author: JUSTICE COOK

text:
    WILLIAM H. NEBERGALL, Plaintiff-Appellant, v. GEORGE RYAN, Secretary of State, Defendant-Appellee.
    Fourth District
    No. 4 — 92—0692
    Opinion filed May 6, 1993.

      John A. Bernardi, of Pekin, for appellant.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Brian F. Barov, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiff William H. Nebergall filed a petition with defendant Secretary of State (Secretary) requesting reinstatement of his full driving privileges. The Secretary denied the petition. On administrative review, the circuit court of Sangamon County affirmed the Secretary’s decision. We affirm.

At the administrative hearing February 6, 1992, plaintiff requested the complete reinstatement of his driving privileges, and indicated specifically that he was not requesting a restricted driving permit. The evidence indicated plaintiff had been a “binge drinker,” which caused his family financial hardship and resulted in a very poor driving record. The Secretary presented evidence showing plaintiff had received 10 moving violations between 1970 and 1982, and that plaintiff had his license suspended twice during that period. Plaintiff testified that several of the incidents were probably alcohol related. Plaintiff was arrested November 7, 1985, for driving under the influence of alcohol (DUI) (111. Rev. Stat. 1991, ch. 951/2, par. 11— 501(aXl)), after a breathalyzer test administered to him indicated a blood-alcohol concentration of .18. This arrest resulted in plaintiff’s conviction for DUI on March 7, 1986, and the revocation of his driver’s license on April 1. Plaintiff testified that as part of the court order he then completed the 28-day alcoholism treatment program at the Proctor Hospital Chemical Dependency Unit. At first he felt the program was “kind of foolish,” but after a while he realized that it was the “best thing that ever happened” to him. After being released from Proctor, plaintiff participated in a six-week aftercare program, attending twice a week. Proctor then recommended Alcoholics Anonymous (AA) meetings. Plaintiff attended AA for two or three weeks, but quit going because he did not feel the meetings were helpful. Plaintiff indicated that although he had decided he was going to quit drinking, others came to the meetings drunk and met for drinks after the meetings at a nearby tavern. He stated: “I don’t have anything against AA. It just didn’t do for me what I felt it was supposed to.”

While in AA Dale Christiensen acted as plaintiff’s sponsor. Plaintiff stated that he still sees Christiensen “at least once a month” at antique car shows, and “AA always seems to come up, you know, how are you doing and all that ***.” Christiensen submitted a letter on behalf of plaintiff which stated that plaintiff had a “great program” of being involved with crafts, family, and helping others, rather than spending time at the tavern drinking.

Plaintiff testified he had not consumed any alcohol since completing the Proctor program, and that he no longer had any desire to drink alcohol. Numerous letters and questionnaires from friends, relatives, and co-workers supported plaintiff’s claim. Plaintiff then testified about the support program he had developed. At first plaintiff raced his truck instead of drinking, but he had now sold the truck and spent most of his extra time helping with his wife’s craft business, doing maintenance work for his family, and engaging in recreational boating with his family. Plaintiff believes he is an alcoholic, but he no longer desires to drink alcohol. He had not discussed his alcohol problem with his wife for four or five years. Plaintiff’s wife testified that plaintiff had never told her that he was an alcoholic, and she does not feel he is an alcoholic because he no longer has the “urge to go drinking.” She added that she felt he could drink alcohol responsibly if he decided to drink, but she would not support his decision to drink alcohol again.

A significant portion of the hearing was testimony regarding the crafts that plaintiff and his wife sell as a business. There was also significant testimony about the difficulties plaintiff and his wife incur because he does not have a driver’s license. In addition, plaintiff introduced evidence of his January 14, 1992, alcohol and drug evaluation. The evaluator classified plaintiff as “Level III — Problematic Use Dependent (High Risk)” (see 92 111. Adm. Code §1001.410, at 6352 (1991)), with the following recommendation: “No treatment needed/ Client in remission/No referral required.”

Based on this evidence, the hearing officer denied plaintiff’s request for reinstatement of full driving privileges concluding that as an ‘ ‘ alcoholic/chemically dependent person” he failed to (1) prove he had established an adequate support system in order to ensure continuous recovery from his alcoholism/chemical dependency, (2) document completion of treatment, (3) demonstrate sufficient inconvenience, and (4) prove he would be a safe driver. The hearing officer specifically found:

“The Petitioner’s assertion that he has developed a support system to help him maintain abstinence was undocumented and unsubstantiated. Petitioner states his support is his craft activities. It is unclear how working on crafts keeps Petitioner from drinking alcohol. However his wife[,] who should be an obvious part of his support, does not believe her husband is an alcoholic and believes if he drank again he could drink responsibly.”

The findings and conclusions of the hearing officer were adopted by the Secretary. The circuit court subsequently affirmed the Secretary’s decision.

Plaintiff contends on appeal the decision of the Secretary is against the manifest weight of the evidence and should be reversed. In an application for reinstatement of driving privileges where the applicant has been classified as “Problematic Use, Dependent” (Level III), the applicant must document (1) abstinence, (2) completion of treatment, (3) an ongoing support/recovery program, and (4) completion of additional treatment recommended in the alcohol evaluation. (92 111. Adm. Code §1001.440(b)(3) (1991).) A “ ‘support/recovery program’ ” is defined as:

“specific activities which a recovering alcoholic/chemically dependent person has incorporated into his/her lifestyle to help support his/her continued abstinence from alcohol and other drugs. This may include, but is not limited to participating in a self-help group (Alcoholics Anonymous, Narcotics Anonymous, etc.), a professional support group, or regularly and frequently engaging in religious activities which have a distinct and positive effect on an individual’s continued abstinence. Any activity and its relationship to the individual’s ability to remain abstinent must be clearly identified and verified by proper documentation independent from an individual’s self report ***.” 92 111. Adm. Code §1001.410, at 6352-53 (1991).

Nothing in the record supports plaintiff’s allegation that the hearing officer’s decision is contrary to the manifest weight of the evidence. While plaintiff presented evidence that he had abstained from alcohol for over six years, abstinence alone is insufficient to warrant the return of driving privileges. (Fitzpatrick v. Edgar (1987), 158 Ill. App. 3d 966, 969, 512 N.E.2d 56, 58; Lamborn v. Edgar (1989), 178 Ill. App. 3d 814, 818-19, 533 N.E.2d 1008, 1011.) Plaintiff’s ongoing support system consisted mostly of assisting his wife with the craft business and helping his family; he stated that it was important “to find something to do with your time.” While we agree that it is helpful for an alcoholic to keep busy so that he will not think about drinking, a satisfactory support program is something that will always be available to the alcoholic, even when work is unavailable or times are difficult. In light of the evidence that plaintiff did not give AA much of a chance, and that his wife does not think he is an alcoholic, the Secretary properly found that plaintiff has not established a satisfactory support system. Plaintiff’s failure to prove his participation in an ongoing support/recovery program is sufficient to deny full reinstatement of his driving privileges. (Christiansen v. Edgar (1991), 209 Ill. App. 3d 36, 47, 567 N.E.2d 696, 703; Youle v. Edgar (1988), 172 Ill. App. 3d 498, 504-05, 526 N.E.2d 894, 898-99.) In addition, the hearing officer also found that plaintiff failed to sufficiently document completion of required treatment. Although plaintiff demonstrated some hardship due to the loss of his driving privileges, hardship is not relevant to an application for reinstatement of full driving privileges, despite the fact the hearing officer found undue hardship was not demonstrated.

Plaintiff additionally contends the administrative hearing process is unfair and impartial because “the process is controlled by the Secretary.” This issue is waived because plaintiff made no claim at the administrative hearing that the hearing officer or the proceeding was unfair. (Fairview Area Citizens Taskforce v. Pollution Control Board (1990), 198 Ill. App. 3d 541, 545, 555 N.E.2d 1178, 1180-81.) On the merits, an administrative hearing is not unfair simply because prosecutorial and judicial functions are combined in one agency. (Scott v. Department of Commerce & Community Affairs (1981), 84 Ill. 2d 42, 55, 416 N.E.2d 1082, 1089; Ballin Drugs, Inc. v. Department of Registration & Education (1988), 166 Ill. App. 3d 520, 528-29, 519 N.E.2d 1151, 1158.) Based on the findings at the administrative hearing, the Secretary must determine whether restoring driving privileges will endanger the public safety or welfare. (Ill. Rev. Stat. 1991, ch. 951/2, par. 6 — 208; Murdy v. Edgar (1984), 103 Ill. 2d 384, 392, 469 N.E.2d 1085, 1088-89.) Here, the Secretary’s decision was based on a finding that plaintiff had not proved he would be a safe and responsible driver. Plaintiff has not presented any evidence, nor do we find any in the record, that the administrative hearing was unfair or not impartial.

Accordingly, we affirm the judgment of the circuit court of Sangamon County affirming the Secretary’s decision to deny plaintiff’s request for full reinstatement of his driving privileges.

Affirmed.

McCULLOUGH and IíNECHT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
      In re MARRIAGE OF STEVE HERKERT, Petitioner-Appellant, and LISA L. HERKERT, n/k/a Lisa L. Fitzpatrick, Respondent-Appellee.
    Fourth District
    No. 4 — 92—0832
    Opinion filed June 17, 1993.

      Bob L. Perica, of Hoefert & Perica, P.C., of Alton, for appellant.
    John W. Guntren, of Jerseyville, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Petitioner Steve Herkert appeals an order of the circuit court of Jersey County granting a motion for court approval to remove minor children from Illinois, under section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (111. Rev. Stat. 1991, ch. 40, par. 609(a)). He also appeals the trial court’s denial of his petition for rule to show cause, requesting the court to hold his ex-wife in contempt for her failure to allow petitioner visitation with his two children. We affirm.

Steve Herkert and Lisa Herkert (now Fitzpatrick) were divorced for the second time on December 11, 1990. They received joint custody of their children, Stephanie (born March 28, 1979) and Christine (born January 6, 1981), with primary custody awarded to Lisa. The dissolution proceedings have been highly antagonistic, with repeated court appearances to enforce particular provisions of the agreement. The parties came to the conclusion that the two children, Stephanie and Christine, were adversely affected by this continuing litigation. As a result, on December 20, 1991, both parties signed an agreement to withdraw all pending motions and resolve future disputes within the terms of the joint-parenting agreement previously entered.

During the hearing in the case at hand, both parties were required to limit testimony to events occurring after this agreement had been signed. The intent was to avoid, to the extent possible, relitigating past behavior of the parties that gave rise to the various disputes. Also as a result of this agreement, a psychologist’s evaluation of the family, ordered prior to December 20, 1991, was not considered in these proceedings. However, the psychologist who prepared this report was called as a witness and her testimony admitted. Facts are as follows.

Lisa had remarried and lived in Jerseyville, Illinois, with her husband, Paul Fitzpatrick. In addition to the Herkert children, they also support a six-year-old girl and a nine-week-old infant. Lisa has been on furlough from her job as a flight attendant with Trans World Airlines (TWA) and is currently unemployed. Her new husband has been searching for a year and has been unable to find full-time employment in the Jerseyville area. He is currently working part-time as a bartender. Lisa estimates they are $12,000 in debt (not including accumulated attorney fees), and her husband testified that his current income is insufficient to meet family expenses.

Lisa was recently recalled to TWA and, in order to avoid falling even further into debt, Lisa' requested she be allowed to move the family to Plain view, New York. If allowed to live in New York, she could resume her position with TWA and be assigned “turnarounds,” round-trip flights that would allow her to return home each night after work to care for her children. Her only alternative is to resume work in St. Louis, where her lack of seniority would force her to be-away from home as much as 20 days out of each month.

Her husband, Paul, currently worked as a bartender, making approximately $200 per week. He received no health or other insurance benefits. His parents had agreed to allow him to move his family into their home in Plainview, New York, where they could live at almost no cost. Furthermore, his father had told him he had a job waiting for him with the Treasurer’s and Ticket Seller’s Union, paying $24 per hour and offering some benefits. The home has a finished basement which includes two bedrooms, a large living room area, and a large area for another bedroom. They would have their own bathroom and full use of the upstairs of the house. Paul’s mother currently worked part-time, but she would be leaving this position to care for the newborn while Lisa is at work.

Steve contends that he would lose his father-daughter bond if the children were allowed to be removed to New York. Steve testified that he loves and cherishes his children, saying they mean everything to him. Unfortunately, both his daughters are currently estranged from their father. At an in camera hearing, the girls testified they would rather not participate in court-ordered visitation with their father. Prior visitations had resulted in . Steve losing his temper, yelling and screaming at the children about how he was going to take their mother back to court and how this time he was going to win. The children were seeing him every other weekend, and this behavior occurred almost every time. Sometimes he would have the children sit down to read articles about men’s rights that he had collected from magazines and newspapers. Afterward, he would talk to them about how he was going to win in court. Both children described his attitude during these spells as violent in nature. He told the children that their mother was in contempt, which led the girls to believe that their mother would go to jail.

When asked how she felt about her dad, Christine responded that she was “kind of mad at him, because *** he wants to just have revenge on mom because she remarried.” Stephanie was asked if she might change her mind about her father if he promised not to raise his voice and talk about divorce matters. She replied that she doubted he would be able to do that.

Stephanie was asked whether her father had done anything to make them afraid, other than raising his voice. She responded he had disciplined them a few years ago by knocking their heads together. On another occasion, he allegedly disciplined Christine on the rear with a razor strap. They also described an occasion when he scared Christine about how easily she could catch the “AIDS” virus. Christine mentioned that if her father drinks, he gets violent. She also mentioned that she was afraid she would get in trouble if she called her mother on the telephone during visitation with her father.

In describing their relationship to their father, the girls told of an incident prior to the divorce where, in the midst of an argument with Lisa, he told Stephanie she might not really be his daughter. He apparently kept asking the girls to pick which parent they wanted to live with, saying he would respect their answer. He then asked which parent they loved the most. They both picked their mother and he apparently replied he did not care what they said, he would still fight for them.

The children both testified they would like to move to New York. They visited Plainview on two prior occasions and described the town as similar to Jerseyville. They said there was a lot to do in Plainview and they thought it would be fun. When asked about the friends she would leave behind, Stephanie said she would miss them but was unconcerned because she would be able to see them every summer during visitation. When asked how they felt about not seeing their father as often, both children replied that it would be okay. Both girls were aware of the fact that they might not be able to change their minds after they moved. The trial court observed that both children are articulate and mature beyond their years. They clearly stated their desire to move to New York.

In October 1991 (prior to the December 20, 1991, agreement), Steve called the girls to discuss visitation. When Christine told him she did not want to go, he allegedly began yelling at her until she was reduced to tears. He demanded to speak with Stephanie, but she refused to come to the phone because she was too upset. Steve allegedly told Christine he was going to have the police come after her. (The record is unclear as to whether this last statement occurred during the same phone conversation.)

On advice from his family counselor, Sherry Kalicak, Steve decided to let the girls decide on their own whether they wanted visitation with him. Each time weekend visitation approached, the girls sent their father a letter telling him they did not want to see him. Steve responded with letters to the girls, telling them how much he loved and missed them. Lisa testified she always told her daughters they should love their father and had never discouraged them from seeing him. She explained to them that it was their decision whether to see their father. Bo.th girls corroborated this testimony.

By this time, the relationship between Steve and Lisa had deteriorated to a point where Steve refused to speak with her on the telephone. When she tried to call, he would, tell her that her calls were being taped and then he would hang up. Every week Steve would allegedly send her a letter threatening to try the matter as a criminal case.

After the December 20, 1991, agreement, Lisa was still under the impression that the girls would not be forced to go on visitation against their will. According to the agreement, Steve was to have visitation for Christmas. Lisa mailed a letter to Steve, explaining the girls still did not wish to see him and gave a phone number where they could be reached at Paul’s parents’ home in New York. Steve was upset because he thought the December 20, 1991, agreement had cleared up the visitation problems. He sent a letter to Lisa on December 27, 1991, stating he would be exercising all visitation rights from that point forward. Unable to locate her own attorney, Lisa spoke with the State’s Attorney, who gave her the impression that she need not send the girls against their will. Consequently, Steve was deprived of his scheduled visitation on January 1 and 6, 1992; weekend visitations of January 3,17, 31, and February 8,1992, were also missed.

Lisa’s failure to provide visitation on these dates forms the basis of Steve’s motion requesting the court hold her in contempt. The trial court found that while Lisa could have done more to encourage or require the children to visit their father, the evidence did not indicate she willfully violated Steve’s rights. During the hearing it was repeatedly made clear to Lisa that from this point forward, the children would be required to participate in visitation regardless of their personal feelings. Lisa agreed to cooperate. According to Lisa’s brief, make-up visitation has accounted for all but one weekend and the Christmas Day visitation previously missed.

Whether, and on what grounds, a party is guilty of contempt rests within the sole discretion of the trial court. Such discretion will not be reversed unless it has been abused or is against the manifest weight of the evidence. (In re Marriage of Betts (1989), 190 Ill. App. 3d 961, 965, 547 N.E.2d 686, 689.) We find no abuse of discretion and will not disturb the trial court’s refusal to find Lisa in contempt.

In removal cases, the paramount question is whether the move is in the best interest of the child. The burden of proof is on the custodial parent. (Ill. Rev. Stat. 1991, ch. 40, par. 609(a).) Each case must be judged on its own unique set of facts. (In re Marriage of Davis (1992), 229 Il. App. 3d 653, 594 N.E.2d 734.) Our supreme court identified five factors to consider in determining whether removal is in the child’s best interest: (1) the likelihood for enhancing the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move; (3) the motives of the noncustodial parent in resisting the move; (4) the visitation rights of the noncustodial parent; and (5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 326-27, 518 N.E.2d 1041, 1045-46.) In addition, the court should be guided by the policy of the Act, as expressed in section 102(7), to “secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.” Ill. Rev. Stat. 1991, ch. 40, par. 102(7).

In regard to the first factor, we find that the proposed move will likely enhance the general quality of life for both the custodial parent and the children. Despite a sincere effort to find employment in the area, the trial court found that respondent and her family have endured an extended period of unemployment or underemployment. The family is heavily in debt, and this debt is almost certain to increase if they are forced to remain in the area. Steve contends that evidence of their new jobs in New York is lacking. We disagree. The trial court had the opportunity to view Lisa’s documentation proving she had been recalled to TWA and it also carefully questioned Paul regarding his expectation of a job through his father. The trial court found this evidence both credible and convincing, and no evidence was presented that would cast doubt on this conclusion.

Evidence of the quality of housing in New York is lacking. Steve would have us believe that Lisa and Paul’s family of six would exchange a spacious home in Illinois for cramped quarters in the basement of a New York home. Paul testified that the finished basement has sufficient bedroom space for the parents and children, its own private bathroom, and they would have full use of the remainder of a spacious house. Again, we have no evidence to refute Lisa and Paul’s claim. Perhaps the most significant fact is that the present home is rented, whereas the home in New York would be rent free.

No evidence was presented regarding the quality of the schools in New York, nor was there any evidence that these schools would be unsatisfactory. Steve contends that the children would receive a better education in Jerseyville, but offers no support for this contention. As a child, Paul attended the same schools that Stephanie and Christine would attend in New York.

Another reason Steve opposes the move is his feeling that Stephanie has problems adapting to different situations. He was also disappointed that the children would forfeit their relationship with their extended family here in Illinois. This family includes their grandparents, plus two aunts and uncles on Steve’s side of the family. In New York, their only extended family would be relatives of Paul.

Perhaps the most significant factor in considering whether the move will enhance the lives of the children is the issue of family counseling. Kalicak, a clinical psychologist with the Macoupin County Mental Health Center, interviewed each member of the family and found that the children had developed a fear of discussing the problems they were having with their father. Kalicak testified:

“[B]ecause they seem to have such a reluctance and an avoidance of being able to even talk with their father, it would make me believe that they will be having some difficulties later on if they are not able *** to communicate and to resolve these issues with him.”

Kalicak concluded that the girls need to be in counseling with their father and, although sporadic counseling is not very effective, it is better than none at all.

The trial court fully recognized the importance of mending the relationship between the father and his daughters. Acknowledging that the distance between the parties will make counseling more difficult, the court ordered that some type counseling should take place during every visitation period in excess of three days. This counseling is to continue until the issues are resolved in the judgment of the counselor. Furthermore, both parties were ordered to obtain individual counseling, with the goal of improving communications between them and reducing misunderstandings and conflict.

A determination of the best interests of the child cannot be reduced to a simple bright-line test. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045.) The trial court faced a significant challenge in weighing the various factors in this case. Both children clearly stated their desire to move and articulated their reasons for wanting to do so. They were aware of the fact that their family was falling behind in its bills and that the move would increase their standard of living. These factors are balanced against the need for these children to restore their relationship with their father.

In contrast to the case at hand, the Eckert decision involved a custodial parent who claimed in her removal petition that the move would enhance her salary and improve the child’s health. Both claims were found to be unsupported. Furthermore, the noncustodial parent enjoyed an exceptionally close relationship to the child. On these facts, the supreme court had little difficulty affirming the trial court’s denial of the removal petition. The facts in the case at hand are not nearly so clear-cut. Accordingly, we cannot say that the trial court’s conclusion was clearly against the manifest weight of the evidence.

The second and third factors outlined in Eckert deal with the motives of the custodial parent in requesting the move and the noncustodial parent in resisting it. The trial court found no reason to suspect the motives of either parent. Lisa’s desire to move to New York appears to be based upon sound financial considerations combined with the necessity of caring for her newborn child, as well as the children at issue in this case. Steve emphasizes that the petition for removal was filed as a response to his own petition to have Lisa cited for contempt. Lisa’s past actions, he argues, provide ample proof that her only motive is to frustrate his visitation privileges and substitute her new husband as the father of Christine and Stephanie. We disagree. The visitation problems appear to be intimately connected to Steve’s own role in the deterioration of his relationship with his daughters. Evidence of Lisa’s severe financial difficulties demonstrates that the proposed move is more than a mere ruse intended to defeat Steve’s visitation rights.

The fourth and fifth factors to consider are the visitation rights of the noncustodial parent and whether a realistic and reasonable visitation schedule can be reached if the move is allowed. Under the joint-parenting agreement originally entered, Steve would have visitation every other weekend plus alternate Federal holidays, totaling seven days each year. He was also entitled to visitation for a total of four weeks every summer. Under the order granting removal, Steve will be entitled to summer visitation from one week after school is out until 10 days before school begins. Lisa will be entitled to a single four-day visitation period within the State of Illinois during this summer visitation. Steve would also have visitation for one week during alternate Christmas and spring vacations, and also for alternate Thanksgiving vacations. Transportation costs for these visitation periods will be borne by Lisa.

Under the new plan, Steve is entitled to visit the children in New York at any time for a period up to four days. Furthermore, he may request weekend vacation in Illinois so long as the requests do not exceed one weekend per month. Steve will be required to pay the transportation costs of these visits, but Lisa has agreed to cooperate in making inexpensive flight arrangements for the children through her employer, TWA.

Steve contends that the visitation schedule represents a drastic reduction from the terms of the original joint custody order. Without specific dates regarding the school term, we have no way of computing the difference in the actual number of days under the two orders. Clearly, Steve’s visitation over the summer months will be extended in comparison to the prior scheme, but at the cost of giving up his regular visitation every other weekend. Although the new scheme appears to reduce Steve’s visitation rights, the total number of days spent with the children could easily increase over the original scheme, depending upon how often Steve visits New York or has the children visit him in Illinois. Steve contends he could never afford to visit the children in New York on a frequent basis. However, the trial court heard testimony that the children would be able to fly to Illinois at nearly no cost, as a result of Lisa’s employment.

Our supreme court has ruled that a reasonable visitation schedule is one that will preserve and foster the child’s relationship with the noncustodial parent. When a parent has assiduously exercised his visitation rights, a court should be loath to interfere with it by permitting removal of the children for frivolous, unpersuasive, or inadequate reasons. (Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1046.) In the case before us, we have a father who has diligently exercised his visitation rights and clearly cherishes his attachment to his children, even though his comments to the children during visitation were at times improper and unwise. However, the reasons for seeking the move to New York are neither frivolous nor inadequate.

We are mindful of the fact that the actual number of days spent with the noncustodial parent can be, at times, less relevant than the interval between visits. This is especially significant in the case at hand, where professional counseling is an essential element in solving various emotional problems resulting from these proceedings. The fact that the children’s estrangement from their father is due to his own behavior, while certainly relevant, is not determinative. The ability to assign blame to one parent or another does little to resolve the issue of securing the maximum involvement and cooperation of both parents in the emotional well-being of the children.

If the custodial parent establishes a good, sincere reason for wanting to move to another jurisdiction, the trial court should consider all relevant factors in determining the best interest of the child. This determination should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. (Eckert, 119 Ill. 2d at 328, 518 N.E.2d at 1046.) We find the trial court’s order to be supported by the evidence and no manifest injustice has occurred.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


author: JUSTICE DOYLE

text:
    DAVID M. LUCIANO, Plaintiff-Appellant, v. WAUBONSEE COMMUNITY COLLEGE, Defendant (Tammy Abell, Indiv. and as Agent for Waubonsee Community College, Defendant-Appellee).
    Second District
    No. 2 — 92—1095
    Opinion filed June 3, 1993.

      David M. Luciano, of Aurora, appellant pro se.

    Gary K. Mickey, Steven A. Andersson, and Bernard K. Weiler, all of Mickey, Wilson, Weiler & Renzi, P.C., of Aurora, for appellee Tammy Abell.
    William C. Murphy, of Murphy, Hupp, Foote, Mielke & Kinnally, of Aurora, for Waubonsee Community College.
   JUSTICE DOYLE

delivered the opinion of the court:

Plaintiff, David M. Luciano, filed a 12-count complaint in the circuit court of Kane County against defendants, Waubonsee Community College and Tammy Abell, alleging malicious prosecution, false imprisonment and negligence. Following a dismissal with prejudice of the six counts directed to Waubonsee and a dismissal with leave to amend the remaining six counts against Tammy Abell, plaintiff filed an amended six-count complaint solely against Abell alleging malicious prosecution, false imprisonment and negligence. Following a subsequent dismissal with prejudice of plaintiff’s amended complaint, vacatin’ of the dismissal and reinstatement of his complaint, and withdrawal of counsel, plaintiff, pro se, among other things, responded to Abell’s section 2 — 619 motion to dismiss (see Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619) and moved for leave to file a second amended complaint. Plaintiff appeals from the order of the circuit court granting Abell’s motion to dismiss plaintiff’s amended complaint with prejudice and denying plaintiff leave to file a second amended complaint.

Plaintiff raises the following issues on appeal: (1) whether the trial court erred in its determination that Abell’s employer, Waubonsee, a community college, was a “local public entity” under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 8 — 101); (2) whether a question of fact was raised as to Abell’s status as an employee of Waubonsee; (3) whether plaintiff’s allegations of wilful and wanton conduct precluded Abell’s availing herself of the more restrictive statute of limitations in the Tort Immunity Act; (4) whether plaintiff raised questions of fact as to the applicability of the statute of limitations period in the Tort Immunity Act; (5) whether the trial court erred in denying plaintiff’s motion for leave to amend his complaint; and (6) whether the trial court was prejudiced against plaintiff because of his pro se status.

Taking only well-pleaded facts as true for the purposes of a section 2 — 619 motion to dismiss (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill. 2d 540, 545), plaintiff’s amended complaint alleged the following salient facts. On or about October 28, 1989, plaintiff was a guest of Waubonsee on its campus located in Sugar Grove, Illinois. On that date, plaintiff was arrested by Abell, detained in a jail cell for an “extended period of time,” and charged with criminal battery and trespass. Plaintiff alleged that he was not guilty of the charges. The complaint further alleged that plaintiff was ordered by Abell to leave the premises for no reason, and as he attempted to leave the grounds of the college on his motorcycle, Abell struck plaintiff and his motorcycle with a motor vehicle causing personal injury and property damage.

As a result of the criminal charges, defendant appeared in the circuit court of Kane County. On or about January 31, 1990, the charges were dismissed. Tammy Abell failed to appear in court on three separate occasions.

On October 25, 1991, plaintiff filed a 12-count complaint against Waubonsee Community College and Tammy Abell, individually and as agent for Waubonsee Community College. The complaint alleged essentially three theories of recovery: malicious prosecution, false imprisonment and negligence. Waubonsee and Abell both filed section 2 — 619 motions to dismiss (111. Rev. Stat. 1991, ch. 110, par. 2 — 619) asserting that Abell was an employee of a local public entity and based upon a filing date of October 25, 1991, which was more than one year following the date of injury, October 28, 1989, plaintiff’s action was time barred under section 8 — 101 of the Tort Immunity Act (111. Rev. Stat. 1991, ch. 85, par. 8 — 101). The first six counts directed against Waubonsee were dismissed with prejudice. The remaining counts directed against Abell were dismissed on the grounds that they were time barred under the Tort Immunity Act. Plaintiff was allowed leave to amend his complaint as against Abell.

In his amended complaint directed solely against Abell, plaintiff set forth essentially identical allegations as in his original complaint and sought recovery on the same three theories: malicious prosecution, false imprisonment and negligence. Abell again filed a section 2 — 619 motion to dismiss asserting that plaintiff’s amended complaint was time barred under section 8 — 101 of the Tort Immunity Act. Attached to Abell’s motion to dismiss was an affidavit which recited the following facts. On October 28, 1988, Abell was employed by the college as a police cadet, and at the time alleged in plaintiff’s complaint she was in uniform and on duty. At the time of the alleged incident, the college was closed. Abell encountered plaintiff inside one of the closed campus buildings. She informed plaintiff that the campus was closed and that he should leave. After returning to her car, Abell called the Sugar Grove police and arranged to meet them at the front of the campus. Subsequently, plaintiff pulled Abell from her vehicle and attacked her. Shortly thereafter, the Sugar Grove police arrived. Abell further averred that all of her actions were in the course of her employment and performed pursuant to her duties as a police cadet for the college.

Shortly following the filing of defendant’s motion to dismiss, plaintiff, acting pro se, caused to be issued three subpoenas duces tecum directed to the Kane County State’s Attorney and two officials of Waubonsee. The subpoena directed to the State’s Attorney requested various documents and notes related to plaintiff’s arrest; the subpoenas directed to the college officials requested documents pertaining to the college’s policies and procedures with respect to the hiring and retention of police cadets, the names and titles of persons having knowledge of the incident on October 28, information about the hiring, retention, training and work history of Abell, and any information she may have reported to the college about the October 28 incident. Plaintiff further requested documents containing rules and procedures regarding the operation of the college premises; records of arrests and civil filings related to false arrest, false imprisonment, malicious prosecution or abuse of process; and the policies and procedures employed where an employee obtains employment by fraudulent means.

Abell subsequently filed a motion to quash the subpoenas directed to the college officials. The motion was noticed up for May 28, 1992. Contained in the record is an order of the circuit court dated May 28, 1993, which purports, however, to dismiss with prejudice plaintiff’s amended complaint for failure to file his complaint within the time period allowed under the Tort Immunity Act. The order further stated that plaintiff appeared, but plaintiff’s counsel was absent from the hearing. The order made no mention of the motion to quash.

Approximately 12 days later, plaintiff’s attorney filed a motion to vacate the order of dismissal, alleging inadvertent error. Plaintiff’s attorney also filed a motion to withdraw as counsel at the request of plaintiff. The trial court granted the motion to vacate and reinstated plaintiff’s amended complaint. The court further granted counsel’s motion to withdraw.

Plaintiff, now proceeding pro se, filed a response to Abell’s motion to dismiss and a separate response to the motion to quash the subpoenas. In addition, plaintiff filed a motion for leave to file a second amended complaint. Plaintiff attached no proposed amendment or affidavit establishing additional factual matters.

In his response to Abell’s motion to dismiss, plaintiff contended that his cause of action against Abell was not time barred under the Tort Immunity Act because the college was not a “local public entity” and that Abell’s conduct was wilful and wanton thus depriving her of immunity under the Tort Immunity Act. Plaintiff’s response also sought to refute the averments of Abell’s affidavit which was attached to her motion to dismiss. In support of his response, plaintiff asserted that the police reports, photographs and Abell’s statement to police and an unnamed witness would corroborate his factual refutations. Attached to his response was an affidavit wherein plaintiff averred that he “believed” Abell falsified documents in conjunction with obtaining her position as a student cadet, that information contained in the State’s Attorney’s office will contradict Abell’s affidavit, that information requested in the subpoenas directed to the college officials would also corroborate additional torts he wished to allege in a second amended complaint, that he had not yet acquired access to the required information, and that “due to unrelated circumstances” he was unable to attach any exhibits.

Following a hearing, the trial court granted Abell’s motion to dismiss with prejudice and denied plaintiff’s motion for leave to file a second amended complaint. The trial court determined that it was uncontroverted that Abell was an employee on duty at the college at the time of the occurrence giving rise to the complaint. The court further determined that the college was a local public entity within the Tort Immunity Act. Consequently, Abell’s activity was within the purview of the Tort Immunity Act, and, as such, plaintiff’s cause of action was time barred under section 8 — 101. The court further held that because plaintiff failed to present a proposed second amended complaint and there was no indication that the defect could be cured by subsequent amendment, plaintiff’s motion for leave to file a second amended complaint was denied. Plaintiff then filed this timely appeal.

The first issue raised on appeal is whether Waubonsee was a “local public entity,” within the definitional dictates of the Tort Immunity Act. As defined at the time of the occurrence leading to plaintiff’s filing his lawsuit, section 1 — 206 of the Tort Immunity Act provided, in relevant part:

“§1 — 206. ‘Local Public Entity’ includes a county, township, municipality, municipal corporation, school district, school board, forest preserve district, park district, fire protection district, sanitary district, and all other local governmental bodies.” (Emphasis added.) (111. Rev. Stat. 1987, ch. 85, par. 1— 206.)

Section 1 — 206 was subsequently amended by Public Act 86 — 292, effective January 1, 1990, expressly to include community college districts and college boards within the definition of local public entity. (See HI. Rev. Stat. 1989, ch. 85, par. 1 — 206.) Plaintiff contends that the failure expressly to include “community college district and community college board” within section 1 — 206, as it read on the date of the occurrence (October 28, 1989), demonstrates that Waubonsee was not a local public entity within the dictates of the Tort Immunity Act. Abell advances the dispositive argument that Waubonsee, as a community college, was a local governmental body within the statutory definition as it existed in 1989.

Hlinois courts have long recognized that various public entities, although not expressly identified in the statute, are within the definition of “local public entity.” See, e.g., Grady v. Bi-State Development Agency (1986), 151 Ill. App. 3d 748, 750 (interstate governmental agency); LeSanche v. North Suburban Mass Transit District (1985), 142 Ill. App. 3d 394, 395 (mass transit agency); Sappington v. Sparta Municipal Hospital District (1969), 106 Ill. App. 2d 255, 256-57 (hospital district).

A review of the statute governing the operation of entities like Waubonsee reveals, in part, that community college districts are created by petitioning the State Board to call for an election for the purpose of voting for or against the establishment of a community college district. (111. Rev. Stat. 1989, ch. 122, par. 103 — 1.) The board of trustees is publicly elected in accordance with the general election laws of the State (111. Rev. Stat. 1989, ch. 122, pars. 103 — 7), and the district board of trustees is expressly determined to be a body politic and corporate (111. Rev. Stat. 1989, ch. 122, par. 103 — 11). With respect to finances, the costs of referenda are supported by public funds (111. Rev. Stat. 1989, ch. 122, par. 103 — 4.1), and the board, with the consent of the city council, may incur indebtedness and float bond issues for the purpose of establishing a cash working fund (111. Rev. Stat. 1989, ch. 122, par. 103 — 33.2). Additionally, each district is empowered to levy taxes to meet debt obligations (111. Rev. Stat. 1991, ch. 122, par. 103 — 33.4) and for the operation and maintenance of facilities (111. Rev. Stat. 1989, ch. 122, par. 103 — 14).

Where a particular entity, such as Waubonsee, must petition another public entity to hold public elections as a necessary antecedent to its creation, requires public elections of its governing board of trustees and is financed by taxes and other public funds, we are inexorably led to the conclusion that Waubonsee was an “other governmental body” within the definition of local public entity as recited in the earlier version of the statute. Moreover, we are unpersuaded by plaintiff’s argument that the decision not to designate expressly such an entity in the previous version evinces the legislature’s intent to exclude community colleges from the meaning of local public entity. If we were to accept this contention, it would render the phrase “other governmental body” meaningless. Whenever possible, every word, clause and section of a statute should be attributed some reasonable meaning, and an interpretation that renders any part of the statute superfluous must be avoided. (Roser v. Anderson (1991), 222 Ill. App. 3d 1071, 1075.) Accordingly, we hold that Waubonsee was properly determined to be a local public entity within the dictates of the Tort Immunity Act.

The next issue raised is whether the statute of limitations in section 8 — 101 of the Tort Immunity Act (111. Rev. Stat. 1989, ch. 85, par. 8 — 101) barred plaintiff’s cause of action against Abell. Plaintiff contends that (1) because Abell was employed by fraudulent means, a question of fact existed as to her status as an employee of Waubonsee; (2) his allegations of wilful and wanton conduct removed his claim from application of section 8 — 101; and (3) the trial court erred in granting defendant’s motion to dismiss because it did not appear that defendant’s statute of limitations defense was unequivocally well founded.

A review of plaintiff’s amended complaint reveals that he did not allege that Abell was an employee of Waubonsee at the time of the alleged incident giving rise to his cause of action. In an affidavit attached to her section 2 — 619 motion to dismiss, Abell averred that on October 28, 1989, she was employed by Waubonsee Community College and at the time of the incident alleged in plaintiff’s complaint, she was in uniform working her shift as a cadet on college property. In an affidavit attached to his response to Abell’s motion to dismiss, plaintiff stated he “believed” Abell falsified documents to obtain her position at Waubonsee and that documents that he had not yet obtained pursuant to his earlier subpoena duces tecum would contradict Abell’s affidavit and establish additional torts he wished to allege in a second amended complaint.

Well-alleged facts within an affidavit must be taken as true when they are not contradicted by counteraffidavits. (Lamkin v. Towner (1990), 138 Ill. 2d 510, 532.) Supreme Court Rule 191 requires that affidavits must be made on personal knowledge, set forth with particularity the facts upon which the claim, counterclaim or defense is based, and shall not consist of conclusions but of facts admissible in evidence. (134 Ill. 2d R. 191.) As a logical consequence of these two rules, it follows that where the averments made in a plaintiff’s affidavit are premised upon information and belief, they are insufficient as against positive averments of facts made in an opposing defendant’s affidavit. Cf. Millsaps v. Bankers Life Co. (1976), 35 Ill. App. 3d 735, 741 (affidavit filed in support of complaint based on information and belief insufficient as against defendant’s uncontradicted affidavit filed in conjunction with section 2 — 619 motion to dismiss).

Plaintiff’s affidavit, which was premised solely on a belief as to the circumstances surrounding Abell’s employment and conjecture as to information he hoped to retrieve from the Kane County State’s Attorney and the college officials, was insufficient to rebut the positive averments of facts contained within Abell’s affidavit. Taking the uncontradicted averments of positive facts in Abell’s affidavit as true, we conclude that no question of fact existed as to Abell’s status as an employee at the time of the alleged incident. Furthermore, we note parenthetically that even if Abell had obtained employment by fraudulent means, it would not have changed the fact of her employment at the time of the alleged incident.

Having determined that Abell was an employee of a local public entity within the definition of the Tort Immunity Act, the pivotal consideration becomes whether plaintiff’s allegations of wilful and wanton conduct deprived Abell of the benefit of the more restrictive statute of limitations period contained within the Tort Immunity Act. Section 8 — 101 provides:

“§8 — 101. No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For the purposes of this Article, the term ‘civil action’ includes any action, whether based upon the common law or statutes or Constitution of this State.” (Emphasis added.) 111. Rev. Stat. 1989, ch. 85, par. 8 — 101.

In Panko v. County of Cook (1976), 42 Ill. App. 3d 912, a battery action brought against a county and two of its employees, the court rejected plaintiff’s contention that the notice requirements contained in sections 8 — 102 (111. Rev. Stat. 1971, ch. 85, pars. 8 — 102 (repealed by Pub. Act 84 — 1431, art. I, §3, eff. November 25, 1986)) and 8 — 103 (HI. Rev. Stat. 1971, ch. 85, par. 8 — 103) of the Tort Immunity Act were solely applicable to accidental injuries. The court determined that the definition of the word “injury,” as referred to in those sections, did not solely relegate their applicability to accidental encounters but were instead to be applied to any tortious injury to a person or property. Panko, 42 Ill. App. 3d at 916-17.

In Johnson v. King (1977), 55 Ill. App. 3d 336, the plaintiffs alleged that the defendant police officers forced their way into their home and maliciously, wilfully and wantonly beat plaintiffs. On appeal, the court rejected plaintiffs’ contention that the notice provisions of the Tort Immunity Act did not apply to persons charged with wilful and wanton conduct. The court reasoned that there was a distinction between the proof requirements and notice requirements of the Tort Immunity Act and that the purpose of the notice provisions was to promote early investigation and prompt settlement of claims. The court further observed that the notice requirements aided governmental entities in the determination of budgets and encouraged early investigation at a time when witnesses were more readily available and conditions had not materially changed.

Although Panko and Johnson did not address the identical statutory provision in question here, we nevertheless find those decisions persuasive in reaching the conclusion that allegations of wilful and wanton conduct do not deprive a local public entity and its employees of the benefit of the shorter limitations period provided in section 8— 101. Our supreme court has expressly recognized that the policy concerns underlying the notice provisions of the Tort Immunity Act are identical to those implicit in section 8 — 101. (See Saragusa v. City of Chicago (1976), 63 Ill. 2d 288, 292.) Moreover, the policy concerns expressed in Johnson, Panko and Saragusa are consistent with the basic policies underlying statutes of limitation generally, which are to afford a defendant a fair opportunity to investigate the circumstances upon which liability against him is predicated while the facts are accessible (Segal v. Sacco (1990), 136 Ill. 2d 282, 286) and to discourage delay in bringing available claims (Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129,132).

Plaintiff’s amended complaint alleged that the incident giving rise to his action occurred on October 28, 1989, and that on January 31, 1990, the criminal charges filed against him were dismissed. Plaintiff filed his original complaint against Waubonsee and Abell on October 25, 1991, approximately two years after the accrual of his causés of action for negligence and false imprisonment (see generally Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 171) and approximately l3/* years after his cause of action for malicious prosecution accrued (see Stanger v. Felix (1981), 97 Ill. App. 3d 585, 586-87). Taking plaintiff’s allegations as true and applying section 8 — 101, we conclude that the trial court correctly ruled that plaintiff’s action against Abell was time barred because his action was instituted after the expiration of the one-year statutory filing requirement. (See 111. Rev. Stat. 1989, ch. 85, par. 8 — 101.) Moreover, based upon the foregoing, we find no merit to plaintiff’s argument that the trial court erred because it was not apparent that defendant’s section 8 — 101 defense was unequivocally well founded. To the contrary, defendant’s statute of limitations defense was well founded on existing precedent and statutes.

Plaintiff next contends that the trial court erred in denying his motion for leave to amend his complaint. Abell responds that the trial court did not abuse its discretion where plaintiff failed to proffer a proposed amendment that would cure his defective pleading.

Although courts in Illinois are encouraged to freely and liberally allow the amendment of pleadings (Lee v. Chicago Transit Authority (1992), 152 Ill. 2d 432, 467), the right to amend is not absolute and unlimited (Lee, 152 Ill. 2d at 467). It remains within the sound discretion of the trial court whether to grant leave to amend, and absent an abuse of that discretion, its decision will not be disturbed on review. (Lee, 152 Ill. 2d at 467.) In determining whether the trial court abused its discretion, a reviewing court should consider (1) whether the proposed amendment would cure the defective pleading; (2) whether the other parties would sustain prejudice or surprise by virtue of the proposed amendment; (3) whether the proposed amendment is timely; and (4) whether previous opportunities to amend the pleading could be identified. Loyola Academy v. S & S Roof Maintenance, Inc. (1992), 146 Ill. 2d 263, 273.

At the hearing to vacate the trial court’s earlier dismissal of plaintiff’s complaint and plaintiff’s counsel’s motion to withdraw, plaintiff was expressly admonished concerning the risks of proceeding pro se and that the court would require plaintiff to adhere to the applicable rules of law and evidence. At the hearing on Abell’s motion to dismiss, the trial court questioned plaintiff about his adding a motion to amend his complaint to his response to Abell’s motion to dismiss. The gist of plaintiff’s answer was that he thought it more efficient, if he could bring up the issue of amendment at the same time. The trial court again reminded plaintiff of its earlier admonishment and explained to plaintiff that it was necessary to provide formal notice of his motion to opposing counsel and that he should have attached a copy of the proposed amendment to his motion for leave to amend. Nevertheless, the trial court allowed plaintiff orally to explain the basis of his proposed amendment. Plaintiff indicated that he wished to add additional counts: “abusive” process and malicious prosecution. He further indicated that he wanted to “make sure” that he alleged all the facts connected with the alleged incident.

We find no abuse of discretion. Plaintiff did not tender to the trial court a copy of his proposed amendment after being admonished by the trial court of the risks inherent in self-representation, and there is nothing in plaintiff’s oral explanations at the hearing on Abell’s motion to suggest that any amendment would have cured the fundamental defect in his claim. Moreover, plaintiff’s suggestion in his brief that the possibility of a section 1983 action (see 42 U.S.C. §1983 (1992)) would have allowed him to amend his complaint to state a cause of action was never raised before the trial court. Accordingly, that argument is waived on appeal. 134 Ill. 2d R. 341(e)(7).

Finally, plaintiff contends that the trial court was prejudiced against him for having assumed his own representation. In light of plaintiff’s failure to move to substitute judges on the basis of prejudice, the trial court’s express admonishment of plaintiff as to the risks inherent in self-representation, the trial court’s willingness to hear plaintiff’s reasons for requesting leave to amend in the absence of compliance with procedural formalities, and the lack of any support in the record to substantiate a claim of judicial prejudice, we find this contention completely without merit.

For the foregoing reasons, we affirm the order of the circuit court of Kane County dismissing with prejudice plaintiff’s amended complaint and denying his motion for leave to amend.

Affirmed.

INGLIS, P.J., and GEIGER, J., concur.