author: JUSTICE LUND

text:
      In re MARRIAGE OF RANDY P. SYKES, Petitioner-Appellee, and DAWN A. SYKES, Respondent-Appellant.
    Fourth District
    No. 4—91—0929
    Opinion filed June 29, 1992.

      Jay M. Watts, of Decatur, for appellant.

      Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Respondent Dawn Sykes appeals from an order of the Macon County circuit court denying her petition for sanctions under Supreme Court Rule 137 (134 Ill. 2d R. 137) against petitioner Randy Sykes and his attorneys. The sanctions were requested after the court’s denial of Randy’s petition for modification of custody of the parties’ daughter, Courtney.

Dawn and Randy were divorced in 1985. Dawn was awarded custody of Courtney. The parties’ property settlement agreement provided that Randy would have visitation on alternate weekends, two weeks in the summer, alternate holidays, Father’s Day, and his birthday. Randy remarried in July 1990. In January 1991, he filed a petition asking that the custody order be modified to grant custody to him. In response to Dawn’s demand, Randy filed a bill of particulars detailing changes in Courtney and Dawn’s circumstances which he believed supported a modification of custody. He alleged that (1) Dawn had changed residences 13 times since the divorce; (2) Dawn had made unreasonable and arbitrary changes in his visitation schedule; (3) Dawn had left Courtney without proper supervision; (4) Dawn and Courtney had resided with a man to whom Dawn was not married; (5) Dawn and Courtney had taken numerous overnight trips with a man to whom Dawn was not married; (6) Courtney had resided in Randy’s home between 12 and 15 nights each month; (7) Dawn had not given reasonable time and attention to Courtney’s needs; (8) Dawn had allowed Courtney to be present in taverns until late in the evening; (9) Dawn had not secured adequate dental care for Courtney; (10) the environment in Randy’s home was more suitable for Courtney than that in Dawn’s home; and (11) Dawn had not maintained a stable life for herself and Courtney. On June 13, 1991, a hearing was held on Randy’s petition. A brief summary of relevant testimony follows.

Dawn testified that the parties had informally made some changes in Randy’s visitation. For some time prior to the filing of Randy’s petition, he also had Courtney on Wednesday and Thursday nights. In addition, Dawn took Courtney to Randy’s house on weekday mornings, and Randy would give her breakfast and then take her to school. She admitted she cut back on the extra visitation after Randy filed his petition to modify. She also admitted she had moved a number of times since the divorce, although she denied she had moved 13 times during that period. She admitted she had lived with boyfriend Jay Watts for approximately eight or nine months. During this time, she and Courtney occasionally had to leave Watts’ residence on weekends so that he could have his children visit. She moved out of the Watts residence in June 1990. Dawn also testified to an incident with Watts sometime before she moved into his residence, where he grabbed her arm and she called the police. She stated Courtney was outside his residence when this occurred. She testified Watts had stayed overnight at her residence two or three times when Courtney was there. If Watts’ car was parked at her residence, it would be reasonable to assume he was there. On a few occasions she, Courtney, and Watts had taken overnight trips outside Decatur. There may have been one occasion when she had open beer in her car while Courtney was present. She interprets “open beer” as meaning a broken six-pack, not where a beer can is open.

Dawn also testified that she had sometimes attended softball games when Watts had played on the Decatur Bar Association team. Courtney had also attended these games. After a game, she and Courtney sometimes accompanied Watts and other members of his team to restaurants where liquor was served. They usually arrived around 8 or 9 p.m. and stayed an hour or two. Several other lawyers on the team also took their children.

Dawn testified that Courtney is an “A” student. She has received academic achievement and recognition awards. Dawn admitted to an incident where she shouted obscenities at Randy’s wife Karen in April 1991. She was upset because of something Randy had done.

Randy testified that Dawn arbitrarily changed his visitation schedule at different times over the last few years. She would call, yell at him, and tell him he could not have Courtney. A few hours later she would call back and change her mind. Over the last three years, Courtney spent between 12 and 15 nights per month at his home. Since he filed his petition to modify, he no longer has Courtney in the mornings but meets her at school for a few minutes before class starts. He helps her with her homework. Several times, when she arrived at his house in the morning before school, she was tired and had not finished her homework the night before. At times she fell asleep at the breakfast table. This never happened when she spent the night at his house — she has a regular bedtime there of 9 p.m. On several occasions from October 1990 to January 1991, he drove by Dawn’s apartment late at night or early in the morning to see if Watts’ car was parked there. For approximately five months prior to their marriage, his wife Karen lived with him at his home. He testified to the things he, Karen, and Courtney do together and the interest he maintains in Courtney’s school and extracurricular activities. He also testified that Courtney was present in his house overnight when Karen spent nights there. He stated he saw nothing wrong with this. His concern with Dawn’s living situation with Watts was that Courtney had to leave on weekends because she was not supposed to be there when Watts’ children came to visit him. Prior to Karen’s moving in, he had gone on overnight trips with Courtney and had taken other women with them.

Randy testified he took Courtney to the dentist. Dawn had missed Courtney’s appointment and Courtney was complaining about two of her teeth. She had two cavities filled.

An in camera examination of Courtney was conducted. She said she preferred to continue living with her mother, but she would like to resume the prior visitation with her father. She did not see her mother’s altercation with Watts, but she did hear it. She was in the house at the time.

Karen Sykes testified as to her relationship with Courtney. She and Courtney get along fine and they have had no problems. From February 1989 until she moved in with Randy in April 1990, she estimated she stayed overnight at Randy’s house approximately 50 times. Courtney was present approximately one third of that time.

At the conclusion of the hearing, the court took the matter under advisement. A written judgment order was entered on June 14, 1991, denying Randy’s petition. The court found that (1) both parties had in the past lived with a person to whom they were not married; (2) Dawn’s sexual conduct had not affected Courtney; (3) Dawn had taken Courtney to family restaurants that serve liquor but this conduct was not immoral; (4) Courtney does well in school and in her extracurricular activities; (5) Courtney has always lived in suitable places; (6) Dawn has been employed at the same job for 13 years; and (7) the court had considered Courtney’s preference. The court further ordered each party to pay his and her own attorney fees.

Dawn filed a petition asking for imposition of sanctions under Rule 137. Her petition alleged the parties’ depositions and evidence at the June 13, 1991, hearing showed virtually all allegations made in Randy’s petition for modification and his response to her demand for a bill of particulars to be untrue and made without adequate investigation. She further alleged that even if Randy’s allegations had been proved to be true, they would not have warranted a change in custody under existing law absent proof that Courtney had somehow been harmed. The petition asked for attorney fees and costs expended by Dawn in the custody proceeding and the sanctions proceeding.

A hearing on this petition was held November 8, 1991, with Dawn as the only witness. She testified as to conversations she had with Randy after the filing of his petition for modification. She stated Randy thought he was paying too much child support. He told her he wanted to be able to say he had custody of Courtney, but that nothing would change as far as Courtney’s living arrangements were concerned. He would not pay support and neither would Dawn. She testified Randy told her he knew his chances were “slim to none” of winning custody. After denial of Randy’s petition, she had several conversations with him. She stated Randy told her he would not take Courtney any extra days unless she agreed he would not have to pay child support for those days. He also commented to her that at least he had put her through six months of hell, even though he did not win. At the conclusion of this hearing, the trial judge denied the petition. He found that neither party came to court with clean hands and that Randy’s petition for modification was filed in good faith. He also strongly implied that Dawn had invited the modification petition by living with her boyfriend. Dawn now appeals from this order.

Dawn contends on appeal that the trial court erred in failing to impose sanctions on Randy and his attorneys pursuant to Rule 137. We disagree and affirm.

Rule 137 (134 Ill. 2d R. 137) provides, in pertinent part, as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other paper and state his address. *** The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may in-elude an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee.” (Emphasis added.)

Rule 137 preempts all matters sought to be covered by section 2— 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 611). In that section, the court was required to impose a sanction if it found a violation of the section. As emphasized above, we note that Rule 137 grants the court discretion to impose a sanction, even if a violation is found.

Rule 137 is penal in nature, and its provisions must be strictly construed. (Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 334, 570 N.E.2d 361, 365.) The purpose of Rule 137, like that of its predecessor (section 2 — 611 of the Code), is to penalize litigants who plead frivolous or false matters or bring suit without any basis in law. (In re Estate of Wernick (1989), 127 Ill. 2d 61, 77, 535 N.E.2d 876, 883.) It must be remembered that it is not the purpose of Rule 137 to penalize litigants and their attorneys simply because they have been unsuccessful in the litigation. (Couri v. Korn (1990), 202 Ill. App. 3d 848, 857, 560 N.E.2d 379, 386.) The test to be utilized in determining whether a violation has occurred is an objective standard of what was reasonable under the circumstances at the time the assertions were made. It is inappropriate to use the benefit of hindsight in judging alleged violations of the rule. (Lewy, 211 Ill. App. 3d at 334, 570 N.E.2d at 364-65.) Imposition of sanctions under Rule 137 is left to the discretion of the trial court. Thus, on review, the trial court’s decision will not be disturbed absent an abuse of this discretion. (In re Estate of Smith (1990), 201 Ill. App. 3d 1005, 1009, 559 N.E.2d 571, 573, appeal denied (1991), 136 Ill. 2d 544, 567 N.E.2d 331.) An abuse of discretion will be found only where a trial court has made a decision no reasonable person could make. Where reasonable people could differ as to the propriety of the trial court’s action, there has been no abuse of discretion. Lewy, 211 Ill. App. 3d at 334-35, 570 N.E.2d at 365.

Dawn contends that most of the allegations of fact in Randy’s bill of particulars were untrue or had no bearing upon the issue of modification of Courtney’s custody. She also argues that Randy was required to allege and prove some harm or detriment to Courtney and that he failed to do so. She believes these factors are dispositive of the question of whether Randy and his attorneys should have been sanctioned under Rule 137. She says the speed with which the trial court rendered its decision denying Randy’s petition for modification is indicative of the petition’s lack of merit. She believes Randy’s motives in filing his petition were to harass her or control her life, and not to gain custody of Courtney.

We disagree with Dawn that most of the allegations made by Randy were untrue. We also disagree that the trial court could not have properly considered them in making its determination as to whether custody should be modified.

While the evidence may not have established that Dawn actually moved 13 times in the years since the divorce, she did admit to having at least six different residences during that period. Randy claims the evidence showed nine residences. We know of no rule that would require the mathematical precision urged here by Dawn. The purpose of Rule 137 is not served by engaging in such nitpicking. This evidence appears to have been introduced to show Dawn’s instability. Stability of the child’s environment is an important factor for the court to consider in custody modification cases. In re Marriage of Stone (1987), 164 Ill. App. 3d 1046, 1051, 518 N.E.2d 402, 406.

There was some evidence that Dawn may have made some arbitrary changes in Randy’s visitation from time to time. She denied this, and Randy asserted she had done so. In any event, there was hardly a complete lack of evidence on this point.

Dawn did admit to having resided with Watts for a period of approximately nine months. Although she was not residing with him at the time of the hearing, this was a proper factor for the court to consider at the hearing on modification. Although Dawn says in her brief that she is now married to Watts, that fact is not shown by the record and we do not consider it significant since, if the marriage did occur, it was after the hearing on the modification petition. Our supreme court’s pronouncements on the question of what significance is to be given to a custodian’s living with a person of the opposite sex to whom he or she is not married have been somewhat inconsistent. (Compare Jarrett v. Jarrett (1979), 78 Ill. 2d 337, 400 N.E.2d 421, with In re Marriage of Thompson (1983), 96 Ill. 2d 67, 449 N.E.2d 88.) Moreover, even though Dawn points to the fact that she had not lived with Watts for several months prior to the filing of Randy’s petition, she admitted he did spend some nights with her at her apartment when Courtney was present. It was proper for the court to hear such evidence. Dawn complains of what she believes to be Randy’s hypocrisy in criticizing her for living with a man not her husband, when he lived with his wife Karen prior to their marriage. We fail to see what bearing this has on the truth of Randy’s allegations regarding Dawn’s conduct. Dawn is mistaken if she is suggesting that Randy would not have been able to obtain custody of Courtney solely because of his past misconduct. Evidence of past misconduct will not disqualify a parent from obtaining custody, if the evidence shows the misconduct has ceased and is unlikely to recur. (See Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300; In re Marriage of Cripe (1989), 183 Ill. App. 3d 37, 538 N.E.2d 1175.) The evidence was that Randy and Karen had married in July 1990, several months before the petition for modification was filed.

There was also evidence that Dawn had taken overnight trips with Courtney and Watts. Again, Dawn criticizes Randy for making this allegation when the evidence showed he had also taken some trips with Courtney and other women. This does not bear on the truth of Randy’s allegation. Since Randy had remarried several months before he filed his petition, any such alleged misconduct on his part would be unlikely to recur and would not disqualify him from obtaining custody under the authorities just cited.

There was also evidence that Courtney spent significant amounts of time with Randy. Contrary to Dawn’s contention, Randy’s relationship with Courtney and the time and attention he gave to her were important factors for the court to consider in determining whether Courtney’s best interests would be served by a change of custody. As the trial court commented at the modification hearing, it may not be in the best interest of a child to change custody if the noncustodial parent would not be a proper custodian.

The evidence also showed, by Dawn’s own admission, that she had taken Courtney to restaurants where liquor was served after evening softball games. There was also evidence that on some occasions when Courtney would arrive at Randy’s house in the mornings before school, she appeared tired and would sometimes fall asleep at the breakfast table. Although not significant, there was some evidence produced on the question of Courtney’s dental needs. While these facts alone would not constitute grounds for a change in custody, the court could properly consider them for whatever effect they might have on Courtney’s well-being. We do not agree with Dawn that the fact the trial court rendered its decision denying Randy’s petition only the day after the hearing means the petition had ño merit. Dawn cites no authority for this novel proposition.

Dawn points out that Randy failed to show any harm or detrimental effect on Courtney based on any of the alleged changes in circumstance. Under section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610(b)), the trial court must find that there has been a change in the circumstances of the custodian or the child and that modification is necessary to serve the best interest of the child. Factors to be considered by the court in determining what is in the child’s best interests are set forth in section 602 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 602). While harm to a child would certainly be one factor bearing on the best interest of the child, section 602 of the Act indicates it is not the only one which the court should consider.

The trial court did not abuse its discretion in denying Dawn’s petition for sanctions. It is not per se unreasonable to pursue a possible claim where the defendant has a strong defense. Nor is it per se unreasonable to present a possible defense simply because the plaintiff has a strong claim. (Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 622, 532 N.E.2d 595, 599.) Applying sanctions in a case like the instant one may have the undesired effect of discouraging parents from seeking custody of their children unless their case is a sure winner. That is clearly not a permissible use of Rule 137.

Finally, Randy asks us to impose sanctions on Dawn and her attorney under Supreme Court Rule 375 (134 Ill. 2d R. 375). He contends the instant appeal is frivolous and its filing was for the purpose of punishing and intimidating him by causing him to expend attorney fees in defending the appeal. Randy argues the appeal has no basis, because the trial court’s decision could not be deemed an abuse of discretion under existing precedent. He also maintains Dawn’s appeal was brought by her and Watts for personal reasons due to their supposed embarrassment and anger over the custody proceedings.

Under Rule 375(b), an appeal will be deemed frivolous where it is not reasonably well-grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law. A party may also be sanctioned for bringing an appeal for an improper purpose such as to harass or to cause an unnecessary increase in the cost of litigation. (134 Ill. 2d R. 375(b).) The tone of Dawn’s brief gives some support to the contention that she and Watts may have an ax to grind with Randy. If so, this court would not be the proper place to do that. Repeated use of exclamation points at the end of sentences and use of terms such as “ridiculous” and “ludicrous” to describe Randy’s allegations in the trial court and his arguments on appeal are not appropriate for inclusion in an appellate brief. However, these facts alone are not dispositive of the question whether sanctions should be imposed.

We do not believe this is a proper case for the imposition of sanctions under Rule 375. Like Rule 137, the sanctions provided for in Rule 375 are penal in nature. (Harris v. Harris (1990), 196 Ill. App. 3d 815, 831, 555 N.E.2d 10, 21.) Thus, they should be applied only to those cases falling strictly within the terms of the rule. Although we have been unconvinced by Dawn’s arguments on appeal, we do not find them to have been totally without merit or contrary to existing law. Unlike other cases in which sanctions have been applied, the instant appeal is not a “needless extension of a baseless lawsuit” (Manchester Insurance & Indemnity Co. v. Strom (1970), 122 Ill. App. 2d 183, 190, 258 N.E.2d 150, 153), nor are Dawn’s arguments of the type which would warrant sanctions (see, e.g., Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387; Aroonsakul v. Flanagan (1987), 155 Ill. App. 3d 223, 507 N.E.2d 1; Singer v. Brookman (1991), 217 Ill. App. 3d 870, 578 N.E.2d 1, appeal denied (1991), 142 Ill. 2d 665, 584 N.E.2d 140). Thus, we decline to impose sanctions in this case.

The order of the trial court denying Dawn’s petition for sanctions is affirmed.

Affirmed.

STEIGMANN and COOK, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF PATTY S. ALEXANDER, Petitioner-Appellee, and RONALD ALEXANDER, Respondent-Appellant.
    Fourth District
    No. 4—92—0021
    Opinion filed July 23, 1992.

      Jay M. Watts, of Decatur, for appellant.
    Tietz & Richardson, of Decatur (Michelle K. Robinson, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Respondent Ronald Alexander appeals an order of the circuit court of Macon County requiring him to pay one-half of his minor son’s tuition to a parochial high school. We affirm.

Respondent’s marriage to petitioner Patty Alexander was dissolved in 1978. They had one son, Michael, who was two years of age at the time of the divorce. The divorce was heard as a contested matter. Petitioner was awarded custody of Michael. Respondent was ordered to pay the sum of $65 per week for Michael’s partial support. Subsequently, respondent’s child support obligation was raised to $100 per week.

Each party remarried and later divorced. Respondent has a child from his second marriage. Petitioner married a man of the Catholic faith, and she converted to that religion. Michael had been attending parochial school since the fourth grade. In November 1991, respondent filed a petition requesting reduction or abatement of his child support obligation due to a strike against his employer, Caterpillar, Inc. He alleged that his only source of income consisted of $100 per week in strike benefits. A hearing was held on this petition on December 4, 1991. The testimony generally supported respondent’s request for reduction of his child support, and petitioner did not object. The parties agreed that petitioner could present an oral motion to the court at this hearing, asking that, when respondent returns to his employment, he be ordered to pay one-half of Michael’s yearly tuition at St. Theresa’s, a parochial high school.

Petitioner testified in support of her motion. Her approximate net income from her employment was $1,500 per month. Her second ex-husband resides with her and Michael. Michael’s tuition at St. Theresa’s is approximately $1,848 per year. Petitioner testified that she inherited some money from her mother when she died the previous year. She used $32,000 to pay toward the purchase of her home, and she has $25,000 in savings which she intends to use for Michael’s college education. She stated she wanted Michael to go to St. Theresa’s because she believes he will have a better education and be better prepared for college. She bases her opinion on experience with people she knows and works with. She testified that Michael attends church about once a month.

Respondent testified that he would prefer that Michael attend a public high school. When he is working, respondent’s gross weekly income is in excess of $600. He does not believe he has the means to contribute one-half of Michael’s tuition. Respondent testified that petitioner had previously told him it was none of his business where Michael went to school. When asked, respondent did not know who Michael’s teachers were, what his grades had been, or what courses he was taking. He admitted that he had not attended any parent-teacher conferences since Michael was in fourth grade.

At the conclusion of the hearing, the trial court reduced respondent’s child support for the remaining period of his unemployment and ordered respondent to pay one-half of Michael’s yearly tuition at St. Theresa’s when he returns to full-time employment. The court indicated it believed the controlling factors were the lifestyle Michael would have enjoyed had the parties remained married and the ability of both parents to pay the tuition. Respondent now appeals this order.

On appeal, respondent contends this is a case of first impression in the Illinois Appellate Court. He phrases the issue thus:

“[Wjhether, absent a property settlement agreement and divorce judgment which dealt with the issue, or other agreement or ratification by the non-custodial parent, a trial court has the power to order a non-custodial parent to contribute toward tuition costs incurred by the custodial parent who unilaterally decides to send the minor child of the parties to a private (parochial) school.” (Emphasis in original.)

Respondent concedes that unless the court orders otherwise, section 608(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 608(a)) authorizes the custodial parent to determine the child’s upbringing, which includes his religious training and education. He also concedes the court’s authority under section 513 of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 513) to order contribution toward educational expenses of a child who has attained majority. However, respondent seeks to draw a distinction between college educational expenses and educational expenses for a minor child, since the latter has access to a public school system. According to respondent, it is logical to authorize courts to order noncustodial parents to help pay their children’s college expenses, as a college education is normally not available to those who cannot pay. However, respondent argues there is less reason to order a noncustodial parent to assist in paying for a minor child’s private school education where public schools are available and no persuasive reasons are given by the custodial parent for sending the child to a private school.

The trial court has wide discretion in awarding child support. (In re Marriage of Sipich (1980), 80 Ill. App. 3d 883, 887, 400 N.E.2d 696, 699.) Modification of a child support award also lies within the sound discretion of the trial court. Its decision will not be reversed by a court of review absent an abuse of discretion. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 912, 483 N.E.2d 692, 696.

The source of a court’s authority to order a noncustodial parent to contribute to a minor child’s private school education lies in section 505(a)(2)(d) of the Act, which sets forth the factors which are relevant to a determination of child support. One of those factors is the educational needs of the child. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2)(d).) Were it not anticipated that a court could order a noncustodial parent to contribute to the private school education of a minor child, it would be unnecessary in many cases for a court to consider a child’s educational needs, since public schools typically involve little cost to parents.

Despite this statutory authority, respondent argues that petitioner should not be allowed to unilaterally enroll Michael in parochial school and then require respondent to contribute to his tuition. In support of this argument, he cites Van Nortwick v. Van Nortwick (1967), 87 Ill. App. 2d 55, 230 N.E.2d 391 (Van Nortwick II). The background of that case is set out in the appellate court’s opinion in a prior appeal between the parties in Van Nortwick v. Van Nortwick (1964), 52 Ill. App. 2d 229, 201 N.E.2d 857 (Van Nortwick I). The parties agreed at the time of their divorce that defendant father would pay preparatory school and college expenses for their two minor sons. The schools to be attended were to be chosen by mutual agreement of the parties. By agreement, the older son Thomas attended Kent Preparatory School in Connecticut for two years. The father paid his expenses. After that, the father withdrew his agreement and expressed a desire for Thomas to attend public school. Instead, the mother sent Thomas back to Kent and his grandmother paid his expenses. The mother filed a petition for rule to show cause, alleging the father was in contempt for violating the agreement to send Thomas to Kent and asking for reimbursement for his expenses. The trial court found in the mother’s favor, and the father appealed. The appellate court reversed the finding of contempt. It pointed out that the father was not required by the agreement to send Thomas to Kent. Rather, the agreement required the father to pay Thomas’ expenses at any school the parties might select by joint agreement. The court stated that once the father withdrew his consent for Thomas to attend Kent, that school had not been selected by joint agreement. The court also pointed out that no effort was made to resolve the impasse prior to the mother reenrolling Thomas at Kent. The court found that the mother should have attempted to discuss the matter with the father or sought a ruling from the court prior to unilaterally enrolling Thomas at Kent. (Van Nortwick, 52 Ill. App. 2d at 232-38, 201 N.E.2d at 858-61.) In Van Nortwick II, the mother enrolled the younger son William at Kent, paid half the year’s tuition, petitioned the court for directions, and requested the father be required to pay William’s expenses at Kent. The trial court granted the petition, and the father appealed. The appellate court once again reversed, saying the mother could not unilaterally choose a school, pay the tuition, and then seek to require the father to reimburse her for those expenses. The record showed the mother made no attempt to consult the father, as required by the divorce decree. Van Nortwick, 87 Ill. App. 2d at 57-58, 230 N.E.2d at 392-93.

Respondent contends that Van Nortwick II represents the law in Illinois in regard to a noncustodial parent’s contribution to private school expenses. He believes, based upon that case, that we must reverse the trial court’s decision in the instant case. We disagree with respondent’s reasoning. Van Nortwick I and Van Nortwick II have no relevance to the instant case. In the Van Nortwick cases, the parties’ divorce decree contained a provision giving the father a voice in the selection of schools for the children, requiring mutual agreement. The mother did not abide by that agreement when she enrolled both boys at the preparatory school without securing either the father’s agreement or court authorization. This is the reason the father was not required to pay the school expenses. The Van Nortwick cases do not stand for the proposition that respondent here cannot be ordered to contribute to Michael’s parochial school tuition.

In the instant case, evidence showed that Michael had been attending parochial school since the fourth grade, evidently without objection from respondent. We recognize that respondent testified petitioner had told him over the years that Michael’s schooling was none of his concern. However, had respondent found objections to Michael’s attendance at parochial school, section 608(a) of the Act was available for court review of petitioner’s authority as the custodial parent in regard to Michael’s education. We find that having basically acquiesced in Michael’s attendance at parochial grade school for a number of years, that respondent’s objection to his attendance at a parochial high school on the ground it is an inappropriate choice of schools is of no particular significance. At the time of the trial court hearing on tuition payments, petitioner as custodial parent was responsible for educational decisions. No agreement as in Van Nortwick existed.

Respondent claims that petitioner gave no persuasive reasons for Michael’s attendance at St. Theresa’s. In fact, he refers to her stated reasons as “whimsical.” However, as noted above, the evidence was that Michael had received a parochial school education since the fourth grade, without objection from respondent. The trial court could have concluded that it was appropriate to allow Michael to continue this education, even though it would entail some cost to his parents. We do not find anything whimsical about petitioner’s stated reasons for enrolling Michael at St. Theresa’s. On the contrary, petitioner’s desire for Michael to attend a parochial high school was consistent with the prior education he had received. We do not find it inappropriate for petitioner to have relied on the advice of others who had knowledge of St. Theresa’s to support her statements at the hearing regarding her belief that attendance at St. Theresa’s would give Michael a better education and better prepare him for college. Drawing upon the experience of others is often the best way for a parent to learn the merits of a particular school.

Respondent also argues that even assuming the trial court had the authority to order him to pay part of Michael’s private school tuition, the court erred in this case because respondent cannot afford to pay one-half the tuition. We also reject this argument. Both parties testified concerning their financial resources and expenses. Financial affidavits of both parties were available to the trial court. Respondent testified that when he is working full-time, his gross weekly income exceeds $600. The trial court did not order respondent to contribute to Michael’s tuition until he returned from the strike to full-time employment. Until that time, petitioner will bear the full cost of the tuition. Respondent claims that his half of Michael’s tuition will amount to $200 per month. He claims the trial court abused its discretion in ordering him to make such a payment in addition to his child support. However, respondent’s $200 figure is erroneous. In reality, based upon a yearly tuition of $1,848, respondent’s share of Michael’s tuition will be $924 annually, or $77 per month. We find no abuse of discretion.

The trial court’s order requiring respondent to pay one-half of Michael’s parochial school tuition upon his return to full-time employment is affirmed.

Affirmed.

STEIGMANN and COOK, JJ., concur.


author: JUSTICE McCORMICK JUSTICE DiVITO,

text:
    PHILIP FLANAGAN, Plaintiff-Appellant, v. LUIS G. REDONDO, Defendant-Appellee.
    First District (2nd Division)
    No. 1—90—1414
    Opinion filed December 24, 1991. —
    Rehearing denied May 27, 1992.—
    Modified opinion filed July 14, 1992.

      DiVITO, J., dissenting.
    Alan C. Mendelson, of Chicago, for appellant.
    Lord, Bissell & Brook, of Chicago (William C. Anderson III, Hugh C. Griffin, and Diane I. Jennings, of counsel), for appellee.
   JUSTICE McCORMICK

delivered the opinion of the court:

Plaintiff, Philip Flanagan, sued defendant, Dr. Luis G. Redondo, for medical malpractice in the treatment of plaintiff’s broken leg. Plaintiff appeals from the judgment entered on the jury’s verdict in favor of defendant, arguing that the verdict was contrary to the evidence and trial errors require a new trial.

On July 24, 1982, plaintiff injured his leg when he fell from a ladder. Plaintiff’s wife took him to the emergency room at Christ Hospital, where Dr. Edward Snyder, the orthopedic surgery resident, diagnosed the injury as a spiral fracture of the lower third of the tibia. Dr. Snyder found that plaintiff’s foot was somewhat rotated out of position. He attempted to correct the rotation before he applied a cast. He was dissatisfied with the initial casting, so he removed the cast. After further attempting to correct the rotation, he applied a second cast and admitted plaintiff to the hospital.

Dr. Snyder told defendant, the attending orthopedic surgeon, that he had been unable to totally correct the deformation of the leg. Defendant saw plaintiff the next morning and reviewed the X rays of plaintiff’s foot. He found no indication of abnormal rotation, so he left the cast in place.

During several outpatient visits, plaintiff complained to the defendant that his foot was rotated out from his leg. Both plaintiff’s wife and a friend who testified at trial had also noticed that plaintiff’s foot was obviously cocked out to the side. Eventually, defendant told plaintiff that his leg had healed properly and that he was walking improperly.

Dr. Irwin Feinberg, another orthopedic surgeon, examined plaintiff on February 7, 1983. He found that plaintiffs foot was abnormally rotated out. Dr. Feinberg recommended that plaintiff submit to a surgical procedure to correct the rotation. Plaintiff agreed and Dr. Feinberg performed the surgery. During surgery, Dr. Feinberg cut through the upper third of both the tibia and the fibula, realigned the bones and put a new cast on plaintiff’s leg.

At trial, Dr. Feinberg testified, as an occurrence witness for plaintiff, that he cut through the tibia and fibula because that allowed easier manipulation of the bone fragments. He said that an intact fibula does not prevent rotation due to a spiral fracture like plaintiff’s. Defense counsel showed Dr. Feinberg X rays of plaintiff’s leg taken in Dr. Feinberg’s office. Dr. Feinberg testified that although he had not noticed it before, he now saw a fracture at the head of the fibula on one X ray, in addition to the fracture of the lower part of the tibia. He presumed that the fibula head was fractured at the same time as the tibia, unless some other cause could be documented.

Defendant moved to prevent plaintiff’s expert, Dr. Jeffrey Gilíes, from testifying that the X rays showed a fracture of the fibula and from giving his opinion regarding the significance of the fracture and the rotation of plaintiff’s foot. Although Dr. Gilíes’ deposition was not presented to the trial court, plaintiff admitted that Dr. Gilíes had not included a broken fibula as a basis for his opinion that the foot was rotated out of position. The trial court sustained defendant’s objection to the prospective expert testimony, stating:

“You take the facts as they are. It might be fortunate or unfortunate as it were that Dr. Feinberg looked at that film and detected there was a fracture at another place he hadn’t seen before. We can’t try that issue here.”

Dr. Gilíes testified that the X rays showing a spiral fracture of the tibia indicated the possibility of rotation. He stated that an intact fibula with intact ligaments would decrease the extremes of rotation, but it would not preclude rotation. Dr. Gilíes stated that, in his opinion, defendant violated the standard of care for plaintiff’s injury when he failed to recognize and treat the rotational deformity of plaintiff’s foot.

Plaintiff moved to prevent defendant’s expert witness, Dr. Robert Hall, from using a model skeleton in his testimony. Dr. Hall intended to use the model to show that Dr. Feinberg did not alter the foot’s rotation, by showing that if he had, he would have created a gap in the fibula. Plaintiff’s counsel argued that the model was misleading because it did not include the ligaments or other muscle attachments which would keep the fibula intact after rotation. The court allowed Dr. Hall to use the skeleton to describe the results of Dr. Feinberg’s surgery.

Dr. Hall testified that the X rays showed no fracture of the fibula. The intact fibula acted as a splint preventing the tibia from moving, thereby preventing the foot from rotating out of position despite the spiral fracture of the tibia. He could determine from the X rays alone that there had never been any rotation of plaintiff’s foot. Dr. Hall based his opinion in part on the X ray of the fibula:

“[I]f the fíbula is not broken or interrupted — I shouldn’t say not broken. As long as it is aligned, despite the fact it may be broken, we know there is no rotational malalignment because with rotational malalignment, the fibula must also have rotational malalignment.”

In Dr. Hall’s opinion, defendant’s treatment of plaintiff met the standard of care, and there was no evidence of rotational malalignment due to defendant’s care. The X rays taken before and after Dr. Feinberg performed surgery showed no change in bone alignment or rotation of the foot. In Dr. Hall’s opinion, Dr. Feinberg performed the surgery for no reason at all.

Plaintiff sought to recall Dr. Feinberg as a rebuttal witness to point out how the post-surgical X ray showed that he corrected the rotation of the foot and to explain why the model Dr. Hall used was misleading. The trial court denied the motion. Although plaintiff’s attorney failed to mention the model in his formal offer of proof made after the court’s initial ruling, the discussion on the record shows that the court also considered the use of rebuttal to explain why the model was misleading. Following the formal offer of proof, the court repeated its ruling.

In closing argument, defense counsel commented on Dr. Feinberg’s cross-examination testimony that the X rays showed a fracture at the head of the fibula:

“Why did he do that?
The reason is that he knows, and [plaintiff’s attorney] knows, and everybody that knows anything about legs and tibias and fibulas [knows] that if this is intact, this can’t turn that’s why. So they had to invent a fracture.
Did you hear plaintiff’s expert Dr. Gill[e]s? *** Did Gill[e]s ever say that was a fracture? Uh-[u]h. Never did.”

Plaintiff contends that the jury’s verdict was against the manifest weight of the evidence. A verdict is against the manifest weight of the evidence if

“it is palpably erroneous and wholly unwarranted [citation], is clearly the result of passion or prejudice [citation], or appears to be arbitrary, unreasonable, and not based upon the evidence [citation]. When considering whether a verdict was contrary to the manifest weight of the evidence, a reviewing court must view the evidence in the light most favorable to the appellee ***.” (Ford v. City of Chicago (1985), 132 Ill. App. 3d 408, 412, 476 N.E.2d 1232, 1236.)

The jury’s verdict should not be set aside if there is sufficient credible evidence to support it, and the jury alone should determine the weight and credibility of conflicting testimony. Moehle v. Chrysler Motors Corp. (1981), 100 Ill. App. 3d 353, 359, 426 N.E.2d 1099, 1103, aff’d (1982), 93 Ill. 2d 299, 443 N.E.2d 575.

In this case, defendant testified that plaintiff’s foot was never rotated out of position; it appeared malrotated because of the way plaintiff walked on it. Dr. Hall corroborated this testimony, and he added that defendant did not violate the standard of care. This evidence is sufficient to support the verdict.

Plaintiff argues that the trial court committed reversible error when it refused to allow plaintiff’s expert, Dr. Gilíes, to testify that he could see an indication on one X ray of a fracture on the head of the fibula and that the presence of that fracture further supported his conclusion that the X rays and all of the other medical evidence indicated that plaintiff’s foot was rotated out of position. The court disallowed the testimony under Supreme Court Rule 220, which provides:

“(1) Upon interrogatory propounded for that purpose, the party retaining or employing an expert witness shall be required to state:
* * *
(ii) his conclusions and opinions and the bases therefor[.]
* * *
* * *
(3) A party shall be required to seasonably supplement his answers to interrogatories propounded under this rule as additional information becomes known to the party or his counsel.
* * *
*** To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings through interrogatories, depositions or requests to produce, his direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings. However, he shall not be prevented from testifying as to facts or opinions on matters regarding which inquiry was not made in the discovery proceedings.” (134 Ill. 2d Rules 220(c), (d).)

In a recent decision interpreting this rule, the court stated:

“The purpose of Rule 220, generally, is to promote the timely and good-faith pretrial disclosure of expert witnesses to prevent surprise and to facilitate pretrial investigation of credentials of the expert and preparation of cross-examination as well as the substance of the testimony of the opposing party’s own expert. [Citations.] When the trial court has imposed sanctions for noncompliance with Rule 220, the trial court’s ruling will not be upset in the absence of a showing that the ruling resulted from an abuse of discretion. [Citation.]
However, each subsection of the rule has a different function. Whereas Rule 220(b) allows a trial court to establish a disclosure schedule so as to disqualify an expert who is not properly disclosed, Rules 220(c) and (d) require timely notification of shifts in an expert’s theory or belief and the limiting of the expert’s testimony accordingly.” Baird v. Adeli (1991), 214 Ill. App. 3d 47, 60-61, 573 N.E.2d 279, 286-87.

In exercising its discretion to impose sanctions, the court must “balance the needs of discovery and resolution of the issues on their merits.” (John Biestek & Associates, Ltd. v. Kelly (1989), 192 Ill. App. 3d 301, 303, 550 N.E.2d 230, 232.) Sanctions as severe as disallowing relevant testimony should be imposed only when noncompliance is unreasonable. (Bluestein v. Upjohn Co. (1981), 102 Ill. App. 3d 672, 679, 430 N.E.2d 580, 586.) Once sanctions are imposed, the sanctioned party has the burden of showing that noncompliance was reasonable. (Leeson v. State Farm Mutual Automo bile Insurance Co. (1989), 190 Ill. App. 3d 359, 368, 546 N.E.2d 782, 788.)

“Pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220), sanctions imposed for violations of discovery rules must be proportionate to the gravity of the violation. [Citation.] The purpose of a sanction pursuant to Rule 220 is not to punish [citation], but to insure fair discovery and a trial on the merits [citation]. A trial court’s exercise of its broad discretion in imposing sanctions for discovery violations will not be disturbed absent a clear abuse.” Caruso v. Pine Manor Nursing Center (1989), 182 Ill. App. 3d 879, 883, 538 N.E.2d 722.

In Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224, 511 N.E.2d 974, 981, the Second District Appellate Court opined that trial courts have narrow discretion over sanctions for violations of Rule 220. In that case the trial court permitted the plaintiff to present testimony of an expert plaintiff retained 14 months before trial, although the plaintiff did not disclose the expert until trial. Although the appellate court argued that Rule 220 narrows the trial court’s discretion, it held that even if the court had the broad discretion pertinent to other discovery rules, by failing to impose sanctions against the plaintiff it abused that discretion. We agree with the standard for review of sanctions imposed under Rule 220 stated in Caruso, but we note that even if Rule 220 narrows the range of the trial court’s discretion over sanctions, the court still must consider the reasonableness of noncompliance and the need for resolution of issues on their merits before imposing sanctions. The trial court’s discretion over discovery sanctions does not overcome the duty of “insuring a fair trial for all litigants.” Noll v. Snap-On-Tools Corp. (1980), 89 Ill. App. 3d 1120, 1123, 412 N.E.2d 1185, 1188.

Here, an occurrence witness testified to evidence which the witness apparently discovered during cross-examination. Dr. Feinberg’s testimony on direct examination pertained only to what he saw and what he did in his treatment of plaintiff. He gave no opinion concerning the propriety of defendant’s treatment of plaintiff. Therefore, he was strictly an occurrence witness, not an expert witness.

“An expert is an individual who, because of education, training or experience, possesses knowledge of a specialized nature beyond that of the average person and who may be expected to render an opinion within his expertise at trial. [Citation.] A treating physician is not necessarily an expert witness. [Citation.] Instead, the testimony of the physician may be offered only in regard to factual matters of which the doctor has personal knowledge.” (Atkins v. Thapedi (1988), 166 Ill. App. 3d 471, 475, 519 N.E.2d 1073.)

The doctor

“ ‘whose information was not acquired in preparation for trial but rather because he was an actor or viewer with respect to transactions or occurrences that are part of the subject matter of the lawsuit *** should be treated as an ordinary witness.’ ” Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 235, quoting Fed. R. Civ. R 26(b)(4), Advisory Committee Notes (1970 amendment).

When defense counsel handed Dr. Feinberg some X rays and asked what they showed, he testified that he saw a break in the fibula which he had not previously seen. This interpretation of the X ray was expert testimony, since it was his opinion on a matter not within common knowledge, and it did not concern his treatment of plaintiff. The evidence could not have influenced his treatment of plaintiff since he testified that he was not aware of it when he treated plaintiff. Defendant adduced this expert opinion on cross-examination; plaintiff did not in any way seek expert testimony from Dr. Feinberg on direct. For purposes of considering sanctions against plaintiff for violation of Rule 220, Dr. Feinberg must be regarded strictly as an occurrence witness.

After Dr. Feinberg produced the newly discovered evidence, defendant’s expert testified that the X rays showed no fracture of the fibula and that even if there were a fracture of the fibula, it would not affect the possibility of rotation of the foot.

Plaintiff’s expert, Dr. Gilíes, was not allowed to answer because the trial court found his proposed testimony would violate Rule 220. Plaintiff’s expert would have testified that Dr. Feinberg correctly interpreted the X ray, and the X ray showing the fracture further supported Dr. Gilíes’ expert opinion that plaintiff’s foot was rotated out of position. At trial, as in his deposition, Dr. Gilíes testified that the medical evidence showed that the foot was rotated out of position and that defendant failed to properly treat the malrotation. The expert did not change his basic opinion or beliefs.

“[Wjhere testimony supports the larger theory presented by an expert, is not inconsistent with that theory, and does not present an alternative to it, it should be deemed part of the theory for purposes of [Federal discovery rules].” Weiner v. Kneller (D.C. App. 1989), 557 A.2d 1306, 1311.

See also Dugan v. Weber (1988), 175 Ill. App. 3d 1088, 1099, 530 N.E.2d 1007.

Although Dr. Gilíes admitted that he had seen the pertinent X rays prior to his deposition, he had not seen the indication of a fibular fracture until Dr. Feinberg pointed it out at trial. Plaintiff did not know of his need for expert testimony on this matter until trial. (See Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729 (trial court did not abuse discretion by permitting plaintiff’s expert to testify concerning exhibits presented by defendant, after all experts were barred under Rule 220, where plaintiff could not have known of need for testimony before seeing exhibits).) Defendant has never argued that plaintiff withheld this information from defendant or plaintiff’s expert in an effort to circumvent discovery rules. In this case, plaintiff has shown that he did not unreasonably fail to notify defendant of this additional basis supporting his opinion.

In Potlach Corp. v. United States (9th Cir. 1982), 679 F.2d 153, 154:

“The Government failed by seven weeks to comply with a discovery deadline set by the district court for the exchange of appraisal reports by expert witnesses. As a sanction for this failure, *** the Government was denied the right to call those experts as trial witnesses or to offer their reports in evidence. Following trial, judgment was rendered against the Government.”

The court of appeals found the delay was not due to circumstances in the government’s control, and the record did not support the district court’s conclusion that the government never intended to comply with discovery orders. The court of appeals concluded that “imposition of the sanction under the circumstances here presented constituted an abuse of discretion.” Potlach, 679 F.2d at 154.

In Ratner v. General Motors Corp. (1990), 241 N.J. Super. 197, 574 A.2d 541, the plaintiff’s expert’s proposed trial testimony exceeded discovery responses, surprising the defendant, and the trial court disallowed the testimony beyond the responses as a discovery sanction. The appellate court reversed, finding that the restriction on testimony severely prejudiced the plaintiff and the record showed that plaintiff had no intent to mislead.

“Where[,] as here, the critical surprise evidence resulted through no fault of either plaintiff or her attorney *** and defendant would suffer no prejudice from an adjournment or mistrial, the remedy of exclusion of this vital evidence cannot be said to have been just or reasonable.” Ratner, 241 N.J. Super, at 203, 574 A.2d at 544.

Similarly, in this case the failure to give defendant prior notice of the addition to the basis for the expert’s opinion was not due to plaintiff’s fault or circumstances in plaintiff’s control. The record does not show that defendant would have been prejudiced by presentation of the expert testimony, since defendant was able to respond to the new evidence at trial through its expert’s testimony.

When Dr. Feinberg, the occurrence witness, presented new evidence at trial, surprising both parties, the trial court could have disallowed both parties’ experts from commenting on the evidence, or it could have allowed both parties’ experts to comment, within its discretion. Instead, the trial court allowed one party’s expert to comment on the evidence and barred the other party’s expert from responding, when there was no showing that the party who presented the occurrence witness planned the disclosure at trial of the new evidence or otherwise acted in bad faith in its presentation of the evidence. (See Wilson v. Chicago Transit Authority (1988), 126 Ill. 2d 171, 176, 533 N.E.2d 894, 897.) The trial court did not effectively prevent the jury from considering the evidence of a fibular fracture, as it purported to do. Rather than removing the issue from the case, the court allowed only one party to present its evidence on the issue.

In view of plaintiff’s good faith in response to discovery and the admission of testimony from defendant’s expert contradicting the existence and effect of the fracture to the fíbula, the trial court abused its discretion by disallowing opposing testimony from plaintiff’s expert. The prejudicial effect of the court’s action is highlighted by defense counsel's closing argument, which implied that there was no fracture to the fibula because Dr. Gilíes did not so state, and that plaintiff’s attorney fabricated the testimony of a fibular fracture because without such a fracture there could not have been rotation. The trial court must balance the need for .discovery with the need for resolution of the issues on their merits. “The importance of prompt disposition of cases and compliance with the dictates of [sjupreme [cjourt [r]ule[s] *** cannot be allowed to overshadow the ultimate aim of all courts: the attainment of a just result.” Jack v. Pugeda (1989), 184 Ill. App. 3d 66, 79, 539 N.E.2d 1328, 1337.

We emphasize that we do not here decide how we would resolve the case if the expert witness, rather than an occurrence witness, had discovered the evidence. We also do not decide whether we would reach the same result if the newly discovered evidence, which is in the nature of expert evidence, had been improperly adduced on direct examination of the doctor who was presented solely as an occurrence witness. We decide only that, when an occurrence witness presents newly discovered evidence, and the trial court allows one party’s expert to respond to that evidence, the court must allow the other party’s expert to comment on the evidence unless the court finds that that party acted in bad faith in its presentation of the evidence.

Since this case must be remanded for a new trial and the other issues raised on appeal are likely to arise again at the new trial, we will address them briefly here. Plaintiff contends that the trial court committed prejudicial error when it permitted Dr. Hall to use a model of the affected bones in his testimony.

“While the use of models or skeletons to assist in the explanation of X ray findings is within the discretion of the trial court, such demonstrative evidence must help explain some relevant issue in the case.” (Webb v. Angell (1987), 155 Ill. App. 3d 848, 861, 508 N.E.2d 508, 518.)

Moreover, such evidence may be inadmissible if witnesses do not provide an appropriate foundation. Gallick v. Novotney (1984), 124 Ill. App. 3d 756, 759, 464 N.E.2d 846, 848.

In this case, Dr. Hall testified that the skeletal model was “a true and accurate and fair representation of the skeletal anatomy including the fibula and the tibia.” The trial court did not abuse its discretion when it permitted Dr. Hall to use the model in his testimony, especially in view of the court’s “limited right to exclude such tangible evidence as is material and relevant.” Seward v. Griffin (1983), 116 Ill. App. 3d 749, 762, 452 N.E.2d 558, 569.

The trial court refused to allow plaintiff to recall Dr. Feinberg to testify in rebuttal to Dr. Hall’s testimony. Rebuttal evidence is admissible if “it tends to explain, repel, contradict or disprove the evidence of defendant.” Illinois State Toll Highway Authority v. Grand Mandarin Restaurant, Inc. (1989), 189 Ill. App. 3d 355, 364, 544 N.E.2d 1145, 1150.

“[Wjhere a defendant introduces evidence of an affirmative matter in defense or justification, the plaintiff, as a matter of right, is entitled to introduce evidence in rebuttal as to such affirmative matter.” Loftus v. Loftus (1907), 134 Ill. App. 360, 362, quoted in Levenson v. Lake-To-Lake Dairy Cooperative (1979), 76 Ill. App. 3d 526, 539, 394 N.E.2d 1359, 1369.

Here defendant’s expert witness used a model of the affected bones to explain his theory concerning the ineffectiveness of Dr. Feinberg’s surgery. Dr. Feinberg was prepared to testify on rebuttal that the model did not accurately represent the structures involved. Under Grand Mandarin, the testimony would have been permissible rebuttal as an explanation of matters raised in Dr. Hall’s testimony. At the new trial, plaintiff should be allowed to present a rebuttal witness to explain the model’s defects. We express an opinion on this issue only because it may arise at the new trial. We will not decide whether the failure to allow Dr. Feinberg’s rebuttal constituted reversible error.

Reversed and remanded.

HARTMAN, P.J., concurs.

JUSTICE DiVITO,

dissenting:

I respectfully dissent from the majority’s conclusion that the trial court erred in excluding testimony of plaintiff’s expert in this case. In my opinion, the majority decision represents an unwarranted departure from established authority concerning Supreme Court Rule 220. The trial court’s ruling, proper and indeed mandated by Rule 220, should be upheld.

In this case, Dr. Gilíes had been deposed pursuant to Rule 220. In preparation for his deposition, he had reviewed the X rays taken at the hospital as well as the relevant X rays taken by Dr. Feinberg. Yet, like Dr. Feinberg, he had not seen a fracture of the fibula. In his deposition, his expert opinion was that the spiral fracture of the tibia indicated the possibility of rotation; he gave no opinion that referred to or relied upon a fracture of the fibula. He testified at trial that he had received and reviewed the X rays before his deposition, that he understood his role was to comment about the care rendered, and that he had carefully reviewed the provided materials so as not to reach any incorrect conclusions.

During the discussion concerning the admissibility of Dr. Gilíes’ proposed new opinion, defendant stressed that at his deposition Dr. Gilíes had “based all of his opinions on the theory there was no fracture in the fíbula” and that defendant was surprised and would be prejudiced by the new evidence. Indeed, the record corroborates this argument because defendant’s theory of defense, from opening statement onward, was that plaintiff suffered no injury other than the fractured tibia and that this injury alone would not have caused the rotation plaintiff alleged. Thus, had Dr. Gilíes been allowed to testify at trial concerning a fracture of the fibula, such testimony unquestionably would have been, to use the words of Rule 220(d), “direct testimony at trial,” both “inconsistent with” and “beyond the fair scope of the facts known or opinions disclosed” in his deposition.

In reaching its conclusion that the trial court abused its discretion in applying Rule 220 to exclude Dr. Gilíes’ shift in theory, the majority refers to standards applicable to violations of discovery orders under supreme court rules other than Rule 220. This case, however, is governed by a specific supreme court rule that spells out a specific requirement:

“[The expert’s] direct testimony at trial may not be inconsistent with or go beyond the fair scope of the facts known or opinions disclosed in such discovery proceedings.” (134 Ill. 2d R. 220(d).)

As applied to this case, the mandate of Rule 220(d) is unambiguous: the expert’s direct testimony may not contradict or go beyond factual information that was available at the time of his deposition. The majority’s conclusion that the trial court abused its discretion, when in fact it did only what Rule 220(d) requires, is indefensible. That conclusion is not made acceptable by the majority’s insistence that its holding is based on the fact that the evidence of the fractured fibula was first presented by an occurrence witness.

The majority places great significance in the fact that plaintiff’s occurrence witness/treating physician presented “newly discovered evidence.” The underpinning of its holding is expressed in its assertion that “[p]laintiff did not know of his need for expert testimony on this matter until trial” (231 Ill. App. 3d at 965), but that statement is simply unwarranted by the record in this case. Indeed, plaintiff understood fully his need for expert testimony: plaintiff understood before trial that a primary issue in this case was whether only the tibia injury could have led to rotation, and plaintiff’s expert offered an opinion about X rays during his deposition different from the opinion he desired to give at trial. This case does not present facts similar to those found in Engel v. Chicago & North Western Transportation Co. (1989), 186 Ill. App. 3d 522, 542 N.E.2d 729, relied upon by the majority. In that case, notwithstanding the court’s order barring all experts, the plaintiff succeeded in having a document examiner give testimony concerning suspicious documents produced for the first time at trial, despite prior discovery requests for their production.

Every case construing Rule 220(d) reaches a conclusion exactly opposite that reached by the majority here. The language of one of those cases, Baird v. Adeli (1991), 214 Ill. App. 3d 47, 573 N.E.2d 279, is quoted extensively by the majority, but the import of the quoted language and the conclusion reached in that case — upholding the barring of an expert from testifying inconsistent with his deposition testimony — are ignored. Another case cited by the majority, Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 511 N.E.2d 974, is given short shrift, perhaps because it reached a conclusion totally contrary to the majority’s and stresses the severe limitation placed on the trial court’s discretion by Rule 220. Although the majority expresses its “agree[ment] with the standard for review of sanctions imposed under Rule 220 stated in Caruso [v. Pine Manor Nursing Center (1989), 182 Ill. App. 3d 879, 538 N.E.2d 722]” (231 Ill. App. 3d at 963), it fails to relate that in Caruso, the court held simply that the trial court abused its discretion in barring the defense expert’s entire testimony because he testified beyond the scope of the basis of one of his opinions. The standard endorsed by the majority here does not support the conclusion it reaches; on the contrary, proper application of that standard (sanction must be proportionate to the gravity of the discovery violation) would lead to the same result reached by the trial court in this case.

In addition to Baird v. Adeli and Phelps v. O’Malley, many cases uphold exclusion of expert testimony for being inconsistent with or going beyond the scope of the facts known or opinions disclosed during discovery. (See, e.g., Chicago & Illinois Midland Ry. Co. v. Crystal Lake Industrial Park, Inc. (1992), 225 Ill. App. 3d 653, 658, 588 N.E.2d 337 (“Rule 220 is not advisory and it must be followed”); Marshall v. Osborn (1991), 213 Ill. App. 3d 134, 571 N.E.2d 492; Karr v. Noel (1991), 212 Ill. App. 3d 575, 571 N.E.2d 271; Bart v. Union Oil Co. (1989), 185 Ill. App. 3d 64, 540 N.E.2d 770; Stringham v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 312, 536 N.E.2d 1292; Friedland v. Allis Chalmers Co. of Canada (1987), 159 Ill. App. 3d 1, 511 N.E.2d 1199.) The majority has not cited, nor am I aware of, any case that justifies the result reached here. Indeed, this result is inconsistent with the goal of Rule 220, that is, to afford timely disclosure of expert witnesses and their testimony, so as to allow adversaries adequate opportunity to investigate the credentials of proposed expert witnesses and to review the substance of their opinions with their own experts in order to prepare their own theory of the case and to properly prepare for cross-examination. See McDonald’s Corp. v. Butler Co. (1987), 158 Ill. App. 3d 902, 911, 511 N.E.2d 912, 918.

The majority’s suggested cure for what occurred in this case is perplexing. In addition to its determination that the trial court should have ignored the mandate of Rule 220(d), the majority suggests alternatively that “the trial court could have disallowed both parties’ experts from commenting on the evidence.” (231 Ill. App. 3d at 966.) Apparently, the majority feels that permitting Dr. Feinberg’s testimony about the fractured fibula to be unrebutted somehow satisfies the trial court’s “duty of ‘insuring a fair trial for all litigants.’ ” Rather than insuring fairness, disallowance of the defense expert’s testimony would have gutted the defense case while rewarding plaintiff for the previously undisclosed evidence of his occurrence witness/ treating physician.

The majority emphasizes that plaintiff did not seek to circumvent the discovery rules and acted in good faith. Nonetheless, the provisions of Rule 220 that require the exclusion of evidence when an expert changes his theory are not triggered solely by deliberate efforts to circumvent the rule or by bad-faith conduct. Although those considerations are significant, their absence does not preclude application of Rule 220 sanctions. Moreover, it is difficult to understand the statement by the majority that “[t]he expert did not change his basic opinion or beliefs.” (231 Ill. App. 3d at 964.) That statement provides a new and inappropriate rule of application for alleged Rule 220 violations: if an expert’s opinion or beliefs are unchanged, that expert may add to or subtract from the facts or data that form the basis of the opinion or beliefs. Neither the plain language of Rule 220 nor its case law interpretation justifies such a rule.

At the conclusion of its opinion, the majority asserts that although it does not decide whether the trial court’s refusal to allow Dr. Feinberg to testify in rebuttal constituted reversible error, it expresses “an opinion on this issue only because it may arise at the new trial.” (231 Ill. App. 3d at 968.) The implication, however, that the trial court’s ruling was erroneous must be addressed. No one can quarrel with the majority’s statement that rebuttal evidence concerning the model’s legitimacy should be allowed so long as there is a proper foundation for such evidence. Here, although the majority states that “Dr. Feinberg was prepared to testify on rebuttal that the model did not accurately represent the structures involved” (231 Ill. App. 3d at 968), there is no basis in the record before us to conclude that he would have so testified or that he was justified in so doing. The record in this case contains absolutely no foundation for justifying rebuttal evidence.

Plaintiff’s opening and reply briefs demonstrate his awareness that he did not preserve this issue for appeal. In his briefs, plaintiff contends only that he should have been allowed to have Dr. Feinberg use the X rays to show the derotation by drawing a line along the edges of the fracture that he created during his osteotomy. He does not argue that he should have been allowed to rebut defendant’s use of the model. It was not until oral argument before this court that plaintiff first contended that the trial court erred in not allowing rebuttal testimony concerning the model, a contention that he has waived for raising it so late, and one that has no validity for reasons that follow.

Although the record reflects that plaintiff objected to defendant’s use of the skeletal model as misleading and even did so in the presence of the jury, providing the grounds for his objection in the jury’s presence, the record also reflects that plaintiff asked Dr. Hall not one question that would have provided a sufficient foundation for rebuttal testimony. This failure to cross-examine concerning the alleged deficiencies in the model occurred despite the court’s suggestion to plaintiff that his cross-examination could deflect any misleading aspect of the exhibit. Had plaintiff asked Dr. Hall about the alleged shortcomings of the model, he might have developed fully the points he considered significant. In any event, because no foundation questions were propounded to Dr. Hall, there was nothing for plaintiff to rebut. Under these circumstances, the trial court’s ruling was correct.

Further, the record shows plaintiff made a formal offer of proof concerning what Dr. Feinberg would testify to in “rebuttal.” That offer of proof contained not one word addressing the propriety of the model. The trial court properly ruled that the proposed testimony was not rebuttal, but merely a reiteration of the testimony already offered by plaintiff. In short, there is no basis for concluding that the trial court prevented plaintiff from presenting admissible rebuttal evidence.

For the foregoing reasons, I would affirm the judgment of the trial court.

      Plaintiff appended the deposition to his response to the petition for rehearing. Plaintiff did not file the deposition in the trial court and he did not move this court to permit supplementation of the record, so the deposition is not properly part of the record on appeal. (See 134 Ill. 2d Rules 321, 329.) Accordingly, we disregard the deposition.

      The person so emphatically identified by the majority as an “occurrence witness” (an identification he deservedly receives, pursuant to case law interpretation of Rule 220, because of his role as a treating physician) was Dr. Irwin Feinberg, who performed a surgical procedure that involved cutting through the upper third of both the tibia and the fibula to realign plaintiff’s bones so that the perceived rotation might be corrected. Dr. Feinberg examined the hospital’s and his own X rays and performed the surgical procedure without observing the fracture of the fibula. He first observed what he opined to be a fracture of the fibula when he was shown an X ray during his testimony at trial.


author: JUSTICE WELCH

text:
    ALLSTATE INSURANCE COMPANY, Plaintiff-Appellee and Counterdefendant-Appellee, v. ROY D. HUTCHESON et al., Defendants-Appellants (American States Insurance Company, Intervening Counterplaintiff-Appellant; Roy D. Hutcheson et al., Third-Party Plaintiffs-Appellants; General Casualty Company of Illinois, Third-Party Defendant-Appellee).
    Fifth District
    No. 5—91—0372
    Opinion filed July 29, 1992.
    Brian P. McGarry, of Marion, for appellants.
    Fowler & Novick, of Marion, for appellee General Casualty Company of Illinois.
    Brad K. Bleyer, of Bleyer & Bleyer, of Marion, for appellee Allstate Insurance Company.
   JUSTICE WELCH

delivered the opinion of the court:

On August 16, 1988, Roy D. Hutcheson, while driving an automobile owned by Virginia York, the mother of his girl friend, collided with another automobile. Injured in the collision was Martha Cressy, an occupant of the other car involved, who, in a separate action, sued Hutcheson for the injuries sustained. At the time of the accident, Hutcheson owned and operated an automobile service station, and he was there engaged in the business of repairing and servicing automobiles.

Although the car being driven by Hutcheson at the time of the accident was owned by York, it was actually used primarily by Hutcheson’s girl friend, Christina Dunning. Dunning had express permission from York to use the vehicle as her own, and Dunning had given Hutcheson express permission to use the vehicle any time he desired and it was mutually convenient. Thus, there can be no dispute that, under most circumstances, Hutcheson was insured as a permissive user of the vehicle under the omnibus provision of York’s automobile liability insurance policy, issued by Allstate Insurance Company. (Maryland Casualty Co. v. Iowa National Mutual Insurance Co. (1973), 54 Ill. 2d 333, 342-43, 297 N.E.2d 163, 168.) However, the insurance policy issued by Allstate Insurance Company (hereinafter Allstate) also contained an automobile-business exclusion which provided,

“This coverage does not apply to liability for:
* * *
(2) Auto business operations such as repairing, servicing, testing, washing, parking, storing or the selling of autos. However, coverage does apply to you, resident relatives, your partners or the partnership in the business, or employes [sic] of the partnership or of the resident relative when using your insured auto.”

Hutcheson also had personal-automobile liability insurance which, in most circumstances, would have provided coverage for any auto accident in which he was involved. However, that policy also contained an automobile-business exclusion which provided,

“We do not provide Liability Coverage:
* * *
6. For any person while employed or otherwise engaged in the business or occupation of selling, repairing, servicing, storing or parking of vehicles designed for use mainly on public highways, including road testing and delivery. This exclusion does not apply to the ownership, maintenance or use of your covered auto by you, any family member, or partner, agent or employee of you or any family member.”

This policy was issued by General Casualty Company of Illinois.

Hutcheson also had garage owner’s liability insurance issued by American States Insurance Company. American States Insurance Company (hereinafter American States) conceded that its policy did provide coverage for the accident and undertook to defend Hutcheson in the action brought by Cressy.

The instant suit is a declaratory judgment action brought in the circuit court of Saline County to determine whether the insurance policies issued by Allstate and General Casualty Company of Illinois (hereinafter General Casualty) provide coverage for the accident or whether coverage is excluded by the automobile-business exclusions of the two policies. The question arises because, immediately after the accident, Hutcheson told numerous people, including insurance claims adjusters, that, at the time of the accident, he had been road testing the York vehicle to determine whether repairs he had just completed were satisfactory. At trial of the declaratory judgment action, the following evidence pertinent to the issue was adduced.

Roy D. Hutcheson testified as an adverse witness that he is self-employed as the owner and operator of a service station. On August 16, 1988, he was involved in an automobile accident while driving a car owned by Virginia York. Hutcheson dated York’s daughter, Christina Dunning. On the evening before the accident, Dunning had visited Hutcheson at his home behind his service station. The morning of the accident, when Dunning prepared to leave, traces of sugar were found in the fill spout of her vehicle’s gas tank. Hutcheson told Dunning to take his car to her workplace while he kept hers to clean out the gas tank and engine. Hutcheson’s purpose in keeping Dunning’s car that day was to perform the necessary repairs. Hutcheson’s employee at the service station actually performed the repairs as part of his employment that day. When asked whether at the time of the accident he had been test-driving the vehicle to check the repairs, Hutcheson replied “not really.” Hutcheson was impeached with statements he had made to two claims adjusters and testimony given in deposition in which he admitted that he had been test-driving the car at the time of the accident. Hutcheson admitted at trial that the testimony he gave in deposition was the truth. Hutcheson testified that normally when he road tests a vehicle he goes in a direction different than that taken on the day of the accident. However, he sometimes takes different routes when test-driving a car. Hutcheson admitted that one of the reasons he was driving the York vehicle at the time of the accident was to test his repairs.

Robyn Lee Gott testified that she is an insurance broker. She wrote Hutcheson’s garage owner’s liability policy with American States. She spoke with Hutcheson on the telephone regarding the automobile accident in question. Hutcheson told Gott that at the time of the accident he had been test-driving a customer’s car. Hutcheson did not explain any other reason for driving the car at the time of the accident.

Terri Gay is a claims adjuster with Allstate. She took a statement from Hutcheson regarding the accident. Hutcheson told her that he was test-driving the vehicle at the time of the accident. At the prompting of his attorney, Hutcheson also told Gay that he had had another purpose in driving the vehicle that day in that he was going to his ex-wife’s house to check on a sump pump.

Harry Scroggins testified that he is self-employed as an independent claims adjuster. He participated in the investigation of the accident in question for General Casualty. He talked with Hutcheson on the telephone. Hutcheson told Scroggins that he had been road testing the vehicle at the time of the accident to check whether he had successfully removed all the sugar from the gas tank and engine. Hutcheson told Scroggins that the car belonged to a customer. Hutcheson told Scroggins that he was driving the car for an additional purpose in that he was going to check a sump pump at the house of his ex-wife. Hutcheson told Scroggins that it was a dual-purpose trip and he was killing two birds with one stone. Hutcheson was going to stop by and check the pump while he was test-driving the car. Hutcheson told Scroggins that he was just getting ready to test-drive the car when he got a telephone call from his ex-wife. Had the telephone call come two minutes later, Hutcheson would have already been gone. Hutcheson told Scroggins that he would have normally driven the same distance to test-drive a customer’s car.

Also admitted into evidence were Hutcheson’s sworn answers to two interrogatories filed in the action brought against Hutcheson by Cressy for personal injuries. They stated that just prior to the accident, Hutcheson was coming from his service station going to his former residence and he was test-driving the York vehicle at the time.

Hutcheson’s fiancee, Christina Dunning, testified that she is the daughter of Virginia York. Dunning made the payments on the vehicle in question, but the note was in York’s name. The car was primarily for Dunning’s use. Hutcheson drove the vehicle often and had permission from Dunning to do so. Hutcheson and Dunning often traded cars because Hutcheson had an El Camino, while Dunning had a passenger sedan.

The evening before the accident, Dunning had gone to Hutcheson’s home to visit. She spent the night there, and the next morning, sugar was discovered in her gas tank. Hutcheson told Dunning to leave her car with him for repair and to take his car to her work. Dunning left her vehicle with Hutcheson for the purpose of repair. The vehicle was left with Hutcheson primarily for repair purposes and not for his personal use. Dunning was not charged for the repair work.

Roy Dean Hutcheson testified that he had dated Dunning for about one year prior to the accident. Hutcheson often drove Dunning’s vehicle, and they often traded vehicles. Hutcheson had standing permission to use Dunning’s vehicle. After Dunning’s vehicle was repaired on the day of the accident, Hutcheson allowed it to sit and run at the garage. It ran fine. That day, Hutcheson received a telephone call from his ex-wife asking him to check on a sump pump at the former marital residence. Hutcheson drove Dunning’s car directly to his ex-wife’s house. He intended to return directly to the service station. His own vehicle was unavailable as Dunning had taken it. Hutcheson had a wrecker which he could have driven. However, it is against policy to take the wrecker away from the station unless it is on business. Hutcheson admitted that one of the purposes in driving Dunning’s vehicle was to test his repairs. However, that was not the main reason for driving it to his ex-wife’s home. He primarily went there to check the sump pump. Hutcheson does not road test every vehicle he repairs, and normally when he road tests a vehicle he goes in a different direction than he went that day. Hutcheson did not charge Dunning for the repair work. The answers to interrogatories which were admitted into evidence were truthful. They do not mention any dual purpose for driving Dunning’s car at the time of the accident. The accident happened right in front of Hutcheson’s ex-wife’s home as he was attempting to turn into the road leading to the house.

Admitted into evidence was the evidence deposition of Peggy Jones, Hutcheson’s ex-wife. On August 16, 1988, Jones telephoned Hutcheson at his service station to ask him to check on a sump pump at the former marital residence. Hutcheson agreed to do so. Jones had asked Hutcheson to check on the pump as soon as possible as she was afraid its malfunctioning might cause a fire or flood.

At the close of the evidence, the court pronounced its ruling. The court found that Hutcheson had kept Dunning’s car for the purpose of effecting repairs, that the car was repaired in the course of Hutcheson’s business that day with the assistance of an employee, and that approximately two minutes before he was going to leave to test-drive the car, Hutcheson’s ex-wife telephoned and asked him to check on a sump pump in her home. Hutcheson test-drove the car while driving to his ex-wife’s home, and very near the home he had a collision. Hutcheson could have used his wrecker to go to the home but chose to use the York vehicle to test-drive it. The court ruled, therefore, that the automobile-business exclusions in the Allstate and General Casualty insurance policies apply and neither policy provides coverage. A written docket-entry order was entered May 6, 1991, and a written judgment order was entered May 16, 1991.

Roy D. Hutcheson and his garage owner’s liability insurer, American States, appeal. They concede that Hutcheson was test-driving the York vehicle at the time of the accident. However, they argue that the primary purpose of the trip was not to test-drive the vehicle but to check on the sump pump. The trial court did not so find, and neither do we. The evidence indicates that Hutcheson was preparing to test-drive the vehicle when his ex-wife telephoned. He took the opportunity of the test-drive to also complete the personal favor which his ex-wife had asked of him. The primary purpose of driving the York vehicle remained to test the repairs.

Nor do appellants argue that road testing a customer’s vehicle would not fall within the purview of either exclusion if that were the sole purpose of the use of the vehicle. The Allstate policy includes within its exclusion the testing of autos and the General Casualty policy includes within its exclusion the road testing of autos. Appellants simply argue that, in this case, where there was a dual purpose to driving the vehicle and a special relationship between the driver and vehicle owner, the exclusion should not apply for various reasons. The first of these reasons is that the language of the automobile-business exclusions at issue here is ambiguous and, under well-known rules of construction, must be construed in favor of coverage and against application of the exclusions. We disagree.

A provision in an insurance policy is deemed ambiguous if it is subject to more than one reasonable interpretation. (Economy Fire & Casualty Co. v. Bassett (1988), 170 Ill. App. 3d 765, 769, 525 N.E.2d 539, 542.) Courts will not create an ambiguity where none exists. (Bassett, 170 Ill. App. 3d at 769, 525 N.E.2d at 542.) The provisions in question here are not subject to more than one reasonable interpretation. They plainly and clearly exclude coverage where an accident occurs while a customer’s repaired automobile is being test-driven by a person who is engaged in the automobile business. The policy provision is clear and unambiguous.

Appellants next argue that the purpose of the automobile-business exclusion is not served by its application in the instant case where the driver of the vehicle was not a stranger or unknown service station employee but was instead well known to the car owner/ insured. An argument similar to appellants’ was advanced in Van Vleck v. Barbee (1983), 115 Ill. App. 3d 936, 451 N.E.2d 25.

In that case it was argued that the automobile-business exclusion clause should be declared void, as contrary to public policy, where the driver of the vehicle, a service station employee, was a relative of the insured and therefore had a special relationship with the insured. The argument was that the purpose behind the automobile-business exclusion is to protect the insured from liability where a person unknown to him, i.e., an employee of the auto business, is driving the car. The appellant/plaintiff argued that since the driver was known to the insured, in fact was a relative, the exclusion should not apply.

The appellate court disagreed. It found the automobile-business exclusion to be clear and unambiguous. The court stated

“[t]hat application of the provision in this case is not consistent with an asserted purpose behind the provision, even conceding the purpose asserted, does not establish a sufficient basis for our finding that the provision violates public policy.” (115 Ill. App. 3d at 938, 451 N.E.2d at 27.)

The court further held that where the policy is clear and unambiguous, it is to be enforced as written, without going behind the language to speculate on the purposes underlying the provision. The policy exclusion was held to apply.

Similarly, in the instant case, the language of the automobile-business exclusions is clear and unambiguous and must be enforced as written. We find no language in the exclusions to indicate that the fact that the employee of the service station was known to the insured and, indeed had a special relationship with the insured, renders the exclusion inapplicable.

We can find only two reported cases in Illinois which involve the question of application of the automobile-business exclusion in the case of the personal use of an automobile also used in, or operated by one engaged in, the automobile business. From these cases it appears that had Hutcheson’s use of the York vehicle been exclusively for personal business and completely unrelated to his automobile business at the time of the accident, even though he had initially received possession of the vehicle for purpose of repair, the automobile-business exclusion would not apply. State Farm Mutual Auto Insurance Co. v. Mohan (1967), 85 Ill. App. 2d 10, 20, 228 N.E.2d 283, 289.

In Mohan, an employee of an auto-body repair shop picked up a customer’s vehicle to deliver it to the shop for repairs. Instead of so delivering the vehicle, however, the employee picked up his girl friend and went on a tour of local night spots. In the course of the evening, the employee was involved in a serious automobile accident in the customer’s automobile. The appellate court found initially that the employee was a permissive user of the vehicle, for the owner had given him permission to drive the vehicle to the repair shop. Deviation from that purpose did not affect the driver’s status as a user of the vehicle with permission. (85 Ill. App. 2d at 20, 228 N.E.2d at 289.) The court further found that the employee was, at the time of the accident, on a personal lark of his own and his use of the automobile was completely unrelated to the automobile business. The court distinguished a case where an employee of an automobile business had an accident while on a minor or incidental deviation from the business use of the vehicle. (Walker v. State Farm Mutual Automobile Insurance Co. (1963), 40 Ill. App. 2d 463, 190 N.E.2d 121.) In such a case, the court held, the exclusion would apply. In Mohan, it did not.

In Walker, the insured had given his son permission to use his insured automobile for any purpose and at any time. The insurance policy expressly excluded coverage for any automobile while used in the automobile business. The son owned and operated a service station. He borrowed the insured’s car to exchange an auto part he had purchased at a store in a neighboring town. He invited a friend along, and the two stopped for lunch in the neighboring town. He then exchanged the auto part and on the return trip was involved in an accident.

The insurance company denied coverage, arguing that since there was no dispute about the fact that the son was engaged in the automobile business as defined in the policy and that at the time of the collision the automobile was being used in part for a purpose connected with the automobile business, the automobile-business exclusion applied. The appellate court found no ambiguity in the automobile-business exclusion and therefore no basis to invoke the principle of resolving ambiguities in favor of the insured. In the absence of ambiguity and illegality, the court gives effect to the policy as written. (40 Ill. App. 2d at 465, 190 N.E.2d at 122.) The court specifically found:

“[i]t makes no difference that the car may have been used at the same time for other purposes as well as the business of the service station. The exclusion is not limited to the situation where the sole use of the car is in connection with the business. It may be assumed that at any time a car is used for the purpose of obtaining and transporting parts for use in the business the driver may stop for a meal at some point or to make some other purchase of a personal nature. If these other activities were sufficient to bar the application of the exclusion, then that provision of the policy is virtually a nullity.” (40 Ill. App. 2d at 467, 190 N.E.2d at 122-23.)

Thus, the court held that the automobile-business exclusion did operate to bar coverage where the car was used for a dual purpose, combining business with an incidental and minor personal purpose.

Appellants argue that this case is more akin to Mohan than to Walker. We disagree. In Mohan, the service station employee’s use of the automobile was completely unrelated to the automobile business. The driver had not merely deviated slightly or incidentally from his use of the vehicle in the automobile business but had completely abandoned the business use in favor of a “personal lark.” (Mohan, 85 Ill. App. 2d at 21, 228 N.E.2d at 289.) In Walker, as in this case, the primary use of the vehicle related to the automobile business, and the deviation therefrom was minor and incidental. The use of the automobile for the automobile business was not abandoned but was combined with a personal objective which was minor and incidental. In such a case, the automobile-business exclusion does apply.

Accordingly, we affirm the judgment of the circuit court of Saline County finding that neither the Allstate Insurance Company nor the General Casualty Company of Illinois policy of insurance provides coverage for the accident in question.

Affirmed.

HARRISON and H. LEWIS, JJ., concur.