text:
      In re MARRIAGE OF MARY FRANCES SCHROEDER, Petitioner-Appellant, and PAUL D. SCHROEDER, Respondent-Appellee.
    Fourth District
    No. 4—90—0178
    Opinion filed June 18, 1991.

      Ted E. Barylske, of Alton, for appellant.
    Michael J. McDonald and Howard Lee White, both of Schwarz, Self, White, Emons & McDonald, of Jerseyville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

After a contested hearing on issues other than grounds, a judgment of dissolution of marriage was entered for petitioner Mary Schroeder and respondent Paul Schroeder on November 15, 1989. Following petitioner’s motion for reconsideration of the issues of child support and maintenance, division of property, and allocation of marital debt and medical expenses, the trial court reaffirmed as to all matters disputed in this appeal.

Petitioner and respondent were married in May 1969. In 1976, the parties purchased the marital home in Jerseyville, Illinois, as well as the real estate and business now called “Jacoby-Schroeder Funeral Home,” which respondent has operated since that time as a sole proprietorship. Respondent also has been employed since 1972 as Jersey County coroner. Five children were born to the marriage, four of whom were minors at the time of judgment, the youngest being 6 and the oldest being 16 years of age. Until the time of filing the petition for dissolution, petitioner had not worked outside the home, but then obtained part-time employment earning approximately $380 gross per month.

To determine “net income” for purposes of respondent’s child support obligation, the trial court averaged weighted business earnings of the funeral home proprietorship for the six years 1984 through 1989, represented by 1984 through 1988 income tax returns and a 1989 projected-income “statement” prepared by respondent’s accountant. The court then added respondent’s 1988 coroner’s salary and deducted 25% for Federal and State taxes and 13.2% for self-employment FICA taxes. The court arrived at a weighted average net income of $47,767 and assessed respondent’s monthly child support obligation at $1,592 for the four minor children, in accordance with the 40% minimum statutory guideline of section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)).

The 1987 and 1988 business income of the parties, as established by their income tax returns, was $102,629 and $112,085, respectively. Respondent projected 1989 business income at $24,879. The reliability of the 1989 business-income projection was disputed at trial and, on the basis of cash receipts, data for the first six months of 1989 indicates an income level at least equivalent to that of 1988.

In allocating the equity value of marital property, the court awarded petitioner $15,873, represented primarily by a newly purchased second residence for petitioner and the children and one automobile. Respondent received marital property with an equity value calculated at $47,032, represented primarily by the marital home; three automobiles; and the funeral home, land, building, and assets — the only income-producing property.

In addition, the court awarded petitioner $40,000 as maintenance in gross, payable over a 10-year period at $333.33 per month. Further, respondent was to maintain the health insurance on the four minor children and the parties were each to pay one-half of any uncovered medical expense incurred on behalf of the minor children.

Petitioner obtained appraisals on the two residences, the funeral home business, and the personal property of the parties, which were submitted at trial as joint exhibits. Petitioner paid the $1,100 appraiser’s fee with money borrowed from her parents.

Pursuant to stipulation of the parties, the court’s February 1988 order awarded petitioner temporary child support and maintenance, and ordered respondent to pay the mortgage on petitioner’s residence (purchased jointly by the parties to allow respondent to continue occupancy of the marital residence). At the time of judgment, the court ordered the mortgage payments made by respondent during 1989 pursuant to the temporary order of 1988 be designated as maintenance paid by respondent and received by plaintiff.

On appeal, petitioner argues the trial court erred in the following respects: (1) averaging six years’ business profit, as an improper method of determining net income as defined under section 505(aX3) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3)), resulting in an erroneous child support award below the minimum statutory percentage; (2) apportioning of the minor children’s contingent medical expenses uncovered by insurance; (3) failing to consider the circumstances of the parties as enumerated in the statutory factors of section 503(d) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)), as shown by the award of 75% of the equity value of marital property to respondent and 25% to petitioner; (4) failing to consider the factors under section 504(b) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)) in its award of maintenance; (5) designating the payment for appraisal fees; and (6) designating as maintenance the mortgage paid by respondent in 1989 pursuant to the temporary order of 1988 in that (a) such designation amounted to a retroactive modification of the parties’ agreement on temporary matters and (b) the court lacked jurisdiction to modify the order for temporary support as no petition requesting modification had been filed by either party pursuant to the provisions of section 501(d) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 501(d)).

As most of the issues cited by petitioner are contingent on the amount of income available to respondent, we first consider the trial court’s method of calculating net income. As a preliminary matter, respondent first argues the trial court made sufficient findings to support a deviation from the statutory guidelines for minimum child support under section 505(a)(2) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2)). This contention is without merit. The record makes clear the trial court intended to comport with the 40% minimum statutory guideline when it determined respondent’s net income was $47,767 and set respondent’s support obligation at $1,592 per month. The issue then becomes whether the court’s methodology for calculating “net income” by use of a weighted six-year average comports with requirements of the statute.

“Net income” under the Act is defined as income from all sources minus deductions for “properly calculated” Federal and State income taxes, and social security payments. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3).) The requirement of properly calculated deductions necessitates the use of a base figure extracted from the most recent accurate income data (see In re Marriage of Werner (1986), 144 Ill. App. 3d 263, 266, 493 N.E.2d 1199, 1201; see also In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 324, 523 N.E.2d 573, 578), and militates against a methodology of averaging, including the weighted averaging employed here.

Petitioner argues the use of a six-year weighted income average amounts in essence to a deduction from current income for prior years when income levels were lower, and there is no provision for such a deduction under 505(a)(3) of the Act. While we cannot agree an average of six years’ income amounts to an improper “deduction” from net income, it is apparent data six years old cannot reflect the current circumstances of the parties to enable the court to comport with (or deviate from) the guidelines under section 505(a) of the Act. In Smith v. Smith (1979), 73 Ill. App. 3d 423, 392 N.E.2d 292, the court found that entry of a judgment, including provisions for child support and maintenance, six years after the last hearing on the circumstances of the parties was unreasonable at the time of entry and, further, would be immune from modification on the basis of changed circumstances because the condition of the parties at judgment had not been considered. (Smith, 73 Ill. App. 3d at 426, 392 N.E.2d at 295.) Similarly, in this case, the use of income data going back six years violates the purpose of the Act to make reasonable provision for spouses and minor children during and after litigation. Ill. Rev. Stat. 1989, ch. 40, par. 102(5); In re Marriage of Brand (1984), 123 Ill. App. 3d 1047, 463 N.E.2d 1037.

While it is appropriate to consider prior years’ documentation to ascertain income trends when future income is uncertain (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 436 N.E.2d 561; In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641), we conclude deviations from reliable current income data require a compelling showing of a definitive pattern of economic reversals. No such showing is presented by the facts of this case. Indeed, with the exception of 1986, when respondent earned approximately $1,500 less than in 1985, the income-tax returns for the five years prior to trial indicate respondent’s business profits substantially increased from year to year; 1988 profits were over five times greater than 1983 profits.

Respondent’s unaudited 1989 business statements and income projections raise substantial doubt as to the propriety of expense deductions, purchase of assets unaccounted for, accelerated debt payment, and bad-debt write-offs. Furthermore, both the cash flow into the business and respondent’s draw as proprietor for the first six months of 1989 exceed those amounts for a similar period in 1988, leaving the projected 75% profit downturn substantially unsupported. The evidence fails to support reliability of the 1989 data. Therefore, the most current reliable evidence of net income before the court was the 1988 income-tax return signed by both parties and submitted to Internal Revenue Service. Based on the 1988 income-tax return, respondent’s monthly child support obligation of $1,592 falls below the statutory minimum support guidelines of section 505(a) of the Act, while the monthly sum of $3,025 requested by petitioner appears more in line with those guidelines. The trial court’s use of the 1989 data and its methodology of calculating net income by a formula of averaging six years’ weighted business profit was an abuse of discretion and must be set aside. We therefore reverse and remand for a redetermination of respondent’s child support obligations based on reliable evidence of respondent’s net income before the court at the time of trial.

It is within the sound discretion of the trial court to order payment of a health insurance premium (In re Marriage of Piktel (1980), 81 Ill. App. 3d 567, 401 N.E.2d 584; In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156); and there are few discernible guidelines regarding contingent medical expenses not covered by such insurance. However, in view of the disparate financial circumstances of the parties, the fact that respondent can affect the amount of contingent medical expense by his choice of a health insurance plan and uncovered expenses for the four minor children might well be substantial, and since we are remanding for recalculation of respondent’s net income, we also reverse and remand for the trial court’s further consideration the issue of allocation of the children’s contingent medical expenses not covered by insurance.

Petitioner next contends that in awarding respondent 75% of the equity value of marital assets, the court failed to consider the statutory factors under section 503(d) of the Act, designed to place the parties in a position from which they can begin anew, and that she has been denied sufficient assets with which to start over. Section 503(d) requires marital property be divided in just proportions considering all relevant factors. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d).) Just proportions means an equitable rather than an equal distribution, which will not be disturbed on appeal in the absence of a finding of abuse of discretion. (In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 507 N.E.2d 900; Wade, 158 Ill. App. 3d 255, 511 N.E.2d 156.) The test for abuse of discretion in property distribution is “whether the trial court acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason and ignored recognized principles of law so that substantial injustice resulted.” Stone, 155 Ill. App. 3d at 75, 507 N.E.2d at 908.

Respondent’s 75% share of the marital estate included the only income-producing property, the family funeral home business. An equitable distribution of marital property mandates consideration of the factors specified in section 503(d). The record does not show the trial court addressed the statutory factors in awarding respondent the bulk of the marital assets as well as the income-producing funeral home business — realistically appropriate since only respondent has the necessary expertise — with no offset payment. We therefore reverse and remand the issue of property division for consideration in light of the statutory factors under section 503(d), and the necessary recalculation of net income, which impacts the economic circumstances of the parties. When it is necessary to award large or income-producing assets to one spouse, the court can comport with the mandates of section 503(d) by authorizing offsetting payments (In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 399 N.E.2d 1006), as respondent offered to make here.

A maintenance award under section 504 of the Act requires a two-step analysis. The court is first to determine the propriety of an award under section 504(a) (Ill. Rev. Stat. 1989, ch. 40, par. 504(a)) and, if deemed appropriate, consideration must be given to the statutory factors under section 504(b) to determine the amount and duration of the award. (In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 534 N.E.2d 1014.) The trial court properly determined a maintenance award was required; therefore, the statutory factors must be considered to determine the amount of that award. Those factors include the resources of the party seeking maintenance, including apportioned marital property; the standard of living established during the marriage and its duration; and the financial resources of the spouse from whom maintenance is sought to meet his needs while meeting those of his former spouse. A comparison of these statutory factors, as against the economic status of each of the parties, compels the conclusion a maintenance in gross award of $40,000, payable over 10 years at $333 a month, is inadequate to meet even petitioner’s basic needs. In anticipation of the dissolution, the parties jointly purchased a residence for petitioner and the five children in order to allow respondent to retain the marital home adjacent to the funeral business. The maintenance award of $333 a month, together with petitioner’s gross earnings of $380, will be insufficient to meet her monthly mortgage and utility expenses alone. Therefore, petitioner may be required to dispose of the asset intended by the parties as a permanent residence for petitioner and the children.

As indicated by the 1987 and 1988 income-tax returns, respondent has substantial income and future earning ability fostered by his award of the family funeral home business, sufficient to meet not only his needs but those of petitioner. Therefore, to achieve fairness between the parties, petitioner requires more substantial maintenance. Although not binding on the trial court on remand, we note the amount requested by petitioner, i.e., $1,000 a month for 12 years, appears modest given the income-producing ability and property of respondent, respondent’s substantial income, and petitioner’s current lack of property or earning ability to achieve a standard of living commensurate -with that achieved during marriage from the profits of a family enterprise established and nurtured during the marriage partnership. Therefore, in light of the statutory factors of section 504(b) and this court’s remand for recalculation of respondent’s net income, we find that an award of $333.33 per month for 10 years to be an abuse of discretion and we reverse and remand for determination of a maintenance award for petitioner with consideration to the statutory provisions of section 504(b).

Petitioner next argues the trial court’s order that respondent pay the $1,100 appraisal fee at the rate of $75 per month to each unpaid appraiser is, in essence, an order to pay $75 monthly on a zero balance as no appraisers are now unpaid. Petitioner paid the $1,100 appraisal fee with funds borrowed from her parents, who have not been reimbursed. While it appears the trial court intended that respondent be responsible for appraisal fees, the ambiguity of language as to manner of payment prevents us from giving this provision meaningful effect. We, therefore, remand for a reconsideration and specification as to the disposition of this $1,100 debt.

Petitioner’s final argument is the court’s order designating as maintenance the mortgage payments made by respondent in 1989, pursuant to the temporary order entered upon stipulation of the parties, amounts to an impermissible retroactive modification of the agreement made by the parties on temporary issues. Petitioner also argues the court lacked jurisdiction to modify the temporary order as neither party had filed a petition requesting modification pursuant to the provisions of section 501(d)(2) of the Act. Ill. Rev. Stat. 1989, ch. 40, par. 501(d)(2).

Respondent argues the temporary order of February 1988 was provisional only, was terminated and superseded by the final decree, and the court’s undeniable jurisdiction over both the parties and the subject matter provided discretionary authority to render this designation of payments previously made pursuant to a temporary order.

Section 501 provides for temporary relief in all proceedings under the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 501.) Section 501(d) provides that a temporary order:

“(1) does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;
(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing; and
(3) terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.” (Ill. Rev. Stat. 1989, ch. 40, par. 501(d).)

The historical and practice notes for section 501(d) indicate the purpose of the section is to encourage amicable temporary settlements without establishing precedent for later hearings as to need or ability to pay support. Temporary orders are not binding on the trial court and are terminated and superseded by the provisions of the final decree (In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 487 N.E.2d 739; Maroney v. Maroney (1969), 109 Ill. App. 2d 162, 249 N.E.2d 871), and are effective until resolution of the prayers for dissolution (In re Marriage of Zymali (1981), 94 Ill. App. 3d 1145, 419 N.E.2d 487). Therefore, the issue of the characterization of the mortgage payments made during 1989 was properly before the court.

Furthermore, section 503(d)(ll) of the Act directs the court to consider the tax consequences of the property division upon the economic circumstances of the parties. (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)(ll).) Tax consequences of all awards can be taken into consideration. (In re Marriage of Murphy (1983), 117 Ill. App. 3d 649, 453 N.E.2d 113.) We conclude that the trial court retained jurisdiction to designate the mortgage payments made under the auspices of the temporary order as maintenance in the judgment of dissolution.

However, as the record does not show the trial court’s justification for this order in light of the factors for consideration of maintenance awards under section 504 (Ill. Rev. Stat. 1989, ch. 40, par. 504), we are puzzled as to the basis for its inclusion. In view of our reversal and remand on other related issues of property and support, we also remand this provision of the judgment of dissolution for consideration on the basis of the evidence of record.

To conclude, we find the circuit court erred in determining respondent’s “net income,” thereby requiring remand for redetermination of the level of support based on income figures shown in the parties’ 1988 income-tax return. The order that the parties each pay half the children’s medical expenses not covered by insurance is reversed and remanded for reconsideration. The property distribution, the award of maintenance in gross, and the appraisal fee issue are reversed and remanded with directions. The order designating as maintenance the mortgage payments made pursuant to the temporary order is remanded for reconsideration.

Reversed and remanded with directions.

GREEN and STEIGMANN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE LUND

license: Public Domain

text:
    KATHY J. CARNES, Plaintiff-Appellant, v. KENNETH A. DRESSEN, Defendant-Appellee.
    Fourth District
    No. 4—90—0809
    Opinion filed June 18, 1991.

      Rodney M. Sharp, of Sandberg, Phoenix & von Gontard, P.C., of St. Louis, Missouri, for appellant.
    Fuller, Hopp, McCarthy, Quigg & Byers, of Decatur (Richard W. Hopp, of counsel), for appellee.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Plaintiff Kathy Carnes appeals from an order of the circuit court of Macon County which increased child support payments required to be paid by defendant Kenneth Dressen from $30 to $40 per week but refused to order payment by defendant of retroactive child support payments, retroactive health insurance premiums, and attorney fees incurred by plaintiff. This action originated under the provisions of the Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1989, ch. 40, pars. 2501 through 2526).

CHILD SUPPORT

This cause was previously before our court, at which time the same basic issues were considered. (See Carnes v. Dressen (4th Dist. 1990), No. 4—89—0517 (unpublished order under Supreme Court Rule 23).) The decision in Carnes reversed the trial court’s determination of child support because the amount was below that provided for by the child support guidelines set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1989, ch. 40, par. 505), and the judgment did not make an express finding as to why the ordered support was below the child support guidelines. Such express findings are required by section 505(a)(2)(e) of the Dissolution Act (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2)(e)). Child support ordered under the Parentage Act shall be determined by using the guidelines and standards as provided for under sections 505(a) and 505.2 of the Dissolution Act (Ill. Rev. Stat. 1989, ch. 40, par. 505.2). Ill. Rev. Stat. 1989, ch. 40, par. 2514.

Our decision in Carnes under Supreme Court Rule 23 (134 Ill. 2d R. 23) provided, in part, as follows:

“While reversing and remanding on the issue of child support, we urge the trial court to reconsider the issues of retroactive support, reimbursement of insurance premiums, and attorney fees. We realize such awards are within the discretion of the trial court, however, we question why under these circumstances such awards were not given. Carnes filed a paternity action against Dressen during her pregnancy. Carnes made every effort to expedite this matter, while Dressen continually denied his obligations. Though we fully recognize Dressen’s right to contest such allegations, we do not find that retroactive child support or a payment of insurance premiums would constitute a penalty. The claims of the petition have been fully validated. Dressen was the father of Travis not only at the time of the court order, but also at the time of his birth. We recognize the court may have had compelling reasons to deny these requests, but on remand urge reconsideration of these issues.”

After remand and rehearing, the trial court increased child support payments from $30 to $40 per week. The court refused to provide for retroactive child support payments, retroactive health insurance premiums, or to require defendant to pay plaintiff’s attorney fees and costs.

Defendant is paying $60 per week child support for a child born prior to the March 9, 1988, birth of plaintiff’s son. At the time of rehearing defendant had married, and his wife has children by a previous marriage. Plaintiff had also married before the rehearing. Prior to the first appeal, defendant had used bankruptcy to discharge his debts, including a debt owed plaintiff. For practical purposes, the evidence indicates that both plaintiff and defendant had minimal assets; however, both were employed.

In a memorandum opinion on July 19, 1990, the trial court determined that plaintiff’s current monthly gross income was $1,737 and defendant’s current monthly gross income was $2,442. It further found plaintiff’s expenses increased to $1,858 per month, “due largely to increased payments required by the purchase of a new home by her and her present husband.” There is no evidence in the record to sustain the court’s determination of the purchase of a new house, and the statement is strongly contested by plaintiff in her appellant brief. The trial court further found defendant’s expenses “remained the same at $1,571 per month.”

Net income, for purposes of determining support guidelines as provided by section 505 of the Dissolution Act, requires that Federal and State income taxes, social security (FICA) taxes, mandated retirement contributions, union dues, dependent and individual health and hospitalization insurance premiums, prior obligations of support or maintenance actually paid, and certain other debts and expenses be deducted from this gross income. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3).) The only relevant items to determine defendant’s net income for purposes of these guidelines are Federal and State income taxes, FICA taxes, union dues, and existing child support.

The trial court found defendant’s total deductions were “Federal and State taxes and Union dues of $723 which leaves him [defendant] with net income of $1,719.” The $723 figure is incorrect. Assume the 1990 gross income is $29,304. The maximum Federal income tax for a single person would be $4,199 per year ($350 monthly). The maximum State income tax would be $849 per year ($71 monthly). FICA taxes with medicare would be 7.65% of gross income, which would be $2,242 per year ($187 monthly). Union dues are assumed to be $3.30 per month. These items total $611 per month, not $723. Child support for the previous child is $60 per week, or an average of $260 per month. Net income per month, then, for the purposes of determining the guideline, is $2,442, less $611 and $260, for a net of $1,571. Regardless of the trial court’s comments in the decision on rehearing, we find the only justification for lowering the award from the 20% statutory guideline amount would be the custodial parent’s income. A weekly payment of $73 would be 20% of $1,571.

Defendant argues that provisions of section 505 of the Dissolution Act should be interpreted as providing a maximum amount of 25% for two children, regardless of whether the children reside in different households. His argument suggests the 25% amount should be determined, the previously ordered child support should be deducted, and the balance remaining should then go to the second child. His position appears to be inconsistent with the statutory provision requiring net income to be determined by deducting previously ordered and paid child support. See Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(3)(g).

The constitutionality of the minimum guidelines has been upheld by previous decisions of the appellate court. (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1042-47, 492 N.E.2d 622, 624-31; In re Marriage of Cook (1986), 147 Ill. App. 3d 134, 136, 497 N.E.2d 1029, 1030.) This is not to say that the trial court can blindly apply the statutory guidelines. (In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093, 527 N.E.2d 1351, 1363.) Where the relevant factors call for variance from the guidelines, variances should be made. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2); see also 1 H. Gitlin, Gitlin on Divorce par. 10.02(G)(2), at 200-01 (1991).

Defendant suggests the problem with guideline provisions is that 20% of net income is to be awarded for the benefit of each child of several children born to a father from different mothers. Using the example of five children, each from a different mother and each living in a separate household, if 20% of net income is ordered support for each child, almost the entire net income would be paid to child support. (As long as prior-ordered child support is deducted in computing net income, 100% of net income would not be awarded.) Defendant appears to ignore the dictates of section 505(a)(2)(e) of the Dissolution Act, which gives the trial court necessary authority to avoid economic havoc.

Perhaps section 505 of the Dissolution Act should be amended to allow child support payments to be computed by pooling the total number of children, then applying the applicable percentage, and then dividing the amount awarded by the number of children in the pool. This does not seem advisable because of discretionary powers given to the trial court by section 505 of the Dissolution Act. Different circumstances, ages, and educational abilities of children can call for different support amounts. The custodial parent’s circumstances can also justify a variance. We conclude that section 505(a)(1) of the Dissolution Act requires an allotment of 20% for plaintiff’s child’s support, unless the relevant factors call for a different result. In the present case, we conclude there would be variance from the 20%, but conclude the facts do not justify an amount as low as $40 per week. After considering the trial court’s actions in this cause, we conclude it is incumbent upon this court, if for no other reason than for instructional purposes, to fix the child support at $53 per week. We have distaste for our invasion into the trial court’s domain, but find it is necessary in this case.

RETROACTIVE SUPPORT

Plaintiff filed the action against defendant under the Parentage Act on October 27, 1987. Defendant’s attorney mailed a copy of defendant’s response and appearance to plaintiff’s attorney on November 18, 1987. The child was born on March 9, 1988. Defendant took two blood tests, both of which conclusively determined, for practical purposes, the child’s parentage. He contested parentage even after the second blood test. On April 24, 1989, a motion for summary judgment was granted which found defendant to be the father. Subsequently, child support payments of $30 per week were ordered to commence on May 5,1989.

Section 14 of the Parentage Act previously provided in part that “[t]he Court may order any child support payments to be made for a period prior to the commencement of the action.” (Ill. Rev. Stat. 1987, ch. 40, par. 2514(b).) The Parentage Act now provides, “The Court shall order all child support payments *** to commence with the date summons is served. *** The Court may order any child support payments to be made for a period prior to the commencement of the action.” (Ill. Rev. Stat. 1989, ch. 40, par. 2514(b).) The intent is clear — the support should begin no later than the date the summons is served, after the action is commenced. In the present case, the trial court was evidently mistaken as to when defendant received notice of the action. There is no reason child support should not have been ordered retroactive to the date of birth of the child. Any other decision would encourage delay tactics in litigation and defeat the obvious intent of the legislature.

We note the record indicates defendant’s 1989 income appears to have exceeded, or was equal to, our calculation of his 1990 income. He was employed by the same employer in 1988, and the record indicates a large over-withholding of Federal income tax by defendant during the 1989 taxable year. The record dictates retroactive support is to be at the rate we now set as current support. Defendant will be ordered to pay retroactive support at the rate of $53 per week from March 9, 1988, and is to be given credit for support previously paid to the time our mandate is filed in this appeal.

REIMBURSEMENT OF HEALTH INSURANCE PREMIUM

For a period of time when she was not receiving support payments from defendant, plaintiff maintained a health insurance policy which covered both her and the child. She requested that defendant reimburse her for one-half the cost of that insurance. The trial court refused to order this payment. The child is now covered by defendant’s health and hospitalization policy provided by his employer.

The record is not complete regarding this issue, and we cannot say that the trial court’s ruling was against the manifest weight of the evidence. Plaintiff bears the responsibility of supplying a complete record on appeal and, where the record is incomplete, a reviewing court will indulge every reasonable presumption in favor of the judgment order or ruling appealed from. (In re Estate of Ito (1977), 50 Ill. App. 3d 817, 822, 365 N.E.2d 1309, 1313.) We find it appropriate to affirm the trial court’s decision as to this issue.

ATTORNEY FEES AND COSTS

The trial court refused plaintiff’s request for certain attorney fees and costs accrued subsequent to December 12, 1988. The reasonableness and necessity of these fees and costs totalling $3,275.63 was not questioned. Section 17 of the Parentage Act provides:

“Costs. Except as otherwise provided in this Act, the court may order reasonable fees of counsel, experts, and other costs of the action, pre-trial proceedings and post-judgment proceedings to enforce or modify the judgment to be paid by the parties in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act, as amended.” Ill. Rev. Stat. 1989, ch. 40, par. 2517.

Section 508 of the Dissolution Act provides, in relevant part:

“Attorney’s Fees, (a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse, which award shall be made in connection with the following: ***” Ill. Rev. Stat. 1989, ch. 40, par. 508.

Section 508 provides that allocation of fees is directly tied to the consideration of the financial resources of the parties. This does not mean that plaintiff should pay her own fees and costs if she has the ability. The trial court is to consider the financial resources of both parties in determining how payment should be apportioned. The allowance of attorney fees and costs under section 508 of the Dissolution Act rests within the sound discretion of the trial court, and that court’s judgment will not be disturbed on review unless there is a clear abuse of discretion. (In re Marriage of Passiales (1986), 144 Ill. App. 3d 629, 639, 494 N.E.2d 541, 549.) When the financial resources or circumstances of both parties are substantially similar, an award of attorney fees may be an abuse of discretion. However, a party who must use the judicial process to enforce his or her rights under a settlement agreement or dissolution judgment because of some action by the opponent is entitled to fees (Ill. Rev. Stat. 1989, ch. 40, par. 508(b)), even absent a showing of inability to pay. (Passiales, 144 Ill. App. 3d at 639, 494 N.E.2d at 549; In re Marriage of Moriarty (1985), 132 Ill. App. 3d 895, 900, 478 N.E.2d 537, 540.) While the cases stating this rule have different fact situations than the present case, the policy underlying the rule applies equally well to the facts we now have before us. The evidence establishes that the defendant contested the paternity even after the first blood-test results. After the second blood test, the plaintiff was required to proceed with a motion for summary judgment. Even though the motion was confessed, further expenditures by plaintiff were required.

Considering the evidence, it is obvious that neither party has much more than minimal assets. However, defendant’s net income is higher than plaintiff’s, and plaintiff has the custodial expense of her son. We hold that this evidence requires a finding that defendant’s financial resources are superior to plaintiff’s. The evidence also clearly indicates that defendant’s actions required plaintiff to be involved in substantial judicial processes to enforce her rights. The trial court’s ruling denying plaintiff’s request for fees and costs was against the manifest weight of the evidence. Judgment must be entered against the defendant for attorney fees and costs of $3,275.63.

It is therefore the order of this court that the trial court’s judgment be reversed as to the child support, retroactive child support, and attorney fees. The judgment as to insurance premiums is affirmed. This cause must be remanded to the trial court for purposes of entering the child support order of $53 per week retroactive to March 9, 1988, and the entry of judgment assessing attorney fees and costs of $3,275.63 against the defendant.

Affirmed in part; reversed in part and remanded.

STEIGMANN and KNECHT, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF SHERYL R. JOHNSON, Petitioner-Appellant, and LARRY E. JOHNSON, Respondent-Appellee.
    Fourth District
    No. 4—90—0745
    Opinion filed June 18, 1991.

      James E. Elmore, of Elmore & Reid, of Springfield, for appellant.
    Steven Nardulli, of Stratton, Dobbs, Nardulli & Lestikow, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Sheryl Johnson appeals from an order terminating the maintenance payments she received from respondent Larry E. Johnson. Petitioner contends the trial court abused its discretion in granting respondent’s motion to terminate maintenance. We reverse.

The record shows an order was entered on October 6, 1989, dissolving the parties’ marriage. In the order, petitioner was awarded permanent maintenance from respondent in the amount of $500 per month. On March 5, 1990, respondent filed a motion to terminate the maintenance order. Respondent alleged petitioner was residing on a resident, continuing conjugal basis with Paul Bruketa in Florida and, therefore, his obligation to pay maintenance was terminated pursuant to section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(c)), which provides in pertinent part:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated *** if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.”

At a hearing on the motion, petitioner testified she moved to Gulf Breeze, Florida, after her divorce from respondent in October 1989. Petitioner had visited friends in Gulf Breeze prior to her divorce and became interested in opening a beauty salon in Gulf Breeze offering facial toning services. After petitioner was unable to buy a home in Gulf Breeze, she rented a room from June King in October 1989 at $150 per month and signed a six-month lease. June King was interested in working in the beauty salon with petitioner. Petitioner moved a few of her personal things into King’s home, including a bed, and stored her remaining items in a self-storage facility in Gulf Breeze. Petitioner gave King’s address as her address to this facility.

Paul Bruketa, who lives in Gulf Breeze, and petitioner grew up together in Lincoln, Illinois. Upon arriving in Florida in October 1989, petitioner opened two local bank accounts and had Bruketa’s address printed on her checks for the checking account and used his address as her mailing address. Petitioner had her mail forwarded from Lincoln to Bruketa’s address until February 16, 1990, when she opened a post office box in Gulf Breeze. Petitioner testified she was advised by a postal worker in Lincoln to have her mail forwarded to a friend’s address rather than a post office box because the service would be more dependable. Petitioner explained she used Bruketa’s telephone number and recorded a message on Ms telephone number because she was starting a business with him and she used his apartment for work along with King’s home. Petitioner frequently spent the Mght at Bruketa’s apartment, where she slept on the couch. Petitioner kept track of when she stayed there (as opposed to King’s house or another friend’s house) on a personal calendar. Petitioner also parked her 1988 Camero in Bruketa’s parting lot about half the time because there was so much sea spray, wMch would damage the paint on her car, at King’s address. Petitioner gave Bruketa a set of keys to her car. King lived a half mile from the water; Bruketa lived three-quarters of a mile from the water. Petitioner derned having a sexual relationship with Bruketa.

Petitioner testified she paid King in cash for the rent and occasionally exchanged services for the rent each month. Petitioner had $700 in cash when she moved to Florida in October 1989 and she received $161.29 income in December 1989 from the beauty salon business. Petitioner stated she went to the grocery store only two times between October 1989 and July 1990 because she did not cook. She ate one meal a day, which consisted of a salad from McDonald’s.

Petitioner admitted receiving on March 19, 1990, by certified mail, a copy of the motion to terminate maintenance. After receiving the motion, petitioner acknowledged she began “crossing out” Bruketa’s address on her checks. Petitioner demed telling anyone she lived at Bruketa’s address and specifically denied telling a private investigator hired by respondent in February 1990 that Bruketa’s apartment complex was a nice place to live. Petitioner stated when she left her car at Bruketa’s apartment, she had other people drive her around because she was unfamiliar with the area and because she suffers from narcolepsy, a sleeping disorder wMch prevents her from driving long distances. Petitioner testified she did not know the names of any of her neighbors at King’s address.

Petitioner stated she had dated three men since she moved to Florida in October 1989. Between October 1989 and March 1990, petitioner had only $1,800 in cash or $300 per month and she used these funds to pay for her rent, gas, and meals each month. Her checking account was used for other purchases.

Ronald G. Brown, a private investigator hired by respondent in February 1990, testified he went to Bruketa’s address in Gulf Breeze on February 4, 1990, to determine whether Bruketa and petitioner were living together at that address. Brown saw petitioner’s car parked in the parking lot and succeeded, through a ruse, in talking to petitioner about how it was to live at the apartment complex. According to Brown, petitioner stated it was nice to live there. When Brown asked petitioner the question, Bruketa was standing too far away to hear the conversation. Brown returned later that evening and again on the next day and noticed petitioner’s car was still in the parking lot and the lights were off inside Bruketa’s apartment. Brown admitted he did not know whether petitioner and Bruketa were in the apartment at the time the lights were off. On February 9, 1990, Brown observed Bruketa and petitioner in a local K mart in Pensacola where Bruketa put his arm around petitioner and at one point it looked like Bruketa was holding a belt loop on the back of petitioner’s pants. When they left the store, Bruketa approached the driver’s side of petitioner’s car and opened the door with a set of keys he pulled out of his pocket. Brown inquired at the local post office in late February 1990 if petitioner could be found at King’s address and was told she could not. Brown also talked to the maintenance man at Bruketa’s apartment complex, who told Brown petitioner was living with Bruketa as far as he knew. The maintenance man also reportedly told Brown that Bruketa mentioned in June 1989 that he was moving some of petitioner’s belongings into his apartment. Brown also called Bruketa’s telephone number and heard a message in petitioner’s voice which directed persons to leave a message so she (petitioner) could return the call. Brown reported Bruketa’s car had expired license tags when he observed it in the parking lot outside the apartment complex.

Bruketa testified he had known petitioner for approximately 34 years and considered her a friend and business associate. Bruketa allowed petitioner to stay with him when she visited the Gulf Breeze area before her divorce in October 1989. Bruketa then assisted petitioner when she moved her personal belongings from Lincoln to Gulf Breeze by U-Haul. Petitioner paid for the rental of the U-Haul and gas and other expenses. According to Bruketa, petitioner paid for her storage area in Gulf Breeze. When petitioner stayed with Bruketa, she slept on the couch. Petitioner would stay over at Bruketa’s apartment when she fell asleep when they were working on their business plans. Bruketa reported he dated at different times three women from November 1989 to March 1990 with whom he had a sexual and romantic relationship. Bruketa stated he did not pay petitioner’s rent or utilities. He drove petitioner’s car for her because she was unfamiliar with the area and because petitioner had a sleep disorder. Bruketa stated petitioner was not a signer on his checking account, she did not pay his rent or phone bill, and did not buy food for him. None of petitioner’s personal belongings were moved into Bruketa’s apartment. Bruketa never exchanged gifts with petitioner or bought anything for petitioner.

Bruketa did not recall Brown’s question to petitioner about how it was to live in his apartment complex. According to Bruketa, the registration tags for his vehicle were current. Bruketa explained petitioner put a message on his telephone because she used a spare bedroom in his apartment for her business. Bruketa and petitioner ate out together occasionally but each paid for his or her meal. Bruketa gave petitioner a key to his apartment in the event he was not home when she received business customers. Bruketa stated the business plan with petitioner was abandoned in mid-March 1990 because there were no good prospects, but petitioner continued to use his address and phone number on her checks.

Petitioner moved to a new address in Gulf Breeze in mid-July 1990, before the hearing on the motion to terminate, and took all of her belongings from King’s address and the storage area. In a deposition, the maintenance man from Bruketa’s apartment denied telling respondent’s private investigator that petitioner and respondent lived together or that Bruketa moved some of petitioner’s belongings into his apartment in June 1989.

The trial court granted respondent’s motion to terminate maintenance, finding the testimony of petitioner and Bruketa substantially incredible. Specifically, the trial court found the evidence established petitioner and/or her car were frequently seen at Bruketa’s apartment, the two shopped together and displayed some affection for each other, and petitioner used Bruketa’s address on her bank account. In the order, the trial judge also stated: “[I]t is incredible to believe [petitioner] was able to live on *** $300.00 [ ] a month or less.”

Petitioner argues the trial court abused its discretion in terminating maintenance payments. Specifically, petitioner argues the trial court failed to properly consider those factors recognized as determinative of whether petitioner was cohabiting with Bruketa and gave too much weight to Brown’s testimony. Petitioner also contends the trial court’s decision was not based on the evidence but on speculation.

Section 510(c) of the Act dictates that the obligation to pay future maintenance is terminated “if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(c).) A “conjugal” relationship is a husband-and-wife-like relationship which does not necessarily involve a sexual component. (In re Marriage of Sappington (1985), 106 Ill. 2d 456, 478 N.E.2d 376.) In considering whether to terminate maintenance under section 510(c), the Sappington court noted:

“ ‘[A]n important consideration, divorced from the morality of conduct, is whether the cohabitation has materially affected the recipient spouse’s need for support because she either received support from her co-resident or used maintenance monies to support him.’ ” (Sappington, 106 Ill. 2d at 467-68, 478 N.E.2d at 381, quoting In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 663, 404 N.E.2d 469, 473.)

The burden of establishing a de facto husband and wife relationship rests with the spouse seeking to terminate maintenance. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1018, 495 N.E.2d 1383, 1386.) Each case for termination of maintenance must rest on its own facts, given the unique nature of personal relationships. (Sappington, 106 Ill. 2d at 466, 478 N.E.2d at 380.) The trial court’s decision to terminate maintenance will not be disturbed on review unless it is contrary to the manifest weight of the evidence. Reeder, 145 Ill. App. 3d at 1021, 495 N.E.2d at 1386.

In this case, the evidence was contradictory. The testimony of petitioner and Bruketa that they did not have a continuing conjugal relationship was uncorroborated and deemed incredible by the trial judge. It was for the trial judge to evaluate the credibility of witnesses and determine the weight accorded contradictory testimony and his findings are presumed to be correct. (Andrea Dumon, Inc. v. Pittway Corp. (1982), 110 Ill. App. 3d 481, 489, 442 N.E.2d 574, 578.) On review, those findings will only be reversed where they are clearly erroneous. State of Minnesota ex rel. Gulley v. Caldwell (1990), 198 Ill. App. 3d 91, 97, 555 N.E.2d 752, 755.

We accept the credibility determination made by the trial judge. Nevertheless, we conclude the evidence did not establish a continuing conjugal relationship between petitioner and Bruketa. The evidence presented by Brown established that (1) petitioner liked living at Bruketa’s apartment; (2) petitioner and Bruketa behaved affectionately toward one another in public; and (3) Bruketa admitted to a third person that he would be moving his “girl friend’s” belongings into his apartment in June 1989. Brown’s contact with petitioner and Bruketa was very limited. Moreover, we do not find his testimony, standing alone, established petitioner and Bruketa had a de facto husband and wife relationship. The fact that petitioner stayed at Bruketa’s apartment occasionally does not establish she was a resident in Bruketa’s household (Schoenhard v. Schoenhard (1979), 74 Ill. App. 3d 296, 301, 392 N.E.2d 764, 768) and automatically justify termination of maintenance. (Reeder, 145 Ill. App. 3d at 1018, 495 N.E.2d at 1386.) At most, the evidence may support a dating relationship. See Rosche v. Rosche (1987), 163 Ill. App. 3d 308, 516 N.E.2d 1001 (taking trips together in car and staying at apartment overnight implied a dating relationship).

In Schoenhard, the testimony showed that the plaintiff lived with a man approximately 50% of the time, that she had no apartment of her own and lived the other 50% of the time with her parents; when she stayed with the man, she did the cooking, cleaning and caring for his children and also had sexual relations with him. She also testified that any money given to her by the man was only in the form of a loan and she was required to pay it back; she continued to use her name of Schoenhard; and she also paid her own bills. The Schoenhard court upheld the trial court’s determination not to terminate alimony. In Bramson, Mrs. Bramson testified that she lived on a part-time basis in the residence of another man. She lived there until, at the time of receiving the petition to terminate maintenance, she moved to the apartment of a female friend. She testified that while she lived with the man, they shared the same bed; the man would also sleep over from time to time when she lived at the marital home during August 1977; after moving out of the man’s apartment, Mrs. Bramson returned to stay overnight about 20 times; and they had taken trips together, but the testimony was that both persons had also dated other people. They shared expenses, she paid for most of the food, shared the expense of a housekeeper, paid $100 to $150 per month for housing, and paid a plumbing bill when she caused some damage. With the exception of holiday gifts, she bought her own clothes. She considered herself to be sharing expenses as with any roommate. She did most of the cooking and the man handled most repairs. When her children visited her at the man’s apartment, Mrs. Bramson provided their food, bus tokens, and paid entertainment expenses. Mrs. Bramson testified she moved in with the man in part because his home was large enough for comfortable visitation with the children. She also put her own name on the man’s door and never went by or used the name of the man. The court in Bramson terminated alimony and, on appeal, the reviewing court reversed, stating:

“[T]he legislature apparently believed a supporting spouse should be relieved of maintenance obligations if the former spouse has, in fact, entered into a relationship which amounts to that of husband and wife.” (Emphasis omitted.) Bramson, 83 Ill. App. 3d at 662, 404 N.E.2d at 472.

Here, there is no evidence in this case of a sexual relationship, no evidence of sharing expenses, no evidence of Bruketa paying any of respondent’s expenses. We note that other cases have given credence to the fact that the receiving spouse moved out of the residence of the paramour after the petition for termination of maintenance has been filed. This should be given little credence by the trial court, but it is evidence of the tentative nature of the relationship. See In re Marriage of Clark (1983), 111 Ill. App. 3d 960, 444 N.E.2d 1369 (termination of cohabitation before hearing evidence relationship was not a continuing one).

In summary, on review of the appellate court cases in Illinois and the supreme court’s decision in Sappington, the evidence here is not sufficient to justify the trial court’s determination that maintenance should be terminated.

For the foregoing reasons, the order of the trial court is reversed.

Reversed.

LUND, P.J., and SPITZ, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WAYNE L. GRIMES, Defendant-Appellant.
    Fourth District
    No. 4—90—0711
    Opinion filed June 18, 1991.

      Daniel D. Yuhas, of State Appellate Defender’s Office, of Springfield, for appellant.
    Roger Simpson, State’s Attorney, of Monticello (Leonard R. Rumery, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

On June 25, 1990, defendant Wayne Grimes pleaded guilty in the circuit court of Piatt County to committing four counts of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16.) He subsequently was sentenced to four concurrent four-year prison sentences. Defendant now appeals, seeking to have one conviction vacated. We affirm.

Defendant was originally charged with 12 counts of misconduct involving two minors. On June 25, 1990, he pleaded guilty to four counts and the others were dismissed. Only two of those counts are involved in the present controversy. In one count, it was alleged that on January 14, 1990, defendant committed an act of sexual conduct with T.M., who was under 13 years of age at the time, in that he knowingly fondled her vagina. In the other, it was alleged that on the same date he committed another act of sexual conduct in that he fondled T.M.’s breasts. The factual basis presented to the court established that on January 14, 1990, defendant told T.M. he would like to speak to her upstairs. T.M. went up to a bedroom, where they sat on the bed and talked. Defendant began rubbing her vagina on the outside of her clothes. He then moved his hands up in her shirt and fondled her breasts.

It is defendant’s contention that only one conviction should arise out of these two counts because they are based on the same conduct. He notes that factors to be considered in determining whether there was one offense or several include the time interval between the alleged act, the identity of the victim, the location of the alleged act, and whether the alleged acts fall within the same section of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 1 — 1 et seq.). (See People v. Schultz (1979), 73 Ill. App. 3d 379, 385, 392 N.E.2d 322, 327.) He believes that in applying this analysis only one conviction can be carved out of these two offenses. However, defendant’s reliance is misplaced because Schultz relies a great deal on People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1, from which, our supreme court has indicated, it has departed.

In People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802, the court once again visited the question of when multiple convictions may be entered from a course of conduct. That case dealt with a situation in which a defendant sexually assaulted a victim vaginally and orally. In addressing whether one or two convictions for this conduct is proper, the court observed that it must reevaluate its holdings in this area and determine the court’s direction. The court first commented on its decision in Cox. However, it then observed, “[T]his court dealt again with the issue in People v. King (1977), 66 Ill. 2d 551, [363 N.E.2d 838,] and departed from the strict interpretation announced in Cox ***.” (Segara, 126 Ill. 2d at 75, 533 N.E.2d at 804.) The court then quoted the following passage from King, adding emphasis as shown:

“ ‘Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. “Act,” when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.’ ” Segara, 126 Ill. 2d at 75-76, 533 N.E.2d at 804-05, quoting King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.

The court then reviewed its subsequent opinions on the question and concluded:

“In view of the various decisions, this court concludes that the trend reveals that:
‘[I]f a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. If the physical acts are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed. If exactly the same physical act does form the basis for more than one offense, a defendant may still be prosecuted for each offense, but only one conviction and sentence may be imposed.’ Eisenberg, Multiple Punishments for the ‘Same Offense’ in Illinois, 11 S. Ill. U. L.J. 217, 236-37 (1987).” (Segara, 126 Ill. 2d at 76-77, 533 N.E.2d at 805.)

Accordingly, the court held that two convictions with concurrent sentences were appropriate.

Applying this analysis to the present case, we believe two offenses occurred. Admittedly, the acts occurred in close proximity time wise. However, the supreme court has indicated that if two “distinct acts” occur, then multiple convictions with concurrent sentences can be entered. It is only when precisely the same physical act is involved that only one conviction can be entered. Here, one count involved the fondling of the vagina on the outside of the clothes and one involved the fondling of breasts under a shirt. These are obviously not precisely the same physical act. Just as multiple distinct sexual penetrations during one incident will support multiple aggravated criminal sexual assault convictions (see Segara, 126 Ill. 2d at 77-78, 533 N.E.2d at 805-06), we believe multiple distinct sexual conducts or fondlings will support multiple aggravated criminal sexual abuse convictions.

For the above-stated reasons, defendant’s convictions on all four counts of aggravated criminal sexual abuse and the resulting four concurrent prison sentences are affirmed.

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT R. DURK, Defendant-Appellant.
    Fourth District
    No. 4—90—0709
    Opinion filed June 20, 1991.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Charles F. Mansfield, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On September 19, 1990, following a jury trial in the circuit court of Adams County, defendant Robert R. Durk was found guilty of armed violence and aggravated battery. He was subsequently sentenced on the armed violence conviction to 11 years’ imprisonment and ordered to pay restitution. On appeal, defendant maintains (1) the State violated a pretrial ruling by the trial court which prohibited the State from introducing evidence regarding the defendant’s use of illicit drugs following the alleged crime, thereby denying defendant a fair trial; and (2) the trial court erred in setting an indeterminate amount of restitution that was subject to increase at a later date. We affirm.

At trial, evidence was introduced that defendant shot Carious Wires in the face during a dispute outside a bar. Defendant testified that he acted in self-defense and, following the incident, he was disoriented and went home, losing the gun somewhere along the way. During cross-examination, defendant testified as follows:

“Q. [Prosecutor:] Now, the officer testified that he arrested you at 517 Chestnut. Isn’t that where — or was it Locust?
A. [Defendant:] 517 Chestnut.
Q. And how long did you spend at home before you went to 517 Chestnut?
A. About 45 minutes.
Q. And what did you do at home?
[Defense Counsel:] Your Honor, I object to the question on the relevancy, and it is outside the scope of the direct.
THE COURT: No, he can answer it.
[Defendant:] A few people stopped by. We snorted some crystal methane and then I took off.
Q. [Prosecutor:] You were so disoriented that you snorted some crystal methane?
[Defendant:] Correct. That is not why I snorted the crystal methane. It wasn’t because I was disoriented. It was because I wanted to.”

Following the conclusion of defendant’s testimony, defense counsel moved for a mistrial, arguing that the prosecutor had violated the motion in limine. The court denied the motion, noting that although the testimony was “certainly prejudicial,” the defendant’s statement was “volunteered.”

Defendant argues the State violated the court’s ruling on defendant’s motion in limine by eliciting inflammatory, irrelevant, and prejudicial testimony concerning the defendant’s use of illicit drugs following the alleged crime. Defendant maintains the evidence of his use of narcotics constitutes evidence of a collateral crime (People v. Carlson (1982), 92 Ill. 2d 440, 442 N.E.2d 504), and, as such, is inadmissible (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242). The introduction of evidence of collateral crimes or evidence suggesting prior criminal conduct is normally inadmissible because of the high risk of prejudice accompanying such evidence. Lindgren, 79 Ill. 2d at 140, 402 N.E.2d at 244.

We note initially that defendant objected at trial to the question, “And what did you do at home?” on the basis of relevancy and being beyond the scope of the direct examination. On appeal, defendant maintains the testimony was immaterial, prejudicially disclosed evidence of collateral but uncharged crimes, and violated the court’s pretrial order. Objections at trial on specific grounds waive all other grounds of objection. People v. Barrios (1986), 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419; People v. Douglas (1989), 183 Ill. App. 3d 241, 257, 538 N.E.2d 1335, 1345.

No objection was made here on the basis that the answer would reveal something that would violate the in limine ruling. If counsel thought such a result would occur, he could have approached the bench and discussed the in limine motion. Moreover, a discussion of the defendant’s activities after a crime has been committed is relevant to a discussion of the event itself.

Defendant next argues the trial court’s order of restitution was improper, because it was subject to increase at a later date.

At the sentencing hearing, the court entered an order assessing restitution in the amount of $1,153.35 to cover the victim’s medical expenses and lost wages. The court ordered that sum to be deducted from the defendant’s $2,000 cash bail. The court then ordered that:

“the rest of the bond money be held for a period of six months for the purpose of affording Mr. Wires the time to purchase glasses, eyeglasses, as well as to pay the bills for the removal of the fragment from his face.”

Defendant maintains that portion of the order quoted is void, because it is subject to increase at a later date. He cites People v. White (1986), 146 Ill. App. 3d 998, 1003, 497 N.E.2d 888, 891, where this court indicated “a definite amount of restitution must be set by the court at the sentencing hearing.”

We note that this court further stated in White that “[a] sentencing order should be so complete as to not require further action by the court or a ministerial officer to ascertain its meaning” (White, 146 Ill. App. 3d at 1003, 497 N.E.2d at 892). Further, in People v. Cole (1990), 193 Ill. App. 3d 990, 996, 550 N.E.2d 723, 728, this court elaborated that an order of restitution, in providing for the finality of sentence, should specify: “(1) a maximum dollar limit; (2) a time frame *** and proof of expenses incurred, e.g., within one year of sentencing *** and (5) when bond money is being withheld for use for restitution, a date when any bond monies not so used will be remitted to defendant.” In addition, a cap on the amount of restitution was held by this court to be sufficiently determinate to properly state an amount of restitution. People v. Baugh (1989), 188 Ill. App. 3d 902, 905, 544 N.E.2d 1165, 1167.

Here, as directed in Cole, the restitution order is properly limited and will not require further action by the court to ascertain its meaning. The order (1) placed a maximum dollar limit of the lesser of the remainder of the bond monies or the actual expenses incurred by the victim for the purchase of eyeglasses and for the surgery to his face; (2) placed a time limit of six months and, by referring to the purchase of eyeglasses and medical bills incurred, clearly indicated proof of expenses was required; and (3) clearly intended the residual bond monies to be returned to defendant after the victim had been given six months for the opportunity to make the specified expenditures.

The challenged portion of the restitution order conforms to the listed criteria of Cole and Baugh.

Accordingly, for the reasons stated, the decision of the trial court is affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.