author: JUSTICE O’CONNOR

text:
      In re MARRIAGE OF RICHARD C. JELINEK, Counterpetitioner-Appellant, and LINDA G. JELINEK, Counterrespondent-Appellee.
    First District (1st Division)
    No. 1 — 90—2550
    Opinion filed April 12,1993.

      Davis, Friedman, Zavett, Kane & McRae, of Chicago (James T. Friedman, of counsel), for appellant.
    Schwartz, Freidin & Associates, of Chicago (David L. Applegate, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

After 15 years of marriage, Linda Jelinek filed an action for dissolution against her husband, Richard, on October 5, 1987. Richard later filed a counterpetition for dissolution in 1989. Neither party disputed the grounds for dissolution, and the valuation and apportionment of the marital estate became the focus of the litigation. Linda dismissed her petition, and the case went to trial on Richard’s counterpetition. Ultimately, the circuit court issued a judgment of dissolution which established the valuation and apportionment of the marital estate and the custody and support of the Jelineks’ two children. Both parties now appeal, raising numerous issues as to the propriety of the circuit court’s judgment.

For reasons which follow, we affirm in part, reverse in part, and remand the cause for further proceedings.

In 1969, Richard, three other individuals, and a venture capital firm founded Medicus, a company which developed and marketed software systems in the health field. The founding of Medicus preceded the parties’ marriage by three years. Richard’s premarital holdings in the company consisted of 40,000 shares of common stock, which had been purchased with an unsecured loan. During the marriage, Richard paid some of this loan with marital funds, and the balance of the note was later forgiven. The forgiven loan was reflected as income in the couple’s joint tax filings for the years 1975 and 1976.

At the time of the couple’s 1972 marriage, Linda operated a small boutique, owned a “duplex,” and maintained checking and savings accounts in Dallas, Texas. On June 27, 1975, Richard signed a written agreement stating that Linda’s assets at the time of the marriage were Linda’s “sole and separate property, in which I have no interest whatever.”

In 1975, the couple adopted the first of two children, Hope Linda, born on August 17, 1975, and in 1979, the couple adopted their second child, Christopher, born on February 11, 1979. The couple also purchased marital homes in Evanston, Illinois, and Aspen, Colorado. During this time, Linda maintained the marital homes and resumed her business by working out of her home. For a period from 1980 to June 1988, Linda operated her business for a time in a building which she and Richard purchased jointly on Custer Street in Evanston, Illinois. Linda retained her income from her business and other investments in 13 separate bank and investment accounts held in her name. Linda claimed her business was never financially successful.

By 1975, Richard’s common share holdings in Medicus diminished, and he possessed 38,500 common shares. In early 1975, the directors of Medicus, in an attempt to make the company more attractive for resale, issued shares of class B stock to key investors and employees. As a result, Richard received 40,000 shares of this newly created class B stock. The company’s tax records indicate that this transaction was classified as “compensation” for taxation purposes. Richard, however, was required to declare the stock as ordinary income when it was delivered to him. Apparently, he could not afford to take the shares all at once so he spread the vesting of the stock over five years with a defeasibility provision to defer the tax. During the trial, various people associated with the corporate transaction testified that the class B stock was not compensation for Richard, but rather a restoration of Richard’s original equity in the company. To offset the tax cost that Richard would incur as the class B stock vested at market value, Medicus agreed to pay Richard additional compensation in the form of dividends and director’s fees to eliminate the tax cost. These extra payments were deposited in the parties’ joint account. Linda countered this testimony by referring to contemporaneous corporation documents which referred to the transaction as “compensation.”

Medicus was later sold to the Whittaker Corporation. The sale, with regard to Richard, was composed of a six-part, $1 million transaction. Relevant here are only two components of the sale, in which Richard received $279,125 for his initial 38,500 shares of Medicus common stock and an additional $141,375 for 19,500 shares of his class B stock. Thus, Richard received a total of $420,500 for his original common stock holdings and the later acquired class B stock. This amount was wired to a Continental Bank account held in Richard’s name. Richard later used the $420,500 for various financial investments which ultimately grew to over $12.7 million.

In addition to the marital homes, the couple also acquired several rental properties, a number of automobiles, furniture, and various pieces of art during the marriage. Linda also purchased some property in Taos, New Mexico, in her own name, which she and Richard agreed in writing would be her separate, nonmarital property.

Richard testified that he recalled an oral agreement he had entered into with Linda, predating the marriage, in which it was agreed that the Medicus holdings were his nonmarital property.

In a written judgment of dissolution, the trial judge specifically found that Linda’s testimony was “inconsistent and frequently lacked credibility” and that Richard “was a more credible witness.” The trial judge divided the marital estate with Richard to receive 60% and Linda to receive 40%. The judge also found that Richard had failed to prove, by clear and convincing evidence, the existence of the claimed oral agreement. The trial judge made the following findings with regard to Richard’s holdings in Medicus:

“12. The HUSBAND owned 40,000 shares of common stock of The Medicus Corporation, later known as Medicus Affiliates, prior to the marriage which was his non-marital property, of which 38,500 shares were sold in 1978 for $279,125. That sum was the HUSBAND’S non-marital property, which should be awarded to him after subtracting as reimbursement $1,778 paid for the 1975 settlement of the HUSBAND’S Note ***; $5,883 income taxes from the settlement in 1975 and $7,232 income taxes from the settlement in 1976, all marital contributions to his non-marital property.
13. The HUSBAND’S remaining interests in Medicus Systems Corporation, Medicus Affiliates, Whittaker Corporation, Mediflex Systems Corporation, Medicus Systems Corporation, HBO Company, Jeliker, Inc., Knowledge Data Systems, Inc. and Jelinek, Inc. all [are] marital property for the following reasons, among others:
A. In 1975, HUSBAND acquired 40,000 shares of Class B stock of Medicus Systems Corporation, which were received as compensation for his services during the marriage;
B. In 1977, HUSBAND acquired Options to purchase 12,000 shares of Class B stock of Medicus Systems Corporation (‘Medicus Options’) which were received in exchange for 12,000 of the 40,000 shares of Class B stock of Medicus Systems Corporation, described above.”

The trial judge denied maintenance to Linda and, based on the couple’s financial status, deviated from the statutory guidelines in establishing the child support. Each party was ordered to bear its own attorney fees and costs. The trial judge also ordered Richard to pay certain realty taxes on property awarded to Linda.

I

Richard contends that the trial judge erred in finding that the parties had not entered into a valid premarital agreement which classified their assets. In support of his argument, he asserts that a valid agreement in contemplation of marriage may be oral, that he and Linda both admitted the existence of such an agreement at trial, and that the couple’s consistent course of conduct during the marriage supports the existence of such an agreement.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) provides that “ ‘marital property’ means all property acquired by either spouse subsequent to the marriage except *** property excluded by valid agreement of the parties.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(4).) Moreover, the statute creates a presumption that “all property acquired by either spouse after the marriage and before, a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, *** is *** marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property.” (Ill. Rev. Stat. 1987, ch. 40, par. 503 (b).) The statutory presumption is overcome by a showing that the property was acquired by a method listed in section 503(a). Ill. Rev. Stat. 1987, ch. 40, par. 503(b).

The Dissolution Act does not define what constitutes a valid agreement for purposes of section 503(a)(4). The Historical and Practice Notes, however, indicate, to an extent, that such agreements are antenuptial agreements: “[t]he parties may agree inter se, based upon sufficient consideration, to treat as non-marital property that which would otherwise be treated as marital property. [Citation.] Antenuptial agreements have been upheld which abrogated the existence of community property rights during the marriage. [Citations.] Such an agreement must be set forth as an exhibit to the pleadings.” (Ill. Ann. Stat., ch. 40, par. 503, Historical & Practice Notes, at 462 (SmithHurd 1980).) Under the Dissolution Act, an antenuptial agreement, entered into by persons competent to contract, may exclude the operation of the law, including the marital property provisions of section 503, and determine the rights each will have in the other’s property during the marriage. (In re Marriage of Burgess (1984), 123 Ill. App. 3d 487, 462 N.E.2d 203. See also Ill. Ann. Stat., ch. 40, par. 503, Historical & Practice Notes, at 61-62 (Smith-Hurd Supp. 1991).) Thus, we disagree with Richard’s contention that the “valid agreement” of section 503(a)(4) does not amount to an “antenuptial agreement.”

In Illinois, an antenuptial agreement is enforceable only if in writing. (Lee v. Central National Bank & Trust Co. (1974), 56 Ill. 2d 394, 308 N.E.2d 605; McAnnulty v. McAnnulty (1887), 120 Ill. 26, 11 N.E. 397.) Since both parties admit that no written agreement was executed, the trial judge did not err in finding that no valid agreement as to nonmarital property existed.

Even if we were to assume an oral agreement is sufficient to classify assets of a marital estate as nonmarital, the evidence presented here does not prove by a clear and convincing standard that such an oral agreement was ever made. See In re Marriage of Phillips (1992), 229 Ill. App. 3d 809, 817, 594 N.E.2d 353 (statutory presumption overcome only by “[c]lear and convincing” evidence).

Contrary to Richard’s allegations, Linda never admitted the existence of an oral agreement. Mention of separate property was found only in a 1975 handwritten memorandum of Linda’s separate property and in a typed 1978 acknowledgement, both signed by Richard, that realty purchased by Linda in Taos, New Mexico, with her separate funds, would remain Linda’s separate property. Linda testified that the two documents were executed to protect her nonmarital property from claims or potential claims from Richard’s former wife and his children from that union, in the event of Richard’s death. None of the written documents refer to any separate property in relation to Richard and his Medicus holdings. Indeed, the two documents evince that, when the couple wanted property to be classified as nonmarital, they reduced such an intention to writing. Therefore, we cannot agree with Richard’s suggestion that the couple’s consistent course of conduct indicated an oral agreement was in effect. Accordingly, the circuit court did not err in finding that no valid agreement was entered into by the parties, prior to their marriage, concerning the classification of nonmarital property.

II

Richard next challenges the trial judge’s finding that Richard’s class B stock was part of the marital estate. He insists that the asset represented an increase in the value of his premarital equity and, as a result, the money he received during the sale of the corporation to the Whittaker Corporation and the investments derived from it are all nonmarital property because they were obtained by an exchange of premarital property, that is, Richard’s original equity.

Before the court may dispose of property upon dissolution of marriage, the property must be classified as either marital or nonmarital. (In re Marriage of Durante (1990), 201 IllApp. 3d 376, 381, 559 N.E.2d 56.) The classification will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. (In re Marriage of Landfield (1991), 209 Ill. App. 3d 678, 689, 567 N.E.2d 1061, appeal denied (1991), 139 Ill2d 597, 575 N.E.2d 916.) As noted above, the disposition of property upon dissolution of marriage is governed by section 503 of the Dissolution Act. (111. Rev. Stat. 1987, ch. 40, par. 503.) Subparagraphs (a) and (b) of the statute call for classification of property held by the parties as follows:

“(a) 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’:
(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(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; *** * * *
(b) *** all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property ***. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section.” Ill. Rev. Stat. 1987, ch. 40, pars. 503(a), (b).

Richard suggests that the class B stock can be traced to his original premarital equity. Tracing of funds is a procedure which allows the court to find that property which would otherwise fall within the definition of marital property is actually nonmarital property under one of the statutory exceptions. (In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 777, 407 N.E.2d 1045.) A party claiming that property is nonmarital by virtue of sections 503(a)(1) through (a)(6) has the burden of proof. Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499.

We preface our discussion by noting that no case in Illinois is directly on point with regard to the class B stock issue which we consider to be the focal point of this case. In addition, our review of this issue has been unduly hampered by both parties’ less than clear presentation of the nature of the transactions which resulted in Richard’s acquisition of the asset in 1975. For example, the briefs contain references to exhibits which were introduced into evidence during the trial; however, none of those exhibits were filed with the record on appeal. Although the parties have included copies of some of the exhibits in the appendices to their briefs, we wish to point out that these are inadequate substitutes for the actual exhibits. Nevertheless, we have reviewed the testimony carefully and conclude that the class B stock cannot be considered marital property.

Our analysis begins with the observation that Richard no longer held any type of Medicus stock at the time of the trial. All the stock had been sold, and the proceeds of that sale — $420,500 and the subsequent reinvestments of that amount — are all that remain of the asset. Thus, we must trace the source of the $420,500: Richard’s 1969 Medicus holdings. Richard’s premarital 40,000 common shares were undeniably nonmarital property under section 503. Linda claims that the 40,000 class B shares were “acquired” during the marriage and, as a result, were properly considered marital property under section 503. We disagree. The class B shares were given to Richard in order to preserve his proportionate share of ownership in the company, and his right to receive these shares clearly was rooted in his premarital business property interest. Such an interest retains its nonmarital classification despite any increase in its value which may occur during the course of the marriage. (See Bentley v. Bentley (1981), 84 Ill. 2d 97, 417 N.E.2d 1309 (property acquired after marriage was to be considered nonmarital where the property represented the appreciated value of a nonmarital asset); In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447 (the change in the form of a premarital business during the marriage, which resulted in the increase in the value of husband’s premarital holdings, remained nonmarital property). Accord Cate v. Cate (1991), 35 Ark. App. 79, 812 S.W.2d 697 (increase in the value of premarital interest during marriage constitutes nonmarital property); Hoffmann v. Hoffmann (Mo. 1984), 676 S.W.2d 817 (increased value of an equitable interest in corporation, during marriage, remains nonmarital property). See also Rosenhouse, Annot., Divorce & Separation: Appreciation in Value of Separate Property During Marriage Without Contribution By Either Spouse as Separate or Community Property, 24 A.L.R.4th 453 (1983).) Our review of the record indicates that the class B shares were identical to the common stock, but they did not carry any dividend rights and did not increase Richard’s original percentage of ownership in the company. To that end, it was no mere coincidence that Richard “received” a number of class B shares (40,000) which matched his original holdings in the company (40,000). In light of this, we view Richard’s acquisition of the class B stock, under the circumstances presented here, as analogous to a stock split or stock dividend. In such cases, our supreme court has held that the split or dividend is to be considered as an appreciation in value to the premarital holding (In re Marriage of Smith (1981), 86 Ill. 2d 518, 533, 427 N.E.2d 1239, citing In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305) and would remain nonmarital property subject to a right of contribution. In re Marriage of Smith, 86 Ill. 2d at 533, citing In re Marriage of Komnick, 84 Ill. 2d at 96.

Although the above-described financial and corporate machinations are not completely clear, it is apparent that Richard’s original 40,000 shares of common stock in Medicus had diminished so as to decrease his original ownership percentage in the company. Richard received the additional 40,000 shares of class B stock, not as compensation for his services, but as a method to restore his premarital equity. Support for our conclusion can be found in the testimony and the exhibits presented at the trial. William G. Brown, the corporate attorney at the time, stated that from Medicus’ inception in 1969 until 1975, various new shareholders had “come in as investors” to Medicus and, as a result, Richard’s equity had decreased. In fact, Richard was the sole investor remaining from the 1969 founding. To counter this and to make the company attractive for resale, the class B stock was created. Brown further testified that the purpose of the class B stock issuance was to insure that management would get a return of their investment when the company was sold. Indeed, this purpose is echoed in one of the contemporaneous documents relied upon by Linda, which listed the objectives of the program to “begin to provide a return for investors in Medicus” and to “strengthen” management.

Although these documents classified the transaction as “compensation” as Linda correctly points out, we note that those same documents also refer to investors as well as to employees. The documents state that the corporation “shall issue” the stock to officers as well as employees. Particularly noteworthy is the directors’ resolution issuing the class B stock to Richard: the stock was issued to Richard, not for Richard’s services as the trial judge found, but in “the Corporation’s best interest.” Richard himself testified that the corporation had given him “free” stock and that he had received extra compensation from the company in order to offset the tax consequences to him as a result of the transaction. Moreover, board members as well as employees received the new stock. In that regard, we cannot overlook the fact that Richard’s relationship to the company was more than that of a regular employee. Richard was one of the company’s founders, served as a managing shareholder, and was an investor. For these reasons, the testimony adduced at the hearing provided a more revealing look at the transaction than the “paper trail” left by the corporate and tax experts at the time. Accordingly, we must reverse the lower court’s determination that the asset was compensation because it is against the manifest weight of the evidence. The class B stock represented an appreciation of Richard’s premarital equity in Medicus. Thus, any money he received from the Whittaker Corporation for the class B shares must also be considered nonmarital property under the exchange exception of section 503. Assets exchanged for separate, nonmarital property remain separate property regardless of the number or type of postmarital exchanges, absent an intent to transmute. (See, e.g., In re Marriage of Siddens (1992), 225 Ill. App. 3d 496, 499, 588 N.E.2d 321, appeal denied (1992), 145 Ill. 2d 644, 596 N.E.2d 637; In re Marriage of Thacker (1989), 185 Ill. App. 3d 465, 467-69, 541 N.E.2d 784.) Upon remand, the circuit court is to consider the $420,500 and its proceeds as nonmarital property, subject to a right of contribution.

Linda argues that Richard’s investments constituted a “marital contribution” to his nonmarital property, and, as such, the marital estate must be reimbursed because of the significant appreciation of the asset.

Under the Dissolution Act, reimbursement is required when one estate of property makes a contribution to another estate of property or when a spouse contributes personal efforts to nonmarital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(6); see also In re Marriage of DiAngelo (1987), 159 Ill. App. 3d 293, 512 N.E.2d 783.) In the case of personal efforts, no reimbursement is to be made unless the effort is significant and results in substantial appreciation of the nonmarital property. (In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088.) The correct procedure to be applied under section 503(c)(2) is to determine whether either spouse, Linda or Richard, contributed significant personal effort toward the investments which resulted in the substantial appreciation of the investments. (Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2).) Personal effort is looked upon as a contribution by the marital estate; therefore, Richard’s contribution of personal effort toward his nonmarital property, if any, may entitle the marital estate, not Linda, to reimbursement from the nonmarital estate receiving the contribution. (Ill. Rev. Stat. 1987, ch. 40, par. 503(c)(2).) However, only the appreciation resulting from significant personal effort will entitle the marital estate to reimbursement, not the appreciation which results from inflation or other factors external to the marriage. (Ill. Rev. Stat. 1987, ch. 40, par. 503(aX7).) Based upon the foregoing, upon remand, the trial judge should reexamine the valuation of the investments in order to determine whether Richard’s personal efforts entitle the marital estate to reimbursement. To that end, the trial judge should consider appreciation due to factors external to the marriage. See In re Marriage of Morse, 143 Ill. App. 3d at 855.

Ill

Richard next argues that the trial judge abused his discretion in awarding Linda 40% of the marital assets. Linda, too, challenges the determination, maintaining that she should have been awarded a greater share of the estate. Linda also argues that the trial judge erred in his determination of the value of the marital estate.

We note that our decision to set aside the trial judge’s classification of the class B stock as marital property causes a significant change in the valuation of the marital estate as a whole. Therefore, upon remand, the trial judge is instructed to consider the enhanced value of the nonmarital property in his reexamination of the apportionment and the distribution of the marital estate with regard to each party. See Bentley v. Bentley, 84 Ill. 2d at 97; In re Marriage of Harmon (1985), 133 Ill. App. 3d 673, 479 N.E.2d 422.

As to the trial judge’s valuation of the other marital assets, such a decision will not be disturbed on appeal if the determination falls within the range testified to by the experts. (In re Marriage of Wein berg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925.) Conflicting testimony concerning the valuation of assets in a dissolution proceeding is a matter to be resolved by the trier of fact, who ultimately must assess the credibility of the witnesses and the weight to be given their testimony. In re Marriage of Ayers (1980), 82 Ill. App. 3d 164, 402 N.E.2d 401.

A review of the record reveals that the circuit court computed the valuation of the estate after hearing extensive testimony from expert witnesses. Moreover, many of the valuations were based on appraisals by appraisers selected jointly by the parties. We, therefore, see no reason to disturb the circuit court’s findings.

IV

Both Linda and Richard contend that the trial judge’s deviation from the statutory guidelines in establishing child support constituted error which necessitates reversal. We agree.

The judgment of dissolution provided:

“The Court finds cause to deviate from the minimum child support guidelines contained in Section 505 of [the Dissolution Act] based on the financial resources of both parties and their ability to satisfy the support needs of the children by expenditures below these guidelines.”

The trial judge awarded the parties joint custody of the children, with Richard to pay Linda $7,500 per month in child support. Richard also was ordered to pay 60% of the children’s private school tuition and fees, in addition to a portion of the children’s uninsured medical expenses.

In determining the amount of child support to be charged to a party, the trial judge must consider the factors set forth in section 505 of the Dissolution Act. (Ill. Rev. Stat. 1987, ch. 40, par. 505.) Those statutory factors enumerated in section 505(a)(2) need not be considered, however, if the trial judge is following the guidelines outlined in section 505(a)(1). (Ill. Ann. Stat., ch. 40, par. 505, Supplement to Historical & Practice Notes, at 133 (Smith-Hurd Supp. 1991).) See also In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093, 527 N.E.2d 1351.

Here, the trial judge clearly did not apply the statutory guideline, which would have put the award at 25% of the supporting parent’s income. (See Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1).) Since the guideline was not used, the trial judge was required to consider the statutory factors of section 505(a)(2). The trial judge here noted that it had considered the relevant factors in setting forth the structure of the child support. However, a review of the record reveals that little evidence was adduced as to the needs of the children. For example, we note that figures provided by Linda in calculating the children’s expenses include expenses for maintaining the Evanston and Colorado homes awarded to Linda, which totalled $48,256. Such expenditures have been condemned. In In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 327, 523 N.E.2d 573, the appellate court held that apportioning amounts of the household expenditures to a child “results in an exaggerated figure of support.” Based on the foregoing and the lack of evidence presented at trial as to the issue of child support, the trial judge’s determination of child support must be reversed and remanded for recalculation of the child support award in accordance with section 505(a)(2) of the Dissolution Act.

V

Richard next contends that the trial judge erred by ordering him to pay certain realty taxes on property awarded to Linda. The court appears to have raised this issue sua sponte, some eight months after the close of evidence. Although neither party briefed or argued this issue, the trial judge ruled that Richard was to pay the accrued realty taxes for property being awarded to Linda. This decision apparently was based on a temporary support order previously entered into by the parties on November 29, 1988. That order required Richard to pay the real estate taxes incurred from September 1, 1988, through December 31, 1988, without prejudice to the right to demand a hearing de novo on the temporary support motion. The next temporary agreed order was entered on September 8, 1989, and provided that Richard pay the real estate taxes incurred from August 1, 1989, through January 1, 1990, without prejudice. Another temporary order extended the September 8, 1989, order for another month without prejudice.

Based on the nature of these temporary orders and on the fact that Richard was entitled to a de novo hearing on this issue, the trial judge abused his discretion in ordering the realty tax payments. This is especially true where, as here, no argument was made on this issue and all previous references were to “incurred” realty taxes and not “accrued” taxes.

VI

Linda challenges the trial judge’s finding against her on her claim of dissipation of the marital estate. Linda’s evidence on this claim was contained in summary form in a series of exhibits. The court awarded Linda $43,483, the amount of the marital estate she claimed Richard had used to pay the expenses of his current paramour, Julie Stewart. Moreover, Linda was awarded an additional $38,000 allegedly used by Richard to furnish his Near North side apartment.

Generally, dissipation involves one spouse’s use of marital property for a selfish purpose unrelated to the marriage at a time when the marriage is undergoing an irretrievable breakdown. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Determinations regarding dissipation are matters within the trial judge’s discretion and may not be disturbed absent a showing of an abuse of that discretion. In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.

Here, Linda’s allegations of dissipation were general and vague. Furthermore, little evidence of the alleged dissipation was presented from either the witness stand or through the numerous documents used throughout the trial as exhibits. Accordingly, the trial judge’s decision on this matter will not be disturbed.

VII

Finally, Linda contends the trial judge erred in ordering her to pay all her attorney fees, costs, expenses and expert witness fees. Pursuant to a post-judgment settlement agreement entered into with her trial attorneys during the pendency of this appeal, Linda’s attorney fees are now fixed at $235,000.

As noted previously, our treatment of the class B stock changed significantly the value of the marital estate as a whole. Although the amount of attorney fees has been agreed upon by Linda and the law firm which represented her at trial and has been paid in full by Linda, on remand, the trial judge should consider whether Linda is entitled to any reimbursement from Richard for these fees. See In re Marriage of Morse, 143 111. App. 3d at 856.

The judgment of the circuit court, therefore, is affirmed in part, reversed in part, and remanded to the circuit court for further proceedings consonant with this opinion.

Affirmed in part; reversed in part and remanded.

MANNING, P.J., and BUCKLEY, J., concur.

      Left unclear is what happened to the remaining 20,500 shares of class B stock which Whittaker did not purchase.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN HAYES et al., Defendants-Appellants.
    First District (6th Division)
    Nos. 1—90—3223, 1—91—0687 cons.
    Opinion filed March 26,1993.
    Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender’s Office, of Chicago, for appellant Buddy Burton.
    Rita A. Fry, Public Defender, of Chicago (Mark Floyd Pasterski, Assistant Public Defender, of counsel), for appellant John Hayes.

      Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Susan Schierl, John E. Gilhooly, Donald T. Lyman, and Bennett E. Kaplan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE EGAN

delivered the opinion of the court:

. After a jury trial the defendants, Buddy Burton and John Hayes, were convicted of first degree murder. Hayes was sentenced to 35 years’ imprisonment, and Burton was sentenced to 31 years’ imprisonment.

The defendants appeal separately, but we consolidated the appeals after hearing oral argument in Burton’s appeal. We entered an order pursuant to Supreme Court Rule 252(a) (134 Ill. 2d R. 352(a)) that we would consider Hayes’ appeal without oral argument. Both defendants maintain that the judge erred in refusing to conduct a hearing during jury selection as required by Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712. Burton also maintains that prosecutorial misconduct denied him a fair trial.

Under Batson, a defendant is entitled to a hearing if he is able to establish a prima facie case of discrimination by the prosecution during jury selection; the defendant must raise the inference that the prosecutor exercised peremptory challenges to remove venire members based upon their race. (Batson, 476 U.S. at 93-96, 90 L. Ed. 2d at 85-87, 106 S. Ct. at 1721-22.) The trial judge denied the defendants’ motion for a Batson hearing after some jurors had been accepted and some rejected. The judge again denied the defendants’ motion for a Batson hearing after jury selection had been completed. The issue before us, therefore, is whether the trial judge’s order denying a Batson hearing was against the manifest weight of the evidence. See People v. Henderson (1990), 142 Ill. 2d 258, 568 N.E.2d 1234.

In order to establish the prima facie requirements for a hearing, the defendant must show that: (1) he belonged to a racial group capable of being singled out for differential treatment; (2) the prosecution removed members of the defendant’s race from the venire by using peremptory challenges; and (3) these facts and any other relevant circumstances raise an inference of purposeful discrimination because of race. Batson, 476 U.S. at 94-96, 90 L. Ed. 2d at 86-87, 106 S. Ct. at 1722.

The requirement of Batson that defendants must show that members of their race have been impermissibly excluded was removed by the Supreme Court in Powers v. Ohio (1991), 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364. Under the present law, racial identity between the defendant and excused jurors, although not required, is a relevant factor in determining whether a prima facie case of purposeful discrimination has been established. (People v. Andrews (1992), 146 Ill. 2d 413, 588 N.E.2d 1126.) In the case before us the defendants, who are black, maintain that the State impermissibly excluded black venirepersons. The immediate question before us, therefore, is whether the defendants have shown any other relevant circumstances raising an inference of purposeful discrimination because of race.

As enunciated by our supreme court these other relevant circumstances include a pattern of strikes against black venirepersons; the prosecutorial questions and statements during voir dire examination and while exercising challenges; the disproportionate use of peremptory strikes against blacks; the level of black representation in the venire as compared to the jury; whether the excluded blacks were a heterogeneous group sharing race as their only common characteristic; and the race of the defendant, the victim and witnesses. Andrews, 146 111. 2d at 426.

A “pattern” of strikes is created “where the strikes affect members of a certain race to such a degree or with such a lack of apparent nonracial motivation that it suggests the possibility of racial motivation.” (Andrews, 146 111. 2d at 429.) In this case the prosecution exercised a total of eight challenges, and seven of those challenges were directed against black venirepersons. One challenge was exercised against an Hispanic. (The Hispanic juror, a woman, is also described as black, but the defendants and the State treat her as a nonblack in their briefs.) No strikes were made against white venirepersons. The State’s use of seven of eight peremptory challenges against black venirepersons, therefore, is strongly suggestive of racial motivation and thus constitutes a pattern of strikes against black venirepersons. See People v. Harris (1989), 129 Ill. 2d 123, 544 N.E.2d 357 (15 of 20 strikes against blacks constituted a pattern); People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351 (16 out of 17 strikes against blacks constituted a pattern); People v. Daniels (1987), 164 Ill. App. 3d 138, 517 N.E.2d 626 (six out of seven strikes excluding blacks constituted a pattern); People v. Cannon (1987), 153 Ill. App. 3d 245, 505 N.E.2d 1272 (pattern established where State used five out of six strikes to exclude blacks).

For the same reasons we found that the defendants established a pattern against blacks, we find that the record also establishes a disproportionate use of strikes against black venirepersons. Where the numbers reveal a racial imbalance resulting from the use of a disproportionate number of challenges against blacks, those numbers cannot be ignored and are significantly relevant along with all the other circumstances. (People v. Lockhart (1990), 201 Ill. App. 3d 700, 558 N.E.2d 1345.) In determining whether a prima facie case has been established, however, the courts “should consider more than simply the number of jurors excluded.” (People v. Young (1989), 128 Ill. 2d 1, 19, 538 N.E.2d 453, 457.) In other words, although a pattern of strikes and disproportionality of strikes are factors which weigh in the defendants’ favor, they are not dispositive. Nonetheless, our supreme court has characterized a pattern of strikes and the disproportionate use of strikes against black venirepersons as “two very relevant factors [which] are strongly suggestive of the inference of discrimination required íor & prima facie case.” Andrews, 146

The next factor to be considered is whether the excluded venirepersons were as heterogeneous as the community as a whole, sharing race as their only common characteristic. (See People v. McDonald (1988), 125 Ill. 2d 182, 530 N.E.2d 1351; People v. Kindelan (1991), 213 Ill. App. 3d 548, 572 N.E.2d 1138.) Before we consider this factor, it is appropriate to address the State’s contention that Illinois law does not permit a comparison of the excluded black venirepersons to the accepted nonblack jurors. Although Batson does not specifically mention this factor, the Supreme Court gave State courts discretion in formulating relevant factors. (Batson, 476 U.S. at 97, 90 L. Ed. 2d at 88, 106 S. Ct. at 1723.) Our supreme court established the proper format for analyzing the heterogeneity factor: it first ascertained whether the excluded venirepersons were heterogeneous as a group, except for race. (Andrews, 146 Ill. 2d at 431.) As a further step, our supreme court also analyzed whether any of these nonracial characteristics were shared by the accepted nonblack jurors. (Andrews, 146 Ill. 2d at 432.) More recently, this court found relevant the fact that excluded blacks did not share any apparent characteristic aside from race which distinguished them significantly from the accepted white jurors. See People v. Ramirez (1992), 230 Ill. App. 3d 231, 595 N.E.2d 12.

The defendants emphasize the lack of any shared characteristic among the excluded black venirepersons other than race. The State urges that one characteristic does link the excluded blacks together, regardless of race, and that is that all of the excluded black venirepersons share the common characteristic of having an immediate male family member close in age to the defendant Burton.

The State’s claim is not supported by the record. The defendant Burton was 17 years old at the time of the crime and 19 years old at the time of trial. (Hayes was 24 years old at the time of the crime and 26 years old at the time of trial.) Of the seven blacks excluded by the State, only two venirepersons had a male family member close in age to Burton. One of them had two sons in high school and the other had one son in the military and one son in high school. The other five jurors did not share this characteristic. One of them had. four children, but the record does not indicate the gender of the child in high school. The second had four children, but again the record does not indicate the gender of the child in high school. The third had 10 children, but the record does not indicate their ages or genders. The fourth had only one son, who managed a lounge on the south side of Chicago. The last had two children, one employed as an auditor for the City of Chicago and another employed as a clerk for the Chicago Tribune. The record does not indicate the gender of the last excluded juror’s children.

A review of other data presented in the voir dire shows that the seven excluded venirepersons did not share any apparent characteristic other than race which distinguished them significantly from the accepted nonblack jurors. For instance, four of the excluded venirepersons were divorced, two were married and one was single. Of the accepted nonblack jurors, two were divorced, three were married, two were single and one was widowed.

Of the excluded black venirepersons, five of the seven were employed, ranging in length of employment from 2 to 32 years, and one was a student. The five were employed in a variety of occupations: case manager for the Department of Health; crane operator; manager of a lounge; school community representative for the board of education; and a packer. One of them was a student who was studying to be a computer operator. Of the accepted white jurors, most were employed with similar occupations, such as secretaries, a maintenance man, and a warranty clerk. One white juror was also a student.

Nor is there a major difference in the family life of the excluded blacks and the accepted jurors. Most of the excluded venirepersons had young or grown children and one had no children. Of the accepted jurors, half had young or grown children, three had no children, and no information was given for a divorced juror. Two of the excluded venirepersons experienced arrests either individually or through a member of their family; a son was arrested for breaking into a home and one venireperson was arrested for a weapon in her car. The other five had experienced no arrests. Of the accepted jurors, one had two sons; one of the two was arrested for aggravated assault and the other for reckless homicide.

After reviewing the record, it appears that the only common denominator among the excluded group of venirepersons was that they were all black. The excluded blacks were heterogeneous as a group except for race. Moreover, the excluded blacks shared many characteristics with the accepted nonblack jurors. The heterogeneity of the excluded black venirepersons, when compared to the accepted jurors, raises the inference that the black jurors were excluded on the basis of their race alone. Andrews, 146 Ill. 2d at 433.

Another relevant factor is the level of black representation in the venire as a whole as compared to the jury. (Andrews, 146 Ill. 2d at 426.) The State points out that the defendant has failed to establish the number of blacks that were on the jury venire. A comparison, therefore, of the entire venire to the number of blacks impaneled cannot be made. This gap in the record, however, does not overcome the strong evidence which weighs in favor of a prima facie case. The State failed to provide the missing figure and thus cannot contend that the absence of such evidence would weigh against or negate a prima facie case. (We reject the figures used by the State in the Hayes appeal. The State uses the term “venire” to mean the jurors who were questioned.) Consequently, no inference may be drawn either for or against the defendants’ argument. See Ramirez, 230 Ill. App. 3d at 237.

Another factor is the questions asked by the State of prospective jurors and statements made by the State when exercising challenges. The questioning was done by the trial judge, and the only statements made by the prosecutors when exercising challenges were to thank the jurors. No inference may be drawn favorable to the defendants’ argument when considering this factor.

In ruling that a Batson hearing was not required, the judge pointed out that there were several black jurors on the jury and that the State had tendered a black juror who was excused by the defense. He also pointed out that the trial judge is in the best position to determine whether discrimination was going on and that it was clear to him that it was not.

After the jury was sworn, the judge again emphasized that there were four blacks on the jury. At the motion for a new trial, the judge again pointed out that the jury consisted of four blacks and that one of the alternates was black. The record also reflects the fact that the judge considered that the victim and the State’s principal witness were black.

We recognize the validity of all the observations made by the trial judge. But the observations were similar to those the trial judge had made in Andrews, in which the supreme court held that the judge had improperly emphasized certain facts and had made no reference to other pertinent factors including a pattern of strikes against blacks, a disproportionate use of the State’s strikes against blacks and whether the excluded blacks were a heterogeneous group. We point out also that Ramirez, which relied on Andrews, found that a pattern of strikes, the disproportionate use of strikes against black venirepersons, the heterogeneity of the excused jurors except for race, and the substantial similarity of the excluded blacks and the accepted white jurors outweighed the presence of some blacks on the jury and the fact that the defendant, the victim and several State witnesses were of the same ethnic origin. Based on Andrews and Ramirez, we believe that the decision of the judge was against the manifest weight of the evidence.

The doctrine first announced in Batson is being refined on a case-by-case basis. In fact, it has even been amended by Powers v. Ohio, which removed the requirement previously noted in Batson that the defendant and the excluded jurors be of the same race. The doctrine has now been extended to civil cases (Edmonson v. Leesville Concrete Co. (1991), 500 U.S. 614, 114 L. Ed. 2d 660, 111 S. Ct. 2077), and it has been extended to apply to the defendant’s use of peremptory challenges. (Georgia v. McCollum (1992), 505 U.S. 42, 120 L. Ed. 2d 33, 112 S. Ct. 2348.) Similarly, Andrews is a refinement to the extent that it instructs the trial court on the relative weight of the factors that must be considered. It also teaches that the better practice is for trial judges to make clear on the record that they did consider those factors. Fairness requires that we note that this case was tried before Andrews was decided by the supreme court and Ramirez by this court. The trial judge did not have the guidance of Andrews at the time this case was tried.

After oral argument, the State has cited the additional authority of People v. Dukes (1992), 227 Ill. App. 3d 988, 592 N.E.2d 437. We find that Dukes, which was decided one month after Andrews and does not mention Andrews, is not factually controlling. In Dukes, the appellate court upheld the trial judge’s finding that there was no pattern of strikes against blacks and that the excluded black jurors shared characteristics other than race. Most important, it was clear from the record that the trial judge did consider all relevant factors.

The State now attempts to advance reasons justifying the exclusion of the black jurors. This court is not the proper forum to make that initial determination. We therefore remand the case to the circuit court for a hearing to allow the State to come forward with race-neutral explanations for the use of its peremptory challenges. The trial court shall determine whether the State’s explanations are sufficient to rebut the defendants’ prima facie case.

This court will withhold disposition of Burton’s other claims of prosecutorial misconduct and retain jurisdiction to consider them after the Batson proceedings. See People v. Garrett (1990), 139 Ill. 2d 189, 564 N.E. 784.

Judgment reversed and remanded with directions.

McNAMARA, P.J., and RAKOWSKI, J., concur.


author: JUSTICE GREIMAN

text:
    RICHARD JOHNSON et al., Plaintiffs-Appellants, v. KERSTIN JOHNSON, n/k/a Kerstin Sagerstrom, Defendant-Appellee.
    First District (3rd Division)
    No. 1 — 92—0485
    Opinion filed March 31,1993.
    Rehearing denied May 4,1993.

      Riccardo A. Di Monte and Paula S. Goldberg, both of Di Monte & Lizak, of Park Ridge, for appellants.
    David R. Herzog and Steven Shamash, both of Layfer, Cohen & Handelsman, Ltd., of Chicago, for appellee.

      In 1990, the American Law Institute approved the provisions of section 3 — 112(b) and at least 23 States have now adopted the amendment. Carnegie Bank, 256 N.J. Super, at 37, 606 A.2d at 396 (21 States cited therein plus now New Jersey and Illinois).

   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs, Richard and Olga Johnson, sought recovery on a $38,000 note dated March 1985 and executed by Donald Johnson, plaintiffs’ son, and defendant, Kerstin Johnson, n/k/a Kerstin Sagerstrom, plaintiffs’ former daughter-in-law and the former wife of Donald Johnson. The trial court entered judgment against plaintiffs on the $38,000 note and in favor of plaintiffs for a separate $5,000 loan made subsequent to the execution of the 1985 instrument.

On appeal, plaintiffs assert that the trial court erred in denying them recovery on the note and that under the provisions of the Uniform Commercial Code (UCC) past consideration is sufficient consideration to support a negotiable instrument (Ill. Rev. Stat. 1985, ch. 26, pars. 3—307, 3—408). Alternatively, plaintiffs contend that sufficient consideration existed so as to permit recovery based on contract and that the trial court’s order was against the manifest weight of the evidence.

Defendant urges that we do not consider plaintiffs’ first issue because the amended complaint upon which the trial was based does not sound in an action under the UCC.

For the reasons which follow, we find that plaintiffs did not waive the right to present arguments based on the UCC, but that the document at issue fails to satisfy the statutory requirements necessary to be a negotiable instrument under the UCC because it fails to state a sum certain as required by section 3 — 104 (Ill. Rev. Stat. 1985, ch. 26, par. 3—104). Moreover, plaintiffs’ claims fail under a contract theory because the evidence failed to establish that defendant received consideration for the note.

The document at issue is entitled “Promissory Note” (hereinafter Note) in the face amount of $38,000, dated March 1985, and signed by Donald Johnson and defendant. The Note states that the signatories promise to pay plaintiffs interest monthly in a sum “at the rate of 21/a% below prime rate per centum per annum on the unpaid balance until paid in full.” The monthly payments stopped in January 1990.

On June 19, 1990, plaintiffs filed their original complaint to recover on the Note referring to it as a promissory note. Thereafter defendant filed a motion for judgment on the pleadings contending that plaintiffs could not recover under a UCC theory because the underlying instrument is not negotiable. Rather than respond to the motion, plaintiffs filed an amended complaint referring to the Note as an agreement, apparently abandoning their claim under the UCC and proceeding on a contract theory.

At trial, Donald Johnson testified that he and defendant married in 1964, divorced in January 1989, and borrowed a total of $38,000 from his parents, plaintiffs, over a three-year period beginning when the couple acquired a business known as Lee’s Draperies in February 1982 and ending when they signed the Note in March 1985.

Donald testified that $25,000 of the $38,000 loan was used to purchase the business in February 1982 and the $25,000 check was probably made out to him alone. The remainder of the loan was used for various purposes, such as household expenses, real estate taxes on their home, a “capital gains problem” (approximately $7,500) incurred through the sale of a previous house, and for rent and real estate taxes connected with the business.

Since the $38,000 loan was not made in one lump sum, Donald explained that the money came in increments by checks made out to Donald most of the time. Although he speculated that some of the checks were payable jointly to himself and defendant, Donald could not recall any specific time where the check was made out in joint names.

Interest payments were made on the loan until January 1990 but no amount of the principal of the loan has been repaid. Donald stated that payments were made either from his personal checking account or the business checkbook but most of those records are now lost. Defendant produced two personal checks which were admitted into evidence. The checks named only Donald, not defendant, and were both dated May 18, 1989, and made payable to Richard Johnson. One check was made out for $250 and the other for $150. Donald testified that these two checks constituted interest payments for two months. Donald understood at the time he signed the Note that he was responsible to make the payments.

According to Donald’s testimony, he and defendant were joint owners of Lee’s Draperies between 1982 and 1989, and they derived their financial support from the income of this business. He testified that stock certificates of the corporation were issued to defendant in her name but none were offered in evidence.

In contrast, defendant testified that she did not know whether she owned any stock. Defendant testified that Donald purchased Lee’s Draperies in 1982, she worked as a salesperson at the business, and her name appeared on the business papers as an officer of that corporation. However, defendant stated that she was not a director of the corporation.

Donald further testified that when he and defendant divorced in January 1989, he was awarded all the rights to the business. Lee’s Draperies went “bankrupt” in October or November 1989. Donald was hospitalized at the Elgin Mental Hospital from about November 1989 to January 1990. Donald filed for personal bankruptcy in 1990 and was discharged from his obligation on the Note.

Donald testified that defendant signed the Note “because the money that was loaned to us was loaned to us on a joint basis for a business that we were both joint partners in” and for personal financial problems. Although Donald believed his parents would not have lent the money if defendant had not signed the Note, the Note was signed long after the funds were given to Donald.

According to his testimony, Donald borrowed an additional $5,000 from his parents after 1985 to try to save the business and the funds went into the business account. The $5,000 loan has not been paid.

Defendant testified that Lee’s Draperies was her sole source of income from 1982 to 1989 and she used the money she earned from the business to pay household bills. Both defendant and Donald had health insurance through the business. During 1985, the business owned two cars which were used by Donald and defendant. Although authorized to sign checks on the corporate checking account, defendant does not recall ever signing any checks for Lee’s Draperies.

Defendant was not aware that plaintiffs had given Donald $25,000 in 1982 and that Donald was making interest payments to plaintiffs from 1982 to 1985. Prior to executing the Note in 1985, the parties had discussed the possibility that Donald’s father, plaintiff Richard Johnson, would lend money to Donald for the drapery store but no specific amount of money was discussed. Defendant acknowledged that she signed the Note although she recalled that it was undated and no amount was stated.

Defendant understood that Donald was to make the payments on the Note and Donald never asked her to make any payments. Defendant does not know if some of the money borrowed from plaintiffs was deposited in the corporate checking account.

Defendant testified that she never received any money from plaintiffs, never saw or endorsed a check from plaintiffs, never made any payments to plaintiffs, and never had any documents relating to or stock certificates from Lee’s Draperies.

At the conclusion of the bench trial, plaintiffs moved to amend their pleadings to conform to the proof pursuant to section 2 — 616(c). (Ill. Rev. Stat. 1989, ch. 110, par. 2—616(c).) The motion sought to amend the complaint to allow recovery of the additional $5,000 loan as evidenced by Donald’s testimony at trial.

On October 23, 1991, the trial court entered an order granting plaintiffs’ motion to amend the pleadings and denying plaintiffs’ request for attorneys fees and costs. The trial court entered judgment in favor of plaintiffs in the amount of $5,000.

On appeal, plaintiffs advance several arguments based on the UCC: (1) the trial court failed to recognize that consideration is presumed in an action on a validly executed negotiable instrument (111. Rev. Stat. 1985, ch. 26, par. 3 — 307) and defendants failed to rebut this presumption; (2) section 4—408 provides that no additional consideration is required when a note is given as security for an antecedent obligation (Ill. Rev. Stat. 1985, ch. 26, par. 3—408), i.e., the money given to Donald before the Note was signed in 1985; and (3) even if defendant received no consideration in exchange for the promissory note, she is liable as an accommodation maker (Ill. Rev. Stat. 1985, ch. 26, par. 3-415).

Defendant raises the threshold question by contending that plaintiffs have waived the right to assert on appeal a theory of recovery based on the UCC. Defendant argues that the issues in this appeal are framed exclusively by plaintiffs’ amended complaint which pleaded a breach of contract theory.

Initially we note that neither complaint filed by plaintiffs specifically alleged a particular theory of recovery, either UCC, contract or otherwise. Moreover, the Note was attached to both complaints and the exhibit controls over the complaint where allegations in the complaint conflict with facts contained in the exhibit. McCormick v. McCormick (1983), 118 Ill. App. 3d 455, 460, 455 N.E.2d 103; W.H. Lyman Construction Co. v. Village of Gurnee (1980), 84 Ill. App. 3d 28, 32, 403 N.E.2d 1325.

Generally, issues not presented to or considered by a trial court are deemed waived on review. (Palomar v. Metropolitan Sanitary District (1992), 225 Ill. App. 3d 182, 187, 587 N.E.2d 1067.) However, courts have framed the waiver rule in terms of issues, arguments and theories. Baker v. Collins (1963), 29 Ill. 2d 410, 415, 194 N.E.2d 353 (a claim that “was neither alleged in the complaint nor set up on their theory of the case” cannot be considered on appeal); Johnson v. Hilton Hotel Corp. (1989), 190 Ill. App. 3d 197, 200, 546 N.E.2d 617 (in an attempt to hold a parent company liable for the actions of its subsidiary in a personal injury action, the plaintiff “waived any claim that [the parent company’s] liability can be predicated upon the theory of piercing the corporate veil, as he failed to raise this theory below in any form”) (emphasis added); Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052, 452 N.E.2d 804 (“[i]ssues and arguments which were not presented to or considered by the trial court cannot be raised for the first time on review”); G & W Electric Co. v. Joslyn Manufacturing & Supply Co. (1984), 127 Ill. App. 3d 44, 47, 468 N.E.2d 449 (“[a] claim never alleged in the complaint nor set up in plaintiff’s theory of the case at trial cannot be considered on appeal”).

A review of the record establishes that plaintiffs repeatedly raised arguments based on the UCC, defendants responded to such arguments, and the trial court heard and considered such arguments. At the beginning of trial, plaintiffs submitted a trial brief specifically stating “Article 3 of the Uniform Commercial Code controls this case.” The transcript of the trial held on August 21, 1991, reveals that after the parties rested their respective case, the trial court questioned the attorneys on certain issues presented by the case, including the negotiability of the Note. Following their discussion, the trial judge stated that he would take the matter under advisement and requested the attorneys to file additional points and authorities. At the next hearing on October 23, 1991, the parties again argued the issue of the negotiability of the Note. In their post-trial motion, plaintiffs reiterated their UCC arguments, and in the subsequent hearing on the motion, the trial court again heard arguments by the parties on the UCC. Accordingly, we believe that plaintiffs have not waived consideration of their UCC arguments on appeal because such issues were clearly raised, argued, and considered by the trial court.

However, to consider the substance of plaintiffs’ UCC arguments, we must first determine whether or not the Note at issue constitutes a negotiable instrument because article 3 of the UCC only applies to a negotiable instrument.

Section 3—104 enumerates the requirements for a document to constitute a negotiable instrument.

“(1) Any writing to be a negotiable instrument within this Article must
(a) be signed by the maker or drawer; and
(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this Article; and
(c) be payable on demand or at a definite time; and
(d) be payable to order or to bearer.” (Emphasis added.) (111. Rev. Stat. 1989, ch. 26, par. 3 — 104.)

The sole dispute in the present case is whether or not the sum certain requirement has been satisfied.

The language contained in the Note provides that the sum payable includes the principal amount “with interest from the date at the rate of 2/2% below prime rate.”

Plaintiffs assert that this language meets the sum certain requirement for a negotiable instrument while defendant contends otherwise.

The UCC does not provide a definition for “sum certain.” However, section 3—106 provides that the negotiability of an instrument is not impaired where the sum payable is contingent on other stated factors.

“The sum payable is a sum certain even though it is to be paid
(a) with stated interest or by stated installments; or
(b) with stated different rates of interest before and after default or a specified date; or
(c) with a stated discount or addition if paid before or after the date fixed for payment; or
(d) with exchange or less exchange, whether at a fixed rate or at the current rate; or
(e) with costs of collection or an attorney’s fee or both upon default.” (Ill. Rev. Stat. 1989, ch. 26, par. 3—106.)

Comment 1 to section 3 — 106 explains that to constitute a “sum certain,” the sum payable must be determinable from the face of the document.

“It is sufficient that at any time of payment the holder is able to determine the amount then payable from the instrument itself with any necessary computation. *** The computation must be one which can be made from the instrument itself without reference to any outside source, and this section does not make negotiable a note payable with interest ‘at the current rate.’ ” Ill. Ann. Stat., ch. 26, par. 3—106, Uniform Commercial Code Comment, at 38 (Smith-Hurd 1963).

In accordance with these UCC provisions and comments, courts have refused to recognize an instrument as negotiable where the sum payable can only be calculated by reference to a source outside the instrument. National Union Fire Insurance Co. v. Alexander (S.D.N.Y. 1989), 728 E Supp. 192, 200, citing Morris v. Columbia National Bank (N.D. Ill. 1987), 79 Bankr. 777 (interest at 3% over prime rate renders note nonnegotiable); Northern Trust Co. v. E.T. Clancy Export Corp. (N.D. Ill. 1985), 612 F. Supp. 712 (interest at 1/2% above prime renders note nonnegotiable); Centerre Bank v. Campbell (Mo. App. 1988), 744 S.W.2d 490 (interest that “may vary with bank rates charged” to payee renders note nonnegotiable); A. Alport & Son, Inc. v. Hotel Evans, Inc. (1970), 65 Misc. 2d 374, 317 N.Y.S.2d 937 (interest “at bank rates” renders note nonnegotiable); Taylor v. Roeder (1987), 234 Va. 99, 101, 360 S.E.2d 191, 192 (interest at “[t]hree percent (3.00%) over Chase Manhattan Prime to be adjusted monthly” renders note nonnegotiable); 4 Hawkland, U.C.C. Series §3—106:03, at 95 n.5 (1984); 2 Hart & Willier, Bender’s U.C.C. Series §2.11[2], at 2—103 (19_); Leary, U.C.C. Handbook 95 (19_); but see Goss v. Trinity Savings & Loan Association (Okla. 1991), 813 P.2d 492 (a note with an adjustable interest rate tied to the average yield on U.S. Treasury Securities (T-bills) is a negotiable instrument).

“Courts and U.C.C. commentators have agreed that an interest provision that cannot be determined without reference to the prime rate, even if it specifies the prime rate of a particular bank, renders a note nonnegotiable, because the purchaser of the note must look beyond the face of the note to determine how much is owed on the note at the time of payment.” National Union Fire Insurance Co. v. Cooper (S.D.N.Y. 1989), 729 F. Supp. 1423, 1436-37; National Union Fire Insurance Co. v. Tegtmeier (S.D.N.Y. 1987), 673 F. Supp. 1269, 1272 (and cases cited therein).

The Note in the present case merely states that the sum payable includes the principal amount “with interest from the date at the rate of 21/2% below prime rate.” The Note, while requiring us to go beyond its four corners, does not even direct us to a source where we might determine whose “prime rate” we should employ to calculate interest. Since the sum payable is impossible to determine from this bare language, such statement is not sufficient to render the note negotiable.

Plaintiffs’ reliance on Klehm v. Grecian Chalet, Ltd. (1987), 164 Ill. App. 3d 610, 518 N.E.2d 187, is unpersuasive since Klehm, unlike the present case, involved an instrument providing for specific times for varying the rate, limitations as to floor and ceiling of the rate, specific sources to reference, and the rate to be charged in the absence of such sources.

Additionally, plaintiffs argue that the Illinois General Assembly amended the UCC in 1992 and that a variable rate of interest may now be determined by “reference to information not contained in the instrument.” Plaintiffs rely on section 3 — 112(b) of the UCC, which became effective on January 1, 1992. Ill. Rev. Stat. 1991, ch. 26, par. 3—112(b) (eff. January 1, 1992).

In the case at bar the amendment did not become effective until several months after the entry of judgment.

This amendment to the UCC affects the manner in which we construe commercial paper. It establishes new criteria for defining negotiable instruments. It is clearly substantive in nature, and amendatory acts will be construed as prospective where the change is substantive rather than procedural (People v. Fiorini (1991), 143 Ill. 2d 318, 333, 574 N.E.2d 612; Rivard v. Chicago Fire Fighters Union, Local No. 2 (1988), 122 Ill. 2d 303, 522 N.E.2d 1195; Cooper v. Chicago Transit Authority (1991), 224 Ill. App. 3d 321, 586 N.E.2d 575; American National Bank & Trust Co. v. Anchor Organization for Health Maintenance (1991), 210 Ill. App. 3d 418, 423-24, 569 N.E.2d 128; Falato v. Teachers’ Retirement Systems (1991), 209 Ill. App. 3d 419, 425, 568 N.E.2d 233; Young v. Chicago Transit Authority (1990), 209 Ill. App. 3d 84, 89, 568 N.E.2d 18).

While we believe that the 1992 amendment has no retroactivity, at least one State (New Jersey) has adopted a contrary view. (Carnegie Bank v. Shalleck (1992), 256 N.J. Super. 23, 606 A.2d 389.) Where the note was executed in 1989, the trial held in 1990, and the New Jersey UCC amended in 1992, the New Jersey court determined that the amendment was curative, embracing the expectations of the parties. With remarkable casuistry, the New Jersey court suggests that as an exception to the nonretroactivity rule the amendment attempts to improve a statutory scheme and bring the law into harmony with the expectations of the parties and the law in the commercial marketplace. Carnegie Bank, 256 N.J. Super, at 40, 606 A.2d at 397-98.

Applying such retroactivity does just the opposite. It is generally unfair and makes the parties unsure of the bargain they have struck. The New Jersey court has contorted the rules of statutory construction to meet the exigencies of current leading practices. In Illinois, we do not so bend.

Had our General Assembly desired, it could have designated that the amendment be given retroactive application. Had the American Law Institute which promulgated the uniform act had such a desire, retroactivity could have been included in the comment.

Since we find that the sum payable is uncertain, the Note is nonnegotiable and thus outside the purview of the UCC. Northern Trust Co., 612 E Supp at 715.

Accordingly, plaintiffs’ assertion that defendant failed to rebut the presumption of consideration which attaches to a validly executed negotiable instrument (Pedott v. Dorman (1989), 192 Ill. App. 3d 85, 93, 548 N.E.2d 541) is inapplicable as is the use of an antecedent debt as consideration and the liability of an accommodation maker. Instead, the principles of contract law govern.

Under a contract theory, the plaintiffs carry the burden to prove all elements of a contract including consideration. (Mannion v. Stallings & Co. (1990), 204 Ill. App. 3d 179, 186, 561 N.E.2d 1134.) Any act or promise which is of benefit to one party or disadvantage to the other party is sufficient consideration. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 330, 371 N.E.2d 634.) However, the general rule dictates that if the alleged consideration for a promise has been conferred prior to the promise upon which alleged agreement is based, there is no valid contract. Gladstone v. McHenry Medical Group (1990), 197 Ill. App. 3d 194, 202, 553 N.E.2d 1174.

Plaintiffs assert that defendant received actual and sufficient consideration in exchange for the Note because she received benefits by the purchase of the jointly owned business and the payment of her personal debts. On the other hand, defendant contends that the evidence established that the money from plaintiffs went to Donald alone and the $38,000 had been loaned to Donald long before the Note was executed by defendant.

The trial court found the evidence to be “very weak” and conflicting, and the testimony of Donald to be suspect since he was already discharged from any obligation on the Note due to his bankruptcy proceedings and had “an ax to grind” with his ex-wife, defendant.

Whether there is consideration for an agreement is a question of law for the court. (Russell v. Jim Russell Supply, Inc. (1990), 200 Ill. App. 3d 855, 861, 558 N.E.2d 115; Lesnik v. Estate of Lesnik (1980), 82 Ill. App. 3d 1102, 403 N.E.2d 683.) The weight to be given conflicting testimony in a bench trial is a matter for the trial court and its findings will not be disturbed on review unless they are against the manifest weight of the evidence, i.e., the opposite conclusion must be clearly evident. (Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 865, 501 N.E.2d 273.) If there is evidence to support the trial court’s judgment, a reviewing court must affirm because it is not sufficient to show that the record will support a contrary decision. Trident Industrial Products, 149 Ill. App. 3d at 865.

Our review of the record discloses that the trial court’s decision was not against the manifest weight of the evidence.

The record lacks any physical evidence to show when and how any money changed hands between anyone. The testimony of the only two witnesses, Donald and defendant, was contradictory and, at best, was unclear as to whether anything was made payable to defendant at any time.

Donald testified that subsequent to the execution of the Note, an additional $5,000 was advanced to him and defendant. The trial court awarded $5,000 to plaintiffs and the propriety of that portion of the order is not before us. Nothing in the record suggests a nexus between the requirement that the Note be executed as a condition for disbursement of the later sum.

For all the foregoing reasons, we affirm the judgment of the trial court.

Judgment affirmed.

TULLY, P.J., and RIZZI, J., concur.