, 379, 571 N.E.2d 1135, 1140.)

Also, no one factor from section 504(b) of the Act is dispositive of whether the trial court should order maintenance. (In re Marriage of Martin (1992), 223 Ill. App. 3d 855, 862, 585 N.E.2d 1158, 1163.) Furthermore, a spouse need not be reduced to poverty before maintenance is appropriate nor is she required to sell or impair her assets in order to support herself in a manner commensurate with the standard of living established during the marriage; these factors are particularly significant when, as here, the former spouse has sufficient income to pay some maintenance while still meeting his own needs. Kerber, 215 Ill. App. 3d at 252, 574 N.E.2d at 832; Cheger, 213 Ill. App. 3d at 379-80, 571 N.E.2d at 1141.

Sloan first argues that section 504(a) of the Act only requires that Carol be able to independently meet her own needs, not that she enjoy the same standard of living she enjoyed during the marriage or that Sloan enjoys after the divorce. Sloan relies on prior decisions which have discussed rehabilitative maintenance as a means to enable a formerly dependent spouse to acquire future financial independence and to place the parties in a position from which they can begin anew. (See In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 322-23, 480 N.E.2d 147, 150; In re Marriage of Jacks (1990), 200 Ill. App. 3d 112, 120, 558 N.E.2d 106, 112.) He then asserts that because Carol has completed her associate degree and obtained part-time, probationary employment which she expects will lead to a full-time, permanent position, she has become “rehabilitated,” and maintenance is no longer necessary.

We reject Sloan’s argument that the standard of living established during their marriage does not affect what constitutes Carol’s “reasonable needs” under section 504(a)(1) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 504(a)(1))- Instead, the trial court must balance the realistic ability of the spouse to support herself in some approximation of the standard of living enjoyed during their marriage against a goal of financial independence. (Carpel, 232 Ill. App. 3d at 828, 597 N.E.2d at 863.) We further note that a spouse’s financial independence is not always the goal when maintenance is awarded. (In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 1050, 569 N.E.2d 1097, 1101.) While the Act may seek to terminate the financial entanglement of the parties, it did not eliminate the parties’ standard of living established during their marriage as a factor in determining whether maintenance is appropriate. In re Marriage of Lenkner (1993), 241 Ill. App. 3d 15, 26, 608 N.E.2d 897, 905.

Additionally, under the facts of this case, we further reject Sloan’s argument that these parties can be put in position to start “anew” with regard to maintenance. The parties married in their late teens and lived as husband and wife for over 30 years. Through both of their efforts, they raised three children. This court cannot ignore the inevitable financial entanglements resulting from a marriage of this duration.

Regarding Carol’s education and subsequent employment, we note that this is only one factor of the seven listed in section 504(b) of the Act. (See Ill. Rev. Stat. 1991, ch. 40, par. 504(b)(2).) As used in connection with section 504(bX2) of the Act, rehabilitative maintenance may be appropriate when the spouse’s future employability would provide an approximately similar standard of living as enjoyed during the marriage. (In re Marriage of Pearson (1992), 236 Ill. App. 3d 337, 348, 603 N.E.2d 720, 728.) Under the doctrine of rehabilitative maintenance, the court should consider the receiving spouse’s present or future ability to become self-sufficient and should only consider the evidence presented, not mere speculation. Pearson, 236 Ill. App. 3d at 348, 603 N.E.2d at 728.

However, permanent maintenance may be more appropriate when the receiving spouse is not employable or is employable only at a low income when compared to the standard of living enjoyed during the marriage. (Pearson, 236 Ill. App. 3d at 347, 603 N.E.2d at 728; In re Marriage of Vendredi (1992), 230 Ill. App. 3d 1061, 1068, 598 N.E.2d 961, 966.) When former spouses have grossly disparate earning potentials, the goal of financial independence may not be achievable because of the dependent former spouse’s inability to maintain the standard of living shared during the marriage. (Lenkner, 241 Ill. App. 3d at 25, 608 N.E.2d at 904.) Furthermore, a trial court abuses its discretion by awarding only rehabilitative maintenance when the facts clearly demonstrate that a spouse is unable to support herself in a manner similar to that established during the marriage. Carpel, 232 Ill. App. 3d at 828, 597 N.E.2d at 863.

We agree with Sloan that Carol’s earning potential has increased since the marriage dissolution because of the associate degree she obtained. However, we disagree that she has been “rehabilitated” merely by obtaining that degree. Based upon the other relevant factors listed in section 504(b) of the Act, we conclude that in this case, the trial court erred by only ordering maintenance to continue for one more year at $300 per month and then to terminate. The parties were married for over 32 years. Carol had the main responsibility for the home and raising the children during the marriage, even when she had outside employment. She is over 50 years of age, limiting her advancement potential even if she obtains a permanent position with Illinois Consolidated Telephone Company. She has limited financial resources and has had to use her assets in order to meet living expenses while she completed her associate degree. Based upon her current salary level of approximately $12,500, she will have to continue to expend her assets to meet her living expenses.

Even with an associate degree, Carol will not likely earn enough income any time in the near future to allow her to enjoy a standard of living commensurate to what she enjoyed during the marriage. We note that while the parties did not live luxuriously during their marriage, they did live comfortably. They owned a home, two reasonably newer cars, a boat and ski barge, and a camper. They also contributed to two annuities and Sloan’s retirement plan.

Furthermore, Carol listed her monthly expenses at $1,337 in her affidavit for the May 1992 hearing. Also, she then had a car payment of $180 per month and a student loan payment of $50 per month. Sloan did not challenge any of her listed expenses either at the May 1992 hearing or the August 1992 hearing, and we find that her listed expenses are not unreasonable. Thus, we emphasize that Carol is not seeking to maintain a luxurious lifestyle or even a standard of living that approximates the standard of living she enjoyed while married to Sloan. Carol merely seeks to meet her monthly expenses, which she is unable to do.

Sloan earned over $43,000 in 1990 and 1991 and is able to meet his needs as well as help meet Carol’s needs. Carol’s decision to quit work and care for Michael enabled Sloan to continue his employment without interruption. Had Sloan quit his employment to take care of Michael, surely Sloan’s present employment situation would have been hampered. As the Kerber court noted when quoting from the special concurrence in Hart, 194 Ill. App. 3d at 853, 551 N.E.2d at 745 (Steigmann, J., specially concurring):

“ ‘Marriage is a partnership, not only morally, but financially. Spouses are co-equals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. [Respondent] should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle [respondent] with the burden of her reduced earning potential and to allow [petitioner] to continue in the advantageous position he reached through their joint efforts.’ ” Kerber, 215 Ill. App. 3d at 253-54, 574 N.E.2d at 833.

Based upon our review of the record, we find that the trial court abused its discretion by only extending Carol’s maintenance for one more year at the reduced amount of $300 per month and thereafter terminating her maintenance. The record supports her claim that she cannot adequately support herself through employment. However, in her petition for review of maintenance, Carol only requested that the trial court “extend the maintenance payments” she received from Sloan. Because the record does not show that Carol specifically requested the trial court to order permanent maintenance or, alternatively, an extension of the $500 payments for maintenance subject to review in five years, we cannot address the merits of her request. A request for permanent maintenance cannot be made for the first time on appeal. Accordingly, we reverse the trial court’s August 1992 maintenance order and remand this case to the trial court so that the parties and the trial court can specifically reconsider both the duration aftd the amount of Carol’s maintenance.

Sloan claims that Carol is not entitled to further maintenance because she worked during their marriage (roughly 22 years of their 32-year marriage), in contrast to the wife in Kerber who did not work outside the home during the marriage while she stayed home to raise the children. Also, Sloan attempts to distinguish this case from Kerber because the wife in Kerber had several health problems that prevented her from seeking full-time employment, whereas Carol is in good health and has been able to complete an associate degree and find subsequent employment. We find these claimed distinctions unpersuasive. While Carol may have worked outside of the home at some point during their marriage, that does not negate other duties she fulfilled, i.e., keeping up the house and raising the children. More significantly, Carol’s work outside the home did not provide her the means to obtain employment after dissolution of their marriage at a salary level that would allow her to meet her reasonable needs or to maintain the standard of living she enjoyed during the marriage. Her obtaining an associate degree has not yet improved her employment potential to such a level, nor is there much likelihood that it will do so in the near future.

Sloan further contends that his salary levels at the time of the May and August 1992 hearings did not reflect the standard of living the “parties enjoyed during the[ir] marriage,” but only reflect conditions after the dissolution, and thus cannot be used to set his level of maintenance payments. While Sloan may be correct regarding the parties’ standard of living during their marriage, we note that Sloan’s continuing ability to meet his needs as well as those of Carol is a factor the court should consider when determining whether maintenance is appropriate. (See Ill. Rev. Stat. 1991, ch. 40, par. 504(b)(6).) Further, the record demonstrates that Carol is not living anywhere near the standard of living established during the marriage.

Furthermore, the trial court, when determining the amount of the maintenance, should consider on remand both (1) the parties’ incomes at the time of the dissolution of their marriage, and (2) their potential incomes, as well as that can be determined. By doing so, a court is better able to put both parties in positions of equity regarding their present and future financial circumstances. (See Hart, 194 Ill. App. 3d at 853-54, 551 N.E.2d at 746 (Steigmann, J., specially concurring).) In so holding, we note that our conclusion is consistent with recent revisions to section 504 of the Act, directing the court, when determining the amount of maintenance, to consider the “present and future earning capacity of each party,” and “any impairment of the present and future earning capacity of the party seeking maintenance due to that party devoting time to domestic duties or having foregone or delayed education, training, employment, or career opportunities due to marriage.” (750 ILCS 5/504(b)(3), (b)(4) (West 1992); see also Pub. Act 87 — 881, §504, eff. January 1, 1993 (1992 Ill. Legis. Serv. 1060, 1064).) We do not view Public Act 87 — 881 as changing preexisting law in this regard, but instead as ratifying the interpretation of that law as stated in the specially concurring opinion in Hart. (Hart, 194 Ill. App. 3d at 853-54, 551 N.E.2d at 746 (Steigmann, J., specially concurring).) Therefore, the trial court’s consideration of Sloan’s gross income level after dissolution is not only warranted, but required. We add that if, after the trial court enters a new maintenance order on remand, Sloan’s income substantially decreases or Carol’s substantially increases, Sloan could seek a modification of that maintenance order under section 510 of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 510).

III. Conclusion

For the reasons stated, we reverse the trial court’s order extending maintenance for one year at $300 per month and thereafter terminating it and remand for proceedings in accordance with the views expressed herein.

Reversed and remanded.

KNECHT, J., concurs.

JUSTICE McCULLOUGH,

dissenting:

Prior to this decision, trial courts, in following the legislative history of maintenance and property division, sought to give finality to personal and financial relationships between parties to a dissolution. With this decision, everyone is welcome back in domestic relations court, at any time, to modify or change trial court orders.

With respect to permanent maintenance, the majority correctly states, “Carol argues for the first time on appeal that she is entitled to permanent maintenance.” (251 Ill. App. 3d at 156.) It is necessary to point out the original judgment for dissolution filed on February 4, 1991, did not provide for permanent maintenance. No appeal was taken. The petition heard in May 1992 did not request permanent maintenance. The majority will now allow on remand a consideration of permanent maintenance. Pearson, Vendredi, and Lenkner do not justify or serve as precedent for such procedure. In Carpel, the dissenting opinion of Justice Lund as to maintenance and timely appeal is correct. See Carpel, 232 Ill. App. 3d at 833, 597 N.E.2d at 866 (Lund, J., dissenting).

The decision of the trial court was clearly not against the manifest weight of the evidence nor an abuse of discretion. To permit this opinion to stand will have a salutary effect. It will eliminate the need for trial courts to make difficult judgments as to maintenance. The parties should simply come to the appellate court, where we will make the determination de novo.

The record reveals that the trial court spent considerable time with respect to maintenance, setting the review hearing for three years from the time of the dissolution. At the May 22, 1992, hearing, there was testimony that Carol had just graduated from Lakeland College and had made numerous applications for jobs, although she was presently working at Wal-Mart. As stated by the majority, the court extended the $500-a-month maintenance for three months and set a further review hearing for August 20, 1992. At the close of the May 22,1992, hearing, the trial court stated:

“I want you to be certain to understand that this is not a signal by me that I am going to make this an open-ended award. My intention originally in this case was that you do what you have done; that is, complete your education and vigorously seek employment. I will expect you to continue that vigorous search. It will not be my inclination to simply continue this ad infinitum until such time as you obtain employment. I will expect that your search and hope that your search will be successful by that time. There will not be any inclination to order repeated extensions of this order.”

Kerber is easily distinguishable and is not authority for reversing the trial court. In Kerber, the parties had a marriage of long duration, the wife had limited resources to meet her needs independently, she had only a high school education so she needed time for educational training to enable her to seek employment, she suffered from debilitating migraine headaches, trigeminal neuralgia, and a painful ankle. Because of the agreed-upon division of labor during the marriage, she stayed home and raised the children and thus was attempting to enter the work force relatively late in life with limited skills.

In reviewing the factors set forth in section 504(b) of the Act, Carol was awarded maintenance for the time necessary to acquire sufficient education or training to enable her to find appropriate employment. There is nothing in the record to indicate Carol’s standard of living is different than that established during the marriage. She is in good physical and emotional condition, and there are no tax consequences of the property division. At the August 20, 1992, hearing, Carol had a position with Illinois Consolidated Telephone Company, her probationary status would be served by September 9, 1992, and she would be able to join the union and bid for positions.

There was no agreement that Carol not work and the record appears to indicate the parties agreed Carol should work. At the time of the marriage, she worked as a waitress and quit to look for other employment and did obtain other employment as a nurse’s aid. She worked during the years they were married while living in Ohio. They moved to Illinois and Carol worked at General Electric (G.E.) for approximately 11 years beginning in 1967. After terminating her employment at G.E., she worked as a cook and at Young’s Radiators. When she moved to Massachusetts, she also obtained a job as an assembly line worker.

The majority states “the record demonstrates that Carol is not living anywhere near the standard of living established during the marriage” (251 Ill. App. 3d at 161) and “while the parties did not live luxuriously during their marriage, they did live comfortably” (251 Ill. App. 3d at 160). A search of the record reveals no such evidence.

With respect to assets accumulated by the parties during the marriage, they purchased a home in 1972 and sold it during the pendency of these proceedings for $30,000, with a net proceeds value of $14,793.41. (Carol received 60% and Sloan 40% of the net.) The two vehicles suggested in the disposition were a 1987 Ford truck with a $6,300 debt against it and a 1981 Buick with a $2,200 debt. The boat and ski barge (one item), purchased by a loan with the 1981 Buick as security, was sold by the parties during the pendency of the dissolution for $1,500, the proceeds of which were used to pay on an outstanding loan against the 1981 Buick which was awarded to Carol. The camper owned by the parties was sold during the proceedings for $200. These assets hardly suggest a standard of living enjoyed by the parties during the marriage which they do not enjoy at this time. Carol purchased a 1988 Ford Escort subsequent to the separation by trading in the 1981 Buick, as to which she testified “I was afraid of the car. It wasn’t very reliable, leaking oil,” and “And I was just afraid of it,” “afraid it was going to fall apart.” At the time of the dissolution, Sloan lived in a $4,640 trailer, of which the full amount was owed to the credit union. The record does not show whether Sloan’s income as well as Carol’s was expended wisely. Income alone does not set a standard of living. The trial court certainly would be correct in finding that the standard of living enjoyed by the parties during and after the marriage is the same.

Debts for example were not for vacations or luxurious living, but for motor vehicles, $1,000 for the marriage of one son, and living expenses. The record does show that the husband does earn an income in the area of $45,000 per year. During the year 1991, at the time of the dissolution, he was receiving gross wages of $43,850.62. Although there are factors such as the financial resources or earning power of the ex-husband, the age of the ex-wife, the duration of the marriage which could be considered favorable to the ex-wife, the other factors which I have reviewed clearly indicate the decision of the trial court was not against the manifest weight of the evidence.

As we observed in Hart, it has been stated that the trial court abuses its discretion “in maintenance award only when no reasonable person could adopt the view of the trial court.” Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741, citing In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 521 N.E.2d 621.

This court has, both in this disposition and in Carpel and Kerber, quoted the special concurrence in Hart. I do not disagree with the quoted statement from the special concurrence in Hart; however, the majority decision in Hart stated: “We do not adopt the concurring opinion as to maintenance.” Hart, 194 Ill. App. 3d at 851, 551 N.E.2d at 744.

The majority takes a curious position in stating that if Carol succeeds at some future time in raising her income to a level substantially equivalent to Sloan’s income, Sloan can then seek modification of the maintenance order. It appears the majority has been blind-sided by the difference in annual income of the parties and feels that is the primary factor in determining whether maintenance should be paid. This is not the law.

At the close of the hearing on August 20, 1992, Carol, through her counsel, in his argument stated: “based upon the seven factors; based upon the evidence in this case, Your Honor, we are asking the court to extend the maintenance.” (Emphasis added.) It is important, once again, to show what the trial court stated to the parties at the close of that hearing:

“Counsel, Mr. and Mrs. Harlow, the original intention of the court’s order of maintenance in this case was to accomplish the rehabilitation of Mrs. Harlow through her efforts in this case. That has been partially accomplished. She has done what the court expected her to do and that was to obtain the education needed to get herself on the way to a firmer foundation in providing her own support. That’s the goal of the statute as it is that both parties post divorce to be self-supporting.
The purpose of the review of ability of maintenance award is to look at the present relative situations of the parties particularly with the rehabilitation level that the respondent in this case has obtained. The rehabilitation is near complete but not totally completed.
The decision of the court will be that the rehabilitative maintenance award will be reduced to the sum of $300 per month. It will continue for a period of 12 months from this date at which time maintenance shall terminate and the respondent shall be forever barred from maintenance thereafter.”

As stated heretofore, if the decision of the trial court in this case is an abuse of discretion, there will be no case in this appellate court district wherein the trial court will be in a position to make a decision which will not always be subject to second-guessing by this court.


source: Caselaw Access Project

author: PRESIDING JUSTICE STEIGMANN

license: Public Domain

text:
    RUTH E. NOVOSAD et al., Plaintiffs-Appellants, v. JOHN E. MITCHELL et al., Defendants-Appellees.
    Fourth District
    No. 4—93—0032
    Argued June 17, 1993. —
    Opinion filed September 30, 1993.

      John T. Pratt and John L. Pratt (argued), both of Pratt & Pratt, P.C., of Bloomington, for appellants.

      Wayne P. Coffelt (argued), of Fleming, Messman & O’Connor, of Bloomington, for appellees.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In October 1991, the superintendent of highways of McLean County (county superintendent) entered a final order granting a petition for the laying out of a new road. Plaintiffs sought administrative review of this decision, which the circuit court affirmed in December 1992. Plaintiffs now seek review of the circuit court’s order, arguing that the county superintendent’s order was against the manifest weight of the evidence. On appeal, defendants also question whether plaintiffs have standing to seek review of the county superintendent’s decision and whether they failed to plead a cause of action. We affirm.

I. Background

In May 1987, 17 voters of Old Town Township, McLean County, Illinois, submitted a petition for the laying out of a new road, pursuant to section 6 — 303 of the Illinois Highway Code (Highway Code) (Ill. Rev. Stat. 1987, ch. 121, par. 6 — 303). The proposed road would run east and west, extending Lakewood Drive in Tanglewood Estates to Old Sawmill Road in Charter Wood Farms. The road commissioner conducted a public hearing on the petition in accordance with section 6 — 305 of the Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 6 — 305) and denied the petition, concluding that no evidence was presented that the proposed road was in the public and economic interest of the township or that its benefit justified the cost to the township.

In July 1987, three of the original petitioners appealed the road commissioner’s decision to the county superintendent of highways. In October 1987, Herbert W. Bekermeier, then county superintendent, held a public hearing pursuant to section 6 — 306 of the Highway Code, addressing the appeal. (See Ill. Rev. Stat. 1987, ch. 121, par. 6 — 306.) After reviewing the evidence, Bekermeier found that the petitioned-for road would be in both the economic and public interest of the township and reversed the decision of the road commissioner. Specifically, he found that the proposed road “would provide separate accesses of ingress and egress to the subject subdivision rather than the one access that is presently drawn on the subject preliminary plat, such being a matter of safety regarding all residents therein.”

Condemnation proceedings were thereafter instituted to procure the land necessary for the construction of the proposed road (Old Town Township Road District v. Koehler (Cir. Ct. McLean County No. 90—ED—1)). (See Ill. Rev. Stat. 1991, ch. 121, par. 6-309.) After determining the amount of damages, John Mitchell, the new county superintendent held a final administrative hearing regarding the proposed road in September 1991, pursuant to section 6—311 of the Highway Code (Ill. Rev. Stat. 1991, ch. 121, par. 6—311). At the beginning of the hearing, Mitchell indicated that letters expressing views on the project could be submitted after the hearing and would be considered if received by noon on October 3, 1991. In October 1991, Mitchell entered a final order affirming the November 1987 decision to build the proposed road. Specifically, the order stated:

“WHEREAS, all of the evidence presented at the administrative hearings and at the circuit court trial and proceedings have been reviewed, and all of the opinions and wishes expressed by the subject residents have been fully considered.
WHEREFORE, the County Superintendent of Highways of McLean County finds the following:
A) The public safety interests of the township residents of the immediate subject area will well be served; and,
B) The costs of constructing such road will include the jury decreed compensation and damages; and,
C) The laying out of the proposed extension of Lakewood Drive will be in the public and economic interests of the township; specifically, the providing of an alternate access of ingress and egress to both the subdivisions of Tanglewood Estates and the Third Addition to Charter Wood Farms Estates, rather than the present single access available to each which is a matter of safety regarding all residents therein.”

In November 1991, plaintiffs filed a complaint for administrative review, which the court dismissed upon defendants’ motion. In March 1992, plaintiffs filed an amended complaint, and John Mitchell thereafter filed a motion to strike and dismiss the amended complaint. Defendant alleged, inter alia, that (1) plaintiffs were improper parties to the proceedings because they lacked standing to sue; (2) the complaint failed to allege specific facts regarding whether any of plaintiffs’ rights, privileges, or duties had been or would be adversely affected by the subject administrative action; and (3) defendants were improper parties because no specific facts were alleged establishing them to be parties. After a hearing, the court denied defendant’s motion.

In December 1992, the circuit court affirmed Mitchell’s October 1991 order, finding that (1) plaintiffs had standing to bring the administrative review action, and (2) Mitchell properly considered evidence presented at the public hearings in September 1991 and October 1987. The court also stated that because the intent to consider such evidence was announced at the beginning of the September meeting and no objection was raised, any objection to that evidence had been waived. It further found that Mitchell properly considered the condemnation proceeding because it affected the economic aspects of the project concerning the source of funds for its cost. Moreover, the court concluded that nothing in the statutory scheme prohibited considering the material, and thus a similar waiver situation existed. The court also determined that Mitchell did not err by soliciting or considering letters for or against the petition after the hearing because many of the expressed opinions and views were those expressed at the hearing, and no objection was made to the submission of these letters.

In determining the advisability of a project, the court found that Mitchell could have relied on the extensive evidence which showed that the proposed road extension would provide better access for police, fire, ambulance and snow plow vehicles, in addition to the evidence about sources of revenue for the costs of the road. Therefore, the court held Mitchell’s decision was not against the manifest weight of the evidence. This appeal followed.

II. Plaintiffs’ Standing

Defendant Mitchell argues that plaintiffs lack standing to bring this administrative appeal because they are not directly or adversely affected by the decision to lay out the new road connecting the two subdivisions. He alleges that they only offered opinions and speculation regarding any negative impact the proposed road would have on them, which is insufficient to establish standing.

Section 6 — 315a of the Highway Code, which provides the statutory requirements for obtaining review of a county superintendent’s final decision, reads as follows:

“Any 3 persons who, at a hearing conducted by the county superintendent of highways pursuant to Section 6 — 306, 6 — 311 or 6 — 312 of this Act, have been permitted to appear, in person or by counsel, and to introduce evidence and cross[-]examine witnesses, may (if they are qualified petitioners, or have raised objections at a hearing pursuant to Section 6 — 311 or 6 — 312 of this Act and will be directly and adversely affected by such proposed alteration or vacation) obtain judicial review of such final administrative decision of the superintendent (meaning his final order denying the petition after a hearing pursuant to Section 6 — 306, or granting or denying the petition after a hearing pursuant to Section 6 — 311 or 6 — 312, to be filed in the office of the district clerk after the hearing) pursuant to the Administrative Review Law ***.” Ill. Rev. Stat. 1991, ch. 121, par. 6— 315a.

Plaintiffs attended and raised objections to the petition at both the section 6 — 306 hearing in October 1987 and the section 6— 311 hearing in September 1991. Under section 6 — 311 of the Highway Code, legal voters residing within two miles of the proposed road who will be directly and adversely affected by the change requested in the petition may appear and introduce evidence at that hearing. (Ill. Rev. Stat. 1991, ch. 121, par. 6 — 311.) In their amended complaint, plaintiffs alleged that they were all legal voters residing within two miles of the land involved in the proceedings and would be adversely affected by the laying out of the new road. Based on their testimony at the hearings, plaintiffs maintained that they would be adversely affected due to the increased traffic and traffic speed through the subdivision, thereby endangering the residents and depreciating property values in the subdivision. Moreover, they alleged that they would be adversely affected due to an increase in taxes to construct and maintain the road and the negative effect the road would have on their quality of life.

Here, plaintiffs have met the statutory requirements for judicial review. Plaintiffs appeared at the hearings, introduced evidence, and raised objections. They also would be directly and adversely affected by such proposed construction of the new road. Consequently, we find that plaintiffs fall within the class of persons eligible to obtain judicial review within the provision. See McCue v. Brown (1974), 22 Ill. App. 3d 236, 239-40, 317 N.E.2d 398, 401.

III. Sufficiency Of Pleadings

Defendant next contends that plaintiffs failed to specifically allege facts which would indicate that they would be adversely affected by a decision to grant the petition, and they therefore failed to plead a cause of action. (See Ill. Rev. Stat. 1991, ch. 110, par. 2 — 615.) Defendant argues that any claims by plaintiffs that they were adversely affected by the administrative decision were speculative and insufficient to state a cause of action. Moreover, they failed to allege that they suffered a unique damage or injury as the direct result of the proposed road — ostensibly the same argument defendant made in contending that plaintiffs did not have standing.

A complaint in an action brought under the Administrative Review Law (see Ill. Rev. Stat. 1991, ch. 110, par. 3 — 101 et seq.), any other statute, or common law must state a cause of action. (Winston v. Zoning Board of Appeals (1950), 407 Ill. 588, 592, 95 N.E.2d 864, 868.) To do so, plaintiffs must allege specific facts showing that they were parties to the administrative proceedings which adversely affected their rights, privileges, or duties. Winston, 407 Ill. at 595, 95 N.E.2d at 869.

In the amended complaint for administrative review, plaintiffs alleged that they were property owners residing within two miles of the property to be taken for building the proposed road and that they had raised objections to the petition at public hearings. They further stated they would be adversely affected by the decision to build the road. Specifically, they alleged the following:

“5. That [plaintiffs] are each legal voters residing within two miles of a portion of the road, the subject matter of said administrative decision, have raised objections at the hearing held pursuant to Sec. 6 — 311 of The Act and the prior hearings and will be directly and adversely affected by the proposed laying out, widening or alteration of the road.
* * *
12. That the evidence presented at the hearing conducted pursuant to Sec. 6 — 311 of The Act and the prior hearings was that the streets in both Tanglewood Estates Subdivision and Charter Wood Farms Subdivision are without curbs and gutters and without sidewalks, that there are no street lights in place in either subdivision, that there are developed playground areas in Charter Wood Farms Subdivision for the use of the children in the subdivision, consisting of a swimming pool, playground equipment, picnic and other facilities, and less developed playground facilities in Tanglewood Estates Subdivision; that the proposed laying out, widening or alteration of the street and the connection of the two streets across the private residential lot will result in a substantial increase in traffic and traffic speed through each subdivision to the danger of the residents of each subdivision, including children, and to the deprivation of the property values of the properties in each subdivision, thereby directly and adversely affecting the residents and children of each subdivision, including the Plaintiffs and the Defendants ***.
13. That the evidence presented at the hearing conducted pursuant to Sec. 6 — 311 of The Act is to the effect that the cost of the proposed laying out, widening or alteration is estimated to be approximately 62% of the entire 1991-1992 Road and Bridge Fund of the township, even though the use of the street, following the proposed laying out, widening or alteration, will be primarily local.
14. That the public safety interests of the township residents of the immediate subject area will be detrimentally affected by the proposed laying out, widening or alteration.
15. That the proposed laying out, widening or alteration will be contrary to the public and economic interests of the township.”

Although the proposed road may ultimately prove to not endanger the safety of the residents in the subdivisions, plaintiffs nonetheless pleaded sufficient facts — alleging that they were parties to the administrative proceeding who would be adversely affected as a direct result of Mitchell’s decision to build the proposed road — to state a cause of action.

IV. Manifest Weight Of The Evidence

Finally, we address plaintiffs’ argument that Mitchell’s order was against the manifest weight of the evidence. Upon administrative review, the findings and conclusions of an administrative agency on questions of fact are considered prima facie true and correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 110; see also Carver v. Bond/Fayette/Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 355, 586 N.E.2d 1273, 1276-77.) Reviewing courts may not interfere with the discretionary authority vested in an administrative body unless that authority is exercised in an arbitrary or capricious manner, or the administrative decision is against the manifest weight of the evidence. (Murdy v. Edgar (1984), 103 Ill. 2d 384, 391, 469 N.E.2d 1085, 1088; Board of Education of School District U-46 v. Illinois Educational Labor Relations Board (1991), 216 Ill. App. 3d 990, 998, 576 N.E.2d 471, 475.) Thus, a reviewing court may not reweigh evidence or make an independent determination of the facts. (Murdy, 103 Ill. 2d at 391, 469 N.E.2d at 1088.) Instead, its sole function is limited to ascertaining whether the findings and decisions of the administrative agency are against the manifest weight of the evidence. Garland v. Department of Labor (1984), 104 Ill. 2d 383, 392, 472 N.E.2d 434, 437.

Plaintiffs argue that Mitchell erroneously considered evidence introduced at prior hearings in rendering his decision and improperly solicited and considered letters after the final hearing. Plaintiffs assert that the final administrative decision of the county superintendent must be based exclusively on evidence received at the final hearing, and he may not consider evidence presented at prior hearings or which was not subject to cross-examination. Plaintiffs argue that because no evidence was presented at the final hearing in support of the petition, the circuit court must have improperly relied on extraneous information not introduced into evidence in rendering its decision. Thus, they conclude that the decision to grant the petition was against the manifest weight of the evidence.

An administrative agency cannot base'its decision upon facts, data, and testimony which do not appear in the record. (North Shore Sanitary District v. Pollution Control Board (1972), 2 Ill. App. 3d 797, 801, 277 N.E.2d 754, 757; Hazelton v. Zoning Board of Appeals (1977), 48 Ill. App. 3d 348, 351, 363 N.E.2d 44, 47.) Moreover, findings must be based on evidence introduced in the case, and nothing can be treated as evidence which is not introduced as such because due process of law requires that all parties have an opportunity to cross-examine witnesses and to offer evidence in rebuttal. (Hazelton, 48 Ill. App. 3d at 351, 363 N.E.2d at 47.) Therefore, a decision pursuant to an administrative hearing must be based upon testimony and other evidence received at the hearing, and a conclusion influenced by extraneous considerations must be set aside. Metropolitan Sanitary District v. Pollution Control Board (1975), 62 Ill. 2d 38, 43, 338 N.E.2d 392, 395.

However, section 6 — 311 of the Highway Code does not preclude a county superintendent from considering the evidence at issue here. Instead, that section indicates that the technical rules of evidence governing proceedings in courts do not apply to such a hearing. (See Ill. Rev. Stat. 1991, ch. 121, par. 6 — 311(c).) Furthermore, the statutory scheme at issue requires successive hearings on petitions for the laying out of a new road. Therefore, we find that Mitchell did not improperly consider evidence presented at prior proceedings nor did he erroneously consider the letters submitted after the final hearing.

Without the ability to view evidence introduced at prior hearings, excessive duplication of evidence would occur. Moreover, when Mitchell stated his intention at the commencement of the final hearing in September 1991 to consider the evidence introduced at the prior proceedings and the letters, no one objected. The prior hearings dealt with the same issue as the final hearing, and plaintiffs were present and had the opportunity to rebut any testimony presented by the proponents to the petition. The views expressed in the letters essentially reiterated those expressed at the hearings. Although plaintiffs were not parties to the condemnation proceedings and did not have an opportunity to cross-examine the witnesses, they were made aware that these proceedings would be considered and did not object.

Additionally, the testimony and evidence presented at the hearings supports the granting of the petition. A petition may only be granted if a specific finding is made that the new road would benefit both the economic and public interest of the township. Proponents of the petition testified that the new road would provide an additional entrance and exit to the subdivision for emergency vehicles and snow removal vehicles, which would be beneficial to the safety of all residents. This evidence alone supports the county superintendent’s granting of the petition.

Moreover, even if consideration of the prior hearings were inappropriate, sufficient evidence was introduced at the final hearing to support the granting of the petition, contrary to the allegation of plaintiffs that no evidence in support of the petition was presented. While the majority of the evidence at the final hearing was presented by opponents of the petition, Tom Kratz, who resides at 49 Lakewood Drive, in Tanglewood Estates, testified in favor of the petition. He stated the proposed road would provide an additional entrance and exit to the two subdivisions. The additional outlet would alleviate traffic on Route 1950, which was a very narrow road, and provide an additional entrance for emergency vehicles if the original outlet was blocked. He also stated the exit from Tanglewood Estates sloped downward and was very dangerous in the winter. Being able to drive through the other subdivision would alleviate this dangerous situation.

V. Conclusion

For the reasons stated, we affirm the order of the circuit court.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.


author: JUSTICE McCULLOUGH JUSTICE LUND,

text:
    LAWRENCE A. WILLIAMS et al., Plaintiffs-Appellants, v. KARL NAGEL et al., d/b/a Champaign Housing Associates, d/b/a Parkside and Mansard Square Apartments, et al., Defendants-Appellees.
    Fourth District
    No. 4—92—0949
    Argued July 20, 1993. —
    Opinion filed September 30, 1993.—
    Rehearing denied November 1, 1993.

      LUND, J., specially concurring.
    Malcolm Barnes (argued), of Urbana, for appellants.
    Loma K. Geiler (argued), of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellees Karl Nagel and Steven W. Barrick.
    Michael R. Cornyn (argued), of Thomas, Mamer & Haughey, of Champaign, for appellees City of Champaign, Donald Hanna, and Don Carter.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiffs are three individuals who have been barred from entering a housing complex (complex) known as Parkside and Mansard Square Apartments in Champaign. Defendants are the management of the apartments (management), the owner of the complex (Nagel Group), the City of Champaign (City), and two individual Champaign police officers, Donald Hanna and Don Carter. Plaintiffs’ amended complaint sought damages for alleged violations of certain of their common law, statutory and constitutional rights. Defendants’ motion for summary judgment was granted and plaintiffs appeal. We affirm.

Plaintiff Lawrence Williams was served with notice that he was being barred from the complex as of September 4, 1991. Plaintiff Mansion Clark was served with notice of being barred from the complex on June 10, 1989. Plaintiff Donald Merriweather was served with notice barring him from the complex as of July 29, 1991.

Plaintiffs Williams and Clark filed their original verified complaint on May 15, 1992, essentially alleging they had invitations to be in the complex and they were prevented from entering the complex, thereby violating certain of their constitutional rights, including their right to freedom of movement, due process, liberty interest, and the freedom to speak freely and peaceably assemble. Plaintiffs also alleged they were subjected to false imprisonment. Plaintiffs’ complaint was accompanied by affidavits.

On May 15, 1992, the court denied plaintiffs’ request for a temporary restraining order (TRO), finding no specific facts alleged in the verified complaint and the attached affidavits caused it to clearly appear that immediate and irreparable injury would result before notice could be served and a hearing held.

On June 2, 1992, the Nagel Group filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619). On June 3, 1992, a hearing was held on plaintiffs’ petition for a preliminary injunction. The court deferred the "hearing on the Nagel Group’s motion to dismiss because of insufficient notice and then proceeded with the hearing on the motion for a preliminary injunction. The court heard arguments from counsel, denied the motion for the preliminary injunction, and set a hearing oh the motion to dismiss for June 23,1992.

On June 16, 1992, the Champaign police department (CPD), named as a defendant in the original complaint, filed its motion to dismiss. On June 23, 1992, plaintiffs were granted a continuance and the hearing on the motions to dismiss was vacated and continued. Plaintiffs were granted leave to file an amended complaint, which they did on July 24, 1992, naming the City instead of the CPD as a defendant.

On August 31, 1992, the Nagel Group filed a motion for summary judgment or in the alternative to dismiss the first-amended complaint. On September 1, 1992, the City and Hanna filed motions to strike, to dismiss, and for summary judgment. Defendant Carter filed his appearance on September 16, 1992, in which he adopted the City’s' motion for. summary judgment or in the alternative to dismiss.

A hearing bn the motion for summary judgment was held on October 9, 1992. The trial court granted summary judgment in favor of all defendants and dismissed the case. A written order was filed on October 30, 1992. Plaintiffs filed their notice of appeal purporting to appeal the May 15, 1992, denial of the TRO, the June 23, 1992, denial of the preliminary injunction, and the October 30, 1992, order granting summary judgment.

As to the denial of the TRO on May 15, 1992, and the denial of the preliminary injunction on June 3, 1992, we hold plaintiffs have lost their right to appeal those two orders. - .

If an order is entered which is immediately appealable under Rule 307 (134 Ill. 2d R. 307), then an appeal must be taken or the right to challenge the ruling is lost. (Robert A. Besner & Co. v. Lit America, Inc. (1991), 214 Ill. App. 3d 619, 626, 574 N.E.2d 703, 707.) A TRO is appealable under Supreme Court Rule 307(d) (134 Ill. 2d R. 307(d)), and an appeal must be filed within two days of the entry of the order sought to be reviewed or the right to challenge the ruling will be lost. (See Baird & Warner, Inc. v. Gary-Wheaton Bank (1984), 122 Ill. App. 3d 136, 138-39, 460 N.E.2d 840, 842; Design Studio International, Inc. v. Chicago Title & Trust Co. (1989), 185 Ill. App. 3d 797, 808, 541 N.E.2d 1166, 1173.) A preliminary injunction may be appealed under Supreme Court Rule 307(a)(1) (134 Ill. 2d R. 307(a)(1)) and the notice of appeal must be filed within 30 days of the entry of the order. We hold the denial of both the TRO and preliminary injunction were appealable under Supreme Court Rule 307. By failing to timely file an appeal from those orders, plaintiffs lost the right to challenge them. The notice of appeal was timely, however, as to the trial court’s order granting summary judgment in favor of defendants.

A motion for summary judgment should be granted when the pleadings, depositions and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005(c); Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 508, 584 N.E.2d 104, 112.) The use of the summary judgment procedure is to be encouraged as an aid in the expeditious disposition of a lawsuit, but it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.

When the pleadings, depositions and affidavits fail to establish an element of plaintiff’s cause of action, summary judgment is proper. (Brunsfeld v. Mineola Hotel & Restaurant, Inc. (1983), 119 Ill. App. 3d 337, 341, 456 N.E.2d 361, 365.) In determining whether the moving party is entitled to summary judgment, a court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 271-72, 586 N.E.2d 1211, 1215.

Plaintiffs first allege they have common law and statutory rights to be present in the complex because they were invited onto the premises by certain tenants. These rights allegedly stem from section 21—3(c) of the Criminal Code of 1961 (Criminal Code) (Ill. Rev. Stat. 1991, ch. 38, par. 21—3(c)) and this court’s decisions in Karow v. Student Inns, Inc. (1976), 43 Ill. App. 3d 878, 357 N.E.2d 682, and People v. Flanagan (1985), 133 Ill. App. 3d 1, 478 N.E.2d 666.

Section 21 — 3(c) of the Criminal Code provides, in pertinent part:

“This Section does not apply to any person, whether a migrant worker or otherwise, living on the land with [the] permission of the owner or of his agent having apparent authority to hire workers on such land and assign them living quarters or a place of accommodations for living thereon, nor to anyone living on such land at the request of, or by occupancy, leasing or other agreement or arrangement with the owner or his agent, nor to anyone invited by such migrant worker or other person so living on such land to visit him at the place he is so living upon the land.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 3(c).)

In Flanagan, this court held defendant was exempt from prosecution under th'e criminal trespass statute because he resided at the house, his mother’s, at which he was alleged to have criminally trespassed. Since the evidence established he resided there, he was exempt from prosecution under the criminal trespass statute. Flanagan, 133 Ill. App. 3d at 5, 478 N.E.2d at 668.

In Karow, plaintiff brought an action for false arrest and imprisonment against the operator of a student housing unit and the head resident. A jury verdict, was returned in favor of" defendants. This court held, among other things, plaintiff could not have been found guilty of criminal trespass since he was present on the property at the express request of a lawful tenant. Karow, 43 Ill. App. 3d at 883, 357 N.E.2d at 687.

These cases are distinguishable. In Flanagan, defendant was asked to leave by his mother because of a fight over money, but he could not be prosecuted for criminal trespass because, he resided at that house. This case offers no support to plaintiffs because they do not reside in the complex. The plaintiff in Karow was asked to leave the housing unit becausé the operators thought he was committing an offense; however, there were no reasonable grounds for belief that he was in fact committing an offense. The difference between Karow and this case is, although both plaintiff there and plaintiffs here had been invited onto the property, plaintiff in Karow had not been barred from the premises.

Plaintiffs’ presentation of evidence by tenants that they were invited onto the premises has little merit. The tenants are not plaintiffs in this proceeding. Additionally, the lease agreement with tenants provided management had the right “to bar individuals from the property.”

Section 21 — 3(a) of the Criminal Code provides that if a person enters the land or a building of another after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, the person entering the land, is subject to criminal-trespass. (Ill. Rev. Stat. 1991, ch. 38, par. 21 — 3(a).) Plaintiffs have all been served with notice that if they attempt to enter the complex, they will be subject to arrest for criminal trespass. The exception found in subsection (c) regarding the provisions of subsection (a) not applying if the person attempting to enter the property has been invited by a resident of that property cannot be . used to nullify the provisions of section (a). Otherwise, if every time a person was prohibited from entering certain property, residents or tenants of. that property claimed they had invited that person onto the property, the exception found in subsection (c) would eliminate the offense of criminal trespass found in subsection (a).

Both parties referred at oral argument to our recent decision in City of Quincy v. Daniels (1993), 246 Ill. App. 3d 792. In City of Quincy, defendant was found guilty of trespass under section 31.138 of the Municipal Code of the City of Quincy. (Quincy, Ill., Municipal Code §31.138 (1980).) This court reversed defendant’s conviction, finding that since defendant was occupying the apartment at the express invitation of the leaseholder, the only relevant question was the validity of the lease. This question must be answered by the application of the principles of landlord-tenant law and the Forcible Entry and Detainer Act (Ill. Rev. Stat. 1991, ch. 110, par. 9 — 101 et seq.) rather than the principles of criminal law. City of Quincy, 246 Ill. App. 3d at 797.

We find our decision in City of Quincy distinguishable. First, that case involved a criminal matter involving a municipal ordinance while that presented here is a civil case involving constitutional rights. Moreover, that case involved a single unit while the dwelling in question here is a multiunit apartment complex. Finally, we note that the discussion of section 21 — 3(c) of the Criminal Code and the public policy of this State that criminal trespass may not be charged against invited guests on leased property is merely dicta incidental to that opinion and not binding on us in this decision. The holding of that case was that possessory interests in a leasehold cannot be determined by principles of criminal law. We note that in City of Quincy, defendant had in fact been issued a citation for criminal trespass. Section 21 — 3(c) of the Criminal Code was intended by the legislature to address the plight of migrant workers or persons similarly situated; that subsection has nothing to do with the circumstances of this case and constitutes no defense to the charge of criminal trespass to land except in the limited circumstances involving migrant workers. Section 21 — 3(c) of the Criminal Code does not apply to this case. The exception found in that subsection does not nullify the provisions of section 21 — 3(a) of the Criminal Code. To the extent City of Quincy is not distinguishable, its statements with respect to section 21 — 3(c) of the Criminal Code and the public policy of this State are not to be used as precedent.

Having determined plaintiffs have no common law or statutory right to enter the complex, the only remaining issue is whether their constitutional rights have been violated by being barred from the complex. Plaintiffs’ argument can essentially be summarized as follows. Individuals are served with notice that they have been barred from the complex. On occasion, the CPD serves this notice. Some, but not all, persons who are barred are placed on a “no trespass” list. If a person on the “no trespass” list attempts to enter the complex, he or she could be arrested for criminal trespass. The CPD decides who is to be placed upon the “no trespass” list. This, plaintiffs argue, is the necessary “State action” to validate their claims of the violation of their constitutional rights.

For an action to rise to the level of “State action” triggering constitutional protection, there must be a sufficiently close nexus between the State and the action, so that the action may be fairly treated as that of the State. The State is “significantly involved” only when it has commanded a particular result or reserved to itself the power to determine that result. Mere acquiescence to a private action by the State does not convert it to State action. (In re Marriage of Braundmeier (1990), 201 Ill. App. 3d 14, 17, 558 N.E.2d 805, 806-07.) In cases where a defendant is a private party, the question is whether the conduct has sufficiently received the imprimatur of the State so as to make it “State” action for purposes of the fourteenth amendment. To determine whether certain conduct of a defendant is “State action,” a complaining party may show that there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be treated as that of the State itself. The purpose of this requirement is to assure that constitutional standards are involved only when it can be said that the State is responsible for the specific conduct of which the plaintiffs complain. Blum v. Yaretsky (1982), 457 U.S. 991, 1003-05, 73 L. Ed. 2d 534, 546-47, 102 S. Ct. 2777, 2785-86.

Plaintiffs alleged the CPD’s practice of recommending who is to be placed on-the “no trespass” list creates a sufficiently close nexus between the actions of the CPD and the Nagel Group such as to make the actions of the Nagel Group those of the City. Paragraph 11 of plaintiffs’ complaint, which is incorporated by reference into the counts seeking injunctive relief and damages, alleges:

“That commencing around July, 1991[,] and continuing to present, the CHAMPAIGN POLICE DEPARTMENT, on information and belief, at the instigation and direction of the Defendants, DONALD HANNA and DON CARTER, instituted a custom, policy, or practice, acquiesced or approved by and jointly executed by all .other Defendants, whereby the CHAMPAIGN POLICE DEPARTMENT, because intimately involved in and controlled virtually all aspects of the barring of the named plaintiffs herein and others, as an example, per exhibit ‘H’, attached and incorporated herein, to include but not be limited to the following chilling conduct:
A. Deciding who was to be barred and/or who was to remain being barred and adding numerous other to the list of persons barred from the premises of PARKSIDE AND MANSARD SQUARE APARTMENTS, often directing security personnel to place certain individuals on the list.
B. Actually both deciding who was to be barred and serving barring notices on behalf- of the other named Defendants in numerous instances, as an example per exhibit T, attached hereto and incorporated herein and being a notice barring the Plaintiff, DONALD F. MERRIWEATHER served by Officers Ron Durbin and John Schweihart, officers of the CHAMPAIGN POLICE DEPARTMENT.
C. Directing or virtually directing a policy change in the security arrangements at PARKSIDE AND MANSARD SQUARE APARTMENTS from one of first asking alleged trespassers on the barred list to please leave, secondly, warning the alleged trespasser to leave and lastly, actually calling the police to arrest the alleged trespasser to one of the calling the police immediately to arrest the alleged trespasser.”

Plaintiffs contend this conduct by the CPD, Hanna and Carter violated their constitutional rights under the first, fifth, and fourteenth amendments to the United States Constitution. (U.S. Const., amends. I, V, XIV.) Plaintiffs allege the Nagel Group approved, acquiesced in, and allowed the CPD, Hanna and Carter to become so “intimately involved in the security arrangements and barring practices, such that the conduct can be described as State action.”

Patricia Jeffers has three affidavits on file dated June 2, 1992, August 28, 1992, and October 6, 1992. In each, she stated she is vice-president of property management of Nagel Group, Inc. She stated officers of the CPD have served barred notices to individuals, but that the management of Parkside and Mansard Square Apartments has complete and total discretion as to whom should be placed on the “no trespass” list. The CPD has given management notice that individuals have been served with notice that they are barred, and management does consider reports and records from the CPD, the county police and Urbana police department. However, not all individuals recommended by the CPD have been placed on the “no trespass” list.

In his affidavit of October 1, 1992, Mark S. Hamilton stated in paragraph four that a policy change by the management in July 1991 occurred in which it authorized the CPD to place persons on a list barring them from entering the complex. He tape-recorded a meeting between himself, members of the CPD and the management which “jogged his memory to recall on information and belief” that the CPD had previously been supplied with a stack of blank forms from the management to prepare and use in barring individuals, with the CPD filling out the forms, serving them and providing copies to the management. Exhibit “A” attached to Hamilton’s affidavit appears to be a set of regulations for security. Paragraph two contains the sentence, “A person can be BARRED by SECUITY [sic]-POLICE-PARKESIDE [sic] and MANSARD EMPLOYEES.”

Hamilton stated in his affidavit of October 5, 1992, that he was the manager of E.L. Enforcement Service, Inc., of Belleville, Illinois, which provided security services to Parkside and Mansard Square Apartments between October 1990 and February 1992. To the best of his knowledge, no one was able to place an individual on the “no trespass” list except the employees of Parkside and Mansard Square Apartments. If an individual was served with a barred notice but not put on the “no trespass” list, security would not call the police to arrest the individual for criminal trespass if he was at the complex. Hamilton stated that there was a difference between being served a notice of barred and being on the “no trespass” list.

Elizabeth Nicholson stated in her affidavit of October 6, 1992, that she has been a management representative of Parkside and Mansard Square Apartments since 1989. She stated exhibit “A” to Hamilton’s affidavit is a document prepared by Aaron Shriver, the site superintendent for Yale Enforcement Service, Inc., which was prepared at her request for use in a newsletter to the residents of the complex. She did not request Shriver to prepare paragraphs one through three and five through eight of Hamilton’s affidavit. She stated exhibit “A” was never distributed to the residents of the complex. Exhibit “A” was never used in any newsletter to the residents of the complex.

The final two affidavits on file are those of Hanna and Carter, the individual CPD officers named in this lawsuit. Hanna stated in his affidavit that at the time relevant to the complaint he was the chief of police for the City. There was no policy, custom or practice of the police department to bar persons from entering any private property, including the premises of the Parkside and Mansard Square Apartments. If persons were barred from private property by the owners, the police department would enforce the trespass laws. Hanna stated the decision to bar people was not made by the police, department or through any policy of the police department, and as chief of police he was not authorized by the Champaign city council to bar persons from private property or to make any policy by which police officers would make the decision to bar persons from private property. He neither made such a policy nor concurred or acquiesced in such a custom or policy. The policy of the police department was to enforce the law, not to make decisions for private property owners.

Carter stated in his affidavit that he was now acting chief of police for the City, and at the times relevant to the complaint, he was deputy chief of the CPD. There was no policy within the CPD to bar persons from the premises of Parkside and Mansard Square Apartments. There is a policy of the CPD to enforce the trespass laws. He stated the police department did not make the decision to place the plaintiffs on the “no trespass” list. He also stated that Merriweather has been barred from the property by order of Judge Parkinson in criminal case No. 91 — CM—1513. His affidavit indicates the police department had been in meetings with citizen tenant groups and others regarding the problems of recurrent crime in the complex, as well as the means and methods which might bring a greater degree of safety and security to the residents. The management of the complex attended these meetings. However, he stated in his affidavit that the police cannot bar persons from private property; that was a decision to be made by the property owner. The police have arrested persons for trespass if they have been barred from the property and have on occasion served the notice of being barred upon the individual. He also admitted that the police officers occasionally provide information, advice or recommendations to property owners concerning individuals who have been involved in criminal activity and this advice is sometimes taken and used by the owner to decide whom to bar, but sometimes the advice is not followed and the individual is not barred.

In conclusion, plaintiffs have presented no facts to show a sufficiently close nexus between the conduct of the CPD and the Nagel Group in barring individuals from the complex. The conduct of the Nagel Group cannot be fairly treated as that of the CPD to establish the necessary State action.

At best, the Nagel Group and the management use the CPD to serve the barred notices to certain individuals. The police department is better equipped to serve people with such notices because they are able to find people more easily and actually deliver the notice. While this in and of itself may be State action, the serving of notice is not enough to establish plaintiffs’ right to bring this action. Moreover, the Nagel Group may have relied upon recommendations from the CPD as to whom to place on the “no trespass” list or whom to bar, but the Nagel Group did not always follow those recommendations.

The affidavits submitted by the CPD and the management representatives indicate that the final decision as to who was to be placed on the “no trespass” list was up to the management rather than the police department. The most contradictory evidence to that assertion is exhibit “A” to Hamilton’s affidavit, which contains the sentence that the CPD had the authority to bar people. However, this was countered by the affidavit of Elizabeth Nicholson, who had exhibit “A” prepared. She explained the purpose of that exhibit and asserted that the statement in Hamilton’s affidavit was inaccurate. Also, as Hamilton explained, there is a difference between being barred and being placed on the “no trespass” list. A person could be barred from the complex but not placed on the “no trespass” list and therefore not subject to arrest if found at the complex. Thus, taken in the light most favorable to plaintiffs, the sentence in exhibit “A” could indicate that the CPD could determine who would be barred, but not determine who would be placed on the “no trespass” list, the latter being that which subjects the person to the criminal prosecution for violation.

Therefore, there is no genuine issue as to any material fact because plaintiffs have not alleged State action sufficient to sustain a cause of action for a deprivation of constitutional rights. Because there is no State action, the trial court properly granted summary judgment in favor of management and the Nagel Group. Moreover, plaintiffs failed to show an unconstitutional policy of placing individuals on the “no trespass” list; accordingly, the trial court also properly granted summary judgment in favor of the City, Hanna and Carter.

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

Affirmed.

STEIGMANN, P.J., concurs.

JUSTICE LUND,

specially concurring:

City of Quincy rests on facts clearly different than here. In City of Quincy, a mother moved in with her son, a possible violation of the lease agreement, but hardly a trespasser. The use of trespass in City of Quincy was nothing other than an attempt to avoid the Forcible Entry and Detainer Act. Under the facts in City of Quincy, it is folly to uphold criminal actions. The present case is based upon entirely different facts — prior notice of limitation being quite significant!


author: JUSTICE LEWIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HANS BANK, Defendant-Appellant.
    Fifth District
    No. 5-92-0559
    Opinion filed October 13, 1993.

      Lockwood & Speroni, P.C., of Marion, for appellant.
    Charles Grace, State’s Attorney, of Murphysboro (Norbert J. Goetten, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LEWIS

delivered the opinion of the court:

Defendant, Hans Bank, appeals from the trial court’s denial of his petition for rescission of his statutory summary suspension, alleging that the trial court’s finding that his physical inability to perform the breathalyzer test was tantamount to a refusal was against the manifest weight of the evidence, and that the State failed to present evidence justifying suspension after defendant established his prima facie case. We affirm.

Defendant was arrested for driving under the influence of alcohol and for speeding on June 11, 1992. He was asked to come to the Carbondale police station to take a breathalyzer test and was warned of the statutory consequences of refusing to take the test. (625 ILCS 5/11 — 501.1(c) (West 1992).) Defendant consented to take the breathalyzer test, but after he made several attempts to do so, the machine registered that an “insufficient sample” of air had been given. The police officer who arrested defendant determined that these attempts to take the test by the defendant were a refusal, and the officer indicated on his law enforcement sworn report that defendant had refused.

Defendant filed a request for hearing on June 18, 1992, in which he stated, among other issues not pertinent to this appeal, that the test results submitted to the Secretary of State’s office were inaccurate and invalid. A transcript of that hearing has not been provided, but a bystander’s report has been submitted pursuant to the supreme court rules. 137 Ill. 2d R. 323(c).

It was reported that Officer McBride was called to testify as an adverse witness by the defendant, and that he testified that on June 11, 1992, he clocked defendant going 60 miles per hour (mph) in a 45-mile-per-hour speed zone. Officer McBride stopped the defendant for speeding, and he administered field sobriety tests on defendant, which defendant failed. The officer did not recall seeing a handicapped parking sticker in the window of defendant’s vehicle, but he admitted that a sticker could have been present.

Officer McBride took defendant to the police station and asked defendant to take the. breathalyzer test. Defendant attempted to do so several times, but after each attempt, the machine registered that an insufficient air sample had been given. Officer McBride concluded that defendant was not “trying” and marked on his report that defendant had refused to take the test. Officer McBride stated that the Carbondale police department no longer had a policy of requesting alternate testing if a defendant does not complete a breathalyzer test, so he did not offer defendant a blood or urine test.

When Officer McBride was recalled to testify by the State, he stated that defendant told him that he felt ill and that he had been to the doctor just five days earlier. Officer McBride testified that defendant’s face did not get red, that he did not sweat when he took the test, and that defendant did not exhibit any shortness of breath at that time.

Defendant testified that he is 57 years old, and that he is employed at Southern Illinois University (SIU), where he designs and makes instruments for scientific experiments. Defendant admitted that he consented to take the breathalyzer test the night he was arrested. It was defendant’s testimony that he made a good-faith effort to take the breathalyzer test, but that he was physically unable to provide a sufficient air sample to complete the test. He explained that he had had a heart condition since 1980, and that he suffers from shortness of breath on mild exertion. Also, at the time of the test, he was suffering from rectal bleeding for which he was being treated by Dr. Ahktar. He stated that he has a handicapped parking sticker from SIU so that he does not have to walk far to his work.

Daniel Rendleman, a retired police officer for SIU, and Harris Ruben, a professor at SIU, both testified that they had known defendant for several years. Both testified that they were aware that defendant had a heart condition and that defendant had a reputation for truthfulness and honesty. In addition, Rendleman corroborated that defendant had a sticker from SIU which allowed him to park in the “Handicapped Parking” areas.

The bystander’s report also indicated that no testimony was presented that the breathalyzer machine was working properly or that Officer McBride administered the test in accordance with the machine’s instructions. Similarly, no evidence was presented that the machine was certified by the Department of Public Health.

The court, in its well-written order, determined that the only issue presented to the court was whether defendant’s actions were responsible for his failure to complete the test. In its order, the court clearly set forth that there was no evidence that the breathalyzer malfunctioned when the defendant attempted to take the test. In fact, Officer McBride testified, according to the judge’s order, that he showed the defendant how to blow into the machine and that when he, being Officer McBride, blew into the machine, it gave a reading of .00. The court found that defendant failed to prove by a preponderance of the evidence that defendant was truly unable to blow into the breathalyzer and provide a sufficient sample of air volume due to health problems. Defendant appeals.

On appeal, defendant asks this court to determine whether a physical inability to complete a breathalyzer test constitutes a “refusal” within the meaning of the statute. He argues that the evidence presented was uncontradicted and established that he was physically unable to blow into the breathalyzer machine, and therefore, the court’s ruling that he failed to prove he was physically unable was against the manifest weight of the evidence.

We need not address the broad general question for future cases as to whether a physical inability to complete a breathalyzer test is a refusal under the statute, for this determination should be on a case-by-case basis. Previous case law implies that physical inability may not constitute a refusal. (See People v. Reynolds (1985), 132 Ill. App. 3d 559, 478 N.E.2d 33; People v. Schuberth (1983), 115 Ill. App. 3d 302, 450 N.E.2d 459.) However, absent a showing that the machine is not in proper working order or that a defendant is not physically able to take the test, the failure to provide the breathalyzer machine with an adequate air sample is a sufficient basis for a determination that a defendant refused to take the test. (People v. Bates (1987), 165 Ill. App. 3d 80, 518 N.E.2d 628.) Moreover, the statute provides that a law enforcement agency designates the type of testing to be provided a defendant, and alternate testing need not be offered. 625 ILCS 5/11 — 501.1(a) (West 1992); People v. Kiss (1984), 122 Ill. App. 3d 1056, 462 N.E.2d 546.

Thus, the immediate question presented in the case sub judice is whether defendant proved he was physically unable to complete the test. The law is well established that a defendant bears the burden to prove by a preponderance of the evidence that his statutory summary suspension should be rescinded. (People v. Hawkins (1991), 221 Ill. App. 3d 460, 582 N.E.2d 243.) Once a defendant makes a prima facie case, only then does the burden of proof shift to the State. (People v. Hawkins (1991), 221 Ill. App. 3d 460, 582 N.E.2d 243.) Here, the trial court found that defendant failed to sustain his burden of proof that he was physically unable to complete the breathalyzer test.

Defendant argues that he proved he had a physical handicap that prevented him from completing the test. He notes the testimony by defendant and his corroborating witnesses that he had a heart condition. He also notes that he suffers from shortness of breath upon mild exertion. In addition, he also has a parking sticker for work that allows him to park in the handicapped parking areas. Defendant contends that this evidence was sufficient to show his physical inability to complete the breathalyzer test. The trial court disagreed.

Defendant presented no medical testimony that his heart condition prevented him from giving an adequate air sample when a breathalyzer test is administered. He never explains, other than to state he suffers from shortness of breath on mild exertion, how this condition actually interfered on the night he was arrested. There was no evidence that he had done any “mild exertion” before the test was administered, and in fact, defendant’s testimony was contradicted when Officer McBride testified that defendant was not experiencing shortness of breath at the time.

We also agree with the trial court that the evidence that defendant has a handicapped parking sticker for his car was unpersuasive on the issue of whether defendant could not physically complete a breathalyzer test. It may be that defendant is justified in having a handicapped parking sticker because he cannot walk relatively long distances without becoming short of breath, but possession of such a sticker does not conclusively, prove that defendant physically is unable to give a little puff into a breathalyzer machine. Thus, the court’s determination that defendant’s actions constituted a refusal was not against the manifest weight of the evidence. People v. Bates (1987), 165 Ill. App. 3d 80, 518 N.E.2d 628.

Defendant’s second contention is that the State failed to present any evidence that the breathalyzer machine was functioning properly or that Officer McBride administered the test correctly, after he presented his prima facie case on his physical inability to complete the test. We need not prolong this opinion unduly, but suffice it to say, it was defendant’s burden to make a prima facie case that the test result was inaccurate due to the machine not functioning properly or that the operator did not administer the test correctly. Only then does the burden shift to the State to lay the foundation required under the Illinois Vehicle Code. 625 ILCS 5/11 — 501.2(a) (West 1992); People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210; People v. Hamilton (1987), 118 Ill. 2d 153, 514 N.E.2d 965.

The only way that the machine could be said to have malfunctioned was due to not receiving or registering the air, if any, that defendant blew into it. The defendant never claimed that he blew sufficient air into the machine for it to properly work. Quite to the contrary, defendant testified that he could not blow enough air into the machine for it to work properly. Besides, the State did present evidence, according to the trial judge’s order via Officer McBride’s testimony, that the machine worked when air was blown into it. The trial judge also noted that Officer McBride demonstrated for the defendant how he should blow into the machine. We do not know, nor does the defendant indicate, how the officer could administer the process of blowing into a tube more correctly. Even if we were to construe the evidence so that defendant had established a prima facie case that the breathalyzer machine malfunctioned by not registering his breath, we cannot say that the trial judge’s ruling, when considering all of the evidence, was against the manifest weight of the evidence.

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

Affirmed.

CHAPMAN, P.J., and WELCH, J., concur.