author: JUSTICE McLAREN

text:
      In re MARRIAGE OF MAGNUS AGUSTSSON, Petitioner and Counterdefendant-Appellee, and ANN AGUSTSSON, n/k/a Ann Agustsson Mathers, Respondent and Counterplaintiff-Appellant.
    Second District
    No. 2 — 91—0134
    Opinion filed January 8, 1992.

      O’Halloran, Kosoff & Miller, of Chicago, and John O. Demaret and Patricia A. Heeney, both of John O. Demaret & Associates, of Northbrook (David A. Belofsky, of counsel), for appellant.
    Williams & McCarthy, P.C., of Rockford, and Stephen E. Balogh, of Williams & McCarthy, P.C., of Oregon (Carol H. Hallock, of counsel), for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Ann Agustsson, respondent, appeals from an order entered by the trial court, vacating a judgment for dissolution of her marriage and accompanying marital settlement agreement. We affirm.

Magnus Agustsson, petitioner, filed a petition for dissolution of marriage from his wife, Ann. On March 22, 1990, the trial court entered a judgment for dissolution which incorporated a marital settlement agreement. The agreement provided for a “fifty-fifty” distribution of a pension owed to Magnus by his former employer, SwedishAmerican Hospital. The settlement agreement provided for distribution of the pension as follows:

“7. Husband acknowledges that he is a beneficiary of and a participant in the Swedish American Corporation Retirement Plan (the ‘plan’) which plan has been heretofore sponsored, in whole or in part, by husband’s former employer, Swedish American Hospital. Husband further acknowledges that he has since February 1, 1989 received monthly payments from said plan in the amounts of $1,729.13. Husband and wife have been notified by Swedish American Hospital and understand that the plan has been terminated and that husband is entitled to receive an accrued benefit, payable in lump sum, in the amount of $211,936.20. The husband covenants to make written request to the plan administrator for lump sum distribution of the accrued plan benefit, which lump sum distribution the wife shall consent to in writing upon the condition of and in partial consideration for the following division of the lump sum payment from the plan:
A. Wife shall receive an amount equivalent to 50% of the accrued benefit plus an amount equal to 50% of the monthly payments received by husband since December 19, 1989, which shall be computed prior to the deduction or payment of any taxes due on the lump sum distribution from the plan, and which amount shall in no event be less than $108,561.80.
B. Husband shall authorize and direct the plan administrator and, if necessary, the Swedish American Hospital, to deduct from the lump sum distribution of the accrued plan benefit all amounts due wife under paragraph 7A hereof; and
C. Husband shall receive the balance of the lump sum distribution of the accrued plan benefit due him from the plan after deduction of the amount specified by paragraphs 7A andB hereof.” (Emphasis added.)

Shortly after the judgment was entered, SwedishAmerican Hospital filed a petition to dissolve a prior injunction prohibiting distribution of the pension funds. The hospital specifically requested that the pension be distributed in a single check to Magnus, to ensure compliance with section 206(a) of the Employee Retirement Income Security Act (ERISA) (29 U.S.C. § 1056(a) (1990)). Although Magnus argued that payment in one check would shift the entire burden of income tax payment to the recipient of the check, on March 29, 1990, the trial court modified the injunction “to allow Swedish American Hospital to deliver its check in the amount of the lump sum distribution of the accrued plan benefit due Magnus Agustsson.” The order also directed Magnus to negotiate a check to Ann in accordance with paragraph 7A of the marital settlement agreement. Magnus objected to disbursement because the judgment for dissolution did not constitute a qualified domestic relations order (QDRO) (29 U.S.C. § 1056(d)(3) (1990)) and requested leave to modify, to which the court responded, “[t]hat motion should be filed, but that is not a basis on which I should delay signing the order which [lifts the injunction].”

Consequently, Magnus filed a motion to amend the judgment for dissolution pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203), so that it would expressly reflect a QDRO, thereby assessing the tax burden according to the share of the pension each party received. However, on April 13, 1990, the court denied Magnus’ motion to amend “in its entirety.” The apparent basis for the denial was that the written terms of the marital settlement did not provide for a QDRO. When Magnus’ counsel stated that it was part of the oral agreement of the parties, the court responded that, if “it isn’t in [the agreement], it isn’t in there. That’s the end of it.” Next, the following interchange occurred:

“MS. HALLOCK [counsel for Magnus]: Are you saying the Motion to Vacate is more appropriate? I would be filing a motion to vacate on those grounds.
THE COURT: Maybe.
MS. HALLOCK: Okay.
THE COURT: I can’t say for sure. I can’t bar you from filing such a Motion. A motion to Amend as for now, I think, should be denied. Heard and denied.”

Accordingly, Magnus filed a motion to vacate the judgment for dissolution on April 20, 1990, and an amended motion to vacate on April 25, 1990. He alleged that the parties agreed and intended that each party pay taxes on the amount of the pension received. Magnus also asserted that interpreting the agreement so that he must bear the entire tax burden amounts to a mutual mistake of fact, thereby furnishing grounds for vacation. Finally, on April 30, 1990, Magnus filed a motion to vacate the order of March 29, 1990, which directed Magnus to pay Ann according to the terms of the agreement. The motion asserted that the trial court substantially altered the terms of the marital settlement agreement by allowing the hospital to issue a single check, since the agreement clearly called for the issuance of separate checks.

The trial court did not initially decide the motions to vacate, because it considered the terms of the agreement ambiguous. Instead, it ordered an evidentiary hearing to determine the intent of the parties at the time the agreement was executed. Based on the evidence presented at the hearing, the trial court found that the parties had different understandings of the terms of the marital settlement agreement, which amounted to a “mutual mistake of fact.” The court also found that the valuation of the marital estate and the tax consequences of the distribution were not taken into consideration in entering the judgment for dissolution. Accordingly, on January 3, 1991, the court vacated the judgment for dissolution and dismissed the motion to vacate the March 29, 1990, order as moot. On January 29, 1991, Ann filed a timely notice of appeal from the order vacating the judgment for dissolution and accompanying marital settlement agreement.

Prior to considering the merits of an appeal, the appellate court is bound to inquire whether it has jurisdiction to hear the appeal. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440; Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 539; Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill. App. 3d 219, 223.) An appellate court’s jurisdiction is confined to reviewing appeals from final orders or judgments (134 Ill. 2d Rules 301, 303, 304), unless the particular judgment or order falls into an enumerated category permitting interlocutory appeals. (See 134 Ill. 2d Rules 307, 308; Sutherland v. Norbran Leasing Co. (1988), 180 Ill. App. 3d 95, 96-97.) A final judgment terminates the litigation on the merits of the case and determines the ultimate rights of the parties. If affirmed, the only action remaining is to proceed to its execution. Sutherland v. Norbran Leasing Co. (1988), 180 Ill. App. 3d 95, 97.

In this case, Ann appeals from an order vacating the judgment for dissolution. However, an order vacating a judgment is not final and consequently not appealable, because the merits of the case are still pending. (Williams v. A.E. Staley Manufacturing Co. (1980), 80 Ill. App. 3d 981, 985; Petersen Brothers Plastics, Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 628; William Aupperle & Sons, Inc. v. American National Bank & Trust Co. (1975), 28 Ill. App. 3d 573, 576.) However, Ann contends that this appeal is premised on the appellate court’s mandatory jurisdiction over void orders. Although Ann correctly states that void orders are appealable and can be attacked at any time (see People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71; Petersen, 57 Ill. App. 3d at 628-29; Under wood v. Yellow Cab Co. (1971), 131 Ill. App. 2d 449, 452), the order vacating the judgment in this case is not void.

A court loses jurisdiction over a matter once 30 days have passed if during that time neither party takes any legally proper action, such as the filing of a post-judgment motion, which delays the running of the 30-day period. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67; Allstates Tool Corp. v. Arachnid, Inc. (1988), 177 Ill. App. 3d 573, 579.) Section 2-1203 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2— 1203) specifies that a motion to modify or vacate a judgment qualifies as a post-judgment motion under Supreme Court Rule 303(a)(1). (134 Ill. 2d R. 303(a)(1); see also Brock v. Police Board (1990), 205 Ill. App. 3d 1035, 1040.) In this instance, the time for appeal commences to run from the date the motion is disposed of on the merits. Bell Federal Savings & Loan Association v. Bank of Ravenswood (1990), 203 Ill. App. 3d 219, 224.

Citing Benet Realty Corp. v. Lisle Savings & Loan Association (1988), 175 Ill. App. 3d 227, Ann concludes that after Magnus’ motion to amend the judgment was denied, his only recourse was to file an appeal, because the trial court was divested of jurisdiction to hear any additional post-judgment motions, including his motion to vacate. We disagree. Benet concerned appellate jurisdiction rather than original jurisdiction in the trial court. In Benet, a judgment was entered on both the plaintiff’s and defendant’s claims following a bench trial. Thereafter, defendant presented a post-judgment motion which was denied. Still within 30 days of the judgment, defendant filed another post-judgment motion, which was also denied, and defendant filed its notice of appeal. The Benet court dismissed the appeal for lack of jurisdiction, holding “that the filing of a second post-judgment motion, attacking the final judgment, filed after denial of the first post-judgment motion but within 30 days of the final judgment, which only repeats arguments *** that could have been raised in the first motion, is not a ‘timely’ post-trial motion as that word is used in Rule 303(a). The second post-judgment motion by the same party cannot serve to extend the time for filing a notice of appeal.” Benet, 175 Ill. App. 3d at 231-32.

The holding of Benet was apparently premised on language contained in the supreme court case of Sears v. Sears (1981), 85 Ill. 2d 253. (See Benet, 175 Ill. App. 3d at 231.) However, Sears actually held that “[i]n the interests of finality, and of certainty and ease of administration in determining when the time for appeal begins to run, we reaffirm the rule of Deckard that successive post-judgment motions are impermissible when the second motion is filed more than 30 days after the judgment or any extension of time allowed for the filing of the post-judgment motion.” Sears, 85 Ill. 2d at 259, citing Deckard v. Joiner (1970), 44 Ill. 2d 412 (where the court interpreted a second post-trial motion as supplementary rather than successive).

In Benet, the appeal was from the denial of relief on a second post-judgment motion. In this case, however, defendant appeals from an order granting the second post-judgment motion, when the first post-judgment motion was denied without a proper hearing. Consequently, the first time defendant even contemplated an appeal was after disposition of the second post-judgment motion. Therefore, the rationale of Sears, that successive post-judgment motions effectually abrogate the provisions of the Code by extending the time for filing a notice of appeal, is inapplicable to the facts of the instant case, since the second post-judgment motion did not extend the time for which this party could file a notice of appeal.

Furthermore, jurisdiction to hear the appeal in both Benet and Sears was premised on Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)). The rule states that a notice of appeal must be filed within 30 days of the entry of the final judgment appealed from, or, “if a timely post-trial motion directed against the judgment is filed, *** within 30 days after the entry of the order disposing of the last pending post-trial motion.” (134 Ill. 2d R. 303(a)(1).) Although the term “disposing” could reasonably be interpreted as encompassing both grants and denials, we have found no case law discussing appeals from nonfinal judgments in the context of Supreme Court Rule 303. One explanation is that a judgment leaving the merits of the case pending is effectually an order granting a new trial, and appeals from such orders are governed by Supreme Court Rule 306. Therefore, Rule 303 only applies to appeals from final judgments, because under these facts, any other interpretation would render Rule 306 a nullity.

By applying Sears and Benet to the facts of this case, Ann implicitly assumes that the order granting Magnus’ motion to vacate the judgment for dissolution is a final judgment, which is an erroneous conclusion. Furthermore, her assertion that the order vacating the judgment for dissolution was entered without jurisdiction lacks merit, because the authority Ann cites for the proposition that circuit courts “have no authority to hear successive post-judgment motions” is inapplicable to the facts of the instant case. (B-G Associates, Inc. v. Giron (1990), 194 Ill. App. 3d 52, 57; see also Village of Island Lake v. Parkway Bank & Trust Co. (1991), 212 Ill. App. 3d 115, 122-23; Cronin v. Altman (1981), 101 Ill. App. 3d 432, 434.) Such language is premised on the rationale that successive post-judgment motions cannot be maintained because they extend the time for a notice of appeal from a final judgment pursuant to Supreme Court Rule 303, rather than for the proposition that circuit courts lack jurisdiction to hear such motions.

Because the vacation necessitates a new prove up on the marital settlement agreement, this appeal should have been properly brought pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306), which states that such an appeal may be taken “only on the allowance by the Appellate Court of a petition for leave to appeal.” (134 Ill. 2d R. 306(a)(1).) Although Ann’s counsel stated that the order “which vacated the judgment and in effect set this case for further hearing is in the nature of an order granting a new trial,” a search of the record reveals that a petition for leave to appeal has not been filed. In this instance, judicial economy dictates that we exercise our discretion and hear this appeal on its merits pursuant to Supreme Court Rule 306 by treating the notice of appeal and arguments raised in the briefs in lieu of a petition for leave to appeal.

On a motion filed within 30 days of its entry, a circuit court may vacate a final judgment upon reasonable terms and conditions. (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1203.) Vacating a judgment is a matter within the sound discretion of the trial court and will not be regarded as an abuse of discretion when doing so promotes substantial justice between the parties. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 466.) However, the movant carries the burden of establishing sufficient grounds to vacate. Kosten v. St. Anne’s Hospital (1985), 132 Ill. App. 3d 1073, 1080.

In an effort to sustain the burden of proof in this case, an evidentiary hearing was held to determine “whether the parties *** ever thought about the tax consequences before the drafting of this meticulous Settlement Agreement.” Magnus testified that he and Ann agreed to a “fifty-fifty split” of the lump sum distribution of the pension and that the possibility of assuming all of the tax liability was neither mentioned to him during negotiations nor at the hearing when the court approved the agreement. Contrary to Mag-nus, Ann testified that she interpreted the agreement such that she would not pay taxes on her share of the distribution.

The judge, however, stated that he had “a very difficult time believing it was the intent of the parties that one get $108,000, [and] the other get $25,000. I don’t believe that for one minute.” Consequently, he entered an order vacating the judgment for dissolution on the basis that neither the written agreement nor the evidence presented at the hearing reflected a meeting of the minds concerning the tax consequences of the pension. Accordingly, the court found that the lack of an agreement amounted to “a mutual mistake of fact,” which justified vacation.

We agree with the trial court’s finding that the record adequately supports the vacation such that granting the motion was not an abuse of discretion. A marital settlement agreement is a contract subject to the same rules of construction of any other contract. It is the court’s function to interpret the agreement in a reasonable manner and ascertain the intent of the parties. In re Marriage of Perdue (1987), 162 Ill. App. 3d 126.

A mistake by the parties at the time of execution of the contract provides grounds for rescission. (See Cummings v. Dusenbury (1984), 129 Ill. App. 3d 338, 342-45.) In this case, the trial judge found that both parties were mistaken concerning the tax consequences of the marital settlement agreement. A mutual mistake occurs when an actual good-faith agreement is reached, but, due to error, the contract is written in terms that violate the understanding of both parties. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 760.) An analysis of the relevant terms of the agreement illustrates that no specific language concerning tax liability was included. Although there is a rebuttable presumption that a written contract is an accurate reduction to writing of the agreement reached by the parties (Sheldon v. Colonial Carbon Co. (1983), 116 Ill. App. 3d 797, 800), parol evidence may be used to show the real agreement between the parties when a mistake has been made and the evidence serves to ascertain the original intent of the parties. (Beynon, 118 Ill. App. 3d at 760.) Therefore, it was within the judge’s discretion to hold an evidentiary hearing to discover the intent of the parties.

The evidence reveals that Ann interpreted the language that she “shall receive an amount equivalent to 50% of the accrued benefit *** which shall be computed prior to the deduction or payment of any taxes due” to mean she will never pay taxes on her share of the distribution. Magnus, however, construed the same language to mean that each party will be responsible for paying taxes on his share should he decide not to roll the amount over into an appropriate retirement fund. We agree with the trial court’s finding that there was a mutual mistake of fact.

Assuming arguendo that the mistake concerning the agreement was unilateral, we would still reach the same conclusion. This court has allowed a unilateral mistake to justify rescission of a contract. (See Cummings, 129 Ill. App. 3d at 342-45.) As stated by our supreme court, if:

“[B]y reason of a mistake of fact by one of the parties, not due to his negligence, the contract is different with respect to the subject matter or terms from what was intended, equity will give to such party a remedy by cancellation where the parties can be placed in statu quo. The ground for relief is, that by reason of the mistake there was no mutual assent to the terms of the contract.” (Steinmeyer v. Schroeppel (1907), 226 Ill. 9, 13.)

More recently, the appellate court stated that rescission is a proper remedy for either a unilateral or mutual mistake of fact when the party seeking rescission shows by clear and convincing evidence that (1) the mistake is of a material nature; (2) the mistake is of such consequence that enforcement is unconscionable; (3) the mistake occurred notwithstanding the exercise of due care by the party seeking rescission; and (4) rescission can place the other party in status quo. Keller v. State Farm Insurance Co. (1989), 180 Ill. App. 3d 539, 548; see also S.T.S. Transport Service, Inc. v. Volvo White Truck Corp. (7th Cir. 1985), 766 F.2d 1089 (applying Illinois law); John J. Calnan Co. v. Talsma Builders, Inc. (1976), 40 Ill. App. 3d 62, 65, rev’d (1977), 67 Ill. 2d 213, 218, on remand (1979), 77 Ill. App. 3d 221; Santucci Construction Co. v. County of Cook (1974), 21 Ill. App. 3d 527, 531.

It is undisputed that there was a mistake concerning taxation of the pension and that it relates to a material feature of the contract. Although the judge entered no findings concerning unconscionability and the exercise of due care, the evidence illustrates that these elements were met. The agreement states that Ann will receive 50% of the pension which is to be computed prior to computation of taxes. It is reasonable to interpret this language as requiring Ann to pay her own taxes. Since the tax implications were not discussed at the time of execution, there was no error in failing to include a more specific provision in the agreement. Furthermore, if the agreement is not vacated and the court’s orders are allowed to stand, there is a very strong possibility that Magnus will be forced to pay both shares of taxes, contrary to his intent and through no fault of his own. This result confers an undue benefit on Ann and amounts to unconscionability. Therefore, we find that the evidence clearly and convincingly meets the test articulated in Keller (180 Ill. App. 3d at 548).

Considering all of the foregoing, we find that the order vacating the judgment for dissolution was not an abuse of discretion. Accordingly, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

INGLIS and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SLATER

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HILARIO LOPEZ, Defendant-Appellant.
    Third District
    No. 3 — 90—0051
    Opinion filed January 7, 1992.

      Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Gary L. Spencer, State’s Attorney, of Morrison (John X. Breslin and Rita Kennedy Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SLATER

delivered the opinion of the court:

The defendant, Hilario Lopez, pled guilty to first degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9 — 1(a)(1)). The trial court subsequently sentenced him to 40 years’ imprisonment. The defendant appeals his sentence, arguing that the court failed to give adequate consideration to the nature of the offense and to his rehabilitative potential. We affirm.

Initially, we address the State’s argument that this court does not have jurisdiction in the instant case. The State contends, citing People v. Ishmon (1991), 213 Ill. App. 3d 653, 572 N.E.2d 383, that after a guilty plea the defendant must file a motion to reconsider his sentence before he can appeal the sentence. The State notes that following sentencing, the instant defendant timely filed a motion to withdraw his guilty plea, but failed to raise any issues regarding his sentence. Then, almost four months after the date he was sentenced, but prior to the hearing on his motion to withdraw his guilty plea, the defendant filed a motion to reduce sentence. Citing People v. Williams (1977), 53 Ill. App. 3d 335, 368 N.E.2d 706, the State contends that the motion to reduce sentence was untimely filed and therefore the trial court and this court lack jurisdiction to consider the motion. We disagree with the State’s analysis.

Initially, we note that the Williams case cited above is inapposite to the instant case. The Williams court determined that the defendant’s motion to withdraw his guilty plea was filed past the time required by Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). Thus, the Williams court determined that the trial court and the appellate court lacked jurisdiction to entertain the motion once the deadline required by the rule had passed. Such was not the case here. In this case, the defendant timely filed his motion to withdraw his guilty plea. The trial court therefore retained jurisdiction until it ruled on the motion. When the defendant filed his motion to reduce sentence prior to the hearing on the motion to withdraw, it did not affect the trial court’s jurisdiction. Furthermore, we note that even if the defendant’s motion to reduce sentence were considered untimely, the State waived any objection by failing to object to the trial court’s hearing the motion and by fully participating in the argument on the motion. (See People v. Eddington (1984), 129 Ill. App. 3d 745, 473 N.E.2d 103.) We therefore have jurisdiction over this appeal.

We now consider the defendant’s sentence. The factual basis for the defendant’s plea established that he and the victim, Leonel Leyte, were roommates who worked in the same restaurant. Leyte’s dead body was found in the residence he shared with the defendant. He died as the result of an open fracture of the skull exposing a part of the brain. Leyte was also stabbed in the middle of the chest and the lower abdomen, secondary injuries that also would have resulted in death.

A note was found with Leyte’s body, apparently in the defendant’s handwriting and addressed to their employer. The note explained that the defendant had killed Leyte during a fight they had because Leyte refused to pay the defendant money he owed him for the purchase of marijuana.

The defendant told his nephew that he had killed a man, and the nephew contacted the police. The police apprehended the defendant at O’Hare Airport in Chicago where he was preparing to return to Mexico.

Following his apprehension, the defendant told a police officer that he had stabbed Leyte and hit him in the head with the lid of a toilet tank in a fight over money. The defendant then placed a mattress over Leyte and called his nephew to come and get him. The defendant admitted he was heading for Mexico when apprehended.

The presentence report indicated that the 31-year-old defendant had no prior convictions or arrests. A Mexican national, he had illegally entered the United States in August of 1981. The defendant’s first wife had died while giving birth to his first child. He had subsequently married his present wife and had four more children, one of whom had died at the age of three. The defendant was also the father of two other children born out of wedlock. He had been sending money to help support his family in Mexico prior to his arrest. He was a dishwasher at the restaurant where he worked and earned $150 per week. His employer gave his performance and dependability a good rating. The defendant claimed he was drunk at the time he killed Leyte. He did not believe he needed alcohol treatment. Three letters from persons who knew the defendant in Mexico, which attested to his good character, were attached to the report.

At the sentencing hearing, Father Dan Peters, who met the defendant while he was in the county jail, related that the defendant expressed deep concern for his family. In his statement to the trial court, the defendant expressed remorse as well as concern for his family.

Regarding the defendant’s argument that the court erred in sentencing him, we note that sentencing is a matter of judicial discretion, and absent an abuse of that discretion by the trial court, a sentence may not be altered on review. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) When mitigating evidence is before the trial judge, he is presumed to have considered it absent some indication, other than the severity of the sentence itself, to the contrary. People v. Taylor (1985), 139 Ill. App. 3d 779, 487 N.E.2d 767.

In the instant case, the record reveals that the trial judge was well aware of all the factors the defendant claims the court did not give adequate weight to in sentencing him. These factors included that the defendant was 31 years old with no prior criminal history; that he had suffered the tragic loss of his first wife and a child; and that his family will have difficulties without his support. However, there were also aggravating factors. The trial judge found that the murder was of a brutal and heinous nature. From the description of the victim’s wounds, we cannot say we disagree with this characterization. Furthermore, the trial judge recognized that the victim had a wife and five children in Mexico he had been helping support. Included in the presentence report was a statement by the victim’s wife, who described the hardship and anguish she and her children have had to face as a result of the defendant’s crime. Under the facts of this case, we find no abuse of discretion in the defendant’s sentence.

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

Affirmed.

BARRY and GORMAN, JJ., concur.


author: PRESIDING JUSTICE BARRY

text:
    THE PEOPLE OF THE VILLAGE OF FRANKFORT, Plaintiff, v. KRISTINA KOTZ, Defendant-Appellee (Jim Edgar, Secretary of State, Appellant).
    Third District
    No. 3 — 91—0007
    Opinion filed January 7, 1992.
    Roland W. Burris, Attorney General, of Springfield (Tanya Solov, Assistant Attorney General, of Chicago, of counsel), for appellant.
    John Pennie, of Westchester, for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

Jim Edgar, the Secretary of State (the Secretary), appeals from the order of the circuit court of Will County directing him to issue a judicial driving permit (JDP) to the defendant, Kristina Kotz. The Secretary contends that the defendant is not eligible for a JDP because she is not a “first offender” within the meaning of section 11— 500 of the Illinois Vehicle Code (the Code) (Ill. Rev. Stat. 1989, ch. 95V2, par. 11-500 (eff. July 1,1990)).

On September 12, 1990, Kotz was arrested for driving under the influence of alcohol. She refused to submit to a chemical test, and the Secretary therefore served her with notice of a two-year statutory summary suspension of her driver’s license, effective October 28, 1990. Ill. Rev. Stat. 1989, ch. 95%, pars. 6 — 208.1(a)(3), 11 — 501.1.

On November 5, 1990, the circuit court of Will County ordered the Secretary to issue a JDP to Kotz permitting her to drive to and from her place of employment. The Secretary refused to issue the JDP, stating that Kotz was ineligible because of a prior implied consent suspension that had become effective on March 26, 1985, and terminated on September 26, 1985. She therefore was not a first offender eligible for a JDP, because she had had another suspension within the past five years (Ill. Rev. Stat. 1989, ch. 951k, par. 11 — 500).

Kotz filed a motion to reassess the issuance of a JDP, claiming that since her implied consent suspension had begun on March 26, 1985, it was more than five years prior to the September 12, 1990, arrest. She argued that she therefore was a first offender pursuant to section 11 — 500 of the Code (Ill. Rev. Stat. 1989, ch. 95V2, par. 11— 500). On December 3, 1990, the circuit court again ordered the Secretary to issue a JDP in accordance with the court’s original order. The Secretary appeals.

On appeal, the Secretary argues that since the implied consent suspension did not terminate until September 26, 1985, it was within five years of the September 12, 1990, arrest. Consequently, Kotz should not be considered a first offender pursuant to section 11 — 500 of the Code (Ill. Rev. Stat. 1989, ch. 95@/2, par. 11 — 500).

The legislature recently clarified section 11 — 500 by defining a first offender to include “any person who has not had a driver’s license suspension for Section 11 — 501.1 within 5 years prior to the date of the current offense.” (Emphasis in original.) (Pub. Act 86 — 929, eff. Sept. 21, 1989 (amending Ill. Rev. Stat. 1987, ch. 951k, par. 11— 500).) This clarification was used by the second district in People v. Hardin (1990), 203 Ill. App. 3d 374, 561 N.E.2d 326. In that case, the court held that a defendant was a first offender when his first suspension was effective on January 11, 1984, and his second arrest did not occur until May 7,1989, more than five years later.

Even before the legislature clarified section 11 — 500, we held that the second arrest date must occur within five years of the disposition of the defendant’s first offense. (People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 546 N.E.2d 1182.) Therefore, in the instant case, for the defendant to be classified as a first offender, her second arrest on September 12, 1990, must have occurred more than five years after her previous suspension.

The legislature has clarified that the second arrest date is the operative date which must occur within five years of the first statutory suspension in order for the defendant to be removed from the statutory definition of a first offender. However, the legislature has not attempted to clarify whether the second arrest must occur within five years of the imposition of the first suspension or whether it must occur within five years of the termination of the first suspension.

The Secretary admits that this same issue was recently addressed by the second district in People v. Hardin (1990), 203 Ill. App. 3d 374, 561 N.E.2d 326. In that case, the second district concluded that the five-year statutory period should be calculated using the effective date of the first suspension rather than the suspension termination date. People v. Hardin (1990), 203 Ill. App. 3d 374, 561 N.E.2d 326.

The holding of the second district is consistent with this court’s previous decision in People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 546 N.E.2d 1182. In Pence, we concluded that the crucial question was whether the second DUI arrest occurred within five years of the disposition of the offender’s previous offense.

The Secretary argues that Pence is distinguishable because it involved a defendant whose first DUI resulted in supervision rather than suspension. We find no merit in the Secretary’s argument. For purposes of determining first offender status, the language of section 11 — 500 does not indicate that a defendant whose first DUI resulted in a suspension should be categorized separately from a defendant whose first DUI resulted in supervision. Therefore, the underlying rationale of the Pence decision can be extended to cases involving suspension.

In the absence of any changes by the legislature, or a contrary opinion by the Illinois Supreme Court, we see no reason to modify the standard interpretation of section 11 — 500 that the second arrest must occur within five years of the disposition of the previous offense. People ex rel. Edgar v. Pence (1989), 191 Ill. App. 3d 96, 546 N.E.2d 1182; People v. Hardin (1990), 203 Ill. App. 3d 374, 561 N.E.2d 326; People v. Kerr (1990), 196 Ill. App. 3d 207, 552 N.E.2d 1329.

In the instant case, the disposition of the defendant’s previous offense occurred on March 26, 1985, while her second arrest did not occur until more than five years later on September 12, 1990. Thus, the trial court correctly determined that the defendant was a first offender.

The order of the circuit court of Will County is affirmed.

Affirmed.

SLATER and HAASE, JJ., concur.


author: JUSTICE HAASE

text:
    THEODORE GREVAS, Plaintiff-Appellee, v. UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendant-Appellant.
    Third District
    No. 3 — 91—0103
    Opinion filed January 10, 1992.
    Bozeman, Neighbour, Patton & Noe, of Moline (John P. Harris, of counsel), for appellant.
    Eagle & Eagle, of Rock Island (Robert A. Eagle, of counsel), for appellee.
   JUSTICE HAASE

delivered the opinion of the court:

Theodore Grevas, plaintiff-appellee, owned a rental apartment building insured by the defendant-appellant, United States Fidelity and Guaranty Company (USF&G). Grevas’ building was destroyed by fire in April of 1989. Part of USF&G’s insurance policy included business interruption coverage. The policy provided that Grevas was to receive his net profits from the rental building for one year. The amount was calculated by deducting Grevas’ noncontinuing expenses, such as utilities and lawn maintenance, from the building’s gross income. USF&G made a settlement offer to the plaintiff which included a $14,841 deduction for depreciation of the premises. USF&G claimed depreciation was an expense that was noncontinuing. Grevas claimed that depreciation was not an expense as contemplated by the parties’ agreement. Grevas brought suit contesting the depreciation deduction. The trial court held that the contract was ambiguous as to whether depreciation was a noncontinuing expense. The court ruled that since the policy was drafted by the defendant, any ambiguity should be construed against the defendant. The court entered judgment in favor of the plaintiff. The defendant appeals.

The policy provided for coverage for the physical destruction of the property as well as the interruption of business resulting from fire or other catastrophe. Expenses such as lawn maintenance and apartment cleaning, which were not necessary during the interruption of business, were not covered. These “noncontinuing” expenses were to be deducted from gross profits in arriving at the award due under the policy. The policy provided in part:

“The actual business loss sustained shall not include charges and expenses which do not necessarily continue during the interruption of business or during the untenantability of the premises.”

The issue before this court is whether depreciation is a “noncontinuing” expense which should be deducted from the amount of the business interruption loss claim prior to payment to a policy holder. We recently dealt with this issue in Cohen Furniture Co. v. St. Paul Insurance Co. (1991), 214 Ill. App. 3d 408, 573 N.E.2d 851. In Cohen, the plaintiff’s rental building was destroyed by fire. In addition to coverage for the physical destruction of the property, the plaintiff was insured against the interruption of business resulting from fire or other catastrophe. After the fire, the insured chose to rebuild the plaintiff’s building. From the time of the fire until the building was completely rebuilt, the plaintiff continued to deduct depreciation on the destroyed building for income tax purposes. In Cohen, as in the case at bar, the plaintiff argued that depreciation on the destroyed building should not have been deducted from the amount due plaintiff under the “Loss of Earnings and Extra Expense” provisions of the policy. Plaintiff further argued that depreciation is neither an expense nor an operating expense, and that net profit for the purpose of a business interruption insurance policy is different than net profit for income tax purposes.

In the instant case, plaintiff makes a similar argument and goes on to say that depreciation which is taken on a building is not really an operating expense but is a device which is used to deduct a portion of the capital expenditure which was made to erect the building in the first place from a person’s net income for tax purposes. The argument continues that a business’ net income is really higher than its net income for tax purposes. The deduction for depreciation reduces the net profit of a business for tax purposes but does not adversely affect the cash flow and real profit of the business. The argument further continues that if a business were to actually take the depreciation deduction and set it aside in reserve for construction of a replacement building upon obsolescence of the original building, that would adversely affect the current profitability of the business. However, rarely, if ever, does that occur in the real world and, therefore, depreciation is nothing more or less than a way to reduce taxes and has nothing to do with the operation of the business.

In Cohen, the plaintiff’s argument was rejected. The court held, “Plaintiff’s argument is misplaced. The policy specifically excludes charges, as well as expenses, that become unnecessary. Even the Illinois Supreme Court considers an allocation for depreciation to be an ‘operating expense’ (see Peoples Gas Light & Coke Co. v. Slattery (1939), 373 Ill. 31, 59, 25 N.E.2d 482, 496-97; ***).” Cohen, 214 Ill. App. 3d at 416.

The court, in Cohen, then proceeded to analyze a number of cases from other jurisdictions which have dealt with the issue of depreciation and business interruption insurance. The court likewise cited to certain insurance texts. After that analysis the court in Cohen held:

“We believe the defendant properly deducted the depreciation charge because it was a charge which became unnecessary during the business interruption. Moreover, an allowance for the depreciation can only be deducted during the useful life of an asset. A taxpayer cannot depreciate a nonexisting asset. Therefore, it is clear that once an asset has been destroyed, an insured cannot charge a depreciation expense. [Citation.]
The policy at issue clearly and unambiguously provides that the actual loss under the loss of earnings coverage shall not ‘include any charges and expenses which become unnecessary during the halt in *** business operations.’ Accordingly, defendant was correct when it excluded the item of depreciation on the destroyed building in determining the actual loss recoverable under the policy. The depreciation which had been a charge could not continue after the fire and therefore became unnecessary.” 214 Ill. App. 3d at 419.

In the instant case, we are now called upon to reanalyze whether our position in Cohen was correct. The argument has been made here that the doctrine in Cohen leads to potential unfair results and unequal treatment for insurance claimants similarly situated. Plaintiff argues that under Cohen a policy holder who had completely depreciated his building for income tax purposes and was no longer able to claim depreciation on his Federal income tax return would receive more money in business interruption loss than a person who was still claiming depreciation even if both buildings were of equal value and condition. Plaintiff further argues that the real reason for business interruption insurance is to place the insured in the same position, vis-a-vis the operation of his business, as he would have been in had not the fire loss occurred. The argument continues that depreciation really is irrelevant when considering a person’s actual profit and loss position on a given year’s operation.

While plaintiff’s arguments have a certain degree of logical merit and may in fact comport with business experience, we decline to reverse our decision in the Cohen case. To reverse Cohen and to follow the plaintiff’s argument would require the court to engage in speculation about matters dehors the record dealing with the real purposes and intentions of the parties in claiming depreciation. Based on the record before us, we decline to do that. The language in the policy is clear and unambiguous. Where the language in the policy is clear and unambiguous, it is not necessary for the court to interpret the intent of the parties. Furthermore, when the language of an insurance contract is unambiguous and clear, the court shall enforce the policy. (Allstate Insurance Co. v. Panzica (1987), 162 Ill. App. 3d 589, 515 N.E.2d 1289.) It is clear from the record that depreciation was an expense that would have been deducted from net profits from rental operations had the building continued to remain intact. It is also clear from the record that once the building was destroyed, that expense was noncontinuing. Therefore, under the clear language of the policy, depreciation must be deducted from gross rents in order to arrive at the proper figure under the business interruption coverage of the policy.

In conclusion, we hold that the trial court erred in finding that the policy was ambiguous and that depreciation should not be deducted from the business interruption award. Accordingly, the judgment of the circuit court of Rock Island County is reversed.

Reversed.

GORMAN and SLATER, JJ., concur.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERYL J. STELL, Defendant-Appellant.
    Third District
    No. 3 — 91—0313
    Opinion filed January 10, 1992.
    Ronald L. Hamm, of Hamm & Hanna, Ltd., of Peoria, for appellant.
    Erik I. Blanc, State’s Attorney, of Pekin, and Don McKay, of Downers Grove (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Teryl Stell, appeals from her conviction for theft following a bench trial in the circuit court of Tazewell County. The trial court sentenced the defendant to 30 months’ probation, ordered her to pay a fine of $5,000, and to perform 600 hours of public service.

The defendant contends on appeal she was not proven guilty beyond a reasonable doubt. It is axiomatic that a court of review will not set aside a criminal conviction unless the evidence is so unsatisfactory that a reasonable doubt of the defendant’s guilt is created. (People v. Hooper (1989), 133 Ill. 2d 469, 552 N.E.2d 684.) Viewing the evidence in the light most favorable to the State convinces us that a rational trier of fact could have found the defendant guilty of theft beyond a reasonable doubt.

The evidence at trial established the defendant worked at Martin Foods in Morton, Illinois, from 1974 through September 8, 1987, where she was employed as the head cashier. As head cashier, the defendant was one of the few employees trained to operate the office cash register. The defendant also was the only employee at Martin Foods who regularly did not work on Wednesdays and Sundays.

Bert Zehr, the computer manager at Martin Foods, testified that during the morning of September 5, 1987, while running a computer check on soda proceeds, he noticed approximately $185 worth of voids on his computer. Voids result from returns of merchandise and cashier errors. Returns of merchandise signify that money leaves the store in contrast to merely being a cashier error. Zehr found the amount of voids to be unusually large. Later that day, Zehr received information indicating an additional $259.95 in voids had been rung up on the office register sometime between 2 a.m. and 7:30 a.m.

On Monday, September 7, 1987, the defendant was working at the office register when Zehr came to work at 5:45 a.m. Zehr, already suspicious of the defendant’s actions, entered through a back door in order to run another computer check on the office register without the defendant’s knowledge of such. At 5:53 a.m., Zehr ran a report on the computer, which showed $100 worth of voids on the office register. Zehr ran a second report two minutes later which showed $220 worth of voids on the office register. Zehr concluded that during those two minutes somebody in the office was voiding sales off the register while his reports were being conducted. The only person working in the office at that time was the defendant.

Zehr also determined that no items were voided off the two other night group operating cash registers in the store since those registers had been reset to zero. During this period, however, 213 items had been voided off the office register. Zehr was further able to conclude that money belonging to Martin Foods had actually left the store that day because the two other night group cash registers had not rung up as much in sales as the amount voided off the office register. Zehr identified the defendant as the operator of the office register.

Zehr further maintained that a detailed tape of transactions made on the office register for Monday, September 7, 1987, was recovered from the garbage in the office on that date. From examining the tape, Zehr was able to determine that dark markings were made on the tape by someone manipulating the printing wheel so that information was being printed over itself. He was able to pinpoint the time of the occurrence at between 5:49 a.m. and 5:56 a.m. on September 7, 1987, when the defendant was working in the office and while Zehr was running his reports.

Don Harris, the manager at Martin Foods, stated that he compiled a listing of all voids made from 1984 through and including 1987. The records showed that the percentage of voids decreased dramatically on the days of the week the defendant did not work, Wednesdays and Sundays. He also pointed out that after the defendant was fired the amount of voids decreased by $600 per week. Harris noted the defendant was the only employee who regularly took Wednesday and Sunday off.

Officer Michael Dunlap of the Morton police department related that as the investigating officer in the instant case he prepared summaries of void records for Martin Foods made between 1984 and 1987. Dunlap, essentially confirming Harris’ testimony, found that the number of voids made on Wednesdays and Sundays was significantly lower than on the other days of the week.

Pauline Vaughan, a cashier at Martin Foods, testified that while working at Martin, she and the defendant went out for lunch or shopping three to four times per week and that the defendant would purchase outfits perhaps once per week. She recalled how the defendant always dressed nicely and wore jewelry.

Kathy Bassette, a neighbor of the defendant, recalled that between 1984 and 1987 she observed a Jeep, two Firebirds, a Corvette, and a Blazer at the defendant’s residence. She also observed two snowmobiles, two three-wheelers, a bass boat, porch construction, deck construction, and in-ground swimming pool construction. She further observed a UPS truck delivering packages at the defendant’s residence three to four times per week.

The defendant’s husband Randall Stell testified he is employed by Caterpillar Tractor Company as a photographer and also maintains his own photography business. He indicated that from 1984 through 1987 his parents had given him cash, which he deposited in his and the defendant’s account. Randall further related that the defendant’s parents had given him cash and that his mother-in-law had given the defendant’s son, Jason, a $10,000 CD for college and that his father-in-law also gave him cash on occasion. He added that his parents were still giving money to the defendant and him and that the last check he received from his parents was in the amount of $9,999.95 in May of 1989.

The defendant’s father, James Theyse, testified that during the years 1984-1987 he had given his daughter $4,000 to $5,000 per year and that in 1986 he started a college fund for Jason. Joanne Theyse, the defendant’s mother, stated she had always given money to Jason, and that she had given him the $10,000 CD and other gifts totalling $7,000.

Virgil Ligenfelter, Randall’s stepfather, confirmed that he had given $29,400 and an additional $9,995 in 1989 to the defendant and Randall. He gave the $29,400 in cash.

The defendant testified that in addition to her and Randall’s earnings, they had inherited $25,000 from Randall’s grandfather, and received an additional $27,000 from the sale of a house in 1978. With these funds, the defendant and Randall purchased stock and a bass boat. The boat was sold in 1984 for $6,000. In 1985, they received $8,000 in insurance proceeds from the damage to two snowmobiles in an automobile accident and did not replace the snowmobiles. She also confirmed receiving amounts of money from various members of her family.

The defendant contends that the State failed to establish the corpus delicti beyond a reasonable doubt. Defendant maintains that the State failed to prove, by direct evidence, an asportation.

The issue presented is whether the State proved the corpus delicti of the offense charged. In People v. Lambert (1984), 104 Ill. 2d 375, 378, 472 N.E.2d 427, our supreme court, following their dictates in People v. Kirilenko (1953), 1 Ill. 2d 90, 115 N.E.2d 297, stated:

“It is a basic concept in criminal law that proof of a criminal offense involves the proof of two distinct propositions or facts beyond a reasonable doubt. First, that a crime was committed, and second, that it was committed by the person or persons charged. In other words, *** ‘the corpus delicti must be proved and the identity of the defendant as the guilty party must be established.’ ”

Corpus delicti may be proved by circumstantial evidence or by the defendant’s own testimony given in defense which may be judged by its improbabilities. (People v. Daniels (1983), 113 Ill. App. 3d 523, 447 N.E.2d 508.) Intent and unauthorized control can be proved by circumstantial evidence. (People v. Meyer (1982), 110 Ill. App. 3d 673, 442 N.E.2d 957.) Where an element of the State’s case is proved circumstantially, the proof must be of a conclusive nature, producing a reasonable and moral certainty of the defendant’s guilt and excluding any reasonable hypothesis of innocence. (People v. Williams (1980), 85 Ill. App. 3d 850, 407 N.E.2d 608.) The trier of fact need not accept the defendant’s version of the facts but may consider its probability in light of the surrounding circumstances. People v. Talach (1983), 114 Ill. App. 3d 813, 448 N.E.2d 638.

In the instant case, the trial court had to find: (1) Martin Foods was the owner of the money in question; (2) the defendant knowingly exerted unauthorized control over the money; (3) the defendant intended to permanently deprive Martin Foods of the use or benefit of the money; and (4) the money which the defendant controlled without authorization had a value in excess of $300.

The evidence shows that during the period of September 4, 1987, through September 7, 1987, the defendant appropriated money belonging to Martin Foods in excess of $300. What Zehr uncovered while reviewing the computer data has not and cannot be explained or attributed to anyone other than the defendant. The defendant was the only person working in the store office at the time, was the only person working in the office on the very register showing a discrepancy, was the only employee at work on September 7, 1987, trained to operate the office register, and there was no evidence of anyone returning large quantities of merchandise to Martin Foods which would explain the unusually large amount of voids. To further corroborate the State's case, the two other night group cash registers had not rung up as much in sales as the amount voided off the office register. Add to this evidence the other uncontradicted evidence showing that the percentage of voids over a four-year period dramatically decreased on those days on which the defendant did not work, coupled with the fact that the voids decreased weekly by over $600 after the defendant was fired, and we find a factually one-sided case. Therefore, after reviewing the evidence in the light most favorable to the State, we find a rational trier of fact could have found the elements of theft established beyond a reasonable doubt.

For these reasons, we affirm the judgment of the circuit court of Tazewell County.

Affirmed.

BARRY, P.J., and HAASE, J., concur.


text:
      In re A.H., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Tamica Owens, Respondent-Appellant).
    Third District
    No. 3-91-0257
    Opinion filed January 10, 1992.
    Philip M. Pollock, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Jay P. Hoffmann, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HAASE

delivered the opinion of the court:

The trial court found that following a prior adjudication of neglect, respondent Tamica Owens had failed to remedy the problems that had led to the removal of her son, A.H., and had failed to make reasonable progress towards the return of the child within 12 months of the removal. The court thereafter terminated her parental rights to A.H. Owens appeals.

According to the record, Tamica Owens was 22 years old at the time of the hearing to terminate her parental rights. By that time she had had four children out of wedlock, including her youngest child, A.H. Owens may have attended some high school but did not graduate. She had no car, no telephone, and had worked only infrequently for short periods of time. She had been on public aid since she had her first child at age 16. Public aid provided her with $403 a month and food stamps. She and her children lived with her cousin and his wife.

A.H. was born prematurely and had developed an infection of his bowel. As a result, most of his bowel was surgically removed. Because of that, he had chronic diarrhea and difficulty absorbing foods and fluids. He required a special diet, medication, frequent visits to the doctor, and a great deal of care. On March 15, 1989, A.H. was adjudicated a neglected minor because Owens was unable to provide the care he needed. On April 12, 1989, the Department of Children and Family Services was awarded custody.

On July 19, 1990, the State filed a supplemental petition for termination of Owens’ parental rights. The petition alleged that Owens had failed to make reasonable efforts within 12 months of the adjudication of neglect to correct the conditions which caused the removal of the child. It also alleged that she had failed to make reasonable progress toward the return of the child within 12 months of the adjudication of neglect. The court held a hearing on the petition and various witnesses testified.

Dr. John Galbreath testified that he was A.H.’s physician. He indicated that A.H.’s medical problems still existed, but he no longer got sick quite as often because he was older. Although A.H. no longer needed to go to the doctor every week, he still needed to go on a regular basis. Dr. Galbreath testified that while A.H.’s problems would probably decrease when he was toilet trained, he would still require a special diet.

Foster care caseworker Bobbie Bess testified that she had been the primary caseworker for A.H. between October 27, 1988, and April 2, 1990. She stated that she prepared client service plans that set forth goals Owens was to accomplish to demonstrate her ability to parent A.H. properly. Bess testified that although Owens had met some of the goals, she had failed to accomplish others.

Under the service plans, Owens was to visit with A.H. weekly. Bess indicated that Owens’ attendance was poor. Several months, Owens visited only once or twice if at all. Additionally, Owens was to provide a stable home environment. However, she frequently moved and at the time of the hearing was on a waiting list to move again. Finally, under the plans, Owens was to regularly attend A.H.’s doctor appointments so she could learn to properly care for him. Despite the importance of these visits, between March of 1989 and March of 1990, Owens attended only 12 of A.H.’s 47 doctor appointments.

Foster care caseworker Linda Derkin testified that A.H. had been in his current foster placement for six or seven months. He was doing well in preschool and was more active. In her opinion, he was developing into a normal three-year-old boy.

Owens testified that she had failed to attend many visits with A.H. and the doctor because she did not have adequate child care. She stated that she knew how to take care of A.H., including how to change his diaper and apply the proper medicine. She also indicated that she was able to take care of her other three children.

Owens’ mother, Jules Sanchez, testified that although she was a licensed foster parent, she had been advised by someone from the State that Owens could not live with her. It was her opinion that Owens had a loving, mother-child relationship with A.H. She also thought that Owens had matured and took good care of her other children.

The trial court held that the respondent had failed to make reasonable efforts to correct conditions existing at the time custody was taken away and had failed to make reasonable progress toward the return of the child. It therefore held that she was unfit. The court subsequently found that it was in A.H.’s best interests to terminate the respondent’s parental rights. The respondent appeals.

On appeal, the respondent first contends that the State failed to prove by clear and convincing evidence that she was unfit. She argues that her efforts and progress were reasonable when considered in light of her disadvantages. We disagree.

The question of what is a reasonable effort involves a subjective judgment based upon the amount of effort which was reasonable for a particular person. (In re Doolan (1981), 101 Ill. App. 3d 322, 427 N.E.2d 1348.) In contrast, whether a parent’s progress is reasonable involves an objective judgment based upon the amount of progress measured from the conditions existing at the time custody was taken from the parent. (In re Doolan (1981), 101 Ill. App. 3d 322, 427 N.E.2d 1348.) Failure to make reasonable efforts to correct conditions and failure to make reasonable progress toward the return of the child are independent bases for a finding of unfitness. In re Allen (1988), 172 Ill. App. 3d 950, 527 N.E.2d 647.

In the instant case, the trial court had enough evidence to find not only that the respondent failed to make reasonable progress, but also that she failed to make reasonable efforts toward the return of the child. We recognize that the respondent faced some obstacles because she was poor, had a limited education, and had three other children to care for. However, facing such obstacles did not preclude her from making reasonable efforts to prepare herself to properly care for A.H.

Even though the respondent was told how important it was that she learn to care for A.H., only rarely did she show up for his doctor appointments. She contends that she missed his appointments because she was unable to arrange for someone to take care of her other children. We find, however, that her inability to make such simple arrangements did not bode well for her ability to meet A.H.’s special needs. Furthermore, the record does not indicate that the respondent has taken any steps that would help assure she could make future appointments. Accordingly, we find that the trial court did not err in finding the respondent unfit.

The respondent’s second argument on appeal is that the State failed to prove by clear and convincing evidence that the termination of her parental rights was in the best interest of the minor child. In support of this argument, the respondent contends that she has matured and A.H.’s condition has stabilized. She also contends that the trial court based its determinations on improper moral judgments. We disagree.

Although caring for A.H. may be less demanding than it once was, he still requires much more care than a healthy child. Since the respondent failed to show up for A.H.’s doctor appointments, it seems risky at best to entrust his care to the respondent. The respondent is still faced with the same problems that prevented her from attending earlier doctor visits. If the respondent’s parental rights were reinstated, the fact that A.H. needs to go to the doctor less frequently would only mean that he would have fewer appointments for the respondent to miss, not that the respondent would become more responsible.

With the exception of her mother’s testimony, there is little in the record to indicate that the respondent has significantly matured. In fact, she dropped out of a program designed to help her get her GED, despite the fact that she was told of an organization that would provide transportation for her and her children to the GED classes.

Finally, the record does not appear to support her claim that the trial court based its decision on improper moral considerations. In announcing its decision at the unfitness hearing, the trial court specifically indicated that it was not judging the respondent as a person and saying she was bad. Likewise, in announcing its decision at the best interest hearing, the court indicated that it was not saying whether the respondent made good or bad judgments. Rather, the court used relevant and important factors in making its decision.

The court indicated that A.H. was a good candidate for adoption despite his medical problems. The court noted that it did not believe that A.H. would get the attention he needed from the respondent. It also indicated that it doubted the respondent’s family would aid significantly in meeting the basic needs of the respondent and her children. Accordingly, we find that the trial court’s determination was based upon proper factors and supported by clear and convincing evidence. Giacopelli v. Florence Crittenton Home (1959), 16 Ill. 2d 556, 158 N.E.2d 613 (A natural parent’s right to the custody of her child is not absolute and must yield to the best interests of the child).

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

Affirmed.

BARRY and McCUSKEY, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY T. BULLARD, Defendant-Appellant.
    Third District
    No. 3 — 90—0869
    Opinion filed January 10, 1992.
    Frank W. Ralph, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The defendant, Gary T. Bullard, entered a blind plea of guilty to a charge of theft of over $300 (Ill. Rev. Stat. 1989, ch. 38, par. 16— 1(a)(1)). The trial court thereafter sentenced him to an extended eight-year term of imprisonment. The defendant subsequently filed a “Motion to Withdraw Guilty Plea and Vacate the Judgment.” Following a hearing, the court denied the motion. The defendant appeals.

The only argument the defendant raises on appeal is that this cause should be remanded to the trial court for a new hearing on his motion to withdraw his guilty plea because his trial counsel failed to fully comply with Supreme Court Rule 604(d) (134 Ill. 2d R. 604(d)). The evidence relevant to this issue shows that following his sentencing, the defendant sent a note to the trial court asking for permission to withdraw his guilty plea. The court contacted the defendant’s attorney about the request. Thereafter, defense counsel prepared the above-noted “Motion to Withdraw Guilty Plea and Vacate the Judgment.” The only ground for withdrawal cited in the motion was the assertion that the sentence was excessive. Defense counsel also filed a Rule 604(d) certificate stating that he had consulted with the defendant in person, had examined the trial court file, and had been informed by the defendant that he believed his sentence was excessive. At the hearing on the motion, defense counsel stated that the defendant had been properly admonished prior to pleading guilty and that the sole basis for filing the motion was to allege that the sentence was excessive.

The defendant now argues that his counsel erred in failing to review a transcript of the proceedings of his guilty plea hearing, as is required by Rule 604(d). We disagree.

Supreme Court Rule 604(d) states that before an appeal from a judgment entered on a guilty plea may be taken, the defendant, "within 30 days of his sentencing, must file in the trial court a motion to withdraw his guilty plea and vacate the judgment. (134 Ill. 2d R. 604(d).) In preparing the motion to withdraw the guilty plea, defense counsel is required to file a certificate attesting to the fact that he has examined the trial court file and report of proceedings and has consulted with the defendant either by mail or in person to ascertain his contentions of error. (134 Ill. 2d R. 604(d).) The requirements of Rule 604(d) must be strictly met. People v. Vickery (1991), 207 Ill. App. 3d 574, 566 N.E.2d 495.

However, in People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218, the Illinois Supreme Court held that when the defendant is only complaining about his sentence, it is sufficient if prior to appeal he files a motion attacking only the sentence. (People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334.) Such a motion to reconsider the sentence gives the trial court the necessary opportunity to review the appropriateness of the sentence imposed and correct any errors made. It is not necessary for the defendant to ask for leave to withdraw the guilty plea itself. People v. Wallace (1991), 143 Ill. 2d 59, 570 N.E.2d 334; People v. Wilk (1988), 124 Ill. 2d 93, 529 N.E.2d 218.

Based on this same reasoning, in People v. Jordan (1991), 209 Ill. App. 3d 983, 568 N.E.2d 988, we found no error where counsel failed to file a Rule 604(d) certificate along with a motion to reconsider sentence. We noted that a motion to reconsider sentence is fundamentally different from a motion to withdraw a guilty plea. The former seeks review of the sentence imposed, while the latter raises issues relating to the validity of the guilty plea. We held that since the motions are different and Rule 604 imposes no certificate requirement on a motion to reconsider the sentence, defense counsel was not required to file a certificate.

In this case, the only ground given for withdrawal of the guilty plea was that the sentence was excessive. Further, the Rule 604(d) certifícate filed with the court reiterated that the defendant was only contesting his sentence. Finally, defense counsel stated at the hearing on the motion that the defendant had been properly admonished and that he was only contesting the sentence. Thus, although defense counsel titled the motion “Motion to Withdraw Guilty Plea and Vacate the Judgment,” it is clear that it was in reality a motion to reconsider sentence. If we were to treat this motion as a motion to withdraw a guilty plea, we would be exalting form over substance.

Inasmuch as the defendant’s mistitled motion was actually a motion to reconsider sentence, it did not require a Rule 604(d) certificate and counsel was not required to review the transcript of the guilty plea proceedings, since those proceedings had nothing to do with the length of the sentence imposed. We therefore find no error in counsel’s failure to review the transcript or in the contents of his unnecessary Rule 604(d) certificate.

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

Affirmed.

McCUSKEY and SLATER, JJ., concur.


author: JUSTICE STEIGMANN

text:
      In re S.M., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Rebecca Hoffman, Respondent-Appellant).
    Fourth District
    No. 4 — 91—0270
    Opinion filed January 16, 1992.
    Rehearing denied February 13,1992.

      Lynne R. Feldman, of Pavia & Marsh, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1987, at a juvenile court dispositional hearing, the trial court adjudicated respondent minor, S.M. (born July 13, 1976), a ward of the court. The court based this adjudication upon its earlier finding that S.M. and his siblings were abused minors because their environment was injurious to their welfare when they resided with their respondent mother, Rebecca Hoffman. (See Ill. Rev. Stat. 1985, ch. 37, par. 702 — 4(2)(b).) The trial court also found that Hoffman was unable, for reasons other than financial circumstances alone, to care for, protect, train, or discipline S.M. and his siblings, and that reasonable and appropriate services had been unavailing in removing the circumstances that led to the court’s finding. See Ill. Rev. Stat. 1985, ch. 37, par. 705-7(1).

The trial court entered a written dispositional order, which concluded as follows: “This court retains jurisdiction of this cause for the entry of such orders as may be necessary from time to time in the best interests of the respondent minors and justice.” The court also set the case for the initial review of its dispositional order in late October 1987 (see Ill. Rev. Stat. 1985, ch. 37, par. 705 — 8(1)) and outlined in detail the steps Hoffman and S.M.’s father would have to take in order to regain custody of S.M. and his siblings. The court then appointed the Illinois Department of Children and Family Services (DCFS) as S.M.’s guardian, with the power to place S.M. After the July 1987 dispositional hearing, DCFS placed S.M. in a new home.

Beginning in October 1987, the trial court conducted periodic reviews of its July 1987 dispositional order so as to determine what, if any, modifications thereof would be appropriate. At these review hearings, the court considered the behavior of the respondent parents since the previous review hearing and the effect, if any, of that behavior upon the best interests of the children. As a result of one such review hearing, conducted in July 1990, the trial court determined that custody of S.M. could be returned to Hoffman and so ordered.

In October 1990, the State filed a petition for change of custody, seeking to have the custody of S.M. removed from Hoffman, with authority to be given to DCFS to determine once again with whom S.M. should be placed. On the day the State filed that petition, the court conducted a shelter-care hearing, pursuant to a request therefor contained in the State’s petition, and ordered S.M. temporarily removed from Hoffman’s custody.

In November 1990, the court conducted a hearing on the State’s petition for change of custody and granted it, finding again that Hoffman was unable for reasons other than financial circumstances alone to care for, protect, train, and discipline S.M. The court again indicated that DCFS, S.M.’s guardian, should place S.M. out of his mother’s home.

Hoffman appeals that order, arguing that (1) the State’s October 1990 petition to change custody failed to state a sufficient cause of action, (2) the State failed to give Hoffman proper notice of the hearing on that petition, and (3) the State failed to show the presence of an immediate necessity for temporary custody, which formed the basis of the trial court’s order pursuant to the petition.

We affirm.

On appeal, Hoffman first argues that the State’s October 1990 petition for change of custody did not allege facts to put Hoffman on notice of the charges against which she had to defend. In support of this argument, Hoffman cites two decisions of this court, In re G.W.S. (1990), 196 Ill. App. 3d 107, 553 N.E.2d 85, and In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242. However, both of those cases are distinguishable because they involved the sufficiency of pleadings alleging either that the court should terminate parental rights (G.W.S., 196 Ill. App. 3d at 108-09, 553 N.E.2d at 86-87), or that the trial court should find a minor abused (Harpman, 146 Ill. App. 3d at 507, 496 N.E.2d at 1243).

In the present case, the court has already adjudicated the minor in question, S.M., an abused minor and made him a ward of the court. The only issue raised by the State’s October 1990 petition to change custody was whether the trial court should again modify the dispositional order initially entered in July 1987 and periodically reviewed thereafter. We hold that the pleading requirements that apply to initial petitions for adjudication, seeking either a finding of abuse or a termination of parental rights, do not apply to petitions to modify dispositional orders, which is what the State’s October 1990 petition should properly have been entitled.

Regarding Hoffman’s claim that “[d]ue process requires that the [October 1990] petition *** set forth with particularity specific grounds,” we hold that Hoffman received all the process she was due when that petition informed her that “it is in the best interest of the public and [S.M.] that custody of [S.M.] be removed from [Hoffman] and placed with [DCFS].” That allegation notified Hoffman of the focus of the hearing. Due process requires nothing more when the State seeks nothing more than a modification of a dispositional order.

We note that the State’s October 1990 petition is somewhat difficult to understand procedurally. Because the State requested that S.M. be placed in shelter care, that petition sounded like a petition for finding of abuse, to be preceded by a shelter-care hearing conducted under section 2 — 10 of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10). The State should have entitled its October 1990 petition as a petition to modify the dispositional order, and it should have made no reference to seeking shelter care. However, the sloppiness of the State’s petition did not deprive Hoffman of notice because the substance of the petition made clear the State’s intent to seek to modify the dispositional order.

Section 2 — 28 of the Act governs court proceedings to review dispositional orders. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 28.) Section 2 — 28(3) reads as follows:

“The minor or any person interested in the minor may apply to the court for a change in custody of the minor and the appointment of a new custodian or guardian of the person or for the restoration of the minor to the custody of his parents or former guardian or custodian.” (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 28(3).)

Petitions brought pursuant to that section, such as the petition in the present case, do not implicate the same procedural requirements applicable to petitions filed for relief under the Act prior to adjudicatory hearings, which are conducted under section 2 — 21. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 21.) Hearings conducted under section 2 — 28(3) of the Act are simply further dispositional hearings, conducted in accordance with section 2 — 22(1) of the Act, which governs how dispositional hearings are to be held. (See Ill. Rev. Stat. 1989, ch. 37, pars. 802 — 28(3), 802 — 22(1).) The rules of evidence that apply to dispositional hearings conducted under section 2 — 22(1) also apply to hearings conducted on petitions filed seeking relief under section 2 — 28(3).

Also, just as the court at the dispositional hearing conducted under section 2 — 22(1) of the Act “shall determine the proper disposition best serving the interests of the minor and the public,” so should a court, hearing a petition brought under section 2 — 28(3), “determine the proper disposition best serving the interests of the minor and the public.” The court’s determination is the same in each instance, with the matter of the “proper disposition best serving the interests of the minor and the public” being left to the sound discretion of the trial court. On appeal, the trial court’s exercise of that discretion will not be reversed unless it is against the manifest weight of the evidence. In re J.K.F. (1988), 174 Ill. App. 3d 732, 734, 529 N.E.2d 92, 93-94.

Hoffman next argues that the State’s October 1990 petition for change of custody failed to comply with the 10-day notice requirement of section 2 — 28(2) of the Act. (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 28(2).) That section requires, in part, that every agency having guardianship of a child file a supplemental petition for court review every 18 months, stating facts relative to the child’s condition. That section further requires that the petition be set for hearing and that the clerk shall give 10 days’ notice of the hearing by certified mail to various interested parties, including the respondent parents. Clearly, the routine reviews of the guardian’s stewardship of the court’s wards mandated by section 2 — 28(2) differ from proceedings brought under section 2 — 28(3) as a result of a petition by “any person interested in the minor” seeking a change in the minor’s dispositional order. We hold that the 10-day notice provision of section 2 — 28(2) of the Act does not apply to proceedings conducted under section 2 — 28(3) of the Act. Ill. Rev. Stat. 1989, ch. 37, pars. 802 — 28(2), (3).

Hoffman last argues that the trial court erred by temporarily changing S.M.’s custody on the date the State filed its October 1990 petition for a change of custody because the State presented no evidence showing “any immediate necessity” for the court to enter that order. However, the court did not need to make such a finding in order to temporarily modify a dispositional order pursuant to a petition brought under section 2 — 28(3) of the Act. (See Ill. Rev. Stat. 1989, ch. 37, par. 802 — 28(3).) A finding that “it is a matter of immediate and urgent necessity for the protection of the minor” that the trial court place him in a shelter-care facility is only required at shelter-care hearings conducted under section 2 — 10 of the Act (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 10), i.e., those occurring prior to any formal finding or adjudication of abuse or wardship. The trial court probably made the finding that it did — that it was a matter of immediate and urgent necessity that a temporary custodian be appointed for S.M.— because the State erroneously requested that action in its October 1990 petition. However, this court will not reverse the trial court’s order on the basis that the State provided insufficient evidence to support a finding that the trial court did not have to make.

The issue before the trial court in November 1990, when it conducted the formal hearing on the State’s October 1990 petition for a change of custody, was whether the best interests of the minor and the public required the court to modify its previously entered dispositional order. The trial court found the evidence sufficient and so ordered. The evidence presented at that hearing clearly demonstrated that Hoffman, while living in Tennessee, had essentially abandoned S.M. to the care and custody of her 18-year-old daughter, then living in Urbana, Illinois. Based upon this evidence, the trial court properly exercised its discretion (see J.K.F., 174 Ill. App. at 734, 529 N.E.2d at 93-94) in modifying its previous dispositional order by removing S.M. from Hoffman’s custody and placing him with a custodian to be determined by his guardian, DCFS.

For the reasons stated, the judgment of the circuit court is affirmed.

Affirmed.

GREEN, P.J., and McCULLOUGH, J., concur.