text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. CONNIE DOWNEY, Petitioner-Appellant.
    Second District
    Nos. 2—88—1077, 2—88—1078 cons.
    Opinion filed June 15, 1990.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Connie Downey, appeals from an order of the circuit court dismissing his post-conviction petition in two separate cases. Pursuant to defendant’s motion, this court consolidated these cases for this appeal. Defendant raises the issue of whether the trial court abused its discretion in denying defendant an evidentiary hearing on the issues of the ineffective assistance of trial and appellate counsel.

Defendant was found guilty in a bench trial of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—2), two counts of robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18—1), and one count of misdemeanor theft (Ill. Rev. Stat. 1985, ch. 38, par. 16—1(a)(1)) resulting from occurrences in an armed robbery of a grocery store in Waukegan, Illinois, on January 19, 1985. In a separate jury trial, defendant was convicted of armed robbery at a pharmacy in North Chicago, Illinois, on January 4, 1985. The cases were consolidated for sentencing, and the trial court sentenced defendant to two consecutive 30-year terms of imprisonment for the armed robbery convictions. Defendant’s convictions and sentences were affirmed on appeal in People v. Downey (1987), 162 Ill. App. 3d 322. The facts relating to the underlying crimes were set forth in detail in the direct appeal, and we will discuss only those facts relevant to the issue in these consolidated appeals.

On May 19, 1988, defendant filed a pro se petition for post-conviction relief. Defendant alleged that his trial counsel was ineffective for failing to challenge defendant’s arrest on the basis of lack of probable cause. Defendant attached a copy of the transcript of the suppression hearing in 1985, when defendant was represented by the public defender.

At the suppression hearing, Officer Ryan Milot, of the Waukegan police department, testified that on January 22, 1985, he and Officer Hansen went to a home in North Chicago to look for defendant. The officers found defendant in a bedroom closet, crouched down, hiding beneath some clothes. Hansen told defendant to come out of the closet. The officers told defendant to get dressed, and they asked him to come down to the police station to answer some questions. Milot denied that they arrested defendant at the house. Defendant agreed to accompany the officers to the police station. At the police station, the officers read defendant the Miranda rights. According to Milot, defendant was free to leave the police station. Milot further testified to events which occurred at the police station, including defendant’s confession. Defendant was arrested after he confessed to one crime, and he eventually confessed to a total of 10 crimes.

On cross-examination, defense counsel attempted to ask Milot why they went to the house in North Chicago. The prosecutor objected on the ground of relevancy, and the court sustained the objection. Defense counsel then explained that the question related to whether defendant was in custody. The prosecutor responded that how defendant was brought into the police station was irrelevant because he did not make any statement until after the officers read him the Miranda warnings. Defense counsel then argued that whether defendant was in custody was relevant to the confession. The court then allowed defense counsel to proceed with that line of questioning.

Milot testified that he had received a tip to go to that address in North Chicago as part of an investigation into several armed robberies. The officers had gone to the house and were met at the door by a man who told the officers that defendant was not there. The officers left to telephone the house to determine if defendant was there. Milot did not know why defendant was a suspect in the armed robberies except that the police had a photograph from one incident, and, after showing it to several people, they “came up with” defendant as a suspect. The second time they went to the house, a woman answered the door. The officers asked if defendant was there. She said no and told the officers that they “could come inside and look” if they wanted. The officers then entered the house and searched for defendant. Milot admitted that the officers did not tell defendant that he was free to go after they arrived at the police station.

Mark Hansen, a Waukegan police officer, testified that he was a friend of defendant. He went with Milot to look for defendant. The officers found defendant hiding in a bedroom closet. At that time, Hansen had his hand on his gun, and it was halfway out of the holster. The officers had defendant come out of the closet. Hansen asked defendant to come to the police station to talk about something, but he did not tell defendant about what they wanted to talk with him. Hansen testified that they did not arrest defendant at the house and that he was not under arrest in the squad car. Hansen also testified about events which occurred at the police station.

Hansen explained that he did not go into the interrogation room with defendant. More than an hour after they brought defendant to the police station, one of the detectives who had been talking to defendant told Hansen that defendant wanted to talk to him and that the detectives had already read defendant his rights. When Hansen went in to talk to defendant, defendant asked him “how many years he was going to get for the robbery.” Hansen asked defendant “why he had done the robberies.” Defendant told Hansen that “he had done them because his family wasn’t giving him any support; he needed money and it was cold out.” Hansen further questioned defendant about the robberies, and then left the room and told the detectives that defendant confessed to committing all the robberies.

On cross-examination, Hansen explained the circumstances behind the visit to the house in North Chicago. The police received an anonymous tip from Crime Stoppers that defendant had committed a series of armed robberies in the Waukegan and North Chicago area, and the tipster gave the police a telephone number at which defendant could be reached. Hansen did not have any reason to know how the tipster knew defendant was involved in the armed robberies. Defendant was already a suspect, but Hansen was “not sure why.” Someone came up with defendant’s name after viewing the videotape of an armed robbery. Hansen had seen the videotape but did not recognize the offender as defendant. Hansen admitted that he never told defendant he was free to go because “[i]t wasn’t needed.” On redirect, Hansen stated that they did not try to get a warrant to arrest defendant because Hansen knew it would be useless without a positive identification of defendant as the offender.

Detective Howard Pratt testified that he interviewed defendant at the Waukegan police station. According to Pratt, defendant was not in custody or under arrest. Pratt and Detective Milot read defendant his rights and then gave him a copy of a form with the Miranda rights printed on it. Defendant read the form and stated that he understood it, but he refused to sign it. The detectives then asked him about one of the robberies. Defendant asked them “how much time would he get” if he talked about the incident. After an hour and one-half, defendant told the detectives that he wanted to talk to Officer Hansen. After speaking with Hansen, defendant gave a statement to the detectives. Defendant was arrested after he gave a tape-recorded statement about one of the robberies.

In several colloquies, defense counsel and the prosecutor argued the relevance of the issue of whether defendant was in custody. The court told them, “I don’t see [custody] as an issue from the Motion unless there is another Motion.” Defense counsel responded that the issue of custody was inherent in the motion to suppress.

Defendant testified that on January 22, 1985, he was staying with friends in North Chicago. The police came to the house and knocked on the door. Defendant was unsure who answered the door, but the person told the police that defendant was not there. Twenty minutes later, there was a phone call, and one of his friend’s younger brothers answered and said it was for defendant. When defendant picked up the phone, whoever had called hung up. Approximately 15 to 20 minutes later, the police returned to the house. When defendant heard it was the police at the door, his friends told him to go into a bedroom until they could find out what the police wanted with defendant. The police asked if defendant was there, and his friends told them he was not. Defendant’s friend told the police that they could not come in the house. According to defendant, the police “barged in anyway,” saying that they knew defendant was there because they had just called the house and someone said he was there. During this conversation, defendant was hiding in the bedroom closet.

The police officers came into the bedroom and opened the closet where defendant was hiding. Officer Hansen told defendant to come out. According to defendant, Hansen had his gun completely out of the holster. The officers asked defendant to accompany them to the police station to answer some questions. Defendant asked them what it was about, but they would not tell him. Defendant was under the impression that he did not have a choice, so he went to the police station. Before they left the bedroom, the officers frisked defendant. They did not handcuff him, but defendant walked to the squad car between the officers.

At the police station, the officers put defendant in an interrogation room. Milot and Pratt came in and told defendant they wanted to ask him some questions about some robberies but that he was not charged with anything. Defendant told them he did not know about any robberies. Defendant also told the officers that if they were not charging him with anything, they should let him call his attorney or the public defender. The officers answered that they just wanted to ask him some questions and then read defendant the Miranda warnings. Defendant denied that he asked to make a deal with the officers because he knew “[t]he police can’t make deals.” The officers advised defendant that if he confessed to the robberies, they would try to see that defendant would not “get * * * more than 5 years.” Defendant told them that he did not trust them and that he preferred to talk with Officer Hansen. Pratt and Milot continued to question defendant, but “they weren’t getting anywhere, so one of them went and got Lt. Hansen.”

Hansen came in and told defendant that he could not understand or believe that defendant was the person responsible for all the robberies. Hansen asked if defendant was on drugs. Defendant told Hansen that he was tired, and he thought Pratt and Milot were trying to intimidate him, and defendant was afraid they might hit him so defendant asked to talk to Hansen. Since defendant thought they had photographs of him and that a witness had picked out his picture, defendant “decided [to] go ahead and confess all of them to [Hansen].”

During his argument, the prosecutor argued to the court that defendant was not in custody when the police advised him of his Miranda rights. The main focus of the State’s argument was that defendant voluntarily waived his Miranda rights, agreed to talk to the police, and did not ask for an attorney. Rather, the prosecutor argued, defendant “was trying to cut a deal.” Defense counsel argued that defendant was in custody from the moment the officers picked up defendant at the house. Counsel also argued that defendant invoked his right to remain silent, and he finally confessed after the police persisted in questioning him.

The court noted that the testimony of the police and defendant conflicted concerning whether defendant had been arrested at the house. The court remarked, “there are some [things] which bring question marks to my mind about entering the house and going into a bedroom and looking in the closet.” However, the court did not rule on the issue because there was not “any real evidence or argument about the arrest” or the search. The court further stated that the question of whether defendant was in custody was irrelevant because the police officers read the Miranda warnings before they questioned defendant. The court concluded that the evidence presented at the hearing showed that defendant’s confession was voluntary.

On May 27, 1988; the trial court issued an order taking defendant’s post-conviction petition under advisement to determine whether it had any merit. Apparently, the court decided that it did have merit because on June 3, 1988, the court appointed counsel to represent defendant. On October 3, 1988, defendant filed a supplemental petition for post-conviction relief. The supplemental petition was similar to the original petition except that it also alleged that defendant was denied the effective assistance of appellate counsel because the appellate defender failed to raise in the direct appeal the issue of the effectiveness of defendant’s trial counsel. Defendant attached to the supplemental petition a motion to quash arrest, a motion to suppress statements, and a motion to suppress arrest and statements which were presented by his appointed counsel. It is unclear whether these motions were filed with the court independently of the supplemental petition.

Defendant also attached to the supplemental petition a copy of a letter defendant wrote to the appellate defender, dated November 4, 1986. In this letter, defendant informed his appellate counsel of the issues he wished to present on appeal. One of those issues defendant listed was the ineffective assistance of trial counsel for failure to file a motion to quash arrest based on the illegal entry into the house and based on lack of probable cause to arrest. Defendant also stated in his letter that there was sufficient evidence in the transcript to determine whether defendant was in custody at the house and whether he was arrested without probable cause.

In addition, defendant attached to the supplemental petition the affidavit of his appellate counsel. The assistant appellate defender stated that, from off-the-record information he received from defendant, the appellate defender thought defendant was arrested without probable cause. The assistant appellate defender did not raise that issue on appeal because he believed the record was insufficient to support the issue. The assistant appellate defender told defendant that he could pursue the issue in a post-conviction petition. Finally, defendant attached to the supplemental petition a brief and argument in support of the petition.

The State filed a motion to dismiss the post-conviction petition. In the motion, the State argued that the petition should be dismissed because defendant failed to raise in the direct appeal the issue of the effective assistance of trial counsel and, therefore, the issue is barred by res judicata and is waived. The motion further argued that the failure to raise the issue was appellate strategy, not an error amounting to the ineffective assistance of appellate counsel.

On October 28, 1988, the court held a hearing on the motion to dismiss. After hearing arguments of counsel, the trial court explained its ruling. The trial court found that there was sufficient evidence adduced at the suppression hearing to raise the issue of ineffective representation on direct appeal. The court also stated that defendant’s appellate counsel may have correctly predicted that if he raised this issue without further evidence, it may have been resolved against defendant. The court found that the decision not to raise the issue was not patently wrong and that all the issues raised in the post-conviction petition were known and were part of the original record and could have been raised on appeal, but they were not. The court granted the motion to dismiss on the basis that the issue raised in the post-conviction petition was waived. Defendant then timely filed this appeal.

Defendant contends he is entitled to an evidentiary hearing on his post-conviction petition because his appellate counsel was ineffective for failing to raise the issue of trial counsel’s effectiveness when there may have been a substantial basis for challenging defendant’s arrest on fourth amendment grounds. A Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1987, ch. 38, par. 122—1 et seq.) proceeding is not an appeal, but a collateral attack on the judgment. (People v. Caballero (1989), 126 Ill. 2d 248, 258.) Under the Act, a defendant is not entitled to an evidentiary hearing unless he has made a substantial showing of a violation of a constitutional right and the allegations are supported by the record or by affidavits. (People v. Del Vecchio (1989), 129 Ill. 2d 265, 279.) All well-pleaded facts in the petition are taken as true for the purpose of determining whether to grant an evidentiary hearing. (Caballero, 126 Ill. 2d at 259.) We will not disturb the trial court’s dismissal of the petition unless that determination was clearly erroneous. Del Vecchio, 129 Ill. 2d at 284.

The trial court dismissed defendant’s petition on the basis that the issues he raised were waived or barred by res judicata. Defendant argues that the issue of trial counsel’s effectiveness was not waived or barred because of appellate counsel’s ineffectiveness. Generally, the issue of whether a defendant was denied the effective assistance of trial counsel is waived if not raised in the direct appeal. (People v. Owens (1989), 129 Ill. 2d 303, 308.) Where fundamental fairness requires it, however, the waiver rule is relaxed in post-conviction proceedings. (Del Vecchio, 129 Ill. 2d at 280.) Appellate counsel will be found to have been ineffective where counsel failed to raise on appeal a “patently meritorious” issue. (People v. Butler (1989), 186 Ill. App. 3d 510, 517.) We will not find the issue of trial counsel’s incompetency waived if we conclude that appellate counsel was ineffective for failing to raise that issue.

A defendant is entitled to the effective assistance of counsel on direct appeals. (Caballero, 126 Ill. 2d at 269, citing Evitts v. Lucey (1985), 469 U.S. 387, 396-97, 83 L. Ed. 2d 821, 830-31, 105 S. Ct. 830, 836-37.) The two-part Strickland standard applies when determining the competency of appellate counsel. (Caballero, 126 Ill. 2d at 269-70; see Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Where, as here, the defendant argues that his appellate counsel failed to raise a particular issue, the defendant must show how the failure to raise that issue was objectively unreasonable and that a reasonable probability exists that, but for this failure, the sentence or conviction might have been reversed. Caballero, 126 Ill. 2d at 269-70.

Defendant’s appellate counsel stated in his affidavit that he thought trial counsel was ineffective for failing to file a motion to quash arrest, but that he did not raise the issue because he believed the record was insufficient to support the issue. The trial court disagreed with appellate counsel’s assessment of the record and found that the record was sufficient for appellate review. We agree with the trial court that the record was sufficient for meaningful appellate review of the issue.

To determine whether defendant was denied the effective assistance of appellate counsel, we must first determine whether the record supports the conclusion that trial counsel was ineffective and, if so, whether that deficiency prejudiced defendant. Defendant claims he was denied the effective assistance of trial counsel because the public defender did not file a motion to quash defendant’s arrest. For defendant to have succeeded on that motion, he needed to prove that his arrest or detention was illegal and that his confession was a fruit of that illegal arrest. Dunaway v. New York (1979), 442 U.S. 200, 60 L. Ed. 2d 824, 99 S. Ct. 2248.

First, we must determine whether there was sufficient evidence to establish that defendant was seized within the meaning of the fourth amendment. A person has been seized when, in view of the surrounding circumstances, a reasonable person would have believed that he was not free to leave. (Michigan v. Chesternut (1988), 486 U.S. 567, 573, 100 L. Ed. 2d 565, 572, 108 S. Ct. 1975, 1979.) The focus in that analysis is on the coercive effect of the police officers’ conduct. (Chesternut, 486 U.S. at 573, 100 L. Ed. 2d at 572, 108 S. Ct. at 1979.) The police officers’ subjective belief that the defendant was free to leave is not determinative where it was not communicated to the defendant. (People v. Stofer (1989), 180 Ill. App. 3d 158, 168.) The State has the burden of proving that the defendant’s consent to accompany the officers was voluntary and was not the product of express or implied coercion or duress. (United States v. Mendenhall (1980), 446 U.S. 544, 557, 64 L. Ed. 2d 497, 511, 100 S. Ct. 1870, 1879.) Some examples indicative of a seizure are “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” Mendenhall, 446 U.S. at 554, 64 L. Ed. 2d at 509, 100 S. Ct. at 1877.

In Stofer, the appellate court found that the defendant was seized and did not voluntarily accompany the police officers to the police station for questioning. The police officers came to the defendant’s, house and announced that they were taking the defendant to the police station for questioning about a murder. The officers refused to question the defendant at his home. The defendant was not told that he was free to refuse to accompany the officers, and they led him to the police car. One of the officers testified that the defendant was taken into custody at that time. Stofer, 180 Ill. App. 3d at 167.

In Dunaway, the defendant was not questioned where he was found. He was taken from a neighbor’s house and brought to the police station in a police car. The defendant was put in an interrogation room, and the police never told him that he was free to leave. (Dunaway, 442 U.S. at 212, 60 L. Ed. 2d at 836, 99 S. Ct. at 2256.) The Supreme Court concluded that although the defendant had not been arrested, he was seized. 442 U.S. at 212, 60 L. Ed. 2d at 836, 99 S. Ct. at 2256.

In People v. Dowdell (1980), 81 Ill. App. 3d 266, three police officers went to the defendant’s girlfriend’s apartment, where they told the girlfriend that they wanted to talk to him. The girlfriend admitted the officers into the apartment. The officers asked the defendant to accompany them to the police station because they wanted to ask him some questions. The defendant asked the officers what they wanted to question him about, but they refused to tell him. The defendant got his coat and went with the officers in a squad car to the police station. There he was read his Miranda rights, after which he made inculpatory statements about a burglary. The police officers testified that the defendant was not arrested in the apartment or at any time prior to his confession, and he was free to refuse to accompany the officers, although the defendant was never told that he was not under arrest or that he did not have to go the police station. The appellate court found that the officers’ expedition to the apartment “was a deliberate special trip” by three officers which constituted a detention or seizure. Dowdell, 81 Ill. App. 3d at 270.

Similarly, in the present case, the officers testified that they found defendant hiding in a closet under some clothes. One of the officers, with his gun halfway out of the holster, told defendant to come out of the closet. They refused to question him at the house. The officers took defendant to the police station in a police car. Defendant was put in an interrogation room. At no point was he told that he was free to refuse to accompany the officers or that he was free to go. We conclude that a reasonable person in defendant’s place might have believed that he was not free to refuse to accompany the officers or that he was free to leave the police station. Defendant’s acquiescence was not voluntary. Of particular significance is the fact that defendant was hiding from the police and told to come out of the closet. Clearly, he did not go voluntarily with the police if he did not want them to find him.

The police may not seize or detain a suspect without probable cause. (Dunaway, 442 U.S. at 215, 60 L. Ed. 2d at 837-38, 99 S. Ct. at 2258.) Probable cause exists when the totality of the circumstances known to the arresting officers is such that a reasonably prudent person would believe that the suspect is committing or has committed a crime. (People v. Montgomery (1986), 112 Ill. 2d 517, 525.) The officers knew there had been a series of armed robberies in the area and the offender was a black male. They had a videotape of the offender from one of the robberies, but Officer Hansen did not recognize the offender as defendant. “Someone” suggested defendant as a possible suspect. There was also an anonymous tip from Crime Stoppers which said that defendant committed the offenses, and the caller gave the telephone number where defendant could be reached; however, Officer Hansen did not know how the tipster knew defendant committed the crimes.

This information alone is not sufficient to establish probable cause. The anonymous tip is not significant because it lacked the indicia of reliability. (Cf. People v. Crest (1989), 188 Ill. App. 3d 768.) The officers indicated that the caller did not give any details, and there was no evidence to corroborate the tip. In addition, Officers Hansen and Milot did not believe they had probable cause to arrest defendant when they went to the house. They testified that they were looking for him because they wanted to question him. Thus, there is a reasonable probability that the trial court might have granted a motion to quash the arrest.

To determine whether there is a reasonable probability that defendant’s confession would have been suppressed as a “fruit of the poisonous tree,” we must apply the test established in Brown v. Illinois (1975), 422 U.S. 590, 45 L. Ed. 2d 416, 95 S. Ct. 2254, and its progeny. The factors that the court must consider to determine whether the confession was a product of the arrest are: the temporal proximity of the arrest and the confession, the presence of intervening circumstances, and the purposefulness and flagrancy of the official misconduct. Brown, 422 U.S. at 603-04, 45 L. Ed. 2d at 427, 95 S. Ct. at 2261-62.

Applying the Brown factors to the facts of this case, we conclude that there is a reasonable probability that the trial court may have found that the confession was the fruit of the illegal detention. Defendant confessed less than two hours after he was brought to the police station, and there were no intervening circumstances. In addition, the questioning of defendant appears to have been an “expedition for evidence” (Brown, 422 U.S. at 605, 45 L. Ed. 2d at 428, 95 S. Ct. at 2262), in which the police “interrogated the defendant in the hope of obtaining sufficient information upon which to predicate the probable cause necessary for an arrest” (People v. Townes (1982), 91 Ill. 2d 32, 38).

The issue of trial counsel’s ineffectiveness was not frivolous, but was “patently meritorious.” If the issue of trial counsel’s ineffectiveness had been raised on appeal, it would have been the strongest issue. (See People v. Downey (1987), 162 Ill. App. 3d 322.) We therefore conclude that appellate counsel’s performance was deficient, and the failure to raise the issue was objectively unreasonable. In addition, this is not the type of error which would be deemed harmless. Thus, defendant is entitled to an evidentiary hearing on the issues of the ineffectiveness of appellate and trial counsel.

We wish to point out that although we have concluded that defendant is entitled to an evidentiary hearing on these issues, nothing in our opinion requires the trial court to grant defendant’s petition. The trial court must make the determination to grant or deny the petition based upon the evidence introduced at the evidentiary hearing.

The judgment of the circuit court is reversed, and this cause is remanded for an evidentiary hearing on defendant’s post-conviction petition.

Reversed and remanded with directions.

INGLIS and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID BRADFORD, Defendant-Appellant.
    Second District
    No. 2—88—0762
    Opinion filed June 14, 1990.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, David Bradford, was convicted of residential burglary and sentenced to a 10-year term of imprisonment. Defendant contends on appeal that his attorney was operating under a conflict of interest because he briefly represented an accomplice who testified against defendant at trial. We affirm.

Public defender George Fischer was appointed to represent defendant after another attorney from his office withdrew from the case. At a status hearing on November 4, 1987, Fischer advised the court that he also represented defendant’s alleged accomplice in the burglary, Richard Thompson, and that Thompson had made some statements implicating defendant. Fischer stated, “I have not talked to Mr. Thompson about this matter.” He then advised the court that the possible options were for him to withdraw from representing Thompson or to withdraw from both cases, which would necessitate the appointment of outside counsel for either defendant or Thompson.

The trial judge responded by telling Fischer to solve “whichever of the two is your most immediate conflict situation” and stating that, if necessary, he would appoint outside counsel. The judge then told defendant that it would take about a week to resolve the matter of who would represent him.

Fischer continued representing defendant. Thompson pleaded guilty to the charge against him before defendant’s trial. The potential conflict was not mentioned again at any hearing until Fischer cross-examined Thompson at defendant’s trial on June 14, 1988. Fischer asked if Thompson was aware why Fischer had stopped representing him. After the State objected, Fischer stated as follows:

“Well, Your Honor, there’s a — through the testimony that came out here it appears that there might be an inherent conflict because I’m trying a case of a co-defendant. And I’ll represent to the Court just to clear that part of it up that I was here on duty for preliminary hearing, realized there was a potential conflict and immediately assigned the case out so that I could represent one and not both of these potential defendants.”

The trial judge said he would accept Fischer’s statement. The court subsequently found defendant guilty.

Defendant argues on appeal that a per se conflict of interest existed by virtue of Fischer’s prior representation of Thompson and that, even if no per se conflict existed, the trial judge failed to take appropriate measures when the potential conflict was brought to his attention. Under similar circumstances, our supreme court held in People v. Cunningham (1985), 107 Ill. 2d 143, that no per se conflict of interest existed. In Cunningham, the public defender represented defendant and two other individuals charged with separate sex offenses against the same victim. The other two individuals pleaded guilty and were listed as potential witnesses for the State at defendant’s trial. Defendant was found guilty after a stipulated bench trial. Cunningham, 107 Ill. 2d at 146-47.

The court noted in Cunningham the general rule that in cases involving joint representation of codefendants, there is no per se conflict of interest. (107 Ill. 2d at 148; see also People v. Spreitzer (1988), 123 Ill. 2d 1, 17.) Although defendant and the other two individuals were not technically codefendants, the court stated that since there was a common victim, the cases were so interrelated that the rules governing joint representation of codefendants should apply. (Cunningham, 107 Ill. 2d at 149.) Since there was no per se conflict, defendant had to show that an actual conflict of interest had manifested itself at trial. (107 Ill. 2d at 149.) In the case at bar, defendant and Thompson were charged with identical crimes against identical victims. Although they may not have technically been codefendants, it is clear under Cunningham that the rules regarding joint representation of codefendants still apply and there is no per se conflict of interest.

Defendant also argues, however, that, even if there was no per se conflict of interest, a new trial is required because his attorney brought the potential conflict to the trial judge’s attention and the court failed to take adequate measures. In situations involving joint representation, if defendant’s attorney brings a potential conflict to the trial judge’s attention at an early stage of the proceeding, the trial court has a duty either to appoint separate counsel or take adequate measures to determine whether the risk of conflict is too remote to warrant separate counsel. (Holloway v. Arkansas (1978), 435 U.S. 475, 484, 55 L. Ed. 2d 426, 434, 98 S. Ct. 1173, 1178; People v. Spreitzer (1988), 123 Ill. 2d 1, 18.) If the potential conflict is not brought to the attention of the trial court, defendant must show that an actual conflict of interest existed and adversely affected counsel’s performance. Cuyler v. Sullivan (1980), 446 U.S. 335, 350, 64 L. Ed. 2d 333, 348, 100 S. Ct. 1708, 1719; Spreitzer, 123 Ill. 2d at 18.

Here, as in People v. Jones (1988), 121 Ill. 2d 21, we must determine whether the potential conflict was brought to the attention of the trial court within the meaning of Holloway. In Jones, the trial judge raised the issue of a possible conflict during a trial in which the two defendants were jointly represented by two attorneys who were acting as a team. At the close of the State’s case, the trial judge invited defense counsel to move for a mistrial if they believed there was a conflict. Defense counsel moved for a mistrial the next day but based the motion primarily upon another ground and only obliquely referred to the possible conflict. The trial court denied the motion. Jones, 121 Ill. 2d at 28-29.

Our supreme court determined in Jones that the actions and remarks of defense counsel were not sufficient assertions of a conflict of interest to warrant reversal under Holloway. (121 Ill. 2d at 29.) The court noted that, in Holloway, defense counsel made motions for separate counsel and advised the court prior to trial that he could not adequately represent the interests of the codefendants because of the testimony they would give. (121 Ill. 2d at 29.) By contrast, in Jones, the trial court raised the issue of the potential conflict sua sponte, defense counsel never sought the appointment of separate counsel, and defense counsel was not able to articulate how their trial strategy was affected by the purported conflict. (121 Ill. 2d at 29.) The court stated as follows in Jones:

“Thus, this is not a case in which, as in Holloway, counsel was forced to proceed after his repeated objections were disregarded. We find that the Holloway standard was not satisfied.” 121 Ill. 2d at 29.

Similarly, the instant case was not one in which defense counsel was forced to proceed after expressing repeated objections to his continued representation of defendant. Defense counsel merely mentioned the issue of a potential conflict, the trial judge told him to take the necessary steps to resolve it, and the matter was not raised again until trial. At that point, defendant’s attorney again raised the issue but stated the potential conflict was resolved because he had ceased representing Thompson immediately upon realizing the potential for a conflict of interest. Here, as in Jones, defense counsel never made a motion to withdraw or sought to withdraw from representing defendant. We conclude that defense counsel’s actions and remarks were not sufficient assertions of a conflict of interest to warrant reversal and a new trial.

Our conclusion is bolstered by a case we have previously cited and discussed, People v. Cunningham (1985), 107 Ill. 2d 143. Although defense counsel mentioned the possibility of a conflict of interest to the trial judge prior to trial, counsel never filed a motion to withdraw from representing defendant. (Cunningham, 107 Ill. 2d at 147.) The same is true in the case at bar. Our supreme court ruled in Cunningham that defendant would only be entitled to a new trial if he demonstrated the existence of an actual conflict of interest which manifested itself at trial. (107 Ill. 2d at 149.) We reach the same conclusion in this case.

Under the circumstances of the case, where defense counsel was faced with the possibility of being forced to cross-examine a former client or clients, the court held in Cunningham that a two-part test originally set forth in United States v. Jeffers (7th Cir. 1975), 520 F.2d 1256, should be applied to determine whether an actual conflict existed. (Cunningham, 107 Ill. 2d at 149.) The first factor is whether defense counsel’s pecuniary interest and potential future business might cause him or her to avoid vigorous cross-examination that could be embarrassing to the witness. (107 Ill. 2d at 149.) The second factor is whether privileged information obtained from the witness might be relevant to the cross-examination. Mere hypothetical or speculative conflicts are not sufficient. (107 Ill. 2d at 150; People v. Schaefer (1989), 188 Ill. App. 3d 317, 322.) The mere possession of confidential information does not necessarily preclude effective cross-examination under these circumstances; defendant has the burden of demonstrating the existence and materiality of the alleged confidential information. Schaefer, 188 Ill. App. 3d at 322.

With regard to the first factor, the court stated in Cunningham that the public defender would have had no pecuniary interest in an indigent witness. (Cunningham, 107 Ill. 2d at 150.) The same is true in the instant case. As to the second factor, there is nothing in the record which indicates that defense counsel’s cross-examination of Richard Thompson was affected in any manner by his brief prior representation of Thompson. Defendant’s attorney, George Fischer, vigorously cross-examined Thompson about the statements Thompson made to the police. Fischer also represented to the trial court that he withdrew from representing Thompson as soon as he realized the existence of a potential conflict so he could continue representing defendant. Defendant failed to show that Fischer obtained confidential information while he represented Thompson that may have hampered his cross-examination of Thompson and has therefore failed to establish that an actual conflict of interest existed which manifested itself at trial.

For the above reasons, the judgment of the circuit court of Ogle County is affirmed.

Affirmed.

McLAREN and REINHARD, JJ., concur.


author: JUSTICE INGLIS

text:
      In re MARRIAGE OF GREGORY O. ZEMAN, Petitioner-Appellee and Cross-Appellant, and SUSAN ZEMAN, Respondent-Appellant and Cross-Appellee.
    Second District
    No. 2—89—1074
    Opinion filed June 20, 1990.

      Hill, Van Santen, Steadman & Simpson, of Chicago, Stephen B. Ruben, of Stephen B. Ruben & Associates, Ltd., of Westchester, and Elizabeth W. Sexton and Thomas M. Newman, both of Peregrine, Stime, Newman, Ritz-man & Bruckner, Ltd., of Wheaton, for appellant.
    Mel Sloan and Mary J. Adams, both of Mel Sloan, Ltd., of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Susan M. Zeman, appeals from an order of the circuit court which found that there had been a substantial change in circumstances warranting a reduction in maintenance payments by petitioner, Gregory O. Zeman, from $1,750 per month to $900 per month. On appeal, Susan raises four issues: (1) whether the trial court properly considered Susan’s inheritances; (2) whether the trial court erred in considering Gregory’s payment of college expenses for the couple’s youngest child; (3) whether the trial court erred in failing to consider the expenses incurred by Susan as legal guardian of their granddaughter; and (4) whether the trial court properly considered the aspects of Susan’s retirement benefits. Three additional issues are raised by the cross-appeal filed by Gregory: (1) whether the trial court erred in granting Susan summary judgment on Gregory’s petition to terminate maintenance; (2) whether the trial court erred in failing to reduce the maintenance payments to zero; and (3) whether the trial court erred in failing to grant Gregory retroactive reduction of his maintenance payments to the date his petition to modify was filed. We affirm.

Susan and Gregory Zeman were married on July 6, 1958. On October 13, 1981, Gregory filed a petition for dissolution of marriage. Susan was granted leave to file a counterpetition for dissolution on April 27, 1983. A marital settlement agreement was entered, and a hearing was conducted to prove up the agreement. Thereafter, a judgment of dissolution was entered on May 31, 1983, incorporating the settlement agreement. At the time of dissolution, five children had been born to the parties as a result of the marriage: Annette, age 23; Gregory, age 21; Daniel, age 20; Marguerite, age 16; and Peter, age 14. The parties agreed that they would have joint custody of the minor children and that Susan would have physical custody. To the extent of his financial ability, Gregory agreed to pay for the children’s college expenses and for Peter’s high school tuition. The parties acknowledged that their daughter, Marguerite, may suffer from a learning disability which would create future continued education and expenses and “[tjhat in the event that this is necessary, Gregory agree[d] to be responsible for the payment of this educational expense as well as a contribution to the support of the minor child, even after the child *** reach[es] her majority.”

At the time of the dissolution, Susan was employed as school nurse with the Chicago Board of Education earning $16,000 per year. Gregory was employed as a board-certified allergist in private practice earning $80,000 per year. Pursuant to the settlement, Gregory agreed to pay Susan the sum of $2,000 per month for unallocated maintenance and child support for 18 months. Thereafter, the sum was to be reduced to $1,750 per month. It was agreed that the payments would be deducted from Gregory’s taxes and would be included in Susan’s income. As for modification or termination of the payments, the parties agreed “that only when the second child reaches majority shall this present a change in circumstances for the purpose of any reduction in the maintenance, and each agrees that the maintenance shall not cease upon this event, but that maintenance shall only cease by operation of law.” The parties further agreed that because Susan has had “various health problems which have caused her to be unavailable for employment from time to time,” if she did become unemployed, “through no fault of her own, such as illness[,] other related medical problems, or the like, then this can be deemed to be a change in circumstances for the purpose of maintenance and support if need is shown.”

The settlement agreement further provided that Susan was to receive the marital home. Gregory was to retain his pension and profit sharing plan relative to his medical practice. He was, however, to sell various outside business interests and divide the proceeds with Susan as provided in the agreement.

No further court action was taken by either party until June 24, 1988, when Gregory filed a petition to terminate maintenance. Therein, Gregory alleged that a substantial change in circumstances had occurred. Specifically, Gregory alleged, in part, that the couple’s youngest child was 20 years old; that Gregory had contributed substantial monies toward the college and living expenses of all the children; that Susan has a master’s degree and is currently employed by the Board of Education as a school nurse earning $25,000 per year; that Susan recently sold the former marital residence for approximately $160,000 with a mortgage balance outstanding of $40,000; and that Susan inherited substantial lakefront property in Pistakee Lake. As relief, Gregory prayed for the trial court to order Susan’s maintenance terminated retroactive to the date the petition to terminate was filed.

In response, Susan filed a motion for summary judgment alleging that pursuant to the settlement agreement, the parties expressly precluded termination of maintenance except “by operation of law” and, under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(c)), this requires the death of either party, the remarriage of Susan, or the cohabitation of Susan with another person. The mere change of circumstances is not sufficient. See Rosche v. Rosche (1987), 163 Ill. App. 3d 308, 312-13.

A hearing was held on February 8, 1989, addressing the motion for summary judgment. After arguments of counsel were heard, the trial judge ruled in favor of Susan, granting her motion. The judge stated that the language of the settlement agreement provided that “maintenance *** shall only cease by operation of law,” specifically, death, remarriage, or cohabitation, and that a substantial change of circumstances is not sufficient to terminate maintenance under the express language of the agreement. While counsel for Susan stated on the record that he would prepare an order, we find no written order in the record granting summary judgment.

On February 28, 1989, Gregory filed a petition to modify maintenance. The allegations in this petition were substantially the same as those alleged in the petition to terminate maintenance. However, as for relief, Gregory merely prayed for the trial court to “reduce or abate the amount of maintenance in accordance with the facts set forth hereto.”

A hearing on Gregory’s petition to modify was held on August 24 and 25, 1989. Susan testified that she was 54 years of age. When asked whether she was in “relatively good health,” Susan responded that she was not. She explained that she had severe back problems, a left-sided pain, and bad feet. Susan admitted that prior to the divorce she was hospitalized several times for psychiatric treatment, but since the divorce she has only been hospitalized once and that was for a three-day weekend. She stated that she presently sees a psychiatrist approximately once a year and has to take lithium on a daily basis. However, her health has not caused her to cease or suspend her employment as a school nurse for the Chicago Board of Education. In 1982, she earned $16,000 in this capacity. By 1988, according to the parties’ stipulation, Susan’s income had increased to $26,505.84 (i.e., $2,208.82 monthly gross income).

The parties stipulated that the following monies are withheld monthly from Susan’s current income:

Federal tax $556.74
State tax 80.42
Pension contribution 22.10
Annuity 752.00
Deferred Pay 592.60

Susan testified that the pension contribution is not a voluntary contribution. However, the annuity and deferred pay are voluntary deductions. Susan stated that she began contributing to the annuity in 1985, resulting in a balance of $22,521 in that account. In 1986 or 1987, she began the deferred pay deduction. Susan explained that this deduction allows her to be paid on a 12-month basis instead of a 10-month basis.

Susan claimed, by way of a financial declaration, that her basic monthly expenses are as follows:

Mortgage $665.12
Taxes & Insurance 379.17
Utilities 288.31
Food 628.58
Maintenance (townhouse & yard) 80.00
Transportation (auto payments, gas, oil, license and insurance 636.47
Furniture and home repair 500.00
Personal (clothing, medical expenses, insurance & miscellaneous) 1,820.72
Expenses for Jackie Zeman 676.06
Expenses for Marguerite and Peter 229.44
TOTAL $5,903.87

Susan testified that her daughter, Marguerite, lived with her in the marital residence until September 1985. Prior to that date, Marguerite had a child, Jacqueline. Susan is the legal guardian of her granddaughter, Jacqueline. Susan’s son, Peter, resides with her when he is not attending Northern Illinois University. Susan stated that she pays for Peter’s clothes and car expenses. Thus, Susan included these expenses when totaling her monthly expenses.

Susan alleged that her net monthly income, which included dividends, interest, and maintenance payments of $1,750, minus deductions, totalled $4,432.59. Thus, by her figures, Susan was presently exceeding her monthly means by $1,471.28.

As for her assets, Susan testified that she sold the marital residence in 1988 for $160,000 and purchased a townhouse for $195,000 in October 1988. Susan realized $116,000 from the sale of the marital residence, all of which went for the down payment on her townhouse. Susan was able to apply enough liquid monies so that she only had to take out a mortgage of $75,000 to effectuate the sale. Susan testified that one of the primary reasons she sold the marital residence was because it was very expensive to maintain. Susan also purchased an automobile in 1988 which cost approximately $15,000. After a trade-in and down payment, she financed approximately $8,000 of the purchase price of the car.

Subsequent to the time the judgment of dissolution was entered, Susan received several inheritances. In 1985, she received $17,000 from an aunt. However, Susan testified that all of the money had been spent on living expenses because her salary and maintenance do not meet her needs. When asked whether she could trace the money, Susan answered, “I probably could trace it to investing it into mutual funds, and then I can certainly trace it out of mutual funds.”

From her father, Susan inherited $50,000 and some property valued at $125,000 at Pistakee Lake. Although the property produces some rental income, specifically, $700 a month for approximately nine months of the year, Susan testified that this “is a wash, as far as expenses go.” Susan stated that she keeps the house, in part, because of sentimental reasons; her family has owned the land since 1904 and her grandfather built the house.

In addition, Susan inherited $66,000 from Richard Stoekert, some silver coins, a gun collection, and a car. She expects to receive another $220,000 in stocks and has consulted financial advisors as to how best to make the transfer. Estate expenses and attorney fees have not been paid for the estate yet.

The parties stipulated that Susan had approximately $9,000 in a sayings account, $20,000 in cash reserves, bond funds and money markets. It was further stipulated that Susan had the following monies set aside for retirement:

Cigna Annuity $22,521.20
Fidelity IRA 13,430.61
Kemper Financial 4,136.00

Susan also had a retirement plan with the Board of Education for an undetermined amount whereby she would receive $214 per month if she retired now, and $584.50 if she retired on June 1,1991.

It was stipulated that in 1982 Gregory earned $80,000 in his income as a board-certified allergist in his own private practice. By 1988, his income had increased to approximately $194,000. Gregory testified that the gross income from his practice in 1988 was approximately $400,000. Of that amount, $60,000 is paid to his associate allergist. Gregory pays approximately $30,000 to his present wife whom he married subsequent to his divorce; she is employed as the general office manager of his practice. In addition, he employs five other part-time employees. Gregory stated that he anticipates that his income next year will probably be lower due to the employment of the associate.

Gregory testified that both he and his present wife are in good health and receive annual physicals. Gregory stated that he enjoys playing tennis and keeping fit.

Gregory testified, by way of affidavit, that his monthly expenses are as follows:

Mortgage, taxes and interest $1,629.23
Association fees 138.59
Utilities 180.00
Food (including restaurants) 800.00
Maintenance on condominium & insurance 102.00
Transportation (gas, repairs, license and insurance) 238.00
Laundry-cleaning 70.00
Home Furnishings 1,250.00
Personal (clothing, medical, insurance and miscellaneous) 2,301.00
Profit Sharing Plan 1,892.00
Maintenance for Susan 1,750.00
Expenses for Jacqueline (if applicable) 101.00
Expenses for Marguerite (if applicable) 15.00
Expenses for Peter’s college 576.00
TOTAL $11,042.82

Gregory alleged that his net monthly income was $11,705.83. Thus, by his figures, his income was exceeding his expenses by only $663.01 per month.

As for assets and liabilities, Gregory testified that- in 1983 he purchased a condominium for $89,000. There are two mortgages on this property totalling approximately $87,000. Money from the second mortgage was used to purchase a parcel of property on St. Thomas in the Virgin Islands costing approximately $37,000. Gregory owns a piece of art work which he purchased for a total of $18,000, with $7,000 still owing. Gregory has approximately $13,000 in savings. It was stipulated that Gregory has an IRA account worth $37,656.83 and a pension profit sharing plan worth $413,586.53, subject to an encumbrance of $125,000.

On August 30, 1989, the trial judge issued a letter of opinion stating that he had “taken into consideration the testimony of the parties, the stipulation of the parties, the documents received in evidence and the relevant sections of Chapter 40” and found:

“[A] substantial change of circumstance has occurred subsequent to the entry of the Judgment. The minor children are not [sic] emancipated. The Petitioner is paying all of the youngest child’s college expenses and the Respondent has inherited substantial sums, the majority of which are income producing. It should be further pointed out that the Respondent has for the past years been deducting approximately $750.00 per month from her income and setting the same in a deferred compensation program [i.e., the annuity].”

Thus, the court determined that the maintenance payment should be modified from $1,750 per month to $900 per month effective September 1, 1989. An order to that effect was entered October 3, 1989. Susan appeals and Gregory cross-appeals.

On appeal, Susan argues that the trial court abused its discretion in reducing her maintenance based on a substantial change in the parties’ circumstances. Susan contends, inter alia, that the trial court made four reversible errors with regard to the evidence. Specifically, Susan contends that the trial court erred in: (1) failing to determine the amount of income which could be generated from the inheritances received by Susan, rather than their value; (2) taking into consideration the payment of Peter’s college expenses by Gregory; (3) failing to take into consideration expenses incurred by Susan as legal guardian of their granddaughter, Jacqueline; and (4) failing to consider all aspects of Susan’s retirement benefits.

As to the first alleged error, Susan maintains that the trial court erred when it determined that the inheritances received by Susan constituted a substantial change in her circumstances. She argues that although the trial court held that a majority of Susan’s inheritances are income producing, the court failed to make any determination of the amount of income which could be generated therefrom. Susan acknowledges that under Illinois law it is proper for the court to take into consideration nonmarital assets, such as inheritances, in making an initial award of maintenance. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 287; In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1130.) However, she contends that it is the income produced by the property, rather than its value, which is to be considered. In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1088.

Gregory argues that much of the sums inherited by Susan were liquid, namely: $17,000 cash received from an aunt; $50,000 cash received from her father; and $66,000 received from the Stoekert estate. In addition, Susan is expected to receive $220,000 worth of stock from the Stoekert estate but is waiting transfer while consulting with financial advisors. The only nonliquid asset Susan inherited is the Pistakee Lake property, worth $125,000, and which she testified is rented for $700 per month for nine months out of the year.

Susan argues that $67,000 of the cash inheritances cannot be considered as income producing because she testified that she spent the money on her living expenses, i.e., the $17,000 from her aunt and the $50,000 from her father. Susan further contends that the income produced from the Pistakee Lake property was insufficient to meet the expenses of the property. Thus, assuming we accept Susan’s contentions, there remains the $66,000 received from the Stoekert estate plus the $220,000 worth of stock.

Although Susan had not yet taken control of the stock at the time of the hearing, the trial court was still permitted to consider it in determining whether there was a substantial change in circumstances. (Smith, 100 Ill. App. 3d at 1130.) Further, a court may take judicial notice of the fair earning powers of money or invested capital over a certain period of time. (Smith, 100 Ill. App. 3d at 1130.) In the trial judge’s letter of opinion, he noted that Susan “has inherited substantial sums, the majority of which are income producing.” Thus, we find that it fairly appears from the record that the trial judge did, in fact, consider the income potential of Susan's inheritances. (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 632.) Thus, the case at bar is distinguishable from In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 611-12, where the appellate court reversed the trial court for refusing to consider any specific income figure from the wife’s inheritances in setting the maintenance. While it is clear that some approximation of the income-producing ability of the inheritances is required, explicit findings by the trial court are not required so long as a sufficiently detailed basis exists in the record to support the award. (Mittra, 114 Ill. App. 3d at 632.) We find such a basis exists in the case at bar.

Second, we consider Susan’s contention that the trial court committed reversible error in determining that Gregory’s payment of Peter’s college expenses constituted a substantial change in the circumstances. Susan argues that, pursuant to the marital settlement agreement, Gregory was obligated to pay Peter’s college expenses. Thus, she argues, citing Sullivan v. Sullivan (1981), 98 Ill. App. 3d 928, the fact is res judicata and cannot justify modification of the maintenance as a substantial change in circumstances.

The settlement agreement specifically provided: “Gregory agrees to the extent of his financial ability to pay for the college education of the children of the parties; said payments shall include, all expenses, and other fees necessary toward each child’s attainment of a bachelor’s degree.” The agreement then set forth the college education being attained by three of the children, Annette, Gregory, and Daniel, and provided that Gregory was to bear the cost of that education. It further stated that Gregory was to pay for the cost of Peter’s high school education and “undertake to pay [Peter’s] college expenses in the same manner as he has undertaken with the other children.”

We agree with Susan that Gregory’s obligation to pay for Peter’s education was made res judicata by the settlement agreement and changed circumstances justifying modification of maintenance must have occurred after the judgment for dissolution. However, the judgment, which provided for an unallocated amount for child support and maintenance, further provided that when Peter reached majority it would present a change in circumstances for the purpose of any reduction in maintenance. Thus, because Peter is now emancipated, the maintenance award may be reduced. Recognition of the fact that Gregory, rather than Susan, is paying for all of the emancipated child’s college expenses is not improper as it pertains to the relative financial abilities of the parties and is not a redetermination of that responsibility.

Third, we consider Susan’s contention that the trial court committed reversible error in failing to consider the expenses incurred by her as legal guardian of her granddaughter, Jacqueline Zeman. At the hearing on Gregory’s petition to modify maintenance, the following exchange occurred:

“BY MR. RUBEN [counsel for Susan]:
Q. Are you the legal guardian of Jacquelyn [sic] Zeman?
A. [Susan] That’s correct.
Q. And how long have you been the legal guardian?
MR. SLOAN [counsel for Gregory]: Objection.
THE COURT: Sustained.
MR. RUBEN: Your Honor, for the record, I believe the Court must consider the entire social conditions of the parties during the post-decree. The statute provides, and the case law says, that when establishing maintenance and when considering a modification of maintenance, one must look to the same factors that the parties considered when they agreed to maintenance in the beginning, that is, the ages, the health, the medical conditions, and the — .
THE COURT: Excuse me, Mr. Ruben. It doesn’t indicate that if your client decides to take in a boarder or to give free room and board to a granddaughter and to maintain the granddaughter subsequent to the entry of a judgment, that that is a condition relative to her rights of maintenance.
Next question, please.
MR. RUBEN: Well, I find exception to it, and I want it noted on the record.
THE COURT: Sure.
MR. RUBEN: I believe it is a social condition which the Court must take into consideration.
THE COURT: She testified, Mr. Ruben, that it was subsequent to the entry of the judgment.
MR. RUBEN: I understand that.
THE COURT: Thank you.”

Susan argues that because the parties acknowledged Marguerite’s disabilities in the settlement agreement and a continuing obligation to support her, testimony should have been given regarding Jacqueline’s expenses. She maintains that “[d]ue to Marguerite’s disabilities, Susan and Gregory’s support of Jacqueline is actually continuing support to Marguerite” and thus not purely voluntary but contemplated under the provisions of the agreement. The agreement provided, in part:

“The parties acknowledge that the minor child, Marguerite, may suffer from a learning disability which would create future continued education and expenses. That in the event that this is necessary, Gregory agrees to be responsible for the payment of this educational expense as well as a contribution to the support of the minor child, even after the child would reach her majority.”

Our reading of the agreement indicates that the parties agreed to be obligated for the support of Marguerite, not for the support of her family. Thus, Susan’s voluntary decision to do so, and her expenses incurred thereby, need not be considered in determining her reasonable needs and whether a change of circumstances has occurred. See In re Marriage of Silber (1988), 176 Ill. App. 3d 853, 856-57.

We note that Susan also argues, in support of her claim that she should have been allowed to testify as to Jacqueline’s expenses, that Gregory “was permitted to testify as to the amounts of support he gave Jacqueline each month.” This testimony came by way of affidavit, introduced before Susan’s testimony, whereby Gregory listed as expenses for Jacqueline a total of $101 “if applicable.” Counsel for Susan cross-examined Gregory about these expenses; however, Gregory’s counsel repeatedly objected, and the following exchange occurred:

“Q. [counsel for Susan asking Gregory]: Other than these expenditures that you list *** relating to Jacquelyn [sic], do you make any — or have you made any voluntary contributions to Mrs. Zeman with respect to Jackie’s support in the last year?
MR. SLOAN [counsel for Gregory]: Objection.
THE COURT: Sustained.
MR. RUBEN [counsel for Susan]: Your Honor, they have raised the question in the affidavit. He has listed these items.
THE COURT: You cross examined on the issue. I don’t think we have to go any further. What the parties want to do voluntarily in taking care of their grandchildren should not be a bearing upon whether or not Mrs. Zeman is entitled to maintenance.”

The above exchange clearly indicates that the trial judge determined that the payments made by both parties with regard to Jacqueline were purely voluntary and would not be considered in modifying maintenance. We do not find this determination to be in error.

Fourth, we consider Susan’s contention that the trial court committed reversible error in failing to consider all aspects of her retirement benefits. In its letter of opinion, the trial judge stated, “[i]t should be further pointed out that the Respondent has for the past years been deducting approximately $750 per month from her income and setting the same in [an annuity account].” Susan argues that the trial court erred in refusing to allow her to testify that she would not receive social security benefits, which therefore necessitated the deferral of $750 per month to provide for her retirement. In addition, Susan argues that the trial court erred in failing to recognize that Susan will incur tax liability on the deferred income at some time in the future.

Section 504(b)(7) of the Illinois Marriage and Dissolution of Marriage Act provides that a trial court, in setting maintenance, may consider the tax consequences of the property division upon the respective economic circumstances of the parties. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)(7).) However, the tax consequences to which Susan refers relate not to the division of property but, rather, to her future financial condition. This is simply irrelevant in determining Susan’s maintenance, as the trial court is generally required to consider the parties’ economic circumstances as they exist at the time of the maintenance determination. (In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 265.) Further, the alleged fact that Susan must diminish her financial resources (see Ill. Rev. Stat. 1989, ch. 40, par. 504(b)(1)) in paying for the deferred income because she will not receive social security is similarly irrelevant. At this time, it is not Gregory’s responsibility to provide for Susan’s retirement. The fact that Susan chooses to do so now cannot change this. Thus, the trial court did not err in refusing to permit Susan to testify as to future social security benefits or lack thereof.

Next, we address the issue raised by both Susan and Gregory as to whether the trial court abused its discretion in the modification of maintenance. Susan argues that it was an abuse of discretion for the trial court to determine that there was a substantial change in circumstances warranting a reduction of maintenance. In contrast, Gregory argues that the trial court abused its discretion in failing to reduce the maintenance payments to zero.

We note that a trial court may modify a maintenance award “only upon a showing of substantial change in the circumstances.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) The party seeking modification bears the burden of showing this change. (In re Marriage of Ingram (1989), 185 Ill. App. 3d 395, 398.) In determining whether to modify maintenance and to what degree, the trial court is to consider the same factors which, under the statute, are to be assessed in making the initial award. (Ill. Rev. Stat. 1989, ch. 40, par. 504; Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 489.) The factors include: the financial resources of the party seeking maintenance, including marital property apportioned to her; the standard of living established during the marriage; the duration of the marriage; the age and the physical and emotional condition of both parties; the ability of the spouse seeking maintenance to meet her needs independently; and the ability of the other spouse to pay. The decision to modify or terminate maintenance payments rests within the sound discretion of the trial court, and such a decision will not be disturbed on review absent an abuse of that discretion. Ingram, 185 Ill. App. 3d at 399.

Susan argues that when the appropriate factors are taken into consideration, her maintenance should not be reduced. Specifically, she points out that (1) she and Gregory were married 25 years and had five children; (2) Susan has and continues to suffer from certain health problems while Gregory enjoys good health; (3) the parties established a comfortable lifestyle during the marriage; (4) Gregory’s monthly income is more than adequate to meet his own needs while paying $1,750 per month in maintenance to Susan; and (5) Susan’s financial resources, including $1,750 per month in maintenance, do not meet her fixed monthly expenses. She argues that the effect of the reduction in maintenance will require her to deplete her assets in order to meet her living expenses, which under Illinois law she should not be required to do. In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 612.

However, our review of the record does not indicate that the trial court abused its discretion in determining that a substantial change in the circumstances had occurred. Pursuant to the marital settlement agreement, Susan was initially awarded $2,000 per month for the maintenance and support of herself and the two minor children. This was at a time when her yearly salary was approximately $16,000. It was agreed that after 18 months the award would be reduced to $1,750. Gregory argues that the “step-down” in the monthly sum was commensurate with Marguerite reaching the age of majority. The parties did agree that when the second child (i.e., Peter) reaches majority this shall present a change in circumstances for the purpose of any reduction in maintenance. Peter reached the age of majority in 1987, and Gregory filed his petition to modify in 1989, at which time Susan was earning approximately $26,000 and had received substantial income-producing inheritances. We believe this is a sufficient change in circumstances to warrant reduction in the award despite Susan’s claim that her income is insufficient and Gregory’s is more than sufficient. The award provided in the decree, although unallocated, was clearly intended as maintenance and child support. Susan is no longer obligated to support the children as they are all emancipated, and it was agreed that Gregory would provide for their education, which he has done. Thus, the unallocated payments for maintenance and child support are no longer necessary in the amount of $1,750, given that Susan’s financial condition has only improved since the entry of the judgment of dissolution.

However, we do not accept Gregory’s argument that the trial court abused its discretion in refusing to reduce the maintenance payments to zero. A reduction to $900, as ordered by the trial court, appears to be appropriate given the length of the couple’s marriage, the marital standard of living, and the parties’ financial resources. The figures presented by Gregory as to his recommended financial dealings for Susan are unpersuasive. Similarly, Gregory’s argument that it is an abuse of discretion not to terminate maintenance when the statutory goals of maintenance have been achieved is likewise without merit in the case at bar. In In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 634, the appellate court held that the party receiving maintenance is required to get the training and skills necessary to become financially independent. The court so held relying on the goals of maintenance, which are “ ‘to obviate marriage-conditioned needs and to enable a formerly dependent spouse to acquire financial independence for the future.’ ” (Mittra, 114 Ill. App. 3d at 635, quoting Ill. Ann. Stat. ch. 40, par. 504(b)(2), Historical & Practice Notes, at 529 (Smith-Hurd 1980).) Once this independence has been achieved and the marriage-conditioned needs are obviated, maintenance should be terminated. (In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 322-23.) However, no such showing has been made in the case at bar. Even with her inheritances and salary, Susan has demonstrated that she may have some difficulty in meeting her reasonable needs as defined by the marriage. Thus, even in light of the statutory goals of maintenance, we cannot say that the trial court’s ruling was an abuse of discretion.

Next, we address Gregory’s argument that the trial court erred in granting Susan’s motion for summary judgment on his petition to terminate. We have noted that, prior to filing the petition to modify, Gregory had filed a petition to terminate. In response, Susan filed a motion for summary judgment, alleging that pursuant to the settlement agreement the parties expressly limited the circumstance under which maintenance could be terminated, namely, “by operation of law,” which, under the statute, requires death, remarriage, or cohabitation (see Ill. Rev. Stat. 1989, ch. 40, par. 510(c)). At the hearing on the matter, the trial judge ruled in favor of Susan, finding that a substantial change of circumstances was not sufficient to terminate maintenance under the express language of the agreement. Counsel for Susan then stated that he would prepare an order; however, we find no written order in the record granting summary judgment. Until a written judgment is filed, the proceedings are in a state of temporary abeyance, and the bare announcement of the final judgment cannot be appealed. (In re Marriage of Black (1987), 155 Ill. App. 3d 52, 54; Green v. Green (1974), 21 Ill. App. 3d 396, 403; see also 107 Ill. 2d R. 272.) Thus, we do not have jurisdiction to consider this issue.

Finally, we address Gregory's argument that he was entitled to a retroactive reduction of the maintenance to the date of the filing of his petition to modify maintenance. We note that in his petition to modify Gregory did not pray for such relief. Gregory argues that he is nonetheless entitled to modification from the date his petition was filed because he made a showing of changed circumstances. While it is true that on a proper showing of changed conditions a party may be entitled to a modification from the date of his petition, the decision to allow retroactive modification is still within the trial court’s discretion and will not be overturned on review absent an abuse of discretion. (In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 988.) We find no such abuse in the case at bar. As Susan points out, at the time Gregory’s petition was filed, she had not yet inherited approximately $220,000 worth of stock that she was expected to inherit. Thus, although there was a sufficient change in the circumstances to warrant modification, the circumstances at the time the petition was filed did not mandate that the modification be made retroactive.

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

REINHARD and DUNN, JJ., concur.


author: JUSTICE WOOD'WARD JUSTICE REINHARD,

text:
    PETER ANEST et al., Plaintiffs-Appellants, v. RICHARD BAILEY, Defendant-Appellee (State Bank of Antioch, as Trustee, et al., Defendants).
    Second District
    No. 2—89—0776
    Opinion filed June 12, 1990.

      REINHARD, J., dissenting.
    John C. Baumgartner, of Churchill, Baumgartner & Phillips, Ltd., of Grayslake, for appellants.
    Peter G. Kamberos, and Maria Pappas, of Kamberos & Pappas, Ltd., both of Chicago, for appellee.
   JUSTICE WOOD'WARD

delivered the opinion of the court:

Plaintiffs, Peter and Thalia Anest, appeal from the trial court’s denial of their motion to reconsider the trial court’s earlier order granting summary judgment for defendant, Richard Bailey. On appeal, plaintiffs contend that their failure to timely deposit additional earnest money with defendant did not constitute a material breach of the parties’ real estate sales agreement and did not operate to excuse defendant’s specific performance under the agreement. Plaintiffs further contend that it may be reasonably inferred from the evidence that defendant waived the agreement’s “time is of the essence” provision.

The record on appeal establishes the following undisputed facts. The parties agreed that plaintiffs would purchase 208 acres of land located in Lake County from defendant for $5,400 per acre. Plaintiffs included these and other terms in a preprinted form entitled “Contract to Purchase Real Estate.” The contract, dated October 31, 1988, in its upper right-hand corner, provided the following clause pertaining to plaintiffs’ deposit:

“The earnest money submitted herewith is $10,000.00 in the form of (cash) (check). Earnest money to be increased to 5% of the purchase price within 5 days after the date of acceptance, shall be held in escrow by R Bailey ***. Said initial earnest money shall be returned and this contract shall be void if not accepted on or before Nov. 10, 1988.” (The underlining indicates completed blanks in the preprinted form or the parties’ alteration of a preprinted term.)

Paragraph seven of the contract provided that the closing would take place “within 60 days of contract acceptance.” Plaintiff Peter Anest (Anest) and defendant signed the contract in the spaces provided for the buyer’s and seller’s signatures at the bottom of the page; however, defendant failed to fill in the blank provided for the date of his acceptance and did not otherwise date his signature. The reverse side of the preprinted contract form contained 14 additional preprinted terms, including paragraph (I)(5), which stated, “[t]ime is of the essence of this contract.”

Although plaintiffs apparently submitted their initial $10,000 deposit to defendant at the same time Anest executed the contract, defendant did not receive the additional deposit of $50,000 until sometime after November 22, 1988. On November 28, 1988, defendant returned plaintiffs’ additional deposit and informed them that he refused to proceed with the sale. Six weeks later plaintiffs filed their complaint in the instant cause seeking defendant’s specific performance.

In their complaint, plaintiffs alleged that the parties entered into the real estate contract on or about November 10, 1988, and that they tendered the additional deposit to defendant on or about November 22, 1988. In his answer, defendant claimed insufficient knowledge with regard to the first date and denied the second date. He did admit, however, that he received plaintiffs’ check on November 25, 1988.

Defendant filed a motion for summary judgment along with his answer and a counterclaim to quiet title. In his motion, defendant argued that plaintiffs were not entitled to specific performance because they had failed to comply with the contract’s terms by failing to submit their additional earnest money within five days of defendant’s acceptance and time was of the essence of the contract. Defendant alleged that the parties had entered into the contract on November 8, 1988, thus requiring plaintiffs’ additional earnest money to be received by him by November 13, 1988. Defendant’s affidavit in support of his motion for summary judgment stated that Anest called him on November 14, 1988, and told him that plaintiffs would not comply with the contractual terms and they would not deposit the required additional earnest money. Defendant further stated that Anest requested the preparation of a new contract which defendant claimed he rejected.

Anest’s counteraffidavit alleged that he had a telephone conversation with defendant “within five days of the receipt of the contract,” at which time Anest told defendant that he would prefer to substitute defendant’s attorney for defendant as the escrow agent. Anest alleged that defendant gave him his attorney’s name and did not voice any objections to the proposed change. Anest further alleged that he tried to call defendant’s attorney, Gabriel Barrafato, a number of times but never spoke to him, and attorney Barrafato never returned his calls. Anest then sent the additional earnest money directly to defendant on November 22, 1988. Anest claimed that defendant never made any demands on plaintiffs for the balance of the earnest money. Further, Anest denied ever telling defendant that he would not comply with the contract or that he ever refused to pay the additional deposit. Anest also denied that he ever requested the preparation of a new contract.

Gabriel Barrafato, defendant’s attorney, also prepared an affidavit which defendant filed in support of his motion for summary judgment. Attorney Barrafato alleged that he spoke with Anest on November 18, 1988, at which time Anest told Barrafato that he wanted to change the contract and to deposit the additional earnest money with Barrafato instead of with defendant. Barrafato alleged that he informed Anest that he lacked the authority to change the contract or to accept plaintiffs’ money on behalf of defendant.

In a supplemental memorandum, defendant alleged that the pleadings established certain uncontroverted facts, including the fact that the parties had entered into the real estate contract on November 7, 1988. Defendant further alleged that Anest’s affidavit was a “6th paragraph Affidavit,” which consisted only of legal conclusions or inadmissible factual statements asserted without a proper foundation. Defendant argued that Anest’s affidavit failed to demonstrate that Anest, the affiant, had personal knowledge of the facts stated therein and would be able to testify to such statements.

The parties did not submit any additional evidence or testimony. On the basis of the pleadings and the affidavit, the trial court granted defendant’s motion and entered summary judgment in favor of defendant. Plaintiffs timely sought reconsideration of the order which the trial court denied. The court did, however, clarify its earlier order and stated that it had entered summary judgment for the defendant based on the following reasons:

“(a) Plaintiff admitted that he was in default *** and that he was two weeks late in depositing additional earnest money; (b) the affidavit attached to plaintiff’s response to the Motion for Summary Judgment does not raise a genuine issue of material fact as to any modification or waiver of contract provision or any estoppel. ***; (c) the contract term requiring additional earnest money by a date certain was not complied with and the time of the essence clause made that term an essential contract term; (d) there was no request in the complaint for return of earnest money.”

Plaintiffs’ timely appeal ensued.

The sole issue presented on appeal is whether the trial court erred in concluding that defendant was entitled to judgment as a matter of law due to plaintiffs’ tardy tender of their additional earnest money and the contractual provision stating time was of the essence of the contract. Our review of the record on appeal leads us to the conclusion that there exists a genuine issue of material fact, namely, whether the parties intended the “time is of the essence” provision as an essential contractual term or, in the alternative, whether defendant waived the time provision. Thus, the trial court granted defendant’s motion for summary judgment in error.

The rules and procedures governing motions for summary judgment are clear and well established in the State of Illinois. Most important is the fact that summary judgment is a drastic and extraordinary remedy and, as such, must be granted only when the movant’s right to judgment as a matter of law is absolutely clear and free from doubt. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240; Allstate Insurance Co. v. Tucker (1989), 178 Ill. App. 3d 809, 812.) The trial court’s task is to determine whether issues of fact which are material to the dispute exist, but not to try those issues (Purtill, 111 Ill. 2d at 240); further, summary judgment should be granted by the trial court only when it is satisfied that the pleadings, affidavits, and other supporting evidence on file present no genuine issue of material fact. (Knief v. Sotos (1989), 181 Ill. App. 3d 959, 962-63; see also Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c).) The trial court is obligated to construe the record before it most strictly against the movant; conversely, the court must view the record in a light most favorable to the nonmovant. (Knief, 181 Ill. App. 3d at 963.) Further, in determining whether a genuine issue of material fact exists, the court must draw all reasonable inferences from the evidence in favor of the nonmovant. Knief, 181 Ill. App. 3d at 963; see also Yakupcin v. Baker (1980), 83 Ill. App. 3d 624, 627.

As we have shown, summary judgment is not a procedural tool intended to be used as a means of weighing conflicting issues of fact. (Allstate Insurance Co., 178 Ill. App. 3d at 812.) Thus, it is stated that a plaintiff opposing a defendant’s motion for summary judgment is not required to prove his case, but must simply establish sufficient facts which could arguably support judgment in his favor. (Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 487; see also Knief, 181 Ill. App. 3d at 963.) In reviewing a trial court’s entry of summary judgment, our task is to ascertain whether the trial court correctly concluded that there were no genuine issues of material fact and, if so, whether judgment for the moving party was correct as a matter of law. International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 571.

Bearing in mind the standard to be applied to motions for summary judgment, we turn to an analysis of the record on appeal. The parties’ contract clearly stated that time was of the essence. The contract further keyed the timing of two important events to the date of the seller’s acceptance, i.e., the buyers’ deposit of additional earnest money was to occur within five days of the seller’s acceptance and the closing within 60 days. In spite of the importance of the date of the seller’s acceptance, defendant, the seller in this cause, failed to fill in the necessary blank. Further, the parties do not agree on this date; plaintiffs claim that defendant accepted the contract on or about November 10, 1988, and defendant variously alleges that he accepted it on November 7 or November 8, 1988. Thus, plaintiffs’ additional deposit was due as late as November 15, or as early as November 12, 1988.

In spite of the conflicting evidence as to defendant’s date of acceptance, plaintiffs admit, and the record establishes, that plaintiffs were late in sending the additional earnest money to defendant. The trial court found that the contractual provision setting a date certain for the payment of the additional earnest money was rendered an essential contractual term by virtue of the “time is of the essence” provision. Thus, the trial court concluded that plaintiffs’ failure to comply with this term resulted in plaintiffs’ material breach of the contract. We do not agree.

First, the parties’ contract did not call for the deposit of the additional earnest money on a “date certain.” Our uncertainty as to the due date of the additional earnest money belies the trial court’s finding in this regard. Further, the court’s inquiry cannot end with the mere recitation of contractual language stating that time is of the essence of the contract. As we have previously noted, the extent to which such a contractual provision should be strictly enforced depends upon the parties’ intentions, which are to be determined both by the language used in the agreement and the circumstances surrounding the agreement. (See Hart v. Lyons (1982), 106 Ill. App. 3d 803, 805; see also Cantrell v. Kruck (1975), 25 Ill. App. 3d 1060, 1064.)

“Even where the contract contains an express clause stipulating that ‘time is of the essence,’ Illinois courts will inquire into the situation of the parties and the underlying circumstances to determine whether a delay in performance resulted in a ‘material breach.’ ” (Chariot Holdings, Ltd. v. Eastmet Corp. (1987), 153 Ill. App. 3d 50, 58.)

Thus, before a court acts to enforce such a provision, it must make a factual determination of the parties’ intentions concerning the provision’s meaning.

From the facts before us, we cannot infer that the parties intended this aspect of their contract to be strictly enforced. Moreover, since defendant failed to specify the date on which he accepted the contract, he cannot insist on a specific date for the deposit of plaintiffs’ additional earnest money or for the closing. In this regard, defendant was not entitled to judgment as a matter of law, and the trial court erred in granting his motion.

Even if we were to conclude that the parties intended the “time is of the essence” provision of their contract to be strictly enforced, an important fact remains in dispute, namely, did the parties agree to waive or modify this provision? Anest’s affidavit suggests that defendant, at the very least, agreed to a modification of or waiver of the explicit terms pertaining to the deposit of plaintiffs’ additional earnest money. We reject defendant’s characterization of Anest’s affidavit as an affidavit which failed to demonstrate the affiant’s personal knowledge of the statements contained therein and his ability to testify to such statements. In his affidavit, Anest swore to the content of a telephone conversation he allegedly had with defendant, to his own attempts to call defendant’s attorney, and to his own act of sending the additional earnest money to defendant on November 22, 1988. Further, Anest denied making certain statements attributed directly to him by defendant. Clearly, these are all matters within the personal knowledge of the affiant to which he would be able to testify. Further, these allegations, which are disputed by the affidavits of defendant and his attorney, raise a genuine issue of material fact concerning the parties’ modification or waiver of certain contractual terms. In this regard, the trial court’s entry of summary judgment for defendant was improper.

For the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT, P.J., concurs.

JUSTICE REINHARD,

dissenting:

As I agree with the entry of summary judgment in favor of defendant, I respectfully dissent. I believe the parties intended to make time of the essence in the contract to purchase real estate. The contract contained an express clause that “time is of the essence.”

While such a clause may not necessarily be conclusive as to whether a delay in performance constitutes a material breach of the contract (see Hart v. Lyons (1982), 106 Ill. App. 3d 803, 805-06), there is, in my opinion, no question of material fact presented here as to whether the parties intended strictly to enforce the “time is of the essence” clause in the contract to purchase real estate.

I am not persuaded that defendant’s failure to fill in the date on which he accepted the contract precludes summary judgment in his favor as a matter of law. Although the date of acceptance is critical in determining the date upon which plaintiffs must have deposited the additional earnest money, defendant’s failure to fill in the date does not constitute a waiver of the “time is of the essence” clause. The date of acceptance could be established by parol evidence. In fact, the date of acceptance in this case was established by the affidavits as November 10, 1988, at the latest. The additional earnest money was paid to defendant on November 22, 1988. Thus, defendant’s failure to date the contract is not a waiver of strict enforcement of the “time is of the essence” clause as the date upon which the earnest money was paid to defendant was clearly outside the five-day provision in the contract.

The majority alternatively posits that even if the parties intended strictly to enforce the “time is of the essence” provision of their contract, there remains a question of material fact as to whether the parties agreed to waive or modify this provision. In this regard, the majority relies on the affidavits of plaintiff, defendant and defendant’s attorney. Upon examining the various affidavits, I disagree that they raise a question of material fact as to whether the parties agreed to waive or modify the “time is of the essence” clause. Although the affidavits address plaintiffs’ request to deliver the additional earnest money to defendant’s attorney rather than defendant, they are devoid of any reference to the five-day time limit contained in the contract. The fact that plaintiffs sought to make alternate arrangements as to whom delivery of the earnest money was to be made does not, without more, give rise to an inference that the parties intended to alter the five-day provision. The affidavits do not raise a question of material fact as to a waiver or modification of the “time is of the essence” provision, and I would affirm the granting of summary judgment in favor of defendant.