source: Caselaw Access Project

author: PRESIDING JUSTICE UNVERZAGT

license: Public Domain

text:
    DONNA CHESROW, Plaintiff-Appellant, v. DU PAGE AUTO BROKERS, INC., et al., Defendants-Appellees.
    Second District
    No. 2—89—1265
    Opinion filed July 19, 1990.

      Maureen Flaherty, of Lehrer, Flaherty & Canavan, P.C., of Wheaton, for appellant.
    Connie J. Butcher, of Law Offices of Douglas P. Trent, of Carol Stream, for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The plaintiff, Donna Chesrow, appeals from the trial court’s denial of her petition for an award of attorney fees against the defendants, Du Page Auto Brokers, Inc., Thomas Polk, and Louis Anzelmo. Relying on section 10a(c) of the Consumer Fraud and Deceptive Business Practices Act (the Consumer Fraud Act) (Ill. Rev. Stat. 1989, ch. 121 Vz, par. 270a(c)), the plaintiff sought an award of the attorney fees she incurred in defending a prior appeal brought by the defendants.

At issue on appeal is whether the trial court abused its discretion in denying the petition because the plaintiff failed to prove the attorney fees incurred in the prior appeal.

This litigation began with the filing of the plaintiff’s three-count complaint in the circuit court of Du Page County based on the plaintiff’s purchase of a used automobile from the defendants. Count I of the original complaint alleged a revocation of acceptance of the automobile (see Ill. Rev. Stat. 1987, ch. 26, par. 2—608); count II alleged that the defendants violated the Consumer Fraud Act; and count III alleged fraudulent misrepresentation. The jury returned a verdict in favor of the defendants on count I and in favor of the plaintiff on count III. The trial court ruled in the plaintiff’s favor on count II.

The defendants then appealed the entry of judgment against them on counts II and III (No. 2—88—0912), and the plaintiff cross-appealed a portion of the trial court’s ruling on the amount of attorney fees to be awarded her under count II (No. 2—88—0930). This court affirmed the judgment of the circuit court in all regards. Chesrow v. Du Page Auto Brokers, Inc. (2nd Dist. 1989), Nos. 2—88—0912 & 2—88—0930, cons, (unpublished order under Supreme Court Rule 23).

The plaintiff then filed her petition in the circuit court to recover the fees she incurred in contesting the defendant’s appeal of the judgment. The petition alleged that the plaintiff’s attorneys, who charged for their services at the rate of $150 per hour, spent 54.5 hours on the prior appeal and the petition. Accompanying the petition were photocopies of time slips from the plaintiff’s attorneys which purportedly correspond to the work performed on appeal and in preparation of the petition. The notations on the slips include phrases such as: “Prep N/A”; “Rev. Def. Appeal brief”; “appeal”; “worked on appeal”; and “work & research appeal.”

In her petition, the plaintiff noted that the Appellate Court for the Fifth District has held that fees and costs incurred by a prevailing party on appeal can be recovered under the Consumer Fraud Act. (See Warren v. LeMay (1986), 142 Ill. App. 3d 550, 583.) The defendants responded that the Appellate Court for the Fourth District reached a contrary conclusion (see M & W Gear Co. v. AW Dynamometer, Inc. (1981), 97 Ill. App. 3d 904, 915), and they urged the trial court to deny the petition.

Norman Lehrer, one of the plaintiff’s attorneys, testified at the September 12, 1989, hearing on the plaintiff’s petition. Lehrer stated that his firm spent approximately 58 hours on the plaintiff’s appeal. A substantial portion of the work, Lehrer testified, was performed by two other attorneys in his office, and he could not elaborate on what part of the work which they performed corresponded to the time slips filled out by each. Though the defendants’ appeal of the original judgment involved both the Consumer Fraud Act count and the common-law fraud count, Lehrer’s testimony did not indicate which portion of the firm’s work corresponded to each of the two issues. He stated that only two hours were spent on the plaintiff’s cross-appeal.

On September 20, 1989, the trial court announced its ruling on the plaintiff’s petition. The court noted the cases which conflict on the question of whether section 10a of the Consumer Fraud Act allows a party to recover attorney fees incurred on appeal. The court then stated:

“THE COURT: *** I am not basing my decision really on either of those cases with respect to whether attorney fees are appropriate or not because my personal opinion is that attorney fees are appropriate in a consumer fraud action.
*** However, there is no notation in the time sheets of how much of [the attorneys’] time is spent on Mr. Lehrer’s appeal and how much was spent on his cross-appeal or on the appeal in question. Mr. Lehrer *** really couldn’t comment on what most the hours were spent on by either Ms. Flaherty or the associate in his office.
* * *
So although its within my discretion to either follow the Fourth or the Fifth District, that is not the reason I am not awarding fees. The reason I am not awarding fees is it would be purely speculation on the amount based on the time sheets that I have been provided and the testimony.”

After the court denied the petition, the plaintiff filed a motion for reconsideration of the ruling or, in the alternative, to reopen the proofs. The trial court denied the motion, stating that the evidence presented would only have allowed it to “speculate, guess, and use conjecture on what was done” by the plaintiff’s attorneys in the prior appeal. The plaintiff now appeals from the denial of attorney fees and the denial of her motion to reconsider.

Section 10a(c) of the Consumer Fraud Act allows the circuit court to award “reasonable attorney’s fees and costs to the prevailing party” in an action brought under that statute. (Ill. Rev. Stat. 1989, ch. 121½, par. 270a(c).) The decision whether to award attorney fees rests within the sound discretion of the trial court. Factors to be considered in this determination include the time and labor required, the novelty and difficulty of the questions involved, the experience and ability of the plaintiff’s counsel, the skill necessary to perform the legal services rendered, the customary fees charged for such services, and the benefits resulting to the client. Kleidon v. Rizza Chevrolet, Inc. (1988), 173 Ill. App. 3d 116, 123-24.

Our initial inquiry is whether the Consumer Fraud Act allows for the award of attorney fees incurred on appeal as well as those incurred at trial. If fees or costs incurred on appeal are not compensable under the Consumer Fraud Act, then the trial court correctly denied the plaintiff’s petition. We agree with the rationale stated in Warren v. LeMay, where it was held that the Consumer Fraud Act does allow for the award of attorney fees incurred on appeal. The court there stated:

“In view of the statute’s broad remedial purposes, we perceive that the intent of this provision is to compensate a prevailing party for all fees and costs reasonably incurred in connection with the claim brought pursuant to its terms. Where the claim must be litigated not only at trial, but also on appeal, then the attorney fees and costs incurred by the prevailing party in connection with appellate proceedings must be deemed an integral part of that claim and should be recoverable under the statute.” Warren, 142 Ill. App. 3d at 583.

The court in M & W Gear Co. v. AW Dynamometer, Inc., on the other hand, placed undue emphasis on the notion that a statute awarding attorney fees must be strictly construed because it is in derogation of the common law. (M & W Gear Co., 97 Ill. App. 3d at 915.) This approach overlooks the Consumer Fraud Act’s explicit requirement that it “be liberally construed to effect the purposes thereof.” (Ill. Rev. Stat. 1989, ch. 121½, par. 271a.) Allowing plaintiffs to recover fees and costs incurred on appeal is consistent with our statutory mandate to provide appropriate remedies to defrauded consumers. Warren, 142 Ill. App. 3d at 583.

In the instant cause, the trial court apparently felt that it was authorized to award the plaintiff attorney fees incurred on appeal. Nevertheless, the court held that the plaintiff failed to present sufficiently specific evidence to justify an award of fees. The court felt that the time sheets submitted by the plaintiff’s attorneys and attorney Lehrer’s vague descriptions of the appellate work performed left it with no definite notions about what fees were actually incurred in the appeal of the consumer fraud issue.

In In re Marriage of Collins (1987), 154 Ill. App. 3d 655, this court addressed the evidentiary requirements of a petition for attorney fees:

“[T]he usual practice is for the attorney to submit detailed records as to the hours spent and general statements as to such things as number of appearances in court are an insufficient basis for the allowance of attorney fees. *** [It is necessary to provide] details of what was being performed by the attorneys for the hours noted. *** [W]here the hours claimed are grouped together without proper itemization the court may disallow fees for those hours.” (Emphasis added.) Collins, 154 Ill. App. 3d at 660.

Here, the plaintiff did not provide the trial court with any itemization from which the court might have deduced what work corresponded to the time sheets. The notations on the time sheets, such as “appeal” and “work & research appeal,” do not indicate with any specificity what work was performed by the attorneys. Though Lehrer testified about the general .type of work performed, he could not elaborate on the work corresponding to the time sheets, nor could he articulate what work was performed by the other attorneys in his firm.

These concerns are especially relevant in the instant case because the trial court did not have any independent knowledge of the appellate proceedings. When a party seeks attorney fees incurred at trial, factors such as the nature of the controversy and skill of the attorney become evident during the proceedings. (Jiles v. Spratt (1990), 195 Ill. App. 3d 354, 360-61.) Because the court here was not exposed to the appellate proceedings in the same way as it would be exposed to trial proceedings, it was reasonable for the court to insist that the petition be supported by a greater degree of independent proof (see In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 443-44).

Moreover, while the basis of the petition for attorney fees was the Consumer Fraud Act, only a portion of the litigation stemmed from that statute. The defendants also appealed the judgment entered against them on the common-law fraud count of the plaintiff’s complaint. Recovery under the Consumer Fraud Act is different from that under common-law fraud. (Salkeld v. V.R. Business Brokers (1989), 192 Ill. App. 3d 663, 677.) An award of attorney fees may be made only to a party prevailing in an action brought under the Consumer Fraud Act. (Ill. Rev. Stat. 1989, ch. 121½, par. 270a(c).) Though she could only recover for fees incurred in defense of the Consumer Fraud Act count of her complaint, the plaintiff failed to differentiate what part of her attorneys’ work was spent on that issue.

The plaintiff argues that, even if the proof of attorney fees was vague, it is clear that she incurred some attorney fees on appeal and that, therefore, the trial court should not have denied her petition in toto. We disagree. It was incumbent upon the plaintiff to submit sufficient evidence to support her petition for attorney fees. (Collins, 154 Ill. App. 3d at 660.) Absent this proof, the plaintiff cannot rely on a generalized assumption that some fees were incurred without giving the trial court any guidance as to the amount.

Accordingly, we conclude that the trial court did not abuse its discretion in denying attorney fees to the plaintiff because of her failure to prove what compensable fees were incurred on appeal.

The plaintiff also contends that the trial court abused its discretion when it denied her motion to reconsider or, in the alternative, to reopen the proofs. Upon a motion filed within 30 days of the entry of final judgment, a circuit court may vacate or modify the judgment upon terms and conditions deemed reasonable. The decision whether to do so is vested in the sound discretion of the trial court. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 467.) Here, the plaintiff’s motion sought to reargue the same issue, and the plaintiff failed to submit any new argument or authority. Thus, it was within the court’s discretion to deny the motion.

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

Affirmed.

DUNN and GEIGER, JJ., concur.


author: JUSTICE DUNN

text:
    VICKIE V. HARMON et al., Plaintiffs-Appellants, v. LADAR CORPORATION et al., Defendants-Appellees.
    Second District
    No. 2—89—1169
    Opinion filed July 19, 1990.

      Peter A. Lombardo, of William E. Jegen, P.C., of Glen Ellyn (William E. Jegen, of counsel), for appellants.
    Ronald J. Broida, of Goldstine & Broida, Ltd., of Summit (David G. Pribyl, of counsel), for appellees.
   JUSTICE DUNN

delivered the opinion of the court:

Plaintiffs, Vickie and Michael Harmon, appeal from an order of the circuit court of Du Page County denying their motion for turnover order against defendant, Lawrence Mazikowski. Plaintiffs were judgment creditors of LaDar Corporation, a defunct Missouri corporation whose sole shareholders were defendant and his wife, Darlene. Plaintiffs contend on appeal that they were entitled to the relief sought in the motion because (1) fraudulent monetary conveyances were made from LaDar to Mazikowski shortly after plaintiffs filed suit against LaDar in Missouri; (2) LaDar paid Mazikowski illegal dividends after the suit was filed; and (3) defendant failed to pay LaDar $30,000 allegedly due and owing for stock. We reverse and remand.

Plaintiffs filed their Missouri complaint against Mazikowski and LaDar on August 3, 1984. They alleged in the complaint that they purchased a mobile steam and pressure washer from LaDar in April 1984. Plaintiffs further alleged that defendants made a false representation about the washer prior to the purchase and that defendants breached a service contract into which the parties had entered. On January 17, 1985, the trial court in Missouri entered an order denying LaDar’s motion to dismiss but granting summary judgment to Mazikowski.

LaDar’s corporate charter was revoked on January 1, 1986. After the corporation failed to appear at trial, the Missouri court entered judgment against it and in favor of plaintiffs in the amount of $17,000 plus costs on December 17, 1987. By this time, Mazikowski had moved to Carol Stream, Illinois. In September 1988, plaintiffs filed a petition to enroll the Missouri judgment with the circuit court of Du Page County. The next month, plaintiffs filed a citation to discover assets directed against Mazikowski with the circuit court of Du Page County. Plaintiffs requested in the citation that Mazikowski appear for examination on November 22, 1988, and produce various documents and records relating to LaDar.

Mazikowski appeared for the requested examination on January 20, 1990. He testified that LaDar, a dealer for pressure washing and steam cleaning equipment, was in business from December 1983 until June 1984. Mazikowski stated that he entered into an agreement to loan LaDar $40,000 at 12% interest, with repayment to occur over a period of no more than three years. The loan, according to Mazikowski, was not a lump sum, but was taken out over a period of time. Mazikowski stated that he transferred $6,000 from his personal checking account to LaDar’s account on November 22, 1988, and that this was part of the loan. A $13,500 transfer from Mazikowski’s account to the LaDar account on December 6, 1983, was also part of the loan.

After the corporation went out of business in June 1984, Mazikowski liquidated its inventory over a period of nine months and received approximately $15,000, which was initially placed into the corporate bank account. Mazikowski also testified about several payments from the corporation to him between July 1984 and May 1985 that were reflected in the corporate records. According to Mazikowski, the following checks were issued from the corporation to him during this period in repayment of his loan to LaDar: (1) A $1,000 check dated July 23, 1984; (2) a $19,000 check dated August 9, 1984; (3) A $7,701.55 check dated November 3, 1984; (4) a $500 check dated December 28, 1984; and (5) a $1,500 check dated January 15, 1985. Mazikowski stated that a $200 check made out to cash and dated February 8, 1985, was for him. A $300 check dated May 17, 1985, had the notation “vaca” listed on the check stub. Mazikowski did not know what this notation meant. A $300 check made out to Mazikowski and dated May 28, 1985, was reimbursement for travel expenses.

On March 17, 1989, plaintiffs filed their motion for a turnover order against Mazikowski. They alleged in the motion that Mazikowski and his wife treated corporate assets as their own and the corporation was therefore an alter ego of the Mazikowskis. They further alleged that Mazikowski had converted assets of LaDar and that corporate assets had been fraudulently conveyed to him. According to the allegations of the motion, Mazikowski lent about $20,000 to LaDar but had received $40,601.55 from the corporation since it ceased doing business. Plaintiffs sought an order compelling Mazikowski to satisfy the Missouri judgment. They attached a copy of Mazikowski’s citation testimony and copies of certain LaDar check stubs, bank statements, and other records to the motion.

In his response to the motion for turnover order, Mazikowski alleged that he had actually lent $68,490 to LaDar and that LaDar owed him $28,689. Mazikowski attached certain LaDar records to his response. The response was not verified or supported by affidavit. Mazikowski also stated in the response that LaDar was authorized to issue 10,000 shares of stock at a price of $3 per share. In plaintiffs’ reply to the response, they contended this constituted an admission that Mazikowski was obligated to pay LaDar $30,000, since he and his wife were the sole shareholders.

The trial court held a hearing concerning the motion on July 19, 1989, during which the court entertained argument from the parties but did not hear any evidence. Toward the end of the hearing, the trial judge stated that he would deny the motion for turnover order because the motion should have been brought in a Missouri court and because factual issues existed. The trial court entered a written order denying the motion on August 2, 1989, and terminating the citation proceeding. Plaintiffs filed a timely notice of appeal after their motion to reconsider was denied.

The trial judge’s determination that the motion should not have been brought before an Illinois court is clearly erroneous. Plaintiffs filed a petition to register the Missouri judgment with the circuit court of Du Page County pursuant to section 12—603 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 12—603) and had process served upon Mazikowski, LaDar’s registered agent. Under section 12—603, filing such a petition constitutes registration of the judgment. Section 12—607 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12—607) states that if the judgment debtor fails to plead within 30 days of service or the time specified in the summons, the registered judgment becomes a binding judgment in the court in which it was registered. Since LaDar and Mazikowski filed no response to the petition to register, the Missouri judgment became a judgment of the circuit court of Du Page County, enforceable through supplementary proceedings under section 2—1402 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2—1402). Such proceedings would include, in appropriate instances, a motion for a turnover order. (See, e.g., Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 24.) Plaintiffs were clearly entitled to bring their motion for turnover order in the circuit court of Du Page County.

The other reason given by the trial judge for denial of the motion was that issues of fact existed. Ordinarily, if the judgment creditor claims entitlement to the assets of a third party in supplemental proceedings and the third party contests the claim, a trial must be held. (Meggison v. Stevens (1974), 21 Ill. App. 3d 505, 509; see also Roy Strom Excavating & Grading Co. v. National Bank (1972), 4 Ill. App. 3d 561, 566-67.) In Strom, Excavating, the judgment creditors instituted citation proceedings against a third party, and then claimed a fraudulent conveyance had been made to that party. The trial court held a hearing at which it heard arguments of counsel but no evidence on the fraudulent conveyance allegation. The trial court subsequently entered judgment against the third party in the amount of $20,000. (Strom Excavating, 4 Ill. App. 3d at 565-66.) On appeal, the judgment was reversed because no evidentiary hearing was held. 4 Ill. App. 3d at 566-67.

Similarly, in the case at bar, the trial court entered judgment based solely upon the arguments of counsel, and this was clearly improper. We recognize that in proceedings such as these where a judgment creditor seeks entry of judgment against a third party in citation proceedings, the trial court may consider motions for summary judgment filed by the parties. (Federal Insurance Co. v. Maritime Shipping Agencies, Inc. (1978), 64 Ill. App. 3d 19, 27.) Additionally, the parties may stipulate to entry of judgment based upon the pleadings, citation examinations, and other stipulated evidence. (Alan Drey Co. v. Generation, Inc. (1974), 22 Ill. App. 3d 611, 617.) The parties never entered into any such stipulation in the case at bar, however, nor did they file any motions for summary judgment. Under the circumstances, it was error for the trial court to summarily deny the motion for turnover order.

Mazikowski argues that the relief sought in the motion for turnover order is barred under the doctrines of res judicata and collateral estoppel because judgment was entered in his favor in the underlying Missouri lawsuit. We disagree. The doctrine of res judicata provides that a final judgment by a court of competent jurisdiction acts as an absolute bar to relitigation of the same cause of action between the same parties or their privies. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 6.) Collateral estoppel bars relitigation of an issue decided in a prior adjudication if the issue is identical to one in the present proceeding, a final judgment was rendered on the merits, the party against whom the doctrine is asserted was a party or is in privity with a party to the prior litigation, and the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. (Fearon, 131 Ill. App. 3d at 7.) Essentially, the same requisites for application of these doctrines exist in Missouri. See Lewis v. Barnes Hospital (Mo. App. 1985), 685 S.W.2d 591, 594.

Neither doctrine bars the motion for a turnover order here. The cause of action in the original lawsuit was for breach of contract and breach of warranties relating to certain machinery supplied by LaDar to plaintiffs. The motion for turnover order was a distinct cause of action by plaintiffs, who were now judgment creditors for recovery of money allegedly improperly taken from the corporation by Mazikowski. In the original action, the issue decided by the trial court was that Mazikowski could not be held individually liable for breaching the contract between LaDar and plaintiffs or for breaches of warranty. No such issue is present in the instant case.

Finally, plaintiffs have moved to strike certain portions of the statement of facts in Mazikowski’s brief because they are based upon unsworn and unverified statements in Mazikowski’s response to the motion for turnover order. We do not need to rule on this motion since our disposition of this matter has not in any way been influenced by these statements.

For the reasons expressed herein, the judgment of the circuit court of Du Page County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and McLAREN, J., concur.


author: JUSTICE McLAREN

text:
    JAMES H. STACKE, as Ex’r of the Estate of George A. Bates, Deceased, Plaintiff-Appellant, v. MARY LUISE BATES, Defendant-Appellee.
    Second District
    No. 2—89—0960
    Opinion filed July 20, 1990.

      James J. Carroll, of Sidley & Austin, and Allegretti, Newitt, Witcoff & McAndrews, Ltd., both of Chicago, and Perry G. Callas, of Bishop, Callas & Wagner, of Crystal Lake (Robert M. Ward, of counsel), for appellant.
    Stephen H. Katz and Julie DeLara, both of Stephen H. Katz, Ltd., of Waukegan, and Kelley & Associates, of Schaumburg (Jeffrey Lawrence, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiff, James Stacke, as executor of the estate of George Bates (Estate), appeals from several circuit court orders entered in favor of defendant, Mary Bates (Mary). The Estate contends that the court erred by: (1) awarding maintenance in gross after George Bates’ death; (2) awarding a home to Mary; (3) awarding equitable maintenance during the pendency of this appeal; (4) awarding unidentified maintenance during the pendency of a prior appeal; and (5) denying the Estate’s request that Mary submit to a medical examination. We reverse.

This case comes to this court for the third time and brings with it quite a checkered past. The facts have been set forth in this court’s opinions in In re Marriage of Bates (1986), 141 Ill. App. 3d 566, and In re Marriage of Bates (1987), 163 Ill. App. 3d 893. We will provide only those facts necessary for proper background and discussion of the issues presented.

George and Mary were married in January 1976. At that time, George was 71 years old and Mary 39. In April 1980 George filed a petition for dissolution of marriage. Mary filed a counterpetition for legal separation. In 1982 the court denied George’s petition and in 1984 granted Mary’s petition.

George was ordered to pay $10,000 per month in unallocated support. Additionally, George was ordered to make available a sum of up to $300,000 for a home in which Mary could reside. George was also required to provide $50,000 for furnishings and $18,000 for the purchase of a new car for Mary. George sold a Remington bronze statue which he had acquired prior to the marriage to raise the necessary funds to comply with the court’s order. The statue was sold for $425,000, $300,000 of which George used to purchase a home for Mary in Inverness, Illinois. Title to the home was placed in a land trust, and the parties were the beneficial owners as tenants in common.

Both parties appealed from the court’s order. On March 14, 1986, this court reversed the trial court and found that George’s petition for dissolution of marriage should have been granted. We remanded the case and directed the trial court to “enter an immediate order of dissolution” and to “reconsider the issues of maintenance and attorney fees.” Bates, 141 Ill. App. 3d at 575.

On September 30, 1986, and in accordance with this court’s mandate, the trial court entered a judgment of dissolution and reserved all financial issues for a later hearing. On October 3, Mary filed a motion to vacate the September 30 judgment order. George died on December 18, prior to the hearings on the motion to vacate and the financial issues.

The Estate filed a motion to compel Mary to be examined by a physician. It argued that this examination was necessary to prepare for its case on the financial issues. The court denied the Estate’s motion.

On March 5, 1987, the court granted Mary’s motion to vacate the September 30, 1986, order of dissolution. The Estate appealed from this ruling. On October 22, 1987, while the second appeal was pending, the court entered an order directing the Estate to pay Mary $2,500 per month in unidentified support. The court did not specify its theory for such payments. The court did state that any payments made would be offset against any final award. The Estate has made these payments as ordered.

In December 1987, this court rendered its decision on the second appeal regarding the vacation of the order of dissolution. We again reversed the trial court and directed it “to immediately reinstate said judgment and conduct further proceedings on the issues of maintenance and attorney fees as directed in the previous opinion of this court.” (Bates, 163 Ill. App. 3d at 900.) On June 27, 1988, the trial court reinstated its judgment of dissolution according to this court’s mandate.

On October 31, 1988, the court conducted an evidentiary hearing on the remaining financial issues. The Estate presented evidence establishing that there was very little marital property. The marital estate was supported throughout its brief existence by the proceeds received from the liquidation of George’s nonmarital estate. The Estate also presented evidence to establish that the funds used to purchase the home for Mary were acquired by selling George’s nonmarital property. Mary also admitted this fact. Mary produced no evidence to refute the Estate’s claim that there was no marital property. Instead, her evidence related to her poor health and her need for maintenance.

On August 31, the court announced its ruling on the property issues. The court found that there was little marital property and did not make a marital property distribution. Mary was awarded her non-marital property, and the Estate was awarded George’s nonmarital property. The court, finding that what is now section 510(c) (Pub. Act 85—1001, eff. July 1, 1988, renumbered section 510(b) to 510(c)) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)) did not apply to the situation at bar, awarded Mary maintenance in gross. This award consisted of the home in Inverness with a stipulated value of $400,000, the contents of the home, $1,700,000 in cash and the automobile previously purchased for Mary. The Estate appeals from this award.

On October 3, 1989, this court granted the Estate’s motion to stay the payment of the maintenance in gross award pending appeal. Mary then petitioned the trial court for equitable maintenance pursuant to section 504(c) of the Act. On October 17, the trial court granted Mary’s petition and directed the Estate to pay equitable maintenance of $12,000 within seven days and $6,000 per month thereafter pending appeal. On October 25, this court granted the Estate’s motion for a stay of these equitable maintenance payments and directed the trial court to refrain from making any other maintenance awards.

Mary filed a petition for leave to appeal from this court’s stay order in the supreme court. Mary also requested a supervisory order vaeating the stay. The supreme court allowed the filing of the petition on January 31, 1990. The case has been argued and is under advisement.

The first issue is whether the court had the authority to enter an order awarding Mary maintenance in gross after George’s death. In a dissolution proceeding the court has no general equitable powers and may only exercise authority pursuant to specific statutory grant. (Mueller v. Mueller (1977), 49 Ill. App. 3d 666, 670.) It is obvious that, in general, the court has the authority to award maintenance in gross. (See Ill. Rev. Stat. 1987, ch. 40, pars. 504(a), (b).) What is not so obvious is the court’s authority to enter an award of maintenance in gross after George’s death.

In Cross v. Cross (1955), 5 Ill. 2d 456, a divorce decree was entered expressly reserving for further determination the issues of alimony and property rights. Prior to determination of the issues regarding alimony and property rights, the husband died. The ex-wife sought, inter alia, alimony in gross. The trial court denied her request. The supreme court affirmed this decision, stating:

“In all cases involving alimony installments there is that same risk that the intervening death of the ex-husband would prejudice the divorced wife in that she is deprived of her distributive share of his estate by virtue of the divorce, and at the same time her alimony payments would be terminated. Hence, there is little justification for applying a different rule in the circumstances of the instant case. Any interpretation that such alimony payments could be authorized *** after the death of the ex-husband, in the absence of such an express provision in the decree, would not only be contrary to established precedent in Illinois, but would be at variance with the avowed objective of alimony, which is to continue in a measure the obligation of support that exists only during the lifetime of the parties, and would be confusing this obligation with the matter of dividing the property of the parties. Hence, we cannot sustain appellant’s argument that because the right to permanent alimony was reserved for future adjudication in the divorce decree, it could be awarded after the death of her ex-husband.” (Emphasis added.) (Cross, 5 Ill. 2d at 463-64.)

This court has found that, while property issues do survive the death of a spouse, “[i]t is consistent with the underlying rationale of the act to allow a party to claim a fair share of the property while finding that maintenance is barred by the death of the other party.” In re Marriage of Garlinski (1981), 99 Ill. App. 3d 107, 110. See also Howard v. Howard (1977), 49 Ill. App. 3d 441, 444 (“The reservation of rights in the reconciliation filed in the circuit court did not entitle plaintiff to an award [of alimony] after the death of her husband”). (Emphasis in original.)

Mary alleges that section 510(c) of the Act in its amended form authorizes the court to award maintenance after the death of the payor spouse. The relevant portion of section 510(c) states:

“Modification and termination of provisions for maintenance, support and property disposition
* * *
(c) Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance ***.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 40, par. 510(c).)

The Estate argues that this provision precludes the award of maintenance after a spouse’s death absent some form of agreement between the parties. Mary argues that this provision does not preclude the award of maintenance after a spouse’s death. She contends the phrase “or otherwise approved by the court” provides the court with the authority to order maintenance after a spouse has died. The trial court found that section 510(c) is inapplicable to the case at bar as it deals with termination of maintenance at death and not whether maintenance may be initially awarded after death.

We agree with the trial court that section 510(c) does not apply to this situation. Section 510 pertains only to modification and termination of maintenance awards. It is axiomatic that a court cannot modify or terminate an award if there is no award. Section 510 is premised on the fact that there is an existing award. Section 510 may authorize a court to enter an order during the lifetime of the payor spouse to continue an existing maintenance obligation after the death of the payor spouse, but it does not grant the court authority to enter, after the death of the payor spouse, an order granting maintenance. Additionally, section 510(c) deals with an obligation to pay future maintenance. In a case in which maintenance in gross is awarded there is no future obligation.

Mary contends that In re Marriage of Freeman (1985), 106 Ill. 2d 290, requires this court to affirm the trial court’s post-death award of maintenance. However, Freeman is distinguishable in one important respect: the payor spouse was alive at the time the court initially awarded maintenance, and the issue was the termination of that existing award. (Freeman, 106 Ill. 2d at 293.) Mary has not cited, nor has this court found, any case in which an initial maintenance award was affirmed when that award was made after the payor spouse’s death. This is due to the fact that the basic rationale for maintenance applies only during the lifetime of the parties. See Cross, 5 Ill. 2d at 464.

As previously, set forth, a court may only exercise authority specifically granted by statute in a dissolution proceeding. (Mueller, 49 Ill. App. 3d at 670.) There is no statutory authority to enter an award of maintenance after the payor spouse has died. In fact, the Act requires the court to consider “the age and the physical and emotional condition of both parties” when awarding maintenance. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)(5).) We believe that the legislature’s inclusion of these factors requires the conclusion that the legislature presumed that the parties would be alive at the time an initial award of maintenance is ordered.

As George died prior to the initial award of maintenance, we find that the court did not have the power to award maintenance. Therefore, the maintenance in gross award consisting of the home in Inverness, the contents thereof, $1,700,000 in cash and the automobile must be reversed.

Mary argues that the home in Inverness should be awarded to her as it is marital property. This is contrary to the court’s finding, “[t]hat there is little marital property.” The court did not award Mary the home as a distribution of marital property but as part of the maintenance in gross award. The court’s finding that the Inverness home was not marital property is not against the manifest weight of the evidence. Mary admitted that a nonmarital asset was sold and the proceeds used to purchase the home. It is clear that property acquired in exchange for nonmarital property is designated as nonmarital. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(2); In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 777.) The court did not abuse its discretion in determining that the home was not a marital asset.

We now turn to the issue of whether George’s death precludes the award of equitable maintenance. There is no reason to treat equitable maintenance awarded pursuant to section 504(c) of the Act any differently from maintenance awarded pursuant to section 504(a) of the Act. Since the court is without authority, after George’s death, to award maintenance, it is without authority, after George’s death, to award equitable maintenance pending appeal.

The Estate has asserted that the trial court erred in awarding unidentified support of $2,500 per month to Mary after it had vacated the bifurcated judgment of dissolution. The Estate has, however, asserted that it will waive this issue if this court reverses the maintenance awards. Since this court has determined that the maintenance awards must be reversed, we deem this issue to be waived.

The issue regarding whether the court erred in denying the Estate’s request to compel Mary to submit to a medical examination need not be discussed due to our resolution of this case.

For the foregoing reasons, paragraph 2 of the September 21, 1989, circuit court order beginning with the phrase, “[t]he Estate of George Bates shall pay to the Respondent,” is reversed in its entirety. All other findings and awards set forth in that order are affirmed. Also, the circuit court order dated October 17, 1989, is reversed in its entirety.

Affirmed in part; reversed in part.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RALPH FOSTER JACKSON, Defendant-Appellant.
    Second District
    No. 2—89—0686
    Opinion filed July 19, 1990.

      Frederic R. Klein and Shirley M. Lukitsch, both of Schiff, Hardin & Waite, of Chicago, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Ralph Foster Jackson, appeals from an order of the circuit court of Du Page County denying his second amended petition for post-conviction relief (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.).

Defendant raises the following issues on appeal: (1) whether he was denied due process in his original sentencing hearing; and (2) whether he was denied effective assistance of counsel when his trial counsel failed to present certain mitigation witnesses at his sentencing hearing.

On March 20, 1981, after a jury trial, defendant was found guilty of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11—1), deviate sexual assault (Ill. Rev. Stat. 1979, ch. 38, par. 11—3), and robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18—1) of Mary W. The trial court sentenced defendant to concurrent 30-year terms of imprisonment for rape and deviate sexual assault and a concurrent seven-year term of imprisonment for robbery. This court, on October 7, 1982, affirmed the convictions and sentences in an unpublished order pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23). People v. Jackson (1982), 109 Ill. App. 3d 1216, 451 N.E.2d 1042.

Defendant’s convictions stem from an incident on December 2, 1980, in which Mary W. was accosted at the Fox Valley Shopping Center by a muscular black man later identified as defendant. Defendant grabbed Mary W. in the parking lot near the Chicago Health Club and dragged her to a nearby stairwell where he forced her to perform oral sex upon him. Defendant then raped and robbed the victim. She sustained bruises and a swollen eye as a result of the attack.

At the May 1, 1981, sentencing hearing, as evidence in aggravation, the State presented the testimony of Ruth Luthringer, who had been defendant’s landlady in Oak Park, Illinois. In November 1980, Luthringer visited defendant at his apartment to collect past-due rent from him. A dispute ensued, and defendant grabbed Luthringer, shook her, and pushed her backward over the stove. After she began to scream for help, defendant placed his hand over her mouth, threw her to the floor, and started to shake her. He then “jerked” her up and shoved her toward the door. Defendant then grabbed her again, she began screaming, and, at about that time, the police arrived.

The State also presented the testimony of Betty K., who testified that, on the evening of June 27, 1979, she agreed to give defendant a ride when she was on her way to work. Defendant was a neighbor, and Betty K. had spoken to him regarding the purchase of an automobile. At one point, Betty K. allowed defendant to drive her car. Defendant drove to a secluded location, and when Betty K. got out of the car to resume driving, defendant told her to take off her clothes. Although Betty K. tried to run away, defendant stopped her and threatened to hurt her if she did not comply. After defendant forced her to disrobe, he made her perform an act of oral sex. He then raped her on the ground, drove her home, and threatened to cause trouble for her or have her killed if she went to the police. When she got home, Betty K. bathed, changed her clothes, and went to work, but she did not stay there. She went to the hospital for an examination and reported the incident to the police.

Deputy Sheriff Philip Moore testified that on January 30, 1981, he was working at the Du Page County jail when he served defendant with an arrest warrant and indictment for the rape and deviate sexual assault of Betty K. The officer said that defendant admitted that he raped Betty K., but defendant asked how he could be charged with an offense that happened a long time ago.

In his testimony, defendant essentially denied that he had attacked Luthringer, that he had raped and sexually assaulted Betty K., or that he made any admissions to the officer. No other witnesses testified in behalf of defendant. Defendant’s attorney argued that defendant was not the type of person who would commit these offenses and pointed out defendant’s lack of a prior criminal record. Defense counsel then asked for leniency.

The trial court noted that it had no doubt that defendant had committed the rape for which he was found guilty, and it disbelieved defendant’s version of the incident involving his landlady. The court further stated that defendant committed a sexual assault and rape of Betty K. The court also noted that defendant exhibited no remorse and that Betty K. had no motive to lie. The trial court found that, in view of the nature of the attack on the victim in this case, Mary W., and the death threats made to her, the defendant was a very serious threat to the community. The trial court sentenced defendant to the maximum imprisonment sentences of 30 years for the sexual offenses and seven years for the robbery, to be served concurrently.

In July 1981, when defendant was subsequently tried before a jury on the Betty K. charges, a mistrial was declared due to a hung jury. In April 1982, a stipulated bench trial was held in which the trial court received evidence including the transcript of the testimony given at the jury trial held in July 1981, and a transcript of the testimony given by Betty K. at the sentencing hearing held on May 1, 1981. The bench trial resulted in an order filed April 6, 1982, finding defendant not guilty of the charges of rape and deviate sexual assault of Betty K.

On November 17, 1988, and June 22, 1989, the circuit court heard arguments in support of defendant’s petition for post-conviction relief as amended. It is clear from the transcript of the post-conviction hearing that the trial judge did consider Betty K.’s testimony regarding the alleged sexual offenses committed by defendant upon her in fashioning the sentences for the Mary W. convictions, and it is clear that this testimony did affect the sentences. The trial judge also stated that he treated Betty K.’s testimony as evidence of an occurrence which had a bearing on defendant’s character and his potential for rehabilitation and not as a conviction.

At the hearing on the post-conviction petition, the trial court also stated its belief that the failure of defense counsel at the sentencing hearing to present character witnesses in mitigation, including the testimony of defendant’s parents and testimony of two other witnesses that was remote in time, would not have affected the sentencing of defendant. Finding no error of constitutional dimensions, the trial court denied defendant’s petition for post-conviction relief.

On appeal, defendant contends that this case should be remanded to the trial court for a new sentencing hearing because: (1) applying People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618, he was denied due process when the trial court considered evidence of a pending charge for which he was subsequently acquitted; (2) the trial court premised its sentence on the mistaken belief that defendant had been convicted of the sexual offense against Betty K.; (3) the trial court denied him due process when it determined that he was guilty of the sexual offense against Betty K.; and (4) he was denied effective assistance of counsel when trial counsel failed to introduce certain mitigation witnesses at his sentencing hearing.

We turn first to defendant’s contention that People v. Dean (1987), 156 Ill. App. 3d 344, 509 N.E.2d 618, requires remandment for a new sentencing hearing. In Dean, the appellate court held that in sentencing the defendant the trial court’s reliance on evidence of another offense for which defendant was subsequently acquitted required remandment to the trial court for a new sentencing hearing. 156 Ill. App. 3d at 355, 509 N.E.2d at 625.

We decline to follow Dean for two reasons. First, Dean relies on several cases that do not support its holding. In United States v. Tucker (1972), 404 U.S. 443, 30 L. Ed. 2d 592, 92 S. Ct. 589, a case cited in Dean, the United States Supreme Court remanded for a new sentencing hearing because the trial court in sentencing the defendant relied on two prior convictions which were subsequently set aside as constitutionally infirm. The Supreme Court founded its holding in Tucker on the fact that the sentence was based at least “in part upon misinformation of constitutional magnitude.” (404 U.S. at 447, 30 L. Ed. 2d at 596, 92 S. Ct. at 592.) In Dean, as in this case, the defendant was not convicted of the other offense at the time he was sentenced on the instant conviction; thus, the trial court did not rely upon “misinformation.” Tucker is further distinguishable from Dean and the present case because in Tucker the convictions of defendant were set aside based on constitutional infirmities, whereas in Dean and here, defendant was simply acquitted based on the evidence. Any suggestion in Dean that an acquittal of a defendant prior to his sentencing would preclude consideration of the evidence which led to the acquittal for purposes of sentencing is erroneous. See 3 W. LaFave & J. Israel, Criminal Procedure §25.1(g), at 119 (1984); United States v. Morgan (9th Cir. 1979), 595 F.2d 1134; State v. Herzog (1989), 112 Wash. 2d 419, 771 P.2d 739.

Dean also relies on People v. Henderson (1981), 95 Ill. App. 3d 291, 419 N.E.2d 1262, and People v. Beyah (1979), 72 Ill. App. 3d 690, 391 N.E.2d 96, to support its holding. Both of those cases are distinguishable from Dean and this case as they addressed the propriety of a trial court’s consideration at sentencing of prior convictions which, unknown to the sentencing judge, were subsequently reversed. See Henderson, 95 Ill. App. 3d at 297, 419 N.E.2d at 1266; Beyah, 72 Ill. App. 3d at 697, 391 N.E.2d at 101.

We also decline to follow Dean because it conflicts with the general rule in Illinois allowing a trial court in a sentencing hearing to consider evidence of other criminal conduct, absent a conviction thereon, provided that evidence is relevant and reliable. (People v. La Pointe (1981), 88 Ill. 2d 482, 498, 431 N.E.2d 344; see also People v. Richardson (1988), 123 Ill. 2d 322, 361-62, 528 N.E.2d 612.) While trial judges must be cautious in admitting such proof and sensitive to the possibilities of prejudice to the defendant if such information is inaccurate, it is clearly admissible under the appropriate circumstances. (La Pointe, 88 Ill. 2d at 499, 431 N.E.2d at 351-52.) The holding in Dean effectively neutralizes that general rule where such evidence provides the basis for an acquittal of defendant in a separate proceeding. Dean provides no support, nor can we identify any, for such a result.

Finally, we would point to the recent case of Dowling v. United States (1990), 493 U.S. 342, 107 L. Ed. 2d 708, 110 S. Ct. 668, as further support for our criticism of and refusal to follow Dean. In Dowling, the Supreme Court held that it does not violate the due process test of fundamental fairness to consider, in a criminal trial on the issue of a defendant’s guilt, evidence of criminal conduct relating to an alleged crime that defendant has been previously acquitted of committing in a separate proceeding. (Dowling, 493 U.S. at _, 107 L. Ed. 2d at 720-21, 110 S. Ct. at 674-75.) Additionally, it has been held that limitations on the admission of evidence at trial do not apply equally to a sentencing hearing as it is necessary to the intelligent disposition of a sentence that the trial court be able to utilize all relevant and accurate information. (La Pointe, 88 Ill. 2d at 496-98, 431 N.E.2d at 350-51.) Thus, if consideration of evidence of criminal conduct in a separate proceeding that defendant was previously acquitted of may be considered in a criminal trial, then it certainly may be considered under the less restrictive rules applicable to a sentencing hearing. We believe the holding in Dean is inconsistent with this conclusion and should not be followed.

We next address defendant’s contention that the trial court denied him due process by basing the sentence, in part, on its mistaken belief that defendant had been convicted of another sexual offense. Defendant argues that this case is similar to Townsend v. Burke (1948), 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252, in that the trial court imposed its sentence, in part, on the assumption that defendant had been convicted of a separate sexual offense when in fact he had not been.

Defendant’s argument is based on his characterization of the trial judge’s comments at his original sentencing hearing as indicating that the trial judge believed defendant had been found guilty of the sexual assault and rape of Betty K. Defendant points to one sentence from the transcript of the sentencing hearing in which the trial judge, in discussing the various aggravating and mitigating factors, stated that “[t]he defendant committed a sexual assault and a rape on Mrs. K__”

We do not perceive the trial judge’s comment, however, to reflect a belief on his part that defendant had been convicted of sexual offenses by assaulting and raping Betty K. The word “committed” is not synonymous with “convicted” and certainly can be reasonably interpreted as meaning that the trial judge found that defendant had engaged in certain conduct against Betty K. Furthermore, the trial judge also commented that “Mrs. [K.] had absolutely no motive to lie” and “there could be no misidentification with respect to Mrs. [K.].” Both of these statements, which reflect the trial judge’s evaluation of the evidence as to whether defendant did in fact engage in conduct against Betty K., are inconsistent with defendant’s argument that the trial judge believed defendant had already been convicted of sexually assaulting and raping Betty K. Moreover, in considering defendant’s petition for post-conviction relief, the same judge interpreted the comment relied upon by defendant in the following manner:

“I didn’t consider the evidence presented as a conviction. It was just testimony regarding an occurrence which coincidentally happened to relate to a crime and a pending charge.
But in this case, I didn’t consider a conviction. I considered testimony from Mrs. [K.].
* * *
All I can tell you is: (1) I remember I relied on Mrs. [K’s.] testimony. I believe that there was a sexual assault and I am using that in the generic sense, not whether or not there is proof beyond a reasonable doubt that the offense occurred, based on all of the other circumstances.”

On this record, defendant’s characterization of the trial judge’s comment at his original sentencing hearing as reflecting the trial judge’s belief that defendant had been previously convicted of sexual assault and rape is inaccurate, and his argument under Townsend must fail.

Defendant next maintains that he was denied due process because at his original sentencing hearing the trial court determined that he was guilty of sexually assaulting and raping Betty K., thus treating those charges as tantamount to evidence of a conviction. Such an argument is unpersuasive, however, in light of our previous interpretation of the trial court’s comments regarding its assessment of Betty K.’s testimony. Further, any presentation of evidence regarding other criminal conduct allegedly engaged in by a defendant being sentenced necessarily requires a determination of whether that defendant did in fact engage in the alleged conduct. Such a finding is not tantamount to a determination of guilt such that the sentencing court would treat such a finding as equivalent with a guilty finding for purposes of sentencing the defendant. Further, the due process clause is not offended when a trial court in a sentencing hearing considers evidence of other criminal conduct which has not resulted in a prosecution and conviction, provided that evidence is relevant and reliable. (People v. La Pointe (1981), 88 Ill. 2d 482, 498, 431 N.E.2d 344.) Accordingly, we find defendant’s contention in this regard to be without merit.

Defendant’s last contention is that he was denied effective assistance of counsel at his sentencing hearing because his attorney failed to call certain witnesses in mitigation. The State first responds that defendant’s argument is waived because it was not raised in his direct appeal.

Defendant’s argument in his post-conviction petition relies on affidavits of several potential mitigation witnesses. Those affidavits were not part of the record on appeal. Thus, defendant could not have raised the issue in his direct appeal, and the issue is not waived here. Cf. People v. Caballero (1989), 126 Ill. 2d 248, 274, 533 N.E.2d 1089.

In order to establish the ineffective assistance of counsel, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (People v. Shum (1987), 117 Ill. 2d 317, 369-70, 512 N.E.2d 1183.) Regarding the first element of this test, an alleged incompetency arising from a matter of tactics or strategy will not support a claim of ineffective representation. (Shum, 117 Ill. 2d at 370, 512 N.E.2d at 1205.) Furthermore, the failure to offer evidence in mitigation of sentence does not, in and of itself, demonstrate incompetence (Shum, 117 Ill. 2d at 370, 512 N.E.2d at 1205), and a competent attorney may decide, in an appropriate case, to forego presenting mitigating evidence and, instead, plead for mercy. (See People v. Caballero (1989), 126 Ill. 2d 248, 274-75, 533 N.E.2d 1089.) In all cases where the drawbacks of potentially mitigating evidence are obvious from the record, we must presume that the drawbacks,, and not counsel’s lack of diligence, were behind counsel's decision. Caballero, 126 Ill. 2d at 275, 533 N.E.2d at 1098.

In the present case, defendant relies on the affidavits of his parents as well as an affidavit of his high school principal and an acquaintance, the latter two who have had no contact with defendant since defendant graduated from high school in 1970, as evidence of mitigation which his trial counsel should have introduced at his sentencing hearing. We believe that trial counsel’s failure to present any of these witnesses in mitigation was a matter of trial tactics and strategy in this case. There is no suggestion in the affidavits that defendant’s trial counsel did not discuss the sentencing proceedings with defendant or that counsel refused to call these witnesses. The two nonfamily witnesses had no contact with defendant for over 10 years. Accordingly, they would have shed no light on defendant’s recent character. Furthermore, the record shows that defendant’s parents had relatively infrequent personal contact with defendant over the past 10 years. Moreover, defendant’s parents would not be overly persuasive mitigation witnesses as their bias towards defendant would be obvious. Most of what is stated in the parents’ affidavits as to what they would have testified to is contained in the presentence report. Trial counsel did advance evidence in mitigation at the sentencing hearing through defendant’s own testimony of his denial of an altercation with his landlady and of his denial of the sexual assault of Betty K. as well as counsel's argument for leniency in sentencing because of defendant’s lack of any prior criminal record and his personal background as shown in the presentence report. On this record, we do not attribute counsel’s decision not to present this evidence as a lack of diligence resulting in incompetent representation.

Additionally, defendant suffered no prejudice as a result of trial counsel’s failure to present these witnesses in mitigation. As noted above, defendant’s parents were obviously biased toward defendant, and the other two had no contact with him for over 10 years prior to his trial. Furthermore, there was considerable evidence in aggravation showing defendant’s violent tendencies, including the evidence that defendant had sexually assaulted and raped another victim recently. In light of the limited value of the now proposed mitigation evidence and the evidence that was before the court at the sentencing hearing, we cannot say that trial counsel’s failure to present this mitigation evidence created a reasonable probability that, but for counsel’s decision, the outcome of the sentencing hearing would have been different.

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

Affirmed.

UNVERZAGT, P.J., and INGLIS, J., concur.


text:
    CALVARY TEMPLE ASSEMBLY OF GOD, Plaintiff-Appellee, v. EUGENE LOSSMAN et al., Defendants-Appellants.
    Second District
    No. 2—89—0999
    Opinion filed July 20, 1990.

      Hercules Paul Zagoras & Associates, Ltd., of Waukegan (Hercules Paul Zagoras, of counsel), for appellants.
    Robinson & Brebner, of Lake Bluff, Lee A. Sparks, of Law Office of Lee A. Sparks, of Zion, Mark H. Beaubien, Jr., of Lake Zurich, and Larry M. Clark, of Mundelein (Thomas A. Robinson, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendants, Edward Lossman, Harvey Lossman, and Doris Loss-man, appeal from a circuit court order granting specific performance of a real estate sales contract to plaintiff, Calvary Temple Assembly of God. Defendants contend that: (1) by its own terms, plaintiff’s offer to purchase the real estate expired before it was accepted by defendants; (2) the court erred by receiving evidence of the size and location of a parcel of the real estate in order to carve out a life estate for one of the sellers; (3) the court erred in finding that the conditions of the contract had been performed or waived; and (4) the court erred in excluding the testimony of an appraiser who had not been revealed pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220) but whose appraisal had been provided to plaintiff nine months prior to trial. We reverse.

As we have decided this case on the issue related to the life estate reserved in one of the sellers, we will present only those facts pertinent to that issue.

This suit involves the sale of a 31.1-acre piece of property owned by four brothers, Edward, Alvin, Eugene and Harvey Lossman. Eugene lives in a house on the property with his wife Dorothy, and Harvey lives in a second house on the property with his wife Doris. Alvin died in January 1987.

On March 19, 1987, Calvary prepared a “Contract to Purchase Real Estate.” This contract was sent to attorney Mark Beaubien, who represented Eugene and Dorothy. The contract proposed giving a life estate to Harvey in “the residence which he occupies on the subject property.” Closing for the transaction never occurred although attempts to close were made as late as July 31,1987.

Calvary filed its complaint on February 3, 1988, seeking only specific performance. Calvary filed an amended complaint on June 22, 1988, also seeking only specific performance. Harvey and his wife Doris filed their answer and four affirmative defenses on August 3. A fifth affirmative defense was filed on November 16, alleging, inter alia, that the purchase price is so low as to shock the conscience of the community.

On December 28, Eugene and Edward filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—619). The court denied this motion on February 8, 1989, and ordered an answer to be filed within 14 days. An answer and affirmative defenses were filed on February 21.

On August 23, the day of trial, Calvary filed a motion seeking leave to respond to the affirmative defenses filed by the defendants. The court allowed the responses to be filed instanter.

At the close of plaintiff’s case, Doris, Harvey, and Edward moved for judgment. The court denied this motion. On August 28, Eugene and Dorothy moved the court to allow them to file their answer and affirmative defenses to Calvary’s first amended complaint. The court allowed the filing of the answer but denied the filing of the affirmative defense.

On August 31, the court entered judgment for Calvary and ordered Harvey, Edward, Eugene, Dorothy and Sarah, Alvin’s widow, to perform the contract. The court also required Harvey to tender a warranty deed reserving for himself a life estate in his residence. The court included a legal description of the life estate. The court also ordered the homestead rights of Doris to remain unaffected. The trial court stayed enforcement of this order pending appeal. Harvey, Doris and Edward appeal from the court’s order.

The rider to the contract stated, “Buyer shall grant to Harvey Lossman a life estate in the residence which he occupies on the subject property as of the date of the execution of this contract.” Defendants contend that the description of the life estate reserved in Harvey was ambiguous and insufficient. Therefore, the court could not award specific performance. Plaintiffs claim that the phrase “in the residence which he occupies” is sufficient to identify the property and is unambiguous. Plaintiffs argue that the property does not have to be “so specifically described as to admit of no doubt as to what it is,” and extrinsic evidence may be used to pinpoint the location of the property.

An award of specific performance is within the discretion of the trial court, and its decision will not be disturbed unless it is contrary to the manifest weight of the evidence and, thus, an abuse of discretion. (Mearida v. Murphy (1982), 106 Ill. App. 3d 705, 709.) In reviewing the propriety of the court’s decree of specific performance, the essential inquiry is whether plaintiffs have established the existence of a valid and enforceable contract. (Intini v. Marino (1983), 112 Ill. App. 3d 252, 254.) A court will not decree specific performance if the existence of a valid contract is a matter of doubt. (Milani v. Proesel (1958), 15 Ill. 2d 423, 430.) Additionally, a judgment of specific performance is proper only when the contract sought to be enforced is clear, definite, and complete. (Dodds v. Giachini (1979), 79 Ill. App. 3d 358, 364, rev’d on other grounds (1981), 84 Ill. 2d 284.) The contract must, on its face, describe a particular tract of land and cannot rest partly in writing and partly in parol. (Bliss v. Rhodes (1978), 66 Ill. App. 3d 895, 897.) “Thus, the function of a court in a suit for specific performance is to enforce a contract as made by the parties and not to make a contract for them and then enforce the contract thus made.” Dodds, 79 Ill. App. 3d at 364.

In Thomas v. Pope (1942), 380 Ill. 206, 213, our supreme court stated:

“It is elementary that in order to enforce specific performance of a contract for the sale of land the contract must be complete in itself. It must definitely point out the land to be conveyed and furnish the means of identifying the land before a court of equity will decree specific performance. Where the description is indefinite or ambiguous on the face of the contract itself the uncertainty of description cannot be cured by extrinsic evidence.” (Emphasis added.) (Thomas, 380 Ill. at 213.)

Similarly, in Dodds, the plaintiffs sought specific performance of a lease. However, the space to be leased was not set forth in the agreement. The court, citing Thomas, held that specific performance could not lie. The court stated:

“While we feel that extrinsic evidence would provide the space the parties intended for the lease, Illinois law prohibits the use of extrinsic evidence to cure indefiniteness in an action for specific performance.” (Dodds, 79 Ill. App. 3d at 364.)

The appellate court’s decision was overruled by the supreme court on other grounds but this part of the appellate court’s decision was confirmed. Dodds v. Giachini (1981), 84 Ill. 2d 284, 301.

In McDaniel v. Silvernail (1976), 37 Ill. App. 3d 884, the plaintiff had leased a certain portion of property owned by the defendant. The parties then entered into an agreement whereby the defendant agreed to sell this portion of land to the plaintiff. The agreement provided:

“I agree to sell to George McDaniel the house on R.R.2, in which he now lives, plus two acres, xxx for $6,000. to be agreed.
Alfreida Silvernail”
(McDaniel, 37 Ill. App. 3d at 886.)

The court determined that specific performance could not be granted as it was impossible to determine which two acres the plaintiff was buying. (McDaniel, 37 Ill. App. 3d at 887.) The court stated:

“Plaintiffs have attempted to cure the uncertain description. They argue parol evidence is admissible to show the .intention of the parties. However, the essential terms of a real estate contract must be wholly in writing. [Citation.] Extrinsic evidence is not permissible to cure a patent ambiguity. [Citations.] This agreement, to sell ‘two acres, xxx for $6000. to be agreed,’ is patently ambiguous. In order to be specifically enforceable the contract must be ‘definite, certain, complete and conclusive.’ ” (McDaniel, 37 Ill. App. 3d at 887.)

In the case at bar, it is clear that the contract was ambiguous on its face. The only evidence to identify the life estate was that it was Harvey’s “residence.” Apparently, the court relied on a plat upon which Harvey outlined his “residence” during Sarah’s deposition on August 2, 1989. However, Harvey testified that the outline of his residence on the plat “was read as approximate. It is not accurate.” Harvey stated that the outline was “the general area” of his residence. Additionally, this occurred more than two years after the execution of the contract and in preparation for trial. From this evidence, the court constructed a legal description of the life estate and included it in the judgment order. A clear or unambiguous description of the life estate was never placed in evidence.

Defining the life estate as “the residence which he occupies on the subject property” is insufficient. It is not clear from the face of the agreement if this estate includes any land around his home, the garage, any storage sheds, or only the home structure itself. This is similar to McDaniel in that it is not clear from the document what portion of the property is subject to the life estate. This confusion arises because the parties are trying to carve a life estate out of a larger tract of land without being specific as to the legal description of the life estate. In this case, it was necessary to look outside the document at extrinsic evidence to determine the bounds of the life estate. Such an analysis is not appropriate in an action for specific performance. Since the agreement contemplated a life estate to be reserved in Harvey and the life estate fails for lack of a sufficient description, it was error for the court to award specific performance in this case.

The judgment of the circuit court of Lake County is reversed.

Reversed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE INGLIS

text:
      In re JOHN R. LUNDAHL, Alleged Disabled Person (Keith E. Roberts, Sr., Guardian of the Estate of John R. Lundahl, Appellant; Paul Didzerekis, Appellee).
    Second District
    No. 2—89—0860
    Opinion filed July 19, 1990.
    Mark W. Damisch, of Barclay, Damisch & Sinson, Ltd., of Wheaton, and Junie L. Sinson, of Barclay, Damisch & Sinson, of Chicago, for appellant.
    Paul P. Didzerekis, of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

The guardian of the estate (guardian) of John R Lundahl, a disabled person, appeals from an order of the circuit court of Du Page County awarding attorney fees to Paul Didzerekis, the attorney for Mr. Lundahl’s adult children. The guardian contends that the trial court erred in awarding the fees because guardians of the person and the estate were already appointed to represent Mr. Lundahl’s interests. In addition, the guardian argues that the court erred in failing to conduct a hearing on the reasonableness of the fees. We affirm in part and reverse in part.

On November 15, 1988, attorneys Paul Didzerekis and Bob Chew filed a petition seeking to have Mr. Lundahl declared a disabled person. On December 14, 1988, the trial court entered an agreed order in which it found that Mr. Lundahl suffered from Alzheimer’s dementia and declared him a disabled person. The court appointed Keith Roberts to serve as the guardian of Mr. Lundahl’s estate, and appointed Leslie Robbins and Elizabeth Lundahl, Mr. Lundahl’s wife, to be coguardians of the person.

On December 23, 1988, Mr. Lundahl’s adult children filed a petition seeking to have Leslie Robbins appointed as the plenary guardian of the person of Mr. Lundahl. The petition alleged that Elizabeth Lundahl’s marriage to Mr. Lundahl was “clearly voidable under Illinois Law” and that it would be in Mr. Lundahl’s best interests to preclude Elizabeth from acting as his guardian of the person. On December 27, 1988, the trial court entered an order appointing Leslie Robbins the plenary guardian of the person of Mr. Lundahl.

On January 25, 1988, Elizabeth Lundahl filed a notice of appeal of the trial court’s order appointing Leslie Robbins the plenary guardian of the person of Mr. Lundahl. On October 23, 1989, this court affirmed the trial court’s order. In re Lundahl (1989), 188 Ill. App. 3d 1109 (unpublished order under Supreme Court Rule 23).

On June 1, 1989, attorney Paul Didzerekis, counsel for Mr. Lundahl’s adult children, filed a petition for attorney fees. Didzerekis requested the court to award him $9,350 in fees, $131.50 in costs, and $368.75 in paralegal services from Mr. Lundahl’s estate. This fee petition, which totalled $9,850.25, was for time Didzerekis spent prior to the trial court’s orders appointing guardians in this case. On July 17, 1989, Didzerekis filed an amended petition for attorney fees. The amended petition included work performed after the guardians were appointed, and requested fees of $14,600, costs of $86.57, and $868.75 for paralegal services, for a total of $15,555.32. Thus, Didzerekis requested that the court award him $25,405.57 in fees and costs for his representation in this matter.

A hearing on Didzerekis’ fee petition, along with the fee petitions of other counsel of record, was held on July 24, 1989. At the hearing, the attorney for the guardian of the estate stated: “In the case of Mr. Didzerekis’ [sic] and Mr. Chew, it is the position of the Estate that from December 27, 1988 on, we believe that there should not be fees or costs awarded and for the monies sought by these individuals prior to that date, we have no objection to the reasonableness and the legitimacy of their Petition.” Didzerekis responded by claiming that the fee petitions did not include matters relating solely to representing Mr. Lundahl’s adult children’s interests, but instead related solely to matters benefitting the estate.

On July 26, 1989, the trial court entered an order awarding Didzerekis $25,405.57 in attorney fees and costs. The court stated:

“This is a very unique situation. Some of the uniqueness of the situation is another judge has determined the necessity of guardianship, both estate and person.
It’s a hard-fought litigation. It’s an expensive litigation. My gut reaction is that here is a disabled person funding litigation. My gut churns. Probably a typical example of why the legal system is criticized.
I have reflected further and I have learned long ago that any little protest I might make on behalf of justice can have very little effect.
For me to allow some fees and disallow other fees might very well constitute a comment on the merits or demerits of the litigants’ different positions, those positions having been determined by other judges and to be determined by still other judges.
* * *
Therefore, it’s the order of the Court that all fee petitions are allowed.”

The guardian filed a timely notice of appeal.

Initially, we note that the guardian is apparently contesting the entire fee amount which the trial court awarded to Didzerekis. However, the guardian’s position at the hearing on Didzerekis’ fee petition was that Didzerekis was entitled to the fees earned before December 27, 1988 (the date that the guardian was appointed), which amounted to $9,850.25. Given that the guardian agreed with Didzerekis’ request during the hearing for fees prior to December 27, 1988, we see no reason to disturb this award. Thus, we will limit our review to the award of $15,555.32 in fees for legal services provided after December 27,1988.

The guardian’s first contention on appeal is that Didzerekis was not entitled to attorney fees because two court-appointed guardians were already protecting Mr. Lundahl’s interests. Thus, the guardian argues that Didzerekis had no statutory basis to request attorney fees from Mr. Lundahl’s estate.

Didzerekis disagrees, arguing instead that In re Estate of Thompson (1989), 186 Ill. App. 3d 874, controls the disposition of this issue. In Thompson, the court determined that it was proper to award attorney fees to the attorney who represented the family of the disabled person. (186 Ill. App. 3d at 879-80.) The court noted that the award of attorney fees is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (186 Ill. App. 3d at 879-80, citing In re Estate of Kutchins (1988), 169 Ill. App. 3d 641, 646.) The Thompson court found no abuse of discretion because the attorney for the guardian of the estate requested that an attorney be appointed to avoid a potential conflict of interest situation. 186 Ill. App. 3d at 880.

We find Thompson to be distinguishable from the present case in one crucial respect: namely, the guardian in the case at bar never requested Didzerekis’ services due to a possible conflict of interest between Mr. Lundahl and his adult children. Furthermore, there was no indication that a conflict of interest existed in this case. Thus, Thompson is inapplicable to the present case because there was no indication that separate representation by Didzerekis for Mr. Lundahls’ adult children was necessary to protect Mr. Lundahl’s interests.

We agree with the guardian that the trial court abused its discretion in awarding attorney fees to Didzerekis where Mr. Lundahl’s interests were already adequately protected. To rule otherwise would require Mr. Lundahl’s estate to pay Didzerekis’ attorney fees even though his services after December 27, 1988, were not requested or otherwise needed to protect Mr. Lundahl’s interests.

We find support for our decision in In re Estate of Kutchins (1988), 169 Ill. App. 3d 641. In Kutehins, the appellate court determined that an attorney was not entitled to be compensated by the estate for drafting an agreement between the disabled person and his family. (169 Ill. App. 3d at 646.) The court noted that the attorney never requested or received permission to represent the disabled person beyond the restoration proceedings and thus was not entitled to receive compensation from the estate for these services. 169 Ill. App. 3d at 646.

Given that we have determined that the trial court erred in awarding Didzerekis attorney fees for his work performed after December 27, 1988, we need not address the guardian’s other argument concerning the reasonableness of the fees.

For the above-stated reasons, the judgment of the circuit court of Du Page County is affirmed with respect to the fee award of $9,850.25 for work performed prior to December 27, 1988. The award of $15,555.32 in fees for work performed after December 27, 1988, is reversed.

Affirmed in part; reversed in part.

WOODWARD and GEIGER, JJ., concur.


text:
      In re MARRIAGE OF CYNTHIA M. JACKS, Petitioner-Appellee, and WILLIAM T. JACKS, Respondent-Appellant.
    Second District
    No. 2—89—0875
    Opinion filed April 6, 1990.
    Rehearing denied May 11, 1990.

      James J. Pacione and Steven N. Peskind, both of Peskind & Peskind, Ltd., of Aurora, for appellant.
    Larry M. Amoni, of Aurora, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondent, William Jacks, appeals from the trial court’s order of July 26, 1989, denying his post-trial motion. William argues that the court erred in classifying the home in which he and petitioner, Cynthia Jacks, lived as marital property. William also claims that the court’s judgment regarding the distribution of property, the award of maintenance and the award of attorney fees was against the manifest weight of the evidence. We affirm.

The first issue is whether the court erred in determining that the property located at 209 South LeGrande was marital property.

Cynthia and William began dating in January 1984 and became engaged in March 1984. William testified that he first saw the house two to three years prior to 1984. The first time he entered the house was in April 1984 with Cynthia and a realtor. William testified that his intent in purchasing the home was for an investment, and he looked at two other comparable homes to see if this house was a good deal. Cynthia testified that William never mentioned his intention to purchase the home as an investment, and they looked at other four-bedroom homes because she had four children. Cynthia’s name appeared on the offer sheet. The home was purchased for $84,000 on May 25, 1984. Title to the home was in William’s name exclusively. William testified that this was because Cynthia did not want to get in on the investment. Cynthia testified that her name was not on the title because the home was purchased with a Veterans Administration loan. The home was purchased with no money down and $1,000 earnest money paid by William. The two were married approximately one hour after the closing on the house.

William contends that, since the property was acquired prior to the marriage, it is not marital property. Cynthia contends that the property was purchased in contemplation of marriage and, therefore, it is marital property.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides:

“For purposes of this Act, ‘marital property’ means all property acquired by either spouse subsequent to the marriage, except the following, which is known as ‘non-marital property’:
* * *
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section ***.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(a).)

William asserts that the plain language of this statute separates marital and nonmarital property on the basis of when the property was acquired.

Cynthia cites several appellate court cases from other districts which do not interpret the above statute so rigidly. (See In re Mar riage of Stallings (1979), 75 Ill. App. 3d 96; In re Marriage of Matters (1985), 133 Ill. App. 3d 168; In re Marriage of Ohrt (1987), 154 Ill. App. 3d 738.) These cases looked at the intent of the parties and determined that property purchased prior to marriage but in contemplation of marriage is marital property. This court has not had an opportunity directly to address this issue in the past, but for the reasons provided below, we agree that property purchased prior to marriage but in contemplation of marriage should be classified as marital property.

In Stallings, the parties purchased a home less than two months before their marriage. The wife paid a $5,000 down payment from her funds. The parties took title as tenants in common, and the mortgage payments were made from marital assets. The Appellate Court for the Fifth District affirmed a finding that the home was a marital asset. (Stallings, 75 Ill. App. 3d at 99.) The court found that the property was purchased in contemplation of marriage and with the intent that it would be the family home. The court also noted that all the equity in the home was acquired with marital funds. (Stallings, 75 Ill. App. 3d at 99.) The court rejected the notion that section 503 of the Act arbitrarily categorizes all property acquired prior to marriage as nonmarital property. Stallings, 75 Ill. App. 3d at 99.

In Matters, the parties accompanied a real estate agent to look at a home prior to marriage. Both parties signed the offer sheet to purchase the home. The husband borrowed $5,000 from the wife’s father to make the down payment. Title to the house was placed in trust with the husband named as the sole beneficiary. The Appellate Court for the First District affirmed a finding that the home was a marital asset. (Matters, 133 Ill. App. 3d at 179.) As in Stallings, the court found that the legislature did not intend to preclude a finding that property purchased prior to marriage could never be a marital asset. Matters, 133 Ill. App. 3d at 179.

In Ohrt, the property was purchased approximately two months prior to the marriage. The funds for the down payment were borrowed. Only the husband’s name appeared on the title, note and mortgage. The Appellate Court for the Third District, citing Stallings and Matters, affirmed a finding that the home was marital property. The court noted that the property was purchased with the idea that it would be the marital residence and found “it of no consequence that the property was purchased by respondent prior to the marriage or that title was solely in his name.” Ohrt, 154 Ill. App. 3d at 742.

William contends that the Illinois legislature has set up a dual system of property classification in which property is either a nonmarital or a marital asset. This system is consistent with the partnership theory of marriage which is the foundation of the Act. William asserts that this system distinguishes marital and nonmarital property on the basis of when the property was purchased. Additionally, William contends that recognition of this doctrine would create a third category of property contrary to the intent of the legislature. William concludes that to recognize the “in contemplation of marriage” doctrine would be to replace the legislative intent with an “arbitrary standard which analyzes the parties[’] purpose in purchasing the property.”

While we agree with much of what William sets forth, we do not agree that classifying property acquired in contemplation of marriage as marital property is an affront to the legislative intent. Recognition of this doctrine does not create a “third category” of property as William suggests, but simply takes into account the party’s intent in purchasing the asset when classifying the property as either marital or nonmarital. Also, we do not consider intent to be an “arbitrary standard,” for if it were, hundreds of years of contract law, inter alia, would have to be discarded. As William has stated, the Act is based upon a partnership theory of marriage. We are aware of no authority which states that the partners’ intent is of no consequence when reviewing a partnership situation.

The legislature did amend section 503 of the Act in 1983. (Pub. Act 83 — 129, eff. August 19, 1983.) Of particular relevance are the changes made to section 503(a)(6) and the addition of section 503(a)(7). These changes were made to address a situation in which property that was originally nonmarital was transmuted into marital property due to some action of the spouse. (See In re Marriage of Smith (1981), 86 Ill. 2d 518.) The legislative amendments to section 503 now mandate that the property originally nonmarital in nature will remain nonmarital with the spouse having a right of reimbursement. Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(7).

This legislative amendment occurred four years after the decision in Stallings, and while the legislature chose to alter the statute to address the situation presented in Smith, it did not choose to amend the statute to reflect its opinion of the Stallings decision. The amendment made to section 503(a) in response to Smith does not address the situation presented in Stallings, Malters, Ohrt and the case at bar. In Smith, property that was originally nonmarital is transmuted into marital property. In the other situations, the property is marital from the start. It is never transmuted from one classification to another. The legislature could have easily added language to section 503(a)(6) to establish a mandatory and conclusive presumption that property acquired prior to marriage is nonmarital. The legislature did not see fit to make such an amendment in 1983, nor has it done so in response to Malters and Ohrt.

We agree with the above-cited cases that property acquired prior to marriage, but in contemplation of marriage, should be classified as marital property. This determination is necessarily founded upon the intention of the parties at the time the property is purchased. We do, however, disagree with the statement made by the court in Ohrt that timing and manner of holding title is “of no consequence.” We believe the correct phrase would have been, “is not determinative.” The totality of the circumstances should be examined to discover the parties’ intent. The facts mentioned in the above case, i.e., source of funds to acquire the property, who signed the offer sheet, how long prior to marriage was the property purchased, and how title was held, are all factors to be considered in ascertaining the intent of the parties.

Since we hold that property obtained in contemplation of marriage is marital property, we now must determine if the home in the case at bar was property purchased in contemplation of marriage. The distribution of marital property is a decision within the sound discretion of the trial court and that decision will not be disturbed absent an abuse of discretion. (Ohrt, 154 Ill. App. 3d at 738.) This court will not find an abuse of discretion unless no reasonable person would agree with the trial court’s decision. In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 303.

In the case at bar, both parties accompanied a realtor to see the home. Both parties’ names appeared on the offer sheet. William informed the real estate agent that he needed a big home because the woman he was marrying had four children. The home was purchased with no money down, and all mortgage payments were made with marital funds. The home was purchased approximately one hour prior to the marriage ceremony. While William testified that the property was purchased as a short-term investment, his testimony was contradicted by Cynthia and the fact that the parties lived in the house for four years. In a nonjury trial, where there is conflicting testimony, the determination of the witnesses’ credibility is for the trier of fact. (Stallings, 75 Ill. App. 3d at 100.) Based upon all the above factors, we find that the court did not abuse its discretion by determining that the property at 209 South LeGrande was marital property.

William’s next contention is that the court erred in distributing the parties’ assets and liabilities.

Section 503 of the Act requires the court to consider the relevant statutory factors and divide the marital property in just proportions. (In re Marriage of Click (1988), 169 Ill. App. 3d 48, 56.) An equitable distribution of marital property is not necessarily an equal one, and the court may award one spouse a larger share if the relevant factors warrant such a result. (In re Marriage of Agazim (1988), 176 Ill. App. 3d 225, 231.) The distribution must be equitable in nature, and mathematical equality is not required. (Agazim, 176 Ill. App. 3d at 231.) The distribution of assets rests within the sound discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. (Click, 169 Ill. App. 3d at 57.) The question upon review “is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted.” In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127.

In the case at bar, the court awarded Cynthia net marital assets of approximately $24,500 and William net marital assets of approximately $24,500. Cynthia’s award consisted of the equity in their home of approximately $29,000 less approximately $9,000 that she is to pay William, an annuity valued at $2,300, an automobile valued at $2,600, and a bank account valued at $61. William’s award consisted of his pension fund valued at $15,189 and the approximately $9,000 in home equity that he was to receive from Cynthia.

The court also found that William is liable for several debts. These debts include loans totalling approximately $9,200 that William received from his mother, as evidenced by several promissory notes. The court questioned the authenticity and enforceability of these notes. This court will not second guess the trial court’s determination regarding the credibility of the witnesses. (See Stallings, 75 Ill. App. 3d at 100.) The court also required William to be responsible for a $1,900 debt owed to a friend, a credit-card obligation and a credit union loan. The court found these to be personal debts of William and not marital obligations.

We find ample evidence in the record to support the court’s distribution of the marital assets. This is especially true when the relative future earning capacity of each party is addressed. William is an air traffic controller with income of over $60,000 annually. Cynthia has relatively few skills and hopes to earn approximately $14,000 in the coming year. This factor (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(10)) is heavily weighted in Cynthia’s favor.

From our review of the court’s award, we cannot say that the court acted “arbitrarily without the employment of conscientious judgment.” (Lee, 78 Ill. App. 3d at 1127.) The court did not abuse its discretion in distributing the parties’ assets, determining that the debts were not marital and requiring William to satisfy these debt obligations.

William also contends that the court erred in awarding maintenance of $500 per month for one year, reviewable at the end of one year. William contends that there was no evidence of Cynthia’s needs produced at trial upon which the court could base an award of maintenance. William contends that Cynthia’s affidavit of income and expenses should not be considered as sufficient evidence to support an award of maintenance because it was four months old at the time of trial and it included expenses related to her children from a previous marriage. While this affidavit may not be the “perfect” evidence of income and expenses, we find that it is sufficient evidence for the court’s award of maintenance. An award of maintenance is within the court’s discretion and will not be disturbed on appeal unless it is an abuse of discretion or against the manifest weight of the evidence. (In re Marriage of Hughes (1987), 160 Ill. App. 3d 680, 687.) We find, based upon the evidence provided, it was not an abuse of discretion or against the manifest weight of the evidence for the court to award Cynthia $500 a month reviewable at the end of 12 months.

William contends that the “total” award, when viewed comprehensively, is an abuse of discretion. It is true that the issue of maintenance is interrelated with the distribution of marital property. (Hughes, 160 Ill. App. 3d at 688.) The court has given Cynthia the benefit of another $6,000 to the detriment of William. However, this does not make the court’s award an abuse of discretion. The important factor we believe is the huge difference in the parties’ earning capacity. An important objective in dissolving a marriage is to attempt to place the parties in a position from which they can begin anew. (Lee, 78 Ill. App. 3d at 1133.) William is in a position with his income, or will be very shortly, to begin anew.

William also contends that the court erred in requiring him to pay $3,500 of Cynthia’s attorney fees. Section 508 of the Act provides that the court may require either party to pay a reasonable amount of attorney fees incurred by the other party in any proceeding under the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 508(a).) An award of fees is justified when one party has demonstrated a financial inability to pay and the other party’s ability to pay. (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1027.) Financial inability exists when payment of fees would strip the individual of his or her means of support and undermine his or her economic stability. (Smith, 128 Ill. App. 3d at 1027.) An award of attorney fees is within the trial court’s discretion and will not be reversed absent an abuse of discretion. Smith, 128 Ill. App. 3d at 1027.

Again, we find that the court did not abuse its discretion in requiring William to pay $3,500 of Cynthia’s attorney fees. The court could have found from the evidence presented that Cynthia was financially unable to pay the fees and doing so would have undermined her economic stability. Similarly, the court could have reasonably found that, with William’s income, he had the ability to pay. The court did not err in awarding Cynthia attorney fees.

The judgment of the circuit court of Kane County is affirmed.

Affirmed.

UNVERZAGT, P.J., and WOODWARD, J., concur.