text:
      In re MARRIAGE OF JAMES ELIES, Petitioner-Appellant, and ELIZABETH ELIES, Respondent-Appellee.
    First District (6th Division)
    No. 1 — 92—1009
    Opinion filed June 30, 1993.

      Schiller, DuCanto & Fleck, of Chicago (Sarane C. Siewerth and R. Christopher Ditton, of counsel), for appellant.
    Michael A. Haber, of Chicago (Andrey B. Filipowicz, of counsel), for appellee.
   PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Following a protracted temporary support hearing, on September 27, 1991, the trial court issued an order directing petitioner, James Elies, to pay respondent, Elizabeth Elies, $1,500 per month in temporary unallocated maintenance and child support, retroactive to June 24, 1991, and temporary attorney fees totaling $3,000. The foregoing order was based upon the trial court’s finding that James, with the assistance of his father, Erwin Elies, manipulated his 1991 income to show a drastic reduction. The order caused James to be $1,071.73 in arrears on the temporary maintenance and child support payments. When he failed to pay the arrearage plus the attorney fees by the court-imposed deadline of March 10, 1992, the trial court issued an order holding him in contempt and remanded him to the custody of the sheriff of Cook County. James secured his release by filing this appeal and posting an appeal bond.

James argues that the contempt judgment must be reversed because the underlying order awarding Elizabeth temporary maintenance and child support of $1,500 per month and $3,000 in temporary attorney fees is against the manifest weight of the evidence.

Elizabeth and James were married on August 24, 1985. They had two children, Lauren and Morgan, born June 9, 1986, and March 16, 1988, respectively. Prior to his marriage to Elizabeth, James purchased a home in Northbrook, Illinois. James and Elizabeth later used this home as their marital residence.

At the time James filed this appeal, he was employed by BerteauLowell Plating Works, a Chicago electroplating company, of which his father was president and his grandfather, Herman Elies, was chief executive officer. (At oral argument, James’ attorney revealed that James was no longer working for the company.) James was employed by Berteau-Lowell for approximately 12 years. For the last seven years, he had been assigned to the shipping and receiving department, although his father attempted at times to give him additional responsibilities.

Berteau-Lowell is jointly owned by the Elies and Holzendorf families. At some time prior to James’ marriage, Erwin placed 430 shares of the company’s stock, or 8.5% of the total outstanding, in a trust, naming James as the beneficiary and himself as trustee. Erwin testified that he retained the right to terminate the trust at any time.

On May 21, 1990, James filed his petition for dissolution of marriage. Elizabeth filed her petition for temporary support and maintenance on June 20, 1990, although the parties and their children continued to live together until November 12, 1990. Elizabeth’s petition for temporary support and maintenance was first before the trial court on October 3, 1990, and was continued several times. Pending a full hearing on the merits with respect to Elizabeth’s petition, the parties entered into an agreement whereby James agreed to pay Elizabeth $200 per week for support. This agreement was reaffirmed in various agreed orders entered by the trial judge.

On a number of occasions, James did not make the required payments. Subsequently, on November 21, 1990, the trial court ordered James to pay Elizabeth $1,200 per month for unallocated spousal support for the months of November and December. When the November order expired on December 31, 1990, Elizabeth filed another petition for temporary support and maintenance. On January 11, 1991, the trial court entered a second order requiring James to pay Elizabeth $250 per week for unallocated support and maintenance.

At the time.the January 11 order was entered, James represented that his 1990 net income was $500 per week or $26,000 on an annualized basis. James’ 1990 Federal income tax return, however, reflected net income of $42,452. The difference represented the net proceeds of a $22,000 bonus James had received from Berteau-Lowell, $4,533 in interest income, and $733 in dividend income.

The hearing on Elizabeth’s petition for temporary maintenance and support commenced on July 22, 1991. The parties stipulated that James’ net income for the years 1988, 1989 and 1990 was $47,340.50, $76,151.20, and $45,521.55, respectively. In those same years, James was paid bonuses of $25,230, $56,100, and $22,975, respectively. The 1989 bonus included an additional $10,000 gift to James from Erwin. All bonuses were voted on by Erwin and William Holzendorf during the last quarter of Berteau-Lowell’s fiscal year, which ended on April 30, and were usually paid out in June.

James testified that he earned net income of $500 per week from April 1989 through 1991. Prior to that, his net weekly income was $450. In addition to receiving a weekly paycheck, James received a bonus for each of the four years preceding 1991. James testified that he did not receive a bonus in 1991 because Berteau-Lowell was losing money and had to expend $400,000 on the purchase of a large piece of machinery.

At the time James and Elizabeth separated, James possessed various assets, including a certificate of deposit in the amount of $40,000. After the separation, James redeemed the $40,000 certificate of deposit and used the proceeds to purchase, without Elizabeth’s knowledge, two $10,000 college bonds for the parties’ children and to refurnish the home after Elizabeth moved out. James testified that he spent more than the remaining $20,000 to refurnish his home because Elizabeth “took everything.” Although he was asked to produce receipts for the items he bought, James failed to do so, stating that he was not given enough time to collect them prior to the hearing.

James also liquidated two other certificates of deposit totaling $21,538, which he stated he used to pay bills and to cover his general living expenses. He was unable to provide an exact accounting, however, of how the funds were spent. He testified that he paid $2,000 to Elizabeth’s attorney and $5,200 to his former attorney.

James transferred to his father two $25,000 brokerage accounts which his father had opened in James’ name to provide additional income to James and Elizabeth on which to live. Erwin testified that he never gave his son the accounts themselves, but only the income from them. In 1991, James made $4,533 in interest income on the two accounts. The accounts were listed in James’ name, with his social security number, and the account statements were mailed to his address. However, he stated that he never had access to the funds used to open the accounts. In addition, James sold 400 units of an income trust, which he stated he used to pay support and attorney fees to Elizabeth.

At the time of the hearing, the sole remaining cash asset James possessed was a $14,000 individual retirement account. When questioned about a $100,000 certificate of deposit his parents had purchased and of which James was named trustee, James stated that he did not know of its existence until informed of it by his former counsel. James testified that he never received any interest income or principal from that investment nor did he know whether the account still existed.

James testified to his monthly income and expenses. He stated that the total of his monthly expenses was $2,829, and that his net monthly income was $2,267, leaving him with a monthly shortfall of $562. He made up for the shortfall by living off the sale proceeds of a nonmarital certificate of deposit.

James owned a 1983 Ford van and also had use of a 1989 Porsche with license plate number “JIM-E.” According to James, that license plate number was his at one time, but he released his claim to that number and assigned it to his mother. James stated that the Porsche was purchased by his mother after he located the car at a local Porsche dealership. James traded in a vehicle that was given to him by his parents in exchange for the Porsche. The Porsche cost $18,000 and was purchased in 1991.

Elizabeth, who was living with their children in a two-flat apartment building in Chicago owned by her mother and stepfather, testified that Lauren attended a Catholic school kindergarten and Morgan a Northbrook preschool. Her net monthly support from James was $1,083. This was her sole source of income. Her monthly expenses totaled $2,724, leaving a monthly shortfall of $1,641. She met the shortfall with her parents’ assistance. They helped buy clothes for the children, pay grocery bills, meet rent payments, and pay the children’s tuition. Elizabeth was formerly employed, but after the birth of Morgan, she and James decided that she would stay home to care for the children.

Erwin Elies testified that he was president of Berteau-Lowell, and, as such, was responsible for the day-to-day activities of the corporation, including the hiring and firing of employees. He paid James a net weekly wage of $500 and had paid him a company bonus in each of the four years prior to 1991. Erwin, his father, James, and Holzendorf each received a weekly check in the same dollar amount. Erwin and Holzendorf jointly determined the amount of the bonus James was to receive each year. Erwin testified that neither he, James nor Holzendorf would receive bonuses for the 1990-1991 fiscal year due to the death of his father. Erwin did not mention the company’s loss or the purchase of a $400,000 piece of machinery as reasons why the company did not declare a bonus for James in 1991.

On September 27, 1991, the trial judge entered an order finding that James, with the aid of his father, manipulated his current income to show drastic reductions since the onset of the dissolution action. Consequently, the judge averaged James’ income from the previous three years (1988-1990) to arrive at an average gross income figure of $71,249 for 1991. After confirming the parties’ monthly expenses about which they had testified, the judge awarded Elizabeth $1,500 per month in temporary unallocated maintenance and child support, or $346.42 per week, retroactive to June 24, 1991. She also ordered James to pay Elizabeth temporary attorney fees of $3,000, without prejudice to the final allocation of fees at trial. James never contested the amount of attorney fees he was directed to pay. As a result of the order, James was immediately $1,071.43 in arrears in support and maintenance due Elizabeth.

On December 12, 1991, Elizabeth filed a petition for rule to show cause, claiming that James had failed to pay either the arrearage or the temporary attorney fees. In addition, James was accumulating additional arrearage of $21.42 per week from September 27, 1991, forward because of a Federal law restricting to 65% the amount of his income that is subject to a withholding order. Thus, while under the order James was supposed to be paying Elizabeth $346.42 per week, she was only receiving $325 weekly. This additional arrearage also remained unpaid.

At the January 29, 1992, hearing, James testified that his sole source of income was his $500 weekly salary from Berteau-Lowelh The hearing was continued to February 14, 1992, and James informed the trial court that he had paid the additional arrearage of $21.42 per week. Still unpaid was the retroactive arrearage in the amount of $1,071.43 and the $3,000 in temporary attorney fees.

Consequently, the trial judge found James to be in willful contempt for failing to pay the temporary allowance and attorney fees, but reserved sanctions until March 10, 1992.

On March 10, when the court was informed that the two amounts, $1,071.43 and $3,000, remained unpaid, the court remanded James into custody. James immediately filed a notice of appeal and posted bond to secure his release. We have jurisdiction over this matter because a judgment of contempt represents a final and appealable order. In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, 544 N.E.2d 454.

On appeal, James contends that the judgment of contempt issued against him must be reversed because the underlying order awarding Elizabeth temporary allowances and attorney fees is contrary to the manifest weight of the evidence.

In a contempt proceeding brought during a .dissolution of marriage action to enforce an order of child support or maintenance, the failure to make court-ordered payments is prima facie evidence of contempt. The party failing to make the allowances ordered has the burden of proving that his failure to comply was not willful or contumacious and that he has a valid excuse for his failure to pay. (In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 464 N.E.2d 795.) Whether the person charged is in willful contempt and whether the sanction is proper are factual matters within the discretion of the trial court. We will not disturb the trial court’s finding of willful or contumacious misconduct unless the trial court’s factual conclusions are against the manifest weight of the evidence or the record reflects an abuse of discretion. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459.

An award of temporary maintenance and child support is dependent upon the financial ability and current circumstances of the parties, but the trial court has considerable discretion in determining the amount of the award. (In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 555 N.E.2d 1114.) In challenging the underlying order, James contends that the trial court’s finding that he, with the assistance of his father, manipulated his 1991 income to show drastic reductions was against the manifest weight of the evidence. We disagree.

We note at the outset that the trial court is in the best position to determine the credibility of the witnesses and to either accept or reject their testimony. (Hilkovitch, 124 Ill. App. 3d 401, 464 N.E.2d 795.) Moreover, the trial court is not required to believe even uncontradicted testimony if it is inherently unreasonable or improbable. Hilkovitch, 124 Ill. App. 3d 401, 464 N.E.2d 795.

The trial judge heard James testify that he received a sizable bonus from Berteau-Lowell for each of the four years prior to 1991, but that in 1991, while the dissolution-of-marriage proceedings were moving forward, his father and Holzendorf decided not to award bonuses that year. James, who was in no way involved in Berteau-Lowell’s management affairs, testified that he did not receive a bonus in 1991 because the company was losing money and had to purchase a costly piece of machinery. Erwin, on the other hand, testified that the reason James was not paid a bonus in 1991 was because his father passed away that year. Besides the fact that no explanation was given regarding how his father’s death related to the decision not to give James a bonus, Erwin, who was president and co-owner of the company, never cited the company’s loss or the machinery purchase as a reason for the failure to pay James a bonus.

James argues that it would be “improbable and inherently unreasonable” that Erwin and Holzendorf would agree to forego their own bonuses solely to diminish James’ lack of income for “some speculative hearing in 1992.” However, a hearing on Elizabeth’s petition for temporary support and maintenance was not speculative by the time the decision was made not to award bonuses in 1991. Elizabeth filed her petition on June 20, 1990. Thus, both James and Erwin would have been aware in 1991 that the amount of James’ income for that year would be pivotal in the determination of Elizabeth’s award. Moreover, the record is not as clear as to Erwin’s relinquishment of his own bonus. In fact, Erwin testified that he received an amount of money in addition to his weekly draw “as [he] always do[es].” Although Erwin would not divulge the amount, the trial court was free to infer that his “bonus” was represented by that additional amount of money, and that in fact he relinquished nothing in choosing not to give 1991 bonuses.

With respect to other sources of income available to James prior to 1991, the trial judge heard evidence that in 1988, 1989 and 1990, James received income from two $25,000 brokerage accounts that Erwin had purchased in James’ name. It was Erwin’s intent that these investments would provide additional income to James and Elizabeth on which to live. Although Erwin testified that he only gave James the income from the two accounts and that the accounts were subject to being withdrawn at his discretion, the manner in which they were held contradicts this claim. The accounts were opened solely in James’ name, using his social security number, and the statements were sent to his home address. Moreover, the investment account statements fail to show Erwin as either trustee or custodian of the accounts, and accordingly, Erwin had no legal right to direct the account executive to transfer the assets into his ownership.

James contends that the accounts were listed in his name because it was his father’s intent that he pay the income tax due from any income he realized on the accounts. This explanation is undermined by the fact that in 1990, James, not Erwin, showed on his Federal income tax statement a capital loss from the sale of one of the accounts that Erwin claimed was transferred to him. Notably, this sale occurred on December 21, 1990, and the transfer to Erwin of the other account occurred sometime in 1991, well after these proceedings had been initiated.

In addition, the record also reveals that James, or Erwin on behalf of James, misrepresented facts contained in a report which was completed upon the opening of one of James’ investment accounts. In this document, dated July 18, 1986, it was represented that James was retired and unmarried, although he was employed and married at the time this document was created.

Finally, the trial court heard testimony regarding the purchase in 1991 of an $18,000 Porsche, bearing license plate number “JIM-E.” While James testified that his mother, who drove a Cadillac, purchased the Porsche, he also stated that it was he who found the Porsche and who traded in a vehicle given to him by his parents in exchange for the Porsche. Because James was unable to produce receipts evidencing how he had spent thousands of dollars in 1991 and in view of the license plate number, the trial court was free to reasonably infer, notwithstanding James’ testimony to the contrary, that the Porsche belonged to him and not his mother.

In view of the foregoing, we conclude that the trial court’s finding that James and Erwin manipulated James’ 1991 income to reflect a drastic reduction was reasonable and consistent with the manifest weight of the evidence. Accordingly, it was within the trial court’s purview to disregard James’ reported net income for 1991 because of its inherent unreliability and to employ an alternative method of arriving at an accurate income figure on which to base its award of temporary support and maintenance.

James argues that the trial court erred when it averaged his 1988, 1989, and 1990 income in determining his available income for maintenance and child support. In support of this contention, James cites the recent case of In re Marriage of Schroeder (1991), 215 Ill. App. 3d 156, 574 N.E.2d 834. There, the trial court, in determining 1989 net income for the purpose of ascertaining the respondent’s child support obligations, averaged weighted business earnings of the respondent’s proprietorship for six years 1984 through 1989, using actual income figures for the first five years and a projected income figure for 1989. This court rejected the method used by the trial court because the data relied upon were too old and the projected 1989 income data were unreliable. Consequently, the trial court was directed to calculate the child support award using 1988 net income, which was the most recent accurate income data available.

The circumstances in this case are distinguishable. Here, the data used by the trial court to determine James’ 1991 income extended back only three years, and there was no dispute as to the reliability of the income data for those years. In addition, James’ income fluctuated from year to year depending upon the profitability of the family business or the benevolence of Erwin, as evidenced by his net income of $47,341 in 1988, $76,151 in 1989, and $45,522 in 1990. Under these circumstances, the averaging method employed by the trial court was a reasonable means of determining James’ current income so as to enable the court to fulfill the purpose of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 102 et seq.), which is to make reasonable provision for spouses and minor children during and after litigation. Ill. Rev. Stat. 1991, ch. 40, par. 102(5).

We decline to follow the rigid approach to income averaging expressed by the court in Schroeder, which would permit income averaging only when a “definitive pattern of economic reversals” over several years is shown. (Schroeder, 215 Ill. App. 3d at 161, 574 N.E.2d at 837.) For the reasons stated and under the circumstances presented in this case, we find that the manner in which James’ 1991 income was calculated was proper.

James also contends that the trial court incorrectly based its award on James’ gross income rather than on his net income, in violation of section 505(a) of the Illinois Marriage and Dissolution of Marriage Act. Section 505(a), pertaining to the payment of child support, provides:

“The duty of support owed to a minor child includes the obligation to provide for the reasonable and necessary physical, mental and emotional health needs of the child.
(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children Percent of Supporting Party’s Net Income
* * *
2 25%
* * *
(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include but are not limited to:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 40, par. 505(a).

James correctly points out that the trial judge, in determining the amount of Elizabeth’s award, expressly stated that James’ gross income for 1991 was $71,249. She then proceeded to order James to pay Elizabeth $1,500 per month in temporary unallocated maintenance and child support and $3,000 in temporary attorney fees. While we agree with James that the $1,500 monthly award does in fact equal 25% of his gross, not net, monthly income, we do not agree that the award violates the guideline contained in section 505(a), which requires a minimum of 25% of a payor’s net income to be paid for the support of two children.

James ignores the fact that the amount awarded to Elizabeth was not only for child support, but was also for maintenance. Thus, it is merely coincidental that $1,500 equals 25% of James’ gross monthly income, and the award, therefore, does not violate section 505(a). Although the trial court did not expressly set forth James’ net income for 1991, we estimate, based upon a document entitled “Income Analysis — James Elies” contained in the record, that the award represents approximately 32% of his net income. Thus, the trial court met the requirements of section 505(a) requiring that a minimum of 25% of James’ net income be paid to Elizabeth for the support of the parties’ two children.

Section 504 of the Illinois Marriage and Dissolution of Marriage Act permits the trial court to grant maintenance if the spouse seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs, and
(2) is unable to support [herself] through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1991, ch. 40, par. 504.)

The factors to be considered in determining the amount of maintenance, whether temporary or permanent, include the reasonable needs of the spouse seeking maintenance in view of the standard of living established during the marriage, the duration of the marriage, the ability to become self-supporting, the income-producing property of the spouse, and the value of the nonmarital property. In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 571 N.E.2d 1135.

Elizabeth is currently the primary custodian of the parties’ two children, and her sole source of income is the unallocated support and maintenance she receives from James. At the time of the temporary support hearing, that amount was $1,083 per month. She has little college education and no special skills to enable her to find appropriate employment at the present time. Nor would her circumstances, given the ages of the children, allow her to seek employment without incurring additional expenses for the care of the children while she was working. Moreover, she is responsible for transporting the children to and from different schools during the week. Elizabeth stated that her living expenses approximated $2,724 per month, including $600 in rent, $169 for utilities, $600 in food for herself and the children, $145 for transportation, and $690 for clothing, grooming, education, medical care, and babysitting for the children. To make up for the $1,641 shortfall, she has had to seek the financial help of her parents, in whose two-flat she resides. During the marriage, Elizabeth and the children enjoyed a considerably higher standard of living.

With regard to James’ financial situation, the record reveals that his monthly living expenses approximated $2,829. As we have already found, in addition to earning $500 per week from Berteau-Lowell, James, in the four years prior to 1991, was the recipient of annual bonuses which were apparently unrelated to his performance or the amount of his responsibility at the company. Prior to the commencement of the dissolution of marriage proceedings, James received a consistently high income from Berteau-Lowell for duties which, as Elizabeth points out, could have been fulfilled by someone else at a much lower rate of pay. The trial judge disbelieved James’ and Erwin’s testimony regarding why, suddenly in 1991, James was not paid a bonus. Accordingly, based on this reasonable credibility determination, the trial judge acted within her discretion in including an average of the three years’ bonuses in the income figure for 1991.

In addition, in 1991 alone, James spent more than $40,000 over and beyond the income he derived from his employment, on his own living expenses, for which he was unable to produce receipts. In 1991, he also purchased college bonds for the children totaling in excess of $20,000. He transferred to his father two $25,000 brokerage accounts, and spent proceeds totaling $3,400 from the sale of 400 units of an income trust he owned. He was also the beneficiary of 430 shares of Berteau-Lowell stock, representing approximately 8% of the total outstanding shares.

In light of the foregoing, we conclude that James had the financial resources to meet his needs and those of Elizabeth and their children to the extent of $1,500 per month in temporary maintenance and support. Similarly, we conclude that his financial resources, in the form of income and income-producing property, were sufficient to pay the $3,000 in fees to Elizabeth’s attorney. To justify an award of fees, the party seeking them must show an inability to pay and an ability by the other spouse to pay it. (In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 512 N.E.2d 1354.) Elizabeth has shown her inability to pay attorney fees. Moreover, we note that the trial court did not require James to pay all of Elizabeth’s attorney fees, but only one-half of what she had requested, and James did not dispute the propriety of this amount.

Finally, James argues that the award of temporary child support and maintenance cannot stand because it is of an unallocated nature and does not specify the precise dollar amount of child support, in violation of section 505(a)(5) of the Illinois Marriage and Dissolution of Marriage Act. We disagree. The language to which James refers states that “[t]he final order in all cases shall state the support level in dollar amounts.” (Emphasis added.) (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(5).) In this case, the trial court issued a temporary order awarding child support and maintenance pending dissolution of the parties’ marriage and entry of a final order. Consequently, the trial court did not err in awarding unallocated child support and maintenance.

James’ failure to pay the arrearage of $1,071.43 or the temporary attorney fees of $3,000 by the court-imposed deadline of March 10, 1992, is prima facie evidence of contempt. (Hilkovitch, 124 Ill. App. 3d 401, 464 N.E.2d 795.) Moreover, on the basis of the record before us, we conclude that James has not shown that he has a valid excuse for his failure to pay. Willful contempt exists when the contemnor has funds available to pay pursuant to the court’s order, but chooses not to do so. In order for James to establish that his failure to pay is the result of lack of funds, he must show with reasonable certainty not only the amount of money he has received, but also that the money has been used to pay only for the basic necessities of life. (In re Marriage of Ramos (1984), 126 Ill. App. 3d 391, 466 N.E.2d 1016.) James has failed to produce any receipts evidencing that the thousands of dollars he spent in 1991 went toward providing for the basic needs of life. The only evidence James offered on this point was his own testimony, which the trial court disbelieved. Because James has failed to prove that his noncompliance was excusable, the judgment of contempt issued against him was proper.

Furthermore, James had from September 27, 1991, until March 10, 1992, to pay the arrearage and temporary attorney fees, or to demonstrate to the trial court that his noncompliance with the order was not willful. He failed to do either. Accordingly, incarceration was an appropriate sanction. See In re Chester (1990), 205 Ill. App. 3d 844, 563 N.E.2d 855.

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

Judgment affirmed.

RAKOWSKI and GIANNIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GIANNIS

license: Public Domain

text:
    CHICAGO TITLE AND TRUST COMPANY, Trustee under Trust No. 89-044884, Plaintiff-Appellee, v. CHICAGO TITLE AND TRUST COMPANY, Trustee under Trust No. 1092636, et al., Defendants-Appellants.
    First District (6th Division)
    No. 1 — 91—4012
    Opinion filed June 30, 1993.

      Rufus Cook and Barbara J. Revak, both of Chicago, for appellants.
    Gomberg, Sharfman, Gold & Ostler, P.C., of Chicago (Raymond J. Ostler and Robert M. Gomberg, of counsel), for appellee.
   JUSTICE GIANNIS

delivered the opinion of the court:

This appeal arises from a judgment entered by the circuit court which awarded attorney fees to the plaintiff in a mortgage foreclosure action brought against defendants. This judgment required defendants to pay attorney fees which were in excess of the amount of fees specified at the time the delinquency was paid and the loan was reinstated. On appeal, defendants claim that the court erred in (1) awarding additional attorney fees based upon the affidavits and time records submitted by the plaintiff’s counsel, and (2) refusing to order a rebate of attorney fees as requested in defendants’ motion for sanctions filed pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137).

The record reveals that on October 31, 1989, the plaintiff trustee brought an action to foreclose a mortgage held on certain commercial property located at 1331 South Michigan Avenue in Chicago, Illinois. The mortgage given was in the nature of a trust deed and secured the debt created by an installment note which was personally guaranteed by defendant Rufus Cook. The defendants named in the foreclosure complaint were Chicago Title & Trust Company, trustee under trust number 1092636; Rufus Cook, guarantor; Cook Partners Law Offices, Ltd. (Cook Partners), Cook Development Company (Cook Development), and Grand Kahn Electric, tenants; and unknown owners and nonrecord claimants. The complaint alleged that the payment of the installment note was delinquent in the amount of $9,802.62 and sought a foreclosure of the mortgage and judicial sale of the property. The complaint also requested appointment of a receiver after sale in the event of a deficiency, appointment of a receiver pendente lite and of a mortgagee in possession. The complaint further sought a judgment for all attorney fees and costs, based upon paragraph 4 of the trust deed, which specifically provided that the trustee was entitled to recover attorney fees and other expenses incurred in a suit to foreclose the lien.

On December 13, 1989, defendants Chicago Title, Cook Partners and Cook Development appeared and moved to dismiss the action pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615). Plaintiff filed a response to the defendants’ motion.to dismiss on January 24, 1990. On February 28, 1990, plaintiff moved for entry of a judgment of foreclosure and sale, an order of default, for summary judgment, and for a hearing on defendants’ section 2 — 615 motion. On that date, the trial judge granted defendants’ motion for a change of venue and the cause was assigned to the calendar heard by Judge Kenneth Gillis. Judge Gillis set March 15, 1990, as the date for hearing defendants’ section 2— 615 motion to dismiss and for disposition of plaintiffs motions in the event that defendants’ motion was denied.

On March 15, 1990, the court denied defendants’ section 2 — 615 motion and allowed defendants 28 days to answer or otherwise plead. The order entered also reflected that plaintiff’s motion for entry of a default order was withdrawn with respect to all of the defendants except Grand Kahn Electric, unknown owners, and nonrecord claimants.

On May 7, 1990, defendants filed a motion to dismiss pursuant to section 2 — 619 of the Code. But for the title of the document which specified the section of the Code relied upon, this motion was identical to the section 2 — 615 motion which had been denied on March 15, 1990.

On May 8, 1990, plaintiff filed a motion for an order of default which asserted that defendants Rufus Cook and Grand Kahn Electric had been served but had failed to appear or answer; defendants Chicago Title & Trust Company, Cook Partners, and Cook Development had appeared but had failed to file an answer; and the unknown owners and nonrecord claimants had been served by publication. On the same day that plaintiff’s motion for default was filed, the defendants advised the court that the arrearage on the loan could be brought current in June 1990. Accordingly, the court entered an order setting a briefing schedule on defendants’ section 2 — 619 motion to dismiss, and the cause was continued to June 11, 1990, for hearing on defendants’ motion and for hearing on all matters if the motion was denied. The record indicates that this order was drafted by defendant Rufus Cook, who had filed an appearance as attorney for defendants Chicago Title & Trust Company, Cook Partners, and Cook Development. Plaintiff filed a response to defendants’ section 2 — 619 motion to dismiss on May 14, 1990.

At the next scheduled court date on June 11, 1990, defendants advised the court that the arrearage on the loan would be paid by June 19, 1990, and the court continued the disposition of all pending motions until that date.

In a letter dated June 12, 1990, plaintiff’s counsel informed defendants that his client had declined to accept a reinstatement of the loan and demanded that the balance due under the installment note be paid in full.

On June 19, 1990, the matter was called for hearing, but defense counsel did not appear because he had been detained while appearing before another judge on an unrelated cause. At that time, the trial judge entered a judgment of foreclosure and sale against the defendants. This judgment provided that an order of default had been entered against those defendants who had failed to appear and that an order for summary judgment had been entered against those defendants who had failed to file answers to the complaint. Included in this judgment was a judgment for attorney fees in the amount of $1,950. Defense counsel did not arrive at the courtroom until after the judgment of foreclosure and sale had been entered.

Defendants Chicago Title & Trust Company, Rufus Cook, Cook Partners, and Cook Development filed a motion to vacate the judgment on July 17, 1990. This motion asserted that the judgment had been improperly entered and that defendants should be permitted to file an answer to the complaint. Plaintiff opposed the request to vacate the judgment, alleging that the defendants had filed a motion for a change of venue, a motion to quash service, a motion to dismiss pursuant to section 2 — 615, and a motion to dismiss pursuant to section 2 — 619, but had not filed any substantive pleadings since the action was commenced on October 31, 1989. But for the request for a change of venue, all of the motions filed by defendants had been denied.

In addition, plaintiff alleged that defendants had obtained continuances based upon the representations that the arrearage on the loan would be paid. Plaintiff alleged further that despite these representations and continuances, the loan remained delinquent after five court appearances, and plaintiff had received no offer from defendants to repay the debt. Plaintiff asserted that defendants sought only to delay the case and had no defense to the foreclosure action. Plaintiff further asserted that the court should consider that the lender was not a financial institution, but was an individual whose resources were being increasingly taxed by the failure of the defendants to make the payments due on the installment note. Plaintiff requested that the court exercise its discretion to deny the motion to vacate the judgment of foreclosure and sale, recognizing the defendants’ right to redeem the property within the time limits imposed by statute.

Although a written order granting defendants’ motion to vacate does not appear in the record on appeal, the judgment of foreclosure and sale was apparently vacated by the trial court.

On August 20, 1990, defendants Chicago Title & Trust Company, Rufus Cook, Cook Partners, and Cook Development filed an answer and affirmative defenses to the complaint for foreclosure.

On October 2, 1990, plaintiff filed a motion for summary judgment, contending that there was no dispute as to any material fact. Plaintiff’s motion was supported by the affidavit of Lee Marx, agent for plaintiff Chicago Title & Trust Company. Plaintiff also filed a petition for appointment as mortgagee in possession and moved to strike defendants’ affirmative defenses. On this date, the court entered an order permitting defendants to respond to the motions filed by plaintiff, and the cause was continued for hearing on November 2, 1990.

On October 15, 1990, plaintiff provided defendants with a letter stating that the payment of $50,198.57 was necessary to reinstate the loan. This letter stated that, in addition to the amount required to cure the delinquency, defendants were obligated to reimburse plaintiff for $2,750 in attorney fees if the loan was to be reinstated.

On October 25, 1990, defendants filed responses to plaintiff’s motion to strike affirmative defenses, motion for appointment as mortgagee in possession, and motion for summary judgment. Each of these responses was cursory and asserted grounds which had been previously raised and rejected by the trial court. Defendants’ response to plaintiff’s motion for summary judgment consisted of a single sentence, relied upon the defendants’ answer and affirmative defenses, and was not supported by any affidavits. Plaintiff replied to each of the defendants’ responses on October 30, 1990, asserting factual and legal arguments and providing case citations in support of its motions.

On November 2, 1990, defense counsel advised the court that the defendants expected to pay the amount of the delinquency on the installment note from funds which would be received from the sale of another parcel of property. The order entered by the court on this date granted plaintiff’s motion to strike affirmative defenses and granted plaintiff leave to amend its complaint and motion for summary judgment to identify the holders of the installment note. The hearing on plaintiff’s motion for summary judgment and on the request for appointment as mortgagee in possession was continued to November 20, 1990, at which time the parties were to offer evidence by affidavit or testimony. The filing of affidavits or other material was to be no later than November 14, 1990.

On November 14, 1990, plaintiff filed an amended complaint and an amended motion for summary judgment which were virtually identical to the prior documents but identified the holders of the installment note. Plaintiff also filed a request for additional attorney fees in the amount of $8,236.25. This request was supported by an affidavit of plaintiff’s counsel and by certain time records. These time records consisted of four pages of handwritten notations and three pages of computer-printed notations.

On November 19, 1990, defendants presented an emergency motion requesting a continuance of the hearing scheduled for the following day. Defendants’ motion was predicated upon the assertion that the title company which was closing the sale of the second parcel of property, from which the reinstatement proceeds were to come, required additional time to close that sale due to the intervening Thanksgiving holiday. The trial court granted defendants’ motion, and the cause was continued to November 27, 1990. On November 21, 1990, plaintiff brought a motion to vacate the order of continuance, asserting that it had not received notice of defendants’ emergency motion and that defense counsel had failed to provide plaintiff’s attorney with a copy of the order granting the request for a continuance. On that date, the trial court denied plaintiff’s motion to vacate the order on continuance.

On November 27, 1990, the parties informed the court that defendants had delivered to plaintiff a check for the amount required to reinstate the loan, including the $2,750 in attorney fees. On that date, plaintiff filed a revised affidavit in support of additional attorney fees. The additional fees sought in the revised affidavit totalled $5,693.75 and were supported by three pages of computer-printed time records.

On December 3, 1990, the parties reported to the court that defendants’ check had cleared, and the court entered an order dismissing the foreclosure action pursuant to the reinstatement of the loan. The court retained jurisdiction of the cause to determine the amount of the additional attorney fees requested by plaintiff.

On December 7, 1990, defendants filed an objection to the request for additional attorney fees. Defendants also requested a refund of $1,697 from the fees paid when the loan was reinstated and sought sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137). On December 19, 1990, plaintiff filed a reply to defendants’ objection to the request for additional attorney fees. Plaintiff also filed a response to defendants’ motion for sanctions under Supreme Court Rule 137.

Due to the impending retirement of Judge Gillis from the bench, the cause was transferred to Judge Berman in December 1990. On January 8, 1991, defendants filed a reply in support of their motion for Rule 137 sanctions. The court denied defendants’ request for sanctions on May 9, 1991.

On May 22, 1991, Judge Berman awarded plaintiff additional attorney fees in the amount of $4,822.50. Defendants filed a motion for reconsideration of the award of additional attorney fees and of the denial of Rule 137 sanctions, which was denied on August 13, 1991. Thereafter, plaintiff filed another request for additional attorney fees which was subsequently withdrawn, and defendants brought the instant appeal.

We initially consider whether the trial judge erred in awarding additional attorney fees based upon the affidavits and time records submitted by plaintiff’s counsel.

Contract terms which provide for attorney fees are an exception to the general rule that the unsuccessful litigant in a civil action is not responsible for the payment of the opponent’s fees. (AbdulKarim v. First Federal Savings & Loan Association (1984), 101 Ill. 2d 400, 411-12, 462 N.E.2d 488; Kaiser v. M E P C American Properties, Inc. (1987), 164 Ill. App. 3d 978, 983, 518 N.E.2d 424.) Only those fees which are reasonable will be allowed, and the party requesting fees bears the burden of presenting sufficient evidence from which the trial court can render a decision as to their reasonableness. Harris Trust & Savings Bank v. American National Bank & Trust Co. (1992), 230 Ill. App. 3d 591, 595, 594 N.E.2d 1308; Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1064, 563 N.E.2d 977; Kaiser, 164 Ill. App. 3d at 983.

A petition for fees must present the court with detailed records containing facts and computations upon which the charges are predicated and specifying the services provided, by whom they were performed, the time expended and the hourly rate charged. (Harris Trust & Savings Bank, 230 Ill. App. 3d at 595; Kaiser, 164 Ill. App. 3d at 984.) In assessing the reasonableness of fees, the trial court should consider a variety of factors, including the skill and standing of the attorneys employed, the nature of the case, the novelty and difficulty of the issues involved, the degree of responsibility required, the usual and customary charge for the same or similar services in the community, and whether there is a reasonable connection between the fees charged and the litigation. (Harris Trust & Savings Bank, 230 Ill. App. 3d at 595.) The determination as to what constitutes reasonable compensation is a matter peculiarly within the discretion of the trial court, and that determination will not be disturbed on review absent an abuse of discretion. Harris Trust & Savings Bank, 230 Ill. App. 3d at 595; In re Estate of Healy (1985), 137 Ill. App. 3d 406, 411, 484 N.E.2d 890.

Applying these principles to the facts of the instant case, we hold that the trial court did not abuse its discretion in awarding additional attorney fees to the plaintiff.

The order entered by Judge Berman on May 22, 1991, specified that the award of $4,822.50 represented a reasonable fee for the work performed by plaintiff’s counsel in this case. Although the defendants have not provided a transcript of the hearing or of the trial judge’s comments when the additional fees were awarded, it appears that the court carefully examined the affidavits and time records submitted by plaintiff’s counsel and determined that an appropriate fee was $4,822.50, which was $871.25 less than the amount requested by plaintiff. Thus, the trial court did not merely accept and approve the request made by plaintiff, but made an independent assessment of the propriety of the fees charged for the work performed. The record does not include any testimony or affidavits which contradict the trial court’s finding.

Defendants first assert that the fees requested were excessive in light of the relatively short duration of the foreclosure action and because the case did not involve difficult or complex issues. However, as noted above, the trial court specifically found that the additional fee award was proper and reasonable. The record does not include any contrary evidence as to what a reasonable fee would have been for the tasks involved, and the trial court made a finding of fact that fees awarded were reasonable for the work performed. The trial judge is permitted to use his own knowledge and experience to assess the time required to complete particular activities, and a court of review may not reverse an award of attorney fees merely because it may have reached a different conclusion. In re Estate of Healy, 137 Ill. App. 3d at 411.

Defendants next contend that the fees requested by plaintiff cannot be justified where the two affidavits filed by plaintiff’s counsel included conflicting information and were not in accordance with the information contained in the reinstatement letter. Careful examination of these documents reveals, however, that the reinstatement letter reflects the fees charged for work performed from the filing of the suit to October 15, 1990, the date of the letter. The first affidavit and supporting time records include fees charged for work performed from the filing of the suit through November 1, 1990. The reinstatement letter and the first affidavit obviously include fees charged for overlapping time periods. The revised affidavit was apparently filed in an effort to clarify any confusion caused by the overlapping time periods reflected in the first two documents. Indeed, paragraph 3 of the revised affidavit specifically stated that this affidavit was submitted “to eliminate all fees for time periods *** no longer at issue.” According to this paragraph, the revised affidavit applied only to attorney fees charged after the October 15, 1990, reinstatement letter. Thus, an assessment of the fees charged prior to October 15, 1990, could be made merely by examination of the October 15, 1990, reinstatement letter and the time records appended to the first affidavit. The fees charged after October 15, 1990, were clearly and explicitly set forth in the revised affidavit and supporting time records. Consequently, the record does not support defendants’ assertion that the affidavits and reinstatement letter are inconsistent or unintelligible. In addition, there is no indication in the record that the trial court was confused by the information contained in the documents filed by plaintiff.

Defendants also challenge the time records of plaintiff’s attorney by claiming that the handwritten notations were illegible and unintelligible. Yet, when those records are examined with reference to the abbreviation legend listed at the left of the page, the notations are easily decipherable and reflect what appear to be appropriate amounts of time for legitimate tasks.

Defendants specifically challenge the charges for five hours spent in preparation of the motion to strike affirmative defenses, the motion for summary judgment, and the request for appointment as mortgagee in possession. Defendants also challenge the charges for 19 hours spent in preparation of the replies to defendants’ responses to these motions. Defendants claim that these charges were unreasonable because plaintiff’s counsel spent an excessive amount of time to accomplish a task that defendants assert was comparatively routine. It should be noted, however, that the replies filed by plaintiff included factual and legal arguments as well as case citations in support of the relief requested. These replies were filed only after defendants filed cursory and clearly insufficient responses to the motions brought by plaintiff. As previously indicated, defendants’ response to plaintiff’s motion for summary judgment consisted of a single sentence, relied only upon the answer and affirmative defenses, and was not supported by any affidavits. The trial court’s determination as to an appropriate award of attorney fees must be considered in light of the principle that the trial judge is permitted to use his own knowledge and experience to assess the time required to complete particular activities, and a court of review may not reverse an award of attorney fees merely because it may have reached a different conclusion. (In re Estate of Healy, 137 Ill. App. 3d at 411.) Considering the record before us, we do not find that the trial court abused its discretion in awarding the fees requested for preparation of these documents.

Defendants also specifically challenge the fees charged for amendment of the complaint and motion for summary judgment and for the court appearance on plaintiff’s request to vacate the continuance obtained by defendants upon their emergency motion. As previously stated, the trial judge determined that the charges submitted by plaintiff’s counsel were reasonable. Contrary to the assertions in defendants’ brief, the written order entered on November 2, 1990, does not indicate that the trial court authorized these amendments to be made by interlineation, and there is no transcript or other support in the record for this assertion. In addition, the trial court was aware that plaintiff’s motion to vacate the continuance obtained by defendants on November 19, 1990, was grounded on the allegation that defendants had failed to give plaintiff notice of the motion and that defense counsel failed to provide plaintiff’s attorney with a copy of the order granting the emergency request for a continuance. The trial court was in a better position to determine the reasonableness of the fees specified in plaintiff’s petition, and we will not make a de novo decision as to the appropriate award of attorney fees. See Harris, 230 Ill. App. 3d at 598-99; In re Estate of Healy, 137 Ill. App. 3d at 411.

We note that each of the arguments discussed above was raised in defendants’ objection to the plaintiff’s request for fees and was presumably considered by the trial court prior to the determination of the appropriate and reasonable fee to be awarded.

Moreover, contrary to the assertion of defense counsel at oral argument, the record on appeal does not include a transcript of the hearing on plaintiff’s fee petition. The appellant has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958; Mars, 205 Ill. App. 3d at 1066.) In the absence of such a record, a court of review must presume that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. Any doubts which may arise from the incompleteness of the record will be resolved against the appellant. (Foutch, 99 Ill. 2d at 392; Mars, 205 Ill. App. 3d at 1066.) Thus, where the record does not include a report of the proceedings, where the judgment order states that the court found the additional fees to be reasonable, and where there is no indication to the contrary, it must be presumed that the evidence presented to the trial court supported the judgment. Mars, 205 Ill. App. 3d at 1066.

We next address defendants’ claim that the court erred in refusing to order a refund of attorney fees as requested in their motion for sanctions filed pursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137), and we observe that defendants have not provided any citation to relevant authority in support of this claim. See 134 Ill. 2d R. 341(e)(7).

Defendants assert that the award of $2,750 for fees incurred prior to October 15, 1990, was improper because the time records appended to the first affidavit of plaintiff’s attorney reflect that fees of only $2,275 had been charged and, therefore, the award should have been reduced by $475. This assertion was specifically raised in defendants’ objection to the fee petition and was presumably considered by the trial court when the fees requested were reduced by $871.25.

Defendants also assert that the award was improper because on two occasions the time of an associate of plaintiff’s counsel was billed at $150 per hour when it properly should have been billed at $125 per hour. On page 5 of its reply to defendants’ objection to the fee petition, plaintiff conceded this mistake before the trial court and acknowledged that the award should have been reduced by $46.25. It must be assumed that the trial judge considered this information in determining the proper fee to be awarded.

Defendants also challenge the fees charged for opposition to their motion to vacate the judgment of foreclosure and sale. The basis of this challenge is defendants’ contention that they should not be required to pay fees for plaintiff’s opposition to the motion to vacate where the judgment was entered improperly and in violation of Supreme Court Rule 181 (134 Ill. 2d R. 181). As previously noted, the written order vacating the judgment is not contained in the record on appeal, nor is there a transcript of the hearing or of the trial judge’s comments. Consequently, the record does not support defendants’ claim that the court found a violation of Supreme Court Rule 181.

Finally, defendants sought a judgment in the amount of $950 for the fees incurred to vacate the judgment of foreclosure and sale. This request was made in the defendants’ objection to the plaintiff’s fee petition with the supporting information contained in a footnote appearing at page 8. Because the request was not presented by petition and was not supported by any affidavits or time records, we cannot say that the trial court abused its discretion in denying the request. Harris Trust & Savings Bank, 230 Ill. App. 3d at 595; Kaiser, 164 Ill. App. 3d at 983.

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

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


author: PRESIDING JUSTICE TULLY

text:
    KIRK CORPORATION et al., Plaintiffs-Appellees, v. THE VILLAGE OF BUFFALO GROVE, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 90—3642
    Opinion filed June 23, 1993.
    Bloche, French & Raysa, P.C., of Oak Park (Richard D. Skelton and William G. Raysa, of counsel), for appellant.
    Keck, Mahin & Cate, of Chicago (Donald G. Mulack and Brian Meltzer, of counsel), for appellees.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

This case involves the scope and application of a zoning ordinance enacted by the Village of Buffalo Grove, Illinois (the Village), in 1974, wherein four parcels of land were rezoned for “special use” to accommodate a development of multiple-family dwelling units. Because none of the parcels was developed pursuant to the original ordinance, the Village subsequently rezoned three of the four parcels. A plan was then submitted to develop the remaining fourth parcel in accordance with the original zoning ordinance, which had been enacted 14 years prior.

After the Buffalo Grove Plan Commission (Plan Commission) rejected the plan, plaintiffs filed a two-count complaint for mandamus, declaratory and injunctive relief. A second amended complaint was then filed for specific performance, mandamus and declaratory relief. The trial court dismissed counts I and II of the complaint. Both parties then filed cross-motions for summary judgment on count III. Plaintiffs also filed a motion to strike defendant’s exhibits. On November 1, 1991, the trial court granted plaintiffs’ motion to strike as well as their motion for summary judgment, while denying defendant’s summary judgment motion. A stay was granted pending appeal.

On November 24, 1974, the Village adopted Ordinance 74 — 22A, which provided for the rezoning of four parcels of land, known as parcels A, B, C, and D. The tracts were rezoned “special use” pursuant to the provisions of the 1961 zoning ordinance of Buffalo Grove, in order to allow the development of two separate planned unit developments (PUDs). Parcels A, B and C were to be developed as one PUD consisting of not more than 849 multiple-family dwelling units. An “illustrative Site Plan” for this proposed PUD was attached to Ordinance 74 — 22A as “Exhibit A.” Parcel D was to be developed as a separate PUD consisting of not more than 241 townhouse units.

The PUDs were to be constructed in phases and the Village Board was to approve each phase upon a determination once it was determined that the plans for that phase were in “substantial compliance” with Ordinance 74 — 22A as well as other applicable village ordinances. Among the terms and conditions of Ordinance 74 — 22A, the owner or developer of the parcels was required to make certain contributions to the local school district based upon the number of building permits issued and, additionally, a certain golf course was to be conveyed to the Village.

Subsequently, the owner of the property, the Kirk Corporation, petitioned the Village to rezone parcels B, C and D to permit development in a manner different from that allowed by Ordinance 74 — 22A. Eight separate PUD ordinances were enacted governing the development of parcels B, C and D. Parcel B, originally zoned for multiple-family units, now contains several office buildings, a hotel, a restaurant and a furniture store. Parcel C, originally zoned for 252 apartments, was rezoned for luxury condominiums and townhouses. A new PUD was also approved for parcel D, changing its prior planned use from 241 townhouses to 151 single-family homes.

Parcel A has remained dormant since 1974. On May 2, 1988, the Kirk Corporation submitted a preliminary plan for the development of a portion of parcel A under Ordinance 74 — 22A. On November 2, 1988, following two meetings and a public hearing, the Village Plan Commission voted not to recommend approval of plaintiffs’ preliminary plan. On November 21, 1988, the Buffalo Grove Village president and board of trustees (the Board) accepted the recommendation of the Plan Commission to disapprove the preliminary plan submitted by plaintiffs. On February 2, 1989, plaintiffs filed the instant action for declaratory relief.

Upon hearing arguments on both summary judgment motions, the trial court concluded that there existed no disputed issues of fact and that it would decide, as a matter of law, whether Ordinance 74 — 22A was still in effect and whether plaintiffs’ plan conformed to the applicable provisions of the ordinance. In granting summary judgment for plaintiffs, the trial court made the following findings of law: (1) Ordinance 74 — 22A is valid and enforceable since it has never been repealed; (2) no case law supports the notion that a landowner’s inaction invalidates an ordinance by abandonment; (3) a planned unit development (PUD) ordinance is a zoning ordinance, which represents a restriction on the use of the land, upon which a landowner has the right to rely; (4) a land use ordinance is justifiable only if it serves the public interest and if the public interest subsequently changes, the government must change the ordinance affirmatively; (5) throughout the 14 years of development on the adjoining parcels, Ordinance 74 — 22A was never repealed by the Village but was amended, and prior to this case the Village has never treated the ordinance as a nullity or abandoned; (6) a PUD is a concept unique and tailor-made for a particular tract of land and, once passed, it becomes the zoning law for that particular tract until formally repealed or amended; (7) the PUD for parcel A set forth in Ordinance 74 — 22A has never been changed and the landowner is entitled to have the development rights described therein; (8) a PUD is hybrid zoning which is site particular and subsequent changes in the general zoning codes of the Village do not impact it (e.g., the 1988 setback requirements in the Village code do not impact the setback requirements in Ordinance 74 — 22A); (9) if subsequent development of the adjoining parcels has caused a disharmony with the development of parcel A as originally planned, it was the duty of the Village to repeal Ordinance 74 — 22A and the landowner cannot be restricted because of the Village’s inattention; (10) as a matter of law, plaintiffs have a right to have their preliminary plan reviewed in accordance with the only zoning applicable to parcel A, which is Ordinance 74 — 22A; and (11) the preliminary plan is substantially in compliance with Ordinance 74 — 22A, entitling plaintiffs to summary judgment.

On appeal, the Village argues that the special use approved for parcel A has lapsed or that it has been abandoned by plaintiffs. Moreover, the plan proposed by plaintiffs allegedly does not conform to the other applicable village ordinances. Finally, the Village argues that it can require planning approval for all of parcel A, not just that area covered in plaintiffs’ proposed development plan. The main contention of plaintiffs is that the 1974 ordinance is still in full force and effect and governs parcel A, which it desires to develop, and additionally, development of parcel A in phases is permitted by Ordinance 74— 22A.

Initially, we consider the proper standard of review to be applied by the trial court in reviewing the decision of the Village. The function of a trial court in a declaratory judgment action, challenging the application of a zoning ordinance to a specific property, is to conduct a trial de novo. (Yusuf v. Village of Villa Park (1983), 120 Ill. App. 3d 533, 458 N.E.2d 575.) When reviewing a decision of a local zoning board, the trial court should treat the decision of the board as carrying a strong presumption of validity which can only be overcome by clear and convincing evidence that the application of the ordinance is unreasonable and arbitrary, bearing no substantial relation to public health, safety, morals or welfare. Cosmopolitan National Bank v. County of Cook (1984), 103 Ill. 2d 302, 469 N.E.2d 183.

Instead of conducting a trial and weighing the evidence in support of or against the Board’s decision, the trial court entered summary judgment for plaintiffs, finding as a matter of law the decision of the Board was against the manifest weight of the evidence. In so finding, the trial court concluded that the preliminary development plan rejected by the Board was in substantial compliance with the applicable zoning law.

Summary judgment is proper where there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 514 N.E.2d 188.) Summary judgment is a drastic measure which should be allowed only when a moving party’s right to relief is clear and free from doubt. (Pyne v. Witmer (1989), 129 Ill. 2d 351, 543 N.E.2d 1304.) Where the matter before the trial court can be decided as a question of law, the case is a proper one for summary judgment. (Smith v. Rengel (1981), 97 Ill. App. 3d 204, 422 N.E.2d 1146.) On review, this court must consider the summary judgment motions of both parties de novo.

Although both parties in this case argue on appeal that there exists no genuine issue of material fact and that the entire case rests upon questions of law, the summary judgment motion of plaintiffs and the response thereto by defendants present a vast array of factual issues which are material to the resolution of this dispute. The trial court found as a matter of law that Ordinance 74 — 22A was still the valid zoning ordinance governing the parcel in question and that plaintiffs complied with the ordinance by presenting a preliminary plan which conformed to the site plan attached to the ordinance.

Initially, we consider the validity of Ordinance 74 — 22A. This ordinance has never been repealed, nor has it been amended so as to affect parcel A, the subject of this dispute. The Village has argued to the trial court and on appeal that its own ordinance is invalid. However, in order to allow for development of the parcels which adjoin parcel A, in a manner inconsistent with the original PUD, the Village has chosen to repeal and amend certain sections of the ordinance, rather than repeal the ordinance wholesale. By its own actions, the Village has chosen to recognize and validate the continued existence of the ordinance, even during the 14-year time period wherein the Village claims the ordinance “expired” or was “abandoned.” Where an interpretation of a zoning law has existed for many years of which a legislative body is aware, the law is presumed to be in accord with legislative intent where the language has not been amended. Heerey v. Zoning Board of Appeals (1980), 82 Ill. App. 3d 1088, 403 N.E.2d 617. .

As a secondary argument, the Village posits that the special use granted by the ordinance was revoked within one year of the discontinuation of the special use. The 1961 zoning ordinance of Buffalo Grove provides that “after special uses are discontinued for a period of more than one (1) year the building and land shall only be used for uses permitted in the zoning district in which said special use is located.” (Buffalo Grove, Ill., Zoning Ordinance, art. VI, par. 4.4 (1961).) However, Ordinance 74 — 22A does not set forth any timetable governing the development of the PUD. A concept plan is approved by the Village through the enactment of a PUD ordinance. A preliminary plan must then be submitted and, if approved, it is effective for a period of one year. During this time, the developer must apply for plat approval. If a plat has not been approved within one year, the preliminary plan must be resubmitted for approval.

In their motion for summary judgment, plaintiffs primarily argued that Ordinance 74 — 22A, which rezoned parcel A for multiple-family dwellings, had never been repealed or amended, and the subject property was still listed as R-9 (multiple-family units) on the Village zoning map. The 1974 ordinance authorized a planned development as a “special use” to be constructed around the Buffalo Grove golf course. The 1974 ordinance further incorporated and approved a site plan for the development, which was to be approved in phases. Section 2 of the 1974 ordinance provides that each phase of the planned development “shall be approved by the Village board if it is in substantial compliance with [the site plan] and provisions of said ordinance.” Although “substantial compliance” is not defined by the ordinance, it is defined in Ordinance 73 — 39, which was effective in 1974. Section 6 of Ordinance 74 — 22A granted special use permits for the construction of the development which were never revoked by the Village.

Between 1981 and 1987, the Village amended or repealed sections of Ordinance 74 — 22A in order to allow the development of the other tracts governed by the ordinance. However, in 1986, the Village amended its comprehensive plan, designating the subject property, parcel A, as single-family residential property. The comprehensive plan sets forth the Village’s goals and policies for future land use.

On May 2, 1988, Kirk presented a preliminary plan for the development of parcel A which allegedly substantially complied with the site plan set forth in Ordinance 74 — 22A. Plaintiffs further alleged in their motion that the Village denied approval of their plan because it only covered part of parcel A (phase 1) and no plan was presented for the remaining land in phase 2 of the development. According to Kirk, the Village’s rejection of the plan prevented Kirk from proceeding to the next step, which was to prepare a development plan.

In a letter of November 2, 1988, the Village informed plaintiff that the Plan Commission delineated several reasons for rejecting the preliminary plan submitted. The primary reason for rejecting the plan was that Kirk presented a plan which covered only a portion of parcel A (phase 1), and it did not include the land on phase 2 of parcel A. This portion of parcel A is now owned by another party, and absent a finding that this other party intends to develop the land in accordance with the PUD, the Village refused to accept Kirk’s plan. The Village, however, did not state that the PUD had expired or the special use had been revoked.

Based upon the evidence presented, we find that Ordinance 74 — 22A is still the valid zoning ordinance governing parcel A. Moreover, the language of the ordinance provides for the development and approval of the parcel in phases. However, whether or not the Village properly rejected plaintiffs’ preliminary plan is a question of fact to be properly decided by the trial court, after all of the evidence has been presented. The village zoning ordinance governing PUDs states that the Village may consider changed circumstances in the surrounding area as well as the impact of the plan on the community.

In La Salle National Bank v. Village of Bloomingdale (1987), 154 Ill. App. 3d 918, the trial court found that the disapproval of a site plan which technically complied with a PUD ordinance was unreasonable and inconsistent with the ordinance. The original PUD ordinance was enacted in 1973 and the land was partially developed in accordance with the ordinance. Plaintiffs then proposed the development of a shopping center on an area adjacent to single-family homes. At trial, both sides presented evidence as to the potential effect of the development on the surrounding neighborhood. The trial court held that plaintiff presented clear and convincing evidence that the proposed site plan complied with standards set forth in the PUD ordinance and that the zoning board’s refusal to approve the plan was unreasonable.

On appeal, the appellate court found that the decision of the zoning board was a legislative and not an administrative act, since the ordinance reserved to the board the power to legislate zoning controls and set forth the procedure for approving PUD developments. As a legislative act, the decision of the board was found to carry a “presumption of validity which can only be overcome by clear and convincing evidence.” The appellate court reversed, finding that the board was vested with discretionary power to disapprove the plan which it found to be incompatible with the surrounding area.

Likewise, in the instant case, the Village zoning ordinance of 1961 provides in pertinent part:

“5.1 Planned Developments, as defined in Article II, are of such substantially different character from other special uses that specific and additional standards and exceptions are hereby set out to govern the recommendations of the Plan Commission and the action of the Village Board of Trustees.
5.1— 1 That the uses permitted by such exception are necessary or desirable and are appropriate with respect to the primary purpose of the development;
5.1— 2 That the uses permitted by such exception are not of such a nature or so located as to exercise a detrimental influence on the surrounding neighborhood ***.” (Buffalo Grove, Ill., Zoning Ordinance, §§5.1, 5.1 — 1, 5.1 — 2 (1961).)

Thus, the 1961 ordinance provides some planning standards which are to guide the Board in its approval of PUD plans. Moreover, Ordinance 74 — 22A states “the development shall be constructed in phases.” The Village posits that the proposed plan for phase 1 cannot be approved since the land covered by phase 2 is now owned by a third party and no plans have been submitted regarding this property. This presents yet another factual issue to be considered by the trial court in deciding whether the decision of the Board was unreasonable. This further demonstrates why the entry of summary judgment in this case was premature. We cannot find as a matter of law that the phasal construction provisions prevent the development of phase 1 of the PUD.

In conclusion, we affirm the trial court’s finding that Ordinance 74 — 22A, as a matter of law, is still valid. We reverse the finding that plaintiffs’ plan had to be accepted as a matter of law by the Village. We affirm the denial of the Village’s motion for summary judgment. We remand this cause for a trial, to allow both parties to present evidence on the issue of whether plaintiffs’ plan should be approved. If plaintiffs present clear and convincing evidence that the decision of the Board was arbitrary or unreasonable, the trial court should grant plaintiffs declaratory relief. Absent such a finding, the decision of the Village should be upheld by the trial court and relief to plaintiffs denied.

Affirmed in part; reversed in part and remanded.

RIZZI and GREIMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ISMAEL ROMAN, Defendant-Appellant.
    First District (3rd Division)
    No. 1 — 91—0510
    Opinion filed June 23, 1993.
    Michael J. Pelletier and Sally A. Swiss, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee G. Goldfarb, Sari London, and Guy L. Miller IV, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Defendant, Ismael Roman, was sentenced to 40 years’ imprisonment on the charge of first degree murder. On the evening of July 7, 1989, the victim, Aurelio Hernandez, was driving a car of three other passengers, all members of the gang known as the Simon City Royals. Defendant, a member of a rival gang, the Insane Unknowns, allegedly approached the victim’s car, firing five rounds of ammunition into the car. Hernandez subsequently died from gunshot wounds.

The defense counsel at oral argument stood on its brief with the exception of the threats allegedly made by prosecution witnesses to defendant’s common law wife. The trial judge presiding in this matter denied defense counsel an opportunity to examine two of the prosecution witnesses as to possible threats made by them to the defendant’s common law wife. This court must decide if this excluded testimony deprived defendant of a fair trial.

The State argues that the suggested testimony was not probative and was irrelevant. The defense attorney’s offer of proof indicates that Lozado, defendant’s common law wife, would have testified that rival gang members Carlos Centera and Remy Suane, who were seated in the back seat of the victim’s car, would take retribution against her if she testified and they would kill, defendant if he was not convicted at trial.

Suane and Centera both testified on behalf of the State that defendant fired the fatal shots. The court indicated that any further information from the defendant on this issue would “clutter the record” of the proceeding. A witness can be impeached by showing interest, bias, or inclination to testify falsely. Further restricting impeachment of a witness by motive, bias, or interest may constitute reversible error. (People v. Foley (1982), 109 Ill. App. 3d 1010, 441 N.E.2d 655; People v. Phillips (1981), 95 Ill. App. 3d 1013, 420 N.E.2d 837.) In this particular case, the two witnesses who identified Ismael Roman as the killer could be considered to be biased, and this could have changed the verdict. This situation involved three men identifying the accused as the person who shot the victim. All three were the victim’s friends, two of whom were gang members fighting against the gang of Ismael Roman. A clear motive .to lie could be shown when considering that two of the identifying witnesses were part of a rival gang. This testimony ought to have been allowed to show that these two men had personal reasons to be at odds with the defendant and that their identification of him was perhaps tainted by gang-related bias.

This court finds that the declination of the court to allow this possible impeachment evidence was reversible error. Another issue presented is whether the judge persuaded the jury by actually inquiring about the jury count during deliberation. This kind of behavior is clearly beyond the realm of discretion allowed the judge while the jury is deliberating. In People v. Santiago (1982), 108 Ill. App. 3d 787, 439 N.E.2d 984, the judge indicated to counsel that he would give the Prim instruction if a verdict was not reached within a certain time. Prejudice occurred when the court learned that the jury was split eight to four in favor of a guilty verdict and then, after giving the Prim instruction, the court asked for a further numerical division of the jury. In that case, the trial judge inquired into the jury count three more times before the jury returned a guilty verdict. Likewise, in People v. Griggs (1984), 126 Ill. App. 3d 477, 467 N.E.2d 397, the trial court appeared to be pressuring the undecided jurors to join the majority, who favored a guilty verdict, by counting the number of guilty versus not guilty votes. It could be said that the judge here tried to hasten the jury’s verdict and this could have been a form of subtle persuasion. This was improper conduct by the trial court.

As to the final issue, the State presented testimony by the victim’s sister that the decedent was her little brother and that he was about to start attending Coyne Institute the following week. It would appear that this material was not presented in a fashion so as to merely identify a relationship to the decedent; it was presented with a view towards making this material appear to be material evidence. Given the closely balanced evidence in this case, this admission further warrants reversal. See People v. Wilson (1972), 51 Ill. 2d 302, 307-08, 281 N.E.2d 626, 629.

Finally, based upon the total accumulation of errors, this case must be reversed and this cause remanded to the circuit court of Cook County for a new trial with these admonitions to be followed by the trial court.

Reversed and remanded.

RIZZI and GREIMAN, JJ., concur.

         People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601. The Prim instruction is only to be given where the jury is hopelessly deadlocked.