text:
    BOARD OF EDUCATION OF WAPELLA COMMUNITY UNIT SCHOOL DISTRICT No. 5, DE WITT COUNTY, et al., Plaintiffs-Appellants, v. REGIONAL BOARD OF SCHOOL TRUSTEES OF McLEAN-DE WITT COUNTIES et al., Defendants-Appellees.
    Fourth District
    No. 4 — 93—0163
    Argued June 17, 1993.
    Opinion filed June 24, 1993.
    Rehearing denied July 7, 1993.

      Everett E. Nicholas, Jr., and Merry C. Rhoades (argued), both of Robbins, Schwartz, Nicholas, Lifton & Taylor, Ltd., of Carbondale, for appellants.
    Gregory C. Knapp (argued), of Saint & Ambrose, P.C., of Bloomington, for appellee Committee of Ten Petitioners.

      Bruce Gammage, State’s Attorney, of Clinton (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for other appellees.
   JUSTICE GREEN

delivered the opinion of the court:

Section 7 — 2a(b) of the School Code (Code) provides that a “school district with a population of less than 5,000 residents shall be dissolved and its territory annexed as provided in Section 7 — 11 by the regional board of school trustees upon the filing with [that board] of *** or a petition signed by a majority of the registered voters of the district.” (Emphasis added.) (105 ILCS 5/7 — 2a(b) (West 1992).) Section 7 — 11 of the Code provides for the regional board of school trustees to hold a hearing, upon notice, for determination of the district or districts to which the land of the “dissolved district” shall be attached. (105 ILCS 5/7 — 11 (West 1992).) Section 7 — 2a(b) of the Code also provides for dissolution upon the filing of a request for dissolution presented by the governing board of the school district to be dissolved.

On September 1, 1992, a group of petitioners filed a petition with the Regional Board of School Trustees of McLean-De Witt Counties (Regional Board) seeking dissolution of School District No. 5 of Wapella (Wapella). The petition requested that the territory be annexed “to one or more school districts to be determined by [the Regional Board]” and stated that the petitioners preferred that all such territory be annexed to Clinton Community Unit School District No. 15, De Witt, Macon, and Logan Counties (Clinton). The petition also set forth the names of 10 petitioners designated by the petitioners as a committee to act as attorney in fact for all of the petitioners as required by section 7 — 6(c) of the Code (105 ILCS 5/ 7 — 6(c) (West 1992)) when a petition of the nature here has more than 10 petitioners. The petition indicated that it was signed by 464 registered voters of Wapella, which constituted a majority of the voters residing in that district.

On September 9, 1992, various individuals filed an objection to the petition for dissolution challenging, in various ways, the validity of 109 signatures to the petition and other aspects of the petition. The objectors contended that enough signatures on the petition were invalidated as to leave fewer valid signatures than that which constituted a majority of the registered voters of the district. The objectors also maintained that the entire petition was invalid because of improper binding and numbering. On November 2, 1992, 51 people purporting to be signers of that petition filed a request with the Regional Board to withdraw their names from the petition for dissolution. On November 4, a motion to strike the request for withdrawal was filed.

The Regional Board held a hearing on November 5, 1992. The evidence at that hearing was entirely directed to the question of the district to which the Wapella territory should be annexed. The Regional Board did recite various steps which had been taken to check on the validity of the petition for dissolution and the signatures to that petition. However, the Regional Board denied a request of objectors to the petition to be heard on their objections. On November 13, 1992, the Regional Board entered an order finding the petition for dissolution was legally sufficient, and the academic interests of Wapella pupils would best be served by annexation to Clinton. Express ruling was not made as to the request to withdraw names nor as to the motion to strike that request.

Various objectors to the petition and those seeking to withdraw their names from the petition took administrative review of the November 13, 1992, order to the circuit court of De Witt County, which affirmed. On appeal to this court, contentions are made that (1) the request for withdrawal of signatures was timely and should have been allowed; and (2) the Regional Board should have allowed the objectors to the petition for dissolution to be heard at the November 5, 1992, hearing or at some other hearing. Those who took administrative review also maintain that the decision to annex the Wapella territory to Clinton was contrary to the manifest weight of the evidence.

We have heard this appeal on an expedited basis because of the need of the school districts involved and their personnel to make immediate plans. We ordered an accelerated briefing schedule and we now shape the procedural aspects of our decision with the need for a speedy resolution of this dispute in mind. We conclude that the request to withdraw signatures was ineffective and that the Regional Board’s determination to have the entire territory of Wapella annexed to Clinton was not contrary to the manifest weight of the evidence. However, although section 7 — 2a(b) of the Code makes no express provision for a hearing upon objections to the petition, we hold that the Regional Board should have permitted the objectors to be heard. Accordingly, we will remand to the Regional Board to conduct such a hearing. Our ultimate decision will turn on that issue.

The question of the efficacy of the petition to withdraw signatures from the petition and the question of the procedure to determine the validity of the objections to the petition are closely related. We begin by discussing the timeliness of the request to withdraw signatures. The Code contains no express provision as to when such requests to withdraw signatures can be made. The theory that the request here was timely begins with the case of Littell v. Board of Supervisors (1902), 198 Ill. 205, 65 N.E. 78, which concerned the withdrawal of signatures from a petition presented to the governing board of a county seeking to create a new civil township. There, as here, a statute provided action which affected the existence of a governmental unit upon a petition signed by a certain percentage of the registered voters in the area involved.

In Littell, a statute required the county board to create a new township if three-fourths of the registered voters in a territory meeting certain requirements so petitioned. However, unlike here, before acting on the petition, the county board was required to give notice by posting and publication of a date upon which final action would be taken on the petition. Before that date, enough petitioners requested leave to withdraw that, if allowed, this would have negated the existence of a three-fourths majority. Upon the county board’s refusal to create the township, proponents sought a writ of mandamus. The supreme court affirmed a dismissal of that request by the circuit court.

The Littell court concluded that “the act of signing such petitions is not an irrevocable act, and that it may be revoked at any time before the jurisdiction of the body authorized to act has been determined by it.” (Emphasis added.) (Littell, 198 Ill. at 208, 65 N.E. at 79.) The Littell court noted with approval several out-of-State cases which held that petitioners had a right to withdraw their signatures from a petition up until the time final action is taken on the petition. In support of its decision that the county board was not subject to issuance of a writ of mandamus to create the township, the court stated:

“If all the petitioners had sought to dismiss the petition at any time before final action by the county board it would scarcely be claimed that they would not have had the right to do so. Each petitioner acts on his individual responsibility, and if he should change his mind on the question whether a new township would better serve the convenience of the inhabitants residing therein, or if he should be induced to sign it under a misapprehension or through undue influence, he ought to have the right to correct his mistake, if he does so before the rights of others have attached by the final action on the part of the board. It may be, as suggested by counsel for appellants, that vacillating or designing parties will abuse that privilege; but courts are powerless to prevent, in every case, such abuses. Suits may be, and doubtless sometimes are, brought with the deliberate purpose of dismissing them for some sinister purpose; but that fact cannot argue against the propriety of the general rule, which permits a plaintiff to dismiss his suit at any time before final judgment. To absolutely prohibit a citizen from withdrawing his name from a petition voluntarily signed by him, at any time after it has been presented to a body authorized to act upon it, would be a harsh and unreasonable rule and also liable to work great hardship. Generally, parties act from honest motives, and it is for the protection of the rights of such parties that laws are enacted and construed.” Littell, 198 Ill. at 210, 65 N.E. at 80.

A large number of decisions have followed Littell. (E.g., Crocker v. Abel (1932), 348 Ill. 269, 180 N.E. 852; Ronald, v. Board of Education of Community Unit School District 220 (1983), 114 Ill. App. 3d 512, 448 N.E.2d 555.) The enabling legislation in these cases calls for the creation of a governmental unit or a change in boundaries of such an entity upon a petition signed by a certain percentage of the registered voters involved. In each case the statute also provides for a hearing on the sufficiency of the petition before the change requested takes effect.

In cases of the nature here, when the statute sets forth a time for the board to which the petition is addressed to rule on the sufficiency of the petition, even though no objections to the petition are presented, a time frame to impose the Littell rule in regard to withdrawal of signatures is created. Section 7 — 2a(b) of the Code gives no such time frame. Giving literal interpretation to section 7 — 2a(b) of the Code, Wapella was dissolved before petitions to withdraw were filed here. Thus, the operation of section 7 — 2a(b) of the Code, in regard to withdrawal of signatures when viewed most favorable to those seeking to withdraw, is at least ambiguous. Accordingly, every word and phrase in section 7 — 2a(b) of the Code should be considered to have some meaning. People v. Fabing (1991), 143 Ill. 2d 48, 54, 570 N.E .2d 329, 332; Kraft, Inc. v. Edgar (1990), 138 Ill. 2d 178, 189, 561 N.E.2d 656, 661.

When we consider the difference in the framework of section 7 — 2a(b) of the Code and the enabling legislation in the Littell group of cases, we deem the intent of the legislature in providing that the dissolution will occur upon the filing of the petition was to create a presumption of validity which attaches immediately upon the filing of the petition without the further necessity of the Regional Board taking “final action,” within the meaning of Littell, to determine the petition’s validity. This presumption would be subject to a condition subsequent of filed and proved objections to the petition. However, the presumption of immediate validity of the petition, which does not arise from the legislation involved in the Lit-tell line of cases, is sufficient to prevent requests to withdraw from the petition being filed after the petition for dissolution has been filed.

We note that section 7 — 2a(b) of the Code provides that when a regional board of school trustees is presented a dissolution petition by the board of the district, the regional board must not act on that petition if, within 45 days of the filing, a counterpetition is filed by a majority of the registered voters of the district in opposition to dissolution. We see nothing in this provision which is counter to our foregoing interpretation of the operation of section 7 — 2a(b) of the Code. Rather, the situation of the filing of the counterpetition by a majority of the registered voters would be another example of a condition subsequent which would negate the validity of the original petition.

We recognize the strong preference for allowing withdrawal of signatures by those petitioning a public body set forth in Littell and its progeny, but we consider that our interpretation of the legislation involved here is consistent with the ruling in Beghr Willowbrook Venture v. Village of Willowbrook (1991), 217 Ill. App. 3d 614, 576 N.E.2d 853. There, a statute permitted municipalities to create a special service area provided that the voters in the area could defeat that municipal action by the filing, within 60 days thereof, of a petition to do so signed, by 51% of the voters in the area involved (111. Rev. Stat. 1989, ch. 120, par. 1309). The appellate court held that once such a petition was timely filed, no signer was permitted to withdraw. The court pointed out that no statutory provision required a hearing after the filing of the petition. Beghr Willowbrook Venture, 217 Ill. App. 3d at 618, 576 N.E.2d at 856.

Each side maintains that an amendment to section 7 — 2a(b) of the Code, becoming effective after the order of the Regional Board on appeal, supports its position in regard to withdrawal of signatures. As relevant here, that legislation provided that no petitions for dissolution shall be signed before would-be petitioners have “conducted a public informational meeting” after giving 10 days notice of the meeting by publication. (Pub. Act 87 — 1215, eff. November 23, 1992 (1992 Ill. Laws 3279, 3279) (amending 105 ILCS 5/7-2a(b) (West 1992)).) The advocates of withdrawal argue that this indicates a legislative intent that signers of a petition be protected from signing documents about which they are not well informed. However, if the amendment would be given any significance, it would seem to indicate a legislative recognition that the provision of section 7 — 2a(b) of the Code, which provides that the dissolution takes place upon filing of the petition, is strict, and those signing petitions should be well informed before they do so. In any event, we do not give significance to the amendment in interpreting section 7 — 2a(b) of the Code as it stood at times applicable.

As we have indicated, we hold that the Regional Board was required to permit the objectors to be heard on their objections. Statements in the record of the proceedings at the November 5, 1992, hearing indicate that the Regional Board had made an extensive investigation concerning the various objections to the petition and found them invalid. However, when the objectors requested to be heard and require the Regional Board to receive evidence, their request was refused. As has been stated, section 7 — 2a(b) of the Code makes no express reference to allowing objections to be heard. The section does say that a board “shall have no authority to deny dissolution requested in a proper petition for dissolution *** but shall exercise its discretion” on the issue of annexation. (Emphasis added.) 105 ILCS 5/7 — 2a(b) (West 1992).

Section 7 — 2a(b) of the Code does make clear that the Regional Board was not required to proceed on an invalid petition. We need not decide whether due process requires that persons in the position of objectors here had a right to be heard in order to conclude that the statute must be interpreted to so require. Any other interpretation would make no sense and would create further litigation by requiring objectors to go into the circuit court to obtain a ruling on a matter easily handled by the administrative body. We are not advised of any type of agency proceeding where parties with standing have no right to be heard upon a proper issue they have raised.

In determining to annex the territory of Wapella to Clinton, the Regional Board was acting pursuant to section 7 — 11 of the Code, which states:

“The regional board of school trustees shall give notice of a hearing, to be held not less than 50 days nor more than 70 days after a school district is dissolved under Section 5 — 32 or a petition is filed under subsection (b) of Section 7 — 2a, on the disposition of the territory of such school district by publishing a notice thereof at least once each week for 2 successive weeks in at least one newspaper having a general circulation within the area of the territory involved. At such hearing, the regional board of school trustees shall hear evidence as to the school needs and conditions of the territory and of the area within and adjacent thereto, and shall take into consideration the educational welfare of the pupils of the territory and the normal high school attendance pattern of the children." (Emphasis added.) 105 ILCS 5/7 — 11 (West 1992).

In matters of annexation and attachment, the considerations to be given by a regional board of school trustees have been stated to be as follows:

“[C]onsider differences between school facilities and curricula, the distances from the petitioners’ homes to the respective schools, the effect detachment would have on the ability of either district to meet State standards of recognition, and the impact of the proposed boundary change on the tax revenues of both districts.” Carver v. Bond/Fayette/Effingham Regional Board of School Trustees (1992), 146 Ill. 2d 347, 356, 586 N.E.2d 1273, 1277.

Evidence was presented that the tax rate for Wapella property owners would be less if annexed to Clinton, and a greater variety of courses were offered by that district. The evidence did not indicate any substantially greater traveling would be required by annexation to Clinton, and a study presented indicated that the annexation to Clinton would be most feasible. The Regional Board heard the witnesses and was entitled to give such weight to their testimony as it considered appropriate. The Regional Board did not breach its discretion, and its decision was not contrary to the manifest weight of the evidence.

One other matter requires brief discussion. As we have stated, an accelerated briefing schedule was imposed upon the parties. The Regional Board did not meet that schedule and filed its brief on June 9, 1993, which was after the appellants had filed their reply brief. The latter have moved to strike the Regional Board’s brief, pointing out that they had no opportunity to respond to the Regional Board’s brief. Particularly in view of the need for a swift decision, and because of the basis for our decision, we conclude that the appropriate ruling is to deny the motion to strike that brief. The matters we determine to be controlling in this decision are already before us in the brief of the other appellees. For that reason we need not consider the additional issue that the Wapella Board of Education has no standing to appeal. The Regional Board is not prejudiced by the presence of that appellant as other appellants are before us on appeal to promote the same issues.

As we have indicated, we have elected to remand for a hearing on the objections. Before we do so, we deem it appropriate to give some guidelines as to the legal points most likely to arise at that hearing. Section 28 — 3 of the Election Code (10 ILCS 5/28 — 3 (West 1992)), which concerns petitions for the submission of public questions, is not applicable to the petition involved here as neither the Election Code nor the Code has so provided. Hence, neither the Election Code’s provisions concerning addresses of petition signatories nor requirements for numbering and binding the petition forms are controlling. In this case, the most numerous objections to the petition concern the statement of the address of the signer. While the Election Code may give reasonable guidelines in this regard, the Board should consider the statements of address sufficient if the identity of the registered voter can readily be determined from the address provided notwithstanding technical noncompliance with the Election Code.

We remand the cause to the Regional Board with directions to hold a hearing upon the objections to the petition filed in this cause within 14 days from the issuance of this opinion. The Regional Board is directed to certify its ruling on those objections to this court together with a record of those proceedings within seven days following the hearing. Upon receipt of the foregoing, we will make a decision in this case consistent with this opinion but dependent upon the hearing on the objections and the ruling thereon. No further briefing or arguments will occur unless we so request.

Remanded with directions.

STEIGMANN, P.J., and McCULLOUGH, J., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
      In re ANNEXATION OF CERTAIN TERRITORY TO THE VILLAGE OF CHATHAM, ILLINOIS (Janice Logan et al., Petitioners-Appellants and Cross-Appellees, v. Eleanor Frank et al., Respondents-Appellees and Cross-Appellants).
    Fourth District
    No. 4 — 92—0490
    Argued April 14, 1993.
    Opinion filed June 3, 1993.

      John M. Myers (argued), of Long, Morris, Myers & Rabin, P.C., of Springfield, for appellants.
    Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., of Springfield (Stephen A. Tagge (argued) and John A. Kauerauf, of counsel), for appellees Frank.
    Daniel C. Lanterman (argued), of Gramlich Law Offices, P.C., of Springfield, for Rural Electric Convenience Cooperative Company, Inc.
    James K. Zerkle and Douglas T. Wilcox, Corporation Counsel, of Springfield, for City of Springfield.
    Beth Anne Janicki, of Illinois Municipal League, of Springfield, for amicus curiae.

   JUSTICE GREEN

delivered the opinion of the court:

This case concerns a proceeding brought to annex certain unincorporated territory to the Village of Chatham (Chatham) pursuant to article 7, division 1, of the Illinois Municipal Code (Code) (111. Rev. Stat. 1991, ch. 24, pars. 7 — 1—1 through 7 — 1—48). Section 7— 1 — 1 of the Code requires that for territory to become annexed to a municipality that territory must be “contiguous” thereto. (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—1.) We uphold a circuit court decision that the property for which annexation was sought does not meet that requirement.

The petition for annexation in this case was filed in the circuit court of Sangamon County on October 25, 1991, by Janice Logan and others proceeding pursuant to section 7 — 1—2 of the Code (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—2). Separate objections to that petition were filed pursuant to section 7 — 1—3 of the Code (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—3) on November 15, 1991, by (1) Eleanor Frank and a group of other persons owning land in the territory (Frank objectors); and (2) Rural Electric Convenience Cooperative Company, Inc. (RECC), provider of electric service to the area. On December 14, 1991, the court permitted the City of Springfield to intervene on behalf of the objectors.

After an evidentiary hearing, the circuit court entered an order on May 14, 1992, denying annexation. The court ruled that (1) the territory sought to be annexed did not meet the contiguity requirements of section 7 — 1—1 of the Code; and (2) petitioners did not meet the requirement of section 7 — 1—2 of the Code that they constitute a majority of the landowners and voters of the land in the territory. The court considered other objections but deemed the two foregoing issues determinative. The court did indicate that it rejected a contention by the Frank objectors that different annexation procedures than those followed here were required because Chatham was a de facto petitioner. Petitioners have appealed and the Frank objectors have cross-appealed the court’s rejection of their theory that Chatham was a defacto petitioner. We affirm.

The map appended to this opinion sets forth the territory sought to be annexed and the existing boundaries of Chatham. The territory comprises 260 acres. It borders on land annexed to Chatham in 1989 for one-eighth of a mile on the north and for a similar distance on the west. The territory is “U” shaped. The distance on the west is approximately 1 mile and 400 feet. The bottom of the “U” extends for approximately half a mile and the east side of the “U” is approximately IV4 miles in length. The distance across the top of the "U” is 1 mile and 600 feet. The narrowest portion of the territory is approximately 335 feet. The lake in the middle of the “U” has been annexed to the City of Springfield.

Sections 2 — 2—5 of the Code concerning incorporation of cities and 2 — 3—5 of the Code concerning incorporation of villages in counties of less than 150,000 people both require that the territory sought to be incorporated be “contiguous.” (111. Rev. Stat. 1991, ch. 24, pars. 2 — 2—5, 2 — 3—5.) The cases we consider in determining whether the contiguity requirement was met here concern both the incorporation of municipalities and the annexation of property to municipalities under section 7 — 1—1 of the Code and its predecessors.

A significant and often-cited early case with which we begin our consideration of the contiguity requirement is Wild v. People ex rel. Stephens (1907), 227 Ill. 556, 81 N.E. 707. There, the supreme court affirmed a judgment of ouster in a quo warranto proceeding. The suit contested the propriety of the incorporation of a village where the authorizing legislation required the territory incorporated into the village to be “contiguous.” (See 111. Rev. Stat. 1905, ch. 24, par. 182.) The territory consisted of the nearly square area of an original town together with various strips of land. One, 310 feet in width, extended south from the town area for half a mile. That strip then adjoined, at a corner, a strip of 200 feet in width which extended another half mile south where it intersected with a strip which extended equally east and west for a total distance of 2,060 feet. Other similar strips were involved and the supreme court concluded the strips were “a mere subterfuge and not a compliance with the law.” (Wild, 227 Ill. at 561, 81 N.E. at 708.) While the strips only cornered other land, the court seemed to also consider the fact that the strips were very long and narrow and indicated that this bore upon the question of contiguity.

In People ex rel. Adamowski v. Village of Streamwood (1959), 15 111. 2d 595, 155 N.E.2d 635, the court held that annexation of strips of roadways running in various directions from a municipality was improper. The court stated that “[t]he word ‘contiguous,’ as used in [the then legislation concerning annexation to municipalities], must be defined in keeping with what was the obvious intention of the legislature.” (Village of Streamwood, 15 Ill. 2d at 601, 155 N.E.2d at 638.) After Village of Streamwood, the supreme court has spoken extensively on the question of contiguity in regard to municipal annexations in Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 167 N.E.2d 169, People ex rel. County of St. Clair v. City of Belleville (1981), 84 Ill. 2d 1, 417 N.E.2d 125, and In re Petition to Annex Certain Territory to the Village of North Barrington (1991), 144 Ill. 2d 353, 579 N.E.2d 880.

In Kildeer, the supreme court affirmed an order of a circuit court refusing to issue a writ of quo warranto to test the validity of the incorporation of a village. The court first held that the incorporation was not void by reason of the failure of anyone to file with the recorder of deeds, as required by statute, a transcript of the incorporation proceedings which had taken place in the county court. (111. Rev. Stat. 1957, ch. 24, par. 4 — 5.) The supreme court there examined the petitioners’ contention that the territory of the village was not “contiguous” as statutorily required. 111. Rev. Stat. 1957, ch. 24, par. 3 — 5.

The Kildeer court stated:

“So far as the requirement of contiguity is concerned, we know of no case which purports to announce a comprehensive rule suitable for application in all cases. ‘Contiguity’ means ‘in actual contact; touching or adjoining.’ (Webster[’s] New Collegiate Dictionary, 2nd ed. p. 180.) The decision in Wild suggests, however, that mere actual contact such as is found when lands ‘corner’ upon one another is not enough and that something more is required. We agree and hold that in order to be considered contiguous within the meaning of the statute, the tracts of land in the territory must touch or adjoin one another in a reasonably substantial physical sense. However, the line of demarcation between the reasonableness and unreasonableness of the contiguity cannot be drawn with precision and must be determined from the facts of each case when viewed in the light of such concept.” (Emphasis added.) (Kildeer, 19 Ill. 2d at 352, 167 N.E.2d at 174-75.)

The Kildeer court then concluded that the irregularly boundaried territory of the village, which was 2.15 miles long and 1.85 miles wide, was sufficiently contiguous between each of its parts to meet statutory requirements.

City of Belleville also involved quo warranto proceedings, this time contesting the validity of four ordinances concerning annexation of land to a municipality. The circuit court upheld all of the ordinances. On review, the supreme court reversed the decision as to three of the ordinances and affirmed as to the upholding of one of the ordinances. Two of the ordinances were held invalid because the required notice of the annexation proceedings had not been given to fire protection districts whose territory included land annexed. (111. Rev. Stat. 1975, ch. 24, par. 7 — 1—1.) The ordinance which was upheld concerned an agreement to annex but did not purport to annex the property. Thus, no problem of contiguity was involved with that ordinance.

Two of the City of Belleville ordinances purporting to annex property were held invalid because the territory involved did not touch any property within the limits of the municipality and depended entirely upon the annexation of property covered by other ordinances before they became “contiguous” to the municipality. The tract covered by the other ordinance which annexed property was a railroad right-of-way which had a common boundary with the municipality for at least 1,158 feet and, thus, was “contiguous” to the municipality. However, this ordinance was one of the two which were invalidated because of the failure to notify fire protection districts.

The City of Belleville court stated:

“The purpose of the contiguity requirement is to permit the natural and gradual extension of municipal boundaries to areas which ‘adjoin one another in a reasonably substantial physical sense’ (Western National Bank v. Village of Kildeer (1960), 19 Ill. 2d 342, 352[, 167 N.E.2d 169, 175]). In that way, the delivery of services is more convenient for the city and more efficient for its citizens. Sewer lines, and fire, police and other services, as far as practicable, should not have to pass under or over lands not within municipal boundaries. (See Wild v. People ex rel. Stephens (1907), 227 Ill. 556, 560[, 81 N.E. 707, 708].)” City of Belleville, 84 Ill. 2d at 12, 417 N.E.2d at 130.

The circuit court here relied heavily on North Barrington in making its decision. That case involved a petition to annex 13 lots and portions of two other lots to a village. The owner of lot 1 of those lots objected to the annexation but the supreme court ultimately held that the objection should have been denied. The effect of eliminating lot 1 from the area annexed would have been to destroy the contiguity to the village of the two other lots in the territory for which annexation was sought. The trial and appellate courts had ruled that lot 1 should be eliminated from the territory to be annexed. The appellate court had reasoned that as the three lots were on an appendage to the rest of the territory and a majority of the owners of the land on the appendage did not want to be annexed, the territory should be eliminated. (See In re Petition to Annex Certain Territory to the Village of North Barrington (1990), 204 Ill. App. 3d 801, 562 N.E.2d 659.) The supreme court rejected this rule and held that because eliminating lot 1 would destroy the contiguity of other lots in the appendage, lot 1 must be annexed if the territory was to be annexed.

The North Barrington opinion also addressed the question of whether the whole annexation sought should be prohibited because the territory sought to be annexed was not contiguous to the village. The opinion repeated the language we have recited from and the rationale set forth in Wild, Kildeer, and City of Belleville. There, citing Kildeer (19 Ill. 2d at 352, 167 N.E.2d at 175), the opinion stated: “[t]he determination as to the reasonableness of the contiguity must be determined from the facts of each case.” North Barrington, 144 Ill. 2d at 366, 579 N.E.2d at 886.

The North Barrington court noted that the territory sought to be annexed had an irregular border but the annexation did “not constitute ‘strip’ annexation or ‘cornering,’ which have been found to be improper.” (North Barrington, 144 Ill. 2d at 368, 579 N.E.2d at 887.) That court concluded:

“In the instant case, the plat of annexation shows that the territory to be annexed touches the Village of North Barrington in a ‘reasonably substantial physical sense’ and allows for a natural extension of the Village’s boundary. The plat is in keeping with the purpose of the contiguity requirement.” North Barrington, 144 Ill. 2d at 366, 579 N.E.2d at 886.

Most appellate decisions have upheld annexations to municipalities. Most favorable to petitioners is the case of In re Petition for Annexation of Lands of the Village of Glen Carbon (1970), 130 Ill. App. 2d 821, 822, 264 N.E.2d 283, 283-84, where the appellate court explained:

“The territory sought to be annexed contains approximately 230 acres and has an extremely irregular boundary. Its common boundary with the village is 1312 feet along the eastern portion of the northern line of the village. The property then extends north one mile in an irregular fashion, varying in width from approximately 500 to 2,000 feet, then east approximately 2,000 feet and 800 feet wide, then south approximately 4,000 feet in widths varying from 200 to 800 feet. The general shape of this territory resembles an index finger bent 90 degrees at both of its joints.”

The North Barrington opinion cited Glen Carbon as a case where the irregularity of boundaries did not defeat the court’s determination that the territory being annexed was contiguous. North Barrington, 144 Ill. 2d at 368, 579 N.E.2d at 887.

The annexed territory in Glen Carbon has some similarity to the area sought to be annexed here. Both have a long narrow leg extending from the point of contact with the municipality. There, the north leg extended for approximately one mile. Here, the west side of the “U” appears to extend a slightly longer distance before it turns into the bottom of the “U.” There, the width of the leg was 500 to 2,000 feet. Here, the west leg became as narrow as 335 feet and does not appear to approach 2,000 feet at any point. In each case the legs had a similar length of contact with the municipality. Here, however, 660 feet of contact were on the west side of the west leg (see map line A-B) and 660 feet were on the north side of the west leg (see map line B-C) indicating that the leg extending from the point of contact with the municipality here was much narrower than there.

In Glen Carbon, the second leg of the territory went at right angles to the first leg for approximately three-fourths of a mile and was somewhat more narrow than the first, varying from 200 to 800 feet in width. This leg ended the territory involved there. Here, the “U” had a bottom of approximately half a mile, then an east leg which was somewhat wider and approximately the same length as the west leg. While we have no dispute with Glen Carbon, we deem that it goes about as far as permissible in approving annexation of territory which has qualities of a strip. Here, the distance around the “U” was substantially longer than that of the “L”-shaped area there.

We also note that here the area of Chatham to which the area sought to be annexed attaches is, itself, somewhat of an arm of Chatham. This is shown on the appended map. We do not know what the situation was in Glen Carbon, but we have no reason to believe that the same situation existed there. Chatham’s village administrator testified that Chatham police respond to calls in the territory seeking annexation but did not patrol there. The length of the area around the “U” here, taken together with the slender nature of the portion of the territory closest to Chatham, supports the trial court’s determination that “the territory in question *** is simply not a natural and gradual extension of the Village boundaries to areas which adjoin one another in a substantial physical sense.”

The situation here is different than that in cases cited by petitioners where unusual configurations of land have been held to be properly annexed. In In re Proposed Incorporation of the Village of Volo (1992), 229 Ill. App. 3d 321, 592 N.E.2d 628, incorporation (Ill. Rev. Stat. 1989, ch. 24, par. 2 — 3—5) was sought for irregular tracts each touching another for at least 350 feet and covering in a spiderweb manner portions of an area which was almost square in nature. The area in the center and on most of the side had already been formed into a municipality, thus necessitating the spiderweb nature of the territory. The territory was not strung out as here. The appellate court reversed a circuit court order denying incorporation. In In re Annexation of Certain Territory to the Village of Buffalo Grove (1970), 128 Ill. App. 2d 261, 261 N.E.2d 746, the appellate court reversed a circuit court decision denying annexation. The property sought to be annexed touched the municipality for 300 feet on the south and 675 feet on the east. That 300-foot-wide strip extended north for an additional 1,312 feet, where it touched a large rectangular piece of property. There, the narrow corridor extended for only approximately one-quarter of a mile and did not create the lengthy strip which we determine to be crucial here.

We deem the question of whether the territory set forth in the petition meets the contiguity requirement of section 7 — 1—1 of the Code is mostly a question of law as no substantial dispute existed as to most of the underlying facts. The circuit court’s order indicated that the connection with Chatham for one-eighth of a mile on the north and the same distance on the west was very meager. However, the main thrust of the order was that the strung out nature of the territory negated contiguity because it was contrary to the “natural and gradual extension” of the boundaries of Chatham. We interpret Wild, Streamwood, and North Barrington to all indicate that a long slender territory can lack contiguity regardless of the size of the original point of contact. The circuit court correctly interpreted the significance of those cases in this respect and applied it here.

Although we consider the question of whether contiguity existed here was mostly one of law, our decision to affirm is partly based upon recognition that to the extent factual questions existed, the usual rule that we should overturn the circuit court’s decision only if it is contrary to the manifest weight of the evidence prevails. (North Barrington, 144 Ill. 2d at 362, 579 N.E.2d at 884.) The circuit court heard testimony by a Chatham official concerning the extent of police service which Chatham had been giving to the territory sought to be annexed and the extent to which that could be done after annexation. The court also viewed the premises. This adds weight to the deference we give to the circuit court’s determination which was nevertheless mostly one of law.

While the configuration of the territory which petitioners seek to have annexed is not such as to create a “subterfuge” as stated in Wild, the property possesses too much of the attributes of a “strip annexation” which North Barrington deemed to negate “a natural extension” (see North Barrington, 144 Ill. 2d at 366, 579 N.E.2d at 886) of municipal boundaries. For this reason affirmance of the order of the circuit court dismissing the petition to annex is required.

Other issues raised by the parties and other grounds upon which the circuit court dismissed the petition can be dealt with summarily. The court found that the petition was also flawed because it was not signed by a majority of the “owners of record” of land in the territory described in the petition as required by section 7 — 1—2(a) of the Code (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—2(a)). The dispute in this regard arose because in many places the territory sought to be annexed bordered on township roads. The underlying fee interest in the outside half of those roads was owned by 14 or 15 people who had no other ownership interest in the territory. If these people are considered “owners of record,” a majority of the “owners of record” did not join in the petition. For reasons which we explain in In re Annexation of Approximately 280 Acres of Land to the City of Decatur (1993), 245 Ill. App. 3d 770, 774-75, we hold that persons in the position of the 14 or 15 fee owners in the outer half of the township roads are not “owners of record” within the meaning of section 7 — 1—2(a) of the Code and the petition is not invalid for lack of signatures.

Section 7 — 1—2(d) of the Code permits a petitioner to withdraw from a petition to annex if “the signature of the petitioner was obtained by fraud or misrepresentation.” (111. Rev. Stat. 1991, ch. 24, par. 7 — 1—2(d).) The circuit court found that three of the petitioners should be permitted to withdraw their names from the petition because of violations of section 7 — 1—2(d) of the Code by proponents of the petition. Even if these three were properly permitted to withdraw, the petition would still contain sufficient names if the owners of the fee interests in the outside half of the township roads are not considered “owners of record.” Moreover, we have examined the testimony in regard to the alleged misrepresentation. We find that, at most, the statements involved concerned either opinions or promises which may not have been kept. The petition could not have been properly dismissed on this issue.

Finally, the determination of the circuit court that Chatham need not be treated as the real petitioner here was fully supported by the evidence. Section 7 — 1—2 of the Code provides for initiation of annexation proceedings by a municipality as an alternative to a proceeding by a majority of owners of record and voters, as here. However, if that procedure is adopted, annexation is prohibited if the territory sought to be annexed includes any unsubdivided tract of 10 or more acres when the owner of the tract does not consent. Objectors assert that Chatham should be treated as the real petitioner because of the aid it gave petitioners. If Chatham were the petitioner, the petition would fail because of the existence of a 10-acre unsubdivided tract the owner of which did not consent to the annexation.

The evidence clearly showed that although Chatham gave the petitioners substantial help, including payment of attorney fees, petitioner Janice Logan initiated the matter by seeking help from Chatham officers. Accordingly, even if we had to decide this issue in order to decide the case, we would not treat Chatham as the petitioner.

As we have indicated, the determination of the circuit court that the nature of the territory sought to be annexed does not meet the requirements of section 7 — 1—1 of the Code is supported by the law and the evidence. Accordingly, we affirm the order dismissing the petition to annex in bar of action.

Affirmed.

KNECHT and LUND, JJ., concur.

Appendix


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF CLYDE R. LAMBDIN, Petitioner-Appellant, and MARY LEE LAMBDIN, Respondent-Appellee.
    Fourth District
    No. 4-92-0770
    Argued March 17, 1993.
    Opinion filed May 27, 1993.

      Vigneri & Robinson, of Decatur (Joseph W. Vigneri (argued), of counsel), for appellant.
    Wood Law Office, of Sullivan (Steven W. Mayberry (argued), of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Clyde R. Lambdin (Clyde) appeals the denial of his petition to terminate maintenance in which he alleged his former wife, Mary Lee Lambdin (Mary Lee), was cohabiting with a man on a resident, continuing, conjugal basis sufficient to justify the termination of maintenance pursuant to section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (111. Rev. Stat. 1991, ch. 40, par. 510(a)). The trial court held Mary Lee was not cohabiting in such a manner as to justify the termination of maintenance and further held Clyde in indirect civil contempt of court because of his wilful failure to pay maintenance for four months. Clyde’s petition to terminate because of Mary Lee’s failure to seek gainful employment or because of substantial changes in circumstances was also denied. Mary Lee’s petition to increase child support and for contempt was granted. Clyde appeals and we affirm.

Clyde and Mary Lee Lambdin were married on August 3, 1972. They have three natural children: Thomas Ray Lambdin (born July 23, 1974), Penny Lee Lambdin (bom December 20, 1976), and Tamera Joanne Lambdin (born September 27, 1978). They adopted Kenneth Gene Lambdin (bom May 9, 1969). Clyde filed a petition for dissolution of marriage on January 24,1989.

A judgment of dissolution was entered on November 16, 1989. Mary Lee was awarded custody of the children and Clyde was to have reasonable visitation rights. Clyde was ordered to pay Mary Lee $55/ week per child, for a total of $165 a week in child support. He was further ordered to pay Mary Lee $500 a month in maintenance. Mary Lee was awarded the marital residence, and all other property was to be divided pursuant to the parties’ agreement.

Clyde married Diana Carol Lambdin on October 5, 1990. Diana’s daughter from a previous marriage and her four children reside with Clyde and Diana on occasion. Clyde is employed by A.E. Staley and has a gross income of $539 a week for a 40-hour week. Diana is not employed outside the home.

Mary Lee baby-sits for three children in her home. She is paid $1/ hour per child and can make up to $150 a week if she has the children for the whole week. She also receives approximately $300 in food stamps. She had various part-time jobs during the marriage, but was unable to sustain permanent employment because of a hearing problem.

Clyde filed his petition to terminate maintenance, or in the alternative, for other specified relief on November 27, 1991. He alleged Mary Lee was cohabiting with Charles Geise (Geise) on a resident, continuing, conjugal basis so as to justify the termination of maintenance. Alternatively, Clyde alleged the change in his and Mary Lee’s financial circumstances supported a reduction in the amount of maintenance.

Clyde paid all the required child support and maintenance payments until December 1991. At that time, he ceased making the maintenance payments because he believed Mary Lee “had a truck driver living with her.” Clyde did not pay maintenance from December 1991 through March 1992. Mary Lee filed her petition for an adjudication of indirect civil contempt because of Clyde’s failure to pay the maintenance. She also filed a petition for modification of the judgment of dissolution seeking an increase in child support, alleging Clyde now earns substantially more than he did at the time of the judgment of dissolution. She also sought attorney fees incurred in connection with that petition.

A hearing was held on April 7, 1992, regarding Clyde’s petition to terminate maintenance and Mary Lee’s petition for contempt and an increase in child support. The trial court entered an order on June 11, 1992, denying Clyde’s petition to terminate. The trial court granted Mary Lee’s petition for contempt and modified the judgment of dissolution because of a substantial change in Clyde’s financial circumstances, and applied the guidelines of section 505(a)(1) of the Act, increasing weekly per-child support from $55 to $67. (111. Rev. Stat. 1991, ch. 40, par. 505(a)(1).) The trial court also noted its obligation, pursuant to section 508(b) of the Act (111. Rev. Stat. 1991, ch. 40, par. 508(b)), to award attorney fees to Mary Lee; however, it concluded the evidence submitted by Mary Lee as to the usual, reasonable and customary fees for legal representation provided on her behalf was insufficient to support such an award. Accordingly, no attorney fees were awarded.

Clyde filed a motion to reconsider on August 4, 1992, and Mary Lee filed a motion to strike Clyde’s motion to reconsider on August 13, 1992. A hearing on these motions was held on August 14, 1992, at which time the court entered judgment against Clyde in the amount of $4,699 for contempt; however, it held Clyde could purge himself of the contempt conviction by paying that amount pursuant to the purge order. The trial court again denied Mary Lee’s request for attorney fees. Clyde timely filed his notice of appeal.

Clyde first contends the trial court’s determination that Mary Lee was not engaged in a resident, continuing, conjugal relationship with Geise was against the manifest weight of the evidence. The trial court found Mary Lee “has not entered into or engaged in a relationship whereby she has cohabited with another person on a resident, continuing conjugal basis in a husband-wifelike relationship.” The court found Mary Lee’s relationship with Geise “has not [ajffected [her] need for support, because she does not receive support from another male and has not used maintenance monies to support him.” Finally, the court found the relationship to be of a dating type and not of a husband-wifelike relationship, and the cohabitation arrangement was only temporary and not continuing within the meaning of the Act.

Section 510(c) of the Act provides:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (HI. Rev. Stat. 1991, ch. 40, par. 510(c).)

Termination, however, requires a showing that the recipient spouse is involved in a defacto husband-wife relationship. While proof of sexual conduct between the spouse receiving maintenance and the person with whom the spouse is living is no longer necessary to establish cohabitation on a conjugal basis, something more than merely living with another person of the opposite sex is required. A lesser involvement by the recipient spouse does not require termination of maintenance. (In re Marriage of Nolen (1990), 200 Ill. App. 3d 1072, 1075, 558 N.E.2d 781, 783.) The burden of establishing a defacto husband-wife relationship rests with the spouse seeking to terminate maintenance. (In re Marriage of Johnson (1991), 215 Ill. App. 3d 174, 180, 574 N.E.2d 855, 858.) Each case for termination of maintenance must rest on its own facts, given the unique nature of personal relationships. (In re Marriage of Sappington (1985), 106 Ill. 2d 456, 466, 478 N.E.2d 376, 380.) Courts have generally looked at those facts which would lead a reasonable observer to believe that the individuals were husband and wife. Rosche v. Rosche (1987), 163 Ill. App. 3d 308, 313, 516 N.E.2d 1001,1005.

The rationale behind statutory termination of maintenance when the recipient spouse cohabits with another on a continuing, resident, conjugal basis is that it addresses the inequity created when that spouse becomes involved in a husband-wife relationship but does not legally formalize it so that he or she can continue to receive maintenance. (In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 649, 540 N.E.2d 919, 923.) Once an ex-spouse paying maintenance has demonstrated that a husband and wifelike relationship does exist, it should be incumbent upon the maintenance recipient to demonstrate that the relationship in which he or she is engaged is not the type of relationship which was intended by the legislature to justify the termination of the obligation to pay maintenance. Sappington, 106 Ill. 2d at 467. 478 N.E.2d at 381.

A trial court’s finding that the recipient spouse is not living with another person under circumstances amounting to a de facto husband-wife relationship will not be reversed unless it is contrary to the manifest weight of the evidence. In re Marriage of Caradonna (1990), 197 Ill. App. 3d 155, 159, 553 N.E.2d 1161, 1164.

In Johnson, this court, in reversing the trial court, held the evidence presented did not establish a continuing, conjugal relationship between the ex-wife and her male friend so as to justify the termination of her maintenance. In that case, there was no evidence of a sexual relationship, no evidence of sharing expenses, and no evidence that the man with whom the ex-wife had a relationship had paid any of her expenses. There was evidence to show the ex-wife liked living at the man’s apartment, they behaved affectionately toward each other and the man admitted he was moving his “ ‘girl friend’s’ ” belongings into his apartment in the near future. However, this court concluded, at most, this evidence established a dating relationship. Johnson, 215 Ill. App. 3d at 180, 574 N.E.2d at 859.

On the other hand, in Sappington, the supreme court majority held the manifest weight of the evidence did establish that a conjugal relationship existed between the former wife and a male with whom she was cohabiting, reversing the trial and appellate courts. The evidence presented indicated they attended approximately 20 “singles” dances together. The man resided in the former marital residence in the master bedroom and the former wife resided in another bedroom. The man was charged rent, but the former wife did not declare the money on her income tax returns. The man paid cash for household bills, utility bills, food and paper delivery. He had free access to the entire house and performed general maintenance jobs around the house, including mowing the lawn, raking the leaves, and patching the roof. They ate some meals together at the home and the former wife cooked for him and also did some of his laundry. They socialized together but both denied a sexual relationship. They vacationed together during which they shared a motel room and they exchanged birthday and Christmas gifts. (Sappington, 106 Ill. 2d at 459-61, 478 N.E.2d at 377-78.) The supreme court concluded the facts presented a relationship that was more like that of a husband and wife rather than that of casual friends. Sappington, 106 Ill. 2d at 466, 478 N.E.2d at 380.

The evidence presented here shows Mary Lee owns a house in Sullivan, Illinois, and became involved with Geise in July 1991, some four months prior to Clyde filing the petition to terminate maintenance. Geise is a truck driver and works for a company based out of Bakersfield, California. She sees Geise whenever he comes to town which is usually every other month. He parks his truck on the property next to her house. The longest time that Geise stayed at her house at one time was five days. Geise does not know anybody else in Sullivan, Illinois. Mary Lee admitted that she and Geise have a sexual relationship although she claims they do not always sleep in her house, but sometimes sleep in his truck, which is parked outside her house. Geise calls her once a day when he is on the road and has other mailing addresses in Virginia, Nebraska, and Utah. Mary Lee testified Geise has a checking account in Utah which is in his name alone.

Mary Lee leased a post office box in Sullivan for him, has the key to the box, and picks up his mail. When he telephones her, she tells him what came in the mail. Geise uses her calling card to make long distance phone calls to her, and he reimburses her for those telephone calls. She either cooks dinner for them when he is in town or they go out to dinner; if they go out, he pays for the dinner. He bought groceries on occasion and has given gifts and money to her children. Geise had some personal belongings at her house, including a shaving kit, which used to be stored in a trunk in her basement. However, after Clyde filed the petition to terminate, Geise moved this trunk of belongings to Mary Lee’s mother’s house.

Mary Lee and Geise became engaged in November 1991 at which time he gave her a diamond ring. However, she gave the ring back in December 1991 after Clyde filed the petition to terminate maintenance. Geise has been making fewer overnight stays since the petition to terminate was filed. However, she still communicates with him on a daily basis.

Mary Lee testified she had a date with one other man during the time she was seeing Geise. She and Geise have never taken any vacations together nor do they jointly own real estate or personal property. She has her own checking account and they do not have any joint accounts. She characterized Geise as her boyfriend and she does not do his laundry. She does not use the maintenance to buy anything for Geise. He pays no expenses for her other than the long-distance phone calls he makes on her calling card and occasional groceries. Geise does not discipline her kids. He has played chess with her children. He has on occasion answered her telephone.

This court does not have the prerogative to determine, de novo, the merits of the petition. The trial court’s determination that Mary Lee and Geise were not engaged in a resident, continuing, conjugal relationship was not against the manifest weight of the evidence.

Based on the facts and circumstances of this case and our interpretation of Sappington, Clyde demonstrated that a husband and wifelike relationship existed between Mary Lee and Geise. Mary Lee was then required to demonstrate that she was not engaged in the type of relationship intended by the legislature to justify the termination of maintenance.

The relationship between Mary Lee and Geise was of a relatively short duration. Although they did have sexual relations, she would see him usually only every other month. They had not taken vacations together, owned no real estate or personal property together, and they had no joint bank accounts. The evidence shows she does not do his laundry and does not use maintenance to buy anything for Geise. Geise does not discipline the children and his principal involvement is playing chess with them. Although there was sufficient evidence presented to grant the petition to terminate, there also was sufficient evidence to deny the petition. In such circumstances, the trial court’s decision was not against the manifest weight of the evidence.

Next, Clyde alleges the trial court’s determination that his obligation to pay maintenance should remain unaffected in spite of Mary Lee’s failure to seek appropriate training or education to become financially independent or because of a substantial change in eircumstances was against the manifest weight of the evidence. He contends, first, Mary Lee has failed to seek appropriate training and skills to become financially independent and she has limited herself to employment which will allow her to work independently. Clyde also notes the record is devoid of support for the contention that Mary Lee is medically disabled for purposes of employment.

Clyde further asserts his reduction in overtime, his financial obligation to his new wife, and the fact that Mary Lee’s financial circumstances have improved since the time of the dissolution support his position that a substantial change of circumstances has occurred. He notes that on Mary Lee’s financial affidavit at the time of the dissolution, she earned $150 a month in baby-sitting while she now asserts she can earn up to $150 a week in baby-sitting. Clyde also suggests the money she has received in child support indicates an improvement in her financial status.

A recipient of a maintenance award is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future. The failure to make good-faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to section 510(a) of the Act. In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 635, 450 N.E.2d 1229,1234.

The factors to be considered in making an award of maintenance are applicable to modification proceedings. These factors are (1) the financial resources of the party seeking maintenance, including his or her marital property; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and physical and emotional condition of both parties; (6) the ability of the spouse paying maintenance to meet his or her needs while meeting those of the spouse seeking maintenance; and (7) the tax consequences of the property division for the parties. 111. Rev. Stat. 1991, ch. 40, par. 504(b); In re Marriage of Martin (1992), 223 Ill. App. 3d 855, 861-62, 585 N.E.2d 1158,1163.

The trial court did not abuse its discretion in denying Claude’s petition to terminate maintenance based on Mary Lee’s failure to seek appropriate training or education to become financially independent. Mary Lee only has a general equivalency diploma and is custodian of two minor children. Moreover, she has a hearing problem which requires her to read lips and causes a speech impediment. Finally, only three years have passed since the dissolution of the marriage. Clyde has failed to establish sufficient facts to require terminating maintenance on this basis.

Likewise, the trial court did not abuse its discretion in denying Clyde’s petition to terminate maintenance based on a substantial change in circumstances. Mary Lee can earn up to $150 a week in baby-sitting; however, she only earned $3,700 by baby-sitting in 1991. She receives approximately $300 a month in public aid food stamps. It is true that Mary Lee may earn more from baby-sitting than she did in 1989, yet it was established that without the maintenance she currently receives, she would be unable to meet her monthly expenses. Clyde’s financial circumstances have not changed in such a manner as to justify granting his petition and thus he has failed to show a substantial change in circumstances sufficient to warrant a modification or termination of maintenance.

Clyde next argues the trial court erred in increasing the amount of child support he was required to pay. He contends the substantial change in his and Mary Lee’s financial circumstances and the lack of evidence, other than Mary Lee’s testimony, showing the children’s needs have increased since the time of dissolution support his argument that the increase in child support was an abuse of discretion.

Mary Lee asserts that a comparison of Clyde’s financial affidavit from the time of dissolution and the most current one on file indicates a substantial increase in his earnings. She notes that his pay statements from January 1, 1991, through February 1992 indicate he could pay anywhere from $168.23 to $201 a week in child support. She argues that although Clyde is claiming financial difficulty, he is purchasing a new home, owns six vehicles, has taken several vacations, and assumed responsibility for his new wife’s credit card debt.

In ordering an increase in the amount of child support, the trial court found Clyde’s net weekly income in 1991 would have been $628.14 based on an annual net income of $32,663.16. In his financial affidavit from 1989, Clyde stated a net weeldy income of $336.23. The court concluded there was a $291.99 increase resulting in a 46.47% increase over the income which Clyde received at the time of the dissolution. The court noted a similar increase for December 1991 and January 1992 and thus found this to be a substantial change in the financial circumstances of Clyde sufficient to increase the amount of child support. The trial court ordered the modification of the judgment of dissolution and applied the statutory rate of 32% to Clyde’s 1991 income to reach a figure of $67/week per child.

Under section 510(a) of the Act, a modification of child support may be made only upon a showing of a substantial change in circumstances. (111. Rev. Stat. 1991, ch. 40, par. 510(a).) If the threshold question of substantial change is met, the court, in determining the amount of increase in child support, considers the same factors to consider in formulating the original amount. (Fedun v. Kuczek (1987), 155 Ill. App. 3d 798, 801-02, 508 N.E.2d 531, 534.) The relevant factors to be used by the trial court include, but are not limited to: (1) the financial resources of the child; (2) the financial resources and needs of the custodial parent; (3) the standard of living the child would have enjoyed had the marriage not been dissolved; (4) the physical and emotional condition of the child, and his educational needs; and (5) the financial resources and the needs of the noncustodial parent. 111. Rev. Stat. 1991, ch. 40, par. 505(aX2); In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 325-26, 523 N.E.2d 573, 579.

When determining whether there is sufficient cause to modify, courts consider both the circumstances of the parents and the circumstances of the child. (Fedun, 155 Ill. App. 3d at 801, 508 N.E.2d at 533.) Child support obligations may be increased pursuant to the Act based upon the supporting parent’s increased ability to pay, regardless of whether the child’s needs have also increased. (Wilson v. Wilson (1988), 166 Ill. App. 3d 1035, 1038, 520 N.E.2d 1230, 1232.) Courts have presumed that the needs of a child have escalated simply because he has grown older and the cost of living has increased. An increase in the salary of the parent paying child support is a factor favoring an increase in child support payments. In re Marriage of Stone (1989), 191 Ill. App. 3d 172,174, 547 N.E.2d 714, 715.

The increase in the children’s needs must be balanced against the relative ability of the parents to provide for them, and where a change has occurred which creates a substantial imbalance of the child’s needs and the parent’s support capabilities, modification is required. (In re Marriage of Sehmerold (1980), 88 Ill. App. 3d 348, 350-51, 410 N.E.2d 629, 631-32.) If the court determines that a substantial change in circumstances has occurred, then the court should determine the amount of child support to be paid. In doing so, the court should follow the statutory guideline set forth in section 505 of the Act (111. Rev. Stat. 1991, ch. 40, par. 505), including those provisions for determining the noncustodial parent’s “net income” under section 505(aX3) of the Act (111. Rev. Stat. 1991, ch. 40, par. 505(aX3)). (Stone, 191 Ill. App. 3d at 174, 547 N.E.2d at 715.) For three children, the minimum support is 32% of the supporting party’s net income. 111. Rev. Stat. 1991, ch. 40, par. 505(a)(1).

A petition to modify child support must be decided on the facts of each case, and the decision rests within the sound discretion of the trial court. People ex rel. Meyer v. Nein (1991), 209 Ill. App. 3d 1087, 1088, 568 N.E.2d 436, 436.

The trial court did not abuse its discretion in increasing the amount of child support. First, the children have grown older and, thus, this court can presume their needs have increased. Mary Lee testified that as the children are older, they have become more involved in school activities, thereby increasing their expenses. Clyde’s financial affidavits indicate he is making a higher salary than he did at the time of dissolution and this was not contradicted. Thus, he can afford to pay the higher amount of child support. He claims he works fewer hours of overtime but his pay stubs indicate he still is receiving several hours of overtime. Mary Lee is not making much more money and testified she needs the child support in order to make ends meet. The court followed the statutory guideline of 32% of Clyde’s net income and this figure has not been challenged. Its order does provide for a pro rata reduction as each child attains majority.

Finally, Clyde contends the trial court erred by holding him in indirect civil contempt for failure to make the required maintenance payments. He alleges his decision not to pay maintenance was not a wilful disregard of the court’s order but rather founded upon a good-faith belief that Mary Lee’s cohabitation with Geise justified his termination of the payments.

Mary Lee asserts that a prima facie showing of contempt was made by Clyde’s admitted noncompliance with the maintenance order. She argues the burden then shifted to Clyde to show why he was unable to pay the maintenance. She concludes his belief that she was cohabiting with Geise on a resident, conjugal, continual basis was an insufficient reason to justify the nonpayment, especially in light of the trial court’s ruling that no de facto husband-wife relationship existed. She notes Clyde’s ability to pay the maintenance was not in dispute. Thus, she believes the trial court did not abuse its discretion.

The noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt. Therefore, once the prima facie showing is made, the burden shifts to the defendant, who may then defend by showing that he is unable to pay. To prove this defense, a defendant must show that he neither has the money now with which he can pay, nor he has disposed wrongfully of money or assets with which he might have paid. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 285, 469 N.E.2d 167, 175.) Financial inability to comply with an order must be shown by definite and explicit evidence. That burden is not met by testimony of a general nature with regard to financial status. (In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 1018-19, 481 N.E.2d 765, 768.) Whether a party is guilty of contempt is a question of fact for the trial court, and a reviewing court will not disturb that finding unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. In re Marriage of Dali (1991), 212 Ill. App. 3d 85, 97, 569 N.E.2d 1131,1139.

Clyde testified he stopped making the maintenance payments because in his opinion “Mary Lee had a truck driver living with her.” He failed to make the payments for December 1991 and January through March 1992. This noncompliance plus the court’s finding of arrearage provides prima facie evidence of contempt. Logston, 103 Ill. 2d at 285, 469 N.E.2d at 175.

The burden then shifted to Clyde to show he was unable to pay maintenance. Clyde presented no evidence to show he could not pay maintenance. Rather, he stated the only reason he was not paying was his belief that Mary Lee’s relationship with Geise justified his unilateral termination of maintenance payments.

Clyde offers Nolen for the proposition that his wilfulness in ceasing payments must be judged from a reasonable cause or belief standpoint. In Nolen, the ex-husband-payor unilaterally terminated maintenance payments and filed a motion to modify the judgment of dissolution. He alleged his former wife was engaged in a continuous, conjugal, residential cohabitation with his uncle. The trial court concluded he failed to sustain his burden of proof that such a relationship existed so as to terminate the maintenance order.

The appellate court rejected his argument that he had reasonable cause to believe his former wife was engaged in such a relationship. The court noted the ex-husband blamed his former wife for not communicating the reason for her presence in his uncle’s home, i.e., she was the uncle’s full-time housekeeper and nurse. The court stated the former wife had no obligation to tell her ex-husband of her daily movements and found incredible his claims that he did not know of the true relationship between his former wife and his uncle. The evidence presented at trial indicated the true nature of the relationship between them and various relatives testified they knew of this relationship. The court concluded “Elvis [(former husband)] has no one else to blame but himself. This is the risk one takes in making unilateral decisions to stop paying maintenance.” Nolen, 200 Ill. App. 3d at 1077, 558 N.E.2d at 784-85.

The major distinction between Nolen and the present case is the fact that the former husband in Nolen was not found to be in contempt. The court in Nolen only noted the husband’s belief that he could stop payment because of his wife’s relationship to show it was an unreasonable belief based on the evidence presented. It did not state or imply that a reasonable belief that a spouse receiving maintenance was engaged in a resident, continuing, conjugal relationship justified the unilateral termination of maintenance by a paying spouse.

Accordingly, Clyde failed to rebut the prima facie showing of contempt because he did not demonstrate an inability to pay maintenance. Therefore, the trial court’s finding of contempt was not an abuse of discretion.

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

Affirmed.

COOK and LUND, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DEAN JONES, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0930
    Opinion filed June 10, 1993.
    Michael D. Clary, State’s Attorney, of Danville (Norbert J. Goetten, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Terry Miles, of Acton & Snyder, of Danville, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

This case raises the issue of whether the offense of soliciting for a juvenile prostitute (111. Rev. Stat. 1991, ch. 38, par. 11 — 15.1) applies to a prospective customer who solicits sexual acts for money from a juvenile. The trial court held that the statute applies only to “middlemen” who find customers for a juvenile prostitute. Accordingly, the court dismissed a charge against defendant, Dean Jones, of soliciting for a juvenile prostitute because the State had only alleged that he acted as a prospective customer.

We affirm.

I. Background

In August 1992, the State filed a two-count information charging defendant with distribution of harmful materials (111. Rev. Stat. 1991, ch. 38, par. 11 — 21(a)) and soliciting for a juvenile prostitute (111. Rev. Stat. 1991, ch. 38, par. 11 — 15.1(a)). The first count alleged that defendant knowingly exhibited “x-rated videotapes depicting male on male sexual acts” to D.W.M., a child under 18 years of age. The second count alleged that defendant “knowingly solicit[ed] D.W.M., a child under 16 years of age, to perform an act of sexual penetration for money.” Both of these offenses allegedly occurred between January 1 and February 19,1992.

In October 1992, defendant filed a motion to dismiss the count charging him with soliciting a juvenile prostitute. Citing People v. Thoma (1987), 152 Ill. App. 3d 374, 504 N.E.2d 539, defendant argued that section 11 — 15 of the Criminal Code of 1961 (Code) (111. Rev. Stat. 1991, ch. 38, par. 11 — 15), defining the offense of soliciting for a prostitute, applies only to “middlemen” who arrange prostitution by soliciting customers for prostitutes. Section 11 — 15.1 of the Code (soliciting for a juvenile prostitute) incorporates by reference the provisions of section 11 — 15 of the Code. Thus, defendant argued, section 11 — 15.1 of the Code similarly applied only to “middlemen.” After conducting a hearing on defendant’s motion, the trial court granted it. The State appeals.

II. Analysis

In pertinent part, section 11 — 15(a) of the Code provides the following:

“Soliciting for a prostitute, (a) Any person who performs any of the following acts commits soliciting for a prostitute:
(1) Solicits another for the purpose of prostitution; or
(2) Arranges or offers to arrange a meeting of persons for the purpose of prostitution; or
(3) Directs another to a place knowing such direction is for the purpose of prostitution.” (111. Rev. Stat. 1991, ch. 38, par. 11 — 15(a).)

A first or second violation of section 11 — 15 is a Class A misdemeanor. (111. Rev. Stat. 1991, ch. 38, par. 11 — 15(b).) A violation of section 11 — 15.1(a) of the Code (soliciting for a juvenile prostitute) enhances the above crime to a Class 1 felony (111. Rev. Stat. 1991, ch. 38, par. 11 — 15.1(c)) when “the prostitute for whom such person is soliciting is under 16 years of age or is an institutionalized severely or profoundly mentally retarded person.” (Emphasis added.) 111. Rev. Stat. 1991, ch. 38, par. ll-15.1(a).

In this appeal, the State argues that section 11 — 15 of the Code applies to anyone involved in the solicitation of a prostitute, not just to “middlemen” who arrange prostitution by soliciting prospective customers on behalf of prostitutes. The First District Appellate Court first interpreted this section in Daley v. Resnick (1972), 5 Ill. App. 3d 683, 284 N.E.2d 39. In Daley, a liquor license was revoked because the license holder’s barmaid had offered to perform sexual favors herself for money to an undercover officer. (Daley, 5 Ill. App. 3d at 684, 284 N.E.2d at 40.) Regarding section 11 — 15 of the Code, the court wrote the following:

“It seems perfectly clear to us that the soliciting prohibited by [section 11 — 15 of the Code] necessarily excludes solicitation by the prostitute herself, and covers only the ‘runner’ or ‘middle-man.’ We can conceive of no other construction of the words, ‘soliciting for a prostitute’ ***.” (Daley, 5 Ill. App. 3d at 685, 284 N.E.2d at 41.)

(We note that section 11 — 15 of the Code, construed by the court in Daley, is essentially the same statute we construe in the present case.) The court in Daley then reversed the revocation because it held that the underlying offense of soliciting for a prostitute that provided the grounds for the revocation had not occurred. Daley, 5 Ill. App. 3d at 686, 284 N.E.2d at 41.

However, in People v. Blair (1983), 114 Ill. App. 3d 655, 657, 449 N.E.2d 172, 173, a different panel of the First District Appellate Court held that section 11 — 15 of the Code applied to a prospective customer who asked an undercover policewoman to perform oral sex for money. Without mentioning or citing Daley, the court wrote that “[t]he phrase ‘solicits another for the purpose of prostitution’ has a broader meaning than to solicit another on behalf of a prostitute as the defendant contends. It also means to appeal to or entice another for an act of prostitution.” (Emphasis added.) Blair, 114 Ill. App. 3d at 657, 449 N.E.2d at 173.

In People v. Holloway (1986), 143 Ill. App. 3d 735, 493 N.E.2d 89, a divided panel of the First District Appellate Court addressed the conflict between Daley and Blair and sided with Daley. The court reasoned that Blair inappropriately focused on only the language of section 11 — 15(aXl) of the Code (111. Rev. Stat. 1983, ch. 38, par. 11— 15(aXl)), whereas Daley considered the language in section 11 — 15 of the Code as a whole, as well as the title of the offense. In Holloway, the court wrote that “[t]he statute should be read as a whole and all its relevant parts should be considered to determine the intent of the legislature.” (Holloway, 143 Ill. App. 3d at 739, 493 N.E.2d at 92.) After so considering the statute, the court held that “[t]he clear import of section 11 — 15 [of the Code] is that the scope of the offense is restricted to those persons who establish the contact between the prostitute and a prospective customer.” Holloway, 143 Ill. App. 3d at 739, 493 N.E.2d at 92.

In People v. Anderson (1986), 143 Ill. App. 3d 567, 493 N.E.2d 410, the Fifth District Appellate Court interpreted section 11 — 15(aX3) of the Code (111. Rev. Stat. 1983, ch. 38, par. 11 — 15(aX3)) and held that the person whom the defendant directs to a place of prostitution must be the prospective customer, not the prostitute. In so holding, the court rejected the Blair interpretation of the statute and wrote the following:

“We believe that the *** language [of section 11 — 15.1 of the Code] clearly indicates that the person to be charged under the soliciting for a juvenile prostitute statute is one who acts on behalf of the juvenile prostitute in procuring customers.” Anderson, 143 Ill. App. 3d at 570, 493 N.E.2d at 412.

In Thoma (152 Ill. App. 3d at 376-77, 504 N.E.2d at 540-41), the Third District Appellate Court agreed with Daley and Holloway that section 11 — 15 of the Code only applies to “middlemen” and not to prostitutes or the prospective customers of a prostitute. In so holding, the court noted in dicta that section 11 — 15.1(a) of the Code — the section directly involved in this case — stated that “[a]ny person who violates any of the provisions of Section 11 — 15(a) of this Act commits soliciting for a juvenile prostitute where the prostitute for whom such person is soliciting is under 16 years of age” (emphasis added) (HI. Rev. Stat. 1985, ch. 38, par. 11 — 15.1(a)), instead of stating “where the prostitute whom such person is soliciting is under 16 years of age.” (Thoma, 152 Ill. App. 3d at 377, 504 N.E.2d at 541.) The court noted that this language indicated that both these statutes apply only to middlemen who solicit prospective customers on behalf of the prostitute.

We agree with Daley, Holloway, and Thoma that the language in section 11 — 15 of the Code, when taken as a whole and not in parsed bits, indicates that the statute covers only “middlemen” who solicit customers for the prostitute and not the prospective customers or the prostitute. In support of our conclusion, we note that the statutory scheme regarding prostitution indicates that the offense of “[patronizing a juvenile prostitute” (111. Rev. Stat. 1991, ch. 38, par. 11— 18.1) is merely a Class 4 felony (111. Rev. Stat. 1991, ch. 38, par. 11 — 18.1(c)), while the offense of soliciting for a juvenile prostitute is a Class 1 felony. Thus, under the State’s theory, a potential customer merely asking a juvenile to perform an act of sexual penetration for money would commit a more serious offense than if he actually consummated the deal.

Finally, as recognized in Daley (5 Ill. App. 3d at 685, 284 N.E.2d at 41), Holloway (143 Ill. App. 3d at 739-40, 493 N.E.2d at 92-93), Anderson (143 Ill. App. 3d at 570, 493 N.E.2d at 412-13), and Thoma (152 Ill. App. 3d at 377, 504 N.E.2d at 541), the official committee comments state the following regarding sections 11 — 15 and 11 — 15.1 of the Code:

“The section [11 — 15 of the Code] is broadly drafted to insure coverage of all acts by the ‘runner’ or the ‘middle-man’ in arranging business for a working prostitute. Subsection (aXl) proscribes simply ‘soliciting’. This subsection envisions one who actively seeks out customers for the prostitute, those who initiate the suggestion to the prospective patron. The word ‘solicit’ is employed here *** to require only an invitation — the response of the prospective customer, and the locale of the solicitation, being wholly immaterial so far as the scope of the section is concerned. The following two subsections then expand the concept of solicitation to include the essential activities of a middle-man who might not initiate the suggestion — but whose participation in arranging the activity is such as to be vital to the engagement. Thus, in subsection (aX2) the person who arranges or offers to arrange a meeting of persons for purposes of prostitution is covered. This would cover the situation of an elevator operator or bellhop in a hotel who establishes contact between a patron and a prostitute who is living in the hotel or who will visit the patron’s room if summoned. The third subsection deals with directing the prospective patron to a prostitute or a place of prostitution. *** [I]f a man entered a taxicab and asked the driver to take him to a place of prostitution, and the driver takes the person to a prostitute, the section would be violated by the cab driver. ***
Subsections (aX2) and (aX3) do not impose an active duty upon cabdrivers, bellhops, elevator operators, hotel clerks and the like to suppress the practice of prostitution — but it does impose upon them a duty not to cooperate either actively or passively in the practice of the trade beyond the lawfiil duties imposed by their employment. * * *
The modern day practice of prostitution relies heavily upon mobility and an informal intelligence service to establish contacts between prostitute and patron. The middleman who has only a casual connection with the trade is nevertheless essential to its successful operation in many quarters. Thus, effective control of prostitution requires concern beyond the traditional public nuisance concept of the common law to deter passive cooperation by persons who have, perhapsf,] only an indirect connection with the trade.” (Emphasis added.) (111. Ann. Stat., ch. 38, par. 11 — 15, Committee Comments — 1961, at 341-42 (SmithHurd 1979).)

Although, as noted in Blair, these committee comments are not part of the statute, they nonetheless provide support for our holding that the offense of “soliciting for a prostitute” and “soliciting for a juvenile prostitute” apply only to a “middleman” who arranges prostitution by finding customers for prostitutes, not to the prostitute or the prospective patron.

Although the alleged acts underlying count II of the State’s information in this case might constitute an inchoate attempt or solicitation offense of a different statutory section, they do not constitute the offense of soliciting for a juvenile prostitute under section 11— 15.1 of the Code. Thus, the trial court appropriately granted defendant’s motion to dismiss that charge.

III. Conclusion

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

LUND and GREEN, JJ., concur.