author: JUSTICE LaPORTA

text:
      In re MARRIAGE OF JOHN C. HOPPE, Petitioner-Appellee, and CHRISTINA L. HOPPE, Respondent-Appellant.
    First District (6th Division)
    No. 1—90—0669
    Opinion filed April 19, 1991.
    Rehearing denied June 27, 1991.

      Pretzel & Stouffer, Chartered, of Chicago (Ronald S. Ladden, Robert Marc Chemers, and Robert J. Franco, of counsel), for appellant.
    Jenner & Block, of Chicago (James H. Feldman and James D. Noseda, of counsel), for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This appeal arises from the denial of a request for relief from a final judgment pursuant to section 2—1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401).

Petitioner, J.C.H. (husband), sought a dissolution of marriage from respondent, C.L.H. (wife), and on March 8, 1988, the trial court entered a judgment for dissolution of the marriage which incorporated a property settlement agreement and a joint parenting agreement between the parties. The parties also simultaneously entered into a supplemental property settlement agreement which was not incorporated into the judgment. These agreements included a determination that the parties were to maintain joint custody of the two minor children, ages five and two at the time of the dissolution of the marriage, and provided for maintenance, child support, and distribution of the marital estate. The parties subsequently entered into a supplemental joint parenting agreement.

On October 20, 1989, wife sought to vacate the judgment under section 2 — 1401, asserting that she had agreed to the terms of the marital settlement agreements under duress and that the terms of those agreements were unconscionable. Husband filed a motion to dismiss the section 2 — 1401 petition which was granted by the trial court. Wife appeals the trial court’s dismissal of her motion to vacate the judgment.

The record reveals that husband, a citizen of the United States, and wife, a subject of the United Kingdom, were married in England on April 12, 1983. The parties had two children during the marriage, Thomas William, born July 14, 1983, and Julia Catherine, born April 19, 1986. The parties separated on April 15, 1987, when husband removed himself from the marital residence. On April 24, 1987, husband commenced an action for dissolution of the marriage, alleging as grounds extreme and repeated mental cruelty by wife. The trial court appointed counsel for the minor children, and both husband and wife were represented by counsel. The parties exchanged at least eight drafts of proposed settlement agreements before the judgment for dissolution was finally entered.

On March 8, 1988, the parties appeared before the trial court and presented a property settlement agreement, a joint parenting agreement, and a supplemental property settlement agreement, all three of which were dated March 7, 1988. The parties agreed to an amendment of the petition to assert irreconcilable differences as grounds for dissolution of the marriage and requested that the court dissolve the marriage and approve the joint parenting and property settlement agreements instanter.

At the hearing, husband, a licensed attorney, testified that he understood and voluntarily agreed to the terms of the property settlement, supplemental property settlement, and joint parenting agreements before the court. Husband also testified that he intended that wife and the children be allowed to spend some time with her family in England, and he understood that such arrangements would impose upon some of his parenting time with the minor children. He stated further that he understood that it was wife’s intention to reside in Illinois, and that this was the “major basis” for the settlement.

Husband also testified that at the time of the hearing, the marital estate consisted of assets totalling approximately $200,000 and liabilities totalling approximately $68,000. He stated farther that his net income, exclusive of bonus, amounted to $7,344 per month and that he earned an annual net bonus of $14,000 to $16,500. Husband also testified that he was obligated to pay child support from a prior marriage in the amount of $900 per month and that he had assumed the marital debts totalling $68,000, requiring a monthly debt service of approximately $625.

Wife, who had been trained as a paralegal, testified that she understood the terms of the property settlement and joint parenting agreements and that she voluntarily agreed to them. She also stated, however, that she agreed to those terms because they were in the best interests of the children and stated that the terms of these agreements were not in her best interests.

The parties agreed that the supplemental property settlement agreement was not to be attached to or incorporated in the judgment and would be enforceable only as a contract. At the conclusion of the hearing, the trial court entered an order dissolving the marriage of the parties and approved all of the agreements of the parties, finding them to be fair and equitable. The judgment for dissolution incorporated only the property settlement and joint parenting agreements, but not the supplemental property settlement agreement, in accordance with the intentions of the parties.

The property settlement agreement provided, inter alia, that husband was obligated to pay unallocated maintenance and child support in the sum of $2,500 per month through and including the month of February 1991, in addition to the sum of $2,000 in both 1989 and 1990, payable by January 31 of each year. After February 1991, husband was obligated to pay child support in the sum of $1,400 per month, and the payment of maintenance ceased.

Husband was also obligated to pay wife an additional $20,000 as maintenance, of which $10,000 was payable upon dissolution of the marriage, $5,000 payable by May 10, 1988, and $5,000 payable by August 1, 1988. The record indicates, however, that wife turned over this entire amount to her counsel in partial payment of his fees, and husband admitted in his affidavit in support of his motion to dismiss the section 2 — 1401 petition that this $20,000 payment was actually intended as a payment of wife’s attorney fees.

The property settlement agreement also stated that all of the payments made by husband were to be included in wife’s gross income reported to the Internal Revenue Service and were tax deductible by husband. Wife was entitled to claim the dependency exemptions for the minor children on her Federal and State income tax returns for the 1988 tax year, but husband was entitled to claim the dependency exemptions for each year after 1988.

Under the property settlement agreement, each of the parties was required to contribute to the reasonable expenses incident to the college educations of the children.

Husband was obligated to maintain insurance policies on his life in the minimum amount of $150,000 designating each of the minor children as beneficiary of $75,000 until the child reaches 19 years of age or becomes enrolled in college. After each child’s enrollment in college, husband was obligated to maintain life insurance in the amount of $50,000 for the first two years, and in the amount of $20,000 for the last two years, of each child’s college attendance, but not beyond a child’s attainment of age 23.

Wife was obligated to execute and keep in effect estate planning documents which provided that, upon her death, the net proceeds from the sale of residential property purchased by wife within 120 days of the effective date of the agreement be distributed to an educational trust for the benefit of the minor children. Wife was further obligated to preserve the net proceeds as an asset of her estate in the event the residence was sold.

The agreement provided further that husband was to assign to wife his right, title and interest in the 1984 Honda Civic station wagon, and wife was to assign to husband her right, title and interest in the 1985 Honda Prelude. Wife was entitled to retain the furniture and furnishings of the marital home; her bank accounts; and her personal property. Husband was entitled to retain his personal property; his Kraft Thrift Plan, valued at $2,300; individual retirement accounts, valued at $2,000; other bank accounts with deposits of less than $3,000; and various other investments, valued at less than $10,000 in the aggregate.

Each of the parties was responsible for the payment of his or her own attorney fees.

The property settlement agreement also provided that of the $140,000 held in escrow as proceeds from the sale of the marital home, $3,000 was to be paid as attorney fees to counsel appointed for the minor children, and $8,000 was to be paid directly to husband, leaving a balance of $129,000. Wife was to receive 75% of the balance of that account ($96,750), and husband was to receive the remaining 25% ($32,250) in addition to the $8,000 cash payment indicated above.

The supplemental property settlement agreement, dated the same day as the property settlement agreement, included terms which were at variance with certain of the terms in the original agreement. The supplemental agreement altered the distribution of the balance of the escrow account ($129,000). In lieu of the provisions contained in the original property settlement agreement, husband was to receive 40% ($51,600), of which $25,000 was to be paid to wife as a loan if she purchased a home within the Chicago metropolitan area within 120 days of the date of the agreement.

Wife was to receive 60% ($77,400), including a cash payment of $8,000 paid directly to her. If wife purchased a home within the Chicago metropolitan area within 120 days, the remaining balance ($69,400) was to be distributed as follows:

(i) an amount equal to 10% of the purchase price of the residence, but not to exceed $16,650, was payable to the seller of the residence to be delivered at the time of the signing of the contract, and the remaining balance of the account was payable to the seller of the residence to be delivered at the time of closing on the purchase;
(ii) the remaining $25,000 of husband’s 40% share was payable to the seller of the residence to be delivered at the time of closing on the purchase and represented a loan from the husband to the wife which was secured by a second mortgage on the residence, and the second mortgage held by husband was to be recorded no sooner than 90 days after title was issued to the wife.

Wife agreed to indemnify and hold husband harmless from any liability he may incur on any contract to purchase a residence he may execute with her.

The loan by husband to wife was to be repaid within eight years, but was due and payable earlier upon the wife’s remarriage or cohabitation with another person; sale or rental of the residence; discontinuance of the residence as wife’s principal residence; or wife’s removal of either of the minor children from the State of Illinois.

If wife continued to use the residence as her principal residence for four years from the date of the husband’s loan, the principal amount of the loan was to be reduced by one-third of the original amount. If wife ceased to use the residence as her primary residence and removed or was granted leave by a court to remove either of the minor children from the State of Illinois within eight years from the date of the loan, then wife was obligated to pay interest on the original amount of the loan at the rate of interest payable on the loan secured by wife’s first mortgage on the residence.

If wife failed to complete the purchase of a home within 120 days from the date of the agreement, the undistributed balance remaining in the escrow account was to be disbursed as follows:

(i) wife was to receive an amount equal to 50% of the sum of
(a) the undistributed balance, and
(b) the amount previously distributed to husband and wife under paragraph 5(a) ($8,000 to wife, and 40%, less $25,000, to husband), and
(c) the amount of any distribution on or after the signing of the contract for the purchase of the residence, less
(1) the amount previously distributed to wife under paragraph 5(a) ($8,000), and
(2) the amount of any distribution on the signing of the contract for the purchase of the residence;
(ii) husband was to receive the remaining undistributed balance in the account.

The joint parenting agreement, dated the same day as the original and supplemental property settlement agreements, provided that the parties were to maintain joint custody of the two minor children. Under that agreement, husband had physical custody of Thomas on three nights each week and for a portion of each Saturday. Husband had physical custody of Julia on two nights each week and for a portion of each Saturday until Julia attained the age of two, at which time husband’s custody of Julia would be the same as that with Thomas. Wife had physical custody of the children during the weekdays, on the remaining week nights, and for a portion of each Saturday and Sunday.

In addition to the custody schedule set forth above, husband was to have custody of the children in all odd-numbered years for one week during the Christmas holidays; for one week at Easter; for two weeks in the summer; on the husband’s birthday; on Father’s Day; and for one-half of each child’s birthday. The parties agreed to alternate custody of the children on other holidays. The agreement provided further that if parenting time did not occur, compensatory parenting time was to be arranged.

Following the dissolution of the marriage, wife purchased a home in accordance with the terms of the supplemental property settlement agreement, and the terms of the joint parenting agreement remained in effect until December 1988.

In November 1988, a dispute arose between the parties over the allocation and scheduling of holiday parenting time. On November 18, 1988, wife advised husband that she intended to take the children to England to visit her family from December 8, 1988, to January 12, 1989. Husband objected to these plans, and on December 2, 1988, husband filed a motion requesting the court to determine the holiday parenting schedule.

The hearing on the motion commenced on December 6, 1988. After hearing only wife’s testimony, the court adjourned and continued the hearing to December 14, 1988, and stated that wife was prohibited from leaving the country with the children until an agreement settling the dispute had been reached, or the hearing was continued to its conclusion.

On December 8, 1988, counsel for both parties appeared before the trial court on an emergency motion by wife requesting an order allowing her to leave for England with the children. Wife’s attorney represented to the court that an agreement had been reached but had been stalled by husband’s demand for attorney fees. Counsel for husband denied that an agreement had been reached and persisted in the demand for attorney fees. Finding that the parties had not entered into a final, integrated agreement, the trial court entered an order barring wife from taking the children to England. Wife had, however, already left for England when this order was entered.

On December 14, 1988, counsel for both parties appeared before the court and presented a supplemental joint parenting agreement. The supplemental agreement provided that wife was to return the children to Illinois on December 28, 1988; wife agreed to pay husband’s attorney fees relative to the petitions in the amount of $1,500; husband was to have custody of both children, including overnights, from December 28, 1988, at 7 p.m. through January 4, 1989, at 12 noon; and husband’s regular parenting schedule was expanded to include custody of both children each Friday from 5:30 p.m. through Sunday at 9 a.m., and at 2 p.m. on alternate Sundays; and each Tuesday from 5:30 p.m. through Wednesday at 9 a.m., plus an additional two weeks in the summer.

The supplemental agreement provided further that wife agreed to forego a payment from husband in the amount of $813.55 as costs for psychological examinations, and she agreed to pay husband $86.45. Wife also agreed not to apply for British passports for the two minor children and acknowledged that Illinois was the habitual residence of the minor children.

On January 4, 1989, wife filed a pro se motion to vacate the December 14, 1988, order. In her motion, wife alleged that her attorneys had been scheduled to have an agreed order entered on December 8, 1988, which would have allowed her to leave for England that day. She also asserted that her attorneys had assured her that it would be all right for her to leave as scheduled and that when she left the country she believed that the agreed order had been entered. Wife alleged further that she executed the supplemental parenting agreement under duress in order to avoid being held in contempt of court and the prospect of immediately returning to Chicago.

Wife also asserted in her pro se motion that she did not receive sufficient funds from husband to adequately provide for her needs and the needs of the minor children and that the financial penalties imposed by the supplemental agreement would cause extreme hardship to herself and to the children. Attached as an exhibit to her pro se motion was a schedule of wife’s monthly income and expenditures and a listing of her other outstanding debts. These schedules reflected that wife received $2,500 in unallocated maintenance and child support, that her monthly expenses totalled $2,500, including a mortgage payment of $928, and that she had outstanding debts of approximately $14,000, in addition to her regular monthly living expenses.

On October 20, 1989, wife, represented by new counsel, filed a petition to vacate the judgment for dissolution of marriage pursuant to section 2—1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401). Her section 2—1401 petition sought relief from the judgment for dissolution, which incorporated the original property settlement and joint parenting agreements, and from the supplemental property settlement and supplemental joint parenting agreements, alleging that these agreements were unconscionable. The petition was supported by wife’s affidavit in which she asserted, in relevant part, that she had entered into these agreements under duress and not of her own free will.

Wife’s affidavit also alleged factual matters to demonstrate in what manner husband exercised duress and coercion over wife during the course of the dissolution proceedings and negotiation of these agreements, including elimination of wife’s credit card privileges; repeated threats to sue for custody of the two minor children; refusal to make mortgage, utility, or car payments; refusal to provide support for wife or the minor children, and the making of a false promise to allow wife and the minor children to permanently reside in the United Kingdom.

' On December 15, 1989, husband filed a motion to dismiss under section 2—615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), asserting that the petition was legally insufficient. Husband simultaneously filed a motion to dismiss under section 2—619 (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), contending that the settlement agreements were not unconscionable and were not entered into under fraud, duress, or coercion. In support of his motion to dismiss, husband filed an affidavit in which he did not contradict or controvert the factual assertions in wife’s affidavit supporting her section 2 — 1401 petition. Rather, husband’s affidavit set forth many of the terms of the settlement agreements and alleged that they were fair to both parties and could not be considered unconscionable.

Wife’s petition for section 2 — 1401 relief and husband’s motion to strike and dismiss were called for hearing on February 14, 1990. After hearing argument by counsel for both parties, the trial court granted husband’s motion and dismissed the section 2 — 1401 petition, finding that wife had not presented sufficient facts to establish that the agreements were unconscionable and that she had not shown due diligence.

Wife has appealed the trial court’s dismissal of her section 2— 1401 petition to vacate the judgment.

Section 2—1401 of the Code of Civil Procedure provides a comprehensive statutory procedure by which final orders, judgments, and decrees may be vacated after 30 days from the entry thereof. (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401(a).) The purpose of a petition under section 2 — 1401 is to bring before the court matters of fact which were unknown at the time the judgment was entered, and if known, would have affected or altered the judgment that was entered. In re Marriage of Klebs (1990), 196 Ill. App. 3d 472, 479, 554 N.E.2d 298, 303; In re Marriage of Tzoumas (1989), 187 Ill. App. 3d 723, 728-29, 543 N.E.2d 1093, 1096; Manning v. Meier (1983), 114 Ill. App. 3d 835, 837-38, 449 N.E.2d 560, 562.

To be entitled to relief under section 2—1401, the party seeking relief must show by a preponderance of the evidence that (1) a meritorious claim or defense exists; (2) the petitioner exercised due diligence in discovering the defense or claim in the original action; (3) despite such diligence and through no fault on the part of petitioner, the error of fact or valid claim or defense was not made apparent to the trial court at the time of the original action; and (4) petitioner exercised due diligence in the section 2—1401 petition. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220-21, 499 N.E.2d 1381, 1386; Marriage of Klebs, 196 Ill. App. 3d at 480, 554 N.E.2d at 303; In re Marriage of Duffey (1988), 168 Ill. App. 3d 1086, 1089, 523 N.E.2d 371, 373.) In determining the reasonableness of the excuse offered by the petitioner, all of the circumstances attendant upon the entry of the judgment must be considered, including the conduct of the litigants and their attorneys. Airoom, 114 Ill. 2d at 222-23, 499 N.E.2d at 1387.

A section 2—1401 petition invokes the equitable powers of the court as justice and fairness require and should be considered in light of equitable principles. (Airoom, 114 Ill. 2d at 225, 499 N.E.2d at 1388; Manning, 114 Ill. App. 3d at 838, 449 N.E.2d at 562.) Whether a petition to vacate should be granted depends upon the facts and equities presented. (Beno v. DeBoer Asphalt Paving Co. (1983), 114 Ill. App. 3d 871, 874, 449 N.E.2d 1021, 1023.) Relief is granted under this section in order to achieve justice, and a liberal construction is used to achieve that end. Beno, 114 Ill. App. 3d at 874, 449 N.E.2d at 1023.

Although relief generally is not granted where the moving party or his counsel has been negligent, this requirement need not be strictly applied, and when justice and fairness require, a judgment may be vacated even though the requirement of due diligence has not been satisfied. Airoom, 114 Ill. 2d at 225, 499 N.E.2d at 1388; Manning, 114 Ill. App. 3d at 838, 449 N.E.2d at 562.

In her petition for section 2 — 1401 relief, wife alleged that she entered into the original and supplemental property settlement agreements under duress and coercion by husband. In her supporting affidavit, wife asserted factual matters to demonstrate in what manner husband exercised duress and coercion over wife, including elimination of wife’s credit card privileges; repeated threats to sue for custody of the two minor children; refusal to make mortgage, utility, or car payments; refusal to provide support for wife or the minor children, and the making of a false promise to allow wife and the minor children to permanently reside in the United Kingdom.

Wife’s affidavit alleged further that after the separation and prior to entry of the judgment of dissolution, husband would on several occasions offer her a support check and then make various demands of wife. When wife refused to accede to those demands, husband would withdraw the support check and leave the house without giving wife any money. As a result of husband’s refusal to provide support for wife and the minor children, wife was often compelled to depend on the beneficence of friends for money for food and, on other occasions, was required to sell jewelry in order to acquire money to buy food for herself and her children.

Husband brought a motion to dismiss under section 2—615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—615), asserting that the petition was legally insufficient. When a party files such a motion challenging a petition for relief under section 2 — 1401, the motion admits all well-pled facts and attacks only the legal sufficiency of the petition. (Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 279-80, 433 N.E.2d 253, 256-57; Elfman v. Evanston Bus Co. (1963), 27 Ill. 2d 609, 610, 190 N.E.2d 348, 349; Manning, 114 Ill. App. 3d at 839, 449 N.E.2d at 563.) Thus, husband’s motion to dismiss admitted the well-pled allegations in wife’s petition.

In addition, we note that husband also filed a motion to dismiss under section 2—619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—619), alleging that the settlement agree-merits were not unconscionable and were not entered into under fraud, duress, or coercion. Husband presented reasons for these allegations in his motion and filed an affidavit in support of the motion. This motion and affidavit, in effect, opposed wife’s section 2 — 1401 petition on its merits and were in the nature of a motion for summary judgment.

Like a motion brought under section 2—615, a motion to dismiss under section 2—619 admits all well-pled facts. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 545, 370 N.E.2d 223, 225.) Where a motion to dismiss is made pursuant to section 2— 619 on grounds not appearing on the face of the pleading attacked, the motion must be supported by affidavit. (Premier Electric Construction Co. v. La Salle National Bank (1983), 115 Ill. App. 3d 638, 643, 450 N.E.2d 1360, 1363.) Thus, when a party responds to a section 2—1401 petition on the merits, he must raise arguments challenging the relief sought and must file an affidavit opposing the factual assertions made by the petitioner. (See generally Airoom, 114 Ill. 2d at 218-20, 499 N.E.2d at 1385; Ostendorf, 89 Ill. 2d at 280, 433 N.E.2d at 256; Elfman, 27 Ill. 2d at 611, 190 N.E.2d at 349; Campbell v. Kaczmarek (1976), 39 Ill. App. 3d 465, 468, 350 N.E.2d 97, 100.) In the instant case, husband did not contradict the wife’s factual assertions either in his affidavit or in his motion to dismiss but, instead, challenged the legal conclusions of unconscionability.

Examination of the original and supplemental property settlement agreements, both dated March 7, 1988, reveals that wife received substantially less under the supplemental agreement, but the record does not reveal the consideration given in exchange for the concessions made by wife.

Under the original agreement, wife was to receive outright $96,750, 75% of the $129,000 held in escrow as proceeds from the sale of the marital home. This amount represents approximately one-half of the value of the assets in the marital estate ($200,000) at the time the marriage was dissolved.

Under the supplemental agreement, wife received $77,400. Of that amount, $8,000 was paid directly to her, and $69,400 was paid to the seller of the home she desired to purchase. Wife received an additional $25,000 as a loan from husband which was secured by a second mortgage in favor of husband and was recorded against the title to the property. Thus, of the $129,000 held in the escrow account, wife received $77,400, plus a loan and second mortgage held by husband in the amount of $25,000 which she was required to repay to husband.

Under the original agreement, husband was to receive $32,250. Under the supplemental agreement, husband received $51,600, including a loan to wife in the amount of $25,000.

Consequently, under the terms of the supplemental agreement, wife’s distribution was diminished by $19,350, and husband’s distribution was increased by a like amount. The record does not reflect the reason for the departure from the original agreement.

Although husband assumed all of the marital debt ($68,000), the evidence established that his net monthly income was $7,610 to $7,819. Wife’s monthly income amounted to the $2,500 she received in unallocated maintenance and child support. Thus, husband was in a much better position to repay the debt accumulated during the course of the marriage. Moreover, this provision was included in the original property settlement agreement and does not explain why wife’s position was dramatically worsened and husband’s position was dramatically improved by the supplemental agreement.

It has consistently been held that section 2—1401 relief is appropriate where a settlement agreement is unconscionable or was entered into because of duress, coercion, or fraud. (See In re Marriage of Reines (1989), 184 Ill. App. 3d 392, 540 N.E.2d 394; Ebersole v. Ebersole (1988), 171 Ill. App. 3d 632, 525 N.E.2d 1211; In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005; In re Marriage of Lorenzi (1980), 84 Ill. App. 3d 427, 405 N.E.2d 507; Zieske v. Zieske (1976), 41 Ill. App. 3d 746, 354 N.E.2d 513.) A motion to dismiss should not be granted unless it clearly appears that no set of facts could ever be proved that would entitle the petitioner to recover. Ostendorf 89 Ill. 2d at 280, 433 N.E.2d at 256.

Wife’s motion to vacate was filed well within the two-year period mandated by the statute. Assuming, as we must, that the wellpled allegations in wife’s section 2 — 1401 petition are admitted by husband, we believe that these assertions were properly raised in a section 2 — 1401 petition and, if proved, would provide support for her claim that settlement agreements were unconscionable and were entered into under fraud, duress, or coercion. Because it does not clearly appear that wife could never have proved any set of facts that would entitle her to relief, the trial court should have denied husband’s motion to dismiss and should have granted wife an evidentiary hearing on her motion for section 2 — 1401 relief.

We next address wife’s contention that the maintenance and child support provisions were inadequate and unconscionable.

Under the property settlement agreement, husband was obligated to pay wife unallocated maintenance and child support in the sum of $2,500 per month through and including the month of February 1991, in addition to the sum of $2,000 in 1989 and in 1990, payable by January 31 of each year. After February 1991, husband was obligated to pay child support in the sum of $1,400 per month, and the payment of maintenance ceased.

Husband was also obligated to pay wife an additional $20,000 ($10,000 payable upon dissolution of the marriage, $5,000 payable by May 10, 1988, and $5,000 payable by August 1, 1988) as “maintenance.” Wife’s section 2 — 1401 petition challenges whether this payment can be construed as a payment of maintenance, and the record reveals that wife turned over this entire amount to her counsel in partial payment of his fees and that husband admitted that this $20,000 payment was actually a payment of wife’s attorney fees. We believe on remand, the trial court should carefully consider whether this payment cannot be construed as a payment of maintenance.

Section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that the minimum amount of support for two children equals 25% of the supporting party’s net income. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) The Act defines “net income” as the total of all income from all sources, minus Federal and State income tax, social security payments, mandatory retirement contributions, union dues, health and hospital insurance premiums, prior obligations of support or maintenance, expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, and reasonable expenditures for the benefit of the child and the other parent, exclusive of gifts. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3).

The evidence established that husband earned a net income of $7,344 per month (excluding his annual net bonus of $14,000 to $16,500) and was obligated to pay $900 per month in child support from a prior marriage. Thus, husband’s monthly net income, exclusive of bonus, totaled $6,444. If the value of husband’s annual net bonus is spread over a 12-month period and added to his other earnings, his monthly net income totaled $7,610 to $7,819. Under section 505 of the Act, husband was obligated to pay a minimum of 25% of his net income ($1,902 to $1,954) to support the two minor children.

For the first three years following the dissolution of the marriage, husband was obligated to pay $2,500 per month in unallocated maintenance and child support. Although this amount represents a combined figure of his obligations to his children and former spouse, husband was still bound to meet the minimum amount of child support set forth in the statute. Consequently, we must construe the combined figure to represent $1,902 to $1,954 in child support, and the remainder, $546 to $598, to represent maintenance.

Section 504 of the Act provides that maintenance shall be awarded in such amount and for such periods of time as the court deems just upon consideration of all relevant factors, including (1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently; (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 the physical and emotional condition of both parties; (6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and (7) the tax consequences of the property division upon the respective economic circumstances of the parties. Ill. Rev. Stat. 1989, ch. 40, par. 504(b).

In the instant case, the record reveals that husband is a licensed attorney with net earnings of $7,610 to $7,819 per month. Wife is trained as a paralegal, but because she has been responsible for the care of the two minor children, she has not been employed outside the home. Excluding the lump sum payment of $2,000 in 1989 and 1990, wife receives $2,500 per month in unallocated maintenance and child support through February 1991, and after that time will receive only $1,400 per month in child support, well below the statutory minimum of 25% of husband’s net monthly income ($1,902 to $1,954).

The parties were married for four years and lived in Evanston, Illinois, in a home which sold for $392,000 in October 1987. Husband assumed all of the marital debts, approximately $68,000, and wife had outstanding debts of approximately $14,000, in addition to her monthly living expenses, mortgage and home improvement loan amounts.

Under the property settlement agreement, all of the payments made by husband were to be included in wife’s gross income reported to the Internal Revenue Service and were tax deductible by husband. Wife was entitled to claim the dependency exemptions for the minor children on her Federal and State income tax returns for the 1988 tax year, but husband was entitled to claim the dependency exemptions for each year after 1988.

The well-pled allegations in wife’s motion to vacate must be taken as admitted. Considering the statutory factors within the context of the instant case, we find that wife’s allegations and the facts in the record raise sufficient questions to warrant a review of the maintenance and child support provisions. If proved, these allegations would support her claim that the maintenance and child support provisions were inadequate and unconscionable. Consequently, we believe that the trial court erred in granting husband’s motion to dismiss and should have conducted an evidentiary hearing on wife’s motion for section 2 — 1401 relief.

Finally, we consider wife’s claim that the supplemental joint parenting agreement unfairly favored husband and was unconscionable.

The supplemental joint parenting agreement modified the original joint parenting agreement which provided that husband had custody of both children each Monday from 5:30 p.m. through Tuesday at 8:30 a.m., each Thursday from 5:30 p.m. through Friday at 8:30 a.m., and each Saturday from 1 p.m. through Sunday at 9 a.m. The original joint parenting agreement also included a provision for “compensatory time” to be agreed upon in the event that either parent’s custody schedule could not be accommodated. The supplemental joint parenting agreement did not include a similar provision, and made no reference to the “compensatory time” provision in the original agreement.

Under the supplemental joint parenting agreement, husband’s regular parenting schedule was expanded to also include custody of both children each Friday from 5:30 p.m. through Sunday at 9 a.m., and at 2 p.m. on alternate Sundays; and each Tuesday from 5:30 p.m. through Wednesday at 9 a.m., plus an additional two weeks in the summer. In addition, husband received the right to have custody of both children, including overnights, from December 28, 1988, at 7 p.m. through January 4,1989, at 12 noon.

The record reflects that wife’s visit to England with the two minor children over the 1988 Christmas holidays deprived husband of only nine evenings with the children. No arrangement for nine evenings of compensatory time for husband was made as provided under the original joint parenting agreement. Rather, the parties entered into the supplemental joint parenting agreement which permanently altered the custody schedules of both parents. Under the terms of the supplemental joint parenting agreement, husband was granted custody of the children five nights each week, all day Saturday, and a portion of Sunday. Wife received custody on the remaining two weeknights, each weekday, and a portion of each Sunday. Husband also received the right to custody over four weeks during the summer. Thus, in exchange for nine evenings lost during December 1988, husband received custody of both children five nights each week, every Saturday, and a portion of each Sunday until the children reach the age of majority.

Wife asserted in her section 2 — 1401 petition and supporting affidavit that this agreement was entered into under duress. She alleged that her attorneys were scheduled to have an agreed order entered on December 8, 1988, which would allow her to leave for England that day, that her attorneys had assured her that it would be all right for her to leave as scheduled, and that when she left the country she believed that the agreed order had been entered.

At the hearing on December 8, 1988, wife’s attorney represented to the court that an agreement had been reached but had been stalled by husband’s demand for attorney fees. Yet, wife was required to pay husband’s attorney fees under the agreement ultimately entered on December 14, 1988. In order to avoid contempt and the prospect of immediately returning to Chicago, wife agreed to the terms of the supplemental joint parenting agreement.

Taking as admitted the well-pled allegations in wife’s section 2 — 1401 petition, we find that these assertions and the facts in the record sufficiently allege a basis for a rehearing. If proved, these assertions would provide support for "wife’s claim that the terms of the supplemental joint parenting agreement were unconscionable. Consequently, we believe that the trial court erred in granting husband’s motion to dismiss and should have conducted an evidentiary hearing on wife’s motion for section 2 — 1401 relief.

For the foregoing reasons, the order dismissing wife’s section 2— 1401 motion is reversed, and the cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

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


source: Caselaw Access Project

author: PRESIDING JUSTICE MANNING

license: Public Domain

text:
    MITCHELL ZADROZNY, Plaintiff-Appellant, v. CITY COLLEGES OF CHICAGO et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—3329
    Opinion filed September 23, 1991.

      John G. Cadwell, of Chicago, for appellant.
    Feiwell, Galper & Lasky, Ltd., of Chicago (Georgia A. Kolettis, of counsel), for appellees.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

This is an appeal by a teacher, Mitchell Zadrozny (Zadrozny or appellant), employed at Wright Junior College, one of the City Colleges of Chicago, from the trial court’s dismissal with prejudice of his two-count third amended complaint in which he sued the City Colleges of Chicago; the chancellor of the City Colleges of Chicago, Salvatore Botella (Botella or appellee); the president of Wright Junior College, Raymond LeFevour (LeFevour or appellee); and the vice-president of Wright Junior College, Nancy DeSombre (DeSombre or appellee). In count I of the third amended complaint, brought pursuant to a breach of implied contract theory, Zadrozny sought extra compensation from the appellees for time and effort he expended in allegedly replying to DeSombre’s request for information concerning his geography course in response to a complaint filed by a student who complained about Zadrozny’s teaching methods and abilities during the spring semester of 1987. In count II of the third amended complaint, brought pursuant to a breach of express contract theory, Zadrozny sought compensation from appellees for their alleged breach of duty in failing to hire him for a summer school teaching position in the summer of 1988.

On appeal, we must determine: (1) whether Zadrozny’s brief should be dismissed or stricken for failure to comply with Supreme Court Rules 341(e) and 342(a) (107 Ill. 2d Rules 341(e), 342(a)), which govern the requirements for briefs, and (2) whether Zadrozny’s two-count third amended complaint was properly dismissed with prejudice for failure to state a cause of action.

At the outset, we note that Zadrozny’s brief is not in conformity with Supreme Court Rule 341(e) or 342(a). The brief fails: to contain the enumerated Rule 341(e) sections in the proper order; to contain an argument section, designated as such; and to reference citations to the record in the statement of facts section and ostensible argument section. In addition, the introductory paragraph is improper; there is no separate issue statement; there is no statement of jurisdiction; and, in violation of Rule 342(a), there is no appendix or any part thereof. Zadrozny’s attorney has offered as excuses his lateness in entering this appeal in which he was required to file his brief without a complete record and that in responding to the appellees’ motion to dismiss the appeal, he filed an alternative request for leave to amend the brief, which was never ruled on by this court. The record before us contains the appellees’ motion to dismiss the appeal which has been taken with the case; however, we have not located any response thereto. Although we do not believe so severe a sanction as dismissal is warranted here, we find the explanations offered by Zadrozny’s substitute attorney to be unsatisfactory justifications for the omissions.

Adherence to Supreme Court Rules 341(e) and 342(a) is not an inconsequential matter. The purpose of the rules is to require parties to proceedings before a reviewing court to present clear and orderly arguments so that the court may properly ascertain and dispose of the issues involved. (47th & State Currency Exchange, Inc. v. B. Coleman Cory. (1977), 56 Ill. App. 3d 229, 232, 371 N.E.2d 294.) Where an appellant’s brief fails to comply with the rules, this court has inherent authority to dismiss the appeal for noncompliance with its rules. (Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 79, 508 N.E.2d 1201.) However, violation of the rules does not divest this court of jurisdiction, but rather is an admonishment to the parties. (Brown v. Brown (1978), 62 Ill. App. 3d 328, 332, 379 N.E.2d 634.) It is within our discretion to consider the merits of the appeal, which we do here, where the appellees’ brief is sufficient to apprise us of Zadrozny’s arguments (see Young v. City of Centreville (1988), 169 Ill. App. 3d 166, 169, 523 N.E.2d 621), where the facts necessary to understand the issue are simple (In re Marriage of Burke (1989), 185 Ill. App. 3d 253, 255, 541 N.E.2d 245) and in the interest of judicial economy. See McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157.

Accordingly, we deny the appellees’ motion to dismiss the appeal. The arguments contained in Zadrozny’s brief will be considered by this court to the extent they were properly presented, although his brief fails to comply with Supreme Court Rules 341(e) and 342(a).

The facts as they relate to count I follow. In 1987 and 1988, Zadrozny was employed as a social science teacher at Wright Junior College pursuant to a written three-year board-union agreement, 1986-1989 (hereafter Agreement). On or about February 28, 1987, a student of geography in Zadrozny’s class wrote a letter to DeSombre complaining about his teaching methods and abilities. The semester ended on May 9, 1987. On approximately May 5, 1987, DeSombre met with Zadrozny to discuss the student’s letter and requested from him copies of the course work outline, assignments and examinations used in the class in 1987. On May 12, 1987, DeSombre memorialized the oral request by writing a letter to Zadrozny and LeFevour regarding the matter.

Although Zadrozny partially complied with the request by providing the course outline assignments and two examinations, he refused to supply the other materials. Instead, during the next few months, Zadrozny responded with a series of letters either criticizing the administration or giving his explanation about the situation with the student. He also inquired if DeSombre’s request constituted an emergency situation. DeSombre responded that the situation was not an emergency; rather, it was a routine request in response to a written and signed complaint made by a student. LeFevour also replied that Zadrozny was not entitled to summer work compensation.

Finally, in August 1987, Zadrozny demanded that City Colleges pay him extra money for the time he spent during the summer of 1987 in responding to DeSombre’s emergency request for his geography course materials and in missing an annual summer trip abroad. Zadrozny then filed the original complaint on May 25, 1988.

The facts as they relate to count II are as follows. On January 28, 1988, Zadrozny completed a form distributed by City Colleges in which he indicated an interest in a 1988 summer school teaching position. The purpose of the form was to determine whether a teacher who was eligible to teach desired a summer school assignment. When Zadrozny was not assigned a 1988 summer school teaching position, he filed the original complaint alleging breach of contract.

The trial court dismissed Zadrozny’s original, first and second amended complaints pursuant to the appellees’ respective motions to dismiss. Thereafter, the appellees filed a section 2 — 615 motion to dismiss the third amended complaint alleging that Zadrozny failed to plead facts sufficient to state a cause of action for breach of an implied contract in count I and breach of an express contract in count II. (Ill. Rev. Stat. 1987, ch. 110, par. 2—615.) The trial court granted the section 2—615 motion to dismiss, expressly finding that after consideration of counts I and II of the third amended complaint in the light most favorable to Zadrozny, he could not possibly state a cause of action for breach of an implied contract and express contract, respectively.

The granting of a motion to dismiss is within the sound discretion of the trial court. (Harvey v. Mackay (1982), 109 Ill. App. 3d 582, 440 N.E.2d 1022.) The standard of review on appeal from the grant of a motion to strike or dismiss a complaint is whether, when viewed in the light most favorable to the plaintiff, the complaint alleged facts which sufficiently state all of the elements of the cause of action. (Kenworthy v. Young (1979), 70 Ill. App. 3d 144, 388 N.E.2d 217.) In determining the sufficiency of the counts of Zadrozny’s third amended complaint dismissed upon the allowance of a section 2—615 motion to dismiss, we must apply the rule that a cause of action should be dismissed on the pleadings only if it clearly appears that no set of facts can be proved which will entitle a plaintiff to recover. Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 505-06, 485 N.E.2d 372.

It is well settled that in determining whether the complaint is substantially insufficient in law, well-pleaded facts are admitted by a motion to dismiss. (Smith v. Chicago Housing Authority (1976), 36 Ill. App. 3d 967, 344 N.E.2d 536.) However, legal conclusions are not deemed admitted. Pratt v. Baker (1965), 65 Ill. App. 2d 389, 212 N.E.2d 503.

COUNTI

Zadrozny alleges that one of the duties of a teacher required availability to school administrators in an emergency situation. He further alleges that because he was available to respond to the emergency situation created by DeSombre’s requests, the appellees had a duty to compensate him, in addition to his regular salary, for such services rendered. In support of this proposition Zadrozny asserts that the terms of his employment included the mutual understanding of the traditions, customs and experiences in the field of education. However, he did not allege from what contract, if any, custom, tradition, or experience such duty arose.

An essential element for the formation of a contract is the manifestation of agreement or mutual assent by the parties to be bound. (Allen v. Amber Manor Apartments Partnership (1981), 95 Ill. App. 3d 541, 420 N.E.2d 440.) A person may not be subjected to contractual obligations unless the obligation is clearly fixed by an express or implied agreement. Cohen v. Washington Manufacturing Co. (1979), 80 Ill. App. 3d 1, 398 N.E.2d 1202.

An implied contract is created by law as a result of the parties’ acts. (Bull v. Mitchell (1983), 114 Ill. App. 3d 177, 186, 448 N.E.2d 1016.) Implied contracts are either considered implied in fact or implied in law. (Bartolo v. Skaggs Construction Co. (1975), 25 Ill. App. 3d 117, 323 N.E.2d 123 (abstract of opinion).) Contracts implied in fact arise from a promissory expression that is inferred from circumstantial evidence of an intent to be bound. (Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 775, 433 N.E.2d 315.) Contracts implied in law (quasi-contracts) arise notwithstanding the parties’ intentions, result from a duty imposed by law, and are contracts merely in the sense that they are created and governed by principles of equity. (Steinberg v. Chicago Medical School (1977), 69 Ill. 2d 320, 334, 371 N.E.2d 634.) No claim on a contract implied in law can be asserted if an express contract or a contract implied in fact exists between the parties and concerns the same subject matter. Heavey v. Ehret (1988), 166 Ill. App. 3d 347, 519 N.E.2d 996, quoting Board of Directors of Carriage Way Property Owners Association v. Western National Bank (1985), 139 Ill. App. 3d 542, 547, 487 N.E.2d 974.

In the present case, Zadrozny has failed to allege sufficient facts to support the existence of a promissory expression that the appellees agreed to provide compensation to him above his regular salary for responding to DeSombre’s requests, that DeSombre’s request constituted an emergency situation, or that the appellees had a duty to or would compensate him for such work completed in the event an emergency existed. In order to recover on an implied contract, the facts and circumstances must show that, at the time the services were rendered, one party expected to receive payment and the other party intended to make payment. Campion v. Tennes (1981), 93 Ill. App. 3d 597, 417 N.E.2d 748.

Moreover, under Illinois law, implied contracts will not coexist with express contracts on the same subject. (Patterson v. Carbondale Community High School District No. 165 (1986), 144 Ill. App. 3d 254, 494 N.E.2d 240.) Here, Zadrozny was subject to specific rules and regulations regarding the responsibilities of teachers. Part of the teachers’ duties included assisting the administration in activities necessary to bring the semester to a successful completion. Accordingly, we find that the trial court properly determined that count I of the third amended complaint is legally insufficient.

COUNT II

In count II, Zadrozny alleges that pursuant to the questionnaire form on which he indicated his desire to teach summer school and the Agreement, the appellees had a contractual duty to schedule him to teach a social science course during the summer of 1988 given his seniority within the department. However, the appellees assert that the form was advisory in nature rather than a contract; moreover, the Agreement concerned the scheduling of courses and assignments to regular academic programs during the academic year, not teaching positions in the summer.

After reviewing the third amended complaint and the exhibits attached thereto, we conclude that as in count I, Zadrozny has not sufficiently alleged facts to show that the appellees had a contractual duty, express or implied, to schedule him to teach a social science course in the summer of 1988. Article VIII of the Agreement states in relevant part that “[scheduling of courses and assignments to regular academic programs during the academic year shall be determined in the following order.” Article VIII discusses seniority and rotation as applied only to regular academic programs during the academic year and to extra work. Zadrozny fails to allege facts that his particular circumstances fall within either of these categories. Regular academic programs during the academic year do not encompass summer school programs since “academic year” is defined in article I of the Agreement as the fall and immediately following spring semester. Further, he fails to allege or point to any contractual reference or definition that a summer teaching program is considered extra work; neither does Zadrozny allege that the appellees deprived him of extra work. Accordingly, we find that since Zadrozny fails to state sufficient facts to support a cause of action for breach of contract on the basis that the appellees had a duty to create a summer teaching position for him in the summer of 1988 merely because they were advised of his desire and availability to fulfill such a position, the order of the trial court dismissing count II of the third amended complaint is affirmed.

Accordingly, after consideration of the well-pleaded facts alleged in the third amended complaint and its exhibits, in addition to all reasonable inferences to be drawn therefrom, when viewed in the light most favorable to the plaintiff, this court affirms the trial court’s dismissal with prejudice of the two-count complaint on the basis that no cause of action for breach of an implied contract or breach of an express contract can be stated.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDMOND WILLIAMS, Defendant-Appellant.
    First District (1st Division)
    No. 1—89—0609
    Opinion filed September 30, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Kathleen M. Pantle and John T. Kennedy, Assistant Public Defenders, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Michael Latz, and Daniel Rabinovitz, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Edmond Williams, was arrested on November 13, 1987, and charged by indictment with aggravated kidnapping, aggravated criminal sexual assault and attempted murder. Following a jury trial, defendant was found guilty of attempted murder (Ill. Rev. Stat. 1985, ch. 38, par. 8—4) and aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—2(a)(3)) and acquitted of the aggravated criminal sexual assault charge. Finding that the crime of attempted murder was accompanied by exceptionally brutal and heinous behavior, the trial court determined that defendant was eligible for an extended-term sentence and sentenced him to consecutive terms of 60 years’ and 15 years’ imprisonment for attempted murder and aggravated kidnapping, respectively.

On appeal, defendant contends: (1) that section 115—7.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115—7.1), which prohibits a court from ordering a sex victim to submit to a psychiatric or psychological examination, is unconstitutional on the ground that it violates the doctrine of separation of powers and equal protection; (2) that the trial court erred in denying his motion for a mistrial when the victim’s surprise testimony revealed statements allegedly made by the defendant that were not previously disclosed to the defense pursuant to Supreme Court Rule 412 (134 Ill. 2d R. 412); (3) that the State’s introduction into evidence of a photograph of a disassembled rifle, that was found at the scene of the crime but not used in the commission of the crime, prejudiced his right to a fair trial; (4) that prejudicial error resulted when a State witness commented about defendant’s alleged gang affiliation; and (5) that the trial court abused its discretion in imposing an extended-term sentence.

The evidence adduced at trial reveals that on November 13, 1987, at approximately 3 a.m., the complainant, R.J., left a dance club, and as she waited for a bus in the vicinity of Clark and Belmont, she was approached by defendant, who drove up in a jeep, pointed a gun in her face, and threatened to kill her if she did not enter the jeep. Defendant drove her around the northside of Chicago for about an hour before he parked the jeep, forced R.J. to lie flat on the floor in the back of the jeep and told her to pull down her pants. Defendant told R.J. that his name was “Ed,” that he was on a “mission from God,” that she would be his “sex slave” and that if she failed to cooperate, he’d “hit her in the head with this hammer.”

R.J. testified that after defendant raped her, he taped her hands together with transparent tape and made her kneel in the back of the jeep. While he drove around for another 45 minutes, defendant threatened to throw R.J. over a bridge and “to throw (her) in the river.” Defendant then stopped somewhere on the southside of Chicago where he forced R.J. at gunpoint inside an apartment building, made her lie on a mattress, tied her to a board and, for the second time, raped her. R.J. testified that afterwards, defendant stated that he would have to take her downstairs “to see Mr. C. so he can know what to do with me.” Defendant then directed R.J. down a set of stairs leading from the apartment to the outside of the building and brought her to the basement of the building next door to the apartment. When defendant unlocked the doors to the basement, he told R.J. “that he was going to have to kill her now” and pointed the gun at her. As R.J. began to run toward the entrance of the building, she heard two shots; one bullet entered her back and she fell to the ground. While she lay on the ground, R.J. saw defendant get in the jeep and leave.

R.J. further testified that defendant wore a brown rawhide jacket, plaid shirt, navy blue Adidas jogging pants and gym shoes. She got a good look at defendant’s face during the sexual assault in the apartment building and positively identified him from an array of photographs shown her at the hospital. On cross-examination, R.J. stated that she saw two guns during the crime: a black assault rifle which defendant used throughout the crime and a brown rifle which she saw in the apartment where defendant raped her. R.J. testified that at the time she did not think to tell the police about the second gun and she did not tell them that defendant said he was going to throw her in the river.

Officer John Valachovic testified at trial that upon arriving at the scene, he observed R.J. lying in the gangway and when he approached her, she repeated several times that “Ed shot me.” R.J. was taken to Jackson Park Hospital, where she underwent emergency surgery for several hours. The surgeon, Dr. Frank Apantaku, testified that the bullet passed through R.J.’s back and abdominal area, causing her to be paralyzed from the waist down. He further stated that immediately after surgery, R.J. seemed to be alert and coherent and that she seemed to understand what had happened to her. However, two or three days after the surgery, R.J. began to show signs of post-traumatic stress syndrome. He explained that post-traumatic stress syndrome sometimes occurs when a patient “who has been through some harrowing experiences would tend to react inappropriately sometimes to something that you and I may not consider threatening.”

Detective Patrick Sullivan testified that earlier in the day when he first spoke with R.J., she gave him a physical description of her attacker and told him that she had been shot by “Ed.” Later that evening at about 6 p.m. he went to the hospital and showed R.J. a photobook with about eight photographs of men. Although R.J. was unable to speak because of a breathing monitor that was in her throat, she was able to nod her head “yes” or “no.” When shown a picture of defendant, R.J. “reacted violently” and indicated positively that this was the person who had attacked her.

Sullivan stated that while at the hospital Officer Buckles gave him a set of keys that she found outside the apartment building. When Detective Sullivan went to the crime scene, he entered the second-floor apartment where he found transparent tape, some cord and photographs on the night stand. Sullivan also found a large padlock lying on the ground near the basement apartment and the keys that Officer Buckles had given him opened that lock. In an abandoned, burned-out apartment next to defendant’s apartment, about 10 feet down a common hallway, Sullivan recovered a loaded, cocked machine gun and a rifle. Over defendant’s objections, photographs of the weapons were admitted into evidence. The evidence also shows that on the night of November 13, while driving a blue Chevy Blazer with silver stripes, defendant was arrested near 46th Street and King Drive and taken to the police station, where he was read his Miranda rights and questioned by the police and assistant State’s Attorney.

In his defense, defendant called technician Jim Sanders, who testified that although he dusted the crime scene, he did not find a single fingerprint. On cross-examination, however, Sanders explained that it is very difficult to lift a fingerprint when a crime scene is very dusty. He stated: “They (the apartments) were dirty and dusty, which makes getting a print almost impossible.” Defendant then rested, and following convictions for attempted murder and aggravated kidnapping, he was found eligible for an extended term by the trial court and given consecutive sentences of 60 and 15 years, respectively.

Defendant first asserts that the trial court erred in denying his pretrial motion for a court-ordered psychiatric examination of R.J. and in refusing to declare section 115—7.1 unconstitutional. He asserts that the statute violates the separation of powers doctrine because the legislature has encroached upon the judicial powers of the court (People v. Jackson (1977), 69 Ill. 2d 252, 371 N.E.2d 602) since the propriety of mental and physical examinations of parties and victims historically has been the subject of the rulemaking authority of the court. (People ex rel. Noren v. Dempsey (1957), 10 Ill. 2d 288, 139 N.E.2d 780; People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.) Defendant also asserts that section 115—7.1 offends equal protection rights because it unreasonably classifies all defendants charged with sex offenses as enjoying less protection than defendants charged with other crimes and that here it infringed upon his right to confront witnesses and to present a defense where he was prevented from an effective cross-examination of R.J. when the trial court denied his request that she undergo a psychiatric examination.

We do not believe that section 115 — 7.1 offends the separation of powers clauses of the United States Constitution or our Illinois Constitution. The section provides:

“Court may not order mental examination of sex victim. Except where explicitly authorized by this Code or by the Rules of the Supreme Court of Illinois, no court may require or order a witness who is the victim of an alleged sex offense to submit to or undergo either a psychiatric or psychological examination.” (Ill. Rev. Stat. 1985, ch. 38, par. 115-7.1.)

Although this section bars a trial court from ordering a rape victim to submit to a psychiatric examination (see People v. Jameson (1987), 155 Ill. App. 3d 650, 660, 508 N.E.2d 267) or psychological examination, the paragraph is not an improper legislative invasion upon the judiciary’s authority. It is well established that “the legislature of a State has the power to prescribe new and alter existing rules of evidence or to prescribe methods of proof.” People v. Wells (1942), 380 Ill. 347, 354, 44 N.E.2d 32; People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 140, 461 N.E.2d 410.

As the State argues, the section, by its own terms, provides that the court prohibition must yield “where explicitly authorized by this Code or by the Rules of the Supreme Court of Illinois.” Thus, the statute neither encroaches on the judiciary’s power nor conflicts with any Illinois Supreme Court rule where it provides that if the supreme court were to adopt its own rule on this subject, the legislative mandate to prohibit examinations of complaining witnesses in sex offense cases would yield to the rule. In Glover, the Illinois Supreme Court held that a court has the power to order a psychiatric examination of a complaining witness in a sex offense case. However, Glover was decided well before the promulgation of section 115 — 7.1.

Defendant’s equal protection argument also fails; section 115—7.1 neither creates a suspect classification nor infringes on any fundamental right. In People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125, we held that a defendant in a sex case is not -within a suspect classification. As this statute greatly resembles the “rape shield law” (Ill. Rev. Stat. 1985, ch. 38, par. 115—7), which governs the admissibility of the victim’s prior sexual activity or reputation, it can be said to accomplish a legitimate governmental objective. The constitutionality of the rape shield law has been upheld on the grounds that the statute was designed to encourage victims to report sexual assaults and to eliminate the cruel and abusive treatment of the victim at trial. See Requena, 105 Ill. App. 3d 831, 435 N.E.2d 125.

Additionally, we find that defendant here was not denied his right to effective cross-examination in violation of the confrontation clause because defendant had the opportunity for effective cross-examination. (See United States v. Owens (1987), 484 U.S. 554, 559, 98 L. Ed. 2d 951, 957, 108 S. Ct. 838, 842 (where the Supreme Court found that “the confrontation clause guarantees only an opportunity for effective cross-examination.” (Emphasis in original)).) In the present case, defendant cross-examined both Dr. Apantaku and R.J. as to her physical and mental state following surgery at the time R.J. identified defendant as her assailant. Defendant also questioned Dr. Apantaku about post-traumatic stress syndrome.

Moreover, defendant could have called as witnesses other hospital employees to testify about R.J.’s mental state. Defendant was prohibited from ordering R.J. to submit to a psychiatric examination; however, the record does not sustain defendant’s allegations that he was denied the right to present a defense regarding R.J.’s ability to identify her attacker or that he was denied a right to confront witnesses where the complaining witness and attending physician-surgeon were both present in court and available for cross-examination.

Accordingly, as it is well settled that “the legislature of a State has the power to prescribe new and alter existing rules of evidence or to prescribe methods of proof” (People v. Rolfingsmeyer, 101 Ill. 2d at 140), and since section 115—7.1 specifically authorizes an exception to its own mandate with respect to the judiciary’s authority to order an examination, and moreover because defendant’s equal protection and confrontation arguments are without merit, we conclude that section 115—7.1 survives defendant’s constitutional challenges here.

Defendant next argues that the trial court erred in denying his motion for mistrial where the State failed to disclose during discovery R.J.’s statements made at trial that defendant allegedly told her: (1) that his wife had taken his children away from him; (2) that he would hit her in the head with a hammer; (3) that he was at the river and was going to throw her in the river; (4) that he was at a bridge and was going to throw her over the bridge; and (5) that he would have to take her downstairs to see “Mr. C.”

Illinois Supreme Court Rule 412 (134 Ill. 2d R. 412) governs the scope of the State’s obligation to disclose material and information to an accused. With respect to statements of an accused, Supreme Court Rule 412 provides that the State shall disclose to defense counsel

“any written or recorded statements and the substance of oral statements made by the accused or by a codefendant, and a list of witnesses to the making and acknowledgment of such statements.” (134 Ill. 2d R. 412.)

The purpose of the rule is to protect the defendant from surprise and inadequate preparation at trial by allowing defense counsel to investigate the circumstances surrounding any statements. (People v. Davis (1984), 130 Ill. App. 3d 41, 49, 473 N.E.2d 387.) In People v. Orr (1986), 149 Ill. App. 3d 348, 500 N.E.2d 665, where the defendant was charged with aggravated arson and arson, we found that defendant was prejudiced by the State’s nondisclosure of defendant’s alleged statement made five days before the incident wherein he told the daughter of the victim that he “was gonna destroy everything that [she] loved and he was gonna burn [her] mother’s house.” We determined that the nondisclosed statement constituted a direct threat to commit the crime for which defendant was tried and convicted and that disclosure of the statement would have afforded the defendant an opportunity to interview the daughter and to formulate a method to discredit or explain her testimony.

It is established that the State has a duty to disclose the substance of all statements made by a defendant, even if the statements were not reduced to writing. (People v. Siefke (1990), 195 Ill. App. 3d 135, 551 N.E.2d 1361.) In the present case, although some of the statements involved direct threats to commit the crime charged (like in Orr), the statements were made during the commission of the offense and were only a few of several statements that defendant made to R.J. Moreover, we believe that the State complied with discovery when it specified R.J. as a potential witness in its answer to defendant’s request for discovery and disclosed that the substance of any statements made by defendant were contained in the transcriptions of the preliminary hearing and grand jury proceedings. The record reveals that Detective Sullivan testified before the grand jury that he investigated the incident in question and that he spoke with R.J. He also testified that R.J. related to him how an individual kidnapped her from the streets, raped her and told her “he decided it was a time for her to die” on more than one occasion during the incident. Thus, because these statements were made during the commission of the offense, the substance of which either was contained in the police reports, the grand jury testimony, or could have been discovered by the defense in a pretrial examination of R.J. (People v. Miller (1989), 190 Ill. App. 3d 981, 548 N.E.2d 1), we believe that defendant had notice that R.J. intended to testify at trial about the defendant’s statements of intent to kill her. Accordingly, we find that the State did comply with Supreme Court Rule 412.

Further, the State contends that the People had no notice of certain specific statements, as those specific statements were not contained in the investigators’ reports and R.J. conceded on cross-examination that she did not tell the police that defendant made any remarks about his wife, that defendant told her to kneel behind him or that defendant threatened to throw her in the river. Even if we were to hold that the State did have notice of these complained-of statements, defendant was not prejudiced and is not entitled to a new trial. (People v. Harris (1988), 123 Ill. 2d 113, 526 N.E.2d 335.) The error, if any, is considered harmless and does not warrant reversal in this case. People v. Siefke, 195 Ill. App. 3d 135, 551 N.E.2d 1361.

Next, defendant maintains that the trial court erred in allowing the State to introduce evidence concerning a second rifle, which was disassembled into rifle stock and rifle barrel, but was neither used in the incident nor found in defendant’s possession at the time of his arrest. Defendant contends that the introduction of this evidence was reversible error because the State failed to show a clear connection between defendant and the weapon. (People v. Kincy (1982), 106 Ill. App. 3d 250, 435 N.E.2d 831; People v. Jackson (1990), 195 Ill. App. 3d 104, 551 N.E.2d 1025.) Further, he asserts that introduction of the rifle was highly prejudicial.

In the present case, the trial court allowed into evidence the photograph of a rifle that was found in the apartment during the police investigation of the incident. However, there was no evidence presented at trial that this particular rifle was used in the commission of the offense. It is well established that a weapon found in a defendant’s possession when arrested, or presumably at the scene of the offense, may be admitted where the weapon bears a connection with the charged offense. (See People v. Jackson, 195 Ill. App. 3d 104, 551 N.E.2d 1025.) Thus, it is possible that the photograph of the gun here was either admissible as a detail of the investigation or as a weapon owned by the defendant and suitable for commission of the crime. (People v. Kincy, 106 Ill. App. 3d at 258.) Moreover, any mention of the gun here was first raised by the defendant on cross-examination of R.J. R.J. testified that she saw the rifle in defendant’s apartment during the commission of the crime. Further, on direct examination, R.J. described a black assault rifle as the gun which was used throughout the offense and the “other” gun, the brown rifle which is the subject here, was mentioned for the first time during defense counsel’s cross-examination of R.J. when R.J. was asked “did you see more than one gun?” The determination of whether evidence is admissible with regard to relevancy is within the trial court’s discretion, and its decision will not be reversed if the record indicates a sufficient basis for the decision. People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696.

Even if the second gun was not connected to the defendant, and its admission was error, the error is considered harmless in light of the overwhelming evidence of defendant’s guilt. It has been held that a trial error will be deemed harmless where the evidence supporting the defendant’s conviction would result even if the error were eliminated. Jackson, 195 Ill. App. 3d at 114, citing People v. Grant (1979), 69 Ill. App. 3d 940, 944, 387 N.E.2d 1087.

Defendant next urges that he was prejudiced when the trial court allowed a State witness to testify that defendant allegedly belonged to a gang. Prior to trial, the court reserved ruling on defendant’s motion in limine to preclude the prosecution from introducing evidence of alleged gang affiliation. However, during the State’s case, Officer Koostra responded to a question about his investigation of the incident and testified as follows:

“I continued with my investigation in the — up and down areas, alleys, gangways, for any — for a subject that was a janitor of that courtway building. His name was Edmond Williams, also known to me as Amad, an El Rukn general.”

The trial court sustained defendant’s objection and instructed the jury to disregard “the last comments of the witness” and further stated “I’m striking that — the end of his answer to that question.” Defendant claims that the trial court erred in not granting a mistrial or a new trial because the reference to gang affiliation was prejudicial to him. (People v. Parrott (1976), 40 Ill. App. 3d 328, 352 N.E.2d 299.) Defendant maintains that unlike the case of People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, there are no facts here to suggest that gang membership showed common design and purpose to do an unlawful act to which all assent or any relevance to the crimes charged.

The State counters that Parrott, which defendant claims stands for the proposition that there is widespread prejudice against street gangs in America, does not, however, stand for the proposition that improper testimony that a defendant was a member of a gang is always prejudicial. In fact, many courts have found that references to a defendant’s gang affiliation is harmless error. (See, e.g., People v. Portis (1986), 147 Ill. App. 3d 917, 498 N.E.2d 675; People v. Carter (1985), 132 Ill. App. 3d 523, 447 N.E.2d 1307.) We agree. First, the State did not elicit the testimony of the officer about defendant’s alleged gang affiliation. Second, like in the Carter case, the reference here was minor and “did not result in an inflammation of the jury here so as to sway [it] from a rational evaluation of the facts in issue.” Carter, 132 Ill. App. 3d at 529.

Furthermore, the error, if any, was cured by the trial court’s admonishment to the jury. The court stated:

“THE COURT: *** [B]efore we continue, I wish to call to your attention that the previous answer of the witness was stricken with regard to the reference to the El Rukns. There was no evidence that Mr. Williams is an El Rukn, and you should disregard any reference of the witness to the El Rukns. That means that you should not in any way consider that statement when you are deliberating upon your verdict. That is stricken from the record, and you should not consider it. Your oath as a juror requires that.”

Neither would the comment change the result of the verdict since the other evidence was overwhelming that defendant was guilty of aggravated kidnapping and attempted murder.

Finally, defendant argues that the trial court improperly considered the offense of aggravated criminal sexual assault, specifically the factors that R.J. was brutally attacked and abused, when it imposed an extended-term sentence. The State responds that when the trial court used the words “abused” and “attacked” it was referring to the numerous instances of verbal abuse and physical attacks upon R.J. other than those associated with the aggravated criminal sexual assault charge. Further, because defendant’s sentence here would not have been different had the sentencing court considered an improper factor, the State asks this court to affirm defendant’s sentence of 60 years for attempted murder.

Section 5—8—2(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a)) authorizes a judge to impose a term of imprisonment in “excess of the maximum sentence authorized by Section 5—8—1 for the class of the most serious offense of which the offender was convicted” where the factors set forth in paragraph (b) of section 5—5—3.2 are found to be present. Section 5—5—3.2 provides, in relevant part:

“[T]he following factors may be considered by the court as reasons to impose an extended term sentence under Section 5—8—2 upon any offender ***:
***
(2) When a defendant is convicted of any felony and the court finds that the offense was accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty.” Ill. Rev. Stat. 1985, ch. 38, par. 1005—5—3.2(b)(2).

In the present case, the trial court considered defendant’s past criminal record and the circumstances and facts surrounding this particular incident. The trial judge found that defendant took the victim off the streets at gunpoint, transported her about the city, threatened her, tied her up, blindfolded her and in other ways and other manners, attacked her. He determined that R.J. was taken to another site, abused again and then taken to a basement and shot by the defendant when she attempted to flee. The court considered that the results of the gunshot caused a severed spinal cord and rendered R.J. a paraplegic and confined to a wheelchair for life. The court also determined that defendant’s conduct required a sentence to protect the public from further criminal conduct on his part.

The reviewing court uses an abuse of discretion standard to determine whether the trial court properly found defendant eligible for an extended-term sentence under the Unified Code of Corrections based on the brutal or heinous nature of the most serious of the offenses of which defendant was convicted. (People v. Andrews (1989), 132 Ill. 2d 451, 464, 548 N.E.2d 1025.) In applying this standard and based upon a review of the facts in this case, we find no abuse of discretion by the trial court in imposing an extended-term sentence upon defendant. R.J. stated at trial that defendant raped her on two occasions during this time and threatened her several times. Even though defendant was found not guilty by the jury on the charge of aggravated criminal sexual assault and the trial court may have improperly considered the facts attendant to this charge, we believe that the extended-term sentence was otherwise warranted in light of defendant’s criminal background and the trial court’s finding of the presence of other aggravating factors. Reliance on an improper factor in aggravation does not always necessitate remandment for resentencing. (People v. Fields (1990), 198 Ill. App. 3d 438, 441, 555 N.E.2d 1136.) The defendant used a military-type weapon and should have known that the subsequent aiming and firing of this type of rifle would naturally and probably result in serious injury or death to R.J. We believe the facts show that defendant acted with exceptionally brutal and heinous behavior indicative of wanton cruelty where he abducted R.J. and kept her bound and taped for several hours while he continually threatened and terrorized her. Accordingly, defendant’s extended-term sentence is affirmed.

Defendant’s convictions for attempted murder and aggravated kidnapping are affirmed, and his extended-term sentence of 60 years’ imprisonment for attempted murder and consecutive term sentence of 15 years’ imprisonment for aggravated kidnapping are affirmed.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.