text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEROY SCOTT OSBORNE, Defendant-Appellant.
    Fourth District
    No. 4—88—0604
    Opinion filed May 4, 1989.
    Rehearing denied June 15, 1989.

      Gary F. Geisler, of Geisler, Waks & Geisler, of Decatur, for appellant.
    Richard E. Goff, State’s Attorney, of Clinton (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

On January 13, 1988, the defendant Leroy Scott Osborne was indicted by a grand jury in De Witt County for the offense of first degree murder in the death of Joshua Wayne Reynolds. Ill. Rev. Stat. 1987, ch. 38, par. 9-l(a)(2).

At trial the following evidence was adduced. The defendant testified that on August 7, 1987, he was employed and resided in Clinton, Hlinois. He was divorced and had full custody of one child and joint custody of his other child. After getting off work on August 7, the defendant picked up his girlfriend and her two children, Joshua, nine months old, and Amber, four years old, and took them to his house in Clinton. He then left the home to perform some errands while his girlfriend Melissa stayed with his children and hers. Upon his return, he checked on the children and saw they were sleeping, but a short time later the defendant heard Joshua crying. Defendant testified he picked the child up, held him for a few minutes, laid him back down in the bed but the boy began crawling toward the edge of the bed.

The defendant, realizing Joshua would not remain in bed, took a piece of cloth and wrapped it around the child’s right arm, across his back, and then around his left arm, in order to keep the child where he was placed. The defendant testified he then realized Joshua was not going to stop crying. He took an ace bandage and wrapped it around the child’s head twice, covering the mouth. The bandage was not covering the child’s nose. The defendant testified the bandage muffled the child’s crying but did not impair the child’s breathing to any notable degree.

The defendant stated he then left the bedroom and talked on the phone for several minutes. At the conclusion of the phone call, the defendant joined his girlfriend in his bedroom and informed her that he had wrapped Joshua’s mouth because of the loud crying. He then performed carnal intercourse with her. Shortly afterwords, the defendant thought he heard a noise from the children’s bedroom. Thinking it was the cat, he went into the bedroom and noticed Joshua was lying on his stomach with his face to the mattress. He went to unwrap Joshua’s mouth and found the child was very limp. He then realized Joshua was not breathing and attempted cardiopulmonary resuscitation. The defendant alerted his girlfriend and together they took Joshua to the John Warner Hospital. Upon arrival at the hospital, the coroner was notified and took possession of the body.

The defendant also testified the practice of “wrapping” the children had come from Melissa. He stated he believed the ace bandage was porous enough to be able to breathe through. Melissa Reynolds denied the idea of “wrapping” the children came from her. However, Officer Lonbom, of the Clinton police, testified Melissa had told him she had a practice of using ace bandages to wrap the children at her home and she would sometimes “wrap” Joshua’s mouth if he kept crying.

The State presented the testimony of Dr. Jordan L. Mann, who performed the autopsy on Joshua at Memorial Medical Center in Springfield. Mann is a pathologist at the Medical Center and teaches at the Southern Illinois University School of Medicine. Mann testified that based upon his findings in the autopsy alone, the cause of death was undetermined. Dr. Mann stated that he had received information that Joshua hah received a diptheria, pertussis, and tetanus (DPT) vaccination three days prior to the death, studies had shown some children experienced severe reactions to the vaccination and a possible relationship between the vaccination and sudden infant death syndrome (SIDS) had been reported. He also testified one of the findings during the autopsy was a mild astricidic proliferation and a single focal cavatory lesion in the brain stem. He noted this was also frequently present in cases of SIDS.

The State next presented the testimony of Dr. Millard Bass, an osteopath physician and forensic pathologist from New York. Dr. Bass testified he made his determination of the cause of death based on the assumption the bandage covered the child’s mouth and nose. This assumption was made on the basis of the size of the bandage and the child’s face. Based on the autopsy findings alone, not considering any extrinsic information, he would agree with Dr. Mann’s conclusion that the cause of death was undetermined. He stated the child might very well have been able to breathe through the ace bandage wrapped over his mouth. On further cross-examination, the doctor testified as to the authority of several studies concerning SIDS and linking SIDS with DPT vaccinations.

The State also called Dr. Enid Gilbert, a pathologist from the University of Wisconsin and the teacher of Dr. Mann. Gilbert testified the child died of suffocation. She acknowledged that from the autopsy findings it was impossible to tell whether the child stopped breathing from having the ace bandage over his mouth or if the child stopped breathing from lying face down. She also concurred with the other two doctors that from the autopsy report alone, suffocation and SIDS would be indistinguishable. She testified she was aware the child had received a DPT vaccination within two or three days of his death and she was aware of the studies linking the vaccination with SIDS. She also testified about recent studies refuting the connection between the vaccination and SIDS.

On June 29, 1988, the defendant was found guilty of involuntary manslaughter. On August 10, 1988, a sentencing hearing was held. The court, after reviewing the evidence and mitigating factors and stating it was considering a sentence which would not deprecate the seriousness of the crime, sentenced the defendant to four years in the Department of Corrections. The defendant filed a notice of appeal on August 15,1988.

The defendant argues the State has failed to establish his guilt beyond a reasonable doubt where the expert testimony of the pathologists was the cause of death was undetermined. He contends the failure of the pathologists to exclude SIDS caused by apnea or a DPT vaccination prevented the State from proving the defendant caused the victim’s death.

Although it is not necessary to prove the defendant’s act was the sole and immediate cause of death, the State must nevertheless prove that defendant’s act was beyond a reasonable doubt a contributory cause and that death did not result from a cause unconnected with the defendant. (People v. Kent (1982), 111 Ill. App. 3d 733, 444 N.E.2d 570.) Defendant correctly suggests that Dr. Mann, the pathologist, could not definitely state the cause of the victim’s death based on the findings of the autopsy alone. However, Drs. Bass and Gilbert were also called as expert witnesses by the State. Dr. Bass testified that based purely on the findings of the autopsy he could not determine the cause of death definitely, but that considered in conjunction with the other information, his opinion was that the child had died of suffocation. While he admitted other causes of death were possible and there was extensive testimony on various scientific works concerning SIDS, his ultimate conclusion was that the child had died of suffocation.

Dr. Gilbert also testified on the scientific literature and specifically on recent studies relating to DPT vaccinations and SIDS. She heavily discounted the possibility of SIDS as a cause of death in this case, whether as a result of the vaccination or from other causes. She testified suffocation was the cause of death and specifically stated the child’s nose did not need to be covered for this to be the cause of death. The court specifically stated that Dr. Gilbert’s was the most helpful and persuasive testimony when it made its findings.

Though defendant relies on Kent, that case is inapposite to the one here. In Kent, the appellate court reversed because the finding of the pathologist was based on an inadequate autopsy which could not reliably reveal the cause of death. The court found the evidence to be insufficient to support the conviction. In this case, there is no question concerning the adequacy of the autopsy. A case closer to the facts here is People v. Wieland (1984), 123 Ill. App. 3d 576, 462 N.E.2d 1256. There, in a murder prosecution, the pathologist testified that death could have been caused by a beating or by natural causes. The defendant there stated he had punched the elderly victim several times in the head. This court held there was sufficient evidence to support a conclusion the defendant’s beating caused or contributed to the victim’s death and upheld the conviction. In the instant case, two experts testified suffocation was the cause of death. The remaining expert testified it was undetermined. The court found the autopsy report listed the cause of death as undetermined but suggested suffocation was the cause. This, when taken in conjunction with the defendant’s testimony concerning the binding of the victim and the “wrapping” of his mouth, is sufficient to support his conviction. A jury may consider the medical evidence in context and is not required to search out a cause of death compatible with innocence. (People v. Peterson (1988), 171 Ill. App. 3d 730, 525 N.E.2d 946.) In this case, the trier of fact is the court, and it is likewise not required to look for a cause of death compatible with the defendant’s innocence.

Defendant next maintains both Drs. Bass and Gilbert gave their testimony based on the assumption the bandage covered both the child’s mouth and nose. Defendant further argues the evidence directly contradicted such an assumption and the expert testimony should therefore not have been admitted.

First, it is necessary to note the only evidence concerning the placement of the bandage was the statements of the defendant himself. He testified that when he “wrapped” the face of the child, he covered only the mouth. He also testified he returned to find the child was not breathing, face down on the mattress, and the bandages still covered only the mouth. The bandages were then removed by the defendant and no other person had the opportunity to observe them in place. Thus, any statements on the position of the bandages in the autopsy or police reports, or in evidence given at trial, are directly attributable to the defendant alone. Furthermore, throughout the trial the defendant continually sought to show it was possible to breathe through the bandage. If this evidence was taken in the light most favorable to defendant, it would render the question of whether the bandage covered the nose and mouth or the mouth alone moot since under defendant’s theory the child would have been able to breathe in either case.

While it is clear that both Drs. Bass and Gilbert considered the possibility the bandage would have covered both the child’s mouth and nose, both doctors were willing to state the child died of suffocation. Dr. Bass indicated his consideration of information outside the autopsy report had gone beyond the matter of whether both the mouth and nose of the child were covered. Dr. Gilbert stated the question of whether one or both were covered would not markedly affect her determination.

Defendant has cited a number of civil cases to stand for the proposition that an expert witness may not guess or state an opinion based on mere conjecture. Even accepting defendant’s argument that both experts gave opinions based on the assumption the bandage covered both the child’s mouth and nose, such an opinion would not be based on guess or conjecture. The bandage used to wrap the child’s face was an exhibit at trial. There was testimony concerning the distance between the child’s mouth and nose and the likelihood that the bandage placed over the mouth alone could interfere with the breathing of the child. There was also the testimony the defendant had found the child face down on the mattress with its arms still bound and the child had been crying and screaming at the time when he had been “wrapped.” An expert may make assumptions which have a basis in the evidence even though it is contradicted by other evidence. (Gariti v. Karlin (1970), 127 Ill. App. 2d 166, 262 N.E.2d 179.) Here, the experts could have made an assumption based on the evidence of the placement of the bandage and the size of the child and the bandage. This would be a reasonable assumption based on the evidence and contradicted only by the defendant’s statement. Before an expert is allowed to state his opinion, the facts upon which that opinion are based must be in evidence. Admissibility of expert testimony is conditional upon laying such a foundation. (People v. Driver (1978), 62 Ill. App. 3d 847, 379 N.E.2d 840.) Here, the testimony was based only on facts in evidence and did not, therefore, represent impermissible speculation.

Defendant also argues the denial of probation and a sentence of four years in the Department of Corrections was an abuse of discretion and a misunderstanding of the purpose of intensive probation. To take the defendant’s arguments in reverse order, defendant has not shown where or how the court misunderstood the purposes of intensive probation. A careful reading of the record reveals only that defendant brought the availability of such probation in an adjoining county to the attention of the trial court. It does not reveal any error or misunderstanding on the part of the trial court. Defendant has failed to show any error or cite any authority which would require us to reverse the trial court.

Defendant argues the trial court erred in sentencing him to four years in the Department of Corrections. He has recited a number of cases to stand for the general proposition that a court’s discretion is not unlimited in sentencing. He has failed to cite any authority to show how the court abused its discretion here. There is a strong presumption that a trial court’s sentencing decision is based upon proper legal reasoning, and it is entitled to great deference and weight. (People v. Johnson (1988), 172 Ill. App. 3d 371, 526 N.E.2d 611.) Imposition of a sentence is the purview of the trial court and will not be disturbed absent an abuse of discretion. A belief that probation would deprecate the seriousness of the offense is a justifiable reason for denying probation. (People v. Monk (1988), 174 Ill. App. 3d 528, 528 N.E.2d 1063.) The court here clearly indicated it considered the mitigating factors provided for in the statute but it also stated it would impose a sentence which would not deprecate the seriousness of the crime. It chose to impose a period of imprisonment on the defendant.

In his reply brief, defendant has also argued his situation is analogous to a disparate sentence being given to an accomplice or codefendant. In this case, defendant’s girlfriend, mother of the victim, is alleged to have “wrapped” the child on previous occasions. Defendant .suggests his girlfriend, though not indicted for any crime, is in the position of an accomplice and because she is going unpunished defendant’s sentence is disparate.

Defendant’s argument here is not well taken. He has failed to show this court how it would leap from the .cited authority, which involved comparison of sentences between convicted accomplices, to the instant case, where the defendant stands convicted of involuntary manslaughter and his girlfriend has not been indicted for any crime. The authority cited by defendant and the situation in this case are completely inapposite and no analogy can be drawn between them. For this reason, the defendant’s argument fails and his sentence is affirmed.

The judgment of the circuit court is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. GERALD I. HECKER et al., Defendants-Appellees.
    Second District
    No. 2—88—0952
    Opinion filed May 11, 1989.

      Kevin J. Luther, Douglas J. Pomatto, and Lloyd R. McCumber, all of Heyl, Royster, Voelker & Allen, P.C., of Rockford, for appellant.
    Frank A. Perrecone, of Lawrence J. Ferolie & Associates, Ltd., of Rockford, for appellees.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Nationwide Mutual Insurance Company, appeals from an order of the circuit court granting summary judgment in favor of defendants, Gerald and Irene Heeker. The issue on appeal is whether the trial court erred in granting summary judgment in favor of defendants by finding that the applicable policy limits for uninsured motorist provisions are $100,000 per person and $300,000 per occurrence (100/300). We reverse.

Plaintiff filed an action for declaratory judgment after its insureds, the Heckers, were involved in an accident with an uninsured motorist in May 1984. Gerald was driving their 1984 Chevrolet Cavalier, and Irene was his passenger. The Cavalier was one of three cars covered under the insurance policy.

The declarations sheet of the insurance policy stated: “Your policy provides the coverages and limits shown in the schedule of coverages. They apply to each insured vehicle as indicated.” Below this language, the declaration sheet set forth the vehicles covered and the limits of coverage. The first car listed was a Chevrolet Celebrity. Under the uninsured motorist bodily injury provision was listed $100,000 each person, $300,000 each occurrence, and a premium of $7. The second car listed was a 1974 Chevrolet Corvette, which also had bodily injury limits of $100,000 each person and $300,000 for each occurrence, and a premium of $7. The third car listed was the Cavalier. Under its uninsured motorist provision was listed $50,000 for each person, $100,000 for each occurrence, and a premium of $3.30. The policy further provided:

“2. The insuring of more than one person or vehicle under this policy does not increase our Uninsured Motorists payment limits. Limits apply to each insured vehicle as stated in the Declarations. In no event will any insured be entitled to more than the highest limit applicable to any one motor vehicle under this or any other policy issued by us.”

Both parties filed motions for summary judgment. Defendants argued that they were entitled to 100/300 coverage limits because the terms of the policy were ambiguous. Plaintiff argued that the policy unambiguously stated that defendants were limited to 50/100 coverage because the car involved was the Cavalier. The court decided that paragraph two of the policy was an anti-stacking provision which did not limit the recovery to the amounts specified for the particular car the insured was occupying at the time of the accident. The court concluded that the contract was ambiguous and construed the policy to allow defendants to choose which coverage limit they wished to apply, which was 100/300.

On appeal, plaintiff contends that the policy provisions, taken as a whole, unambiguously limit coverage to the amounts indicated for each vehicle.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112.) Construction of an insurance policy is a matter of law to be determined by the court. United Farm Bureau Mutual Insurance Co. v. Elder (1981), 86 Ill. 2d 339, 342-43.

Insurance policy provisions which are unambiguous should be applied as written. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 495.) Contractual language is not rendered ambiguous merely because the parties do not agree on its meaning. (Katz v. American Family Insurance Co. (1987), 163 Ill. App. 3d 549, 552.) A contractual provision is ambiguous if it is reasonably capable of different constructions. See Mitchell Buick & Oldsmobile Sales, Inc. v. National Dealers Services, Inc. (1985), 138 Ill. App. 3d 574, 584.

Defendants base their argument that uninsured motorist coverage attaches to the insured not the vehicle on the public policy behind section 143a of the Insurance Code (Ill. Rev. Stat. 1983, ch. 73, par. 755a). It provides that any liability insurance policy must provide coverage for injury or death due to an uninsured motorist. (Ill. Rev. Stat. 1983, ch. 73, par. 755a(1).) At the time that the policy was issued, such coverage was required to be at least $15,000 per person and $30,000 per occurrence. (See Ill. Rev. Stat. 1983, ch. 951/2, par. 7 — 203.) We find that, in the instant case, public policy considerations do not figure into the analysis because the coverage limits on the Cavalier exceeded the statutory requirement, and defendants were therefore not denied coverage. See Squire v. Economy Fire & Casualty Co. (1977), 69 Ill. 2d 167, 176 (the purpose of section 143a is to place the policy holder in approximately the same position as if the wrongful driver had had the minimum liability insurance).

Plaintiff cites Makela v. State Farm Mutual Automobile Insurance Co. (1986), 147 Ill. App. 3d 38, in support of its proposition that the policy at issue unambiguously provides that the insureds are limited to the amounts listed on the declarations sheet for the car they occupied at the time of the accident. Defendants argue that Makela is distinguishable because the plaintiff in that case was not a named insured under the policy at issue, whereas, here, the defendants are trying to recover the highest possible coverage under their own insurance policy.

In Makela, the insured had three automobiles, which the court found to be insured under one policy. (147 Ill. App. 3d at 49, 51.) Two of the cars had uninsured motorist coverage of 15/30, and the other car had uninsured motorist coverage of 50/100. (147 Ill. App. 3d at 40-41.) The car involved in the accident was one of the cars that had uninsured motorist coverage of 15/30. The plaintiff argued that she was entitled to the highest coverage under the policy, $50,000, because the insurance policy was ambiguous. The policy in Makela stated:

“ ‘[T]he limit of uninsured motorist insurance shown on the Declaration Page for “each person” is the maximum we’ll pay in Damages for bodily injury to any one person *** [e]ven though You may have more than one car insured with us and separate premiums are charged for each car, the most we will pay for any one accident is the amount shown on the Declaration Page. When Damages are payable under more than one policy we’ve issued to You, we won’t pay more than the highest limit in any one such policy.’ ” (147 Ill. App. 3d at 51.)

In interpreting this section of the policy, the court stated:

“Read as a whole, the above provisions in tandem with the separate listings of coverages for each of three automobiles on the declaration page unambiguously indicate that coverage is limited to the amount listed for the automobile involved in the accident.” (147 Ill. App. 3d at 51.)

We find that a similar analysis in the instant case leads to the conclusion that defendants were only entitled to 50/100 coverage.

In the instant case, paragraph two of the policy states that the “[ljimits apply to each insured vehicle as stated in the Declarations.” The declaration sheet provides that the coverages and limits “apply to each insured vehicle as indicated” in the schedule of coverages. The Celebrity and the Corvette each have coverage limits of 100/300, and each has a premium of $7. The Cavalier had coverage limits of 50/100 and a premium of $3.30. Reading paragraph two in conjunction with the declarations sheet, we conclude that the policy unambiguously limits coverage to the amount listed for the vehicle involved in the accident. Consequently, defendants were entitled to 50/100 coverage and not 100/300 coverage. Since there are no issues of fact, plaintiff is entitled to summary judgment as a matter of law.

Accordingly, the judgment of the circuit court is reversed, and this cause is remanded with directions that the court enter judgment for plaintiff in accordance with this opinion.

Reversed and remanded with directions.

NASH and REINHARD, JJ., concur.


author: JUSTICE WOODWARD

text:
      In re MARRIAGE OF DAVID ALLEN WATLING, Petitioner-Appellant, and LAURETTA ANN WATLING, Respondent-Appellee.
    Second District
    No. 2—88—0610
    Opinion filed May 11, 1989.
    Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Waukegan, for appellant.
    Burton A. Gross, of Chicago, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Petitioner, David Watling (David), appeals from May 27, 1988, orders of the circuit court of Lake County. The first ruled that David is not the father of Rebecca Holtzman, but nevertheless, he must pay temporary child support from October 13, 1987, to February 22, 1988. The second order found him in contempt for failure to pay said support and committed him to the county jail until such time as he paid $250 in child support arrearage.

Initially, we find that respondent’s motion to strike David’s brief is unpersuasive, and we, therefore, deny said motion.

The parties were married on March 13, 1976. On October 13, 1987, after a prolonged trial, the trial court entered a judgment for dissolution of marriage dissolving the marriage, dividing certain property, and reserving issues of child support, permanent visitation, and sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). During the marriage, two children were born to respondent, Lauretta Watling (Lauretta). Rebecca was bom on October 7, 1979, and Sarah Elizabeth was born on September 30, 1986. Sarah Elizabeth, in a separate Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2510 et seq.) proceeding, was determined to be the daughter of Dr. Stephen Holtzman and Lauretta.

In 1978, Lauretta became involved in an affair with her employer, Dr. Holtzman. After Rebecca’s birth in 1979, Lauretta spent more and more time with Holtzman so that David became the principal parent for Rebecca. In 1984, Holtzman obtained a divorce from his wife, and Lauretta sought a divorce from David, advising him that Rebecca was Holtzman’s daughter. While this action was pending, Lauretta had physical custody of Rebecca, who would spend unspecified visitation periods with David.

On October 5, 1987, prior to the e.ntry of the judgment for dissolution of marriage, Lauretta filed a petition for temporary child support for Rebecca, which contained the following paragraphs:

“2. That your Petitioner has always maintained the position thar [sic] DAVID ALLEN WATLING is not the father of said child.
3. That DAVID ALLEN WATLING has admitted under oath that he is not the father of Rebecca, and by stipulation of the parties, the result of blood tests have been admitted herein, which show the possibility that DAVID ALLEN WATLING is the father of said child is 0.00 percent and that the possibility that he is not the father of said child is 100 percent.
* * *
11. That in the exercise of its equitable and legal powers, this Court should order David Allen Watling to contribute to the support of Rebecca.”

On October 13, 1987, the court entered an order directing David to pay Lauretta the sum of $120 per week “as and for the support of Rebecca.” The court further ordered the payments were to be made through the clerk of the circuit court and that they were retroactive to “October 12,1987 [sic].”

On October 23, 1987, David filed a petition to reduce tiie temporary child support payment to $50 per week and on November 2, 1987, filed a petition to enter final judgment on visitation /and child support. David, in the petition to enter final judgment on visitation and child support, stated:

“5. The Marriage and Dissolution Act clearly authorizes this Court to order payment of support by David Watling because, and only because he is the father of Rebecca. If he were not Rebecca’s father this Court could not lawfully order him to pay support.”

David sought to bar Lauretta from proceeding with any further litigation which would change his position as Rebecca’s father, and he moved the court to enter final orders on visitation and child support. On November 3, 1987, the court denied the petition to reduce the amount of child support, and David paid the sum of $250 in overdue temporary child support to the clerk of the circuit court. The court did not rule on David’s motion asking for final orders with respect to child support and visitation.

On December 17, 1987, David filed a petition to reduce child support and set Christmas visitation, alleging that the amount ordered per week was 50% of his pay because of reduced work. On January 8, 1988, Lauretta filed a petition for rule to show cause alleging that David had not made all of the child support payments, and on January 13,1988, she filed a response to the petition to reduce child support.

On February 19, 1988, in a separate action under the act, a jury entered a verdict that David and Holtzman were not the natural fathers of Rebecca. The court which presided over this action ordered:

“[N]either David Watling [n]or Stephen Holtzman shall pay child support on account of Rebecca.”

Lauretta filed a motion to terminate visitation for the reason that David' was not the natural father and a petition for rule to show cause to compel him to pay child support. On February 25, 1988, the court suspended visitation. On March 15, 1988, the court issued rules to show cause why David should not be held in contempt for failing to pay overdue temporary child support.

On April 14, 1988, David filed a petition for declaration of equitable parenthood or, in the alternative, for adoption of Rebecca, and he filed a response to the rule to show cause with respect to temporary child support.

On May 13, 1988, Lauretta Watling filed a response to the petition for equitable parentage or, in the alternative, for adoption, admitting that in cause No. 85 — F—1340, and pursuant to a jury verdict, a judgment had been entered which declared that neither David nor Holtzman is the father of Rebecca.

On May 27, 1988, the court conducted a hearing regarding the various rules to show cause. The court found that there was an arrearage as of May 27, 1988, in the amount of $1,320 for child support payments and that David had not given any legally significant reasons for his failure to comply with the order. The court further made these findings:

“1. Until February 22, 1988 David Allen Watling was the father of Rebecca for purposes of support order.
2. That the child support order of October 13, 1987 was a final and appealable order and even if not then;
3. That the jury finding in 85 F 1340 cannot be applied retroactively.”

The court denied David’s motion to vacate the October 13, 1987, order, and it found that his obligation to pay child support terminated February 22, 1988. Further, the court ordered him to jail for contempt, with the provision that he could purge himself of said contempt if he paid $250 of the arrearage. David was taken to jail, and subsequently, he was released upon payment of the $250.

On appeal, David argues that (1) the trial court erred in ruling that the order for temporary child support was a final and appealable order; (2) the trial court should have set aside the temporary child support order; and (3) the circumstances did not justify a finding of contempt.

Initially David contends that the October 13, 1987, order for temporary child support was not a final and appealable order. He asserts that the October 13, 1987, judgment for dissolution of marriage reserved the issues of child support, permanent visitation, and attorney fees pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611). David argues that until the court ruled on child support and visitation in a final and appealable order, those issues remained for the court below to adjudicate, modify, or vacate. We agree.

A final order is one which terminates and disposes of parties’ rights regarding issues in the suit so that, if affirmed, the trial court only has to proceed with execution of judgment. (Findley v. Posway (1983), 118 Ill. App. 3d 824.) Where an order of the-court leaves a cause still pending and undecided, it is not a final order. (Findley, 118 Ill. App. 3d at 826.) The rule is intended to prevent a multiplicity of suits and piecemeal appeals. (118 Ill. App. 3d at 826.) Obviously, the order for temporary child support did not terminate the litigation but was merely an interim order.

David next argues that the court below should have set aside the order for temporary child support in view of the March 15, 1987, order which found that he was not the father of Rebecca. Questions of whether temporary child support should be allowed and the amount to be paid are matters within the discretion of the trial court, in view of the conditions and circumstances of each case. (Glover v. Glover (1971), 132 Ill. App. 2d 284.) Modification of child support provisions rests in the sound discretion of the trial court and will not be interfered with in the absence of an abuse of discretion or unless a manifest injustice has been done. In re Marriage of Runge (1981), 102 Ill. App. 3d 356.

The evidence shows that in Lauretta’s October 5, 1987, petition for temporary child support, she admitted that David was not Rebecca’s biological father. In the Parentage Act case brought by Rebecca’s guardian, a jury found that David was not her father. The trial court was fully aware of these facts when it ordered David to pay $1,320 in temporary child support arrearage for Rebecca and subsequently found him in contempt of court for failing to make said payments. Clearly, David is not Rebecca’s father. The court below should have granted David’s motion to vacate the order which required him to pay temporary child support. Fully cognizant that David had no legal relationship to Rebecca, the court was without authority to order him to pay the alleged arrearage and further to find David in contempt of court for failing to pay said arrearage! As such, the court abused its discretion in making such orders.

We reverse and remand this action with specific instructions to grant David’s motion to vacate the order for temporary child support and to vacate the court’s order finding David in contempt of court.

Reversed and remanded.

- UNVERZAGT, P.J., and NASH, J., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. THOMAS BERTSCH, Defendant-Appellee.
    Second District
    No. 2—88—0402
    Opinion filed May 12, 1989.

      Charles R. Hartman, State’s Attorney, of Freeport (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    David A. Caulk, of Sreenan, Cain & Sullivan, P.C., of Rockford, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)), the State appeals from an order rescinding the summary suspension of the driver’s license of defendant, Thomas Bertsch. On appeal, the State contends that the officer who administered defendant’s breath test properly complied with the 20-minute observation period prior to testing as required by the regulations of the Department of Public Health. We disagree and affirm.

As the parties are well familiar with the facts, we shall recite only those facts essential to the disposition of this appeal. At the hearing on defendant’s petition to rescind his summary suspension, Deputy Keith Eikstadt of the Stephenson County sheriff’s department testified that on September 12, 1987, at 7:25 p.m., he stopped defendant’s vehicle for speeding. As Eikstadt approached defendant’s vehicle, he noticed the smell of alcohol emanating from defendant. When defendant performed poorly on three field-sobriety tests, Eikstadt placed defendant under arrest for driving under the influence of alcohol and transported him to the police station.

Eikstadt further testified that after defendant received the “warning to motorist,” defendant agreed to take a breath test. Eikstadt, who was certified to administer breath tests, stated that he observed defendant for 20 minutes prior to taking a breath sample. According to Eikstadt, defendant did not ingest alcohol or food, drink, regurgitate, vomit, or smoke during the observation period. Eikstadt further stated that although he wrote defendant’s traffic citations during the observation period, he did not observe defendant belch during that period. Eikstadt indicated that a belch during the 20-min-ute observation period could skew the results of a person’s breath test. The result of defendant’s breath test showed a blood-alcohol content of .23. When called as a witness for the State, Eikstadt testified that he finished writing defendant’s traffic citations prior to starting defendant’s 20-minute observation period.

Defendant testified in his own behalf. Defendant stated that during the 20-minute observation period, he belched twice and that a phlegm-like substance went up into his mouth and was swallowed. Defendant further testified that his belches were five minutes apart and that the last one occurred five minutes prior to testing. Defendant stated that Eikstadt and another officer were doing paperwork and adjusting the machine when he belched. Defendant explained that he did not tell Eikstadt that he belched because he did not know that his belching would affect the result of his breath test.

After hearing argument, the trial court granted defendant’s petition to rescind the statutory summary suspension of his driver’s license. In reaching its decision, the trial court stated:

“Getting down to (e) whether or not the intoxilyzer was given or the breath analysis was performed in compliance with the rules and regulations of the Department of Public Health. *** We get a question here in the facts of the matter as to whether or not this test was performed in conjunction with their rules and regulations. *** And this Court’s observation— or over the years observation of these kinds of cases the officer always kept him under observation for twenty minutes and continued to do so for the ten minutes between the two tests. And I have never heard of observation consisting of an officer writing tickets while he is observing the man or moving from room to room. And I agree with you Mr. Caulk that my recollection of the direct-examination of the officer originally was that first of all he was filling out tickets within the twenty minutes of the test and secondly that it was possible that the defendant could have belched and he not have seen it and I am now somewhat mystified then on rebuttal the testimony is he would have seen any movements and further that the tickets were written in another room or prior to the time. Something wasn’t consistent with the first time. But be that as it may I take the testimony given originally and that was he did not in fact have Mr. Bertsch under continuous observation for twenty minutes, whether or not this really had any bearing on the test I don’t know. Evidently the Department of Public Health thinks so because it is part of their rules and regulations that the officer is supposed to continue the observation to observe this. That’s what Officer Eikstadt said from the stand. That’s the purpose of belching, the same as vomiting. It would queer the test. Court finds as to Number 6 on the sheet that the summary suspension of the driving privileges of the defendant, this suspension is rescinded due to the fact that this test was not given in accordance with the rules and regulations of the Department of Public Health.” (Emphasis added.)

From that ruling, the State brought this appeal. Pursuant to Supreme Court Rule 606(c) (107 Ill. 2d R. 606(c)), we granted the State leave to file a late notice of appeal.

On appeal, the State contends that even though Deputy Eikstadt wrote out defendant’s traffic citations during the 20-minute observation period, his actions substantially complied with the regulations of the Department of Public Health. The State further argues that a belch does not violate the department’s regulations for taking a breath test. Defendant maintains that the trial court correctly found that Eikstadt failed to comply with the 20-minute observation period prior to testing. Additionally, defendant asserts that because his belch involved a simultaneous regurgitation, his belch invalidated the results of his breath test. Regardless of whether Deputy Eikstadt properly observed defendant 20 minutes prior to taking his breath test, we determine that the trial court correctly determined that a proper foundation for the consideration of the breathalyzer results was not established.

When a person challenges the summary suspension of his driver’s license, he bears the burden of proof at the rescission hearing. (People v. Griffith (1987), 153 Ill. App. 3d 856, 861; People v. Blythe (1987), 153 Ill. App. 3d 292, 298.) To rescind the summary suspension of a defendant’s driver’s license, the trial court must find that the defendant has satisfied his burden of proof by a- preponderance of the evidence. (People v. Torres (1987), 160 Ill. App. 3d 643, 646; People v. Sanders (1987), 155 Ill. App. 3d 759, 763.) Whether a defendant has met his burden of proof by a preponderance of the evidence is a question of fact for the trial judge, and his determination will not be overturned on review unless it is palpably against the manifest weight of the evidence. (People v. Kurtz (1988), 171 Ill. App. 3d 1068, 1070; Torres, 160 Ill. App. 3d at 646.) After carefully reviewing the record, it is clear to us that the trial court’s finding was not against the manifest weight of the evidence.

Section 510.60(a) of the Illinois Administrative Code states:

“Procedures for breath alcohol analysis shall include the following requirements in conjunction with the testing of each subject:
a) Continuous observation of the subject for at least twenty (20) minutes prior to collection of the breath specimen, during which period the subject must not have ingested alcohol, food, drink, regurgitated, vomited or smoked.” 77 Ill. Adm. Code §510.60(a) (1985).

Regurgitation within 20 minutes before taking a breath test can cause an inaccurate blood-alcohol content reading, and Rule 510.60(a) is intended to guard against such results. (People v. Neville (1987), 151 Ill. App. 3d 679, 681.) Although we note that other jurisdictions have recognized that a belch which occurs during the 20-min-ute observation period prior to testing can skew the results of a breath test, we do not feel the need to judicially insert into the Department of Public Health regulations the lack of belching as a foundational requirement for admissibility of the breathalyzer results. (See, e.g., State ex rel. McDougall v. Municipal Court (1986), 153 Ariz. 111, 112, 735 P.2d 141, 142; Donnelly v. Commissioner of Public Safety (Minn. App. 1988), 422 N.W.2d 528, 529; People v. McDonough (1987), 132 A.D.2d 997, 998, 518 N.Y.S.2d 524, 526; City of Columbus v. Taylor (1988), 39 Ohio St. 3d 162, 164-65, 529 N.E.2d 1382, 1385; State v. Johnson (Tenn. Crim. App. 1986), 717 S.W.2d 298, 301.) We deem “belching” to be in the nature of an affirmative defense which tends to establish the inaccuracy of the breathalyzer results in spite of compliance with the departmental regulations for purposes of establishing admissibility. Deputy Eikstadt, a trained breathalyzer operator, testified that belching could cause the breathalyzer to give an inaccurate reading of a person’s blood-alcohol content. Therefore, we conclude the court’s determination that belching during the 20-minute observation period could have caused an inaccurate blood-alcohol content reading is not against the manifest weight of the evidence.

The State cites People v. Johnson (1986), 148 Ill. App. 3d 4, and People v. Crawford (1974), 23 Ill. App. 3d 398, for the proposition that because belching is not prohibited under Rule 510.60(a), it cannot be used to invalidate a person’s breath test. In Johnson, the Appellate Court for the Third District relied on Crawford in concluding that belching does not invalidate a person’s breath test. (Johnson, 148 Ill. App. 3d at 6.) The Crawford court, however, determined that even if Rule 510.60(a) prohibited belching under “a quite liberal” interpretation of the word “regurgitation,” there was no testimony that the defendant did, in fact, belch during the 20-minute observation period. (Crawford, 23 Ill. App. 3d at 403.) In our opinion, the Crawford court did not go so far as to conclude that belching does not affect the results of a person’s breath test. Therefore, we respectfully submit that Johnson and Crawford are factually distinguishable. Based on the aforementioned reasoning, we conclude that the trial court could have found belching during the 20-minute observation period invalidated the defendant’s breath test results, not because of a violation of the Department’s regulation, but in spite of it based upon the police officer’s expert testimony that belching wiH “queer” the results.

At his summary suspension hearing, defendant testified that he belched twice during the 20-minute observation period. Defendant further testified that Deputy Eikstadt was doing paperwork and adjusting the breathalyzer when he belched. Eikstadt testified that during the 20-minute observation period, he did not observe defendant belch. The trier of fact is to determine the credibility of the witnesses, and, where the evidence is merely conflicting, a court of review will not disturb the trier of fact’s judgment. (People v. Cooper (1987), 164 Ill. App. 3d 734, 737.) Here, the trial court believed defendant's version of the events which took place during the 20-minute observation period. Because defendant’s explanation of the events which occurred prior to his breath test and the officer’s testimony regarding the effects of belching were not inherently impossible or unreasonable (see People v. Schubert (1985), 136 Ill. App. 3d 348, 353), we affirm the rescission of the summary suspension of defendant’s driver’s license.

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

Affirmed.

DUNN and LINDBERG, JJ., concur.


text:
    WILLIAM DILLARD, Plaintiff-Appellant, v. PAT KEAN, Indiv. and d/b/a Cotton-Kean Ford, Defendants-Appellees.
    Second District
    No. 2—88—0754
    Opinion filed May 12, 1989.
    Rehearing denied June 13,1989.

      Peter F. Carroll, of Steffen & Carroll, of Elgin, for appellant.
    Jay S. Judge, Janella L. Barbrow, Sarah Hansen Sotos, and Mark Crane, all of Judge & Knight, Ltd., of Park Ridge, for appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, William Dillard, filed a six-count complaint, alleging malicious prosecution (two counts), false imprisonment (two counts), and breach of contract (two counts) against defendants, Pat Kean, individually and doing business as Cotton-Kean Ford.

The allegations of the complaint arose as a result of a complaint made to the Du Page County State’s Attorney’s office by Cotton-Kean Ford. (Although plaintiff alleges that Pat Kean initiated the complaint, that allegation is disputed by the defendants.) As a result of the complaint and subsequent to an investigation by the State’s Attorney’s office, on October 4, 1983, plaintiff was indicted on eight counts of deceptive practice. On November 13, 1984, the charges were dismissed on the State’s motion otnolle prosequi.

On January 21, 1985, plaintiff filed the aforementioned complaint. On January 29, 1986, judgment was entered on the pleadings in favor of the defendants and against plaintiff on the false imprisonment counts (III and IV). On November 13, 1987, summary judgment was entered in favor of the defendants and against plaintiff on the malicious prosecution counts (I and II). On January 13, 1988, the plaintiff filed a motion to reconsider the court’s decision on the malicious prosecution counts. On February 29, 1988, the trial court denied the plaintiff’s motion to reconsider. Subsequently, on March 9, 1988, the trial court dismissed the remaining counts of the complaint which alleged breach of contract (V and VI). In the order, the trial court restated that the plaintiff’s motion to reconsider was denied.

On April 8, 1988, the plaintiff filed a notice of appeal which stated that plaintiff was appealing from the trial court’s order of March 9, 1988, denying plaintiff’s motion to reconsider the order of November 13, 1987, dismissing the malicious prosecution counts of plaintiff’s complaint. Inasmuch as there remained pending an intervening petition previously filed with leave of court on behalf of Illinois Emcasco Insurance Company, as subrogee of Elmhurst Chrysler Plymouth, the order of March 9, 1988, did not dispose of the entire case. However, the order of March 9, 1988, did not contain a finding that there was no just reason to delay the enforcement or appeal of the case. The defendants moved to dismiss the appeal, and the appeal was dismissed by this court on June 30,1988.

On July 23, 1988, the plaintiff filed a motion to amend the order of February 29, 1988, granting the defendants’ motion for summary judgment on the malicious prosecution counts of the complaint. On July 25, 1988, the trial court entered an order staying the trial of the intervening third-party claim pending the outcome of any appeal of the case and providing as follows:

“This Court’s order of March 9, 1988, is hereby amended Nunc Pro Tunc to include the following language: ‘There is no just reason for delaying enforcement or appeal of the denial of plaintiff’s motion to reconsider this Court’s order of November 17, 1987.’ ”

Plaintiff then filed a second notice of appeal on July 29, 1988.

We find that we are unable to review the merits of the issues raised by plaintiff in his appeal in light of plaintiff’s failure to comply with Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii). Rule 341(e)(4)(ii) was amended effective August 1, 1988, and provides in pertinent part as follows:

“(ii) In a case appealed to the Appellate Court, a brief statement or explanation under the heading ‘Jurisdiction’ of the basis for appeal, e.g., whether as a final judgment under Rule 301 or Rule 304(a) or (b); or as an interlocutory appeal pursuant to Rule 306, Rule 307 or Rule 308.”

In the case before us, plaintiff’s brief was filed on November 3, 1988. His brief contained no jurisdictional statement. The defendants’ brief in this case was filed on December 9, 1988. Defendants’ brief raises the issue of whether this court has jurisdiction to consider this appeal. In his reply brief, plaintiff addressed the issue of this court’s jurisdiction, maintaining that this court has jurisdiction of this appeal, but cited no authority in support of a finding of jurisdiction, in violation of Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)). In all this time, plaintiff has not sought leave of this court to file a jurisdictional statement.

The question of jurisdiction of the appellate court must be determined prior to deciding the merits of an appeal. (Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 800.) However, the appellate court is not a depository in which the appellant may dump the burden of argument and research. (See Thrall Car Manufacturing Co. v. Lindquist (1986), 145 Ill. App. 3d 712, 719.) The purpose of the jurisdictional statement is to set forth the jurisdictional basis for the appeal. In the case before us, plaintiff has not provided us with a jurisdictional basis, nor has he addressed the merits of the questions raised by the defendants in regard to this court’s jurisdiction, such as the effect of the nunc pro tunc order which related back to the order of March 9, 1988. We also note that the order of July 25, 1988, refers to the order of November 17, 1988. The record before us contains no order dated November 17, 1988.

Arguments that do not satisfy the requirements of Supreme Court Rule 341(e)(7) (citation to authority in support of argument) do not merit consideration on appeal. (Rockford Memorial Hospital v. Schueler (1988), 167 Ill. App. 3d 358, 362.) The failure of the plaintiff both in failing to file a jurisdictional statement and in failing to cite authority in his response to defendant’s challenge to the jurisdiction of the court has left this court with no choice other than to dismiss this appeal. Until now the failure to file a jurisdictional statement has resulted in a stern reminder to appellate counsel of the requirement of Supreme Court Rule 341(e)(4Xii), rather than a dismissal of the appeal. However, these were cases in which we noted both the newness of the requirement of a jurisdictional statement and that our jurisdiction of the appeal was clear. In the case before us, our jurisdiction of this appeal is far from clear. We are not required to do plaintiff’s homework for him and then grade it as well.

We conclude, therefore, that based upon plaintiff’s violation of Supreme Court Rules 341(e)(4)(ii) and 341(e)(7), plaintiff’s appeal should be dismissed. 122 Ill. 2d R. 341(e)(4)(ii); 107 Ill. 2d R. 341(eX7).

Appeal dismissed.

NASH and INGLIS, JJ., concur.


author: JUSTICE CHAPMAN

text:
    DARLA CHRISTOFFEL, Plaintiff-Appellant, v. COUNTRY MUTUAL INSURANCE COMPANY, Defendant-Appellee.
    Fifth District
    No. 5—87—0479
    Opinion filed April 24, 1989.
    Rehearing denied June 9, 1989.

      Steven E. Katzman, of Belleville, for appellant.
    James E. Gorman and Curtis L. Blood, both of Reed, Armstrong, Gorman, Coffey, Thomson & Gilbert, of Edwardsville, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff Darla Christoffel appeals from an order of the circuit court of St. Clair County which granted defendant Country Mutual Insurance Company’s motion to dismiss. We reverse.

On December 6, 1984, the plaintiff, Darla Christoffel, was injured while she was a passenger in a vehicle driven by Garry Jones, which was struck by a vehicle driven by an uninsured motorist. Garry Jones’ automobile was insured by Madison Mutual Insurance Company, which provided uninsured motorist protection of $25,000 per person/$50,000 per occurrence. The plaintiff was also the named insured in an automobile policy issued to her by Country Mutual, which contained uninsured motorist protection of $50,000 per person/$100,000 per occurrence. On June 13, 1986, Plaintiff notified Country Mutual of the potential uninsured motorist claim which she held against Country Mutual. Plaintiff also advised Country Mutual of her claim and suit against Madison Mutual Insurance Company and of pending arbitration proceedings with Madison Mutual.

The claim against Madison Mutual proceeded to arbitration. Country Mutual chose not to be present at the arbitration proceedings. Plaintiff and Madison Mutual Insurance stipulated at the hearing to the policy limits of $25,000 as well as to the amount of medical payments paid by Madison Mutual, which were deductions from any award or settlement. On September 5, 1986, an order was entered by the arbitrators, awarding plaintiff $25,000 in damages less deductions for the amount of the medical payments. On October 3, 1986, plaintiff filed a motion to reconsider in the arbitration proceeding against Madison Mutual, asking the arbitrators to reconsider their findings that the plaintiff’s damages were $25,000. The arbitrators granted the motion and entered an order in which the plaintiff’s damages were found to be in excess of $25,000.

Subsequent to the above arbitration hearing, plaintiff made a claim against Country Mutual under the uninsured motorist provisions of her policy. Country Mutual denied coverage, alleging that plaintiff’s damages had been fully satisfied by the arbitration award and that Country Mutual therefore had no duty to arbitrate. Plaintiff then filed a complaint for declaratory judgment against Country Mutual seeking an order requiring defendant to submit to arbitration and for damages based on defendant’s vexatious refusal to arbitrate. At no time was a copy of the insurance policy attached to the pleadings or made a part of the record. Defendant filed a motion to dismiss on grounds: (1) that plaintiff failed to comply with section 2 — 606 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 606) by not attaching either a copy of the insurance policy to the complaint or an affidavit indicating that the insurance policy was inaccessible; (2) that the action was barred because it was not brought within the two-year statute of limitations provided for in the policy; and (3) that there was no duty of defendant to arbitrate because plaintiff’s damages had been fully satisfied by the arbitration award.

The trial court granted defendant’s motion to dismiss, holding that the initial arbitration award established that the plaintiff had been fully compensated for the injuries which she sustained. The trial court did not address the statute of limitations issue. This appeal by plaintiff followed.

The first concern of this appeal is the effect of not having the insurance policy, which is the subject of this suit, attached to the pleadings or otherwise included in the record. Paragraph 3 of count I and paragraph 2 of count II of plaintiff’s complaint state that plaintiff does not have a copy of the insurance policy in her possession. This assertion, although not supported by an independent affidavit, was made in the body of the complaint, which was itself sworn and subscribed to. Section 2 — 606 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 606) provides:

“If a claim or defense is founded upon a written instrument, a copy thereof *** must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.”

An affidavit is a written statement, confirmed by the oath of the party making it, taken before a person having authority to administer such oath or affirmation. (Black’s Law Dictionary 54 (5th ed. 1979).) Failure to comply with the requirement of section 2 — 606 is grounds for dismissal of a complaint. (See Plocar v. Dunkin’ Donuts of America, Inc. (1981), 103 Ill. App. 3d 740, 431 N.E.2d 1175.) In the instant case plaintiff did not strictly comply with section 2 — 606. Plaintiff did not attach a copy of the insurance policy to her complaint for declaratory judgment, nor did she attach a separate affidavit stating facts showing that the instrument was not accessible to her. However, at the conclusion of plaintiff’s complaint is a notarized sworn and subscribed statement by the attorney who prepared the complaint, affirming the truth of the allegations made in the complaint. The sworn statement of the attorney who prepared the complaint verifies the truth of the allegations of the complaint, and two of the allegations were that plaintiff did not have the policy in her possession.

Compliance with section 2 — 606 is further established by virtue of the fact that the insurance policy was described in the body of the complaint and that defendant had prepared the policy and is presumed to have a copy. This court in Hubbartt v. Frank (1976), 36 Ill. App. 3d 529, 344 N.E.2d 496, ruled that the trial court exercised proper discretion in waiving strict compliance with the rule requiring that a copy of the agreement be attached to the complaint served upon defendant. In Hubbartt defendant filed a motion to strike plaintiff’s complaint. One of the grounds for its motion was plaintiff’s failure to attach a copy of the contract which was the subject of the complaint. (Hubbartt, 36 Ill. App. 3d at 531, 344 N.E.2d at 498.) Although a copy of the written agreement sued upon was not attached to defendant’s copy of the complaint, the agreement was described in the body of plaintiff’s verified complaint, the defendant had prepared the contract and was presumed to have a copy, and the complaint filed with the court did include a copy of the written agreement. (Hubbartt, 36 Ill. App. 3d at 532, 344 N.E.2d at 499.) Although arguably Hubbartt is distinguishable from the instant case in that a copy of the insurance policy was not made part of the record, plaintiff herein did substantially comply with section 2 — 606.

Since our decision is that the plaintiff did substantially comply with section 2 — 606, we now turn to the issue of whether the trial court erred in granting defendant Country Mutual’s motion to dismiss. Our supreme court has explained what a satisfactory complaint must contain:

“To pass muster a complaint must state a cause of action in two ways. First, it must be legally sufficient; it must set forth a legally recognized claim as its avenue of recovery. When it fails to do this, there is no recourse at law for the injury alleged, and the complaint must be dismissed. [Citations.] Second, *** the complaint must be factually sufficient; it must plead facts which bring the claim within the legally recognized cause of action alleged. If it does not, the complaint must be dismissed.” People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1009.

To avoid a motion to dismiss, it must be clear that no set of facts can be proved which would entitle plaintiff to recover. (Courtney v. Board of Education (1972), 6 Ill. App. 3d 424, 425, 286 N.E.2d 25, 26.) Section 2 — 603(c) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 603(c)) tells us that “pleadings shall be liberally construed with a view to doing substantial justice between the parties.” Plaintiff’s complaint for declaratory judgment herein stated the factual allegations that plaintiff was insured by defendant and that defendant was required to provide underinsured/uninsured motorist protection in the amount of $50,000/$100,000; that plaintiff was injured in an auto accident involving an uninsured motorist; that plaintiff was awarded $25,000 from the primary insurer; that said recovery was insufficient to compensate plaintiff; that pursuant to defendant’s contract of insurance plaintiff made a demand and filed a claim; that plaintiff fully complied with all conditions required by the contract of insurance between herself and the defendant; and that in breach of the insurance contract, defendant has refused to provide coverage to plaintiff. These factual allegations must be taken as true when deciding a motion to dismiss. (Courtney, 6 Ill. App. 3d at 425, 286 N.E.2d at 26.) A complaint for declaratory judgment which recites in sufficient detail an actual and legal controversy between the parties and prays for a declaration of rights, and which demonstrates that the plaintiff is interested in the controversy, states facts sufficient to state a cause of action. (City of Chicago v. Department of Human Rights (1986), 141 Ill. App. 3d 165, 169, 490 N.E.2d 53, 57.) While some of the allegations set forth above are conclusory in nature, it appears to us that they sufficiently apprise defendant of the fact that plaintiff is claiming coverage due by Country Mutual under the policy.

We also note that a plaintiff is not required to allege facts with precision where the necessary information to do so is within the knowledge and control of the defendant and unknown to plaintiff. (Stap v. Chicago Aces Tennis Team, Inc. (1978), 63 Ill. App. 3d 23, 29-30, 379 N.E.2d 1298, 1303.) In the case before us, plaintiff did not have a copy of the insurance policy which was within defendant’s possession. As discovery was not initiated by the parties prior to the trial court’s consideration of the motion to dismiss, plaintiff was thereby without the information needed to plead more specific factual allegations. The complaint however, set forth the ultimate facts with sufficient specificity to reasonably inform Country Mutual of the charges against it.

Based on the record before us, the trial court improperly granted the motion to dismiss plaintiff’s complaint.

Reversed and remanded.

GOLDENHERSH and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE WELCH

text:
      In re MARRIAGE OF JANE M. CRIPE, n/k/a Jane M. Ponder, Petitioner-Appellant, and RODNEY E. CRIPE, Respondent-Appellee.
    Fifth District
    No. 5—88—0595
    Opinion filed April 27, 1989.

      Alan Pretnar, of Taylor Springs, for appellant.

      Meyer & Meyer, of Greenville, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

Appellant, Jane Cripe, now Ponder, appeals from the denial of her post-trial motion and motion to vacate an order of the circuit court of Bond County, entered July 22, 1988, modifying custody with respect to the children of her marriage to appellee, Rodney E. Cripe. The parties’ marriage was dissolved by order of the circuit court of Bond County on July 1, 1987. By order of the court dated February 8, 1988, appellant was given permanent custody of the parties’ two minor children, Camille Cripe and Dori Kay Cripe.

On July 19, 1988, appellee filed a petition to modify the custody order, alleging a substantial change of circumstances affecting the best interests of the children and seriously endangering the physical, mental, moral and emotional health of the children. The petition was accompanied by an affidavit which recites that appellant is living in open and notorious adultery with a man to whom she is not married but who is married to another woman; that someone who lives in the house other than the children is believed to be using illegal drugs in the presence of both the children; that appellant spends large amounts of time away from the home and leaves the children with various baby-sitters, including her paramour; and that the children have been instructed to call appellant’s paramour “daddy,” and to call appellee, their natural father, “Rod.” The affidavit further recites that the children are living in this environment and that it seriously endangers their physical, mental, moral and emotional health.

Hearing was held on the petition on July 19, 1988. The following evidence was adduced. Appellant’s paramour, Adolph McCuin Ponder, Jr., testified that he is 35 years of age and resides with the appellant and her children at 950 East Oak, Greenville. He had lived there for approximately four months preceding the hearing. At the time of the hearing, Camille Cripe was seven years of age and Dori Kay Cripe was 10 months of age. Ponder is employed in East Alton where his usual hours of work are 3:30 p.m. to 12 a.m. He is married and has two children by his wife, both of whom reside with his wife. Ponder sleeps in the master bedroom with appellant. Each of appellant’s children has her own bedroom approximately 20 to 25 feet from the master bedroom. Ponder and appellant engage in sexual relations in the master bedroom when the children are present in the house. Ponder occasionally baby-sits the children. The children never call Ponder “daddy,” nor has he or anyone else told the children to call him “daddy.” Most of the time, Ponder parks his vehicle in the driveway or the back yard of appellant’s house. Ponder occasionally drinks alcoholic beverages and has been drunk twice in the four months preceding the hearing. Ponder has advised some people of where he is living. There is a proceeding pending in the circuit court of Madison County to dissolve Ponder’s marriage and a hearing is scheduled in that cause. Ponder loves appellant and intends to marry her as soon as his marriage is dissolved. Appellant feels the same way toward Ponder. Their relationship is exclusive. Ponder gets along well with appellant’s children and cares for them as his own. The children have no hesitancy to stay with Ponder when appellant is gone. Appellant does not leave the children with a .baby-sitter for extended periods of time except when she is at work. Ponder feels love and affection for appellant’s children. Ponder, realizes that he is committing the crime of adultery with appellant.

Appellant testified that she has lived with Adolph Ponder for four months. She has sexual relations with him while the children are in the house. She works in Alton and has varying work hours. When appellant is at work, she leaves the children with her sister-in-law in Greenville. She drops them off before she goes to work and picks them up on her way home from work. She sometimes picks them up at midnight or drops them off at 5:30 a.m. This does not seem to disturb the children, and they go right back to bed. Sometimes the children spend the night at the baby-sitter’s. Ponder sometimes baby-sits the children on Sunday. The children call Ponder “Adolph,” and appellant has never told them to call him “daddy.” Appellant has not smoked marijuana since her marriage to appellee was dissolved, nor has anyone smoked marijuana in her home. She has never smelled marijuana in her home. Ponder does not smoke marijuana. Neither she nor Ponder use any illegal drugs. The same people baby-sit her children now as did when she was married to appellee.

Appellee testified that he is 29 years of age, is remarried and lives in Greenville. Both appellee and his wife work during the day. He and his wife own their two-bedroom home. He has made arrangements for baby-sitters while he and his wife are at work in the event he gains custody of the children. Camille, the older child, will not have to change schools if appellee is awarded custody. On May 11, 1988, appellee went to appellant’s home to pick up the children for visitation. When he entered the home, he smelled marijuana. Appellee had smelled marijuana only one time previously, but stated that he knew what it smelled like. He testified that it smelled like burning brakes or something rotten. Appellee has never smoked marijuana, but smelled it one time at a party five or six years before the hearing.

Appellee’s wife testified that she is 31 years of age and is a school teacher at Vandalia Junior High School. She wants appellee to gain custody of his children. She is willing to have the children live in her home and would care for them and love them as her own. She gets along well with the children. Appellant testified in rebuttal that she loves Ponder very much and plans to marry him as soon as his divorce is final. Ponder loves her children and they have a happy home together. When she marries Ponder, they plan to move to Bunker Hill, which is closer to both of their jobs. Camille will have to change schools. Ponder plays with the children and all four of them do things and go places on appellant’s day off. Appellant has not seen any change in the mental health of her children since the dissolution of her marriage to appellee, and Camille’s performance at school has improved. Appellant has seen no change in her children’s sleeping or eating habits since the dissolution of her marriage. Appellant believes Ponder loves her children very much. He frequently buys them things and takes them places. Appellant expects to spend the rest of her life with Ponder. She is never gone from her children for substantial periods of time except when she is at work. Appellant realizes that she is committing the crime of adultery with Ponder. Her children realize she is in love with Ponder. Appellant testified that Camille has never told anyone that she prefers to live with her father, the appellee.

Dawn Kirkman, appellant’s niece, testified that appellant told her that Camille had told appellant that she wanted to live with her father. Dawn had never heard Camille express that she wanted to live with her father.

At the close of the evidence, the court entertained the arguments of counsel. Appellee’s counsel argued that appellant has been living in open and notorious adultery with Ponder and that this immoral and illegal conduct is not in furtherance of the morals and best interests of the children, and further, that the court should not condone such conduct. Appellant’s counsel argued that there is no per se rule that open and notorious adultery alone is sufficient to warrant a modification in custody and that appellee had failed to show that the appellant’s conduct in any way seriously endangered the mental, moral or emotional health of the children.

At the close of the hearing, the court found that there was insufficient evidence that someone had been smoking marijuana in appellant’s home while the children were present, as appellee had failed to establish with sufficient reliability that he was able to recognize the odor of marijuana. The court found a substantial change in circumstances in that appellant had begun living with a man not her husband. The court pointed out that appellant knew she was violating a criminal law by living in open and notorious adultery with Ponder, but chose to ignore that law. This, the court found, endangers the moral and emotional health of the children. The court found that appellee had proved his petition and ordered that custody of the children be transferred to appellee the following evening at 5 p.m., when appellee normally had visitation. Appellant was granted visitation rights. Appellee’s attorney was to prepare a written order.

The court’s written order, entered July 22, 1988, finds by clear and convincing evidence that a change of circumstances had occurred since the judgment of dissolution had been entered which warrants modification of said judgment. The change of circumstances was that appellant had begun living with a married man to whom she was not married and that the children were living in the same house with appellant and her paramour. Modification of custody was necessary to serve the best interests of the children. The court also found that appellee could provide a suitable home for the children. The order awarded custody of the children to appellee.

Appellant filed her post-trial motion on August 12, 1988, asking the court to reconsider and reverse the order modifying custody, or in the alternative, asking the court to make specific findings of fact as to how the children’s environment seriously endangers their health and why modification is necessary to serve the best interests of the children. Hearing on the motion was scheduled for August 25, 1988. Immediately prior to the hearing, on August 25, 1988, appellant filed a verified motion to vacate the modification order. The verified motion alleges that appellant is no longer living in open and notorious adultery with Ponder, as they were married on August 20, 1988. Appellee objected to hearing the motion to vacate immediately, as he had not received any notice of its filing. The court continued hearing on the motion to vacate until a later date. Hearing was held on the post-trial motion. After hearing counsels’ argument, the court took the matter under advisement.

On September 23, 1988, the court issued its written order on the post-trial motion. The order recites that the evidence was undisputed that appellant was living in open and notorious adultery with a man in violation of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 1 — 1 et seq.) and that under the Illinois Supreme Court’s decision in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, this environment seriously endangers the moral health of the children. It is not necessary to wait until the adverse effects manifest themselves before custody may be modified. The court further found that the evidence at the hearing on the petition demonstrated that appellant and Ponder were not married and, because he was already married to someone else, could not marry appellant. The court found this factual situation to be similar to that in Jarrett. Appellant’s post-trial motion was denied. By docket entry made September 26, 1988, the court, without stating any reasons, also denied appellant’s motion to vacate the modification order.

Appellant now brings this appeal, raising four interrelated issues: (1) whether the judgment should be deemed void for failure of the trial court to expressly make any specific findings that the children’s present environment seriously endangers their physical, mental, moral or emotional health; (2) whether the order modifying custody is against the manifest weight of the evidence; (3) whether the moral indiscretions of a parent are sufficient grounds for modifying custody where the children are living normal lives; and (4) whether the trial court erred in denying appellant’s motion to vacate the modification order where the only ground for the modification had been rectified when appellant married her paramour.

With respect to the first issue raised by appellant, we find that the trial court did make adequate findings that the children’s environment seriously endangered their moral health. In its oral pronouncement following the hearing on the petition for modification, the trial court specifically and expressly found that the fact that their mother was living in open and notorious adultery, in violation of the Criminal Code, seriously endangered the moral and emotional health of the children. While the court did not make this express finding in its written order on the petition for modification, it did make this express finding in its written order on appellant’s post-trial motion. The trial court also made an express finding in its written order on the petition for modification that modification of custody was necessary to serve the best interests of the minor children. These findings are adequate to meet the requirement of In re Custody of Carter (1985), 137 Ill. App. 3d 439, 484 N.E.2d 1175, that an order modifying custody must contain express findings of fact that the children’s present environment seriously endangers their physical, mental, moral or emotional health and that modification of custody is necessary to serve the best interests of the children.

The next two issues raised by appellant are so interrelated that we will address them as one. Appellant argues that the order of the trial court modifying custody is against the manifest weight of the evidence because there was no evidence presented that the children’s environment seriously endangered their physical, mental, moral or emotional health, and that the moral indiscretions of a parent are not sufficient grounds for modifying custody where the children are living otherwise normal lives. Appellant argues that there was no evidence presented to show that appellant’s living arrangement had any adverse effect upon the children at all and that the mere fact that appellant was living with a man in open and notorious adultery was insufficient ground upon which to modify custody without some showing that the living arrangement had an adverse effect upon the children.

This was precisely the issue presented in Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421. The court in Jarrett held that tangible manifestations of a contemporaneous adverse effect on the children is not required before a modification of custody can be ordered, where the parent maintains an open and continuing conjugal cohabitation with another. However, we agree with the decision in Brandt v. Brandt (1981), 99 Ill. App. 3d 1089, 425 N.E.2d 1251, that Jarrett did not create a per se rule requiring a change in custody of minor children anytime the custodial parent cohabits, in the children’s presence, with a member of the opposite sex openly and on a continuing conjugal basis. Instead, we believe that the custodial parent’s living arrangement is only one of the factors to be considered in determining whether a modification of custody is warranted.

It is important to the case now before us to note that the supreme court in Jarrett stated that not every parent who has violated the community’s moral standards should be denied custody of their children. The supreme court held that, rather than mechanically denying custody in every such instance, the courts of this State must appraise the moral example currently provided and the example which may be expected by the parent in the future. This rule, the court stated, focuses the trial court’s attention on the moral values which the parent is actually demonstrating to the children.

In Jarrett, the children were aged 12, 10 and 7 years. Shortly after her divorce, their mother, who was awarded custody, began cohabiting with a man not her husband. The children asked their mother if she planned to marry her paramour, and she responded that she did not know. At the hearing on the petition to modify custody, the mother testified that she had no plans to marry her paramour in the immediate future, and that, in fact, she did not wish to remarry. The mother’s paramour also testified that they had no plans to marry. The supreme court affirmed the trial court’s modification of custody, finding that this environment endangered the moral well-being of the children.

In Jarrett, modification was warranted because there was no evidence to indicate that the parent’s immoral or illegal conduct would not continue in the future. Thus, not only did the mother’s current conduct set a poor example for the children, but that poor example was expected to continue in the future.

In the instant case, however, the evidence clearly indicates that at the time of the hearing on the petition for modification, appellant and her paramour had a present intention to marry as soon as Ponder was free to do so. The evidence showed that proceedings had begun to dissolve Ponder’s marriage, and a hearing therein was scheduled for the immediate future. According to appellant’s verified motion to vacate, she and Ponder did, in fact, marry before the court had ruled on appellant’s post-trial motion. Therefore, it should have been apparent to the trial court that, although appellant had engaged in immoral or illegal conduct in the past, that conduct was not expected to continue in the future.

We find this case to be similar to Rippon v. Rippon (1978), 64 Ill. App. 3d 465, 381 N.E.2d 70, which was expressly approved of by the supreme court in Jarrett. (Jarrett, 78 Ill. 2d at 348, 400 N.E.2d at 425.) The court in Rippon held that “[o]nly when an open adulterous relationship exists with no possibility of marriage, as when the paramour is and remains married to another woman, is there sufficient grounds to remove custody from the mother.” (Emphasis added.) (64 Ill. App. 3d at 468, 381 N.E.2d at 138.) In Jarrett, the supreme court distinguished Rippon from its decision in that case, stating, “[i]n Rippon the mother who had committed the indiscretion planned to marry her paramour and there was no indication of future misconduct.” (78 Ill. 2d at 348, 400 N.E.2d at 425.) Rippon therefore fell within the rule of Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300, rather than the rule of Jarrett. Nye held that past moral indiscretions of a parent are not sufficient grounds for denying custody if the parent’s present conduct establishes the improbability of such lapses in the future. Similarly, we believe that the instant case falls within the rule of Nye, rather than the rule of Jarrett.

Because the evidence in this case clearly shows that appellant’s moral indiscretions would not continue in the future, we find that the trial court’s order modifying custody was against the manifest weight of the evidence. We therefore reverse it. For the same reason, we find that the trial court’s denial of appellant’s motion to vacate the order of modification was error.

In light of the nature of this case and the fact that the children have been erroneously in the custody of their father for an extended time, we hereby direct the clerk of the appellate court to issue the court’s mandate herein instanter and contemporaneously with the filing of this opinion. We so order on our own motion pursuant to authority granted us by Supreme Court Rule 368(a) (107 Ill. 2d R. 368(a)).

For the foregoing reasons the judgment of the circuit court of Bond County is reversed.

Reversed.

HARRISON and GOLDENHERSH, JJ., concur.