text:
    BEL-GRADE, INC., et al., Plaintiffs-Appellants, v. F. STEVEN ETHERIDGE, Indiv. and as Chief of the Moline Police Department, Defendant-Appellee.
    Third District
    No. 3—91—0710
    Opinion filed April 24, 1992.
    Francis Van Hooreweghe, of Van Hooreweghe, Fackel & Thuline, of Moline, for appellants.
    Richard M. Batcher and J. Sue Myatt, both of Bozeman, Neighbor, Patton & Noe, of Moline, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Bel-Grade, Inc., and Terry Buckwalter, brought a defamation action against the defendant, E Steven Etheridge. The trial court granted the defendant’s motion to dismiss pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). The plaintiffs appeal.

In their complaint, the plaintiffs alleged Bel-Grade, Inc., was the owner and operator of a restaurant and tavern known as the BelGrade. The complaint further alleged that Terry Buckwalter was the sole stockholder and chief operating officer of Bel-Grade, Inc.

The plaintiffs’ complaint contained the following allegation:

“3. That on or about the 18th day of April, 1991, as set forth below in the County of Rock Island and State of Illinois, the Defendant, in the presence and hearing of third persons, spoke of and concerning the Plaintiffs the following false, defamatory and slanderous words:
A. That the ‘said Bel-Grade was and had been suspected as a place where illegal activities were conducted,’ as set forth in the Quad City Times and Daily Dispatch.”

The complaint alleged the defendant meant by the statement to convey to persons hearing the statement that plaintiffs were violating the law. The complaint asserted the statement was without foundation and wholly false, and that the plaintiffs were injured in their reputation and business.

The defendant filed a motion to dismiss under section 2 — 615 of the Code contending the complaint failed to state a cause of action. Subsequently, in response to interrogatories responded to by the plaintiffs, the defendant filed a supplemental motion to dismiss under section 2 — 619 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619).

At the conclusion of a hearing on the motions to dismiss, the trial court granted the motion to dismiss with prejudice based on section 2 — 615. Specifically, the court found the statement, as it applied to the corporate plaintiff, was not defamatory as a matter of law because it did not “assail the corporation’s financial position or business methods or accuse the plaintiff corporation of fraud or mismanagement.” Second, the statement was not defamatory as to Terry Buckwalter because the statement made no reference to him. In the alternative, the trial court stated the statement was not actionable as a matter of law under the “innocent construction rule.” The trial court did not reach the section 2 — 619 motion, and therefore, the issues raised therein are not before this court. We are confronted only with the issue of whether the complaint stated a cause of action for defamation per se.

On appeal, the plaintiffs contend the statement constituted defamation per se and cannot be innocently construed. The plaintiffs assert the statement imputes the commission of criminal offenses by the corporation and Buckwalter.

A statement is defamatory per se if it is so obviously and naturally harmful to the person aggrieved that proof of injurious character can and is dispensed with. (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 506 N.E.2d 1370.) The defamatory character of the statement must be apparent on its face and extrinsic facts unnecessary. (Schaffer v. Zekman (1990), 196 Ill. App. 3d 727, 554 N.E.2d 988.) Words are held to be defamatory per se where they impute the commission of a criminal offense. Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 506 N.E.2d 1370.

A motion to dismiss admits all well-pleaded facts and reasonable inferences that can be drawn therefrom. (Knox College v. Celotex Corp. (1981), 88 Ill. 2d 407, 430 N.E.2d 976.) The dismissal of a complaint for failure to state a cause of action, including one for defamation, rests within the sound discretion of the trial court. American International Hospital v. Chicago Tribune Co. (1985), 136 Ill. App. 3d 1019, 483 N.E.2d 965.

We note that allegedly defamatory words must be considered under the innocent construction rule. (Harris Trust & Savings Bank v. Phillips (1987), 154 Ill. App. 3d 574, 506 N.E.2d 1370.) Under the rule, a written or oral statement is to be considered in context, with the words and the implications therefrom given their natural and obvious meanings; if, as so construed, the statement may reasonably be innocently interpreted or reasonably be interpreted as referring to someone other than the plaintiff, it cannot be actionable per se. Chapski v. Copley Press (1982), 92 Ill. 2d 344, 442 N.E.2d 195.

We find the statement as set forth in the complaint may reasonably be innocently construed. The phrase only says the Bel-Grade was suspected of being a place where illegal activities were conducted. The statement does not accuse either plaintiff of being involved in criminal activity. Additional facts would be required to tie the plaintiffs to any criminal activity allegedly occurring on the premises. In sum, the statement does not constitute defamation per se, and the trial court correctly found the plaintiffs had failed to state a cause of action.

Therefore, the judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ROBINSON, Defendant-Appellant.
    Third District
    No. 3—91—0020
    Opinion filed May 21, 1992.
    Kenneth D. Brown, of State Appellate Defender’s Office, of Ottawa, for appellant.

      Edward Burmila, Jr., State’s Attorney, of Joliet (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, Michael Robinson, was found guilty of armed violence (Ill. Rev. Stat. 1989, ch. 38, pars. 12— 4(a), 33A — 2)). The trial court found him not guilty of attempted murder. Following a sentencing hearing, the defendant was sentenced to a six-year prison term. He appeals.

Initially, the State argues that this court does not have jurisdiction to hear this appeal because the defendant’s notice of appeal was untimely filed. The State correctly notes that a notice of appeal must be filed within 30 days of the entry of the final judgment (134 Ill. 2d R. 606(b)), and that the final judgment in a criminal case is the oral pronouncement of sentence. People v. Allen (1978), 71 Ill. 2d 378, 375 N.E.2d 1283.

In the ease at bar, the defendant was sentenced on November 28, 1990. At that time the trial judge agreed to stay the mittimus until January 2, 1991, and mistakenly informed the defendant that he had 30 days to appeal the judgment from the day the mittimus would issue. Thereafter, the defendant filed the notice of appeal on January 7, 1991. It is clear that the trial judge failed to properly admonish the defendant pursuant to Supreme Court Rule 605(a) (134 Ill. 2d R. 605(a)), which requires the court to advise the defendant that his right to appeal will be preserved only if a notice of appeal is filed within 30 days from the date of the sentence (134 Ill. 2d R. 605(a)). Therefore, in the interest of justice we will consider the defendant’s notice of appeal timely filed and address the merits of the case. See People v. Gamboa (1992), 225 Ill. App. 3d 668, 588 N.E.2d 457.

The record reveals that the defendant’s girlfriend and his sister picked up the defendant and his cousin at 9 p.m. at the hardware store where they worked. The women told the defendant that they had had an altercation with Antonio Morgan, Morgan’s girlfriend Vicky Fox, and Morgan’s sister earlier in the day. According to them, Morgan had punched the defendant’s sister in the face while she was holding the defendant’s six-month-old daughter, which caused the baby’s head to hit the car door. This angered the defendant, who decided to look for Morgan. There were already two baseball bats in the defendant’s car. He went home and also retrieved his handgun.

The defendant stated that his intention was to confront Morgan and to “hit him a couple times with the stick, just to show him how it feels to be victimized.” He said he did not intend to use the gun to shoot Morgan, but only wanted it because Morgan’s neighborhood was dangerous. They drove to Morgan’s neighborhood, where they found him walking with two other men. The defendant stated that Morgan and his companions appeared to be gang members, so for protection he placed his gun in a holster under his right shoulder and concealed it under his jacket.

The defendant approached the men, carrying a baseball bat, and asked which one was “going with” Vicky Fox. According to the defendant, Morgan responded that he was and pulled his coat back to reveal a gun tucked in his waistband. The defendant stated that he froze and Morgan reached for his gun. The defendant then jumped to the side and reached for his gun. According to the defendant, Morgan drew his gun first, started running away, turned partially around with much of his back toward the defendant, and fired two or three shots. The defendant then returned fire, ultimately hitting Morgan in the back.

Morgan testified that the defendant approached him with a baseball bat, but when Morgan responded that he was Vicky Fox’s boyfriend, the defendant dropped the bat and began shooting at him, ultimately hitting him in the back. Morgan stated that he was unarmed.

Various witnesses corroborated either the defendant’s or Morgan’s version of the events.

The trial judge found insufficient evidence of the defendant’s intent to kill Morgan and therefore found him not guilty of the attempted murder charge. However, the judge specifically found that the defendant, acting as the aggressor, had intended to confront Morgan “to do substantial harm by all appearances.” The judge also noted that “any provocation had been quieted by the time the defendant arrived at the scene where the shooting occurred.” He then found the defendant guilty of armed violence based on aggravated battery.

On appeal, the defendant notes that he was charged with attempted first degree murder. The charge alleged that he shot Antonio Morgan with a handgun without lawful justification and with the intent to kill Morgan. Based on the same conduct, he was also charged with armed violence. This charge alleged that while armed with a handgun, the defendant committed the offense of aggravated battery in that he knowingly and without lawful justification shot Morgan in the back, thereby causing great bodily harm.

The defendant contends that he was found not guilty of the Class X offense of attempted murder but was still sentenced as a Class X offender because, through operation of the armed violence statute, the Class 3 felony of aggravated battery was elevated to the Class X felony of armed violence. Thus, he was subject to the same penalty as if he had been convicted of what he contends is the more serious offense of attempted murder. In this manner, he argues he was denied his constitutional guarantee of proportionate penalties and due process. We disagree.

The purpose of the armed violence statute is to deter a defendant from carrying a dangerous or deadly weapon at the time of the commission of a felony. (People v. Eure (1986), 140 Ill. App. 3d 387, 488 N.E.2d 1267.) A defendant may be convicted of armed violence based on aggravated battery. People v. Biesiada (1990), 201 Ill. App. 3d 39, 558 N.E.2d 520.

In support of his argument, the defendant relies on People v. Allen (1991), 218 Ill. App. 3d 930, 578 N.E.2d 1193. In Allen, the defendant was charged with attempted murder, aggravated battery, and armed violence (based on aggravated battery), all based on the stabbing of his father. The defendant presented the defense of self-defense. The jury found him guilty of armed violence and aggravated battery, but was unable to reach a verdict on the attempted murder charge. He was sentenced to seven years’ imprisonment and raised the same argument on appeal as the instant defendant.

The Allen court stated that apparently the jury did not believe that the defendant acted with the intent to kill and that while he had committed the battery with the intent or knowledge that his actions would result in great bodily harm, some mitigating factors were present. The court noted that the purpose of the armed violence statute is to deter those who contemplate a felonious act from carrying a weapon. Thus, the statute may not be applied in instances where the underlying felony does not entail a premeditated act. The court then stated, without any discussion of the specific facts or circumstances of the case, that the defendant’s aggravated battery of his father had not been premeditated and that the defendant had presented evidence of “some provocation.” Thus, the Allen court concluded, the unpremeditated aggravated battery could not properly be used to support the armed violence conviction in that case.

To the extent that the decision in Allen appears to contradict this court’s decision in People v. Biesiada, noted above, we are not persuaded to depart from our holding in Biesiada. Furthermore, in the instant case, unlike the situation presented in Allen, we find that there was ample evidence that the defendant’s aggravated battery of Morgan was premeditated and not sufficiently provoked. The trial judge’s remarks noted in the recitation of facts above are instructive in this regard. We therefore find that the facts in this case are distinguishable from those in Allen.

Finally, we note that we disagree with the instant defendant’s characterization of armed violence based on aggravated battery as a less serious offense than attempted murder. The defendant argues that attempted murder is a more serious offense because it contains a more culpable mental state; that is, the intent to kill as opposed to knowledge that his conduct would cause great bodily harm. We find, instead, that while attempted murder may have a more culpable mental state, the harm or potential harm to the victim can be greater for armed violence based on aggravated battery. This is because a conviction for armed violence necessarily requires that the victim suffer great bodily harm while the defendant is armed with a deadly weapon. A conviction for attempted murder does not require harm to the victim while the defendant is armed. Thus, we are not persuaded that attempted murder is the more serious offense.

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

Affirmed.

SLATER and McCUSKEY, JJ., concur.


author: JUSTICE SLATER

text:
    ILLINOIS VALLEY ELECTRIC CO-OPERATIVE, INC., Plaintiff-Appellant, v. THE CITY OF PRINCETON, Defendant-Appellee.
    Third District
    No. 3—91—0624
    Opinion filed May 19, 1992.
    Rehearing denied July 7, 1992.

      Claudon, Lloyd, Barnhart & Beal, Ltd., of Canton (Gary E. Barnhart, of counsel), for appellant.

      Trimble, Angel, Isaacson & Tracy, of Princeton (John Isaacson, of counsel), for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

This case involves a dispute between plaintiff Illinois Valley Electric Co-Operative, Inc. (IVEC), and defendant City of Princeton (City) over which party is entitled to provide electricity to certain properties lying outside the corporate limits of the City. The trial court ruled in favor of the City. We affirm.

As a preliminary matter, we note that only count II of plaintiff’s original complaint is before this court. Four additional counts contained in plaintiff’s original and amended complaints were dismissed by the trial court prior to its decision on the merits of count II. Plaintiff’s attempt to appeal from the dismissal of those counts was dismissed by this court as untimely or because they had been abandoned.

The City operates a municipal utility pursuant to the Illinois Municipal Code (the Code) (Ill. Rev. Stat. 1985, ch. 24, par. 1 — 1—1 et seq.), which allows the City to own and operate a public utility within its corporate limits (Ill. Rev. Stat. 1985, ch. 24, par. 11— 117 — 1). The Code also allows the City to own and operate power lines or substations outside the corporate limits, but effective October 1, 1972, “no new customer which an electric supplier is entitled to serve under the Electric Supplier Act [(Ill. Rev. Stat. 1985, ch. 111⅔, par. 401 et seq.)] may be served from any line, lines or other facilities located without the corporate limits of a municipality unless waiver to serve such a customer is given in writing by the electric supplier” (Ill. Rev. Stat. 1985, ch. 24, par. 11 — 117—1).

The City provides electrical services to a subdivision, two trailer courts and a few other individual customers located outside the corporate limits. Count II of IVEC’s complaint sought declaratory and injunctive relief to prevent the City from continuing to service these customers. The parties submitted a stipulated statement of facts to the trial court, relevant portions of which are summarized below.

Max Coville started working for the City’s municipal utility in 1950. Coville became distribution superintendent in 1967 and held that position until he retired in 1986. Coville identified the following properties located outside the City as receiving electrical service from the municipal utility: the Old Brewery Lake subdivision, connected in 1963; the Brenda Fetzer property, connected after 1986; the George Byers property, located in the Old Brewery Lake subdivision, connected in 1984 or 1985; Elm City trailer park, connected between 1963 and 1965; Hillview trailer park, originally connected in the late 1950s or early 1960s with lines rebuilt and two new meter loops installed in the early 1970s; the Steven Schmidt property, connected in the middle 1970s, which was part of a larger property owned by Schmidt’s father which was connected in the middle or early 1960s or possibly as early as the 1950s; the Bob Fritz property, connected about 1978; Enstar cable television company, connected in approximately 1977; and the Vi Strunk property, connected since the early 1950s.

According to Coville, two IVEC officials, Milford Jontz and Roy Horton, met with City officials in 1963 to discuss extending electric service to the Old Brewery Lake property and the Elm City trailer park. IVEC did not want to service these areas because they were too far away. The City and IVEC agreed that the City would service Old Brewery Lake and Elm City and in exchange IVEC would be allowed to service its office building located within the City limits. To the best of Coville’s knowledge, no written document was prepared regarding this agreement, nor did he know whether the City had any record of the agreement, although the City did keep minutes of its meetings.

Milford Jontz began working for IVEC in 1940 and was manager from 1958 until he left the company in 1979. According to Jontz, IVEC agreed to let the City provide electrical service to the Old Brewery Lake subdivision and he thought that this agreement should be reflected in IVEC’s minutes. IVEC and the City reached a similar agreement with regard to Elm City trailer park after two or three meetings between IVEC’s president and vice-president and the City’s utility manager. Jontz initially stated that he believed IVEC provided service to Hillview trailer park, but later stated that IVEC told the owner of the trailer park to see the City about electric service. Although Jontz thought that IVEC serviced a couple of trailers in the park, he admitted that he was unsure. Jontz related that it was IVEC’s policy during the time that he was manager that if the City had a primary line closer to a location than IVEC, then the City was allowed to serve that property. IVEC was operating on a very limited budget and wanted to give its customers the cheapest rate that it possibly could. At that time IVEC was operating in eight counties and “it had about all it could handle, as far as building lines and so forth.” This policy, which was in effect from approximately 1955 to 1979, should have been reflected in IVEC’s minutes, although Jontz did not know if it was. IVEC kept minutes of meetings on a regular basis and these minutes accurately reflected what occurred at the meetings.

Sharon Mercer was manager of the City’s municipal utility from 1976 to 1989. She stated that the City had no written policy regarding extending power outside the City limits. Mercer was not aware of any written agreements in the City’s records which would allow the City to furnish power outside the City limits.

Jack Best has been IVEC’s assistant manager since 1977. Best conducted an exhaustive search of IVEC’s records in an attempt to locate any written minutes reflecting the policy referred to by Jontz of allowing the City to serve customers outside the City limits. No such minutes could be found, nor were there any written agreements or memoranda of oral agreements indicating that IVEC allowed the City to service the Old Brewery Lake subdivision, Elm City trailer park or other properties.

Timothy Christensen has been general manager of IVEC since 1983. Christensen testified that a thorough review of IVEC’s records failed to disclose any minutes, memoranda or written agreements which would substantiate Jontz’s recollection that IVEC allowed the City to serve customers located outside the City limits. The only agreement between IVEC and the City found by Christensen was one in which the City released the right to serve IVEC’s east warehouse in 1983 and another agreement in which IVEC released the right to serve the City’s landfill in 1986. Christensen acknowledged that IVEC provides electricity to its corporate headquarters which are located within the City limits, even though those headquarters are not included in the agreement allowing IVEC to serve its east warehouse.

The parties stipulated to certain meter set date records which showed the date on which various meters were set by the City in the Old Brewery Lake subdivision, Elm City trailer park, Hillview trailer park, and other properties. Many of the meters were set after the effective date of the Electric Supplier Act, which was July 2,1965.

In its order entering judgment for the City, the trial court found:

“1. That the City of Princeton is entitled to serve with electric service both the Old Brewery Lake Subdivision and Wilson/Elm City/the Grove Trailer Court despite the fact they are located outside the corporate limits of the City pursuant to an agreement between the City of Princeton and lilinois Valley Electric Cooperative entered into in the early 1960s whereby the City would serve the aforementioned properties and the Illinois Valley Electric Cooperative would serve its headquarters which is located within the corporate limits of the City of Princeton.
2. That the City of Princeton is entitled to supply electric service to Hillview Trailer Court despite the fact the same is located outside the corporate limits of the City of Princeton by virtue of the fact the City was serving Hillview Trailer Court prior to October 1, 1972, and no new meters or service has been provided Hillview Trailer Court after October 1, 1972.
3. That the City is entitled to provide electric service to LaVerne Schmidt despite the fact he is located outside the corporate limits of the City of Princeton as he was a customer of the City prior to both the effective date of the Electric Supplier Act and Sec. 11 — 117—1 of the Illinois Municipal Code.
4. That the City of Princeton is entitled to provide electric service through meters originally set in the names of Loyd Whitlock, Steven L. Schmidt, Bob Fritz and Princeton Cable TV despite the fact the same are located outside the corporate limits of the City of Princeton as the City provided electric service to the same initially in reliance on. a policy espoused by the Illinois Valley Electric Cooperative that whichever electric supplier was closer to a potential customer, that supplier would provide service to that customer and the Coop is now estopped from asserting compliance with the Illinois Municipal Code, Sec. 11 — 117—1, after the City relied upon the Illinois Valley Electric Cooperative’s policy.”

Plaintiff IVEC first contends that the trial court erred in finding that the City and IVEC entered into an agreement regarding service to the Old Brewery Lake subdivision and the Elm City trailer park. IVEC maintains that the official acts of municipal corporations must be recorded, that those records are the only lawful evidence of such acts and that such records cannot be contradicted or supplemented by oral evidence. (Western Sand & Gravel Co. v. Town of Cornwall (1954), 2 Ill. 2d 560, 119 N.E.2d 261.) IVEC also notes that silence in the record of a legislative body as to anything required to be shown is evidence of its nonexistence. (People ex rel. Anderson v. Chicago & North Western Ry. Co. (1947), 396 Ill. 466, 71 N.E.2d 701.) Since no written evidence of the agreement between the City and IVEC was introduced, IVEC contends that the trial court’s finding of such an agreement was erroneous.

Assuming that the agreement between the City and IVEC concerning service to the Old Brewery Lake subdivision and the Elm City trailer park is the type of “official act” referred to in Western Sand, we nevertheless affirm the trial court’s decision. It is undisputed that the City began providing electrical service to these areas in the early 1960s, long before section 11 — 117—1 of the Code required a written waiver. These properties were therefore not subject to the written waiver requirement. With respect to the seven Old Brewery Lake subdivision residences which the meter set record indicates were connected after October 1, 1972, we find that these residences were not “new customers which an electric supplier is entitled to serve” (Ill. Rev. Stat. 1985, ch. 24, par. 11— 117 — 1) by virtue of their location in the Old Brewery Lake subdivision. See Illinois Power Co. v. Illinois Commerce Comm’n (1968), 39 Ill. 2d 406, 235 N.E.2d 614 (no error in treating entire subdivision as a single unit).

Similarly, we find no error in the trial court’s determination that the City was entitled to supply electric service to the Hillview trailer park and the LaVerne Schmidt residence. As noted by the court, the City was serving Hillview prior to October 1, 1972, and no new meters or service had been provided after that date. Service to the LaVerne Schmidt property predated both the Electric Supplier Act and section 11 — 117—1 of the Code. No written waiver was required for the City to service those properties.

IVEC contends, however, that Hillview trailer park is not exempt from section 11 — 117—1 because the owner of the park resells the electricity provided by the City to those people who live in the individual trailers. IVEC argues that treating the entire trailer park as the City’s customer constitutes an unwarranted circumvention of the legislative intent to prohibit municipalities from serving outside their corporate boundaries where other electric suppliers are able to serve. We do not agree. Max Coville’s testimony indicates that two-thirds of the existing trailers were in place by 1965 and by 1972 “[pjrobably all of the existing trailers that are there now would have been there.” It therefore appears that the residents of the trailer park were being served by the City prior to the amendment to section 11 — 117—1 of the Code and thus are not “new” customers. Furthermore, this case does not present a situation where the City is supplying electricity to a customer for transportation by the customer to locations within the service area of another supplier (see, e.g., Central Illinois Public Service Co. v. Illinois Commerce Comm’n (1990), 202 Ill. App. 3d 567, 560 N.E.2d 363) inasmuch as we deem the Hillview trailer park to be a single location served by the City (see Coles-Moultrie Electric Cooperative v. Illinois Commerce Comm’n (1979), 76 Ill. App. 3d 165, 394 N.E.2d 1068 (70-acre tract containing 2 houses and 19 trailers constituted a single location)).

Finally, with respect to the remaining properties referred to in paragraph 4 of the trial court’s order, we affirm the trial court’s ruling that the City is entitled to serve those properties. The trial court found that IVEC was estopped from asserting the City’s noncompliance with section 11 — 117—1 of the Code due to the City’s reliance on IVEC’s policy of allowing the City to serve locations where the City had a primary power line closer than IVEC. The first three elements of equitable estoppel, however, are: (1) words or conduct by the party against whom estoppel is asserted amounting to a misrepresentation or concealment of material facts; (2) the party to be estopped must have had knowledge that the representations were untrue at the time they were made; and (3) the truth regarding the representations must be unknown to the party claiming the benefit of the estoppel. (Vaughn v. Speaker (1988), 126 Ill. 2d 150, 533 N.E.2d 885; Union National Bank & Trust Co. v. Carlstrom (1985), 134 Ill. App. 3d 985, 481 N.E.2d 300.) IVEC’s policy of allowing the City to serve certain customers does not appear to be a misrepresentation or untruth. We believe, therefore, that applying a theory of estoppel to the facts of this case is inappropriate. We instead find that IVEC has waived the issue of the City’s noncompliance with section 11 — 117—1 as it affects service to the Lloyd Whitlock, Steven Schmidt, Bob Fritz and Enstar cable television properties.

Waiver is the intentional relinquishment of a known right. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 475 N.E.2d 872.) A waiver may be express or it can be implied from the acts, words or conduct of the party waiving the right. (Sexton v. Smith (1986), 112 Ill. 2d 187, 492 N.E.2d 1284.) In this case IVEC’s own manager, Milford Jontz, explained IVEC’s policy of allowing the City to serve locations near its primary power lines. The parties’ conduct appears to be consistent with the existence of such a policy. According to Jontz this policy was in effect until 1979. We note that the meter set date records show that the Whitlock, Schmidt, Fritz and Enstar properties were connected to the City’s utility between 1972 and 1976. IVEC has waived any objection to the City’s right to serve these properties, and we affirm the trial court’s order on that basis. See Material Service Corp. v. Department of Revenue (1983), 98 Ill. 2d 382, 457 N.E.2d 9 (judgment may be sustained upon any ground warranted, regardless of whether it was relied on by trial court and regardless of whether reason given by trial court was correct); Schaumburg State Bank v. Bank of Wheaton (1990), 197 Ill. App. 3d 713, 555 N.E.2d 48 (judgment may be affirmed based on any reason appearing in the record).

For the reasons stated above, we affirm the judgment of the circuit court.

Affirmed.

GORMAN and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. TIMOTHY D. SAFIRAN, Defendant-Appellee.
    Third District
    No. 3—91—0776
    Opinion filed May 18, 1992.
    Rehearing denied June 29, 1992.

      William Herzog, State’s Attorney, of Kankakee (John X. Breslin and Jay R Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Leonard F. Sacks, of Sacks & Albrecht, of Kankakee, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Following his breathalizer test, which revealed a blood-alcohol concentration of .17, the defendant, Timothy Safiran, was notified of the statutory summary suspension of his driver’s license pursuant to section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11 — 501.1). The defendant subsequently filed a petition to rescind the statutory summary suspension. Following a hearing, the trial court granted the petition to rescind. The State appeals.

At the hearing on the petition, the defendant called the arresting officer to testify. The officer testified that he stopped the defendant’s car “after it had been identified as a suspicious vehicle.” He noted that he wanted “to see what the driver was doing in the area.” During the stop, he noticed alcohol on the defendant’s breath.

The State did not cross-examine the officer. The defense then rested and the State presented no evidence. The trial court subsequently allowed the defendant’s petition to rescind, finding that the underlying stop was improper.

The State initially argues that the propriety of the stop could not be properly questioned at the summary suspension hearing, because such hearings are limited to those issues specifically set forth in section 2 — 118.1(b) of the Illinois Vehicle Code (Ill. Rev. Stat. 1989, ch. 953/2, par. 2 — 118.1(b)).

Although statutory summary suspension hearings are limited to certain statutory issues (see People v. Orth (1988), 124 Ill. 2d 326, 530 N.E.2d 210), the propriety of the underlying stop may always be considered (see People v. Decker (1989), 181 Ill. App. 3d 427, 537 N.E.2d 386). Accordingly, the trial court did not err in considering the propriety of the stop. We therefore turn our attention to the trial court’s determination that the stop was improper.

The State contends that the trial court erred in finding that the stop was improper. It argues that the stop was properly based upon the officer’s “reasonable suspicion.” In support of this contention, the State notes that such a reasonable suspicion can arise even when no violation of the law has been witnessed. See People v. Hardy (1986), 142 Ill. App. 3d 108, 491 N.E.2d 493.

We note that police may make investigatory stops of private citizens even though there is no probable cause to make an arrest. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.) However, to justify the stop, the police officer must be able to point to specific articulable facts which, when taken together with the rational inferences from those facts, reasonably warrant the intrusion. Terry, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868.

In the instant case, the police officer indicated that the defendant’s car was stopped because it was “suspicious.” Yet he articulated no facts which would make the defendant’s car any more suspicious than any other vehicle.

A reviewing court will not disturb the trial court’s finding on a petition to rescind unless that finding was manifestly erroneous. (People v. Repp (1988), 165 Ill. App. 3d 90, 518 N.E.2d 750.) Here, given the lack of articulable facts warranting the stop, we are unable to say that the trial court’s finding was manifestly erroneous.

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

Affirmed.

HAASE and STOUDER, JJ., concur.


author: JUSTICE McCUSKEY

text:
      In re APPLICATION OF THE COUNTY COLLECTOR OF WILL COUNTY FOR JUDGMENT FOR TAXES FOR THE YEAR 1988 (John Weber, County Treasurer and ex officio Collector of Taxes of Will County, Plaintiff-Appellant, v. Crossfield Chemical et al., Defendants-Appellees).
    Third District
    Nos. 3—91—0657 through 3—91—0678 cons.
    Opinion filed May 29, 1992.

      Edward Burmila, Jr., State’s Attorney, of Joliet (Philip A. Mock, Assistant State’s Attorney, and John X. Breslin and Judith Z. Kelly, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellant.
    Spesia & Ayers, of Joliet, and James A. Geraghty, of Wheaton (Neil T. Goltermann and Douglas E Spesia, of counsel), for appellee Crossfield Chemical.
   JUSTICE McCUSKEY

delivered the opinion of the court:

In 1988, Will County proposed a general real estate tax levy of $17,715,138, which was 122.84% greater than the general real estate tax levy for 1987. Pursuant to section 6 of the Truth in Taxation Act (Taxation Act) (Ill. Rev. Stat. 1987, ch. 120, par. 866), Will County published the following notice prior to adopting the real estate tax levy:

“PUBLIC NOTICE
Taxing Body: County of Will
1987 Extension (Excluding election cost & Debt): $14,421,204.46
1988 Proposed Levy (Excluding election costs & debt): $17,715,138
Percentage Increase: 122.84%
Date of Public Hearing: November 17,1988
Time of Public Hearing: 9:30 a.m.
Place of Public Hearing: Will County Office Building
302 N. Chicago St., Joliet, II. 60432”

The defendants paid their 1988 real estate taxes under protest and argued that the tax levy was invalid because Will County had failed to strictly comply with the requirements of the Taxation Act. The defendants specifically claimed that the published notice did not comply with the legislative intent of the Taxation Act nor did the notice contain all the information required by the Taxation Act. The circuit court agreed and sustained the defendants’ objections. The trial court ordered the treasurer to pay the defendants a refund of the real estate taxes they protested. The treasurer appeals. We affirm.

The sole issue on appeal is whether the circuit court erred by sustaining the defendants’ tax objections and finding invalid Will County’s 1988 real estate tax levy.

The treasurer contends that Will County substantially complied with the publication requirements of the Taxation Act. He further argues that substantial compliance is all that is required by the Taxation Act. We disagree.

The defendants argue that strict compliance with the requirements of the Taxation Act is mandatory. The defendants further argue that Will County’s failure to strictly comply with the Taxation Act rendered the tax levy invalid. We agree.

Objectors to a real estate tax levy are required to bear the burden of proving the invalidity of a tax levy. Generally, it is presumed that real estate taxes have been legally levied. (People ex rel. Moore v. Chicago, Burlington & Quincy R.R. Co. (1953), 414 Ill. 419, 111 N.E.2d 509.) Real estate taxes can only be levied, assessed and collected in the manner expressly required by statute. People ex rel. Pickerill v. New York Central R.R. Co. (1945), 391 Ill. 377, 63 N.E.2d 405.

The interpretation and construction of a statutory provision is governed by the rule that the intention of the legislature should be ascertained and given effect. (C.S. Johnson Co. v. Champaign National Bank (1984), 126 Ill. App. 3d 508, 467 N.E.2d 363.) The language used in a statute is the source from which its intent should be derived. (General Motors Corp. v. Industrial Comm’n (1975), 62 Ill. 2d 106, 338 N.E.2d 561.) However, “[wjhere the statutory language does not adequately convey the legislative intent, the courts may look to the legislative history.” C.S. Johnson, 126 Ill. App. 3d at 510, 467 N.E.2d at 365.

While we believe that the provisions of the Taxation Act in question are quite clear and unambiguous, we will review the legislative intent of section 3 of the Taxation Act. Section 3 provides in part:

“The purpose of this Act is to require taxing districts to disclose by publication and to hold a public hearing on their intention to adopt an aggregate levy in amounts more than 105% of the amount of property taxes extended or estimated to be extended *** upon the levy of the preceding year.” Ill. Rev. Stat. 1987, ch. 120, par. 863.

Section 5 of the Taxation Act contains mandatory directives for the taxing body. It provides in part:

“Until it has complied with the notice and hearing provisions of this Act, no taxing district shall levy an amount of ad valorem tax which is more than 105% of the amount, *** which has been extended or is estimated [to] be extended upon the levy of the preceding year.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 120, par. 865.

The use of the word “shall” is generally regarded as mandatory statutory language. Where the word “shall” is used in connection with any right or benefit, and the right or benefit depends upon giving a mandatory meaning to the word, the words cannot be given a permissive meaning. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.) The Andrews court held that the publication and notice provisions of the Illinois Revenue Act were designed for the benefit as well as protection of the taxpayers, and they were not adopted merely for the guidance of public officials. The publication requirements were enacted to afford the taxpayers information as well as the opportunity to evaluate the reasonableness of their assessments. (Andrews, 71 Ill. 2d at 22, 373 N.E.2d at 1336.) We hold that the publication requirements of the Taxation Act are mandatory and must be strictly complied with by the taxing body.

We further hold that section 6 of the Taxation Act also contains specific notice requirements which must be strictly complied with by the taxing body. Section 6 of the Taxation Act provides in pertinent part:

“[T]he corporate authority shall give public notice of and hold a public hearing on its intent to adopt a levy in an amount which is more than 105% of the extensions *** for the preceding year.
* * *
*** The notice shall state in plain and simple language the following information: (1) the legal name of the taxing district; (2) the commonly known name of the taxing district; (3) the amount of property taxes, exclusive of election costs, extended or estimated to be extended on behalf of the taxing district for the preceding year; (4) the amount of the proposed levy, exclusive of election costs, for the current year; (5) the percentage increase; and (6) the date, time and place of the public hearing concerning the proposed budget and the proposed levy increase. ***
Any notice which includes information substantially in excess of that specified and required by this Act shall be an invalid notice.” Ill. Rev. Stat. 1987, ch. 120, par. 866.

The failure to strictly comply with the mandatory requirements of section 6 of the Taxation Act will cause a taxing body’s levy to be found invalid following a proper tax protest.

The trial court specifically found that Will County’s notice failed to make any reference to the extension being an extension of property taxes. The trial court also found that there was no indication in the notice as to what the public hearing concerned. We agree with the trial court’s findings. We further note that nowhere in Will County’s notice is there any mention of the words “tax,” “property taxes,” “tax increase,” or “taxable property.”

We find that Will County’s notice did not even minimally comply with section 6 of the Taxation Act. The trial court was correct in determining Will County’s notice was clearly inadequate and that the notice failed to satisfy the legislative intent of the Taxation Act.

For the reasons indicated, the circuit court of Will County is affirmed.

Affirmed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALONZO RAY LEMONS, Defendant-Appellant.
    Fourth District
    No. 4—91—0772
    Opinion filed May 21, 1992.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Defendant Alonzo Ray Lemons was convicted of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d)) following a jury trial in McLean County, Illinois, and sentenced to 48 months’ probation with four months of periodic imprisonment and the first 12 months of defendant’s probation upon release from periodic imprisonment to be intensive probation supervision. Defendant was also fined $400, and ordered to pay court costs and to perform 130 hours of community service. Defendant appeals, contending (1) his conviction must be reversed because the State failed to prove beyond a reasonable doubt that he did not reasonably believe the victim was 17 years of age or older and (2) he is entitled to a $35 credit toward his fine for time served in the county jail. We affirm and remand with directions.

The facts will be reviewed in a limited fashion as pertinent to defendant’s contentions on appeal.

On September 2, 1990, the victim and her boyfriend, Scott Aldridge, attended a party at defendant’s home. Defendant, the victim and several other people at the party consumed alcoholic beverages; however, Aldridge did not drink anything. As the party was ending, the victim and Aldridge began to argue. Aldridge wanted to leave the party, while the victim wished to stay.

In her statement to the police, which she made the day after the incident, the victim stated the fight occurred outside defendant’s house near Aldridge’s car as he was leaving the party. She stated Aldridge pushed her into the car whereupon she struck her head on the gearshift. Upon hearing her scream, defendant ran out of his house toward Aldridge’s car. The victim said defendant jerked her by her arm and forced her back into the house. She stated defendant got undressed, ran around the house looking for something, and then pushed her toward the couch. Defendant then grabbed her off of the couch, holding both of her arms, and led her back into his bedroom, where he threw her onto the bed, pulled up her skirt and took off her sweatshirt. Her underwear was already off, although she could not recall how it had been removed. She then stated defendant climbed on top of her, pinning both of her arms and her right leg down, and forced her to have sexual intercourse with him. After approximately two minutes, he passed out and she got dressed and went into the living room. The police then arrived, woke up defendant and took him to jail.

At trial, however, the victim gave a completely different story. First, she testified she was 14 years of age at the time of this incident. She further testified she voluntarily went back into defendant’s house with him and that they did not have sexual intercourse that evening. The victim explained she lied to the police and to the grand jury which indicted defendant because she was afraid of her mother and did not want her mother to think she voluntarily slept with a black man. The victim testified she never told defendant how old she was and she thought he was 20 or 21 years of age.

Scott Aldridge testified he was the victim’s boyfriend and was 20 years old at the time of the incident. He testified he went to the party at defendant’s house with the victim, and they got into a fight as he attempted to leave. Aldridge testified the victim screamed and defendant ran out of his house toward Aldridge’s car. After he and defendant exchanged words, Aldridge testified defendant grabbed the victim and took her back into his house. Aldridge left defendant’s house and drove to a friend’s house to get help to get the victim out of defendant’s house. Aldridge returned to defendant’s house and found Lillian Donnelly, another person who attended the party, on defendant’s porch. Aldridge testified the lights were off in the house and the door was locked. He went to the front door and knocked several times but got no response. He went around to the back door and knocked very loudly but also got no response. Aldridge testified that while he was knocking on both doors he was also yelling at defendant that the victim was only 14 years old.

The police arrived and Aldridge told them defendant was in the house, naked, with a 14-year-old girl. Aldridge testified the police eventually broke into the house, removed defendant and the victim, and took defendant to jail and the victim to the hospital. On cross-examination, Aldridge admitted when he made his statement to the police the day after the incident, he did not mention the fact that he yelled to defendant that the victim was only 14 years old.

Officer Robert Siron of the Bloomington police department testified he responded to a call at defendant’s address and upon arriving found two other police officers already on the scene. Officer Siron spoke to Aldridge, who said his girlfriend was in the house with defendant and the last time he saw defendant, he (defendant) was naked. Officer Siron testified Aldridge told him the victim was only 14 years old. Officer Siron walked onto the front porch and entered the house after the two other officers broke through the rear door. He observed the victim on the couch and described her as hysterical and crying. Siron testified the victim stated defendant took off her pantyhose, socks and underwear in the living room and then carried her into the bedroom. Officer Siron saw these items on the living room floor. He then took the victim to Brokaw Hospital and attempted to take a statement from her, but stopped because she became very hysterical.

Defendant testified that he was 22 years old at the time of this incident. He testified that at the party the victim was rubbing her leg against him while they were seated at his kitchen table playing a drinking game. Defendant testified the victim and Aldridge got into a fight about whether the victim would stay at the party or leave with Aldridge. Defendant stated Aldridge was outside on the front porch knocking on the door and asking to talk to the victim. They continued arguing and Aldridge finally left the house. Defendant testified he shut the door and sat on the couch with the victim. Aldridge returned and defendant suggested the victim speak with him because he was making a lot of noise and defendant was afraid Aldridge would wake up the neighbors. Defendant testified the victim shut off the lights and told him that if they were quiet, Aldridge would leave.

Defendant testified the victim at this time was indicating she wished to have sexual intercourse with him. He stated he began looking for cigarettes and was not paying attention to the victim or what she was doing. He then testified she came into the hallway near the bedroom in her bra and panties and called him into the bedroom. A few minutes later, defendant went into the bedroom and found the victim lying on the bed with no clothes on. Defendant testified he attempted to get undressed but had trouble getting his pants off. Defendant testified the next thing he remembered was being awakened by the police.

Defendant testified he made a statement to the police on September 2, 1990, that he did not have sexual intercourse with the victim. The following day, after defendant had given blood, saliva and head and pubic hair standards, he gave another statement to the police that he may have had sex with the victim. On April 2, 1991, defendant told Detective Michael Fazio he did have sexual intercourse with the victim on September 2, 1990. On April 3, 1991, defendant again spoke to Detective Fazio and asked him to forget the statement made the previous day. Defendant testified he was not aware of the victim’s age until the charges against him were read at his arraignment. Defendant denied hearing Aldridge yell that the victim was only 14 years old. Defendant stated he was neither denying he had sex with the victim nor admitting it but only that he could not remember having sexual intercourse with the victim.

Defendant had been indicted on three charges, criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(1)), unlawful restraint (Ill. Rev. Stat. 1989, ch. 38, par. 10 — 3(a)), and aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d)). The jury acquitted defendant of criminal sexual assault and unlawful restraint but found him guilty of aggravated criminal sexual abuse. Defendant was subsequently sentenced and now appeals.

Defendant first contends his conviction must be reversed because the State failed to prove beyond a reasonable doubt that he did not reasonably believe the victim was 17 years of age or older. (See Ill. Rev. Stat. 1989, ch. 38, par. 12 — 17(b).) The State responds, initially, defendant has waived this issue since he failed to file a post-trial motion raising it. The State further suggests the evidence was sufficient for the jury to conclude defendant did not reasonably believe the victim was 17 years of age or older.

We first note that, although the State raises its waiver argument in the heading of the argument section of its brief, it fails to cite any authority or argument for support of this position (see 134 Ill. 2d R. 341(e)(7)). Nevertheless, because we find defendant has not waived this issue, we address the State’s contention. Our supreme court recently stated:

“We have recently affirmed the principle that, even in a capital case, to preserve an issue for appeal, an objection must be made at trial and raised in a post-trial motion. [Citations.] The failure to properly preserve an objection will limit our review to certain constitutional issues, questions on sufficiency of the evidence and issues involving plain error.” (Emphasis added.) (People v. Turner (1989), 128 Ill. 2d 540, 555, 539 N.E.2d 1196, 1202, cert, denied (1989), 493 U.S. 393, 107 L. Ed. 2d 326, 110 S. Ct. 337.)

Accordingly, since defendant is challenging the sufficiency of the evidence, he has not waived this issue by failing to raise it in a post-trial motion.

Section 12 — 16(d) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16(d)) provides:

“The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least 5 years older than the victim.”

Section 12 — 17(b) of the Code provides, in pertinent part, that it shall be a defense under subsection (d) of section 12 — 16 of the Code that the accused reasonably believed the person to be 17 years of age or older. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 17(b).) The defense of reasonable belief of age under section 12 — 17(b) operates in the same manner as does an affirmative defense, at least insofar as the requirement that “unless the State’s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.” (People v. Brown (1988), 171 Ill. App. 3d 391, 398, 525 N.E.2d 576, 580; Ill. Rev. Stat. 1989, ch. 38, par. 3-2(a).) If the issue is raised, the State has the burden of proving that the defendant did not reasonably believe the victim to be 17 or older, beyond a reasonable doubt, as well as the other elements of the offense. Ill. Rev. Stat. 1989, ch. 38, par. 3 — 2(b).

Defendant contends the evidence at trial was sufficient to establish he reasonably believed the victim to be at least 17 years old, thus requiring the State to prove beyond a reasonable doubt that he did not have such a reasonable belief. Defendant notes that the victim was consuming alcohol at the party and all of the other people present at the party, including the victim’s boyfriend, were in their early twenties. Defendant denied knowing the victim’s age until he was arraigned and denied hearing Aldridge yell out her age while Aldridge was on defendant’s front porch.

The predecessor of sections 12 — 16(d) and 12 — 17(b) of the Code was the former indecent liberties statute, then section 11 — 4 of the Code (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4). Subsection (b) of that statute provided it was an affirmative defense to indecent liberties with a child that the accused reasonably believed the child was 16 years or older. (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4(b).) In 1984, sections 12 — 16 and 12 — 17 (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12 — 16, 12 — 17) were among the provisions added to the Code with section 12 — 17(b) stating the defense of reasonable belief that the person was 16 years of age or older (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12 — 17(b)). (Pub. Act 83-1067, eff. July 1, 1984 (1983 Ill. Laws 7251, 7254-55).) In 1988, section 12 — 17(b) was amended (Pub. Act 85-651, eff. Jan. 1, 1988 (1987 Ill. Laws 2754, 2756)), and the age giving rise to the defense was raised from 16 to 17 years old. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 17(b).) The language of section 12— 17(b) tracks the language of former section 11 — 4(b) of the Code regarding this affirmative defense.

It was uncontroverted that the victim was 14 years of age and defendant was 22 years old at the time of the incident, thus making him at least five years older than the victim. Thus, the jury, to convict defendant, only had to find sexual penetration or sexual conduct occurred and that defendant did not reasonably believe the victim to be 17 years of age or older.

The jury heard Aldridge testify he yelled to defendant that the victim was only 14 years old and Officer Siron testify that, while on the scene, Aldridge told him he yelled to defendant that the victim was only 14 years old. The jury had the opportunity to observe the victim and her appearance while she testified.

Obviously, the evidence presented by the State did not suggest an issue as to reasonable belief by defendant that the victim was at least 17 years old. Other than his reference to evidence that the victim was consuming alcohol and all the other people at the party were in their early twenties, defendant did not present any evidence as to his reasonable belief the victim was at least 17 years of age. The defendant did not present evidence making his reasonable belief of the age of the victim an issue. (Brown, 171 Ill. App. 3d at 397-98, 525 N.E.2d at 580; Ill. Rev. Stat. 1989, ch. 38, par. 3 — 2(b).) On the evidence presented, the State was therefore not obligated to prove the unreasonableness of any such belief.

It is not the function of this court to retry the defendant. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Once the defendant has been found guilty of the charged crime, the fact finder’s role as weigher of the evidence is preserved through a legal conclusion that, upon judicial review, all the evidence is to be considered in the light most favorable to the prosecution. (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) The relevant question is whether, after viewing the evidence in such a fashion, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. (Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789; Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Even were we to accept defendant’s argument that the issue of defendant’s reasonable belief as to the age of the victim was raised, a rational trier of fact could have found beyond a reasonable doubt that defendant did not reasonably believe the victim was 17 years of age or older.

Defendant also contends he is entitled to a $35 credit for the seven days he spent in jail prior to posting bond in this matter. A defendant who is in custody on a bailable offense and receives a sentence of imprisonment and a fine is entitled to both credit against the imprisonment sentence for each day served and a $5-per-day credit against the fine. (People v. Hare (1988), 119 Ill. 2d 441, 519 N.E.2d 879.) Defendant was credited with seven days spent in the county jail but not given the per diem credit.

Therefore, we affirm defendant’s conviction for aggravated criminal sexual abuse but remand with directions to credit defendant’s fine in the amount of $35.

Affirmed as modified; remanded with directions.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF COLLEEN DAVIS, Petitioner-Appellee, and LYNN DAVIS, Respondent-Appellant.
    Fourth District
    No. 4—91—0624
    Opinion filed June 4, 1992.
    Rehearing denied July 14, 1992.

      Record, Finney, Jankowicz & Morthland, of Decatur, for appellant.
    Jessica Stricklin, of Decatur, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner Colleen Davis Sample filed a petition in the circuit court of Macon County, asking for permission to remove the parties’ minor child Melissa to the State of Georgia. Her former husband, respondent Lynn Davis, objected, and a hearing was held on the petition. The trial court granted the petition and modified respondent’s visitation with Melissa. His motions for reconsideration and to vacate the judgment were denied, and he now appeals.

Petitioner and respondent were divorced in 1989. They have three minor children, Patrick, Matthew, and Melissa. At the time of the hearing on the petition to remove, Patrick was 14 years old, Matthew was 13, and Melissa was 6. Custody of all three children was awarded to petitioner, subject to respondent’s visitation.

In May 1990, the parties entered into a stipulation whereby custody of Patrick and Matthew was transferred to respondent, subject to petitioner’s right of reasonable visitation. Melissa continued to reside with petitioner. Respondent’s child-support obligation was terminated by agreement. In June 1990, respondent filed a petition for adjudication of civil contempt, charging petitioner had denied him visitation with Melissa. He also filed a petition to modify the judgment of dissolution, asking for additional visitation with Melissa in order to allow her to spend more time with her brothers. In August 1990, the trial court entered an order granting respondent additional visitation with Melissa. Visitation was granted on alternating weekends, for half of Melissa’s Christmas school vacation and half of the Easter school vacation, alternating holidays and alternating birthdays, a half day during each week, and three weeks during the summer. This was respondent’s visitation schedule at the time of the hearing on petitioner’s petition to remove. The modification order also provided that respondent would be allowed to make phone calls to Melissa. However, he was ordered not to harass petitioner or make disparaging remarks to Melissa during the phone calls. The trial court made no findings with respect to respondent’s petition for contempt, and the record contains no order disposing of that petition.

In April 1991, petitioner filed her petition to remove Melissa to Georgia, alleging that she was engaged to be married, her prospective husband was employed in Georgia, and he had rented a house there with an option to purchase it. She further alleged she was a licensed practical nurse (LPN) and had arranged for job interviews in Georgia. In count II of the petition, petitioner asked for modification of the judgment of dissolution of marriage, changing the visitation of both parties with the minor children to accommodate her proposed move to Georgia. She proposed that she have visitation with Patrick and Matthew for the first half of the summer and, at the end of that period, Melissa would return to Illinois with the boys for visitation with respondent. Melissa would remain in Illinois until the end of her summer vacation from school. Petitioner proposed that respondent pay for Melissa’s transportation to Illinois and back to Georgia, and that petitioner pay for the boys’ transportation to Georgia and their return to Illinois. Petitioner also proposed continuing to split the children’s Christmas vacations, with the children to be together during these periods.

Respondent filed no formal response to the petition. However, at the hearing on the petition on May 1, 1991, it was clear that respondent objected to the removal of Melissa from Illinois.

Petitioner testified at the hearing that she resided in Argenta, Illinois, and worked at a pharmacy as a technician. She has an LPN license; however, this was not required in her current employment. She earned $7.75 per hour for 40 hours per week. She and Melissa lived in a three-bedroom house, which she owned subject to a mortgage. She had been dating her fiance Allen Sample for 18 months and had been engaged to him for six months. Their wedding date was June 29, 1991. If allowed to take Melissa to Georgia, they would be moving in July. Sample had rented a three-bedroom house in Washington, Georgia, with an option to purchase. It was comparable to the house she and Melissa had in Argenta. Melissa would have her own bedroom. The house was on four acres of land located in a rural area. There was a public and private school there. Melissa would be in first grade when the new school year began. Petitioner had interviewed for a position in Augusta, Georgia, where she could work full-time as an LPN. Since Augusta was an hour’s drive from Washington, however, she would prefer to work in Washington, where she had interviewed for two jobs. She could work at either place as an LPN. At Wills Memorial Hospital (Wills Memorial), she would be making $8 to $8.50 per hour, with hours from 3 p.m. to 11 p.m., either full-time or part-time four days per week. Petitioner testified she might take a part-time position so that she could be home more with Melissa. At Washington Dialysis Facility, Inc. (Washington Dialysis), her hours would be 7 a.m. to 5 p.m., and her salary would be at $9 per hour, with increases at three months and again at six months. To substantiate these statements, petitioner produced letters from the two prospective employers. They were admitted into evidence without objection from respondent. The letter from Wills Memorial, signed by the director of nursing, stated petitioner had been interviewed for an LPN position and that the director would offer her a position there, pending reference checks and petitioner’s license application to the Georgia Board of Nursing. The letter stated the salary would be $8.50 to $8.75 per hour, with shift differentials available. The letter further stated there were two positions open: full-time Monday through Friday 3 p.m. to 11 p.m., and part-time every other weekend from 7 a.m. to 7 p.m. The letter from Washington Dialysis merely stated petitioner had completed an application for an LPN position there and that she was being considered for this position if it was still open in July.

Upon cross-examination, petitioner admitted that there was a period of time after the boys went to live with respondent that she denied him visitation with Melissa. If she worked the 3 to 11 p.m. shift, Allen would watch Melissa during her work hours, or she would hire a baby-sitter until Allen returned home from work. She worked from 9 a.m. to 5 p.m. at her present job. Melissa stayed with a baby-sitter in Argenta, except that she was with her father on Wednesday mornings. Petitioner testified she could find work as an LPN in Decatur if she wanted, but she did not know what she would be paid. When she worked for a hospital three years ago, she made $7.10 per hour. She had worked as an LPN in Mt. Zion at a nursing home making $7.75 per hour and in a doctor’s office for $7.75 per hour. She was fired from the job at the doctor’s office because of her job performance.

Petitioner also testified that since the divorce there had been some problems with comments respondent had made to the children about her. Respondent had at times been hostile and verbally aggressive with her, and she had at times reciprocated. She stated that she had no intention of trying to sever respondent’s relationship with Melissa.

Allen Sample testified that he had resided in Washington, Georgia, for approximately 90 days. He was a shop foreman at Gunter Well Drilling and Boring, an automobile restoration garage, working 40 hours per week. As long as he worked eight hours per day, he can set his own hours. He had lived in Georgia for seven or eight months. He had previously been employed in Decatur at Jenkins Automotive. He was laid off there before moving to Georgia. He was making more money at the shop in Georgia than he was in Decatur. Sample testified that he had never had a job that paid as much as his job in Georgia. He said he gets along well with Melissa.

Sample testified on cross-examination that his take-home pay is $500 per week; however, he did not have any pay stubs to substantiate this testimony. He was unemployed at the time he went to Georgia. He stayed with his brother for several months and, when he was hired for his current job, he decided to make a permanent move to Georgia. His gross income at his prior job in Decatur was $490 per week.

The trial court interviewed the three minor children in camera. Melissa said she did not want to move to Georgia because she would miss her friends. She liked the house in Georgia “a little bit.” She liked Sample. When reminded of her brothers, Melissa stated she would miss them, too. They play together, and she was pretty close to them.

Patrick stated that he did not want his mother to remarry and did not want her to move to Georgia. He did not, however, think his parents should get back together. He would not want to spend half the summer in Georgia because of his friends in Illinois, but a couple of weeks would be okay. The reason he and his brother went to live with his father was that he had a physical confrontation with his mother and she kicked him out of her house. The problem with Matthew was that he was arguing with his mother. However, there have been no problems between him and his mother since that incident. He visited her often and gets along with her. He felt very close to Melissa, liked having her around, and did not want her to move.

Matthew Davis said he did not like Sample. His father did not like Sample, but he had not said anything to Matthew about it. He himself had had no problems with Sample. When asked if he had any objection to his mother starting a new life in Georgia, Matthew said if she did she would be leaving him, his brother, and his sister out because of the move. He did not want to ever go to Georgia. His relationship with Melissa was “very great.” He played house with her.

Florian Davis, mother of respondent, testified that she resided in Decatur and was Melissa’s only living grandparent. She saw Melissa most weekends respondent had her for visitation.

Respondent Lynn Davis testified that he had a close relationship with Melissa. He was laid off from his job from February 1985 to January 1989. When Melissa was born he was her primary care giver for the first 18 months of her life, while his wife worked. In describing his relationship with Melissa at the present time, respondent testified, “I love her dearly and she loves me dearly. There is, I can’t say another word about it. Just plain and simple.” He stated that Melissa had a loving relationship with her brothers and that the boys were with her all the time when he has her for visitation. They played with the animals on his farm, they played ball together, and they swam at a swim club. He would be willing for Melissa to live with him if petitioner’s request to move is denied.

Allen Sample was called to testify by respondent’s counsel. He testified that he was in arrears in child support for his own children. He stated that he was in contact with his former wife and she knew he would pay the arrearage. He was paying his current support obligation, and there were no problems between him and his former wife.

At the conclusion of the hearing, the trial court found (1) petitioner intends to remarry; (2) her future husband is employed and lives in Georgia; (3) it is in Melissa’s best interest to remain in the custody of petitioner; (4) petitioner has substantial employment possibilities in Georgia; and (5) “[t]his is a common problem due to our mobile society and it is a compelling reason for granting the petition.” Petitioner was granted permission to remove Melissa to Georgia, on the condition that she marry Sample prior to moving.

After a further hearing on the issue of modification of visitation, the trial court entered an order on June 14, 1991, granting respondent visitation with Melissa during the month of July each year. Petitioner was granted visitation with Patrick and Matthew during June of each year. The parties were each to have the children for half of their Christmas school vacations. Respondent was ordered to bear the expense of transporting the children to Illinois, and petitioner was required to pay the expense of transporting them to Georgia.

Respondent filed a motion asking for reconsideration of the trial court’s order or a reopening of proceedings to permit additional evidence concerning petitioner’s motive in seeking the removal of Melissa from Illinois. He also filed a motion to vacate the trial court’s order, claiming Sample had fabricated or exaggerated his claim of employment in Georgia. Respondent’s counsel filed an affidavit stating that he had telephone contact with personnel at Sample’s place of employment in Georgia on June 7, 1991, and had been told that Sample had not been there for several weeks. Counsel’s affidavit stated he was told that Sample “just piddled around” and worked on automobiles, but that he was not a foreman or supervisor.

Petitioner filed a response to this last motion, asking that respondent’s motions and affidavit be stricken. Her response included an affidavit of Perry Gunter, Sample’s employer, detailing his employment arrangement with Sample. That affidavit stated that Sample works for Gunter as an independent contractor, repairing and restoring antique automobiles. Sample is responsible for paying his own taxes, he sets his own hours, and he is in charge of his portion of the shop when he is working. The affidavit further stated that Sample had permission to be absent from work for substantial periods of time during May and June 1991 in order to attend court hearings in connection with the instant case and for other personal matters. It also stated that Sample was expected to return to work for Gunter as soon as he was able to settle his personal affairs.

The trial court denied respondent’s post-trial motions. Notice of appeal was then filed by respondent. We note the record indicates petitioner and Sample were married prior to this appeal.

On appeal, respondent contends the trial court’s decision allowing petitioner to remove Melissa to Georgia was against the manifest weight of the evidence. We agree and reverse.

Removal of a child from the State by a custodial parent is governed by section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 609). Subsection (a) reads as follows:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing such child or children from Illinois to give reasonable security guaranteeing the return of such children.” Ill. Rev. Stat. 1989, ch. 40, par. 609(a).

In removal cases, the paramount question is whether the move is in the best interest of the child. As stated by section 609(a) of the Act, the burden is on the custodial parent to show that removal of the child from the State is in the best interest of the child. While such cases must be judged on their own unique set of facts (In re Marriage of Berk (1991), 215 Ill. App. 3d 459, 463, 574 N.E.2d 1364, 1367, appeal denied (1991), 141 Ill. 2d 536, 580 N.E.2d 108), our supreme court has provided some guidance to the courts of this State in deciding these cases. In In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041, the court identified five factors which should be considered in determining whether removal is in the best interest of the child or children sought to be removed. Those factors are: (1) the likelihood for enhancing the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the removal; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.) In addition, courts should be guided by the policy of the Act as expressed in section 102(7), which states that one of the underlying purposes of the Act is to “secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.” Ill. Rev. Stat. 1989, ch. 40, par. 102(7).

In applying the above factors to the evidence adduced in the instant case, we are mindful that the trial court’s decision is not to be disturbed unless it is clear its decision was against the manifest weight of the evidence and that a manifest injustice has occurred. (Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.) Although the trial court has broad discretion in these cases, that discretion is not unlimited and, when the decision is against the manifest weight of the evidence, it will be reversed. In re Marriage of Bush (1988), 170 Ill. App. 3d 523, 529, 525 N.E.2d 163,166.

The only factor we need not discuss concerns respondent’s motives in resisting Melissa’s removal from Illinois. There was no evidence before the trial court bearing on his motives in objecting to the removal. Therefore, we will proceed to discuss the four other factors.

As to the question of enhancement of quality of life for petitioner and Melissa, we first note that a mere desire to move to another State, without more, is insufficient to show the move to be in the best interest of the child. (In re Marriage of Stone (1990), 201 Ill. App. 3d 238, 243, 559 N.E.2d 92, 95.) The trial court found that petitioner intended to remarry and that her future husband lives and works in Georgia. Quite naturally, petitioner wishes to move to Georgia to be with her new husband. However, simply because she would be happier living with him in Georgia than living without him in Illinois does not in itself establish that the quality of Melissa’s life would be enhanced by a move to Georgia. We agree with the court in Berk, when it observed:

“It is virtually impossible to envision a situation wherein the custodial parent does not wish to live with a new spouse. If the obvious happiness the spouse would receive from being able to live with a new spouse were sufficient to prove removal in the child’s best interests, court supervision of the proceedings would be unnecessary, and at best, ceremonial. A custodial parent must prove more than his or her own desire to live with a new spouse to prove that a child’s best interests will be served by removal.” Berk, 215 Ill. App. 3d at 466, 574 N.E.2d at 1369.

However, a court should not confine its consideration only to the direct benefits a child may receive from removal. A child may also receive indirect benefits from a proposed move (In re Marriage of Carlson (1991), 216 Ill. App. 3d 1077, 1081, 576 N.E.2d 578, 580, appeal denied (1991), 142 Ill. 2d 652, 584 N.E.2d 127), and such benefits should be considered where they are established by the evidence. In the instant case, the evidence was that petitioner intended to marry Allen Sample, who lived and worked in Georgia. She wished to move to Georgia and take Melissa with her. The house in Georgia is comparable to the house owned by petitioner in Argenta and in which she and Melissa resided at the time of the hearing. Petitioner attempted to show a financial benefit to herself and Melissa through testimony regarding Sample’s income and her own job prospects in Georgia. While we do not dispute that the added income of petitioner’s new husband would bestow a financial benefit on Melissa in the form of an increased standard of living, such a benefit is one which would occur in almost every remarriage where a second income is added to the family. This fact alone is not determinative. Berk, 215 Ill. App. 3d at 467, 574 N.E.2d at 1369.

Allen Sample testified he made more money in Georgia than he had ever made in Decatur at previous jobs. However, the evidence showed that he had weekly gross income of $490 at his job in Decatur and gross income of $500 per week at his current job in Georgia. This evidence does not support his claim of enhanced income. In addition, there was no showing that Sample was unable to find suitable employment in Decatur after being laid off from his job at Jenkins Automotive.

Petitioner testified she wished to secure a job as an LPN in Georgia, and she testified as to two job possibilities. The trial court found that she had “substantial” employment prospects in Georgia. Petitioner was allowed to introduce letters from prospective employers into evidence. These letters, although hearsay, were not objected to by respondent’s counsel. However, the employment possibilities mentioned in these letters were clearly contingent upon certain conditions, some of which were beyond petitioner’s control. The job at Wills Memorial was contingent upon reference checks and petitioner obtaining her LPN license in Georgia. Petitioner’s admitted discharge from previous employment as an LPN for poor job performance would certainly have a bearing on the kind of references she would be given. The letter from Washington Dialysis merely stated petitioner had applied for an LPN position and that she would be considered for that position if it was still open after her anticipated move to Georgia in July. These job prospects could hardly be termed “substantial.”

Further, petitioner admitted that she could obtain an LPN position in Decatur if she wished to. While her prospective job opportunities in Georgia may pay more than her pharmacy job in Illinois, it was apparent from her testimony that she had not sought employment as an LPN in Illinois. When questioned, she had no current information as to how much she might expect to earn as an LPN in Decatur at the time of the hearing on her petition for removal. Her only testimony on this fact was as to what she had earned as an LPN at a hospital three years previously.

Another factor petitioner relies on to support the trial court’s decision is her testimony that she would be able to spend more time with Melissa in Georgia than she had been able to in Illinois. She testified that she might take part-time work in order to do this. If petitioner were able to spend more time with Melissa, this would undoubtedly confer a substantial benefit on Melissa which would merit careful consideration. However, petitioner’s testimony concerning her job prospects casts serious doubt upon her ability to accomplish this. The only evidence of part-time employment was at Wills Memorial, where a position was available working every other weekend. Taking this job would significantly reduce petitioner’s income, thus weakening her argument that Melissa would have an increased standard of living in Georgia. The other position at Wills Memorial and the position at Washington Dialysis were full-time positions. Moreover, the full-time position at Wills Memorial would require petitioner to work from 3 p.m. to 11 p.m. This would mean she would actually be able to spend considerably less time with Melissa than she could working her present hours in her current job at the pharmacy in Decatur.

We note petitioner testified that both a private school and public school were available for Melissa to attend. However, no evidence was presented as to the quality of education Melissa would receive compared to the quality of the school she was attending in Argenta.

Given the evidence, we cannot say the general quality of Melissa’s life would likely be enhanced by the proposed move to Georgia. At most, the impact of a move to Georgia on Melissa, without consideration of the other Eckert factors, would likely be neutral.

We next consider the question of petitioner’s motives in seeking removal of Melissa to Georgia. Respondent tried to show that petitioner had previously interfered with his visitation with Melissa. She did admit in her testimony that she had denied respondent visitation with his daughter shortly after custody of the two boys was transferred to him. However, we note this took place a year prior to the filing of the petition for removal. There have apparently been no visitation problems since that time. We also note that petitioner testified respondent had been hostile and verbally aggressive toward her at times. Further, the order entered by the trial court in August 1990, modifying respondent’s visitation with Melissa, required him to refrain from harassing petitioner when he made phone calls to Melissa. While we would not condone any alleged attempt to defeat respondent’s visitation, the evidence on balance tends to show that both parties may bear some responsibility for whatever visitation problems may have arisen in 1990. We do not consider them significant for purposes of our decision here.

We will now consider the last two factors. Those factors involve the effect on respondent’s visitation rights of the proposed move and whether a realistic and reasonable visitation schedule can be achieved if the move is allowed.

It is in the best interest of a child to have a close and healthy relationship with both parents and with other family members as well. Accordingly, when a noncustodial parent has diligently exercised visitation rights, a court should be reluctant to interfere with those rights by permitting removal of a child for frivolous or inadequate reasons. Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045-46.

Respondent testified that he and his daughter are very close. He was her primary care giver for a period of time after her birth. Unfortunately, the evidence was somewhat lacking as to details of their current relationship. However, we note it was petitioner’s burden of proof to show the move to be in Melissa’s best interest. She provided no evidence suggesting respondent has not exercised his visitation rights or that he does not enjoy a close relationship with Melissa. Petitioner’s testimony did not contradict respondent’s statements as to this relationship, nor did her counsel challenge respondent’s testimony on cross-examination. In addition, Melissa has two brothers with whom she does not currently live. She sees them only when she visits her father or when her brothers visit petitioner. Both boys testified in camera that they feel close to Melissa and they were very emphatic that they did not want her to move to Georgia. They indicated, as did respondent in his testimony, that they play together when Melissa comes to visit and that they get along well together. Melissa indicated in her testimony that she did not want to move. Her primary reason seemed to be that she would miss her friends. Melissa’s paternal grandmother testified that she sees Melissa on most weekends that her father has visitation with her. She is Melissa’s only living grandparent. Melissa has no family living in Georgia.

The trial court, in a separate proceeding after the hearing on the petition for removal, modified respondent’s visitation to accommodate petitioner’s move to Georgia. Respondent lost all his weekend visitation, his holiday and birthday visitation (with the exception of a few days at Christmas), and his Wednesday visitation. In return, he received one month’s visitation in the summer and one half the Christmas school vacation. This represents an approximate 35% reduction in respondent’s visitation with Melissa. In addition, Melissa will be deprived of regular contact with her brothers, even though the total number of days with them under the proposed visitation schedule will not be greatly reduced. A reasonable visitation schedule is one that will preserve and foster a child’s relationship with the noncustodial parent. (In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 149, 548 N.E.2d 1325, 1329.) Where, as here, a noncustodial parent has exercised his visitation rights, we cannot say that a 35% reduction in visitation is reasonable where there has been an inadequate showing by the custodial parent that the move will enhance the quality of the child’s life.

The evidence placed before the trial court by petitioner in support of her desired move really boils down to her desire to move to Georgia to be with her new husband. As we have stated previously, if this was the only requirement to show the move to be in the best interest of the child, there would have been little reason for the legislature to enact section 609 of the Act. As was stated in Eckert, much more than this is required. Although ours is indeed a mobile society, this fact alone is not, contrary to the findings of the trial court, a compelling reason to grant a custodial parent’s petition for removal. Custodial parents and their spouses do not make decisions in a vacuum. Decisions must be made in an environment in which the best interest of the child is paramount. (Berk, 215 Ill. App. 3d at 465, 574 N.E.2d at 1368.) Petitioner here did not carry her burden of proof. Therefore, the decision of the trial court granting her petition for removal and modifying visitation must be reversed.

Reversed.

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