author: PRESIDING JUSTICE UNVERZAGT

text:
    MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. JACKSON, Director, Department of Employment Security, DefendantAppellee.—MARILYN PLACKO, d/b/a Maids on Time, Plaintiff-Appellant, v. SALLY A. WARD, Director, Department of Employment Security, et al., Defendants-Appellees.
    Second District
    Nos. 2—89—0819, 2—89—0882 cons.
    Opinion filed April 25, 1990.

      Law Office of Glenn R. Gaffney, of Glendale Heights (Glenn R. Gaffney, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert G. Toews, Assistant Attorney General, of Chicago, and Colleen M. McLaughlin, Assistant State’s Attorney, of Wheaton, of counsel), for appellees.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

In cause No. 2 — 89—0882, plaintiff, Marilyn Placko, doing business as Maids on Time, appeals from the trial court’s order in an administrative review hearing held in the circuit court of Du Page County, affirming the decision of the Board of Review of the Department of Employment Security (the Department) in favor of defendant, Laura Trejo. The Board’s decision affirmed the earlier decision by a hearing referee for the Department. The referee had dismissed plaintiff’s appeal from a claims adjudicator’s determination that Trejo was entitled to the payment of unemployment benefits from plaintiff. The referee’s dismissal resulted from plaintiff’s failure to appear at a hearing on her appeal.

A review of the record reveals the following facts. Plaintiff owns and operates a maid cleaning referral service, Maids on Time. Defendant, Laura Trejo, had performed cleaning services for customers referred by plaintiff. On or about January 24, 1987, Trejo filed a claim for unemployment benefits with the Department pursuant to section 700 of “An Act in relation to a system of unemployment insurance” (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 450), alleging that she was employed by plaintiff and that she had received wages from plaintiff.

On or about January 31, 1987, plaintiff protested the payment of unemployment benefits to Trejo on the basis that Trejo was never an employee of plaintiff and, therefore, not eligible for benefits. On February 4, 1987, the Department acknowledged receipt of plaintiff’s protest and found it to be sufficient. On February 13, 1987, a claims adjudicator for the Department found that Trejo was entitled to benefits because (1) plaintiff, as employer, supplied the work for Trejo, and (2) Trejo was under plaintiff’s control. Plaintiff filed an appeal from the adjudicator’s decision. According to plaintiff, she received no further communication from the Department until she received the April 3, 1987, decision of the referee hearing plaintiff’s appeal.

The record contains a notice of a telephone hearing accompanied by a sheet of instructions regarding the hearing. Both documents direct the recipient of the notice to contact the hearing referee and to provide him with the telephone number at which the recipient can be reached at 3 p.m. on March 3, 1987, the scheduled time for the hearing. Plaintiff did not provide the referee with a telephone number. The record also contains a copy of a certificate of mailing, dated February 20, 1987, and stamped signed by the hearing referee, James Tolone. In the space on the certificate designed for the insertion of an addressee, no name or address appears. Rather, the words “Trejo” and “Maids” are handwritten in the space. Based on plaintiff’s failure to appear at the scheduled telephone hearing, the referee affirmed the adjudicator’s prior decision in favor of Trejo. After receiving the referee’s decision, plaintiff filed an appeal with the Department’s Board of Review (the Board) on April 29, 1987.

On June 12, 1987, plaintiff’s attorney requested a copy of the transcript of proceedings before the referee. On July 7, 1987, plaintiff received a letter from the executive director of the Board informing her that the Board “will review the case record and issue its decision based on the merits of the case.” Additionally, plaintiff was informed that she could submit additional evidence or written arguments within the following 30 days. In response, plaintiff filed an affidavit stating, in essence, that she was a private employment agency and that Trejo was an independent contractor and not plaintiff’s employee.

On October 16, 1987, plaintiff received the Board’s decision affirming the hearing referee’s dismissal of plaintiff’s appeal. The Board found that plaintiff had received notice of the March 3, 1987, telephone hearing but had failed to supply a telephone number at which she could be reached for the hearing. Because plaintiff had not made use of the opportunity to present evidence at the scheduled hearing and had not shown any acceptable reason for her failure to do so, the Board concluded it had no basis for setting aside the decision of the referee.

On November 18, 1987, plaintiff filed a complaint for administrative review in the circuit court of Du Page County. In her complaint plaintiff stated that judicial review of the Board’s decision was necessary because she had never received a “full and fair opportunity to be heard.” Additionally, plaintiff asserted that she had been misled by the representation made by the Board’s executive director that additional evidence would be considered in deciding the case “on the merits,” that the Board’s decision was contrary to the manifest weight of the evidence, and that the Department should be enjoined from seeking contributions for unemployment insurance from plaintiff since the Department of Labor had previously determined and required that plaintiff be licensed as a “private employment agency.”

On December 14, 1989, the cause came before the trial court for hearing. By preliminary motions, defendant, Laura Trejo, was adjudicated to be in default, and the complaint was confessed against her. Defendant, Gwen R. Martin, Director of the Department of Labor, was dismissed as an unnecessary party. The court then heard argument of counsel and ruled in favor of the remaining defendants, the Board and Sally A. Ward, Director of the Department.

Plaintiff filed a motion for rehearing and to vacate the judgment. Additionally, plaintiff filed a motion for findings of fact and conclusions of law. Both motions were denied on July 18, 1989. This appeal ensued.

Plaintiff subsequently moved to consolidate the instant case, No. 2 — 89—0882 (Placko I), with No. 2 — 89—0819 (Placko II). In Placko II, plaintiff appeals from the trial court’s order in another administrative review hearing held before the same judge in the circuit court of Du Page County, affirming the decision of defendant, Sally A. Jackson (formerly Sally A. Ward), Director of the Department.

In Placko II plaintiff had received notice on August 3, 1987, of her contribution rate, as an employer, for unemployment insurance benefits under the Act. (Ill. Rev. Stat. 1985, ch. 48, par. 576.1.) Plaintiff immediately submitted a protest to the Department based on the fact she was not liable for any contributions, or payments for benefits, since she was not an “employer” as defined by the Act.

On November 16, 1987, an order was issued by the Director of the Department denying plaintiffs application for revision of “benefit wages.” Referring to the fact that it had been previously determined at the April 3, 1987, administrative hearing in Placko I that Laura Trejo’s remuneration constituted wages, the adjudicator found the wage charge (based on the wages subject to contribution) in Placko II to be valid. On November 25, 1987, plaintiff protested this order and requested a hearing.

As a part of her protest, plaintiff enclosed a copy of the complaint for administrative review in Placko I and her affidavit. On March 2, 1988, a representative of the Director of the Department issued a report finding that plaintiff had an appeal pending in the circuit court of Du Page County from the decision made by the Department’s Board of Review in Placko I and that no relief could be granted plaintiff in Placko II until a decision was rendered from the pending appeal in Placko I. The representative stated that if the decision in Placko I was favorable to plaintiff, appropriate action would be taken to adjust plaintiff’s statement of benefit wages. Additionally, the representative found plaintiff’s petition for relief to be “insufficient.” The representative recommended that the November 16, 1987, order, denying plaintiff’s application for revision of benefit wages, should be affirmed.

In timely fashion, plaintiff filed her objections to the representative’s report and attached the complaint for administrative review in Placko I and her affidavit. On April 29, 1988, the Department’s Director issued her decision, affirming the representative’s report and the adjudicator’s order. In her decision, the Director stated that plaintiff could not be granted relief from the benefit wage charges unless the finding of wages under appeal in Placko I was set aside.

On June 2, 1988, plaintiff filed her complaint for administrative review in the circuit court of Du Page County, seeking relief from the Director’s decision and enjoining the Department from pursuing the collection of contributions for unemployment insurance from plaintiff. On July 18,1989, the circuit court affirmed the Director’s decision.

On appeal, plaintiff raises identical issues in Placko I and Placko II. Plaintiff contends: (1) that she is not an “employer” or “employing unit” under the Act; (2) that she need not prove inclusion within the independent contractor’s provision of the Act to be excluded from the Act; (3) that defendants should be estopped from seeking the payment of unemployment contributions from her; and (4) that she was denied due process.

We address ourselves to the issue which we believe is determinative here, i.e., that plaintiff was denied due process. Specifically, plaintiff maintains that she never received notice of the telephone hearing and, therefore, did not receive an opportunity to be heard. Consequently, the Board’s decision against her, based on her failure to appear at the hearing before the referee, constitutes an abuse of discretion.

In Placko I defendant Laura Trejo filed a claim for unemployment benefits with the Department pursuant to section 700 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 450), alleging that she was employed by plaintiff and had received wages from plaintiff. Plaintiff protested payment of unemployment benefits to Trejo on the basis that Trejo was not plaintiff’s employee and, therefore, not entitled to benefits. A claims adjudicator for the Department acknowledged receipt of plaintiff’s protest and deemed it to be sufficient. Subsequently, the adjudicator made a finding that Trejo was entitled to unemployment benefits. On the date of that decision, plaintiff filed an appeal of the adjudicator’s decision.

Plaintiff contends that she received no further communication from the Department until she received the Department’s April 3, 1987, decision from the hearing referee. That decision in favor of Trejo and against plaintiff was based on plaintiff’s failure to appear at a telephone hearing held on March 3, 1987. The decision stated that section 801 of the Act provided:

“The failure of the claimant or other party to appear at a hearing, unless he is the appellant, shall not preclude a decision in his favor if, on the basis of all the information in the record, he is entitled to such decision.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 471.)

Under the terms of this section, the failure of plaintiff, as appellant, to appear at the hearing before the referee precluded any decision in her favor. Plaintiff, however, maintains that she never received notice of the telephone hearing before the referee.

As its answer to plaintiff’s complaint for administrative review, defendants filed a certified copy of the administrative proceedings sought to be reviewed, including evidence and the findings and decisions made by the defendants. Included as part of defendants’ answer was a copy of a “Certificate of Mailing” and a copy of the “NOTICE OF A TELEPHONE HEARING.” Defendants rely on the certificate and the notice to argue that plaintiff did receive notice of the telephone hearing. Although mailing of the notice may be some evidence that it was received a few days later by the individual to whom it was mailed (Angelo v. Board of Review, Department of Labor (1978), 58 Ill. App. 3d 50, 52), we believe the record is insufficient to prove that the notice was mailed to plaintiff.

The certificate of mailing in question which appears on page 9 of defendants’ answer states:

“I hereby certify that the original document, of which the attached is a true and correct copy, was placed in a postage paid envelope addressed to: ***.”

In the space designated for the name and address of the addressee there appears only the cryptic notations, “Trejo” and “Maids.” No address appears for either party. The date of mailing is stamped in the appropriate space as “FEB 20 1987.” The signature of the party who signed the certificate is also stamped in and reads “James Tolone.” No document to which this certificate would refer appears directly before or after the certificate. Rather, the only document to which the certificate could possibly refer, because of the fact it also is stamped with the name “James Tolone,” is the “NOTICE OF A TELEPHONE HEARING,” which appears on page 24 of defendants’ answer. However, no date of issuance appears in the space provided at the bottom of the notice so as to substantiate that the notice was issued on February 20, 1987, the date that appears on the certificate of mailing.

In contrast, in the record of the administrative proceedings filed by defendants as their answer in Placko II, there appear two certificates of mailing. On each, plaintiff’s name and that of her attorney and the attorney’s address are clearly typed in the space designated for that of the addressee. Additionally, each certificate is directly preceded by the document to which the certificate refers as is evident from the dates on the documents and their accompanying certificates. The date on the one certificate, “April 29, 1988,” is identical to that of its preceding document, while the date on the other certificate, “March 3, 1988, ” is only one day later than that which appears on its preceding document.

On the notice of the telephone hearing in Placko I, specific directions set forth the procedures the recipient of the notice was to follow to take part in the hearing, including that the recipient was to phone the Department to provide it with a telephone number at which the recipient could be reached on the date and at the time of the hearing. Accompanying this notice was a sheet of instructions which stated: “WARNING-FAILURE TO READ THESE INSTRUCTIONS MAY RESULT IN DENIAL OF YOUR APPEAL.” Included within these instructions was a portion of section 801 of the Act warning that failure on the part of the appellant to appear at the hearing would preclude a decision in the appellant’s favor. Ill. Rev. Stat. 1985, ch. 48, par. 450.

We find it highly unlikely that plaintiff, who had immediately protested Trejo’s claim for unemployment benefits and who had also, on the same date of the claims adjudicator’s decision, filed an appeal of that decision, would have ignored the instructions on the notice of the telephone hearing and on the accompanying sheet containing the warning. Plaintiff had much at stake here. If she allowed Trejo to prevail on her claim that plaintiff paid her wages and was her employer, plaintiff would be estopped from denying in any proceeding whatsoever that the wages paid by her for services rendered for her by any individual under circumstances substantially the same as those under which Trejo’s services were performed were wages for insured work. (See Ill. Rev. Stat. 1985, ch. 48, par. 455.) As a result, plaintiff would be required to make contributions for unemployment insurance benefits for every cleaning woman with whom she dealt. We, therefore, do not believe plaintiff would have failed to act upon the notice once she had received it.

Upon immediately receiving notice from the hearing referee that she had not prevailed against Trejo because of her failure to appear at the telephone hearing, plaintiff filed a request to the Department’s Board of Review for a rehearing. Relying on section 2720.255 of the Department regulations governing the appeals process (56 Ill. Adm. Code §2720.255 (1985)), defendants argue that plaintiff failed to request a rehearing pursuant to the regulations dealing with a party’s failure to appear at a scheduled hearing. Section 2720.255(c)(1) provides in pertinent part:

“Requests to rehear the appeal must be filed no later than 10 days after the hearing or the date the party first received notice of the scheduled hearing, whichever is later but in no event beyond the time for filing a timely appeal to the Board of Review pursuant to Section 2720.300(a) of this Part. Such requests must state the facts showing that failure to appear at the scheduled hearing was caused by reasons outside the control of the party and by circumstances that could not have been foreseen and avoided.” (Emphasis added.) 56 Ill. Adm. Code §2720.255(c)(l) (1985).

Section 2720.300(a) provides: “The appeal must be filed within 30 days after the Referee’s decision has been mailed to the parties.” (56 Ill. Adm. Code §2720.300(a) (1985).) In the instant case, the referee’s decision was mailed on April 3, 1987. On April 29, 1987, plaintiff filed a notice requesting a rehearing, stating as her first basis for appeal:

“1. Marilyn Placko did not receive an opportunity to be heard. No telephone conference was conducted by the Referee. Marilyn Placko was not given a time or telephone number to contact the Hearing Referee.”

Additionally, plaintiff stated that she “was not an employer and claimant [Trejo] did not perform ‘employment’ service.” In support of this statement, plaintiff attached to her request for rehearing a written summary of the relationship between plaintiff and Trejo. Plaintiff requested that the entire case be remanded to the hearing referee or claims adjudicator so she would have an opportunity to be heard and put forth evidence.

On July 2, 1987, the executive director of the Board responded, stating that “[t]he Referee’s decision has been appealed to the Board of Review which will review the case record and issue its decision based on the merits of the case.” (Emphasis added.) The Board further stated that plaintiff could submit additional evidence or written arguments, if she so desired. Plaintiff asserts that, based on the executive director’s correspondence, she presented no evidence on the question of notice but instead submitted her affidavit which pertained to the “merits” of the case since she presumed the Board meant what it said about deciding the case “on the merits.”

As plaintiff correctly points out to this court, the term “on the merits” has a specific meaning to members of the legal community and, as a legal term, refers to the “strict legal rights of the part[y].” (Black’s Law Dictionary 892 (5th ed. 1979).) Given a lawyer’s understanding of the term “merits,” the executive director’s statement that the Board would review the case record and issue a decision based on the merits of the case, and the director’s invitation to submit additional evidence, which plaintiff understandably presumed meant evidence applying to the merits, we conclude that the director’s letter lulled plaintiff into the mistaken belief that the Board was going to go ahead and decide the instant case on its merits. Instead, the Board issued its decision based upon plaintiff’s failure to appear at the telephone hearing.

An administrative proceeding must conform to the fundamental principles of justice and due process of law. (Ladenheim v. Union County Hospital District (1979), 76 Ill. App. 3d 90, 95.) Where an administrative order is against the manifest weight of the evidence or where an agency has acted arbitrarily or capriciously, a court of review should not hesitate to intervene. (Pierce v. Board of Trustees of the Police Pension Fund (1988), 177 Ill. App. 3d 915, 917.) If it appears the agency’s findings are not supported by substantial evidence, they will be reversed. Rias v. Department of Employment Security (1989), 187 Ill. App. 3d 328, 330.

Here, the Board’s act of deciding plaintiff’s case on the issue of notice after having misled plaintiff into believing it would be decided on the merits was capricious and denied plaintiff a fair hearing on the notice issue. Additionally, an examination of the record convinces us that the Board’s decision that plaintiff had notice of the hearing before the referee was without substantial support. The only documents pertaining to the notice issue, primarily, the certificate of mailing, suggest an opposite conclusion from that reached by the Board.

Administrative proceedings must conform to the constitutional requirements of due process of law (Wendl v. Moline Police Pension Board (1981), 96 Ill. App. 3d 482, 486), and due process mandates adequate notice of the matter under consideration. (Flores v. Board of Review, Illinois Department of Labor (1979), 74 Ill. App. 3d 667, 670.) It is unclear whether adequate notice was given in the instant case, and, therefore, plaintiff is entitled to an evidentiary hearing before the Board as to whether she received notice of the telephone hearing. If, upon remand to the Board, the Board finds that adequate notice was given, the claims adjudicator’s decision as to Trejo’s eligibility for unemployment benefits stands. This outcome would be determinative of the issues in Placko II, making plaintiff liable, as an “employer,” for contributions for benefits pursuant to the Act. If, however, the Board finds that no notice was given, the case should be remanded to the hearing referee for a determination on the merits.

The judgment of the circuit court of Du Page County in Placko I is reversed and the cause remanded with directions to the court to reverse the finding of the Board and to direct the Board to allow plaintiff to present evidence on the question of notice. Further, the judgment of the circuit court in Placko II is remanded with directions to enter a result that is in accordance with the findings and result reached after a hearing and decision in Placko I.

Reversed and remanded with directions.

GEIGER and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GEIGER

license: Public Domain

text:
      In re J.S.L., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. J.S.L., Respondent-Appellant).
    Second District
    No. 2—88—1206
    Opinion filed April 24, 1990.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GEIGER

delivered the opinion of the court:

The State filed two petitions against the respondent minor, J.S.L., seeking to have him adjudged a delinquent minor and made a ward of the court pursuant to section 2 — 2 of the Juvenile Court Act (the Act) (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 2), which has since been repealed and superseded by the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.). The petitions alleged that the respondent had committed 12 criminal acts. Pursuant to an agreement with the State, the respondent admitted that he had committed four of the criminal acts, and the State withdrew the charges relating to the others. The trial court issued a dispositional order committing the respondent to the juvenile division of the Department of Corrections (DOC). The respondent subsequently filed a motion to withdraw his admissions, but the trial court denied the motion. The respondent now appeals.

On appeal, the respondent advances two arguments. First, the respondent contends that the trial court lacked jurisdiction to enter the dispositional order because it had not made a specific finding that the minor was delinquent. Second, the respondent contends that the trial court abused its discretion by committing the respondent to the DOC rather than placing him in a therapeutic residential setting. Since the respondent was charged under the statutory predecessor of the Juvenile Court Act of 1987, we will examine this cause according to the terms of the older law.

The respondent was born on September 27, 1971. The record indicates that, before the instant petitions were filed, the State filed an initial petition against the respondent in 1986. That petition, pursuant to which the respondent was placed under court supervision, is not relevant here. The State subsequently filed the two petitions at issue here on March 17, 1988. The second petition (case No. 88 — J—203) alleged that the respondent had committed four acts of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19 — 3), one attempted residential burglary (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 19 — 3), three acts of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16 — 1(a)), and one act of criminal damage to property (Ill. Rev. Stat. 1985, ch. 38, par. 21— 1(a)). The third petition (case No. 88 — J—204) alleged that the respondent had committed one act of arson (Ill. Rev. Stat. 1985, ch. 38, par. 20 — 1(a)), one act of attempted arson (Ill. Rev. Stat. 1985, ch. 38, pars. 8 — 4(a), 20 — 1(a)), and two acts of criminal damage to property (Ill. Rev. Stat. 1985, ch. 38, par. 21 — 1(a)). These charges arose out of several incidents occurring between August 1987 and January 1988.

The State and the respondent ultimately reached an agreement whereby the respondent would admit to three acts of residential burglary as alleged in the second petition and one act of attempted arson as alleged in the third petition; in return, the State agreed to withdraw all other allegations of wrongdoing. This agreement was presented to the trial court on August 1, 1988. The trial court “accepted” the respondent’s admissions, but it did not make any finding, either orally or in writing, pertaining to the respondent’s guilt of the offenses charged or his delinquency pursuant to section 4 — 8 of the Act (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 8).

A dispositional hearing was commenced on September 2, 1988. (See Ill. Rev. Stat. 1985, ch. 37, par. 705 — 1.) The court adjourned the hearing so that the respondent might be evaluated at the John J. Madden Mental Health Center (Madden). Madden subsequently issued a report stating that the respondent was “antisocial in nature” and concluding that “[ojther than committment [sic] to the Department of Corrections, there do not appear to be any viable alternatives considering the serious nature of the charges against him.”

When the dispositional hearing was resumed on September 23, 1988, the respondent’s father presented a list of facilities, both in Illinois and out of the State, which he alleged might accept the respondent despite his history of arson. The respondent asked that the dispositional hearing be continued so that the probation department could evaluate the list of facilities to determine if any might be appropriate for the respondent’s residential placement. The trial court, however, decided that such a delay would be unwarranted. The trial judge stated that he knew that some of the facilities on the respondent’s list would not, in fact, accept persons with an arson background. Kimberly Crawford, an officer with the Department of Probation and Court Services, also informed the court that “a majority” of the facilities on the respondent’s list would not accept anyone with an arson background. Crawford recommended placement with the DOC. The court stated:

“THE COURT: In the mean time, [the respondent] has been sitting in the Youth Home. He’s not getting any counseling sitting there. I’m going to send him to D.O.C. for a ninety day evaluation. They have facilities to evaluate people with his problems, and then they can send it [sic] back.
* * *
But in the meantime, if, as most of the medical people say, D.O.C. is the best place for him, *** at least his treatment will have begun.”

The written order of commitment was issued on September 23, 1988. The preprinted portion of the order of commitment noted that the order was issued with' “the respondent minor having been previously adjudicated DELINQUENT and a Ward of the Court as noted by written order previously entered.” The order then stated that the respondent would be committed to the juvenile division of the DOC. Subsequently, the respondent filed a motion to withdraw his admission, alleging that his rights under the Act were not knowingly and voluntarily waived. The trial court denied the motion on December 2, and the respondent now appeals.

The first argument the respondent raises on appeal is that the trial court was without jurisdiction to enter a dispositional order because it had not first found the respondent delinquent. The State maintains that the respondent has waived this argument for failure to present it to the trial court at the dispositional hearing or in the motion to withdraw his admissions. As we will proceed to discuss, however, the question presented here is one of whether the trial court properly had jurisdiction of this cause. If the issue is one of personal jurisdiction over the defendant, then the defendant waived any objection thereto by participating in these proceedings. (See In re Greene (1979), 76 Ill. 2d 204, 212.) If the question is one of the trial court’s subject matter jurisdiction, then the issue is not waived and can be broached for the first time on appeal. (Lake Region Conference of Seventh-Day Adventists v. Ward (1988), 170 Ill. App. 3d 999, 1006.) We must, then, address the substance of the respondent’s jurisdictional argument concomitantly with the inquiry into whether it has been waived.

Although circuit courts have original jurisdiction over all justiciable matters, it is well settled that, when a court’s power to act is controlled by statute, the court is governed by rules of limited jurisdiction. (DeKing v. Urban Investment & Development Co. (1987), 155 Ill. App. 3d 594, 596.) The Act provides a number of requirements which must be met for a circuit court to exercise its authority under the Act. It is not clear, however, that each one is jurisdictional in nature. Three of the Act’s provisions are of interest here. These provisions relate to the process by which a minor is found to be delinquent, adjudicated a ward of the court, and subjected to a disposition authorized by the Act. See In re N.W. (1984), 125 Ill. App. 3d 367, 370.

An action against a minor under the Act is initiated by the filing of a petition alleging that the minor is “delinquent, addicted, requiring authoritative intervention, neglected or dependent, as the case may be.” (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 1(2).) Here, we are concerned only with the question of delinquency. A minor is delinquent if he or she has violated or has attempted to violate any Federal or State law or municipal ordinance before his or her 17th birthday. (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 2.) After a petition alleging delinquency is filed, an adjudicatory hearing is held to determine whether the minor is, in fact, delinquent. (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 6.) Section 4 — 8(1) of the Act requires that, after hearing evidence at the adjudicatory hearing, “the court shall make and note in the minutes of the proceedings a finding of whether or not the minor is” delinquent. (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 8(1).) Once the court finds a minor to be delinquent, it must proceed to a dispositional hearing to determine whether it is in the best interests of the minor and the public that he or she be made a ward of the court. (Ill. Rev. Stat. 1985, ch. 37, par. 705 — 1(1).) After a delinquent minor is adjudicated a ward of the court, the court may then proceed to the entry of a dispositional order. See Ill. Rev. Stat. 1985, ch. 37, par. 705-2.

In In re Tingle (1977), 52 Ill. App. 3d 251, 257, the court held that the adjudication of wardship under the Act is not a jurisdictional requirement, but merely a procedural matter which cannot be raised for the first time on appeal. (See also In re Scott (1978), 62 Ill. App. 3d 367, 368-69.) However, this court has held that a finding that a minor is delinquent is a jurisdictional prerequisite to an adjudication of wardship and a dispositional order. (In re R.R. (1987), 159 Ill. App. 3d 313, 319.) Indeed, we do not interpret the State’s position on appeal to be to the contrary. Because a finding of delinquency is required to vest the court with jurisdiction for its subsequent proceedings under the Act, the respondent may now properly raise on appeal a claim that the court acted without jurisdiction even though the issue was not raised before the trial court.

The State argues that, although a finding of delinquency is a jurisdictional prerequisite to the dispositional order at issue here, such a finding is implicit in the record. Section 4 — 8(1) of the Act specifically requires that, following an adjudicatory hearing, the trial court “shall make and note in the minutes of the proceeding a finding of whether or not the minor is” delinquent. (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 8(1).) It has been held that a finding of guilt of the underlying criminal offense made in open court and in a written order is sufficient to constitute a finding of delinquency. (In re J.N. (1982), 91 Ill. 2d 122, 128; see also In re N.W., 125 Ill. App. 3d at 370.) Beyond this, however, neither our research nor that of the parties has produced any case in which a finding of delinquency has been implied without a specific articulation of such a finding or a similar finding of guilt.

We do not agree that a finding of delinquency can be implied from this record. It is insufficient for the State to point to the preprinted form on which the commitment order was entered to show that the minor had “been previously adjudicated DELINQUENT.” The record of proceedings reveals that no such finding was made either when the court accepted the respondent’s admissions or at the dispositional hearing. Moreover, although the commitment order recites that the supposed adjudication of delinquency had been “noted by written order previously entered,” there is no written finding of guilt or delinquency contained in the record. The preprinted recitation is simply insufficient to cure this jurisdictional omission. We also reject the State’s invitation to treat the written commitment order itself as a finding of delinquency, as there is no support whatsoever for such an inference in the report of proceedings.

The State further argues, however, that we can imply a finding of delinquency here because the respondent had admitted commission of the offenses for which the State sought to have him declared delinquent and because the court would not have proceeded to disposition of the cause had it not found the respondent delinquent. A minor’s admission is not the same as a court’s finding of delinquency, and the admission does not suffice where no adjudication of delinquency has been made. (In re R.R., 159 Ill. App. 3d at 319.) It is similarly insufficient to rely on the assumption that the trial court would not have proceeded to disposition of the cause had it not already found the respondent delinquent. Such a position would render meaningless the requirement that such a finding be made. An analogy can be drawn to the question of whether a trial court could sentence a criminal defendant without first entering a judgment of conviction. Under such circumstances, we might well imply that the trial court would not have proceeded to sentencing if it had not found the defendant guilty; nevertheless, the court would be without jurisdiction to sentence the defendant until a judgment of conviction was entered. People v. Vaughn (1981), 92 Ill. App. 3d 913, 915.

We conclude, therefore, that the trial court did not have jurisdiction to enter the dispositional order because it had not first explicitly found the respondent delinquent. The State contends that such a conclusion requires us to dismiss the appeal. We disagree. This court has previously held that, where the trial court has failed to enter a finding of delinquency, it is appropriate to remand the cause so that the trial court might determine whether the respondent was delinquent. (In re R.R., 159 Ill. App. 3d at 320.) Our holding here makes it unnecessary to address the respondent’s contention that the trial court abused its discretion in committing him to the DOC.

The judgment of the circuit court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF ANN CARADONNA, Petitioner-Appellee, and NICHOLAS CARADONNA, Respondent-Appellant.
    Second District
    No. 2—89—0241
    Opinion filed April 25, 1990.

      Howard W. Broecker, of Howard W. Broecker & Associates, Ltd., of Geneva, for appellant.
    John Panegasser and Daniel J. Kordik, both of Caluwaert, Panegasser, Hancock & Schousen, of Elmhurst, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Nicholas Caradonna, appeals from an order denying his counterpetition to terminate maintenance payments to his former spouse based on her conjugal cohabitation with another man. He contends that the trial court’s decision was an abuse of discretion. He also raises an issue concerning whether the court abused its discretion in not allowing him to amend his original petition for termination of maintenance. For the reasons stated below, we affirm.

Nicholas and Ann Caradonna were divorced September 26, 1978. A judgment of dissolution provided that Nicholas would pay Ann $550 per month in maintenance. This maintenance would terminate on the date the youngest child of the parties turned 23, if not earlier terminated by operation of law.

On January 21, 1986, Nicholas petitioned to terminate the maintenance payments. He alleged that the parties’ daughter, Lisa, was an adult and their son, 17-year-old Nicholas, resided with his father while the mother lived in Florida. Ann responded that the judgment of dissolution provided that the maintenance agreement was nonmodifiable. The court ruled that the maintenance agreement was modifiable, but in an order filed July 30, 1987, denied with prejudice the petition to terminate or modify maintenance. Nicholas was not present at the hearing of his petition, though he was represented by an attorney.

On August 27, 1987, Nicholas moved to vacate the court’s ruling, invoking section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1203), and alleging that he was absent from the hearing because he had gone to the wrong courtroom in another building. He alleged that, had he been present, he would have presented evidence to show that his wife had been engaged in conjugal cohabitation with another man.

Before this motion was heard, Ann petitioned the court on October 21, 1987, to set a trial date on a petition to increase maintenance and petitioned for a rule to show cause against Nicholas for delinquent payments. On November 3, 1987, Nicholas, under representation of a different attorney, filed a counterpetition to terminate maintenance, alleging that Ann had established a continuing conjugal relationship with Frank Doe in Florida. Ann responded with a motion for involuntary dismissal, contending that the petition alleged no facts which could not have been raised in the first petition to terminate maintenance. Following a hearing in which all the above matters were addressed, the court vacated the ruling denying Nicholas’ petition for termination of maintenance and withdrew Ann’s motion for voluntary dismissal as being a nonissue. The remaining issues were set for trial.

At the trial, there was confusion from the beginning regarding exactly what issues remained before the court. Ann initially told the court that there were three petitions before it: (1) Ann’s petition to increase maintenance; (2) Ann’s petition for a rule to show cause; and (3) Nicholas’ counterpetition to terminate maintenance. Ann also asserted that, for the first time in his counterpetition, Nicholas was raising the issue of conjugal cohabitation. Nicholas responded that in the original petition he had alleged that Ann was residing at 204 Sweet Gum Way in Florida. (This was the home of Frank Recca, with whom Ann had been living.) The court ruled that the original pleading was insufficient to place in issue whether there was conjugal cohabitation. Nicholas moved to amend the pleadings and stated that his counterpetition was in the nature of an amendment. The court stated it would not allow any amendments, ruling that Nicholas could not attempt to “bootstrap” the allegations in the counterpetition into the original.

Nicholas then stated that the petition before the court was the original January 1986 petition, upon which Ann objected and the court expressed surprise. Ann moved to strike the counterpetition of November 3, 1987, so that there would only be one petition before the court. At this point, the court searched through the file and then stated that Nicholas had filed a counterpetition in November 1987 for termination of maintenance due to Ann’s conjugal cohabitation. The court also read from the original 1986 petition in which Nicholas sought custody of the minor child, termination of maintenance, and support for the minor child, and stated: “So we can go on her testimony on those issues.” The court did not rule on Ann’s oral motion to strike the November 3 counterpetition.

At trial, Ann testified that she lived at 204 Sweet Gum Way, in Longwood, Florida. The house is owned by Frank Recca, with whom she has operated a travel business since November 1986. She and Frank lived in the house together from February to November 1986, when he moved out. He now lives in the Florida Keys some 400 miles away. They had sexual relations while they lived together until July or August 1986, but have not since then.

While she lived with Frank in his fully furnished house, Frank paid the home expenses, but she paid for all her other expenses, including medical expenses, clothing, groceries, and some support for her daughter. When Frank moved out, she paid him a lump sum check in 1986 of $2,500 for rent, but she did not recall paying rent for the time that they lived together.

She continued to pay him monthly rent of $500 in 1987. Though she stated she paid him monthly, a canceled check showed that she had paid him $3,000 in July 1987, and the check stated that it was for rent from January through June. Since the time Frank left in November 1986, he has returned to stay in the house every couple of months, but they do not share the same bedroom. She has also gone to his house in the Florida Keys two to three times a year. They have also taken between three to five business trips together since November 1986.

Ann first met Frank in 1981 in Jamaica. From this time, the two would occasionally travel together. She went on a trip with him to Honduras in 1984. She saw him six months láter and spent a few days at his home in Florida. She took two more trips with him in 1985, one in February and one in September. From September 1984 to September 1985 she saw Frank approximately every six to eight weeks. Between the time she met Frank and the time she moved into his home in 1986, she stayed in his home for more than one day on two or three occasions.

At the conclusion of the evidence, the trial court ruled orally that the evidence did not establish that Ann was cohabiting with Frank in a continuing conjugal relationship. The court denied Nicholas’ counter-petition.

Nicholas first contends the court erred when it found Ann was not cohabiting in a continuing conjugal relationship with Frank.

Section 510(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510(b)) provides:

“Unless otherwise agreed by the parties in a written agreement set forth in the judgment or otherwise approved by the court, the obligation to pay future maintenance is terminated upon the death of either party, or the remarriage of the party receiving maintenance, or if the party receiving maintenance cohabits with another person on a resident, continuing conjugal basis.”

It has been stated that the most likely reason the legislature added the provision allowing termination of maintenance when there is conjugal cohabitation is that it intended to end the inequities caused when a former spouse had in fact entered into a husband-wife relationship, although not formalized legally, and was still entitled to maintenance merely because Illinois does not recognize common-law marriages. (In re Marriage of Reeder (1986), 145 Ill. App. 3d 1013, 1017.) Thus, courts have held that to prove continuing and conjugal cohabitation, a party must show that the former spouse is involved in a defacto husband-wife relationship. (Reeder, 145 Ill. App. 3d at 1017; In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 649.) This requirement is related to the underlying rationale for maintenance, the need for support by the spouse who is to receive maintenance. (Reeder, 145 Ill. App. 3d at 1018; see also In re Marriage of Sappington (1985), 106 Ill. 2d 456, 467.) An important consideration is whether the cohabitation has materially affected the recipient spouse’s need for support because he or she either received support from the coresident or used maintenance monies to support the co-resident. Arvin, 184 Ill. App. 3d at 649; Reeder, 145 Ill. App. 3d at 1018; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657, 663.

A trial court’s finding that the recipient spouse is not living with another person under circumstances amounting to a de facto husband-wife relationship will not be reversed unless it is contrary to the manifest weight of the evidence. Reeder, 145 Ill. App. 3d at 1018.

The evidence clearly shows, contrary to respondent’s assertion, that prior to 1986 Ann was not cohabiting with Frank on a resident, continuing conjugal basis. During this time the two lived hundreds of miles apart and only saw each other once every six to eight weeks. As for Ann and Frank’s relationship after 1985, specifically during 1986, the facts are closer, though we believe the trial court’s decision is not contrary to the manifest weight of the evidence.

It was established that Ann lived with Frank in Frank’s fully furnished Florida home from February to November 1986, and they shared a bedroom and had sexual relations until they severed the relationship sometime in July or August 1986. There is little evidence, however, that Ann’s relationship materially affected her need for support, which in our view is an important factor in determining whether a de facto husband-wife relationship has been established. (See Arvin, 184 Ill. App. 3d at 649-50.) Ann testified she paid for all of her own expenses, including medical expenses, clothing, groceries, and some support for her daughter. The only expense she did not pay because of her relationship with Frank was rent for approximately six months. She paid rent for the last six months of 1986 in a lump sum check of $2,500. She shared no personal accounts with Frank. There was no evidence that they had commingled funds. We find these facts insufficient to establish that Ann’s relationship materially affected her need for support.

We also find the fact that the relationship was terminated before the hearing and lasted only approximately six months also weighs against finding a de facto husband-wife relationship; The short-term nature of the relationship is also further evidence that the relationship did not materially affect Ann’s need for support. Two appellate opinions have found no de facto husband-wife relationship in cases where the relationship lasted approximately four months. (See In re Marriage of Clark (1983), 111 Ill. App. 3d 960; In re Marriage of Bramson (1980), 83 Ill. App. 3d 657.) The case cited by respondent, In re Marriage of Roofe (1984), 122 Ill. App. 3d 56, is distinguishable from the case at bar. In that case, the former spouse had been living with someone for approximately six weeks at the time of the hearing. The court found that the fact the relationship had only lasted six weeks at the time of the hearing did not preclude finding a continual relationship. (Roofe, 122 Ill. App. 3d at 58.) The court distinguished Clark and Bramson because in those cases the former spouses were no longer living with someone else at the time of the hearing. (Roofe, 122 Ill. App. 3d at 59.) In Roofe, the evidence showed that at the time of the hearing the residential relationship was stable and ongoing with no contemplation of termination. (Roofe, 122 Ill. App. 3d at 59.) In our case, we believe the facts clearly show that the relationship was terminated in November 1987. Nor do we find that the living arrangement was terminated merely to make it appear as though the relationship had ended when it had not.

Next, Nicholas argues that the trial court erred in not allowing him to amend his petition of January 1986 to conform to the proofs at trial. Presumably, Nicholas contends that he should have been allowed to amend his original petition to allege conjugal cohabitation. The trial court had ruled at one point that the original petition was insufficient to allege conjugal cohabitation and that it was too late to attempt to amend the pleadings by bootstrapping the allegations in the counter-petition into the original. Nonetheless, the court proceeded on the allegation of conjugal cohabitation in the counterpetition and ruled on the counterpetition. Since the counterpetition was entertained and ruled upon, we do not understand why the parties or the court made an issue of whether the original petition could be amended. The court had before it at the start of trial an original petition to terminate maintenance which did not allege conjugal cohabitation and a second counterpetition filed in response to a different pleading by Ann in which Nicholas did allege conjugal cohabitation. Since the counterpetition was properly before the court — it had not been dismissed — there was no need to amend the original petition.

We find that, regardless of the trial court’s statements at the beginning of trial and regardless of all the confusion surrounding the pleadings, Nicholas was allowed to present evidence to prove conjugal cohabitation covering any period since the divorce, and the trial court decided whether Nicholas had proved conjugal cohabitation during the period from the divorce to the date of the hearing. The court’s written ruling includes the following findings: (1) the issue presented was whether Ann was cohabiting on a resident, continuing conjugal basis; (2) the evidence demonstrates that Ann is not cohabiting with another on a resident, continuing conjugal basis; (3) the evidence presented in support of Nicholas’ counterpetition does not meet the requirements of the statute to prove conjugal cohabitation; (4) that Nicholas’ original petition seeking maintenance termination does not allege conjugal cohabitation on a resident continuing basis; and (5) that the evidence established that at the time the original petition was filed, Ann was not living with another on a resident, continuing conjugal basis. The court’s order stated that the counterpetition to terminate maintenance is denied. It did not make an order in regard to the original petition.

The court’s written order shows that it did not limit the issues of the case to the issues presented by Nicholas’ first petition in which he did not allege conjugal cohabitation. It is clear that the entire case involved only the issue of conjugal cohabitation. We cannot explain why the court in one finding focused on the date of the original petition in its ruling. The date is certainly insignificant in light of the counter-petition. We are satisfied that in spite of this finding the court did not limit the issue to whether Nicholas proved the existence of conjugal cohabitation prior to the original pleading. The court’s other findings are not limited by a date referring to the original petition, and the fact that the court’s order states that the counterpetition is denied demonstrates that the court considered the entire period from the divorce to the hearing to determine whether conjugal cohabitation on a resident continuing basis had been proved.

We affirm the judgment of the circuit court.

Affirmed.

WOODWARD and GEIGER, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EARLENE GIBSON, Defendant-Appellant.
    Second District
    No. 2—88—0862
    Opinion filed April 24, 1990.

      G. Joseph Weller and Barbara R. Paschen, both of State Appellate Defender’s Office, of Elgin, for appellant.

      Charles R. Hartman, State’s Attorney, of Freeport, and John T. Moran, of La Salle Law Center, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Earlene Gibson, was convicted of first-degree murder of her daughter, Joushuland (Josh), and the trial court sentenced her to 40 years’ incarceration. Defendant appeals, contending the trial court erred in refusing to instruct the jury on involuntary manslaughter; that certain rebuttal testimony should not have been allowed; that she was denied the effective assistance of counsel; and that the court below did not consider proper factors in sentencing her.

The State began its case with the testimony of police and emergency personnel who described their observations as they arrived at defendant’s home on February 18, 1988. Mark Marty of the Freeport police department noted that, when he arrived at the house, there was blood on the stairs leading up to the second story, in the living room, and on the handset of the telephone in the dining room. Lying next to that phone was a knife with a six-inch blade which had blood on it. The knife was subsequently received into evidence as that which killed Josh.

Officer James Teasdale related that when he arrived in the upstairs bedroom he saw the emergency personnel who were working on Josh and three family members. When he asked what had happened, he was told by defendant that Josh had fallen on a knife in the kitchen. He further noted that he had not seen any blood in the kitchen.

Defendant’s son, Jelcrinis, testified that on the night of February 18, his father, James Gibson, and he had received a telephone call from defendant at their home. As Jelcrinis and his father listened on separate extensions, defendant told them that Josh had fallen on a knife, then turned to her and said, “Oh mommy, I’m stabbed.”

James Gibson, defendant’s ex-husband, testified that he and defendant were the parents of Josh and Jelcrinis. Upon their divorce, James received custody of both children, but in 1986, Josh had moved in with her mother. He stated that on February 18, defendant told him over the telephone that Josh had been making a sandwich in the kitchen and had been playing with the knife, and had then told defendant that she had hurt herself.

Defendant’s second daughter, Sessecla Greer (Sessie), who was 10 years old, testified that in the early evening of February 18, she was at home with her mother, her sister, and her mother’s boyfriend, James Brooks. Sessie was lying on the living room floor; James was upstairs; Josh was sitting on the couch in the dining room; and defendant was sitting at the dining room table.

Sessie and her mother had an argument. Defendant went into the living room and hit Sessie on the back of the head. Josh intervened on Sessie’s behalf, and then Josh and defendant began to argue and then to fight, each holding the other by her clothing. At this point, Sessie was standing halfway up the stairs, which led to the second-floor bedrooms. She said that she saw her mother let go of Josh, go into the kitchen, and return with a knife in her hand. Sessie ran upstairs to get Brooks’ help. She then heard Josh say, “Bird [Brooks’ nickname], she stabbed me.” Sessie ran down the stairs and saw defendant standing with a knife in her hand. Josh was in the corner at the bottom of the steps, and then she ran upstairs to defendant’s bedroom. Sessie followed her. There were confused efforts to phone for help, and, that having been accomplished, defendant went to Josh and covered her.

Later that night, Sessie told Assistant State’s Attorney Bald that Josh had run into the knife which her mother had been holding. On the stand, Sessie denied the truth of that original story. She stated that, at the hospital, she had been instructed by her mother to say that they had been cutting ham and playing around and that Josh had slipped on the knife. However, on the night before the trial, Sessie had a conversation with the prosecutor in which she notified him that she would testify to a different version of events than those which she had related to him on February 18.

Dr. Larry Blum testified that he is the pathologist who performed the autopsy on Josh. He concluded that the wound which was the cause of death tracked from the top of the left breast down, from left to right, and from front to back. The wound was 6V2 inches long, and passed through the heart, the diaphragm, and into the liver. Blum further stated that if a person had fallen on the knife with sufficient force to cause this particular wound, he would expect to see bruising around the wound from the hilt of the knife. There were no such marks on Josh’s body.

Defendant’s boyfriend, James Brooks (Brooks), testified on her behalf. He stated that on February 18, Josh and defendant were teasing one another and “tussling.” Sessie had been involved in some trouble at school. Defendant was angry with Sessie for lying about it and hit the child on the head. Josh intervened on Sessie’s behalf, and the children tussled with defendant again. Brooks broke them apart and accompanied Sessie and Josh upstairs. Josh went to her room to watch television for 10 or 15 minutes. Brooks was in his own room, also watching television. Defendant remained downstairs.

After 10 or 15 minutes, Josh went back downstairs, saying that she had one more thing to say to her mother. The next thing he knew, Josh came back upstairs, told him, “I’m stabbed,” and asked him to call an ambulance. She then fell to the floor. Defendant came in, held Josh in her arms, and said that she had not meant to hurt her baby. They put a blanket under her head, and then the ambulance arrived.

Defendant testified that Josh was 18 years old at the time of her death. On the evening in question, defendant and her daughters, Josh and Sessie, were sitting in the dining room. Defendant was teasing Josh about a letter which she had received. Defendant had snatched the letter away, and Josh was angry with her.

Defendant was angry with Sessie over an incident which had occurred at school. Sessie had moved into the living room, where defendant could not see her. She could see Josh, and Josh could see Sessie. As defendant was talking, she saw that Josh was making faces of disapproval. Then defendant leaned over and saw that Sessie was smiling at Josh. This angered her, and she slapped Sessie. Josh immediately intervened, placing herself between defendant and Sessie, and pushed defendant away. Josh then grabbed defendant’s shirt and continued to shout at her to leave Sessie alone. Brooks then came along and sent the girls upstairs.

Defendant went to the kitchen to prepare sandwiches and, wondering who was eating and how they wanted their food prepared, went into the dining room. The ham was on the front porch, and she needed to get it. She was carrying the knife in her right hand as she crossed the room; her arms were folded. She could hear Josh calling her. Josh then ran into the room, bumped defendant, and knocked her off balance. Defendant uncrossed her arms, trying to regain her balance. She told Josh to stop and walked away.

Josh said, “I’ve been stabbed,” but defendant did not believe her. Josh walked toward the staircase and collapsed against the wall. Then defendant saw that she was bleeding. Josh proceeded up the stairs.

Defendant tried to telephone for help from the dining room but had trouble getting the phone to work. She ran upstairs to the bedroom phone, but that phone would not work either. Defendant was finally able to call for help from another room. She returned to Josh, who was lying on the floor, covered her with a blanket, and cradled her in her arms until she fainted away. The paramedics arrived, and defendant remembered that she told somebody that Josh fell on a knife. Josh was removed to the hospital, and defendant and Sessie were driven there also. Defendant denied telling Sessie what to say about the incident.

Defendant remembered that she received Miranda warnings at the police station, but she did not remember what she may or may not have said there. She knew that at some point, she denied having the knife in her hand when Josh was stabbed. She denied telling the police that Josh had stabbed herself.

She testified as to how she had been knocked off balance by Josh, how they pulled each other back and forth, each trying to regain balance, how she held the knife, and what shé had told the police. She said that while they were tugging at each other, Josh had lost her own balance, leaned forward, then slipped and fell on the knife. Given her condition that night, defendant did not know what she told or demonstrated to anybody and did not know the “gory details” of the incident. She denied telling Josh’s father that Josh had cut herself while making sandwiches.

On rebuttal, David Kentner of the Freeport police testified that he interviewed defendant the night Josh died. Defendant had told him that Josh and she had argued over Sessie. Later, they were both in the kitchen cutting ham. Josh left the room to see if the others wanted sandwiches. She returned, saying that she had cut herself. Defendant had not believed her. She sat down at the dining room table and then saw that Josh was bleeding. Josh set the knife down on the table next to defendant, walked toward the stairs, and collapsed against the wall.

Later that night, Kentner had a second conversation with defendant in which she said that she had been cutting ham alone. Josh had gone upstairs. Defendant, knife in hand, went to the living room to call Josh. Josh returned to say something to defendant, who was holding the knife next to her right leg, handle forward, blade behind. Josh saw the knife and said, “Is that for me?” and came forward. The next thing defendant remembered was sitting at the table and putting the knife down next to the phone. Josh walked to the stairs and collapsed. Defendant saw that she was bleeding and tried to call for help.

Also on rebuttal, Michael Hannan, another Freeport policeman, testified that he talked with defendant “at least 20 times” before the night of her daughter’s death. The majority of those occasions had been stressful. Defense counsel’s objection to the relevance of these remarks was overruled. The prosecutor then remarked that he would “go into these other occasions, but I don’t think I should go into them.” The testimony was allowed. Hannan went on to say that on the night of February 18, although defendant had cried, she was lucid, coherent, and not hysterical. She had told him that Josh had been in the kitchen making sandwiches and had cut herself. Defendant did not believe that anything was wrong until she saw Josh slump against the wall. Defendant did not mention having held the knife.

Hannan told defendant that other information, as well as the physical evidence, was inconsistent with her story. He said that at this point defendant’s story changed. She told him that they had both been cutting ham, Josh left, and as defendant walked toward the living room with the knife in her hand, Josh returned, saw the knife, and said, “Is that for me? I don’t believe you can hurt me. I’m your daughter. I want to see you do it.” Josh approached defendant, who backed away, raising her arm up. Josh pulled defendant’s arm toward her chest; defendant tried to pull away. Something happened, and the knife went down. She then went to sit at the table. Defendant never told Hannan that she actually saw the knife strike her daughter.

At the instruction conference held at the close of the evidence, an involuntary manslaughter instruction tendered by defense counsel was refused pursuant to the prosecutor’s objection. The jury subsequently returned a verdict of guilty.

A sentencing hearing was held on August 18, 1988. The State recommended a sentence of 25 years in the Department of Corrections. The defense argued in favor of a minimum sentence of 20 years. Defendant made her statement to the court. She was concerned because her presentence investigation report stated that she was without remorse and wanted to rebut that conclusion.

The judge, in discussing the issues in aggravation and mitigation, recalled that he had presided over defendant’s divorce and had awarded custody of the children to her ex-husband because he considered her to be unstable.

The court went on to rule that one fact “very much in aggravation” was that the crime involved physical harm to the victim. Defendant’s failure to acknowledge guilt was also stressed by the court. A 40-year term of incarceration was imposed. A motion to reconsider the sentence was denied.

Initially, defendant contends that the trial court erred in refusing to give an instruction on involuntary manslaughter. The State argues that this issue was waived due to defendant’s failure to preserve it in her motion for a new trial. (People v. Friesland (1985), 109 Ill. 2d 369.) Nevertheless, under the plain-error doctrine’s exception of correcting grave errors, we shall address this argument. See People v. Tannenbaum (1980), 82 Ill. 2d 177,182.

In refusing defendant’s tendered involuntary manslaughter instruction, the trial court found that her defense of accident was legally inconsistent with the element of recklessness, which is necessary to sustain a verdict of involuntary manslaughter. The court further held that the evidence failed to disclose any facts to support such a finding. Specifically, the court below stated that because defendant never testified that she stabbed Josh, her version of the evidence was that Josh stabbed herself, and, therefore, the record did not support an involuntary manslaughter instruction.

A person commits involuntary manslaughter when she “kills an individual without lawful justification *** if [her] acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and [she] performs them recklessly.” (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(a).) Recklessness is defined by section 4 — 6 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6) thusly:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. An act performed recklessly is performed wantonly, within the meaning of a statute using the latter term, unless the statute clearly requires another meaning.”

Generally, in a murder trial, it is error to refuse instructions on manslaughter if the record holds any evidence which, if believed, would reduce the crime to a lesser offense. (People v. Jenkins (1975), 30 Ill. App. 3d 1034, 1037.) Manslaughter instructions should be given even though the theory of the defense at trial is inconsistent with the possibility that defendant is guilty of the lesser offense. Jenkins, 30 Ill. App. 3d at 1037.

A review of cases concerning involuntary manslaughter instructions establishes that the evidence in this case justified an instruction on said offense. In People v. Jenkins (1975), 30 Ill. 3d 1034, defendant went to his estranged wife’s home, armed with a knife. When the wife came home, defendant held a knife to her throat asking her about her relationship with decedent, who was outside the home. The wife managed to flee, followed by defendant, who came upon decedent on the landing. Decedent took hold of defendant and a scuffle began. Defendant broke away and continued to chase his wife. In the struggle, decedent was stabbed in the back and later died of complications arising from the wound. Defendant did not remember stabbing the decedent. Defendant stated that he had put the knife to his wife’s throat to force her to get the decedent to leave in order to talk to her alone. The Jenkins court found that, if the jury believed defendant, it could have determined that he knew or should have known that handling the knife as he did created the strong possibility of resulting death or great bodily harm. Consequently, the Jenkins court ruled that jury should have received an instruction on involuntary manslaughter.

In People v. McCarroll (1988), 168 Ill. App. 3d 1020, defendant’s primary theory at trial was accident. Defendant testified that he was armed with a gun when he entered a gas station because he had been attacked in the same neighborhood a week prior. He bought a package of cigarettes with a $20 bill. Decedent refused to give him any change, saying that defendant had paid with a $1 bill. Defendant wanted his change and would not leave the store even though decedent was swearing at him and telling him to leave. Decedent pulled a gun, and defendant rushed towards him, causing the gun to fall to the floor. In the ensuing struggle, decedent pulled at the gun in defendant’s waistband. Defendant grabbed for his gun, and the men fought over it. In the struggle, the gun discharged twice, striking and killing the decedent.

The MeCarroll court found that it was reversible error for the trial court to refuse defendant’s involuntary manslaughter instruction. It reasoned that the jury could have concluded that defendant behaved recklessly when he entered a gas station armed with a loaded gun and then rushing and struggling with the armed decedent in the confined space, while still carrying the gun in his waistband. The MeCarroll court found that such a finding of recklessness would have supported a verdict of involuntary manslaughter.

In the instant case, Sessie Gibson, defendant’s daughter, testified that, immediately prior to the stabbing, defendant and Josh had been arguing and scuffling, i.e., each holding the other by the clothing. Brooks separated them and went upstairs. Defendant then went to the kitchen and returned with a knife in her hands. Sessie ran upstairs to get Brooks and, as a result, did not see how Josh was stabbed.

Brooks testified that prior to the stabbing incident Josh and defendant were struggling with each other so that he had to separate them. Brooks then accompanied Sessie and Josh upstairs. Brooks further testified that Josh went back downstairs, saying that she had one more thing she wanted to say to her mother.

David Kentner of the Freeport police department testified that he interviewed defendant on the evening of Josh’s death. Defendant told him that she had been in the kitchen cutting ham and then went to the living room to call Josh, who was upstairs. Josh came down to say something more to defendant. Josh saw the knife next to defendant’s right leg, handle forward and blade behind. Josh came forward saying, “Is that for me?” Defendant stated that she raised the knife above her shoulder, and Josh grabbed the hand that held the knife. Defendant pulled back, and Josh pulled forward. Defendant could not recall how Josh was stabbed.

This is sufficient evidence to support an involuntary manslaughter instruction to the jury, which could have determined that defendant behaved recklessly when, after a heated physical and verbal exchange with Josh, she went back to the kitchen and, subsequently, returned with a knife and then became embroiled in another physical struggle with Josh, the result of which was the fatal stabbing of her daughter.

The State argues that because defendant’s primary defense was accident, she was not entitled to an involuntary manslaughter instruction. While recklessness is not generally seen as synonymous with accident, that distinction is one which is generally made by the trier of fact. (People v. Consago (1988), 170 Ill. App. 3d 982, 986.) Here, the initial struggle between Josh, defendant’s carrying a knife with a six-inch blade, the alleged struggle between defendant, and Josh’s stabbing provide the proper basis upon which to tender a jury instruction on involuntary manslaughter. (See Consago, 170 Ill. App. 3d at 986.) It was in the jury’s province to determine whether this defendant’s actions constituted recklessness. Moreover, the principal case cited by the State, People v. Abernathy (1989), 189 Ill. App. 3d 292, is distinguishable on its facts. In Abernathy, the victim’s severe wounds were torturously inflicted by defendant, who had tied one of the decedent’s arms to keep her from resisting. These facts did not support an instruction on involuntary manslaughter.

We find that the trial court should have allowed an instruction on involuntary manslaughter; its refusal to give said instruction was reversible error. Accordingly, we conclude that this cause must be remanded- for a new trial, in which the court below shall instruct the jury on involuntary manslaughter.

Despite the necessity of a new trial, we address another issue raised by defendant on appeal because it will likely come up again upon retrial.

Defendant contends that certain rebuttal testimony of Officer Michael Hannan should not have been allowed. Officer Hannan testified that prior to the night that Josh died, he had spoken with defendant on numerous occasions in an official capacity.

“Q. [THE STATE]: Had you known Earlene [defendant] prior to that?
A. Yes, I had.
Q. Approximately how many times had you occasion to talk with the lady?
A. At least twenty times.
Q. Had any of those been under stressful situations?
A. Yes. I would say probably the majority of them were.”

Defense counsel objected to the relevancy of this testimony; the court overruled this objection. Subsequently, the prosecutor stated, “I have no objection if counsel wants to go into these other occasions, but I don’t think I should go into them.” Defense counsel stated he did not want to go into these other circumstances.

The following dialogue then took place.

“Q. [THE STATE]: Officer, based on your observations and conversations with her [defendant] on approximately 20 other occasions, some of which in your opinion were stressful, and based on your observations and conversations of the Defendant on the evening of February the 18th after 7:30 p.m. and before 11:00 p.m. that night, do you have an opinion as to whether or not the Defendant was aware of her surroundings on the 18th?
A. Yes.
Q. Did she seem in any way-strike that. Was she able to respond to your questions?
A. Yes, she was.”

Defense counsel objected, arguing that defendant had not made an issue out of her mental state at the time she talked with the police in the hours following Josh’s death and, therefore, Officer Han-nan’s testimony was irrelevant. The trial court overruled this objection.

Defendant contends that Officer Hannan’s reference to 20 previous stressful circumstances in which defendant was involved tended to cause the jury to speculate about said circumstances, possibly determining they were criminal in nature. Defendant points out that testimony of Officer Hannan did not explicate the cause of the previous stressful situations. Defendant maintains that Hannan’s testimony regarding the prior situations bears no relevance to the severely stressful situation arising out of Josh’s death.

The State responds that the purpose of Officer Hannan’s testimony was to rebut defendant’s claim to the jury that her condition following Josh’s death accounted for her several versions of what led to the fatal incident. The State contends that the fact that Hannan had spoken to defendant 20 times in the past was unremarkable. Also, it asserts that this was not evidence of uncharged criminal conduct.

A trial court may refuse offered evidence on the ground of irrelevency if it has little probative value due to its remoteness, uncertainty, or its possibly unfair prejudicial nature. (People v. Ward (1984), 101 Ill. 2d 443, 455.) We find that under these circumstances the introduction of evidence pertaining to Officer Hannan’s 20 previous interactions with defendant to be prejudicial in nature and, therefore, of little probative value in determining defendant’s mental condition following Josh’s death. Such a reference invited the jury to speculate as to the nature of those interactions, with the possible result that it was predisposed to find defendant guilty of the offense charged. Moreover, Officer Hannan’s testimony as to defendant’s mental condition during his questioning of her after Josh’s death is sufficient for the State’s purpose of rebutting defendant’s claim that, in her condition, she did not know what she told the police that night. Thus, on retrial, no reference shall be made to Officer Han-nan’s 20 previous official interactions with defendant.

We need not address the other issues raised by defendant. We reverse the judgment of the circuit court and remand this cause for a new trial.

Reversed and remanded with directions.

UNVERZAGT, P.J., and GEIGER, J., concur.