author: PRESIDING JUSTICE BARRY JUSTICE McCULLOUGH,

text:
    ILLINOIS-IOWA BLACKTOP, INC., Appellant, v. THE INDUSTRIAL COMMISSION et al. (Odell Beck, Appellee).
    Third District (Industrial Commission Division)
    No. 3—87—0101WC
    Opinion filed April 7, 1989.

      McCULLOUGH, J., specially concurring.
    William R. Stengel, Jr., of Coyle, Gilman & Stengel, of Rock Island, for appellant.
    John H. Westensee, of Braud, Warner, Neppl & Westensee, of Rock Island, for appellee.
    Stevenson, Rusin & Friedman, of Chicago, for amicus curiae Illinois Manufacturers’ Association.
    Robert B. Maher, of Chicago, for amicus curiae Illinois Construction Industry Committee.
    Arthur C. Chapman, of Chapman & Roin, of Chicago, for amicus curiae Illinois Mechanical Specialty Contractors Association.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The arbitrator found that the petitioner, Odell Beck, a 51-year-old construction worker, was illiterate with a third-grade education and was totally and permanently disabled by back, hip and leg injuries suffered when he fell from a stationary truck. He found that the petitioner’s average weekly wage was $511.95 and that he was entitled to receive $341.30 per week. The Industrial Commission (Commission) affirmed the arbitrator’s findings and the circuit court confirmed the Commission’s decision. The respondent, Illinois-Iowa Blacktop, Inc., appealed to this court.

On April 21, 1988, we entered an opinion affirming the circuit court. We subsequently granted the respondent’s petition for rehearing. We further allowed the Illinois Manufacturers’ Association to file a brief amicus curiae in the rehearing, and we allowed the Illinois Mechanical Specialty Contractors Association and the Illinois Construction Industry Committee to adopt the amicus curiae brief. The amicus limited its presentation to the issue of the average weekly wage. Having considered the arguments advanced on rehearing, we find as follows.

One of the respondent’s two issues on appeal is whether the Commission’s determination that the petitioner was permanently totally disabled was against the manifest weight of the evidence. The evidence regarding the total permanent disability issue showed that on September 30, 1982, the petitioner was working for the respondent shoveling asphalt from the back of a stationary truck. The tailgate on which he stood suddenly gave way, causing him to fall approximately four feet, injuring his back, left hip and left leg.

The petitioner subsequently consulted several doctors and engaged in physical therapy under their care. On December 30, 1982, Dr. D’Angelo, an osteopathic physician, pronounced the petitioner fit to return to light-duty work requiring no repetitive bending, stooping, or lifting of objects greater than 20 pounds. The respondent had no work available within these restrictions at the beginning of the 1983 work season.

On July 28, 1983, Dr. D’Angelo released the petitioner, who had undergone further physical therapy, to return to work without restrictions. For the next couple of days, the petitioner operated a jackhammer for the respondent. He felt “something coming loose” in his back, which then became stiff and painful. The petitioner also tried working as a flagman for the respondent, but was unable to remain standing for long periods. He then discontinued working and has not worked since August of 1983.

Surgeon Myron B. Stachniw saw the petitioner and diagnosed him as suffering from herniated discs. On November 11, 1983, Dr. Stachniw performed a chemonucleolysis with chymopapain on the petitioner’s L4-L5 and L5-S1 discs. Secondarily, he diagnosed that the petitioner suffered from hypertension.

The medical evidence in the record consistently showed that the petitioner could perform only light work. Dr. Stachniw opined that the petitioner could do some sweeping and cleaning and could lift 20 pounds maximum. He could not sit or stand for a prolonged period, or perform any jobs requiring frequent bending or stooping. Dr. F. Dale Wilson stated that the petitioner could walk six or seven blocks; could sit one-half hour; could stand 10 to 15 minutes; should avoid bending or twisting and use care in turning; should avoid jolts or jars to his spine; and should not lift more than 10 to 15 pounds.

Given these restrictions, the experts uniformly doubted the petitioner’s ability to find work. Since 1965, the 53-year-old petitioner had worked exclusively for the respondent, performing only unskilled, manual labor. His formal education ended in the third grade and he could not read or write. Dr. Robert Chesser questioned how realistic a retraining program would be. Dr. Wilson agreed, adding that it was unlikely the petitioner would ever be gainfully employed again. G. Brian Paprocki, a vocational consultant hired by the petitioner, concluded that the petitioner had sustained a 100% industrial disability, in that there existed no realistic chance of the petitioner’s finding a job given his occupational abilities and his medical restrictions.

The respondent had no suitable work available for the petitioner. No rehabilitation offer was made by the respondent. The petitioner has not sought work elsewhere.

The evidence regarding the petitioner’s average weekly wage showed that each year the respondent employed the petitioner generally from April through December. The arbitrator found that the petitioner worked exclusively for the respondent for a period in excess of 15 years. During the “off” months, the petitioner collected unemployment compensation. He was not required to reapply each year for his construction job, but merely reported for work when called at the beginning of the season.

During the 52 weeks prior to his accident, the petitioner worked 20 weeks, earning $10,060.03 in regular wages. During this period, he also worked an additional 103.5 hours of overtime. The petitioner notes that if those 103.5 hours of overtime were calculated at his regular hourly wage, rather than at his higher overtime hourly wage, they would add $1,335.01 to his yearly earnings. His unemployment compensation rate was $154 per week.

A person is totally disabled when he cannot perform any services except those for which no reasonably stable labor market exists. (E.R. Moore Co. v. Industrial Comm’n (1978), 71 Ill. 2d 353, 376 N.E.2d 206.) In determining whether an employee can perform any useful services, his age, training, education and experience must be taken into account. Unless he is obviously unemployable or unless he presents medical evidence to support a claim of total disability, a claimant has the burden of proving that no employment is available for a person in his circumstances. (Valley Mould & Iron Co. v. Industrial Comm’n (1981), 84 Ill. 2d 538, 419 N.E.2d 1159.) However, once the claimant establishes that he falls into the “odd-lot” category of persons who are not altogether incapacitated but are so handicapped that they will not be employed regularly in any well-known branch of the labor market, the burden shifts to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. 84 Ill. 2d 538, 419 N.E.2d 1159.

In the instant case, the record contains substantial evidence that the petitioner is unemployable. Given his work restrictions, minimal education, and few job skills and age, Drs. Chesser and Wilson indicated that any attempts at rehabilitation would probably be fruitless. Dr. Wilson opined that it was unlikely the petitioner would ever be gainfully employed again. Vocational consultant Paprocki testified that the petitioner had sustained a 100% industrial disability, in that there was no realistic chance of his finding a job.

Based on this evidence, we find that the petitioner met his initial burden of proof under Valley Mould. There was no evidence to suggest that some kind of suitable work was available to the petitioner. Accordingly, we find that the Commission’s determination that the petitioner was permanently totally disabled was not against the manifest weight of the evidence.

The respondent’s second issue on appeal is that the Commission and the trial court erred in determining that the petitioner’s average weekly wage was $511.95.

Section 10 of the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.10) provides in pertinent part:

“The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows:

The compensation shall be computed on the basis of the ‘Average weekly wage’ which shall mean the actual earnings of the employee in the employment in which he was working at the time of the injury during the period of 52 weeks ending with the last day of the employee’s last full pay period immediately preceding the date of injury, illness or disablement excluding overtime, and bonus divided by 52; but if the injured employee lost 5 or more calendar days during such period, whether or not in the same week, then the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time so lost has been deducted.” (Emphasis added.) Ill. Rev. Stat. 1981, ch. 48, par. 138.10.

In the instant case, the petitioner “lost five or more calendar days during such period,” and, as we read the record, we find that the petitioner was in fact underpaid during the 52 weeks preceding his injury. Accordingly, the arbitrator, as approved by the Commission and the circuit court, used the hourly wage he was supposed to have been paid under his contract, from time to time, calculated what he should have earned during the preceding 52 weeks based upon the number of nonovertime hours he worked, and divided the total by the 20 weeks he actually worked to arrive at an average weekly wage of $511.95.

The respondent and the amicus curiae argue that the Commission should have divided the petitioner’s actual (nonovertime) earnings during the preceding 52 weeks by 52. In support of their position, the respondent and the amicus note that calculating by deducting lost time from the average weekly wage denominator, while paying workers’ compensation benefits the year round, gives the petitioner a compensation award greater than the income he earned while working. The respondent and the amicus contend that such a result provides an unacceptable windfall to injured workers, citing cases under prior section 10 of the Act. (Hasler v. Industrial Comm’n (1983), 97 Ill. 2d 46, 454 N.E.2d 307; Cardiff v. Industrial Comm’n (1984), 128 Ill. App. 3d 52, 470 N.E.2d 1091.) The respondent and the amicus further argue that one cannot lose what one never had. Accordingly, they conclude that section 10’s current provision for deducting lost days from the average weekly wage calculation applies only when the worker reasonably expected to work on the days he missed.

The current version of section 10 took effect September 15, 1980. Prior to that time, section 10 provided in relevant part:

“The basis for computing the compensation provided for in Sections 7 and 8 of the Act shall be as follows:

(a) The compensation shall be computed on the basis of the annual earnings which the injured person received as salary, wages or earnings if in the employment of the same employer continuously during the year next preceding the injury.

* * *

(e) As to [the] employees in employment in which it is the custom to operate for a part of the whole number of working days in each year, such number, if the annual earnings are not otherwise determinable, shall be used instead of 300 as a basis for computing the annual earnings, provided the minimum number of days which shall be so used for the basis of the year’s work shall be not less than 200.” Ill. Rev. Stat. 1979, ch. 48, pars. 138.10(a), (e).

In the Hasler and Cardiff cases, which were decided under the old section 10, the employees worked year round whenever their employers had work for them, Hasler performing both interior and exterior work as a painter and wallpaper hanger and Cardiff as a less-than-40-hour-per-week factory employee. Both employees sought to be classified as “seasonal” workers under section 10(e), so that the denominator used in calculating their average weekly wages would be lower, giving them a higher average weekly wage under the Act. In each case, however, the court determined the employees were employed part time and calculated the average weekly wage under section 10(a).

In so doing, the Illinois Supreme Court noted that, under section 10(e), claimant Hasler would receive an award nearly six times greater than her actual earnings. Similarly, the Cardiff court noted that, under section 10(e), the claimant would receive an award nearly 10 times greater than her average weekly wage. Both courts stated that the purpose of the Act is to compensate, or “make whole,” an injured employee, not to provide a windfall.

Having reexamined Hasler and Cardiff we find that, while the principle against awarding -windfalls was an important factor in both decisions, it was not the key factor. The primary factor in each case was the court’s finding that the two “on-call” employees were not intermittent employees under section 10(e), but were “continuously employed” so as to come under section 10(a). The respondent and the amicus here attempt to equate the “on-call” employment situations in Hasler and Cardiff "with the seasonal construction employee facts in the instant case.

The current version of section 10 appears to be a response by the legislature to Hasler and Cardiff. The new, simplified version of section 10 plainly states that in all cases where the employee lost five or more days of work during the 52 weeks prior to the injury, the lost time (to the extent not due to the fault of the employee) should be deducted from the wage calculation denominator. It is axiomatic that where the language of the statute is certain and unambiguous, the only legitimate function of the court is to enforce the law as enacted by the legislature. Certain Taxpayers v. Sheahen (1970), 45 Ill. 2d 75, 256 N.E.2d 758.

Examination of the legislative history of the current section 10 shows that it resulted from negotiations and compromise between business and labor interests. Senator DeAngelis, speaking to the Conference Committee Report on the subject bill, said:

“Thank you, Mr. President. Senator Bruce, you did a fantastic job explaining a bill that you were not handed too long ago. I wish we’d have had you from the beginning, but thanks for coming aboard. I obviously stand in support of this bill, and whatever happens to it, I do want to indicate up front that I want to thank all the members of the General Assembly, and particularly the hard work of the staffs on both sides for the unique response to a serious economic issue. I think what we have done, today, up to this point is a step forward for improving the image of Illinois not caring and I hope we can continue on a bi-partisan basis to continue to resolve the economic problems of Illinois. I urge your favorable support on this bill.” (81st Ill. Gen. Assem., Senate Proceedings, July 1, 1980, at 42.)

Representative Donovan, the house sponsor of House Bill 3250, said:

“Thank you. Mr. Speaker, Ladies and Gentlemen of the House, House Bill 3250 as amended by the Senate and as revised in Conference Committee provides for a comprehensive reform in Illinois Worker’s Compensation System. The terms of the Bill have been agreed by Members of both parties. And from all indications, both management and labor have agreed to the provisions. Mr. Speaker, I move for the concurrence with the First Conference Committee Report ***.” (81st Ill. Gen. Assem., House Proceedings, July 1,1980, at 255-56.)

The Conference Committee Report was overwhelmingly adopted by both Houses.

In drafting section 10 in a manner acceptable to the competing interests, the legislature obviously chose to dictate its own rates and calculation methods and departed from the revised model act issued by the Council of State Governments. Accordingly, the respondent’s and the amicus’ reliance on the model act in interpreting section 10 is unpersuasive.

In examining the legislative intent of section 10, we find that Senator Bruce, while explaining the Conference Committee Report on the subject bill in the Senate, said:

“Page forty-one, redefines the average weekly wage, so that a part-time employee is not paid on a full forty-hour week, but only receives compensation] — ]if he works ten hours, he gets two-thirds of this ten-hour actual earnings.” (81st Ill. Gen. Assem., Senate Proceedings, July 1,1980, at 22.)

Clearly, Senator Bruce’s statement concerns only part-time employees who are regularly not paid on a full 40-hour week basis, but are paid for a regular number of hours less than 40. As shown by his statement, if an employee actually worked 10 hours, the workers’ compensation rate would be two-thirds of the 10-hour earnings. However, this has no effect on construction workers.

The special considerations accorded construction and seasonal workers due to the unique nature of their work have long been recognized in Illinois. Thus, old section 10(e) deducted “off time” from the wage calculation denominator, but paid workers’ compensation benefits the year round. Senator Bruce obviously indicated no change by reciting the created limitation on benefits to be for part-time workers who work less than 40 hours per week. It is worth noting that the instant petitioner would have qualified as a seasonal worker under old section 10(e). See Rambert v. Industrial Comm’n (1985), 133 Ill. App. 3d 895, 477 N.E.2d 1364; Reynolds v. Industrial Comm’n (1986), 151 Ill. App. 3d 695, 502 N.E.2d 1178.

Further, we observe that the redesigning of the current section 10 resulted in a provision which both benefits and disadvantages both business and labor. For instance, under section 10, overtime wages, bonuses and unemployment compensation are not considered in calculating average weekly wages, even though as a practical matter they account for a significant part of many seasonal workers’ annual incomes, which benefit the employer. Offsetting those deductions is the instant lost-time deduction, which allows the Industrial Commission to calculate average weekly wages using a denominator of only those weeks actually worked, to the benefit of the employee. “Lost time” is synonymous with “off time,” unless caused by the employee as aforesaid, or the phrase has no purpose.

While it must be assumed that the legislature does not intend to reward idleness and penalize good energetic employees, we note that as a practical matter, under our interpretation of section 10, the petitioner’s compensation benefits will be more than his actual total income in the preceding year, but only slightly so. In this case the petitioner earned about $10,000 in regular wages, plus about $1,300 for overtime and received about $5,000 in unemployment benefits. We further consider that some construction workers might be injured during the first week of employment and others work most of the 52 weeks per year; that as far as weather is concerned, the construction season is longer in Carbondale than in Chicago; and that of course modern methods have lengthened construction seasons.

In any event, the slight windfall in this case is more than offset by the petitioner’s inability to ever work again, and, even under the former section 10, the principle against windfalls was not absolute. The former section 10(e) provided a windfall for seasonal workers by deducting lost time from the wage calculation denominator, but workers’ compensation benefits were paid the year around, as we have heretofore indicated.

Lastly, we also note that the respondent’s and the amicus’ arguments that the award discourages rehabilitation are not relevant. The petitioner was found to be totally and permanently disabled and rehabilitation was not advanced as an issue in the case. Regardless, the need or opportunity for rehabilitation is a decision to be justified by medical and other expert authorities. Here, there was no offer of rehabilitation.

Based on the plain language of the statute and its history, we find that the arbitrator, the Commission and the trial court correctly determined the petitioner’s average weekly wage. Due to the petitioner’s failure to file a cross-appeal, we will not consider the issue he raises regarding his compensation. National Football League Properties, Inc. v. Dallas Cap & Emblem Manufacturing, Inc. (1975), 26 Ill. App. 3d 820, 327 N.E.2d 247.

The judgment of the circuit court of Rock Island County is affirmed.

Affirmed.

McNAMARA, WOODWARD, and CALVO, JJ., concur.

JUSTICE McCULLOUGH,

specially concurring:

I agree with the result, but not the reasons therefor.

Section 10 provides four methods to determine the average weekly wage.

The first method determines the “actual earnings” of an employee who works 52 weeks prior to the injury date, with no lost time.

The second part of this same sentence applies to the same employee who but for lost days would have his average weekly wage determined pursuant to the first method. If he loses five or more calendar days during the 52-week period, whether or not in the same week, the time lost must be deducted and the earnings for the remainder of such 52 weeks shall be divided by the number of weeks and parts thereof remaining after the time lost has been deducted.

The above methods are included in one sentence and the average weekly wage definitions apply to the full-time employee.

The next sentence in section 10 provides a third method to compute “weekly average wage.” Where the employment prior to the injury extended over a period of less than 52 weeks, you divide the earnings by the weeks or parts thereof during which the employee actually earned wages.

I submit that the “average weekly wage” of an employee determined pursuant to the first three methods would be the same. There would be a slight difference for the employee who lost less than five days, i.e., one to four days.

The next sentence provides a fourth alternative and applies to employees:

(1) recently employed;

(2) whose employment is of a casual nature;

(3) with special terms of employment.

The weekly wage of this employee is determined by determining the wages earned by an employee “in the same grade,” employed at the same work, for each of 52 weeks for the “same number of hours per week,” for the same employer. This section appears to be legislative response to the supreme court’s decision in Vaught v. Industrial Comm’n (1972), 52 Ill. 2d 158. This method is to be used only when “it is impractical to compute the average weekly wages” by application of the three other alternatives.

It can be argued as impractical from a financial burden standpoint of the employer to apply the first three methods. The third method does fit the facts of this case. The employment extended over a period of less than 52 weeks prior to the injury. That the employee historically worked for many years for the same employer does not require a different result. As stated in Larson:

“[T]he purpose of the wage calculation is not to arrive at some theoretical concept of loss of earning capacity; rather it is to make a realistic judgment on what the claimant’s future loss is in the light of all the factors that are known.” 2 A. Larson, Workmen’s Compensation Law §60.21(c), at 10 — 667 (1987).

As stated above, the average weekly wage in this case should be determined by the third method. The employment extended over a period of less than 52 weeks prior to the injury. The time lost is deducted and the earnings of the “period” (the time of employment) are “divided by the number of weeks and parts thereof remaining after the time lost has been deducted.”


source: Caselaw Access Project

author: JUSTICE STOUDER

license: Public Domain

text:
    FARMERS AUTOMOBILE INSURANCE ASSOCIATION, Plaintiff-Appel-lee, v. JOSEPH SULIGOY et al., Defendants-Appellants.
    Third District
    No. 3—88—0498
    Opinion filed March 29, 1989.
    Rehearing denied May 1, 1989.
    Keith D. Luther, of Stephen Masters & Associates, of Joliet, for appellants.

      Edward R. Jaguays and Andrew B. Boyer, both of Snyder, Jaguays & Washburn, of Joliet, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff, Farmers Automobile Insurance Association, sued the defendants, Joseph and Diane Suligoy, for breach of a receipt in trust agreement. The trial court subsequently granted the plaintiff’s motion for summary judgment. The defendants appeal.

The record shows that around August 16, 1985, Diane Suligoy had a car accident with another motorist. While the motorist’s identity is unclear, it is not critical to the issue on appeal. Of more importance is the fact that, at the time of the collision, the defendants were insured by the plaintiff.

The plaintiff’s complaint filed in this suit alleged that after Diane’s accident it entered into a receipt in trust agreement with the defendants. Under the terms of the agreement, the plaintiff promised to pay the defendants $3,627.38 under the uninsured motorist provision of the insurance policy. In return the defendants promised that they would do nothing to prejudice the plaintiff’s right of recovery against those legally responsible for the car accident.

The defendants subsequently entered into an agreement releasing Robert and Eleanor Zinkiewiez from any further liability arising from the car accident. In return the Zinkiewiczes paid the defendants $1,000. The defendants admitted in their amended answer to the plaintiff’s complaint that they had signed the release. They denied, however, that they had thereby prejudiced the plaintiff’s right to recover from those legally responsible for the loss.

After the defendants filed their amended answer, the plaintiff moved for summary judgment, alleging that the defendants had breached their agreement with the plaintiff by releasing the Zinkiewiczes from any subrogation claim on behalf of the plaintiff. The trial court granted the plaintiff’s motion.

On appeal, the defendants argue that summary judgment should not have been granted since a genuine issue of material fact existed as to whether the Zinkiewiczes or their insurance company knew about the plaintiff’s subrogation interest. In support of their argument, the defendants cite the general rule: An unlimited release executed by a subrogor for consideration, which does not specifically include an amount designated as covering the insurer’s subrogation interest, does not bar a subsequent subrogation action by the insurer against the tort-feasor. This is true if the tort-feasor or his insurance carrier had knowledge of the insurer’s interest prior to the release. Home Insurance Co. v. Hertz Corp. (1978), 71 Ill. 2d 210, 375 N.E.2d 115.

A motion for summary judgment should be granted “if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c).) In ruling on the motion, the trial judge should construe the pleadings, affidavits, exhibits and depositions most strictly against the moving party and most liberally in favor of the opponent. (Staton v. Amax Coal Co. (1984), 122 Ill. App. 3d 631, 461 N.E.2d 612.) A general denial in the opponent’s answer is insufficient in itself to create a genuine issue of material fact. Epstein v. Yoder (1979), 72 Ill. App. 3d 966, 391 N.E.2d 432.

We note that the defendants never raised the knowledge issue in any of their answers. The defendants merely denied that the plaintiff’s rights were prejudiced. Section 2 — 613(d) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 613(d)) provides that the facts constituting an affirmative defense must be plainly set forth in the answer to the complaint. We find that the instant knowledge issue is in the nature of an affirmative defense and therefore should have been specifically raised in the defendants’ answer.

We also find unpersuasive the defendants’ reliance on the fact that in their brief filed with their motion to reconsider they raised the issue of the tort-feasor’s knowledge. It was incumbent on the defendants to raise this knowledge defense in their answer. Since they did not do so, we conclude that the trial court had before it no genuine issue of material fact and therefore correctly granted the plaintiff’s motion for summary judgment.

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

Affirmed.

BARRY and HEIPLE, JJ., concur.


author: JUSTICE O’CONNOR

text:
    COMMONWEALTH EDISON COMPANY, Petitioner-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.-CITI-ZENS UTILITY BOARD, Petitioner-Appellant, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.-COMMUNITY ACTION FOR FAIR UTILITY PRACTICE et al., Petitioners-Appellants, v. THE ILLINOIS COMMERCE COMMISSION et al., Respondents-Appellees.
    First District (1st Division)
    Nos. 1—88—1437, 1—88—1833, 1—88—2030, 1—88—2231 cons.
    Opinion filed December 30, 1988.
    Rehearing denied January 30, 1989.— Modified opinion filed February 14, 1989.

      David F. Graham, Howard J. Trienens, and Michael I. Miller, all of Sid-ley & Austin, of Chicago, for Commonwealth Edison Company.
    Robert L. Graham, Norman M. Hirsch, and Stuart M. Gimbel, all of Jenner & Block, of Chicago, for Citizens Utility Board.
    Allen W. Cherry and James Biggs, both of Legal Assistance Foundation, of Chicago, for South Austin Coalition Community Council, Community Action for Fair Utility Practice, and National People’s Action.
    Richard M. Daley, State’s Attorney, of Chicago (Glenn C. Carr and Jack A. Pace, Assistant State’s Attorneys, of counsel), for People of Cook County.
    Neil F. Hartigan, Attorney General, of Springfield, and Office of Public Counsel, of Chicago (Michael J. Kelly, Karen L. Lusson, and Joan G. Fick-inger, Assistant Attorneys General, of Chicago, and Stephen J. Moore and Thomas H. Rowland, of counsel), for the People.
    Clyde Kurlander, Edward P. O’Brien, and John P. Kelliher, all of Illinois Commerce Commission, of Chicago, for respondent Illinois Commerce Commission.
   JUSTICE O’CONNOR

delivered the opinion of the court:

In this consolidated case, Commonwealth Edison Company is petitioning for a review of the order by the Illinois Commerce Commission (Commission) of April 27, 1988 (docket No. 86 — 0128), previously stayed by this court. That order reduced the seasonal differential for residential rates by decreasing summer charges and increasing non-summer charges. The Citizens Utility Board (CUB), Community Action for Fair Utility Practice (CAFFUP), National People’s Action (NPA), South Austin Coalition Community Council (SACCC) and the People of the State of Illinois by the Attorney General of the State of Illinois (hereinafter collectively referred to as CUB) are petitioning for review of the order of June 8, 1988 (docket No. R. 18712), in which the Commission subsequently granted Edison’s petition for special permission to revise its seasonal rate differential without providing 45 days’ notice to the Commission and the public as required by section 9 — 201 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 1112/3, par. 9 — 201). The Cook County State’s Attorney, on behalf of the People of Cook County, filed a brief supporting the Commission’s April 27, 1988, order. The office of public counsel, on behalf of the People of the State of Illinois, filed briefs supporting the Commission’s April 27, 1988, order and supporting reversal of the Commission’s June 8, 1988, order.

The principal questions raised on review are whether this court has jurisdiction to review the Commission’s action and whether the Commission’s June 8 decision in docket No. R. 18712 was arbitrary and capricious and is therefore void.

Commonwealth Edison, petitioner in case No. 88 — 1437, filed a revised residential rate schedule with the Illinois Commerce Commission, the intended purpose of which was to reduce between summer and nonsummer residential rates the differential which had been the cause of substantial customer dissatisfaction. Hearings were held over a period of approximately two years in an effort to determine the appropriate level of Edison’s seasonal rate differential and extensive testimony was introduced by Edison, the Commission and the consumer intervenors. The proposal was designed to be revenue neutral in that the loss of revenue caused by the decrease in summer rates would be offset by the gain from increased nonsummer rates.

On April 23, 1988, the Commission served its final order in docket No. 86 — 0128, reducing the summer charges and increasing nonsum-mer charges. The Commission’s order instituted the following set of rates for Edison’s residential service:

Energy Charges

Summer

0 to 400 kwh $0.09600

Over 400 kwh 0.12500

Nonsummer

0 to 400 kwh $0.06130

Over 400 kwh 0.06130

The Commission found that these rates were revenue neutral on an annual basis and that Edison’s claims of a lack of revenue neutrality had been “reasonably addressed.” The Commission also concluded that “restructuring of the residential rates *** is in the public interest and responds to justifiable customer dissatisfaction with the current rate structure.”

The parties strongly disagree as to whether the rates established in the order were revenue neutral. Edison contends that they were not revenue neutral because they were instituted in mid-year and therefore Edison would obtain summer revenues lower than necessary in order to maintain revenue neutrality through the end of calendar year 1988. CUB contends that Edison would not suffer irreparable harm and points out that, in the past, the Commission has never required revenue neutrality on a calendar-year basis. Rather, the Commission has consistently set rates based on a 12-month period, and CUB notes that on a 12-month basis, the rates would be revenue neutral.

Following the entry of the Commission’s order, Edison filed an application for rehearing and motion for stay of order. The Commission denied Edison’s motion, and Edison petitioned this court for a review of the order in docket No. 86 — 0128 and a stay of the Commission’s order pending review. Edison alleged in the petition that residential customers would not be harmed by a stay of the Commission’s order because of the potential availability of refunds. This court granted a stay on May 13, 1988.

On June 3, 1988, Edison then filed with the Commission a petition for special permission to file revised rates for residential service in less than 45 days. (Docket No. R. 18712.) One of the bases for the requested special permission was the change in circumstances occasioned by the stay. The proposed rates were substantially different from the rates found by the Commission to be in the public interest in docket No. 86 — 0128. CUB pointed out in its petition for rehearing that Edison’s proposed rates would increase Edison’s revenues by about $140 million over a 12-month period, a fact that Edison does not dispute. The proposed rates, shown below, were almost identical to those proposed by Edison in its March 31, 1988, tariff, which had been suspended by the Commission on April 27, 1988.

Energy Charges

Prior June 3,1988 March 31,1988 Docket No.

Rates Tariff Tariff 86 — 0128 Order

Summer

0 to 400 kwh $0.14165 $0.12375 $0.12417 $0.09600

Over 400 kwh $0.14165 $0.12375 $0.12417 $0.12500

Nonsummer

0 to 400 kwh $0.07633 $0.12375 $0.12417 $0.09600

Over 400 kwh $0.04786 $0.05230 $0.05000 $0.06130

On June 8, 1988, the Commission granted Edison’s petition. No hearings were held on the proposed rate change and no notice was provided to the interested parties. The Commission did not explain its reversal of the rates approved in docket No. 86 — 0128 nor did it explain its approval of a calendar-year revenue neutral redesign of Edison’s rates which was contrary to established Commission practice of instituting rate changes on a 12-month revenue neutral basis. In cases Nos. 88 — 1833, 88 — 2030 and 88 — 2231, CUB contends that the Commission’s June 8 decision granting Edison’s petition without notice, a hearing, evidence or findings of fact was beyond the Commission’s jurisdiction and should be set aside.

The first argument raised by Edison is that discretionary nonsuspension orders are not subject to direct judicial review and therefore this court lacks jurisdiction to review the Commission’s June 8, 1988, order. Edison claims that the June 8 order is unreviewable for three reasons. First, under Antioch Milling Co. v. Public Service Co. (1954), 4 Ill. 2d 200, 123 N.E.2d 302, the decision not to suspend a newly filed tariff cannot be reviewed for “abuse of discretion” as there is no requirement that the Commission make findings in support of its decision. Therefore, a reviewing court would be limited to speculating as to the reasons for the Commission’s decision. Second, such decisions are not reviewable because of their preliminary and nonfinal nature. In choosing to suspend a tariff or allow it to take effect, the Commission does not resolve the issue of reasonableness; thus, this is an interlocutory order inappropriate for review under the Public Utilities Act. Third, there is a complaint mechanism available to CUB that not only would create a final and reviewable order, it would also provide adequate retroactive relief in the form of reparations with interest to any party aggrieved by the interim operation of an unsuspended tariff.

We do not view this matter as a decision not to suspend pursuant to section 9 — 201 but rather as an order altering and rescinding a prior order of the Commission pursuant to section 10 — 113 (Ill. Rev. Stat. 1987, ch. 11 TVs, par. 10 — 113), an order this court has jurisdiction to review.

While there is no question but that the courts have given the Commission great discretion in determining whether to suspend or not to suspend rates (Antioch Milling Co. v. Public Service (1954), 4 Ill. 2d 200, 204, 123 N.E.2d 302), the context in which the courts have discussed the issue of Commission discretion has been that of traditional rate cases. See, e.g., Antioch Milling (1954), 4 Ill. 2d 200, 204-06, 123 N.E.2d 302; see also City of Chicago v. Illinois Commerce Comm’n (1958), 13 Ill. 2d 607, 610-11, 150 N.E.2d 776; Central Illinois Public Service Co. v. Illinois Commerce Comm’n (1955), 5 Ill. 2d 195, 210-11, 125 N.E.2d 776.

In Antioch Milling, a party challenged the Commission’s grant of permission allowing a change in a utility’s rates without first conducting formal hearings on the change and without the issuance of an order containing specific findings of fact to support the change. The court, in analyzing section 36 of the Public Utilities Act (Ill. Rev. Stat. 1953, ch. 1112/3, par. 36 (now 111. Rev. Stat. 1987, ch. 1112/3, par. 9 — 201)), specifically held that neither prior evidentiary hearings nor express findings of fact were required as a condition precedent to placing a change in rates into effect. Antioch Milling, 4 Ill. 2d at 204-06.

Unlike the circumstances in Antioch Milling, this matter has not come before the court as a traditional rate case, and therefore we do not believe Antioch Milling is dispositive. In a traditional rate case, the utility asks for a rate change, the Commission determines whether to suspend the tariff or let it go into effect and the Commission then may hold hearings to determine whether the rate was just and reasonable. (Ill. Rev. Stat. 1987, ch. 1112/3, par. 9 — 201.) Here, in contrast, the Commission’s determination of what would constitute an appropriate rate differential did not begin when the petition for special permission was filed on June 3, 1988. It began in 1986 when the Commission suspended Edison’s initial tariff on summer-winter rates and conducted an extensive investigation over a two-year period to determine appropriate rates. Following the investigation, the Commission ordered a new rate structure which it had determined to be in the public interest. At the same time, the Commission suspended an alternative rate proposal that had been filed by Edison on March 31, 1988.

Although Edison characterizes the June 3 petition as a new rate filing, in substance it was a petition for rehearing in that it sought to modify and rescind the Commission’s earlier order. Like the April 27 order, the June 3 petition addressed the issue of reducing customer dissatisfaction with the seasonal rate differential. In addition, the rates proposed by Edison in the special permission were within $.00045 of the rates set forth in the March 31 tariff which the Commission had suspended the same day as it entered the April 27, 1988, order. Edison itself acknowledged that the rate change sought in the special permission was merely a partial solution to the seasonal rate differential problem and an alternative means of addressing the issue. At Edison’s urging, the Commission in effect altered and rescinded its April 27 order as contemplated by section 10 — 113 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. 1112/s, par. 10 — 113), and such decisions are subject to review by this court pursuant to section 10— 201 (Ill. Rev. Stat. 1987, ch. 1112/3, par. 10-20).

We next address CUB’s claim that the Commission’s June 8 decision was arbitrary and capricious and is therefore void. Edison’s position is that in the absence of findings and an evidentiary record as to the reasonableness of the new tariff, there is no basis for finding the Commission’s June 8, 1988, order arbitrary and capricious. Edison contends that there is no inconsistency between the Commission’s June 8, 1988, order and any of its past decisions. Edison points out that the purpose of the Public Utilities Act is to provide “machinery for continuous regulation as changes in conditions require” (Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1953), 414 Ill. 275, 281, 111 N.E.2d 329), and that past rate decisions do not foreclose the Commission from considering or accepting newly proposed tariffs.

Edison also contends that the orders are not inconsistent because they are procedurally different: the April 27, 1988, order was a decision on the merits, based on various findings, and the June 8 order was not. Furthermore, Edison suggests that the fact that the June 8 rates differ from the April 27 rates does not mean that the new rates cannot also be “just and reasonable” and within the discretion of the Commission to impose.

Edison also argues that numerous changes occurred subsequent to the April 27 order which justify the June 3 tariff. First, Edison claims that the June 3 tariff itself is a change in circumstances as the rates differed from those considered in docket No. 86 — 0128. Second, Edison points out that it was contemplated that Edison’s general rate case would be decided by July 19, 1988, thereby allowing shortfalls resulting from the April 27 order to be compensated for in 1988 and this rate case has not yet been decided. Third, Edison claims that this court’s stay of the April 27 order left intact the prior rate schedule which all of the parties agreed was unfair. Edison’s final point in this regard is that under Chicago Housing Authority v. Illinois Commerce Comm’n (1960), 20 Ill. 2d 37, 42, 169 N.E.2d 268, any inconsistency in the orders is irrelevant as the only issue raised by a newly filed tariff is its reasonableness.

In further support of its argument that the June 8 order was not arbitrary and capricious, Edison argues that the June 8 order was an attempt to achieve revenue neutrality for the calendar year 1988, which the April 27 order failed to do. Edison claims that the April 27 order would have resulted in a revenue reduction because the rates were to remain in effect only until December 31, 1988, rather than for a 12-month period.

Initially, we disagree with Edison’s claim that, in the absence of specific findings, this court cannot review the Commission’s action for abuse of discretion. To do so does not require that we determine whether the rates established by the Commission were proper. It requires only that we determine why the Commission acted as it did, whether the Commission had established a general policy, whether it followed or deviated from that policy in establishing docket No. R. 18712 and whether it had a rational basis for its decision. We believe it did not and agree with Commissioner Romero’s conclusion that the Commission abandoned the rules of principled regulation in an effort to approve any tariff which would lower the summer rates however slight the reduction.

We believe the Commission’s June 8 order was arbitrary and capricious in that it rescinded prior valid orders of the Commission in the absence of any change in circumstance and it allowed a change in Edison’s rate design which was revenue neutral on a calendar year rather than a 12-month basis, contrary to accepted Commission practice. Further, we find the Commission’s action to be contrary to law in that it violated section 10 — 113 of the Public Utilities Act.

While section 9 — 201 of the Public Utilities Act grants the Commission discretion to permit proposed rates to take effect without a hearing (Antioch Milling Co. v. Public Service Co. (1954), 4 Ill. 2d 200, 204, 123 N.E.2d 302), an agency’s discretionary powers “must be exercised judiciously, not arbitrarily.” (Robert N. Nilles, Inc. v. Pollution Control Board (1974), 17 Ill. App. 3d 890, 894, 308 N.E.2d 640.) An administrative agency’s exercise of discretion will be set aside when the authority is exercised in an arbitrary or unreasonable manner or when it is a clear violation of a rule of law. Cotovsky v. Department of Registration & Education (1982), 110 Ill. App. 3d 417, 424, 442 N.E.2d 520, appeal denied (1983), 93 Ill. 2d 541; City of Hurst v. Illinois Commerce Comm’n (1983), 120 Ill. App. 3d 354, 360, 458 N.E.2d 568.

The Commission’s order in docket No. 86 — 0128 represented a careful resolution of the controversy surrounding Edison’s seasonal rate differential. That order was entered after more than two years of litigation. Appropriate procedural safeguards were employed in docket No. 86 — 0128, including several hearings, extensive briefing by the parties, oral argument and detailed findings of fact. On the basis of that record, the Commission set forth the rates it determined to be in the public interest.

However, without a hearing and upon only five days of consideration, the Commission granted Edison’s petition for special permission, which radically altered the residential rates established in docket No. 86 — 0128. In our opinion the Commission’s decision to supersede rates it had determined to be in the public interest less than two months earlier was arbitrary and capricious.

The rates authorized by the Commission on June 8 were substantially different from the rates previously established by the Commission in docket No. 86 — 0128, as the comparative chart previously set out Hlustrates. The Commission’s June 8 decision increased the energy charges by nearly 3 cents per kilowatthour for residential customers’ first 400 kilowatthours of electricity used during both the summer and nonsummer periods compared to the rates set in docket No. 86 — 0128, an increase of approximately 30%. Moreover, the June 8 decision perpetuates the summer flat rate despite the nearly unanimous evidence that led the Commission to establish an inverted summer rate structure in docket No. 86 — 0128. Thus, the Commission’s June 8 decision resulted in a significant change in the residential rates which the Commission had found, in docket No. 86 — 0128, to be in the public interest in April 1988. In addition, the rate structure authorized in the special permission was virtually identical to the proposed rates contained in Edison’s March 31, 1988, tariff, a tariff which the Commission suspended on April 27, 1988, after determining that the March 31 rates should not be put into effect without a hearing.

Although, as stated previously, the parties disagree as to the revenue neutrality of docket No. 86 — 0128, we believe the Commission’s decision on June 8 to allow a change in Edison’s rate design that was not revenue neutral on a 12-month basis was arbitrary and capricious as it was clearly contrary to accepted Commission practice. As the Commission recognized in its motion in this court to vacate the stay of docket No. 86 — 0128, “[i]t is a fundamental principle of utility regulation that rates are set by the Commission through use of a 12-month measuring period.” The Public Utilities Act does not require that rates be set on anything other than a 12-month basis, yet here the Commission permitted Edison to reduce the seasonal rate differential in a manner designed to produce neutral revenues during the remainder of 1988 rather than on an annual basis. The apparent effect of this departure from the Commission’s normal regulatory practice is to produce a windfall of approximately $140 million in revenue over a 12-month period.

The 12-month measuring period for determining the revenue neutrality of changes in Edison’s rate design was used by the Commission in docket No. 86 — 0128. It was also used in April of 1979, when Edison’s seasonal rate differential was initially instituted and all subsequent changes have uniformly applied the 12-month measuring period. See Re Commonwealth Edison Co. (1985), 71 P.U.R4th 81, 126-28; Re Commonwealth Edison Co. (1984), 61 P.U.R.4th 1, 47; Re Commonwealth Edison Co. (1982), 50 P.U.R.4th 221, 258.

The Commission’s approval of Edison’s request for a calendar-year revenue neutral redesign of the company’s rates, in light of the Commission’s established practice of instituting such rate design changes on the basis of annual revenue neutrality, was arbitrary and unlawful. Although the time frame to be employed in analyzing a proposed rate design’s effects on revenue falls within the scope of the Commission’s “sound business judgment” (Illinois Bell Telephone Co. v. Illinois Commerce Comm’n (1973), 55 Ill. 2d 461, 476, 303 N.E.2d 364), the Commission “may not depart, sub silentio, from its usual rules of decision to reach a different, unexplained result in a single case” (National Labor Relations Board v. International Union of Operating Engineers, Local 925, AFL-CIO (5th Cir. 1972), 460 F.2d 589, 604). In the present matter, the Commission radically altered its past practice regarding the time frame for analyzing revenue neutrality without notice to interested parties, a hearing, or any readily apparent reason.

Edison’s contention that the Commission's past decisions cannot limit the scope of its authority under section 9 — 201 is not well founded under the circumstances here. While ordinarily an administrative action taken pursuant to statutory authority is entitled to great deference, an agency action that represents an abrupt departure from past practice is not entitled to the same degree of deference by a reviewing court. See Olin Corp. v. Pollution Control Board (1977), 54 Ill. App. 3d 480, 485, 370 N.E.2d 3, appeal denied (1978), 71 Ill. 2d 599.

The special permission also altered and rescinded the April 27 order contrary to section 108 — 113 of the Public Utilities Act. Section 10 — 113 provides that “the Commission may at any time, upon notice to the public utility affected, and after opportunity to be heard as provided in the case of complaints, rescind, alter or amend any rule, regulation, order or decision made by it.” (Ill. Rev. Stat. 1987, ch. lll2/3, par. 10 — 113.) It is well settled that “an administrative agency may allow a rehearing, or modify and alter its decisions, only where authorized to do so by statute.” (Pearce Hospital Foundation v. Illinois Public Aid Comm’n (1958), 15 Ill. 2d 301, 307, 154 N.E.2d 691; see also People ex rel. Olin Corp. v. Department of Labor (1981), 95 Ill. App. 3d 1108, 1112, 420 N.E.2d 1043, appeal denied (1981), 85 Ill. 2d 574.) Where statutory requirements are not followed as to notice, hearing, the presentation of evidence and finding of fact, the Commission loses its jurisdiction to act and any order entered by the Commission under such circumstances is void. See American National Bank & Trust Co. v. Pennsylvania R.R. Co. (1964), 52 Ill. App. 2d 406, 431-32, 202 N.E.2d 79, aff’d (1966), 35 Ill. 2d 145, 219 N.E.2d 529, cert. denied (1967), 385 U.S. 1035, 17 L. Ed. 2d 683, 87 S. Ct. 777.

We believe that the June 8 action was not a newly proposed rate, as Edison now contends, but an attempt to get the Commission to rehear issues that it had recently resolved. This conclusion is based on the fact that Edison raised the same issues relative to the seasonal rate differential in both tariffs and that it relied on the stay of the April 27 order as a basis for introducing the June 3 tariff. In its petition for special permission, Edison acknowledged as much when it stated:

“Reduction of the seasonal differential in charges for residential customers is an objective that Edison and the Commission share. To this end, Edison recently filed an application for Rehearing in Docket No. 88 — 0104 urging the Commission to permit the version of Rate 1 which Edison filed on March 31, 1988 to take effect with the start of summer billing. As an alternative means of achieving this objective, Edison now requests that the rates shown in Exhibit A be allowed to become effective for the first summer billings and thereafter, rather than the rates fixed on March 31, 1988.”

As such, the Commission’s decision to grant Edison’s petition for special permission without notice, a hearing, evidence or findings of fact was beyond the Commission’s jurisdiction and is void.

With respect to Edison’s claim that the special permission was appropriate based on changed circumstances, there is no question but that our approval of Edison’s request for a stay of order No. 86— 0128 was not intended to constitute changed circumstances sufficient to justify modification of the April 27 order. In its memorandum in support of its motion for stay of order, Edison stated that it sought a stay “to preserve the status quo in aid of this court’s ultimate jurisdiction to review the order.” Edison further stated that the stay did “not threaten irreparable injury to any party” and that “the purpose of a stay pending judicial review is not to decide the merits but to preserve the court’s ability to do so.” This court granted the stay, at Edison’s request, only for the purpose of preserving the status quo pending review, not for the purpose of justifying a modified tariff proposal.

In summary, we find that the order of the Illinois Commerce Commission entered on April 27, 1988, in docket No. 86 — 0128 was lawful as the rates set in that order were the results of two years’ preparation and were established consistent with the Commission’s past practices and procedural fairness to the consumer interveners. The June 8 special permission in docket No. R. 18712 modifying that order contrary to section 9 — 201 of the Public Utilities Act (Ill. Rev. Stat. 1987, ch. lll2/3, par. 9 — 201) is void and must be set aside.

Accordingly, the stay entered by this court on May 13, 1988, in appeal No. 88 — 1437 is vacated and Edison’s motion for declaration of mootness is denied.

No. 1 — 88—1437, Order affirmed.

Nos. 1 — 88—1833, 1 — 88—2030, 1 — 88—2231, Order reversed.

BUCKLEY and MANNING, JJ., concur.


author: JUSTICE BUCKLEY

text:
      In re MARRIAGE OF ANDREE WRIGHT, Petitioner-Appellee and Cross-Appellant, and ORIN MARSHALL WRIGHT, Respondent-Appellant and Cross-Appellee.
    First District (1st Division)
    No. 1—83—2791
    Opinion filed July 7, 1986.
    Rehearing denied February 29, 1989.

      Jeffrey D. Colman and Cynthia G. Bowman, both of Jenner & Block, of Chicago, for appellant.
    Robert Handelsman, of Robbins, Coe, Rubinstein & Shafran, Ltd., of Chicago, for appellee.
   JUSTICE BUCKLEY

delivered the opinion of the court:

On July 25, 1983, the trial court entered a judgment dissolving the marriage of petitioner Andree Wright (Andree) and respondent Orin Marshall Wright (Marshall). Respondent appeals the court’s determination as to property division, maintenance and attorney fees. Petitioner cross-appeals as to these same issues. For the following reasons, we affirm.

The parties were married on August 21, 1977. It was Marshall’s third marriage and Andree’s first. At the time of their marriage, Marshall was 34 years old and a commodities broker. Andree was 31 years old and a professional hairdresser and beautician. In April 1981, after approximately 3^2 years of marriage, Andree filed a petition to dissolve the marriage. The parties had no children.

Trial of this case commenced in February 1983 on the issues of property division and maintenance. The major property dispute concerned a seat on the International Monetary Market (IMM seat). The IMM is a division of the Chicago Mercantile Exchange (CME) and is one of the major commodities markets in Chicago. Marshall maintained at trial that the IMM seat was his separate, nonmarital property. Alternatively, he urged that if the IMM seat were marital property, Andree should be required to share not only in the value of the asset, but also in the contingent liability (a pending lawsuit) relating directly to the IMM seat.

The facts pertaining to the acquisition of the IMM seat are as follows. Prior to the parties’ marriage, Marshall worked as a registered representative for various commodities firms in Chicago. Sometime in 1977, before their marriage, a friend of Andree’s introduced Marshall to an individual named Bernard Mirochnick. In May or June of 1977-more than two months before the marriage — Marshall and Mirochnick agreed to go into the commodities business together. They set up the MW Trading Company and on July 14, 1977, they purchased the seat on the IMM. Mirochnick took out a loan at the Des Plaines National Bank to finance the purchase of the seat; MW Trading Company was obligated to make the monthly payments on the note.

Marshall and Mirochnick agreed in July of 1977 that MW Trading Company would own the seat on the IMM and that Mirochnick would own 100% of the stock of MW Trading Company. They were not informed, however, that the IMM would not permit either Mirochnick or the corporation to own the seat. As a result, on July 22, 1977, the seat was formally placed in Marshall’s name as nominee for the MW Trading Company.

At the same time the seat was placed in Marshall’s name, Marshall and Mirochnick agreed that Marshall would have an option to purchase MW Trading Company’s stock from Mirochnick whenever Marshall so desired. This option was orally agreed to prior to the August 21, 1977, wedding. On October 3, 1977, the oral option was incorporated into a written option agreement between Marshall and Mirochnick.

In January 1978, Marshall executed his right under the option to purchase the stock of MW Trading Company from Mirochnick. Under the terms of the option agreement, Marshall had two alternatives: he could pay Mirochnick 10% a month for 10 months, or he could make a lump-sum payment. Marshall made 10% payments on January 15, 1978, and March 15, 1978, and then elected to pay the balance in one lump-sum payment. To finance the first two 10% payments, Marshall borrowed money from Andree’s brother, Marc Benaim. To finance the final payment, money was borrowed from the Bank of Commerce and Industry in Chicago. Benaim, Andree and Marshall each signed the note on the loan.

At the time Marshall borrowed the money from Benaim, they had conversations about entering into a partnership together. Marshall maintained that no partnership agreement was ever consummated. Andree and Marc Benaim disagreed.

Andree testified that Marshall and her brother agreed to a partnership. She stated their agreement provided that in the event of a marital breakdown, Benaim would own 50% of the stock in the company, Marshall would own 25% and that she would own the remaining 25%.

Benaim maintained that an oral partnership agreement was reached and that Marshall promised to give 50% of the seat and the MW Trading Company stock to Benaim in exchange for Benaim’s loan and his signature as guarantor on the bank loan. In addition, Be-naim alleged that he is entitled to 50% of all profits made by MW Trading Company. In May 1980, Benaim sued Marshall Wright in the circuit court of Cook County to enforce the alleged partnership agreement. (Marc Benaim v. Marshall Wright, No. 80 — CH—3476.) It was stipulated at the outset of the dissolution proceedings that Benaim was seeking 50% of the value of the IMM seat. The suit was pending at the time the trial court entered its judgment of dissolution.

Evidence was also presented at trial as to the parties’ income. The parties’ joint tax returns from 1977 to 1981 show an adjusted gross income of $15,169 in 1977; $19,699 in 1978; $15,391 in 1979; $99,647 in 1980; and $112,134 in 1981. The income was earned primarily by Marshall.

Andree was trained as a beautician in Paris, France, and was licensed in Illinois. She testified that prior to the parties’ marriage in August 1977, she worked as a hairdresser and beautician. From 1973 to 1976, she earned $300 to $500 per week while working for her brother, a well-known hairdresser. She was later employed part-time as a hairdresser at a Clark Street salon, earning $40 to $50 per week. She continued working at the salon until she was fired several months after her marriage. She did not find another job and remained unemployed during 1978. In 1979, she began working part time out of her home, earning $75 per week. Following the parties’ separation in April 1981, Andree continued to work out of her home. She testified she earned approximately $300 per month, but also acknowledged that she did not file any income tax returns for 1981 or 1982.

Andree stated that she cannot work with her brother anymore because they do not get along. She further testified that while she is licensed to cut hair in Illinois, her brother is so well known in the industry that it is very difficult to get a job at a salon in the Chicago area because prospective employers fear that she will build up her own clientele, leave them and take her clientele over to her brother.

Andree testified about the lifestyle she and Marshall enjoyed upon the improvement of their income. They went to California several times a year, spent three weeks in Europe, and took vacations to Mexico and the Caymen Islands. Andree estimated she spent $500 to $1,000 per month on clothes, $150 per week for shoes, $224 per week for cosmetics and manicures and facials, and $87 per week for handbags.

During most of their marriage, the parties lived in a one-bedroom apartment they rented at McClurg Court in Chicago for approximately $675 per month. Shortly before their separation, they rented a second adjoining one-bedroom apartment, paying a total rent of $1,452. The court had entered a temporary support order in 1981 ordering Marshall to pay Andree that rent plus $400 per month. In April 1983, Marshall was ordered to pay Andree temporary maintenance of $2,500 per month, retroactive to December 1,1982.

After reviewing all of the evidence, the court drew up its own “balance sheet.” The court found total marital assets of $238,396 and marital liabilities of $80,777, leaving a net worth of $157,519. The trial court concluded that the entire IMM seat was marital property, reasoning as follows:

“Even assuming that there was an oral option granted to Mr. Wright to acquire the seat before the marriage, the fact of the matter is that the executed contract was dated October of 1977. Two months after the marriage.
I don’t think that Mr. Wright can derive any comfort from the fact that he held the seat in his name since July of 1977, because I think it is clear that he was only holding it as a nominee for the corporation. I think that the reality is that he acquired this seat in 1978 partly with his own funds and partly with financial assistance from Mr. Benaim. Therefore, I am convinced that the seat is a marital asset.”

The trial court did not place any value on Benaim’s claim to 50% of the IMM seat and the MW Trading Company stock. The court, however, did value as a liability the $26,800 balance due on the loan from Benaim and, as an offset, it deducted $5,000 that Marshall claimed he loaned Benaim. The court’s balance sheet, as reflected in its judgment of July 26,1983, is as follows:

ASSETS

DESCRIPTION AMOUNT

Cash

Personal Bank Account $ 746

Trading Account 4,281

Error Account 224

$ 5,251

MW Trading, Inc.

Assets 12,782

Liabilities (6,598)

6,184

MW Financial, Inc. -0-

MW Advisory, Inc. 1,810

MW Management, Inc. 7,407

IMM Seat 165,000

IOM Seat 48,000

Harris Loan (30,000)

18,000

Guns 13,799

Marital Property

in Husband’s Possession 6,700

Marital Property

in Wife’s Possession 6,895

13,595

Amount due from Mirochnick 7,350

TOTAL ASSETS $238,396

LIABILITIES

Back Taxes $ 46,848

McClurg Court Claim 12,229

Benaim Claim 21,800

TOTAL LIABILITIES $ 80,877

NET WORTH .. .. .$157,519

The court determined that Marshall should receive 65% of the $157,519 net worth and Andree 35%. In addition, the court ordered Marshall to pay Andree maintenance of $2,500 per month for one year. The court further ordered Marshall to pay an additional $9,956 as an arrearage on its April 1983 temporary maintenance order.

On August 4, 1983, the court entered an order requiring Marshall to pay $12,000 of Andree’s $24,000 attorney fees. Both parties filed post-trial motions which were denied by the court.

I

We initially turn to the arguments raised by Marshall concerning the property disposition. He first argues that the trial court erred in finding that the IMM seat was marital property. He contends that the IMM seat was nonmarital property because his oral option arrangement was created prior to the parties’ marriage.

The Illinois Marriage and Dissolution of Marriage Act (Act) provides that all property acquired by either spouse “after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property.” (111. Rev. Stat. 1985, ch. 40, par. 503(b).) Here, while Marshall had an oral option to purchase the stock prior to the marriage, he did not actually exercise this option and acquire the stock until January 1978, which was several months following the marriage. Additionally, as the trial court found, the acquisition was made possible through the financial assistance of Andree’s brother. Under these circumstances, we believe that the trial court properly concluded that the IMM seat was marital property.

Marshall also alleges that the court erred in imposing on him the full liability of the lawsuit brought by Andree’s brother seeking a 50% interest in the IMM seat. That lawsuit has been resolved during the pendency of this appeal; the trial court found that Andree’s brother did not have any partnership interest in the seat or the MW Trading Company. As such, this issue is now moot.

Next, Marshall argues that the property division must be set aside because the court failed to consider his liability for attorney fees. In support of this argument, Marshall cites the following quote from the trial court:

“It seems to me that if I include as a liability the legal fees of Mr. Wright, I should also include as a liability the legal fees of Mrs. Wright which would be one approach, or the other approach would be to delete the legal fee liability all together for purposes of this balance sheet and make my distribution simply bearing in mind that they exist on both sides of the fence. That I have done.” (Emphasis added.)

The above quote reveals that, contrary to Marshall’s contention, the trial court did in fact consider Marshall’s liability for attorney fees when it distributed the marital property. The court merely found, however, that it would be simpler not to actually list the fees of each spouse as a liability on the balance sheet since they would cancel each other out. After making the property division, the court concluded that, based on the assets awarded to Andree and Marshall, Andree was entitled to an additional $12,000 to defray the cost of her attorney fees. We find no impropriety as to this matter.

Marshall’s final argument concerning the property division is that the trial court erred in failing to credit him with temporary support payments he made in the amount of $44,335. We disagree. There is nothing in the Act which requires that the trial court, in dividing marital property, allow a credit for temporary support payments. Marshall, in support of his argument, relies solely on In re Marriage of Crouch (1980), 88 Ill. App. 3d 426, 410 N.E.2d 580. There, the reviewing court merely held that the trial court did not err in allowing the husband a setoff for temporary maintenance he had paid to the wife. The court in Crouch did not hold that a setoff must be made. As such, Marshall’s reliance on Crouch is misplaced.

The record before us shows that the trial court was knowledgeable about the financial circumstances of each party and attempted to dispose of the marital property in a manner that was fair and equitable to both parties. We must reject Marshall’s attempts to set aside the property award.

Andree, in her cross-appeal, argues that the court abused its discretion by awarding her only 35% of the marital assets because she introduced Marshall to Mirochnick and to her brother and because he has the ability to earn substantial income and she does not. Presumably, Andree’s argument is that the trial court failed to consider all the relevant factors mandated by section 503(d) of the Act, and specifically (1) the contribution of Andree to the acquisition of the marital property, and (2) the reasonable opportunity of each spouse for future acquisition of income. Ill. Rev. Stat. 1985, ch. 40, pars. 503(d)(1), (d)(10).

The record reveals, however, that the trial court took both of these factors into account when it divided the marital assets. The court stated:

“Here is a woman who hardly worked during the marriage. No children. But she did provide a contribution in the sense that she introduced Mr. Wright to people with money. I have tried to factor that into the equation.
But it was Mr. Wright’s abilities and skills that actually earned the money. He actually did the trading.”

Hence, far from ignoring the introductions Andree provided for Marshall in 1977, the judge thought that they must be balanced against the years of work Marshall contributed to the acquisition of the marital estate.

The trial court further specifically considered both Andree’s past work and her claim that she was not able to earn her living any longer, but it rejected the notion that she was unemployable. After considering the entire list of statutory criteria, including the brief duration of the marriage, the judge awarded 35% of the marital estate to Andree and 65% to Marshall. Andree has failed to demonstrate that such award constituted an abuse of discretion so as to require reversal of the property division.

II

Both parties challenge the portion of the dissolution judgment awarding Andree maintenance of $2,500 per month for one year. Marshall contends first that Andree has failed to establish her right to maintenance. Alternatively, he argues that the amount awarded was excessive. Andree, in her cross-appeal, argues that the maintenance award is insufficient.

Section 504(a) of the Act provides in part that a court may grant maintenance if it finds that the party seeking maintenance lacks sufficient property to provide for her reasonable needs, is unable to support herself through appropriate employment, or is otherwise without sufficient income. (Ill. Rev. Stat. 1985, ch. 40, par. 504(a).) The trial court, in determining the amount and duration of maintenance, is to consider all relevant factors, including: (1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his own needs independently; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and the physical and emotional condition of both parties; and (6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1985, ch. 40, par. 504(b).) The propriety of a maintenance award, as well as the amount of such award, are matters within the sound discretion of the trial court and will not be disturbed on appeal unless the court’s decision amounts to an abuse of discretion or is against the manifest weight of the evidence. In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.

Here, we cannot conclude that the trial court abused its discretion in ordering Marshall to pay maintenance of $2,500 per month for one year. The record reflects that the trial court took into account each of the above factors in determining the amount and duration of maintenance. The court noted that the parties enjoyed a comfortable standard of living during the marriage and that Andree was entitled to a “reasonable period of adjustment.” We agree. Given the facts and circumstances of this case, we refuse to disturb the maintenance awarded by the trial court.

Ill

Finally, both parties raise objections concerning Andree’s attorney fees. Marshall argues that the trial court erred in requiring him to pay $12,000 of the $24,000 in fees awarded to Andree’s attorneys. Andree, in her cross-appeal, argues that the court should have required Marshall to pay all of her attorney fees. Neither party challenges the reasonableness of the fee award.

Section 508 of the Act provides that the trial court may, after considering the financial resources of the parties, “order either spouse to pay a reasonable amount for his own costs and attorney’s, fees and for the costs and attorney’s fees necessarily incurred by the other spouse.” (Ill. Rev. Stat. 1985, ch. 40, par. 508(a).) To justify an allowance of attorney fees in a dissolution proceeding, the party seeking the relief must show financial inability to pay the fees and the ability of the other spouse to do so. (In re Marriage of Smith (1985), 132 Ill. App. 3d 694, 479 N.E.2d 929.) Financial ability is not, however, to be equated with “destitution.” Financial inability for purposes of awarding attorney fees in a divorce proceeding exists where the payment of fees would strip the individual of his or her means of support and undermine his or her economic stability. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.) The allowance of attorney fees rests within the sound discretion of the trial court and, as with any discretionary matter under the Act, will not be reversed absent an abuse of the court’s discretion. In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267.

Applying the above principles to the facts herein, we find no abuse of discretion as to this matter. As we noted above, the record indicates that the trial court was aware of each party’s financial situation. It correctly concluded that Marshall’s financial resources are sufficiently greater than Andree’s to warrant him paying $12,000 of her attorney fees. Andree has failed to demonstrate, however, that she is financially unable to pay the remaining $12,000 and that Marshall is able to do so. Accordingly, the trial court’s decision as to this issue is affirmed.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CAMPBELL and O’CONNOR, JJ., concur.

      “MW” stands for Marshall Wright.

      The parties stipulated that Benaim loaned Marshall $64,000, and that there was a balance due on the loan of $26,000.

      The return for this year shows a short-term capital loss of $53,823 as a result of “commodities trading closed positions.”