author: PRESIDING JUSTICE HARTMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BARRY WILSON, Defendant-Appellant.
    First District (2nd Division)
    No. 1—90—0066
    Opinion filed May 5, 1992.

      Randolph N. Stone, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb and Michael Latz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE HARTMAN

delivered the opinion of the court:

Defendant, Barry Wilson, was convicted by a jury on two counts of murder and conspiracy to commit murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9 — 1(a), 8 — 2(a)) and sentenced to natural life in prison. On appeal, he identifies error in the circuit court’s refusing to give a tendered defense instruction; allowing the prior consistent statement of a prosecution witness to be admitted; and permitting portions of the State’s closing argument to stand. For reasons which follow, we affirm.

At trial, Jacqueline Gibons (Jacqueline) testified that she was the 20-year-old adopted daughter of the victims, Benjamin and Sybil Gibons (Benjamin and Sybil). She often spent time with defendant, regularly gave him money, and paid for meals or activities when they were together. Benjamin and Sybil did not approve of Jacqueline’s friendship with defendant, and he was not welcome in their home.

In June 1982, Sybil took away Jacqueline’s credit cards and checks when she discovered the dire condition of Jacqueline’s finances. Defendant, angered by Sybil’s interference, told Jacqueline that he was going “to do away with” her parents. In July, Sybil began meeting Jacqueline on her payday to ensure that she did not give money to defendant, as had been her previous practice.

On July 27, 1982, defendant called Jacqueline at work and told her that he had broken a window at her home. That evening, Benjamin spoke with Detective Greg McLaughlin of the Skokie police department and decided to file burglary charges against defendant. When he learned of Benjamin’s intentions on the next day, defendant told Jacqueline that her parents “were going down that night.”

On July 29, 1982, Jacqueline met defendant and Robert St. Pierre (Robert), whom she knew previously. Defendant said that Robert would come to her house that evening and kill her parents, but Jacqueline did not believe that he was serious.

That evening, Jacqueline and her father were at home when Robert came to the front door and rang the bell. Benjamin answered, and Jacqueline introduced the two men. When Benjamin turned away, Robert picked up a hammer which was on a bench by the door and followed him into the kitchen. Jacqueline remained in the living room and heard shuffling and hammering coming from the kitchen. Robert ordered her to call defendant; she did so and he arrived a few minutes later. Jacqueline was crying hysterically, but defendant slapped her and calmed her down. Defendant and Robert wrapped Benjamin’s body in bedding and moved it into the master bedroom. Pursuant to defendant’s order, Jacqueline helped clean up the blood in the kitchen.

At one point, Detective McLaughlin called by telephone to speak with Benjamin or Sybil, and Jacqueline told him that they were not home. When the phone rang, defendant had threatened to kill her if she told of the incident.

Sybil called and asked Jacqueline for a ride home; Jacqueline went to pick her up, as defendant ordered. When they got home, Sybil walked in the front door, and a hammer struck her torso; she fell into the living room. Defendant immediately took Jacqueline, who was hysterical, to another room. Defendant and Robert wrapped Sybil’s body in bedding and plastic and cut out sections of the blood-soaked carpet with kitchen knives. They all left the house for the night.

While at work on the following day, Jacqueline called her parents’ employers and reported that they were ill, as defendant directed. At the end of the day, defendant and Robert drove her home in the Gibonses’ car. With a hammer and chisel, the two men made a hole in the wall which separated the garage and the closet adjacent to the master bedroom. They lifted the bodies through this hole and placed them in the trunk of the Gibonses’ car. Defendant told Jacqueline that he was going out of State with the bodies and would maintain contact with her.

Defendant called Jacqueline on Saturday and Sunday to check on whether she had “kept her mouth shut.” On Monday August 2, 1982, Jacqueline went to work and reported to her parents’ employers that they were out of town. Defendant called that day and told Jacqueline to wire him money in Los Angeles, which she did. He told her that someone had answered the telephone at her parents’ home when he called earlier that night. She then called her parents’ house and identified herself to a policeman who answered. Ultimately, she was taken into custody and gave a formal statement to police. On cross-examination, Jacqueline testified that she pled guilty to the murder of Sybil and conspiracy to murder Benjamin, and the remaining charges pending against her had been dropped.

Harriet Hetrick, Sybil’s sister, testified that on August 2, 1982, after Sybil had been absent from work for two days, she contacted the Skokie police department, and officers forcibly gained access to the Gibonses’ residence. Hetrick and the officers saw that sections of the living room carpet had been cut out and the walls and floors were stained with blood.

Detective HcLaughlin testified that he had spoken to Benjamin and Sybil about filing burglary charges against defendant. On July 29, and again on July 31, 1982, he called to speak with Benjamin, but Jacqueline said her parents were not at home. On August 2, HcLaughlin went to the Gibonses’ residence. The kitchen was in disarray, large sections were cut from the living room carpet, and a pail of discolored water was in the entryway. In the master bedroom, the carpet was stained with blood and the doors had been removed from the closet. The carpet, drapes, furniture, walls, and ceiling in the living room were spattered with blood. A blood-saturated piece of carpet and several plastic bags containing bloodstained rags, newspapers, and gloves were found in the garage. A masonry dust-covered hammer lay near the hole in the garage wall. Benjamin’s wallet containing vehicle registration data was found in the kitchen. A “stop and hold” order on the Gibonses’ car was placed with State police. After speaking with Jacqueline later at the Skokie police station, Los Angeles and Phoenix police were alerted to defendant’s potential presence in each place.

Relative to the investigation, Detective HcLaughlin went to Phoenix, where defendant had been arrested and was in custody. He searched the Gibonses’ car and found several receipts from gasoline purchases which had been made with Benjamin’s credit cards and signed “B. Gibons.” One receipt bore defendant’s driver’s license number. He found an accumulation of blood in the trunk. HcLaughlin returned to Chicago with defendant.

Robert was arrested on August 3, 1982. The decomposing bodies of Benjamin and Sybil were found on August 10, 1982, along a roadside in Guadalupe County, New Hexico. A forensic pathologist testified that the cause of death for both victims was multiple blows to the head, consistent with those made by the round end of a hammer. The State also called an evidence technician who found defendant’s palm print on the closet door in the master bedroom, the officer from the Phoenix police department who arrested defendant, and a forensic anthropologist, all of whom provided corroborating testimony.

The State rested, and defendant’s motion for a directed verdict was denied. Defendant rested without presenting any evidence. As earlier noted, the jury found defendant guilty of both counts of murder and conspiracy to commit murder, and not guilty of the two armed robbery counts, and he was sentenced to natural life in prison. This appeal followed.

I

Defendant first contends that the circuit court erred in refusing his tendered jury instruction on concealment of homicidal death, which he alleges was a lesser included offense of conspiracy to commit murder.

Defendant has waived this contention for failure to object to the circuit court’s denial of his requested instruction. See People v. Enoch (1988), 122 Ill. 2d 176, 186-87, 522 N.E.2d 1124.

Were we to consider defendant’s argument on its merits, it would fail nevertheless. Defendant was not charged with concealment of homicidal death. The counts of the indictment charging defendant with conspiracy alleged that defendant, with others, and with the intent to commit murder, agreed to the commission of that offense and, in furtherance thereof, beat Benjamin and Sybil on the head with a hammer and removed their bodies from the residence. Concealment of homicidal death requires knowledge that a homicide has occurred and some affirmative act of concealment by defendant. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 3.1(a); People v. Mueller (1985), 109 Ill. 2d 378, 388, 488 N.E.2d 523.) Defendant is entitled, under certain circumstances, to have the jury instructed as to a lesser included offense than that with which he is charged. (People v. LePretre (1990), 196 Ill. App. 3d 111, 120, 552 N.E.2d 1319.) By statutory definition, concealment of homicidal death is not a lesser included offense of conspiracy to commit murder, since not all the elements of the former offense are also elements of the latter offense. (See Ill. Rev. Stat. 1981, ch. 38, par. 2 — 9(a); People v. Booker (1991), 214 Ill. App. 3d 286, 288, 573 N.E.2d 385.) The supreme court, however, has recognized that the definition does not explain which of the following is determinative in deciding whether a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or charging instrument; or the greater crime as its necessary elements are proved at trial. People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633.

In People v. Bryant (1986), 113 Ill. 2d 497, 503-04, 499 N.E.2d 413, the supreme court, acknowledging its decision in People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993, looked to the language of the charging instrument and the evidence proved at trial to determine whether one offense was included within another. In Bryant, although defendant was charged with attempted burglary, he sought an instruction on criminal damage to property as a lesser included offense, which the court held should have been given. In limiting the included-offense doctrine, the court noted that such an instruction is appropriate only if a jury rationally could find defendant guilty of the lesser offense and acquit him of the greater, or where the charged greater offense requires the jury to find a disputed factual element which is not necessary for conviction of the lesser included offense. Bryant, 113 Ill. 2d at 507.

In People v. Schmidt (1988), 126 Ill. 2d 179, 183-84, 533 N.E.2d 898, the supreme court held that a defendant cannot be convicted of an uncharged offense which is not a lesser included offense of that charged. Subsequent cases have concluded that the rule in Schmidt, which was based upon a double jeopardy analysis, is determinative of whether an instruction on a lesser uncharged offense should be given. See Booker, 214 Ill. App. 3d at 289; People v. Johnson (1990), 206 Ill. App. 3d 318, 320-21, 564 N.E.2d 232.

Here, defendant was not entitled to an instruction on concealment of homicidal death. Although the indictment may have implied the elements of homicidal concealment, that lesser offense was not the obvious foundation of the charge. The cases cited by defendant which construe Bryant do not involve concealment of homicidal death as a possible included offense of conspiracy to commit murder and, therefore, are distinguishable. There is no evidence in the record that restricts defendant’s involvement only to concealment. Further, an instruction on concealment of homicidal death would not have permitted the jury rationally to find defendant guilty of that offense but not guilty of conspiracy to commit murder; the evidence as to defendant’s guilt of the greater offense was overwhelming. (See People v. James (1990), 200 Ill. App. 3d 380, 390-91, 558 N.E.2d 732.) The circuit court, therefore, did not err in refusing defendant’s tendered instruction.

II

Defendant next asserts that he was prejudiced when Jacqueline’s prior statement was read to the jury. Defendant has waived this argument for failure to raise it in his post-trial motion. Enoch, 122 Ill. 2d at 186-87.

Even if not waived, we find defendant’s argument baseless. A witness may not testify as to statements she made out of court in order to corroborate similar trial testimony; however, to rebut a charge or inference that the witness recently has been motivated to fabricate or testify falsely, evidence that she told the same story prior to any alleged motive or fabrication is admissible. (People v. Clark (1972), 52 Ill. 2d 374, 389, 288 N.E.2d 363.) Proof that the witness gave a similar account of the occurrence when the motive to lie was nonexistent, or before the effect of the account could be foreseen, also makes the prior consistent statement admissible. People v. Klinkhammer (1982), 105 Ill. App. 3d 747, 749, 434 N.E.2d 835.

Here, during cross-examination, defense counsel emphasized that in exchange for her guilty pleas to one count of murder and conspiracy to commit murder and her agreement to testify against defendant, the State was recommending a prison sentence for Jacqueline which was less severe than that which she might otherwise endure. He also asserted in closing argument that Jacqueline had a motive to lie, based upon her agreement with the State. In response, the State was allowed to introduce Jacqueline’s statement into evidence to rebut the inference urged by defendant.

Defendant argues that at the time she made the statement, Jacqueline had a motive to accuse defendant falsely so that she might deflect suspicion from herself. That allegation, however, is not supported by the record. Jacqueline was charged, tried, and convicted of murder, conspiracy, armed robbery, and concealment of homicidal death. She agreed to plead guilty and testify against defendant only after new charges had been filed against her prior to the second trial.

The proffered statement was substantially similar to Jacqueline’s trial testimony. The weight to be accorded the statement is a question for the jury, which is entitled to hear the entire statement and determine what credence should be given any inconsistency. (Klinkhammer, 105 Ill. App. 3d at 749.) The statement, therefore, was properly admitted to rebut defendant’s allegations of recent fabrication by Jacqueline.

Ill

Lastly, defendant contends that portions of the State’s closing argument were improper. In his argument to the jury, defense counsel referred to witnesses and evidence that could have been presented by the State, suggesting that Jacqueline’s testimony was not credible or corroborated due to the absence of such evidence. In response, the State argued that defense counsel also had the power to subpoena witnesses, and “if [a witness] could say that this nevér happened, they could have brought her in too.” Defendant’s objection to the State’s argument was overruled.

A prosecutor is given considerable latitude in closing argument; the circuit court’s determination as to the propriety of closing argument will not be reversed absent a clear abuse of discretion. (People v. Harris (1990), 196 Ill. App. 3d 663, 675, 554 N.E.2d 367.) Nor may defendant claim prejudice resulting from the State’s comments when they were invited by defendant’s argument. People v. Richardson (1988), 123 Ill. 2d 322, 356, 528 N.E.2d 612.

In People v. Holman (1984), 103 Ill. 2d 133, 151, 469 N.E.2d 119, after reciting the general proposition that the State may not comment unfavorably upon a defendant’s failure to produce witnesses, the supreme court held that comment on the failure of a potential defense •witness to testify is permitted when made in response to defense counsel’s own reference to the State’s failure to call the witness. The court found that the prosecutor’s response to comments, similar to those made in this case, was not prejudicial. The State did not dwell on defendant’s failure to produce the witness, and the prosecutor’s remarks were intended to rebut the inference that the State’s case would have been compromised by appearance of the witness. Holman, 103 Ill. 2d at 151-52.

Similarly, the State’s remarks in this case rebutted defense counsel’s reference to the absence of potential witnesses. In such an instance, it is not erroneous to remind the jurors of the power of compulsory process. (See People v. Mahaffey (1989), 128 Ill. 2d 388, 425, 539 N.E.2d 1172; Richardson, 123 Ill. 2d at 355.) The absence of the remarks would not have resulted in a different verdict (see People v. Henderson (1990), 142 Ill. 2d 258, 323, 568 N.E.2d 1234), and any error was harmless in light of the court’s subsequent instruction that argument was not evidence and any argument not based on the evidence should be disregarded (People v. Scott (1990), 194 Ill. App. 3d 634, 645, 551 N.E.2d 288).

Second, defendant challenges the State’s remark, his objection to which was overruled, that the jury could not assume absent witnesses would testify contrary to the State. He argues that a party’s failure to introduce evidence which would settle conclusively a doubtful issue gives rise to a presumption that the evidence, if produced, would be adverse to that party. That assertion, however, is based upon the holding in People v. Strong (1961), 21 Ill. 2d 320, 172 N.E.2d 765, which has been limited to cases involving the defense of entrapment. (See People v. Ayala (1990), 208 Ill. App. 3d 586, 596, 567 N.E.2d 450.) Further, an absent witness must have testimony unique to the case for the negative inference to arise. See People v. Zenner (1980), 84 Ill. App. 3d 566, 571-72, 406 N.E.2d 27; People v. DeSavieu (1973), 11 Ill. App. 3d 529, 534, 297 N.E.2d 336.

Here, the absent witness referred to was a friend to whom Jacqueline had spoken before she surrendered herself to the police. There is no indication in the record or allegation by defendant that the witness would have provided testimony unique to the case. The State’s remarks were invited by defense counsel, who suggested that the State was withholding witnesses with unfavorable testimony. (See Richardson, 123 Ill. 2d at 355-56.) The circuit court did not abuse its discretion in allowing the State to make the contested remark.

Based upon the foregoing, the judgment of the circuit court must be affirmed.

Affirmed.

DiVITO and McCORMICK, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    EDWARD ELECTRIC COMPANY, Plaintiff-Appellant, v. AUTOMATION, INC., et al., Defendants-Appellees (Emery Air Freight, Inc., Counterplaintiff-Appellee; Anchor Conveyors, Inc., Counterdefendant-Appellant).
    First District (4th Division)
    Nos. 1—91—1630,1—91—1745 cons.
    Opinion filed May 7, 1992.
    Rehearing denied June 11, 1992.

      Joseph D. Keenan III, of Puchalski, Keenan & Reimer, of Chicago, for appellant Edward Electric Company.
    Jeanine L. Stevens, of Chicago, and Kasimer & Ittig, P.C., of Washington, D.C. (Gerard W. Ittig and Judith B. Ittig, of counsel), for appellant Anchor Conveyors, Inc.
    Elliott D. Hartstein, of Cohon, Raizes & Regal, of Chicago, for appellee Emery Air Freight, Inc.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

These consolidated appeals arise from the circuit court’s denial of motions by plaintiff Edward Electric Company (Edward) and counter-defendant Anchor Conveyors, Inc. (Anchor), to confirm an arbitration award. The court instead granted the motion of defendant Emery Air Freight, Inc. (Emery), to vacate the award in its entirety. Edward and Anchor have appealed, contending that the circuit court conducted an impermissibly broad review of the arbitration award and erred in concluding that grounds existed for vacating the award.

The arbitration proceedings stemmed from the construction of a package handling and sortation system at Emery’s facility in Des Plaines, Illinois. Anchor was the general contractor on the project and was responsible for installing both the package handling and sortation system and a unified loading device (ULD) system. Automation, Inc., had a subcontract with Anchor to provide the electrical work and solicited Edward’s participation in the project. According to Edward, it initially entered the project as a joint venturer with Automation but subsequently became a subcontractor of Automation.

Edward filed suit against Emery, Anchor and Automation requesting various forms of relief including damages, an accounting and a mechanic’s lien. Emery filed a counterclaim against Anchor seeking damages for delay and incomplete work, and Anchor filed a counterclaim against Emery seeking money damages. Anchor also filed a motion to compel arbitration which was denied. On appeal, this court reversed the trial court and ordered Anchor and Emery to submit their disputes to arbitration. Edward Electric Co. v. Automation, Inc. (1987), 164 Ill. App. 3d 547, 518 N.E.2d 172.

Anchor filed an arbitration demand with the American Arbitration Association (AAA) asserting a demand against Emery in the amount of $726,364.22 plus interest and costs. In its brief to the arbitrators, Anchor requested damages from Emery in the amount of $1,628,305.84. When Anchor and Emery were unable to agree upon a panel of arbitrators, the AAA in accordance with paragraph 13 of its construction industry arbitration rules appointed three arbitrators. The panel consisted of two architects and a general contractor. Emery objected to the panel on the grounds that at least one of the arbitrators should have been a lawyer. The AAA rejected Emery’s objection and confirmed the appointment of the panel.

Before the arbitration proceedings began, Emery filed a motion to compel the admission of Edward as a party to the arbitration. Edward agreed to participate. On May 11, 1989, Emery, Anchor and Edward executed a written arbitration agreement. The agreement provided in pertinent part:

“[Emery, Anchor and Edward] hereby agree to submit to binding arbitration all controversies, claims, and disputes arising out of or relating to the parties’ involvement in the construction and installation of a ULD Handling System and a Package Handling System at Emery Air Freight Corporation’s facility in Des Plaines, Illinois. *** The extent of Edward’s claims in arbitration will be the same claims that Edward has raised against Anchor and Emery in court. *** This arbitration shall be conducted in accordance with the Construction Industry Rules of the American Arbitration Association.”

The agreement also stated that the dispute would be submitted to “the arbitration panel which had been nominated to arbitrate the disputes between Anchor Conveyors, Inc. and Emery Air Freight Corporation.” The parties agreed “to abide by and perform any award(s) rendered by the arbitrators, and that a judgment of the court having jurisdiction may be entered upon the award(s), subject to all rights of the parties under the Illinois Uniform Arbitration Act *** and the Construction Industry Rules of the American Arbitration Association.”

One of the claims which Edward submitted to the arbitrators was a mechanic’s lien claim against Emery in the amount of $119,633.50 based on labor and materials furnished in connection with the installation of “a package handling system and ULD handling system” at Emery’s facility. The first amended complaint filed by Edward in the circuit court similarly sought a mechanic’s lien in the amount of $119,633.50, but referred only to a “package to sortation system” and did not specifically mention the ULD handling system. Both the arbitration claim and the court complaint filed by Edward sought money damages against Emery for breach of contract. In count V of its arbitration claim, Edward alleged that Emery made false representations that were “willful, wanton and in reckless disregard of truth” and requested punitive damages in excess of $100,000. In count II of its arbitration claim, Edward asserted a contract claim against Anchor in the amount of $30,324.78 plus interest.

The arbitration hearings took place over the course of 15 days between June 1, 1989, and December 1, 1989. On May 3, 1990, the arbitrators issued a unanimous award which provided as follows:

“1. Emery Air Freight Corporation shall pay to Anchor Conveyors, Inc. the sum of Eight Hundred Sixty-Eight Thousand, Three Hundred Sixty Dollars and Fifty-Eight Cents ($868,360.58).
2. Emery Air Freight Corporation shall pay to Edward Electric Company the sum of One Hundred Seventy-Nine Thousand, Eight Hundred Dollars and Nineteen Cents ($179,800.19) plus punitive damages in the amount of One Hundred Fifty Thousand Dollars and No Cents ($150,000.00).
3. If Emery Air Freight Corporation doesn’t pay Edward Electric Company, Edward Electric Company shall have a mechanic’s lien in the amount of $119,633.50 upon the leasehold interest of Emery Air Freight Corporation on premises at 401 West Touhy Avenue, Des Plaines, Illinois, said amount, $119,633.50 is included in the $179,800.19 Emery Air Freight Corporation must pay to Edward Electric Company.
[Paragraph 4 divided the administrative fees and expenses of the AAA among the parties.]
5. This Award is in full settlement of all claims and counterclaims submitted to this arbitration.”

On May 18, 1990, Emery filed a request for clarification and correction of the arbitration award pursuant to section 9 of the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1989, ch. 10, par. 109). On May 23, 1990, the AAA advised Emery that the request had been denied. Counsel for Emery learned that one of the arbitrators advised the AAA not to forward the request to the arbitrators and to inform Emery that it was denied.

Edward and Anchor then filed motions in the circuit court for a judgment confirming the arbitration award. Emery filed a petition to vacate the award. Following argument, the trial court denied the motions to confirm the award, vacated the award in its entirety and remanded the matter to a new panel of arbitrators specifying that one of the arbitrators should be a lawyer with a background in mechanic’s lien laws. In vacating the award, the trial court found that the arbitrators were biased, that they failed to make a complete determination of all the issues and that they improperly considered a certain claim raised by Edward. The court further found that the arbitrators made a gross mistake of law in failing to award a mechanic’s lien jointly against Emery and Anchor and that the arbitrators exceeded their authority in awarding punitive damages.

Edward and Anchor have appealed, contending that the trial court erred in conducting an impermissibly broad review of the arbitration award and in finding that grounds existed for vacating the award.

The object of arbitration is to avoid the formalities, delay and expenses of litigation in court. (Seither & Cherry Co. v. Illinois Bank Building Corp. (1981), 95 Ill. App. 3d 191, 195, 419 N.E.2d 940.) It is well established that judicial review of an arbitrator’s award is intended to be more limited than appellate review of a trial court’s decision. (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 394, 574 N.E.2d 636.) As the Supreme Court stated in Burchell v. Marsh (1855), 58 U.S. 344,15 L. Ed. 96:

“Arbitrators are judges chosen by the parties to decide the matters submitted to them, finally and without appeal. As a mode of settling disputes it should receive every encouragement from courts of equity. If the award is within the submission, and contains the honest decision of the arbitrators, after a full and fair hearing of the parties, a court of equity will not set it aside for error either in law or fact. A contrary course would be a substitution of the judgment of the Chancellor in place of the judges chosen by the parties, and would make an award the commencement, not the end, of litigation.” (Burchell, 58 U.S. at 349,15 L. Ed. at 99.)

Thus, whenever possible, a court must construe an award so as to uphold its validity. Garver v. Ferguson (1979), 76 Ill. 2d 1, 10, 389 N.E.2d 1181.

In determining whether grounds exist to vacate an arbitration award, judicial review generally extends only to those areas expressly stated by statute. (Konicki v. Oak Brook Racquet Club, Inc. (1982), 110 Ill. App. 3d 217, 223, 441 N.E.2d 1333.) Section 12(a) of the Illinois Uniform Arbitration Act provides:

“(a) Upon application of a party, the court shall vacate an award where:
(1) The award was procured by corruption, fraud or other undue means;
(2) There was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party;
(3) The arbitrators exceeded their powers;
(4) The arbitrators refused to postpone the hearing upon sufficient cause being shown therefor or refused to hear evidence material to the controversy or otherwise so conducted the hearing, contrary to the provisions of Section 5[], as to prejudice substantially the rights of a party; or
(5) There was no arbitration agreement and the issue was not adversely determined in proceedings under Section 2 and the party did not participate in the arbitration hearing without raising the objection; but the fact that the relief was such that it could not or would not be granted by the circuit court is not ground for vacating or refusing to confirm the award.” (Ill. Rev. Stat. 1989, ch. 10, par. 112(a).)

Case law has established that in addition to the grounds stated above, an arbitration award may be vacated if it results in the contravention of a paramount consideration of public policy (American Federation of State, County & Municipal Employees v. State of Illinois (1988), 124 Ill. 2d 246, 260, 529 N.E.2d 534), where a gross error of law or fact appears on the face of the award (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 393, 574 N.E.2d 636), or where the award fails to dispose of all matters properly submitted to the arbitrators (Harris v. Allied American Insurance Co. (1987), 152 Ill. App. 3d 88, 90, 504 N.E.2d 151).

Emery contends that the arbitration award was properly vacated because several of the grounds listed above were established. First, Emery maintains that the award of a mechanic’s lien solely against Emery violated section 28 of the Mechanics’ Liens Act, which requires that actions of subcontractors against an owner must be brought against the owner and contractor jointly and that all judgments must be against both the owner and contractor jointly. (Ill. Rev. Stat. 1989, ch. 82, par. 28.) Thus, Emery contends that the arbitrator’s failure to award a mechanic’s lien jointly against Emery and Anchor constituted a gross mistake of law appearing on the face of the award.

It is well settled that an arbitration award will not be vacated on the ground that the arbitrators misinterpreted the applicable law. (Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 1006, 378 N.E.2d 558.) The Uniform Arbitration Act does not expressly recognize any remedy for an arbitrator’s misapplication of law. (Ill. Rev. Stat. 1989, ch. 10, par. 101 et seq.; Freeport, 61 Ill. App. 3d 999, 378 N.E.2d 558.) This is because the arbitrators, by the choice of the parties, become the judges of both the law and the facts. (White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 602, 77 N.E. 327.) In White Star, the supreme court made the following response to the contention that an arbitration award should be vacated because of a mistake of law:

“[T]he position of appellant now is that the parties only intended to be bound by the decision of the arbitrators provided their decision sustained its, or his, contention as to what the law was. If that is so, then the controversy was no nearer a settlement after the award than before. Either party finding his views of the law not sustained by the award could go into court and have it set aside or have the court determine his legal rights. If such a position is tenable, then *** the award was the commencement, and not the end, of litigation. *** The case was to be decided according to law, but the arbitrators, in the absence of an expressed intention to the contrary, were to be their own judges as to what the law was, otherwise the parties would have provided that the case should be subject to review by the courts or that the legal questions should be referred to some other tribunal for final determination.” White Star, 220 Ill. at 605-06, 77 N.E. at 337.

It is true, as Emery asserts, that ease law has recognized that an arbitration award may be vacated because of a gross mistake of law or fact which appears on the face of the award. (Rauh v. Rockport Products Corp. (1991), 143 Ill. 2d 377, 393, 574 N.E .2d 636.) The courts should be careful, however, to “avoid a wrong use of the word ‘mistake.’ ” (White Star, 220 Ill. at 602, 77 N.E. at 336.) As stated in Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 477, 427 N.E .2d 1199, 1202, “[o]nly where it appears on the face of the award (and not in the arbitrator’s opinion) that the arbitrator was so mistaken as to the law that, if apprised of the mistake, the award would be different may a court review the legal reasoning used to reach the decision.” Thus, many courts have treated this judicially created addition to the statutory grounds for vacating an award as “severely limited.” Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999,1006, 378 N.E .2d 558, 564.

In the case at bar, the alleged gross mistake of law was the arbitrators’ failure to award the mechanic’s lien jointly against Emery and Anchor. Emery does not, however, argue in what way it has been affected by this mistake. Even accepting Emery’s contention that a mistake of law appeared on the face of the award, we do not believe that a mistake which does not affect Emery may be characterized as a “gross” mistake sufficient to provide grounds for vacating the award. In Stearns v. Cope (1884), 109 Ill. 340, 345, the supreme court stated that “[i]t is a rule of law, as well as of common sense, that a party will not be heard to complain of an error that works him no injury. *** This principle applies with the same force to arbitrations that it does to proceedings in courts of justice.” As stated above, the concept of mistake as a basis for vacating an arbitration award has a very limited application. We do not believe that it provided a basis for vacating the award here.

Emery next contends that the arbitration award was properly vacated because it did not dispose of the entire dispute between the parties. Case law provides that an arbitration award may be vacated where it does not dispose of all matters properly submitted to the arbitrators for their consideration and ruling. (Harris v. Allied American Insurance Co. (1987), 152 Ill. App. 3d 88, 90, 504 N.E.2d 151.) Emery argues that the arbitrators failed to resolve Edward’s contract claim against Anchor as well as Emery’s cross-claim against Anchor. Emery also argues that the arbitrators’ failure to render a mechanic’s lien jointly against Anchor and Emery left Edward’s mechanic’s lien claim against Anchor unresolved.

The arbitration award provided in paragraph 5 that it was in full settlement of all claims and counterclaims submitted to the arbitration. There is a presumption that the arbitrators considered and fully determined all matters submitted to them. (Stearns v. Cope (1884), 109 Ill. 340, 348-49.) Where, as here, the controversy contains interrelated claims and cross-claims for money damages, it is not necessary for the award to show how each item of the parties’ respective demands was resolved. (Stearns, 109 Ill. 340.) Rather, “[t]he awarding of a gross sum of money in such case will be presumed to be a complete adjustment of all matters of difference.” Stearns, 109 Ill. at 348.

We believe that these principles of law are dispositive of Emery’s contention. The presumption exists that the arbitrators considered all of the claims raised by each of the parties in determining their award. There is no requirement, either in the law or in the parties’ arbitration agreement, that the award had to set out specific findings on each separate claim.

Emery next contends that the award was properly vacated under section 12(a)(4) of the Illinois Uniform Arbitration Act, which states that an award may be vacated upon a showing that the arbitration hearing was conducted contrary to the provisions of section 5 of the Act. Section 5 provides, in pertinent part, that “[t]he parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.” Section 5 also provides that “[t]he hearing shall be conducted by all the arbitrators.” Ill. Rev. Stat. 1989, ch. 10, pars. 112(a)(4), 105(b), (c).

Emery makes two specific arguments to support its contention that the arbitration hearing was conducted contrary to the provisions of section 5. First, it argues that the arbitrators allowed the introduction of significant evidence by way of affidavit and therefore denied Emery its right of cross-examination. Emery cites no authority to support this argument. As pointed out by Edward, the construction industry rules, which the parties agreed would apply to this arbitration, provide for both the introduction of evidence by affidavit and the subpoena of witnesses upon the request of any party. Furthermore, section 5 provides that the right to cross-examine extends to “witnesses appearing at the hearing.” We are not persuaded that the arbitrators’ allowance of the affidavit constituted a violation of section 5.

Emery’s second argument with respect to section 5 concerns the manner in which its request for reconsideration and clarification of the award was handled. The request called for detailed findings and information as to how the arbitrators calculated the award. Emery maintains that the denial of its request was the decision of a single arbitrator rather than the decision of the majority and that the arbitrator who denied the request asked the AAA administrator not to even forward Emery’s request to him or the other arbitrators. Anchor and Edward respond that there is nothing in the record to indicate that the contents of Emery’s request were not communicated to the arbitrators and that, in any event, the specific findings requested by Emery are not required in an arbitration award.

As we have stated above, judicial review of an arbitration proceeding is severely limited in scope. Section 5 of the Act provides only that the arbitration hearing shall be conducted by all the arbitrators and that the parties are entitled to be heard. (Ill. Rev. Stat. 1989, ch. 10, par. 105.) The parties have not directed us to any specific rule concerning the manner in which requests for reconsideration and clarification are to be handled by the arbitrators, and they disagree on the proper interpretation of the facts appearing in the record. We do not believe that it is appropriate for this court to conduct the type of invasive review of the facts suggested by Emery.

Emery next contends that the award was properly vacated pursuant to section 12(a)(2) of the Act, which states that an award may be vacated where “[t]here was evident partiality by an arbitrator appointed as a neutral or corruption in any one of the arbitrators or misconduct prejudicing the rights of any party.” (Ill. Rev. Stat. 1989, ch. 10, par. 112(aX2).) Emery maintains that the following facts show partiality by the arbitrators: one arbitrator spoke briefly in Danish to one of the witnesses for Anchor; questioning by the arbitrators demonstrated a periodic tendency to challenge the efforts of counsel and witnesses of Emery; the arbitrators ignored the requirements of mechanic’s lien law; Emery’s clarification request was denied without proper consideration; and the arbitration panel did not include a lawyer.

To vacate an award based on partiality, it is necessary to show a direct, definite and demonstrable interest, on the part of the arbitrator, in the outcome of the arbitration. (Saville International, Inc. v. Galanti Group, Inc. (1982), 107 Ill. App. 3d 799, 800, 438 N.E.2d 509; Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 1003, 378 N.E.2d 558.) The proof of partiality may not be remote, uncertain or speculative. (Saville, 107 Ill. App. 3d 799, 438 N.E.2d 509.) In White Star Mining Co. v. Hultberg (1906), 220 Ill. 578, 602-03, 77 N.E. 327, 336, the court, quoting Lord Thurlow in Knox v. Symonds, 1 Ves. Jr. 369, cautioned against treating the arbitrators “ ‘as guilty of corrupt partiality merely because their award is not such an one as the chancellor would have given.’ ” The court noted that “ ‘[w]e are all too prone, perhaps, to impute either weakness of intellect or corrupt motives to those who differ with us in opinion.’ ”

In the case at bar, none of the allegations of partiality purport to demonstrate an interest by any of the arbitrators in the outcome of the arbitration. None suggest a relationship between any of the arbitrators and Emery’s adversaries in the arbitration. Emery raised no objection to the fact that one of the arbitrators spoke a few words of Danish to a witness for Anchor. Also, although Emery raises the absence of a lawyer on the panel as a ground for vacating the award, there is no suggestion that the panel was selected in contravention of the parties’ agreement or the rules of the AAA. In our view, the allegations of partiality are insubstantial and constitute no more than an attempt by Emery to overturn an unfavorable award. We therefore cannot conclude that the award was properly vacated based on the alleged partiality of the arbitrators.

In an argument related to the issue of partiality, Emery maintains that the amount of the award was so excessive as to indicate that it was procured through fraud or other undue means, in violation of section 12(a)(1) of the Act. The case law is clear that the award of excessive or insufficient damages is not enough in itself to raise a presumption of fraud, corruption or undue means on the part of the arbitrators. (Tri-City Jewish Center v. Blass Riddick Chilcote (1987), 159 Ill. App. 3d 436, 440, 512 N.E.2d 363.) The size of the award is insufficient to establish evident partiality without specific allegations of bias against the arbitrators. (Tri-City, 159 Ill. App. 3d 436, 512 N.E.2d 263.) Where an award is challenged as invalid, the challenger has the burden of proving his contention by clear, strong and convincing evidence. (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 1052-53, 392 N.E.2d 198.) As stated above, we find no merit to Emery’s allegations of partiality on the part of the arbitrators. Thus, the argument that the amount of the award was excessive is insufficient to support a finding that the award was procured by fraud or undue means.

Emery next maintains that the arbitrators exceeded their powers, thus providing grounds for vacating the award under section 12(aX3) of the Act. Specifically, Emery argues that the arbitrators exceeded the arbitration agreement by considering Edward’s claim for labor and materials in connection with the installation of the ULD handling system. Emery maintains that the arbitration agreement limited arbitration to those claims which Edward raised in the trial court and that Edward’s first amended complaint did not refer to the ULD handling system.

If the arbitrators decide a question clearly not submitted to them, then they have exceeded their authority and the award may be vacated. (Wilcox Co. v. Bouramas (1979), 73 Ill. App. 3d 1046, 1050-51, 392 N.E.2d 198.) However, in the absence of an express reservation, the parties are presumed to agree that everything, both as to law and fact, which is necessary to the ultimate decision, is included in the authority of the arbitrators. (Wilcox, 73 Ill. App. 3d 1046, 392 N.E.2d 198.) Also, it is presumed that the arbitrators did not exceed their authority. Wilcox, 73 Ill. App. 3d 1046, 392 N.E.2d 198.

In the case at bar, the arbitration agreement stated that Emery, Anchor and Edward agreed to binding arbitration of all controversies, claims and disputes “arising out of or relating to the parties’ involvement in the construction and installation of a ULD Handling System and a Package Handling System” at Emery’s facility. The agreement then stated that the extent of Edward’s claims in arbitration would be “the same claims that Edward has raised against Anchor and Emery in court.” In its first amended complaint, Edward requested a mechanic’s lien in the amount of $119,633.50 based on labor and materials furnished in installing a “package to sortation system.” Edward’s arbitration claim requested a mechanic’s lien in the amount of $119,633.50 for labor and materials furnished in connection with the installation of “a package handling system and ULD handling system.” Although Edward’s court claim did not specifically refer to the ULD handling system, it appears clear from the relief requested that Edward was suing for all labor and materials furnished on the project. Thus, we are not persuaded that Edward was attempting to add a new claim in arbitration. Furthermore, the arbitration agreement specifically provided that claims concerning the ULD handling system were to be included in the arbitration. It is our view that the arbitrators acted within their authority in deciding Edward’s claim against Emery.

Emery then argues that the arbitrators exceeded their authority in awarding Edward punitive damages. Edward responds that the punitive damages claim was raised in its first amended complaint and was therefore properly within the scope of the arbitration. The parties agreed that the issue of whether an arbitrator may award punitive damages has not been previously considered in Illinois.

The jurisdictions which have considered the issue appear to fall into three categories. The first category, led by the Federal courts, espouses the view that arbitrators are empowered to award punitive damages unless the arbitration agreement states otherwise. (Raytheon Co. v. Automated Business Systems, Inc. (1st Cir. 1989), 882 F.2d 6; Regina Construction Corp. v. Envirmech Contracting Corp. (1989), 82 Md. App. 662, 565 A.2d 693.) These courts reason that the power to award punitive damages is essential to the arbitrators’ ability to award complete relief. As stated in Raytheon, “the fact that the parties agreed to resolve their dispute through an expedited and less formal procedure does not mean that they should be required to surrender a legitimate claim to damages.” Raytheon, 882 F.2d at 12.

A second group of jurisdictions takes the view that the awarding of punitive damages is a sanction reserved to the State and that arbitrators do not have the power to award punitive damages regardless of the parties’ agreement. (Garrity v. Lyle Stuart, Inc. (1976), 40 N.Y.2d 354, 386 N.Y.S.2d 831, 353 N.E.2d 793; United States Fidelity & Guaranty Co. v. DeFluiter (Ind. App. 1983), 456 N.E.2d 429.) As stated in Garrity, “[s]ince enforcement of an award of punitive damages as a purely private remedy would violate public policy, an arbitrator’s award which imposes punitive damages, even though agreed upon by the parties, should be vacated.” Garrity, 40 N.Y.2d at 357, 386 N.Y.S.2d at 833, 353 N.E.2d at 795.

A third group of courts has adopted the position that punitive damages may be awarded by an arbitrator only where there is an express provision authorizing such relief in the arbitration agreement or pursuant to a stipulated submission. (Complete Interiors, Inc. v. Behan (Fla. App. 1990), 558 So. 2d 48.) The court in Complete Interiors noted that contracting parties do not normally agree to assess punitive damages for a breach of contract and that because such damages are rare in contract law, “an arbitrator’s assessment of punitive damages must be grounded in express language.” Complete Interiors, 558 So. 2d at 51.

We believe that the third approach accommodates the arbitrators’ need to provide complete relief while minimizing the dangers attendant to allowing private parties to impose punitive damages. Although Illinois has not addressed the question of whether punitive damages are recoverable in arbitration, Illinois case law has clearly established that punitive damages are not favored and must be closely scrutinized. (Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, 188, 384 N.E.2d 353. ) Arbitrators, however, are given much freedom in fashioning an appropriate remedy (Garrity v. Lyle Stuart, Inc. (1976), 40 N.Y.2d 354, 359, 386 N.Y.S.2d 831, 834, 353 N.E.2d 793), and a mistake of law is generally not sufficient cause for vacating an award. (Freeport Construction Co. v. Star Forge, Inc. (1978), 61 Ill. App. 3d 999, 1006, 378 N.E.2d 558.) As stated in Garrity:

“ ‘The trouble with an arbitration admitting a power to grant unlimited damages by way of punishment is that if the court treated such an award in the way arbitration awards are usually treated, and followed the award to the letter, it would amount to an unlimited draft upon judicial power. In the usual case, the court stops only to inquire if the award is authorized by the contract; is complete and final on its face; and if the proceeding was fairly conducted.
*** If the usual rules were followed there would be no effective judicial supervision over punitive awards in arbitration.’ ” Garrity, 40 N.Y.2d at 358-59, 386 N.Y.S.2d at 834, 353 N.E.2d at 796, quoting Publishers’ Association v. Newspaper & Mail Deliverers’ Union (1952), 280 App. Div. 500, 503, 114 N.Y.S.2d 401, 404.

Although we recognize the dangers of allowing arbitrators to award punitive damages, we are not unmindful of the need for arbitrators to have the power to award full and complete relief if arbitration is to serve as an effective substitute for litigation. We therefore conclude that punitive damages may be awarded in arbitration, but only where the parties have expressly agreed to the arbitrators’ authority to award punitive damages.

In the case at bar, the arbitration agreement does not expressly provide the arbitrators with the authority to award punitive damages. The basis for the award was Edward’s request for punitive damages in count V of its arbitration claim. We do not believe that this was sufficient to satisfy the requirement of an express agreement between the parties that punitive damages were within the authority of the arbitrators. Therefore, we vacate the award of $150,000 in punitive damages contained in paragraph 3 of the arbitration award.

Emery argues that arbitration awards are not severable and that vacation of the punitive damages award requires that the entire award be vacated. We do not agree. Where parts of an award are not in any manner dependent on one another, the award is severable and sustainable in part. (Stearns v. Cope (1884), 109 Ill. 340, 345-46.) The punitive damages award here is not dependent upon any other part of the award and may therefore be vacated without affecting the remainder of the award.

Edward and Anchor contend that they are entitled to statutory prejudgment interest on the amount of the award from May 3, 1990, the date it was entered.

Interest is properly allowed on arbitration awards as well as on judgments. (Wrobel v. Argiris (1979), 73 Ill. App. 3d 648, 649, 392 N.E.2d 681.) The relevant statute provides in pertinent part:

“When judgment is entered upon any award *** interest shall be computed at the above rate [9% per annum], from the time when made or rendered to the time of entering judgment upon the same, and included in the judgment.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1303.)

In Robinson v. Robinson (1986), 140 Ill. App. 3d 610, 611, 488 N.E.2d 1349, this court stated that an award of interest on a money judgment requires that: (1) the amount of money to be paid was certain and (2) the judgment debtor enjoyed the improper use of the money during the period for which the interest is to be awarded. We believe that these two requirements were met in the instant cause. We therefore remand the cause to the trial court with directions to grant Anchor and Edward interest on the amount of the award, excluding the punitive damages award, at the statutory rate.

Finally, Anchor requests costs in connection with its original application to confirm the award as well as for the subsequent proceedings. Section 14 of the Illinois Uniform Arbitration Act provides that “[c]osts of the application [to confirm the award] and of the proceedings subsequent thereto *** may be awarded by the court as to the court seems just.” (Ill. Rev. Stat. 1985, ch. 10, par. 114.) Anchor has not cited any case law to support its contention that it is entitled to costs. Given the fact that Emery was successful to the extent of having the punitive damages award vacated, we believe it is just that each party pay its own costs.

Accordingly, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

JOHNSON and McMORROW, JJ., concur.

      Edward subsequently amended the mechanic’s lien to include Anchor as a defendant.

      Section 5 provides, in pertinent part, that “[t]he parties are entitled to be heard, to present evidence material to the controversy and to cross-examine witnesses appearing at the hearing.” Section 5 also provides that “[t]he hearing shall be conducted by all the arbitrators.” Ill. Rev. Stat. 1989, ch. 10, pars. 105(b), (c).


author: JUSTICE MURRAY

text:
      In re MARRIAGE OF ROBERT I. OLSEN, Petitioner-Appellant, and DENISE L. OLSEN, Respondent-Appellee.
    First District (5th Division)
    No. 1—91—2400
    Opinion filed May 8, 1992.

      Howard Bernstein, of Bernstein & Rochell, Ltd., of Buffalo Grove, for appellant.
    Joseph A. Durkin, of Palatine, for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Robert I. Olsen (Mr. Olsen) appeals from a circuit court order dated April 24, 1991, and the order denying his motion to reconsider, contending that the trial court incorrectly interpreted certain provisions of the marital settlement agreement contained within his judgment of dissolution of marriage.

The facts are as follows.

On March 23, 1988, Mr. Olsen petitioned the circuit court of Cook County to have his marriage to Denise L. Olsen (Mrs. Olsen) dissolved. The cause was uncontested and a judgment of dissolution of marriage was entered on April 6, 1988. Incorporated into the judgment was a detailed “Marital Settlement Agreement,” which was signed by both parties and which addressed, among other things, the custody, support and maintenance of the parties’ two children.

The agreement provided that each of the parties would be awarded the custody of one of their two children and that Mr. Olsen would pay Mrs. Olsen $495 per month in support for the child in her custody. This amount was based upon the fact that at the time of the decree Mr. Olsen’s net income was $625 per week and Mrs. Olsen’s net income was $300 per week. In addition to the set amount of $495, the agreement further provided in paragraph 2.2 that:

“Husband shall also pay to Wife a sum equal to 20% of any bonus he receives so long as Wife retains custody of [child] and until [child] reaches 18 years of age.”

The agreement also contained other provisions pertaining to the handling of income tax returns and the division of property and real estate.

In February 1990 Mrs. Olsen filed a petition with the court asking that Mr. Olsen be directed to show cause why he should not be held in contempt for failure to comply with certain provisions of the marital agreement. Specifically, Mrs. Olsen requested (1) that Mr. Olsen pay her 20% of his 1988 and 1989 bonuses, (2) an increase in child support, (3) reimbursement for extraordinary medical expenses in the amount of $450, and (4) automatic withholding of child support from Mr. Olsen’s wages. Mr. Olsen did not appear at a hearing held March 1, 1990, and an ex parte order was entered on that date granting Mrs. Olsen’s petition.

On March 23, 1990, Mr. Olsen filed a motion to have the ex parte order vacated. In addition, Mr. Olsen petitioned the court for a reduction of his child support obligation based upon the fact that he had become unemployed. He also requested reimbursement of $1,592 from Mrs. Olsen for income taxes due for the 1986 tax year.

A hearing was held on October 31, 1990, at which time the court agreed to vacate the March 1, 1990, ex parte order. In addition it was agreed that two of the issues in Mrs. Olsen’s petition, i.e., the request for an increase in child support and for automatic withholding, had been mooted by Mr. Olsen’s loss of employment. The court dismissed these issues without prejudice, granted Mrs. Olsen $250 for extraordinary medical expenses and continued all other issues until December 4,1990. An order to this effect was issued on November 1, 1990.

At the December 4, 1990, hearing both parties testified and Mrs. Olsen presented a certified public accountant (CPA) as a witness. Subsequently, both parties filed written memoranda with the court, and on January 25, 1991, the court issued its findings, which were then incorporated into a written order dated April 24, 1991. In this order the court: (1) found that payments made by Mr. Olsen from “funds received by him as dividends” were voluntary payments and not to be credited to amounts due under the judgment of dissolution, (2) found that the judgment of dissolution required Mr. Olsen to pay 20% of the gross of the bonuses he received between August 1988 and February 1990, (3) granted a reduction in child support from $495 to $240 effective March 1990, and (4) denied Mr. Olsen’s petition for reimbursement from Mrs. Olsen for 1986 tax liability.

Mr. Olsen filed a motion for reconsideration, which was denied by the court. He now brings this appeal, raising four issues: (1) whether the trial court erred by finding that certain overpayments he made should not be credited toward his child support obligation, (2) whether the trial court erred by interpreting the marital agreement as requiring him to pay 20% of the gross of his bonuses, as opposed to 20% of his net bonuses, (3) whether the trial court abused its discretion by ordering him to pay $240 per month child support while he was unemployed, and (4) whether the trial court erred by refusing to require Mrs. Olsen to contribute 50% of the tax liability for the 1986 tax year.

We shall consider the first two issues raised by Mr. Olsen together because they are related to one another. Initially we note that Illinois courts have adopted the general rule that no credit shall be given for any voluntary overpayment of child support, even if the overpayment was made because the party was under the mistaken belief that the payment was legally required. (Harner v. Harner (1982), 105 Ill. App. 3d 430, 434 N.E.2d 465.) The rationale for this rule is that such a credit would be tantamount to allowing one party to unilaterally modify the divorce decree and could result in a future deprivation. (Harner, 105 Ill. App. 3d at 433.) Exceptions to the general rule have been recognized, but only where equity demands and the credit would not work a hardship, such as where the parties entered into a separate agreement whereby the party entitled to support agrees to allow the party providing the support to pay certain necessary expenditures in lieu of the support allotment and where the father has been in substantial compliance with the spirit and intent of the divorce decree. (See Farmer v. Farmer (1978), 147 Ga. App. 387, 249 S.E.2d 106.) There is also an exception for involuntary overpayment where the overpayment results from a court-ordered wage reduction.

Although Mr. Olsen agrees with the general rule, he claims that equity demands an exception to the rule in this case. We tend to agree.

The whole controversy arose when Mrs. Olsen contended that Mr. Olsen had failed to pay “20% of any bonus” he received in 1988 and 1989, as required by the provision contained within paragraph 2.2 of the marital agreement quoted above. By virtue of this claim, the provision became the subject of much debate. To understand this controversy, a bit of background information is helpful.

Mr. Olsen had been employed as a construction supervisor for a company owned by his father-in-law. As salary he received a base pay plus “bonuses,” which were based upon the company’s earnings. Additionally, Mr. Olsen owned 3% stock in the company, from which he derived “dividends” (later referred to as S corporation earnings). According to the parties’ testimony, until Mrs. Olsen’s petition was filed, both Mr. and Mrs. Olsen had been interpreting the “20% of any bonus” provision to mean that Mr. Olsen was to pay Mrs. Olsen 20% of the net amounts he received as his “bonuses” as well as his “dividends.”

At the October hearing, Mr. Olsen’s counsel asserted that in 1988 Mr. Olsen received three “bonuses” totaling $14,288 and “dividends” totaling $8,258 and that Mr. Olsen had paid to Mrs. Olsen 20% of the net of these amounts. He claimed that Mr. Olsen determined the amount he must pay to Mrs. Olsen by computing the net amount of his bonus and/or dividend, arrived at by taking the actual or gross amount and subtracting 28% (Mr. Olsen’s tax bracket). He then paid Mrs. Olsen 20% of the resulting amount.

At the same hearing, Mrs. Olsen’s counsel informed the court that the dispute was over the calculation of the 20% of the bonuses and dividends. Counsel stated that Mrs. Olsen wanted the court to determine the “actual” tax deductions that were made on the bonuses and dividends, as opposed to the “theoretical” 28% tax deduction, and then take 20% of that figure. Counsel did not contend that the gross amount should be used. In fact, counsel presented a CPA as a witness to testify to the computations for determining the “actual” deductions that were made to the bonuses and dividends. The CPA began, but did not complete, his testimony regarding this matter, and the hearing was continued until December 4,1990.

On December 4, 1990, the hearing opened with Mr. Olsen’s testimony regarding his petition. He asserted that he had been forced from his employment by his father-in-law and was now unemployed and unable to meet his support obligations. He testified as to his income and expenses from the date of his unemployment in March 1990. He also testified concerning the additional taxes he had paid on the 1986 tax return, for which he was requesting reimbursement from his wife. However, he did not testify regarding the bonuses and dividends he received or the amounts actually paid to Mrs. Olsen during 1988 and 1989.

Following Mr. Olsen’s testimony, the CPA testified that Mr. Olsen’s tax returns revealed the following:

Bonus Dividend
(1099 income) (S corporation) Total 20% of Total
1988 $14,300 $10,693 $24,993 $4,996
1989 $ 8,258 $ 2,476 $10,734 $2,147

The CPA did not present any testimony regarding the “actual” tax deductions made, as Mrs. Olsen had previously indicated he would do. Nor did he indicate the amounts paid by Mr. Olsen during the period in question.

Lastly, Mrs. Olsen testified. She indicated that her petition requested a clarification of the provision regarding bonuses and that, although Mr. Olsen had paid her 20% of most bonuses he received, her dispute was over the amount she received. She also claimed that there had been one bonus of $3,600 that Mr. Olsen received in December 1989 for which she did not receive any payment. Other than the one $3,600 bonus, however, she admitted that she had received payments from Mr. Olsen whenever he received a bonus or S corporation earnings. She could not state what specific amount she was requesting from Mr. Olsen or why she felt the amounts she had received from Mr. Olsen had been incorrect.

Mrs. Olsen also denied owing Mr. Olsen any reimbursement for the 1986 tax liability, claiming that the IRS had deducted $472 from a refund check for a subsequent tax year and that Mr. Olsen had deducted $1,000 from one of his 20% child support payments made to her.

Neither party presented the court with an accounting of the support payments Mr. Olsen had made to Mrs. Olsen during 1988 and 1989. Instead, both parties submitted memoranda to the court in January 1991. In Mrs. Olsen’s memorandum she indicated the following figures:

BONUSES

Date Amount Amount paid to Mrs. Olsen

August 1988 $4,500 $666

December 1988 $5,000 $740

February 1989 $4,800 $691

August 1989 $4,000 $576

December 1989 $3,600 -0-

DIVIDENDS

Date Amount Amount paid to Mrs. Olsen

April 1989 $11,048.71 $384

Mrs. Olsen argued in the memorandum that the term “bonus” in the marital settlement agreement included the S corporation dividends and that Mr. Olsen should be estopped by his previous actions to deny that these dividends were part of the equation in determining his support payment pursuant to the “bonus” provision. Mrs. Olsen then went on to state that the total amount she was claiming in child support was $896.31, computed as follows:

(1) $184.91 as her portion of the 20% of Mr. Olsen’s net dividend from April 1989. This figure was arrived at using the following equation:

$11,048.71 x 29% = $7,844.59 x 20% = $1,568.91 - $384 (already paid by Mr. Olsen) - $1,000 (1986 tax liability deduction) = $184.91.

(2) $511.20 representing 20% of the net December 1989 bonus. This figure was arrived at using the following equation: $3,600 x 29% = $2,556 x 20% = $511.20.

Mrs. Olsen further argued in her memorandum that child support should not be reduced despite Mr. Olsen’s loss of employment because of assets he owned and that she did not owe Mr. Olsen any reimbursement for the 1986 tax liability, but, rather, he owed her a rebate of $304.30.

Mr. Olsen’s memorandum did not itemize the bonuses and dividends he had received in 1988 and 1989, nor did it itemize the amount of payments he made to Mrs. Olsen based upon the bonuses and dividends. Mr. Olsen merely contended that the term “bonus” did not include dividends and that any payments he had made in conjunction with his dividend payments should be tallied into the amount due for child support pursuant to the “20% of any bonus” provision. He agreed that any payments in excess should be deemed voluntary, and as such, nonrefundable.

The only figures presented by Mr. Olsen were as follows:

1988
$10,693 (Total Bonuses) x 29% (tax bracket) = $7,592 (Net Bonuses) x 20% = $1,518.40 (Amount due to Mrs. Olsen) $2,448.64 (Amount paid) = OVERPAYMENT OF $930.24
1989
$8,258 (Total Bonuses) x 29% (tax bracket) = $5,863.18 (Net Bonuses) x 20% = $1,172.64 (Amount due to Mrs. Olsen) $1,651 (Amount paid) = OVERPAYMENT OF $478.36.

As can be seen, what at first would appear to be a rather simple matter is in actuality very complicated and confusing. The trial court’s ruling further muddied the water. The trial court determined that “dividends” were not part of the “bonus” referred to in paragraph 2.2 of the marital agreement, but that any payments Mr. Olsen had made from funds received as dividends would not be credited to the amounts due pursuant to the “20% of any bonus” provision of the settlement agreement. Then the court went on to find, for no apparent reason and contrary to both parties’ assertions in their memoranda, that the term “bonus” meant gross bonus, as opposed to net bonus. The court also found, without explaining how it arrived at its figures, that the bonuses received by Mr. Olsen between August 1988 and February 1990 totaled $25,500, that 20% of that amount equalled $5,100 and that Mr. Olsen had paid $3,191. Therefore, the court found that Mr. Olsen owed Mrs. Olsen $1,745.

We agree that the 20% provision in the marital agreement did not require Mr. Olsen to pay 20% of the dividends he received. Another provision of the marital agreement made the stock from which Mr. Olsen derived the dividends his sole possession. However, we see no reason why the child support payments made from funds derived from these dividends should not be credited to him when determining the amounts due, if any, pursuant to the “20% of any bonus” provision.

This is an unusual situation, not directly within the parameters of the general rule. It is obvious that the parties mutually misunderstood the marital agreement provision and that Mr. Olsen paid, in good faith, child support from both his bonuses and dividends, believing that he was required to do so by the 20% provision. Nevertheless, when Mrs. Olsen claimed that she did not receive the correct amounts in connection with the 20% provision and the court was asked to interpret the provision to determine whether a deficit existed, Mr. Olsen discovered his error. Under these circumstances, it would seem that all the money Mr. Olsen paid in connection with the 20% provision should have been considered, regardless of the source of the funds.

We believe our decision to credit Mr. Olsen with these payments is equitable. Mrs. Olsen asked the court to determine whether she had received less than her rightful share of child support in 1988 and 1989 pursuant to the 20% provision. Mr. Olsen showed that not only had he complied with the provision, but that he paid far in excess of the amount required. Mr. Olsen did not ask for overpayments to be refunded to him or applied toward the fixed amount of support he owed each month. Because the overpayment is only being applied to the amounts owed under the 20% provision for 1988 and 1989 and no future deprivation or hardship would accrue to either Mrs. Olsen or the child to be supported, the amounts paid from dividends should be included when determining whether a deficit existed in Mr. Olsen’s child support payments pursuant to the 20% provision for the years of 1988 and 1989.

Finally, we see no reason to find that Mr. Olsen must be estopped by his previous behavior to deny that the dividends were not part of the provision. Although Mr. Olsen mistakenly believed that he was required to pay 20% of his dividends, once the 20% provision became contested he realized his mistake and never conceded that dividends were included in the term “bonus.” This is what differentiates the next issue.

The next issue is whether the trial court erred when it found that “a sum equal to 20% of any bonus” meant 20% of the gross amount of his bonus and not 20% of the net amount of the bonus.

The terms of a marital agreement are to be interpreted like any other contract. (In re Marriage of Kloster (1984), 127 Ill. App. 3d 583, 469 N.E.2d 381.) If the terms of the contract are clear and unambiguous, the court shall construe the agreement as written. (Ricke v. Ricke (1980), 83 Ill. App. 3d 1115, 405 N.E.2d 351.) If the agreement is unclear or ambiguous, however, the court must construe the document to give effect to the intention of the parties, ascertained by an examination of the facts and circumstances surrounding the formation of the agreement. Ricke, 83 Ill. App. 3d at 1118.

In this case, although there does not appear to be an ambiguity in the terminology, Mrs. Olsen conceded that the provision required 20% of the net amount of any bonus received by Mr. Olsen. In her memorandum to the court she asked for her 20% share of certain bonuses and calculated the amount due using the net figure. For this reason we believe that the court was remiss in finding that the provision called for 20% of the gross amount of any bonus.

Although this court would have been happy to have made the necessary computations, taking into account our findings above and disposed of the case without the need to remand to the trial court, we are unable to do so because the record lacks sufficient information. Despite the fact that Mr. Olsen conceded that the amount of bonuses he received in 1988 totaled $14,300, his memorandum states that the total bonuses for 1988 amounted to $10,693. Also, even though the CPA Mrs. Olsen presented as an “expert witness” at the hearing testified regarding Mr. Olsen’s bonuses and dividends for 1988 and 1989, she, inexplicably, included figures for 1990 in her memorandum. Furthermore, if one tallies the figures Mrs. Olsen presented to the court in her memorandum regarding Mr. Olsen’s bonuses and dividends for 1988 and 1989, they do not add up to the amounts testified to by her own expert witness. More importantly, both parties disagree as to the amount that Mr. Olsen paid in conjunction with the 20% provision. No matter how this court adds the figures listed by both parties, we are unable to find a number common to both parties’ evidence. The trial court determined an amount that represented Mr. Olsen’s payments, but did not explain how it arrived at its figure. Therefore, regrettably, we must remand to the trial court so that it may determine the net amount of bonuses Mr. Olsen received in 1988 and 1989, compute 20% of the figure and then determine the amount of payments made by Mr. Olsen during that time period and deduct them from the amount owed to discover whether any deficit exists.

Next, despite the fact that the trial court changed the terms of the marital settlement agreement in Mr. Olsen’s favor, reducing his support obligation from $495 to $240 per month, Mr. Olsen charges in his third issue that the trial court failed to consider the provisions of Illinois law in setting his support payments during his period of unemployment.

Motions for the modification of judgments awarding child support are governed by section 510(a) of the Hlinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)). According to this section of the Act, a modification may only be had upon the showing of a “substantial change” in circumstances. The determination of the proper amount of support lies in the sound discretion of the trial court and its decision will not be overturned unless it is against the manifest weight of the evidence, thereby indicating an abuse of discretion. (In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641.) Guidelines for determining the minimum amount of support have been set forth in section 505(aXl) and suggest that, for one child, 20% of the supporting party’s net income is appropriate. Deviation from these guidelines may be had upon the consideration of relevant factors and the factors to be considered in a modification proceeding are the same factors which may be considered when formulating an original support award. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) These factors include: (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 needs of the noncustodial parent or parents. Ill. Rev. Stat. 1987, ch. 40, par. 505(aX2).

In the present case the court indicated that it had considered the relevant factors and, in doing so, determined that Mr. Olsen’s support obligation should be reduced by more than half, from $495 to $240 per month. Although Mr. Olsen protests that this support award is not appropriate, he does not suggest what amount would be appropriate. He apparently feels that because he became unemployed his support obligation should be completely abrogated. However, the trial court found that although Mr. Olsen had no income from employment, he had other resources, i.e., unemployment benefits in the amount of $520 every two weeks, income from the sale of stock and the equity in his home, which warranted a reduced support award of $240 per month. We do not find that the trial court abused its discretion in so finding.

We realize that Mr. Olsen complains that the trial court could not have considered all of the relevant factors because they were not before the court. However, Mr. Olsen apparently forgets that it was he who petitioned the court for a modification and, therefore, the onus was on him to bring before the court the facts concerning the change in circumstances that would warrant the reduction in support. Therefore, by the omission of evidence on the other factors listed in section 505 of the Act, the court could assume that these factors had not changed. It was then free to consider only the evidence before it concerning the changed circumstances when determining whether it was necessary to fashion a new support award. The trial court did this and determined that Mr. Olsen had the means to continue to provide a modest support contribution for the child in Mrs. Olsen’s custody. We do not feel that this decision was against the manifest weight of the evidence. Consequently, from the date that Mr. Olsen was unemployed until he obtained new employment, his support obligation should be reduced to $240 per month.

As an aside, we note that it was revealed in oral argument that Mr. Olsen did accept new employment and that the child who had been in Mrs. Olsen’s custody and for whom support was being paid by Mr. Olsen is currently residing with Mr. Olsen. An agreed order to this effect was apparently issued by the court below in July 1991, although it is not part of this appellate record and Mrs. Olsen’s appellate counsel seemed unaware of this fact. Consequently, principles of equity might be better served if the entire matter were remanded so that the trial court could consider the obligations of the parties in light of the facts as they exist at the present time.

The last issue involves Mrs. Olsen’s responsibility for the 1986 tax liability. Mr. Olsen contends that the trial court erred in not requiring Mrs. Olsen to pay 50% of the 1986 tax liability. However, this is not exactly what the trial court held. The trial court held that Mr. Olsen’s request for reimbursement for income tax liability prior to 1990 was denied, and it appears to this court that the trial court denied Mr. Olsen’s request for reimbursement based upon Mrs. Olsen’s testimony that the IRS had already deducted $472 from a tax refund check owed to her for a subsequent year and that Mr. Olsen had deducted $1,000 from support payments to her to cover the remainder of her liability for the 1986 taxes owed.

However, we note that on appeal, although Mr. Olsen concedes that Mrs. Olsen is entitled to credit for the $472 withheld by the IRS, he disputes that the $1,000 he withheld should be credited to her because the $1,000 came out of a 20% payment he would have made from funds received as dividends. Since the court found that he wasn’t required to pay any amount out of his dividends, he argues that Mrs. Olsen can’t take advantage of the fact that he withheld $1,000 from money she was not entitled to in the first place. The trial court did not resolve this matter or determine whether Mrs. Olsen had met her obligation under the provision.

Because this case must be remanded on other matters and because it is unclear what the actual tax liability for 1986 amounted to after a refund from the government for removal of the penalties, we remand to the trial court to determine the Olsens’ actual tax liability for the 1986 tax year, divide the liability equally and then determine the proper credits to which Mrs. Olsen is entitled. We are unable to determine, due to a lack of information, whether any part of the $1,000 withheld from Mrs. Olsen from support payments due from Mr. Olsen should be credited to the tax liability.

For all the reasons stated above, we remand this case to the trial court for further proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.

LORENZ and GORDON, JJ., concur.

      The memorandum also included figures on the amount of bonuses and dividends Mr. Olsen received in February 1990 and the payments he made to Mrs. Olsen in conjunction with them. Specifically, Mrs. Olsen represented that Mr. Olsen received $3,600 as a bonus and $2,613 as a dividend in February 1990 and he had given her $682 in connection with these monies received.
      Because 1990 was not included in Mrs. Olsen’s petition, Mr. Olsen did not address amounts received or paid in 1990 and the CPA did not testify regarding 1990 figures. Therefore, these amounts are not verifiable. We note, however, that Mr. Olsen sold his stock in March 1990 after he lost his employment with the company. Therefore, dividends are no longer an issue after this time.

      It is believed that this figure was used in error since Mr. Olsen testified at the hearing that his 1988 bonuses totaled $14,300 and the CPA verified this amount. It appears that the figure was confused with the amount of dividends received in 1988, which did total $10,693 according to the CPA’s testimony.