author: JUSTICE BOWMAN

text:
    MARIO R. EGIDI, Plaintiff-Appellee, v. THE TOWN OF LIBERTYVILLE, Defendant-Appellant (Bank of Highland Park, Defendant-Appellee).
    Second District
    No. 2-90-1283
    Opinion filed September 6, 1991.

      James N. Azim III, of Siemon, Larsen & Purdy, of Chicago (Gerald P. Callaghan, of counsel), for appellant.
    Magee, Negele & Associates, of Round Lake (James T. Magee, of counsel), for appellee Mario R. Egidi.

      Martin B. Carroll, of Neal, Gerber, Eisenberg & Lurie, of Chicago (Robert Radasevich, of counsel), for appellee Bank of Highland Park.
    Michele Odorizzi and George A. Ranney, Jr., both of Mayer, Brown & Platt, of Chicago, for amici curiae.

   JUSTICE BOWMAN

delivered the opinion of the court:

This is the second time this matter has come before us. Plaintiff, Egidi, brought the action as a taxpayer’s suit against defendants, Town of Libertyville (Libertyville or Township) and Bank of Highland Park (Bank), challenging the Township’s acquisition of land from the Bank. The Township appeals from an order which granted summary judgment in favor of Egidi and ordered rescission of the sale, conveyance of the land back to the Bank, and refund of the purchase price to Libertyville. The Bank did not appeal the order but submitted a brief as a defendant-appellee. Accordingly, throughout this disposition reference will be made to only one defendant, i.e., Town of Liber-tyville. Also, we have allowed the filing of an amicus curiae brief in support of the Township. The amici are the Open Lands Project, Nature Conservancy, and other parties interested in open space and environmental issues.

The factual background of this dispute is set forth in detail in the earlier case, Egidi v. Town of Libertyville (1989), 181 Ill. App. 3d 542 (Egidi I), and will be repeated here only to the extent necessary to resolve the issues.

Libertyville purchased the vacant land at issue pursuant to the Township Open Space Act (Act) (Ill. Rev. Stat. 1987, ch. 139, par. 321 et seq.). In both Egidi I and this case plaintiff challenged the authority of the Township to purchase the property. In both instances plaintiff argued that the amount of acreage involved did not meet the requirements of the Act. Specifically, the Act authorizes the purchase of open land by a township but, in section 2(b), defines open land as “any space or area of land or water of an area of 50 acres or more, the preservation or the restriction of development or use of which would” preserve or foster various specified goals (Ill. Rev. Stat. 1987, ch. 139, par. 322(b)). While Libertyville purchased a total of 50.6771 acres from the Bank, the property is bisected, across its far southeast corner, by a 270-foot-wide Commonwealth Edison right-of-way. Accordingly, the land purchased by Libertyville actually lies on either side of the right-of-way, and neither side contains 50 acres. There are approximately 49.5 acres to the north of the Commonwealth Edison property and approximately 1.25 acres to the south.

In Egidi I, based on what appeared to be a total lack of connection between them, we found that the two parcels did not adjoin or abut each other. Since we were considering the status of the parcels under the Township Open Space Act, we also found it irrelevant that, under Illinois law, they might be considered contiguous for annexation purposes, as urged by Libertyville. (See Ill. Rev. Stat. 1987, ch. 24, par. 7 — 1—1.) We noted that the Act defines open land as “ ‘an area of land or water of an area of 50 acres or more’ ” (emphasis in original) (Egidi, 181 Ill. App. 3d at 545) and held that the two parcels, physically separated and separately owned, did not constitute “an area of land” as the phrase is used in the Act. Consequently, Liber-tyville had not complied with the Act’s acreage requirement.

In this case the parties again dispute whether the land meets the statutory acreage requirement. However, this time Libertyville contended in the trial court that when it purchased the property from the Bank it acquired not only the acreage in fee simple but also two easements over the Commonwealth Edison right-of-way. Defendant argued that these combined interests constituted a purchase of “open land” consistent with the Act. The lower court rejected Libertyville’s argument and found that the two parcels were separate areas of land which did not abut or adjoin each other and that the easements did not provide ownership or control over an area of at least 50 acres. Essentially, the court concluded that the property sought by the Township was not “open land” as defined in section 2(b) of the Act. The Township claims that the trial court erred in its findings and, therefore, improperly granted Egidi’s motion for summary judgment.

Summary judgment is proper when there remain no genuine issues of fact and the movant is entitled to judgment as a matter of law. (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34.) However, summary judgment is a drastic means of ending litigation and should be granted only when the right of the moving party is clear and free from doubt. (Logan, 139 Ill. 2d at 233.) These principles guide our inquiry.

The Township initially attacks the sufficiency of plaintiff’s complaint, asserting that the complaint does not state a taxpayer’s cause of action because it does not allege that plaintiff is a taxpayer in Libertyville Township. It is beyond dispute that the plaintiff in a taxpayer’s action must allege that he is a taxpayer of the public body on whose behalf the suit is brought. (Lynch v. Devine (1977), 45 Ill. App. 3d 743, 749.) Egidi’s complaint does not specifically state that he is a taxpayer in Libertyville Township. But it does allege that he resides in the Township and owns real estate situated in the Township. The real estate is identified by both its street address and its permanent real estate index number. As the owner of real property, Egidi was obligated to pay the real estate taxes on that property. Plaintiff also alleged that he brought this action “on behalf of all taxpayers and residents” of the Township, clearly including himself as both a taxpayer and a resident. In our view the allegations of plaintiff’s complaint sufficiently assert his status as a taxpayer.

Defendant further insists that plaintiff’s complaint is inadequate because it fails to allege that harm has occurred to the public as a result of defendant’s conduct. It is well established that a taxpayer’s suit requires an allegation that the public has suffered injury. (Village of Leland ex rel. Brouwer v. Leland Community School District No. 1 (1989), 183 Ill. App. 3d 876, 879; Western Lion Limited v. City of Mattoon (1984), 123 Ill. App. 3d 381, 386.) The complaint claims that the Township spent $480,000 in Township funds for the purchase of the land; that the Township did not have the authority to acquire the property; that the Township purchase was an illegal and void act; and that the Township’s conduct resulted in misappropriation and wrongful expenditure of Township funds.

Taxpayers have an equitable right to sue to protect their interests in public funds. (Feen v. Ray (1985), 109 Ill. 2d 339, 344.) The right of a taxpayer to bring suit is based upon misappropriation of general public funds and flows from the proposition that the taxpayer has equitable ownership of the funds and is liable to replenish the treasury in the event of misappropriation. (Price v. City of Mattoon (1936), 364 Ill. 512, 514; Lynch, 45 Ill. App. 3d at 749.) Viewed in light of these principles, we think Egidi’s allegation of injury is sufficient to withstand defendant’s attack. Specifically, plaintiff identified the injury as the wrongful expenditure of plaintiff’s funds to acquire real estate. Since it is tax revenue that is of concern here (see Ill. Rev. Stat. 1987, ch. 139, pars. 323, 325), misappropriation and wrongful expenditure of that revenue are direct and blatant assaults on the taxpayers. Under the Act, tax liability is created and attaches to township funds. The taxpayers furnish the money in the first place and must replace it if necessary. The taxpayers’ injury is the misuse and potential loss of their tax money. We find the complaint sustainable.

The Township next launches several attacks on Egidi’s standing to sue, all of which, according to Egidi, have been waived by defendant’s failure to raise them properly in the trial court or during the first appeal of this case. Our review of the record persuades us that the standing issues were sufficiently set forth below to preserve them for this appeal. Furthermore, it was not necessary for defendant to raise standing the first time the case came before this court because plaintiff there appealed from an order granting the Township’s section 2 — 619 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619) motion to dismiss. In relevant part the motion, which was intended to defeat plaintiff’s claim at the outset, asserted only Libertyville’s compliance with the Act. At the time the motion was filed, there had been no discovery, and no answer had11 been filed. In the absence of adequate supporting information, defendant was not required to put forth its standing challenge. Consequently, Libertyville’s silence on the issue in the first appeal has no effect on its right to question plaintiff’s standing in this appeal.

Libertyville’s first standing argument is that, once an acquisition of land by a’municipal corporation is completed, an individual, even though he is a taxpayer, does not have a sufficient interest in the matter to allow him to attack the acquisition on the ground it is ultra vires. Although the Township recognizes the right of a taxpayer to seek prospective, or injunctive, relief from allegedly unauthorized transactions, it insists that a challenge to a completed purchase of real estate may only be brought by the State of Illinois. Defendant cites several authorities for this proposition. We find defendant’s reliance on those authorities to be misplaced.

In Washburn v. Forest Preserve District (1927), 327 Ill. 479, in a taxpayer’s suit, the public body had exceeded its power in purchasing real estate for forest preserve purposes. The court granted an injunction against further land acquisition but refused to impose a mandatory injunction directing the reconveyance of land previously acquired. In denying plaintiff the latter relief the court said, “His claim to such relief is not established and *** must be denied.” (Washburn, 327 Ill. at 488.) While it did not explain its denial of a mandatory injunction, it appears the Washburn court may have been merely following precedent.

At the time Washburn was decided, unless a statute provided otherwise, an individual plaintiff could establish standing to bring a taxpayer’s suit only by alleging and proving that he would suffer special damage, different from that suffered by the public, as a result of the conduct attacked in the suit. (See Droste v. Kerner (1966), 34 Ill. 2d 495, 504 (and cases cited therein).) Evidently, plaintiff in Washburn either had not shown special damages to himself resulting from previously completed purchases of forest preserve lands or did not otherwise show that reconveyance was warranted. We note that since Droste the special damages requirement has been eliminated. (See Paepcke v. Public Building Comm’n (1970), 46 Ill. 2d 330, 341-42.) In any event, although defendant implies otherwise, the Washburn court addressed only the sufficiency of plaintiff’s claim for the requested relief. The court did not indicate that, as a matter of law, plaintiff lacked standing and therefore could never be granted the relief he sought. In fact the court did not discuss plaintiffs standing or, more specifically, whether the State was the only party who could challenge a municipality’s power to hold improperly acquired real estate. Washburn does not convince us that plaintiff in this case lacks standing.

Another of defendant’s cases, City of Champaign v. Harmon (1881), 98 Ill. 491, did not involve a taxpayer’s suit. Rather, in relevant part, it was concerned with an attempt by a delinquent taxpayer to get back real estate the city had purchased at a tax sale. After receiving a tax deed for the property, the city sought to eject the defendant from possession. Defendant responded by challenging the city’s power to purchase real estate at a tax sale. While it is not altogether clear in the opinion, it appears the taxpayer endeavored to have the sale voided as an unauthorized act, but without reimbursement to the city for the back taxes it had paid.

The court found that, although the city enjoyed a general power to purchase real estate, it did not have the specific power to make any such purchases at a tax sale. Nevertheless, by way of analogy the court indicated that, where a city has a general power to purchase real estate, a vendor may not escape his contract by insisting his deed is void because the city exceeded its powers in executing the contract. It was in this context the court made the statement that only the State may question whether a corporation has acted beyond its powers. The court did not grant relief to the city because the purchase of the real estate was illegal. No relief was granted to the defendant, either, however, because the record showed that he owed the taxes on the property and ought to pay them. The court added: “The law will leave the parties where they have chosen to place themselves, in respect to the property itself.” Harmon, 98 Ill. at 496.

In Harmon the property owner lost his real estate through his own failure to pay taxes on it. The court would not allow him to recoup the property at the city’s expense by exploiting the city’s improvident and unauthorized purchase of the parcel. In sum, the court’s refusal to void the city’s acquisition of the real estate turned not so much on the fact that the tax sale had been completed as it did on the court’s awareness that the defendant would reap a windfall if he got back his land without ever paying off the tax debt he had created.

In contrast to Harmon, in the case before us plaintiff cannot be said to have placed himself in the position of a wronged taxpayer. Nor does the complaint reflect an intent to exploit the Township’s allegedly unlawful conduct for plaintiff’s personal gain. The action was brought for the benefit of all taxpayers and seeks relief from the misuse of tax money. In our view this is not the kind of suit addressed in Harmon. Consequently, we find defendant’s use of Harmon unavailing on the issue of Egidi’s standing.

Although the Township relies heavily on it, Mills v. Forest Preserve District (1931), 345 Ill. 503, is not helpful to defendant’s position, either. Suit there was not brought by a taxpayer but by a dissatisfied vendor seeking to rescind the sale of his land to the defendant. It was not disputed that the purchase by the forest preserve district was ultra vires. After reviewing its own precedent, as well as authority from other jurisdictions, the court found that, under the circumstances of the case before it, only the State could challenge the power of the forest preserve district to acquire the particular land in question. However, the cases the court relied on, including Harmon, which we discussed above, involved disputes between the municipal body and sellers or their heirs, or similar entities, who were attempting to undo the transaction into which they themselves had entered and for which they had received the full benefits accruing to them. The Mills court denied relief to the vendor because the parties to the transaction were on an equal footing, there had been no fraud or duress, and the vendor “got what he bargained for, and he cannot, under guise of the protection of public interest, rue his bargain.” (Mills, 345 Ill. at 518.) Relief was not denied in Mills merely because the real estate had already been acquired. Relief was denied because plaintiff had already reaped the benefits of his voluntarily executed contract with the forest preserve district, and it was no concern of his whether the defendant had improperly entered into that contract. In the court’s words, plaintiff has “no private interest in the subject matter.” Mills, 345 Ill. at 518.

One case cited by the Mills court clearly demonstrates the ineffectiveness of the kinds of cases on which defendant relies. In Beckett v. City of Petaluma (1915), 171 Cal. 309, 153 R 20, the city acquired title at a tax sale and devoted the real estate to uses beyond its power to allow. In the heirs’ suit to quiet title, the court said of the plaintiffs’ attack on the city’s lack of power:

“ ‘The objection here made is collateral. The State of California is not a party to the action. The parties who transferred the property to the city for the unauthorized uses are not complaining. *** The question whether or not property in possession of a city is used for purposes within its corporate powers cannot be raised collaterally, nor at all except by the State or a taxpayer or some person authorized to act in behalf of its inhabitants.’ ” (Emphasis added.) Mills, 345 Ill. at 515-16, quoting Beckett, 171 Cal. at 313-14, 153 P. at 22.

There is a clear-cut difference between the precedent invoked by defendant and the taxpayer’s suit presently before us. The plaintiffs in the Township’s cases challenged the defendants’ power, not because they or other taxpayers were wronged by the exercise of that power, but because they hoped to achieve some personal gain. The courts would not allow the plaintiffs to maneuver out of their self-created situations by focusing on improper municipal conduct. Accordingly, the courts refused to undo completed real estate transactions despite the fact the transactions may have been unauthorized. In contrast, in this case we are not concerned with a party to the transaction who has come to “rue his bargain.” Rather, we speak of a taxpayer who has attacked a completed purchase of real estate in order to right a wrong assertedly worked on all taxpayers of the Township. The focus of the taxpayer is not on the land itself, or even on unwinding a real estate transaction, but on protecting public funds.

In sum, the case now before us presents a situation entirely different from those in Harmon and Mills. As implied in the Beckett case, a taxpayer acting in the interests of the inhabitants of a State may challenge a governmental body’s improper exercise of its powers. We do not believe the authorities defendant relies on require us to find that, under the circumstances of this case, only the State may sue and Egidi therefore lacks standing.

Defendant and the amici strongly advise that no Illinois case has ever allowed a taxpayer to undo an acquisition of real estate that has already been completed. The amici, particularly, urge that we should distinguish between prospective relief and rescission of a completed transaction. They point out that preventing a municipality from expending funds is easier than undoing a sale of land and that changed conditions may make rescission impossible or unjust. Also, they posit that allowing rescission would subject municipalities to lengthy uncertainty regarding the validity of real estate purchases since taxpayers could wait for years after a purchase before seeking relief. In regard to these arguments we note only that inherent in the remedy of rescission is a requirement that the parties be restored to the status quo as it existed prior to execution of the contract (Puskar v. Hughes (1989), 179 Ill. App. 3d 522, 528). Here, the Bank, which sold the property to the township, is agreeable to rescission. There is no indication in the record before us that the parties could not be returned to their preacquisition positions.

Furthermore, while relief in taxpayers’ suits is generally prospective, or injunctive in nature, it is not always so. (See Kinzer v. City of Chicago (1988), 169 Ill. App. 3d 447, 457 (and materials cited therein).) We are in agreement with the Kinzer court that constituents of a taxing body, acting on behalf of that body, may also invoke actions to recover public funds which have been expended unlawfully. (Kinzer, 169 Ill. App. 3d at 457.) It is not significant that the money has already been spent. Plaintiffs in Kinzer had standing to seek a declaration that certain contracts were void and to recoup funds spent illegally by city officials pursuant to those contracts. A taxpayer’s suit was not barred by the fact that a purchase of real estate had already been completed in People ex rel. Hamer v. Board of Education of School District No. 109 (1970), 130 Ill. App. 2d 592. The court there held that plaintiff had standing and allowed him to amend his complaint to attempt to state a cause of action. In this case Egidi essentially seeks to recover the money he claims was spent illegally by the Township. We cannot say that the remedy he seeks forecloses plaintiff’s right to bring this suit.

The Township’s final standing argument, that Egidi cannot claim to be a taxpayer because he has not paid taxes in Libertyville Township since 1985, has no merit. Defendant correctly asserts that Egidi’s real estate taxes were paid by his mortgagee, the Bank, rather than himself. However, Libertyville nowhere disputes that Egidi was the owner of record of real estate in the Township at all pertinent times or that he remains liable for real estate taxes, including any paid by his bank. At best, all that can be said is that plaintiff is a taxpayer indebted to his mortgage holder for taxes paid by the mortgage holder. This does not amount to losing his taxpayer status.

Having concluded that plaintiff has standing to maintain this suit, we turn now to Libertyville’s contention that the trial court erred in finding that the acreage it acquired was not “open land” pursuant to the Act. The first matter to be resolved is an attack by Egidi on the viability of the easements claimed by Libertyville. The land comprising the right-of-way was originally conveyed by Egidi to Commonwealth Edison by deeds executed in 1955 and 1960. Both deeds reserved an easement across the right-of-way “for 2 private roadways 33 feet in width to be established in a Southeasterly and Northwesterly direction across the above described property at locations” which were to be agreed upon and which would not interfere with the grantee’s facilities, equipment, or use of the property. Plaintiff objects that the easements are too vague to be effective and, therefore, do not serve as a connection between the two segments of Township property. The record on this point is not sufficient to allow a complete determination of this issue.

Egidi and the Bank claim that Egidi’s deeds to Commonwealth Edison conveyed a strip of land extending far beyond the border of the subject property; that Egidi previously sold the land on either side of the right-of-way, other than the subject property, to a third party; and that the roadway easements reserved in the deeds were intended to serve the full length of the strip conveyed to Commonwealth Edison, not just the 270-foot section that runs through defendant’s property. Plaintiff argues that, since there are now multiple owners of the original Egidi parcel, all of whom have an interest in the easements, and the easements were never specifically located, any interest the Township may have in them is too tenuous to allow the easements to serve as a link between the two segments of the Township’s land.

In support of this position, plaintiff and the Bank cite only to deeds reflecting a conveyance of real estate to Egidi and later conveyances from Egidi to Commonwealth Edison. None of the deeds, however, are accompanied by plats corresponding to the various legal descriptions, and plaintiff does not direct us to any other means of verifying his claims regarding the land he originally owned, the relationship of the right-of-way to his land, the land sold to a third party, or even his claim as to the full extent of the strip of land he sold to Commonwealth Edison. As defendant notes, plaintiff has included with his brief what purports to be a photocopy of a portion of a survey of the properties under discussion. The original of the photocopy is found in the record attached to one of plaintiff’s memoranda of law. However, neither the original nor the copy is certified or accompanied by an affidavit or otherwise authenticated, and we decline to rely on it.

We have examined the record with care but cannot determine whether the easements apply to only the Township’s property or if, indeed, they are meant to provide access points along a far longer section of right-of-way. Furthermore, even if we were able to find, as plaintiff urges, that the easements are pertinent to a longer strip than the one across the Township’s land, the problem would not be resolved. If, at the time the easements were reserved, all of the land adjoining the right-of-way was held by Egidi and his wife as sole owners, then they alone would have held all the easement rights. It would have been easy enough for them to decide, in concert with Commonwealth Edison, where the two roadways should be placed in relation to the full length of the right-of-way, whatever that length may be. Now, however, Egidi asserts that his original parcel is held by multiple owners. Assuming this is so, the record does not reveal the respective easement rights of those owners. We cannot determine whether defendant is entitled to both, one, or no easements. Consequently, we have no way of knowing whether the Township’s parcels are connected by an easement interest in the right-of-way.

We agree with defendant that, as a general rule, the failure of an easement description to specify details, such as the exact location or the width, does not render the easement excessively vague or unenforceable (Joseph Giddan & Sons v. Northbrook Trust & Savings Bank (1986), 151 Ill. App. 3d 537; Vallas v. Johnson (1979), 72 Ill. App. 3d 281). However, we are not concerned here with questions of the existence or enforceability of the easements. There is no dispute that easements were reserved in Commonwealth Edison’s deeds. What is of vital concern is where the easements are located.

It was established in Egidi I that the Township’s parcels were completely separate from one another and did not form an “area of land.” The entire thrust of defendant’s current position is that the purported easements link its separate segments together into one parcel which totals at least 50 acres in size and, thus, constitutes the requisite “area of land.” If there is no easement located in such a way as to connect the Township’s property, the Township merely has the two separate segments it did in Egidi I, and its argument is futile. The record leaves many factual questions surrounding this issue of location unanswered. It is plainly evident in the record, as well as in the parties’ appellate briefs, that the factual questions are disputed. Since summary judgment is proper only when there remain no genuine issues of fact (Logan v. Old Enterprise Farms, Ltd. (1990), 139 Ill. 2d 229, 233-34), we find that the trial court erred in granting plaintiff’s motion. This matter must be remanded for resolution of the relevant factual issues.

In the event the trial court determines the Township has easement rights across Commonwealth Edison’s property, we are confident the parties will again raise the questions of law pertaining to interpretation of the Act which have been raised in this appeal. Therefore, we will discuss those issues.

Libertyville contends that the trial court erred in finding that the various segments of its property, including the easements it claims, did not abut or adjoin each other and that the purported easements did not give Libertyville ownership or control over at least 50 acres. Egidi takes the position that the easements, even if they are as defendant claims, are not adequate to allow Libertyville’s separate north and south parcels, plus the easements themselves, to be combined into a single 50-acre parcel in order to fulfill the statutory requirements. However, plaintiff’s argument is couched entirely in terms of contiguity as that term is used in annexation law which, as plaintiff points out, we found not relevant to our discussion of section 2(b) of the Township Open Space Act. (Egidi, 181 Ill. App. 3d at 545.) Plaintiff assumes, incorrectly, that we must rely on contiguity in the annexation context in order to find contiguity here. While Egidi I imposes a contiguity requirement in order to identify “an area of land,” such contiguity is not necessarily the same as that required for annexation.

In Egidi I we focused on the complete separation of Libertyville’s parcels, noting that they did not “adjoin or abut each other.” We noted, too, the separate ownership of the intervening land and concluded that Libertyville’s tracts could not be combined in order to make them fall within the statutory definition of “an area of land.” In this case we must consider the additional factor of Libertyville’s possible interest in the property separating the two pieces of land it owns and whether that interest is sufficient to meet the contiguity requirement established by Egidi I.

We recognize that Libertyville’s interest in the Commonwealth Edison right-of-way, if any, is limited to easements. However, section 4.02 of the Act authorizes townships to secure open land as follows:

“To acquire by gift, legacy, purchase, condemnation, *** lease, agreement or otherwise the fee or any lesser right or interest in real property that is open land, *** and to hold the same *** for open space, scenic roadway, pathway, outdoor recreation, or other conservation benefits.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 139, par. 324.02.)

In our view, this language contemplates that townships may acquire both fee and less than fee interests in real property and that, when necessary, those interests may be combined in order to fulfill the purposes set forth in the statute. Thus, that Libertyville’s interest in part of the requisite area of land is in the form of easements is not fatal to the Township’s acquisition.

There remains the question of whether an easement interest is sufficient to show that the Township’s properties are contiguous. Li-bertyville has a fee interest in its own tracts of land and claims an easement interest in Commonwealth Edison’s land. Admittedly, its fee interests do not adjoin one another. On the other hand, we think its collective interests, if established, would adjoin and abut one another.

The effect of any easement held by Libertyville must be viewed in light of the fact that the Act seeks “ ‘to facilitate the transfer or acquisition of land for open space purposes’ ” (Town of Libertyville v. First National Bank (1990), 133 Ill. 2d 356, 362, quoting Town of Libertyville v. First National Bank (1988), 178 Ill. App. 3d 591, 595 (Dunn, J., dissenting)). Too, according to our supreme court “[o]ne readily apparent goal of the [Act] is to allow townships to preserve large tracts of land from encroaching development so that certain environmental concerns may be advanced.” (First National Bank, 133 Ill. 2d at 362.) We are confident that these purposes will best be served by giving liberal effect to defendant’s easement interests.

The easements asserted here are each 33 feet wide and short in length. The Township posits that they both, or at least one of them, run directly from one of the Township’s parcels to the other. The only property they supposedly cross is right-of-way. There are no roads and no residential or commercial development between the parcels they are claimed to connect. It appears they consist of open land, connecting two other parcels of open land. The purported easement interests were acquired simultaneously with the fee interests. In our view, even one such easement would provide a viable connection between two parcels lying relatively close together and separated only by land which, except for its use as a right-of-way, is indistinguishable from the parcels themselves. Keeping in mind the clear statement of section 4.02 that a township may acquire any interest in open land, and the statute’s goal of preservation of large tracts of land, we are persuaded that the easements, if found to exist, sufficiently establish that the 50 acres in which Libertyville has an overall interest are contiguous for purposes of the Act.

While we have concluded that defendant’s land is contiguous for purposes of acquisition under the Act, we note that the trial court also specifically found that the easements did not provide “ownership or control” over the necessary 50 acres. This language appears to be taken from Town of Libertyville v. First National Bank (1990), 133 Ill. 2d 356, where our supreme court made clear that, under the proper circumstances, the Act allows townships to acquire parcels of less than 50 acres.

In First National Bank, the court incidentally reiterated the rule of Egidi I that the 50 acres must consist of contiguous land, even if it is not all under the same ownership. The court went further, though, and delineated in greater detail the conditions under which smaller parcels can become open land as defined in section 2(b). In addition to being contiguous, such parcels must be part of a 50-acre area which is being preserved or restricted in terms of development or use. Also, the township’s acquisitions must proceed in a manner consistent with the 50-acre requirement. In First National Bank, even though the township had tendered offers of purchase on well over 50 acres of adjoining property, it lacked the power to condemn a 2.985-acre parcel because it did not “control and [would] not contemporaneously acquire ownership or control over land adjoining the subject property that, together with the subject property, comprisefd] an area of land of 50 acres or more” (First National Bank, 133 Ill. 2d at 363).

It is clear from First National Bank that acquisition of open land pursuant to the Act must result in ownership or control of at least 50 contiguous acres which are being preserved or restricted in order to fulfill the purposes of the statute. (See also Town of Libertyville v. Blecka (1989), 180 Ill. App. 3d 677, 682.) We have already decided that, if the Township acquired the easement interest we have been discussing, the land it purchased meets the acreage and contiguity requirements. However, since Libertyville holds no more than an easement interest in part of the total land acquired, there remains a question of whether such an interest gives Libertyville the necessary control.

The easements relied upon by Libertyville were originally reserved by Egidi for the benefit of the rest of his land. One terminus of each easement was on land owned by him. The land retained by Egidi, along with the land he conveyed to Commonwealth Edison, originally formed one parcel. Under these circumstances, easements appurtenant were formed. (See Taylor v. Lanahan (1979), 73 Ill. App. 3d 829, 832; Aebischer v. Zobrist (1977), 56 Ill. App. 3d 151, 154-55.) Once created, easements appurtenant run with the land and pass by conveyance. (Harris Trust & Savings Bank v. Chicago Title & Trust Co. (1980), 84 Ill. App. 3d 280, 287; Aebischer, 56 Ill. App. 3d at 155.) Accordingly, the easement interest now claimed by Libertyville is permanent in nature. It would give the Township the right to put in at least one 33-foot-wide roadway in order to facilitate movement from one segment of its property to the other across Commonwealth Edison’s right-of-way. The only restriction on any such roadway would be that it must be located so that it would not interfere with Commonwealth Edison’s equipment or use of the property. These facts lead us to believe that the asserted easements would give the Township the level of control envisioned by the Act as necessary to qualify a less than fee interest as open land. Moreover, since the easement would provide access between the two parcels owned by the Township, we perceive control over these easements as achieving the same purpose as ownership of the fee interest in the parcels connected by the easements, i.e., preservation or restricted development or use. We conclude that Libertyville’s claimed easement interest, combined with its fee interests, would be adequate to establish that the Township contemporaneously acquired ownership or control over an area of 50 acres or more and, thus, met the statutory requirements.

For the reasons set forth above, the order of the circuit court of Lake County granting summary judgment in favor of plaintiff is reversed, and this matter is remanded for further proceedings.

Reversed and remanded.

DUNN and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    DAVID BROWN, Special Adm’r of the Estate of Rochelle Brown, Plaintiff-Appellant, v. THE CHICAGO PARK DISTRICT et al., Defendants-Appellees.
    First District (1st Division)
    No. 1-89-2162
    Opinion filed June 24, 1991.
    Rehearing denied September 24, 1991.

      William J. Harte, Ltd., of Chicago (William J. Harte, David J. Walker, and Joan Mannix, of counsel), for appellant.
    James D. Wascher, of Chicago, for appellees.
    Ancel, Glink, Diamond & Cope, P.C., of Chicago (Stewart H. Diamond and Thomas G. DiCianni, of counsel), for amici curiae.

   JUSTICE CAMPBELL

delivered the opinion of the court:

Plaintiff David Brown, the special administrator of the estate of decedent Rochelle Brown, appeals an order of the circuit court of Cook County dismissing his second amended complaint. The complaint asserted claims against defendants Chicago Park District (Park District) and district employees Roosevelt Harris, Cory Swayzer and Charles Christiel, relating to the drowning of decedent in the Madden Park Swimming Pool.

The facts alleged in the second amended complaint áre as follows. In 1988, decedent was 22 years old, but had the equivalent of a third-grade education due to a mental handicap. On August 1, 1988, decedent went to the Madden Park swimming pool with some of her neighbors. The pool, which is located in the City of Chicago, was operated by the Park District. At this time, at least three Park District employees were working at Madden Park; defendants Harris and Swayzer were employed as lifeguards, while defendant Christiel was employed as the Madden Park supervisor. Decedent wore a T-shirt and shorts to the pool; she had never been in a swimming pool or in the water at a beach in her life.

Decedent entered, fell or was pushed into the deep water of the pool, where she sank, remained underwater, breathed water and died of drowning. The defendants did not observe this incident; the lifeguards were allegedly socializing with some girls at this time.

On March 10, 1989, plaintiff filed a complaint against the Park District, Harris and Swayzer. The Park District later filed a motion to dismiss pursuant to section 2 — 619 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619). By the time a hearing was held on the motion, plaintiff had filed a second amended complaint which included Christiel as a defendant. Counts I and II of the complaint alleged wrongful death and survival actions based on defendant’s allegedly negligent failure to supervise the pool; counts III and IV alleged wrongful death and survival actions based on defendant’s allegedly willful and wanton misconduct. The trial court granted the Park District’s motion to dismiss the entire complaint with prejudice and without leave to amend, holding that the Park District was immune from liability pursuant to section 3 — 108(b) of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act or Act) (Ill. Rev. Stat. 1989, ch. 85, pars. 1— 101 through 9 — 107). The trial court also found that there was no just reason to delay enforcement or appeal of the order, pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

Initially, we note that the purpose of a section 2 — 619 motion is to provide a mechanism to dispose of issues of law or easily proved issues of fact, (Chicago Steel Rule Die & Fabricators Co. v. Malan Construction Co. (1990), 200 Ill. App. 3d 701, 558 N.E.2d 341; Consumer Electric Co. v. Cobelcomex, Inc. (1986), 149 Ill. App. 3d 699, 501 N.E.2d 156.) A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. (See Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 565 N.E.2d 654.) In the instant case, therefore, we assume that the well-pleaded facts of plaintiff’s amended complaint are true. A reviewing court may affirm the dismissal of a complaint pursuant to section 2 — 619 on any grounds which are supported by the record, regardless of whether the trial court relied on those grounds or whether the trial court’s reasoning was correct. See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 286, 527 N.E.2d 303, 305.

In this case, the Park District moved to dismiss plaintiff’s second amended complaint under section 2 — 619(a)(9) of the Code of Civil Procedure, which provides that a defendant may move to dismiss an action on the ground that a claim asserted is barred by other affirmative matter avoiding the legal effect of or defeating the claim. (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 619(a)(9).) “Affirmative matter” includes something in the nature of a defense that completely negates the alleged cause of action.

Before we reach the question of whether the Park District is immune from suit, however, we must first determine whether defendant owed a duty to plaintiff or decedent. “It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff.” (Boyd v. Racine Currency Exchange, Inc. (1973), 56 Ill. 2d 95, 97, 306 N.E.2d 39, 40; see Lance v. Senior (1967), 36 Ill. 2d 516, 224 N.E.2d 231.) The absence of a legal duty to a plaintiff is affirmative matter which can be asserted by a section 2 — 619 motion. Young v. Chicago Housing Authority (1987), 162 Ill. App. 3d 53, 54, 515 N.E.2d 779, 781; Holubek v. City of Chicago (1986), 146 Ill. App. 3d 815, 817, 497 N.E.2d 348, 350.

Although the Illinois Supreme Court abolished the doctrine of sovereign immunity in 1959 (Burdinie, 139 Ill. 2d at 506, 565 N.E.2d at 658), our courts have generally upheld the common law rule that a governmental body exercising its governmental authority for a governmental purpose is generally not liable to a private plaintiff for the allegedly negligent exercise of said authority. (Fryman v. JMK/Skewer, Inc. (1985), 137 Ill. App. 3d 611, 614, 484 N.E.2d 909, 911; Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 369 N.E.2d 917; see Burdinie, 139 Ill. 2d at 507-08, 565 N.E.2d at 658.) In such cases, our courts have distinguished those functions which are governmental in character from those which are not. (Fryman, 137 Ill. App. 3d at 614-15, 484 N.E.2d at 911.) For example, in Gebhardt v. Village of La Grange Park (1933), 354 Ill. 234, 188 N.E. 372, our supreme court held that a municipality was not liable for a tort arising out of its operation of a swimming pool, reasoning that the operation of a pool was a governmental function. (Gebhardt, 354 Ill. at 239-40, 188 N.E.2d at 374-75.) Indeed, the scope of protection afforded by Gebhardt extended to an agent of a municipality who became involved in an automobile accident while transporting children to a municipal pool. Gebhardt, 354 Ill. at 235-36, 188 N.E.2d at 373.

Gebhardt controls our decision in this case. When a municipality acts for the benefit of the general public, it owes no duty to a particular member of the public, unless plaintiff can show that defendant owed a “special duty” to a particular individual. (See Burdinie, 139 Ill. 2d at 508, 565 N.E.2d at 658.) In rejecting the argument that a municipality owed a “special duty” to a student in a swimming class offered by a municipality, the Burdinie court stated:

“Recognizing such a duty owed by municipal employees to individuals based solely on the employees’ knowledge, background, or training, in the absence of special circumstances, would, for example, place every trained recreational supervisor in the position of guaranteeing the personal safety of every person participating. This *** would run against the grain of the common law ***.” (Burdinie, 139 Ill. 2d at 522, 565 N.E.2d at 665.)

Here, plaintiff did not allege that the Park District owed a “special duty” to decedent. Plaintiff did emphasize that the decedent in this case was mentally handicapped and arrived at the pool in street clothes. Plaintiff failed, however, to demonstrate that defendants had notice of decedent’s mental capacity or that the wearing of street clothes at the pool should have put defendants on notice of that capacity. Under Burdinie, the presence, knowledge and training of a swimming instructor are insufficient to impose upon a “special duty” flowing from a municipal swimming instructor to an individual taking swimming lessons; the same factors cannot create a duty flowing from defendant to plaintiff or decedent in this case.

The cases involving the duties of a pool operator cited in plaintiff’s reply brief are distinguishable on the ground that they all concern private operators of pools, rather than municipalities. (E.g., Brumm v. Goodall (1958), 16 Ill. App. 2d 212, 147 N.E.2d 699.) The Park District notes in its brief that “[a]t common law, if a party who has no duty to perform a particular task nevertheless undertakes that task, he or she generally must perform it adequately.” (Citing Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 317, 412 N.E.2d 472, 474.) This rule has been applied to hold municipalities liable as well. (See, e.g., Greene v. City of Chicago (1976), 48 Ill. App. 3d 502, 509, 363 N.E.2d 378, 384, aff'd (1978), 73 Ill. 2d 100, 382 N.E.2d 1205.) The Greene line of cases, however, involves the negligent lighting of public streets, which is a claim that was recognized as an exception to the public duty rule long before the decision in Gebhardt. (See City of Chicago v. Powers (1866), 42 Ill. 169.) Consequently,

“in the absence of a statute imposing such liability a city or village maintaining a swimming pool is not pecuniarily liable for the negligence of its officers or servants in the discharge of their duties relating to that particular function.” (Gebhardt, 354 Ill. at 239, 188 N.E.2d at 374.)

This conclusion raises the question of whether the duty plaintiff alleges has been imposed by statute.

Section 3 — 108 of the Tort Immunity Act (Ill. Rev. Stat. 1989, ch. 85, par. 3 — 108) provides:

“(a) Except as otherwise provided by this Act and subject to subdivision (b) neither a local public entity nor a public employee is liable for an injury caused by a failure to supervise an activity on or the use of any public property.
(b) Where a local public entity or public employee designates a part of public property to be used for purposes of swimming and establishes and designates by notice posted upon the premises the hours of such use, the entity or public employee is liable only for an injury proximately caused by its failure to provide supervision during the said horn's posted.”

The Act also states:

“The purpose of this Act is to protect local public entities and public employees from liability arising from the operation of government. It grants only immunities and defenses.” (Emphasis added.) (Ill. Rev. Stat. 1989, ch. 85, par. 1 — 101.1(a).)

Plaintiff argues that section 3 — 108(b) of the Act imposes a duty to provide supervision or perhaps adequate supervision of swimming pools during the hours it is open to the public. Given the expressly stated purpose of the Act, however, we believe that the Act should be construed in terms of granting immunities and defenses instead of imposing duties, unless the plain language of a particular provision imposes a duty (e.g., Ill. Rev. Stat. 1989, ch. 85, par. 3 — 102). Under this approach, section 3 — 108(b) of the Act merely establishes a condition defendants would be required to meet in order to successfully assert the Tort Immunity Act as an affirmative defense; it does not address the threshold question of whether a defendant has the duty necessary for a plaintiff to state a cause of action. Cf. Fryman, 137 Ill. App. 3d at 619, 484 N.E.2d at 913 (contrasting defense of immunity with element of duty).

Plaintiff cites Cope v. Doe (1984), 102 Ill. 2d 278, 464 N.E.2d 1023, in which our supreme court stated that “[o]ur *** legislature [has] traditionally regarded public swimming pools differently from other bodies of water.” (Cope, 102 Ill. 2d at 288, 464 N.E.2d at 1028.) The Cope court cited the Swimming Pool and Bathing Beach Act (Ill. Rev. Stat. 1987, ch. HV-k, pars. 1201 through 1227) to support this statement. However, in this case, plaintiff did not rely on this legislation and there is nothing in the plain language of the legislation which imposes civil liability on the Park District under the circumstances presented.

In sum, the circuit court did not err in dismissing plaintiff's complaint, for plaintiff was unable in this case to establish that the Park District owed a duty to any particular individual, as opposed to the general public. This rationale applies to all of the dismissed counts, as plaintiff is required to establish the element of duty to maintain a cause of action alleging either simple or willful and wanton negligence. See Young, 162 Ill. App. 3d 53, 515 N.E.2d 779.

For all of the aforementioned reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

      The Cope court also referred to the “private operator” cases which we have already distinguished in this opinion, stating that our law places “a duty upon private operators of public swimming pools *** to take precautions for the safety of their patrons.” (Emphasis added.) Cope, 102 Ill. 2d at 288, 464 N.E.2d at 1028.


author: JUSTICE DiVITO JUSTICE COCCIA,

text:
    EILEEN PRYWELLER, Petitioner-Appellant, v. DALE PRYWELLER, Respondent-Appellee.
    First District (2nd Division)
    No. 1-89-2154
    Opinion filed July 30, 1991.
    Modified on denial of rehearing September 30, 1991, nunc pro tunc July 30, 1991.

      Charles R Fox, of Chicago, for appellant.
    Pauker & Rubin, Ltd., of Chicago (Ira E. Rubin, of counsel), for appel-lee.
   JUSTICE DiVITO

delivered the opinion of the court:

Petitioner Eileen Pryweller appeals from the circuit court’s order finding her in direct civil contempt for failure to produce her 14V2-year-old daughter and 17-year-old son for therapy and visitation with their father, respondent Dale Pryweller, pursuant to an earlier court order. Petitioner was sentenced to imprisonment until such time as the two children, both inpatients in a psychiatric hospital, were released from the hospital and delivered to their father for therapy and two weeks of visitation.

On appeal, petitioner contends that the circuit court’s finding of contempt is against the manifest weight of the evidence; that the order contains insufficient findings; and that the judge should have sua sponte recused herself from the proceedings due to her prejudice against petitioner.

The post-divorce litigation in this case has been complex. Respondent, an attorney, has filed numerous motions regarding visitation, therapy, and related issues. In January 1989, the circuit court noted that the computer printout of the case history indicated there were 217 court entries.

Petitioner and respondent were married in 1971, separated in 1977, and divorced in 1978 in California. Petitioner was given custody of the two children: Arielle, born October 3, 1974, and Nathan, bom June 13, 1972. Petitioner later moved to Illinois with the children. Throughout the proceedings, respondent has remained in California, where he practices law. Respondent’s visits with the children between 1977 and 1989 took place in South Bend, Indiana, at the home of his parents.

In 1981, the parties began litigating visitation issues in Illinois. On March 29, 1985, respondent filed his first contempt petition concerning visitation.

On December 28, 1987, the parties entered into an agreed order, which states, among other things, that the “parents agree to engage in regular therapy with a competent therapist of each person’s choice. [Respondent] agrees to choose a therapist in California. *** The parties will agree upon a competent therapist for the children. Such therapist shall be a specialist at repair of parent-children relationships, and especially in adverse and hostile relationships between children and one parent. The purpose of therapy is the improvement of the children’s relationship with their father. *** The children will see the same therapist, though not necessarily together.” The order additionally states that “Both parents agree to participate in conjoint therapy sessions with the children, as requested by the children’s therapist ***. The parties anticipate that in 1988 [respondent] will participate in conjoint therapy with the children, subject to the recommendations of the children’s therapist, preceding or following each visitation.” The order also provides that the parties agree that respondent shall have two weeks of visitation near the end of August each year.

On April 27, 1988, respondent filed a contempt petition regarding visitation and therapy; on May 31, 1988, he filed another contempt petition regarding visitation; on June 18, 1988, he filed a petition for a mental examination of petitioner; and on July 18, 1988, he filed a motion to modify the December 28, 1987, agreed order and revive certain withdrawn petitions.

On June 20, 1988, the court entered an order stating that Dr. August Crivolio, a psychologist agreed upon by the parties, would examine the children and petitioner in July 1988. One or both of the children ultimately saw Dr. Crivolio several times each month in February, March, April, May, and June 1989. After that time, the children refused to attend therapy.

On July 27, 1988, evidentiary hearings began on some of these petitions. These hearings were still in progress when the August 1989 contempt order was entered. Many of the petitions and motions remain pending in the circuit court.

On August 1, 1989, respondent filed an “Emergency Petition for Rule to Show Cause for Failure to Attend Previously Ordered Therapy and For Other Relief.” On the same day, Dr. Crivolio wrote to the court that petitioner had a meeting with him on July 28, and the children had one scheduled for August 9,1989.

On August 2 and 3, 1989, the court heard testimony from both sides regarding the petition relating to the failure to bring the children to therapy.

On August 4, 1989, the court found that petitioner generally failed to “demonstrate her commitment to the agreed order of 12/28/ 87.” Specifically, the court stated that petitioner “has not produced Arielle since 6/15/89 for weekly summer therapy visits with Dr. Crivo-lio and has not produced Nathan since 6/2/89 [sic] for weekly summer visits without cause or justification.” Petitioner was therefore found in contempt of the December 28,1987, order regarding therapy.

The court also referred to a June 25, 1989, order which directed petitioner to bring Arielle to therapy, and found that “there was no cause or justification on [petitioner’s] part for failing to bring or deliver Arielle to therapy.” Petitioner was also ordered to pay all costs for the August 2 and August 3,1989, hearing.

The court stated that petitioner could purge herself of the contempt by taking the children for “intensive therapy as directed by Dr. Crivolio” and by complying with the agreed order of December 28, 1987, which provided for two weeks’ visitation in August. The visitation was to run from August 10 to August 24, 1989. The court found “the above-mentioned terms are within the ability of [petitioner].” The court stated that if petitioner did not purge herself “of contempt in this fashion, she will be committed to the Cook County House of Corrections on August 25, 1989, and remain there until” respondent had two weeks’ visitation, and the children “receive intensive therapy with Dr. Crivolio.” The court concluded, “There will be a recall on this case at 9:00 a.m. on August 25, 1989, all parties to be present to determine whether or not the contempt order has been purged.”

On August 10, 1989, petitioner filed an emergency petition for a stay of execution of the August 4, 1989, order, which was to go into effect August 25,1989.

Petitioner testified on August 10, 1989, that, following the court proceeding on Friday, August 4, she informed the children of the substance of the court order. They were extremely upset about the continued forced therapy and visitation, and about the possibility of their mother being imprisoned. During the weekend, petitioner continued to encourage the children to comply with the order, but they reacted with increased rage and depression. They were very hostile and deeply confused.

Petitioner further testified that on Sunday, August 6, she telephoned Dr. Crivolio. She asked for his advice on how to get the children to see him. She testified:

“I told him that I didn’t think I would be able to do it without using force, and he said, ‘Do not use force. Do not call the police. Do not threaten any harm to them.’ He said he believed— it was his assessment, based on his limited knowledge of the therapy, that I had it within my power to persuade them to come, and that I was to use my powers of persuasion only.”

Dr. Crivolio also told petitioner that he would be going out of town the following week and could not see the children after August 16.

Petitioner suggested to Dr. Crivolio that perhaps Dr. Jan Ostrand, a psychologist who had previously treated Arielle intermittently in 1986 through 1988, could meet with the children Monday, August 7, and Tuesday, August 8, to help prepare them to see Dr. Crivolio on August 9 with their father, and prepare them to begin the two-week visitation with their father on August 10. Dr. Crivolio did not object to this plan.

Petitioner told Dr. Crivolio “that this was not going to be easy, that this is my last, final effort. If I can’t succeed here, I will be glad to go to jail. I will give up custody, whatever. I don’t know what else to do.”

Petitioner testified concerning some of the children’s behavior that weekend. Arielle, crying, had thrown herself at her mother and threatened suicide if her mother was taken to jail. Nathan at one point was pounding on the kitchen counter “and I reached forward to calm him down, and I put my hand on his back, and he turned around and started pounding on me, several blows, and one to the center of the gut, which kind of knocked my wind out, and I was pretty stunned, and he backed off,” apologizing.

Petitioner further testified that on Sunday, August 6, she also telephoned Dr. Ostrand, who told her that the children’s “coping resources were extremely low, this is a dangerous situation.” Dr. Os-trand gave petitioner the name of a psychiatrist; she felt a team evaluation in a hospital setting would be best.

On the same day, petitioner spoke with the staff at Good Samaritan Hospital in Downers Grove. Dr. Vinolus, a psychiatrist at Good Samaritan, conducted a telephone interview with petitioner regarding the behavior the children were exhibiting. Dr. Vinolus recommended that the children be taken to the hospital for further interviews.

Petitioner brought the children to the hospital on Sunday night, August 6. The children went willingly. After extensive interviews, the staff recommended admission; however, because it was 11:30 p.m. by that time, petitioner wished to return home with the children and discuss the hospitalization with Dr. Yinolus when she could be reached in the morning.

On Monday morning, August 7, Dr. Yinolus, after speaking with the staff at the hospital, concurred with the staff’s recommendation that the children be hospitalized. Dr. Vinolus believed the children should definitely be brought in right away, and said that two beds were now ready for them in the hospital.

When petitioner was asked to testify as to what preliminary diagnosis Dr. Vinolus gave, the court sustained a hearsay objection. The court stated, “If Dr. Vinolus was here to testify, that might be reasonable today, but she is not here.” The court stated further, “This is essential. If there is a diagnosis, there should be a professional here to testify as to diagnosis and treatment. That is very, very important in this motion.”

Petitioner testified further that Dr. Vinolus said the entire hospitalization might last as long as two or three weeks, “but that if her assessment on seeing them herself the next morning was such that they could be released to go to Dr. Crivolio, that she would do so.”

Petitioner testified that Dr. Vinolus was told before admission of the children to the hospital that there was a court order, and that the children should be released to see Dr. Crivolio on Thursday. Dr. Vino-lus responded, “Absolutely not. The children must” remain hospitalized. Petitioner stated that on the very day of her testimony, August 10, she had asked Dr. Vinolus to release the children for visitation that day. The court sustained a hearsay objection regarding the doctor’s response.

Additionally, petitioner testified that on Monday, she informed respondent by telephone of the children’s condition and hospitalization. On Tuesday morning, petitioner telephoned Dr. Crivolio and informed him of. the hospitalization of the children and gave him Dr. Vinolus’ name. Petitioner testified that Dr. Crivolio was reluctant to talk with Dr. Vinolus. Petitioner tried to tell Dr. Crivolio what the children had been doing but he insisted, “Don’t tell me. I don’t want to know.” He was surprised, however, that “something would have happened that would have warranted hospitalization.”

Following this testimony, petitioner’s attorney asked the court to continue the proceeding for the purpose of having the hospital staff make a diagnosis or complete an evaluation. The attorney stated that they were waiting for the children to sign a release so that Dr. Vino-lus could disclose information on their condition to the court. Dr. Vinolus had stated she hoped they would sign a release within the next few days. The court responded that in other emergency motions, the “primary physician has always been in court to make known to the court what the condition of the children is. There is no primary physician or professional here in court today.” The court declined to continue the proceeding, saying, “The children have been in there three days, three full days. There was an evaluation Sunday night, August 6th. This is presented as an emergency.”

On August 10, after hearing her testimony, the court found petitioner in “direct civil contempt of the order of Friday [August 4].” The court based its finding on several facts: the children would not be visiting with their father for the two-week period in August; the children missed the August 9 therapy appointment with Dr. Crivolio; “both children testified [previously] that they didn’t want any additional therapy and they also testified that they didn’t want visitation”; and in April 1988 there was a visitation scheduled which did not occur, and the children called the Department of Children and Family Services (DCFS) and reported alleged misconduct by their father.

The court concluded there was “insufficient evidence presented today to stay the execution of judgment entered on Friday [August 4, 1989].” The court continued:

“[Petitioner] may purge herself of contempt by delivering the children to their father for two weeks’ visitation as stated in the order, and the children will remain with their father for two weeks.
The Court finds that there was a therapy session with Dr. Crivolio August 9th. He was in place as the therapist to deal with the children. She testified that she called Dr. Ostrand to prepare the children for therapy and asked her to do it on the 7th and 8th. That didn’t take place.
The only other manner in which she can purge herself of contempt is to obtain a report from Dr. Crivolio, and it is only Dr. Crivolio that this Court will rely upon for a finding that the children should be hospitalized.”

Petitioner’s counsel argued that the August 10 ruling was premature, since the court had previously ruled that petitioner had until August 25 to purge any contempt:

“PETITIONER’S COUNSEL: [The court is] taking advantage of our good faith in coming here. If we simply had not come, there was no requirement that the visitation start in court. The requirement is that the visitation start today, and it was only to let the Court know, to inform the Court we are here, and you said you would wait until August 25th to determine if she had purged the contempt. You are now modifying that. There is no direct contempt by filing the motion.
THE COURT: The children are not here today. They are not here for visitation.
PETITIONER’S COUNSEL: They were not required to be.
THE COURT: They were not turned over for visitation, and I find her in contempt of the order now, so she is going to be taken to the Cook County House of Corrections. She may make a phone call beforehand.”

On August 10, 1989, Dr. Crivolio wrote a letter to the court, stating:

“This is to inform you that I have no knowledge of the current psychological status of Nathan and Arielle Pryweller. I have not seen them since some time in June. Therefore I am in no position to evaluate whether or not they are in need of inpatient psychiatric hospitalization.”

On August 11, 1989, petitioner wrote a letter to Good Samaritan Hospital, stating that she was in custody pursuant to court order, and could purge herself of contempt only by having the children released to their father. She wrote, “I hereby instruct you to deliver Nathan Pryweller and Arielle Pryweller to Dale Pryweller for two weeks of continuous visitation.”

According to a petition for stay filed in this court on August 11, 1989, the circuit court found petitioner’s August 11 letter insufficient to purge her of contempt, and the court refused to release her from jail. This court entered a stay on August 11, until August 15, 1989, and ordered respondent to file a response to the petition for stay. On August 14, 1989, respondent filed a response, in which he stated that as of August 11, the children had still refused to sign releases. In addition, the hospital apparently resisted releasing the children based only on the letter which petitioner wrote from jail. On August 15, 1989, this court vacated the August 11 stay.

The record contains numerous other disputed facts revealed in the two years of hearings held on respondent’s various petitions. The only matter at issue here is the contempt finding. However, for a more complete picture, we summarize some of the background which led to the August 2 and 3, 1989, hearing and, ultimately, to the contempt finding.

The parties agree that there is a tremendous amount of hostility between the children and their father. There was testimony tending to show both sides of relevant factual questions. Visits and therapy, particularly in the first six months of 1989, were viewed as highly unsuccessful by the children. They reported various incidents regarding the June 1989 visitation, some of which were minor, and some of which were admitted by respondent, though characterized differently. Arielle refused to go to any therapy or visit with her father after the June 1989 visit; Nathan went on one more visit, and then refused to continue with therapy or visits.

The record also shows that both children were extremely bright and did well in the various schools they attended, although there were occasional problems in school. In addition, Nathan apparently exhibited sleep disturbances, seizures, and growth problems throughout his teenage years.

Petitioner challenges the August 4 and August 10, 1989, contempt orders. Whether a party is guilty of contempt is a question of fact for the circuit court, and its decision will not be disturbed on appeal unless it is 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, 286-87, 469 N.E.2d 167; Janov v. Janov (1965), 60 Ill. App. 2d 11, 207 N.E.2d 691.

It was necessary here to show that petitioner’s alleged contemptuous conduct was willful. See Ill. Rev. Stat. 1989, ch. 40, par. 607.1(a) (Illinois Marriage and Dissolution of Marriage Act provides that the court may use its contempt powers as a remedy for visitation abuse where “a party has willfully and without justification” denied another party visitation (emphasis added)); see also In re Marriage of Logston, 103 Ill. 2d at 285; Wick v. Wick (1960), 19 Ill. 2d 457, 167 N.E.2d 207; Lauff v. Lauff (1968), 99 Ill. App. 2d 139, 241 N.E.2d 205.

Respondent’s reliance on County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 137, 319 N.E.2d 472, for the proposition that intent is not relevant in a civil contempt proceeding is misplaced. That case does not involve the Illinois Marriage and Dissolution of Marriage Act, but rather a violation of a pollution-abatement order.

The court here stated that petitioner was in “direct civil contempt.” Civil contempt is coercive in nature rather than punitive. (In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167.) The finding of contempt results from failure to do something which the court has ordered for the benefit or advantage of another party to the proceeding, and the court acts to compel the contemnor to obey the order for the benefit of that other party. (See, e.g., Blankenship v. Blankenship (1978), 63 Ill. App. 3d 803, 380 N.E.2d 1165 (contempt proceeding against father for failing to return 16-year-old child to mother after visitation is civil in nature).) Criminal contempt is an act committed against the majesty of the law in disrespect of the court or its process, and the court acts to preserve its dignity by punishing the wrongdoer. See Blankenship v. Blankenship, 63 Ill. App. 3d 803, 380 N.E.2d 1165.

The parties on appeal dispute whether the alleged contempt was “indirect” or “direct” civil contempt. The distinction is significant because the procedures which must be followed vary according to the type of contempt involved. In re Marriage of Betts (1990), 200 Ill. App. 3d 26, 558 N.E.2d 404.

Direct contempt takes place in the presence of the court, and thus the elements of the offense are within the judge’s personal knowledge, such as where a party makes outbursts during court proceedings, or refuses to comply with a court order by executing a deed in open court. (In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404.) In a direct contempt case, the court must act on facts which it personally knows, rather than on beliefs or conclusions the court reached after hearing the evidence. (People ex rel. Kunce v. Hogan (1977), 67 Ill. 2d 55, 364 N.E.2d 50.) The court may summarily punish a contemnor, and the direct contempt proceeding is summary in nature. Kenwick v. Kenwick (1963), 41 Ill. App. 2d 108, 190 N.E.2d 486; Provenzale v. Provenzale (1950), 339 Ill. App. 345, 90 N.E.2d 115.

In contrast, indirect contempt is not committed in the actual presence of the court. (In re Estate of Shlensky (1977), 49 Ill. App. 3d 885, 892, 364 N.E.2d 430.) The judge does not have full personal knowledge of the elements, and proof of facts of which the court cannot take judicial notice must be presented in order for the court to make a finding of contempt. In re Marriage of Betts, 200 Ill. App. 3d at 48, 558 N.E.2d at 416 (failure to comply with child support and maintenance orders is the “most common type of misconduct included in the indirect contempt category”), citing In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167.

In the case of an indirect contempt, the offender is entitled to the requirements of due process of law. (In re Estate of St. George (1981), 99 Ill. App. 3d 388, 390, 426 N.E.2d 6.) Due process mandates that certain procedural safeguards be afforded to a person charged with indirect contempt, including an evidentiary hearing with adequate notice of the time and place of such hearing. (In re Estate of Shlensky, 49 Ill. App. 3d at 892.) The basic components required to meet the due process requirements are notice and opportunity to be heard. (In re Marriage of Betts, 200 Ill. App. 3d 26, 558 N.E.2d 404.) The contemnor cannot be punished summarily. Kenwick v. Kenwick, 41 Ill. App. 2d 108, 190 N.E.2d 486.

The proper designation of the contempt charge here is indirect civil contempt. Where a parent is found in contempt for failure to turn a child over to the other parent for visitation or custody, the conduct occurs outside of the court’s presence and must be construed as indirect contempt. In re Marriage of Ruchala (1991), 208 Ill. App. 3d 971, 567 N.E.2d 725; In re J.L.D. (1989), 178 Ill. App. 3d 1025, 1030, 534 N.E.2d 190; Sanders v. Shephard (1989), 185 Ill. App. 3d 719, 541 N.E.2d 1150.

The circuit court’s erroneous labelling of the nature of the contemptuous conduct is not in itself a basis for vacating the sanction imposed (Sunset Travel, Inc. v. Lovecchio (1983), 113 Ill. App. 3d 669, 447 N.E.2d 891), but, because the conduct at issue here could only have constituted indirect contempt, petitioner was entitled to the requirements of due process of law, including a full and fair hearing. (In re Estate of St. George, 99 Ill. App. 3d 388, 426 N.E.2d 6.) It was improper for the circuit court here to use summary contempt powers where the court relied on presumptions without allowing sufficient supporting evidence. Summary contempt power should be exercised with utmost caution and strictly restricted to facts known by the court, and not rest upon opinions, conclusions, presumptions, or inferences. (People v. Loughran (1954), 2 Ill. 2d 258, 118 N.E.2d 310; People v. White (1956), 8 Ill. App. 2d 428, 131 N.E.2d 803.) The court should take care to avoid arbitrary or oppressive conclusions. (Bloom v. Illinois (1968), 391 U.S. 194, 20 L. Ed. 2d 522, 88 S. Ct. 1477.) A contempt order may be reversed for denial of due process where the party is summarily punished without obtaining and considering extrinsic evidence necessary to determine whether the party is- guilty of indirect contempt. People v. Jashunsky (1972), 51 Ill. 2d 220, 282 N.E.2d 1; Panvino v. Panvino (1978), 60 Ill. App. 3d 525, 377 N.E.2d 199.

Most significantly, indirect contempt may be proved only by extrinsic evidence, and thus the accused must be allowed to offer evidence in her own behalf. (People v. Stafford (1970), 118 Ill. App. 2d 453, 255 N.E.2d 17 (abstract of opinion); Allendorf v. Daily (1958), 17 Ill. App. 2d 493, 150 N.E.2d 665 (abstract of opinion).) Since the effect of contempt proceedings may deprive a person of liberty, every step provided by law should be substantially pursued. (Robinson v. People (1906), 129 Ill. App. 527, 531.) A court in an indirect civil contempt case cannot refuse to consider relevant evidence. (Boettscher v. Howard Engraving Co. (1945), 389 Ill. 75, 58 N.E.2d 866.) A contempt hearing must afford the contemnor a full opportunity for explanation for noncompliance in order not to deprive the contemnor of procedural due process of law prior to depriving the person of her liberty. (County of Cook v. Lloyd A. Fry Roofing Co. (1974), 59 Ill. 2d 131, 139, 319 N.E.2d 472.) No one should be imprisoned unless the evidence “clearly shows that the party charged has [it] within his power” to comply with the court order. (Lloyd A. Fry Roofing Co., 59 Ill. 2d at 136 (regarding power to pay money as required by court order).) In a hearing concerning visitation abuse, the court must hear “all the evidence” before it enters its order. Ill. Rev. Stat. 1989, ch. 40, par. 607.1(c).

In Cole v. Cole (1967), 85 Ill. App. 2d 105, 229 N.E.2d 293, the court held it was error for the trial court to refuse the defendant-father’s attorney's request to cross-examine the plaintiff-mother, and to refuse defendant’s request to present evidence in an attempt to purge defendant of the charge of contempt for failure to pay child support. “The defense to the contempt charge should, in our opinion, be thoroughly heard and considered.” (Cole v. Cole, 85 Ill. App. 2d at 113.) The mere fact that a party has not complied with the divorce decree or court order is not a sufficient basis for holding that person in indirect contempt of court. Cole v. Cole, 85 Ill. App. 2d at 113.

In Panvino v. Panvino, this court reversed a trial court order finding the plaintiff mother in contempt of court for not permitting her 41/2-year-old child to visit the defendant father pursuant to a divorce decree. The trial court heard the testimony of a psychiatrist who stated the child was moderately severely disturbed; had pronounced separation anxiety; and had a phobic reaction to the word “father.” The plaintiff testified she had not sent the child to the defendant because the child became hysterical when the father appeared at the door. When the plaintiff’s counsel asked to offer additional testimony as to the child’s emotional problems, the trial court stated, “You’ve had plenty of hearing.” The court then ordered the plaintiff to serve not more than six months in prison.

On appeal, the plaintiff in Panvino argued she was denied due process of law at the hearing on the alleged contempt. This court agreed, stating: “As is clear from the facts in this case the plaintiff was not afforded a fair and reasonable hearing by the trial judge. (Eden v. Eden (1976), 34 Ill. App. 3d 382[, 340 N.E.2d 141].) The trial judge was in error when he substituted his opinion in a medical situation for one of an expert whose qualifications the opposing attorney stipulated were excellent.” (Panvino v. Panvino, 60 Ill. App. 3d at 526.) The court reversed the judgment as to the contempt sentence and ordered the trial court to hold another hearing as to the visitation rights of the father. Panvino v. Panvino, 60 Ill. App. 3d at 526-27.

Similarly, in the present case, the circuit court erroneously refused to hear medical evidence regarding the condition of the hospitalized children before finding petitioner in contempt for not producing the children in court, and thereby denied petitioner a fair and reasonable hearing.

Dr. Vinolus informed petitioner that she could not divulge confidential information to the court without the children’s written release, which she hoped to obtain shortly. Section 5 of the Elinois Mental Health and Developmental Disabilities Confidentiality Act provides that, where a patient or “recipient” of mental health care is between the ages of 12 and 18 years, both the parent and the recipient must consent to any disclosure of confidential records and communications. (El. Rev. Stat. 1989, ch. 91V2, par. 805(a)(2).) Thus, both lN^-year-old Arielle and 17-year-old Nathan would have to sign a release pursuant to this statute. If only the parent consents, “there shall be no disclosure unless the therapist finds that such disclosure is in the best interests of such recipient.” (111. Rev. Stat. 1989, ch. 911/2, par. 805(a)(2).) Apparently, Dr. Vinolus did not find such disclosure would be in the best interests of Arielle and Nathan. Regardless, the court should have permitted petitioner an opportunity to present Dr. Vinolus for verification of her professional opinion.

In addition, the court must give the accused a reasonable opportunity to comply with a contempt order. (Robinson v. People (1906), 129 Ill. App. 527 (it is usually customary to give at least a few days’ time in which to comply where failure to do so subjects a person to drastic process depriving him of liberty); First National Bank & Trust Co. v. Desaro (1963), 43 Ill. App. 2d 153, 193 N.E.2d 113.) Though it is discretionary with the court to allow a continuance in a contempt proceeding (People v. Stollar (1964), 31 Ill. 2d 154, 201 N.E.2d 97; Jones v. Jones (1963), 40 Ill. App. 2d 217, 189 N.E.2d 33; Minnec v. Minnec (1957), 14 Ill. App. 2d 214, 144 N.E.2d 174 (abstract of opinion)), the court abused its discretion in denying the request for a brief continuance here, particularly where the August 4, 1989, order gave petitioner until August 25, 1989, to purge the contempt. Petitioner chose to come to court on August 10, two weeks early, simply to inform the court of the ongoing deterioration of the children’s emotional condition.

We conclude that the trial court abused its discretion in denying petitioner the opportunity to present evidence. Thus, under the princi-pies discussed above, the trial court denied petitioner her due process rights in regard to the contempt order of August 10,1989.

Moreover, in civil contempt proceedings, the contemnor must have the opportunity to purge the contempt, i.e., be provided with the “keys to his cell,” even after he has been imprisoned. (In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167.) The offender must also have the power to comply with the order. Contempt will not lie when the alleged contemnor, through no fault of his own, is in a position where he cannot comply with the order of the court. (In re Estate of Shlensky, 49 Ill. App. 3d 885, 364 N.E.2d 430.) The alleged contem-nor must be given the opportunity to present evidence to show his inability to comply and the reasons therefor. Shapiro v. Shapiro (1969), 113 Ill. App. 2d 374, 252 N.E.2d 93.

The court’s statement that petitioner could be released from jail if Dr. Crivolio provided an opinion that the hospitalization was necessary is puzzling. Dr. Crivolio adamantly refused throughout 1988 and 1989 to have any involvement with the litigation. In fact, Dr. Crivolio apparently informed petitioner that he did not want to speak to Good Samaritan Hospital about the children’s condition; that he did not want to know the diagnosis made by Good Samaritan staff; and that he did not want to know the events leading up to the hospitalization. In addition, Dr. Crivolio was leaving on vacation in several days, and could do little to treat the children during the two-week visit which had been set up with the father, or assist the court in any way.

Dr. Crivolio also wrote to the court on August 10, 1989, that he was completely unable to provide the court with the information it requested as a means of petitioner’s purging the contempt, because he had not seen the children in several months and knew nothing about their condition. The court therefore abused its discretion in including this alternative as a means for petitioner to purge the contempt. It was, in fact, no alternative at all.

We also emphasize that, even in contempt proceedings involving visitation abuse issues, the importance of the children’s best interests must not be lost, and the children should not be used as pawns. (In re Marriage of Fox (1989), 191 Ill. App. 3d 514, 548 N.E.2d 71, citing Simcox v. Simcox (1989), 131 Ill. 2d 491, 546 N.E.2d 609.) Evidence of newly arisen facts previously unknown to the court should be considered on the question of the child’s bests interests. (Boggs v. Boggs (1978), 65 Ill. App. 3d 965, 383 N.E.2d 9.) Here, the practical effect of jailing petitioner was to have the children released from the psychiatric hospital. The circuit court should have followed procedures which would have allowed it to ascertain whether or not that hospitalization was necessary for the safety of the children and for the safety of others.

Certainly in the tumultuous setting of this family, suicide threats by a nearly 15-year-old and a 17-year-old’s punching his mother cannot be taken lightly. This is particularly true in light of the extensive testimony offered by respondent’s expert that imprisonment of petitioner would severely increase the emotional problems from which the children already suffered. When Dr. Nahman Greenberg testified for respondent in July 1988, the court asked him how incarceration of the mother would relate to the best interests of the children. He responded:

“Not well, in my opinion. I think it would be a demonstration to them about how things have to be with consequence. I would certainly think it would be worthwhile for the children to know that it is an option. The threat of incarceration, seems to me in this particular instance, as opposed to the actual incarceration, would be a message strong enough to hold. But actual incarceration, which would mean the loss of the children of their mother at this particular time when they have such a very ingrained, close, intimate excessively so relationship, I think it would cause anguish, cause severe crisis, especially in Arielle.”

In late August 1988 (one year before jailing petitioner), the court referred back to that testimony:

“[Dr. Greenberg opined that] placing the mother in jail would be detrimental to the children, he said it would be very detrimental. *** [T]hey are so dependent and interdependent with her, that removal or jailing of [petitioner] would be seriously detrimental to the children. So the court discarded that notion at that time. *** [T]he court does not believe, given the facts that these children have actually run away when visitation has been set up on particular days, the court does not believe it can order these children to see their father when they don’t want to see their father. *** [T]he court is of the opinion that nothing would come by ordering visitation which will not be complied with again, which has not been complied with for almost six months, with 13 and 16 years olds who are behaving as they are.”

Against this background, it can hardly be said that it was in the children’s best interests for the court to incarcerate their mother while they were hospitalized; to refuse to determine the medical diagnosis which placed them in the hospital; and to refuse to discover why the treating psychiatrist had strongly recommended against their release for visitation.

Though we reverse the circuit court’s contempt finding because of due process violations, the history of this case reveals the possibility of petitioner’s substantial contumacious disregard of the circuit court’s order. In reaching its conclusion without an adequate hearing, the circuit court deprived petitioner and itself of an orderly and objective development of the events leading to the order of contempt. Because of the inadequacy of the hearing on August 10, 1989, and because of the seriousness of the charged conduct, we remand the cause for a proper hearing to allow the development of evidence both in support of and in opposition to an appropriate sanction.

Finally, petitioner contends that the circuit court was biased against her because of certain prejudgment statements made by the court. Our review of those statements and the record discloses no merit to that allegation.

Accordingly, the judgment of the circuit court is reversed and the cause is remanded to the circuit court for a hearing consistent with this opinion.

Reversed and remanded, with directions.

HARTMAN, J., concurs.

JUSTICE COCCIA,

concurring in part and dissenting in part:

I concur with the holdings and analysis of the majority on all issues except its decision to remand for a new hearing. I would reverse the finding of contempt without ordering another hearing to be conducted.

In deciding whether a new contempt hearing is necessary, the court should look to the purpose and character of the sanction imposed by asking “ ‘what does the court primarily seek to accomplish by imposing sentence?’ ” (People v. Doherty (1988), 165 Ill. App. 3d 630, 634, 518 N.E.2d 1303, quoting Shillitani v. United States (1966), 384 U.S. 364, 370, 16 L. Ed. 2d 622, 627, 86 S. Ct. 1531, 1535.) A sanction for civil contempt is prospective in nature and primarily intended to compel a contumacious party to comply with the court’s order for the benefit of another party. (People v. Doherty, 165 Ill. App. 3d 630, 518 N.E.2d 1303.) Thus, civil contempt is coercive in nature rather than punitive. In re Marriage of Logston, 103 Ill. 2d 266, 469 N.E.2d 167; Blankenship v. Blankenship (1978), 63 Ill. App. 3d 803, 380 N.E.2d 1165 (contempt proceeding against father for failing to return 16-year-old child to mother after visitation is civil in nature).

Here, the contempt hearing was held two years ago. At that time, the court wished to compel petitioner to produce the children for therapy and visitation with respondent. Nathan is now 19 years old and can no longer legally be forced to see his father. Arielle is nearly 17 years old. Notably, at oral arguments this court was informed that Arielle went on one additional visit with her father. During that visit, she ran away from South Bend and returned to Chicago. In practical terms, it is doubtful that Arielle can be forced to see her father.

In my opinion, at this late date the court’s attempts to compel petitioner to force the children to see their father has become moot. Holding another contempt hearing at this point in time would be meaningless. It does nothing more than impose further burdens on the already strained financial and emotional resources of the parties and their children, and on the resources of the trial court and any court hearing the case in subsequent appeals.

Moreover, the purpose of the hearing would be to permit petitioner to introduce medical evidence by psychiatrists regarding the children’s condition in August 1989. As the majority stated, the accused must be allowed to offer evidence in her own behalf. (People v. Stafford (1970), 118 Ill. App. 2d 453, 255 N.E.2d 17; Allendorf v. Daily (1958), 17 Ill. App. 2d 493, 150 N.E.2d 665.) If, however, petitioner has already shown through the evidence she presented that no willful contempt occurred, the additional hearing has little meaning.

Predicated on the following, I would find that the record does not reveal willful disobedience by petitioner of the court order requiring the children to go to therapy with Dr. Crivolio.

Notably, the trial judge failed to include in the order a finding of “willful” violation. See In re J.L.D. (1989), 178 Ill. App. 3d 1025, 1033, 534 N.E.2d 190 (indirect criminal contempt order reversed where order fails to find willful violation and record did not substantiate finding of willful violation); Janov v. Janov, 60 Ill. App. 2d 11, 15, 207 N.E.2d 691 (contempt order must in fact find that failure to comply with divorce decree was willful).

Furthermore, in support of my finding that any contempt here was not willful, I point to the erroneous bases of the trial court’s decision. For example, when it found petitioner in contempt, the court relied on certain alleged visitation abuse relating back to April 1988. This was error, where evidence regarding visitation abuse related to petitions other than the therapy-related petition which was at issue in the contempt charge. Moreover, as to the petitions relating to visitation abuse, petitioner had not yet had the opportunity to present any evidence in her defense. The only hearing which was completed at the time of the contempt charge was the hearing regarding the therapy-related petition.

The court also found a basis for contempt in that the children were supposed to be in “intensive therapy.” However, the children were inpatients in a psychiatric hospital setting, the most intensive therapeutic setting possible. Although this was not with Dr. Crivolio’s participation, the therapy was much more likely to be beneficial to the children where they voluntarily chose to be committed to the psychiatric hospital. (Interestingly, petitioner had invited respondent to participate in the hospital setting, but respondent refused.)

Finally, the court found petitioner in contempt based on the children’s prior testimony that they wanted to “get out of” visitation. This is not a sufficient basis to find petitioner in willful contempt.

Thus, the bases of the court’s finding of contempt reveal that the manifest weight of the evidence does not support a finding of willful contempt. In view of this evidence, I see no reason to remand the cause for a rehearing on the contempt petition in question in order to permit petitioner to supply even more evidence in her behalf.

For these reasons, I would reverse the finding of contempt and I would not remand for a new hearing.