author: JUSTICE DiVITO

text:
      In re L.M. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. English M., Respondent-Appellant).
    First District (2nd Division)
    No. 1—86—1920
    Opinion filed September 26, 1989.

      Paul P. Biebel, Jr., Public Defender, of Chicago (Sharon Shapiro and Frances Sowa, Assistant Public Defenders, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Lynda A. Peters, and Clarke Devereux, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE DiVITO

delivered the opinion of the court:

After a juvenile court adjudicatory hearing, the circuit court found that respondent, English M., had abused and neglected her two minor sons, L.M. and D.M. At the dispositional hearing, the circuit court made L.M. and D.M. wards of the court; vacated a temporary custody order; and appointed as guardian Walter M., their father. Respondent appeals from this order contending that the circuit court erred because it: (1) lacked jurisdiction over L.M. and D.M.; (2) improperly found that respondent used excessive corporal punishment; (3) improperly admitted hearsay testimony concerning a psychological report during the dispositional hearing; (4) improperly found that respondent was an unfit parent; and (5) improperly ordered the termination of respondent’s unsupervised visits with her sons.

Respondent and her husband had two sons, L.M. and D.M. In 1984, when L.M. was seven years old and D.M. was nine years old, respondent had been separated from her husband for approximately three years. On Saturday, March 24, 1984, L.M. and D.M. left home in the morning to play and did not return until late in the evening. Respondent stated that on this date she looked for her sons while en route to the currency exchange and to the gas station, but could not find them.

The next day, in the early morning, their father saw the boys in the front yard of a friend’s house. They stayed with their father most of the day, and before nightfall went back to respondent’s home, V-k blocks away, but were unable to gain access. The boys returned to their father’s home and, at approximately 9 p.m., he accompanied them to respondent’s house, where he knocked several times and then pounded on the door with a rock, but there was no answer.

After several phone calls and an unsuccessful attempt by respondent’s brother to gain access to the house, L.M. and D.M. stayed the night with their father. That evening, their father gave the boys a bath and washed their hair “so they wouldn’t have to go to school smelling like urine.” For some time the boys had been dirty. Their father recalled that the Parent-Teacher Association president had spoken with him, requesting that he contact respondent about the condition of the boys. While washing the younger boy, L.M., his father noticed five “whip marks” across his back.

The father described the marks on L.M.’s back as 6 to 10 inches long, going diagonally in different directions. The marks had become pink-fleshy lines after the scabs that had initially formed had fallen off. In response to his father’s questions about how he had gotten the marks, L.M. said that he had been whipped with a belt and a stick by respondent because he had been playing ball in the house. D.M. told his father that respondent had also struck him.

Because the boys had colds, their father took them to Michael Reese Hospital, where they were examined by Dr. Berman, who diagnosed the colds, noted the marks across L.M.’s back, and told their father that they were caused by being whipped. After L.M. confirmed he had been whipped, Dr. Berman telephoned the hotline for child abuse and neglect of the Illinois Department of Children and Family Services (DCFS) and reported that respondent had struck L.M. with a belt and had left the boys unsupervised.

DCFS filed petitions for adjudication of wardship which alleged that respondent abused and neglected the two boys, in violation of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, pars. 702 — 4(lXa), (2)(a), (2)(b)).

On April 3, 1984, a guardian ad litem having been appointed to represent L.M. and D.M., a probable cause hearing was held. Marlon Daniels, a DCFS employee, testified that on March 27, 1984, he had visited the boys’ elementary school and had spoken with L.M. and D.M. about being left unsupervised by their mother. Daniels had examined L.M. and discovered five whip marks on his back. He recommended that the boys remain in foster care placement until respondent, their father, and a service worker for DCFS could determine a service plan for the return of the boys to respondent. The circuit court found that there was probable cause and an urgent and immediate necessity for foster care of L.M. and D.M., and therefore, appointed DCFS as their temporary custodian.

On March 14, 1986, an abuse and neglect proceeding was held before the circuit court. The State called the boys’ father and a DCFS social worker, Stephen English. Their testimony established that respondent had left her sons unsupervised and that L.M. had whip marks on his back. English further testified that at a meeting with respondent and Charles Hays, a staff-therapist at the Mid-South Mental Health Center, respondent admitted she had disciplined the boys with a belt. Respondent testified that she had not punished the boys by whipping them and that she had not used excessive corporal punishment on them. At the conclusion of the hearing, the circuit court made a finding of abuse of L.M. due to excessive corporal punishment and also found neglect and abuse of both L.M. and D.M. based on respondent’s lack of care for them and the creation of an environment injurious to their welfare. The court ordered that respondent be psychologically evaluated prior to the dispositional hearing.

On June 12, 1986, the dispositional hearing was held. At this hearing, the State again called Stephen English, who testified that in 1984, following the earlier hearing, DCFS had arranged a service plan for respondent. The service plan was structured so that respondent would see a therapist at Mid-South Mental Health Center, be involved with a parenting support group center, and enjoy weekly unsupervised visits with L.M. and D.M. Respondent expressed dissatisfaction with her therapist and, although English told respondent that he would arrange for a new therapist and did change therapists for her the next week, respondent failed to attend the sessions until three months later, and then was erratic in her attendance. Respondent’s visits with her children were also erratic, the last visit having been three weeks before the hearing.

English further testified that a Dr. Simms interviewed and psychologically evaluated respondent. The psychological report concluded that respondent had emotional problems that she acted out aggressively but did not realize she was doing so. Dr. Simms felt that respondent needed long-term psychotherapy and possibly needed medication. Dr. Simms recommended that respondent not be given custody of L.M. and D.M.

English also testified that both boys individually told him that they wanted to be placed with their father. English recommended that the boys be placed in the custody of their father, whose house he had found to be suitable for younger children. He based his recommendations on respondent’s inconsistent compliance with the DCFS service plan and the psychological report of Dr. Simms. Moreover, respondent still refused to admit that any abuse of the boys had occurred and exhibited no remorse as to what had happened to the boys. English was also concerned that Dr. Simms felt that respondent would abuse L.M. and D.M. again.

Respondent testified that she attended counseling for six months every Monday at 1 p.m.; she saw a psychologist and a doctor at Cook County Hospital; however, she could not recall the name of the doctor; she did not punish the boys by whipping them; and she told Dr. Simms that the lashes across L.M.’s back were from the two boys fighting and that reports of her conduct had been exaggerated.

After closing arguments, the circuit court noted that respondent had not substantially complied with the DCFS service plan. Moreover, the circuit court stated that the psychological report by Dr. Simms that L.M. and D.M. should be removed from respondent’s custody was controlling evidence in this case. The circuit court held that it was in the best interest of the minors that they be adjudged wards of the court and that their father be appointed guardian. The written order also terminated respondent’s unsupervised visits with L.M. and D.M. without prejudice.

I

The record does not indicate that the boys were served with a summons or a copy of the petition as required by section 2 — 15 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 15). Respondent argues that because L.M. and D.M. were not served with a summons and a copy of the petition, the orders entered at the dis-positional hearing are void for want of jurisdiction. We do not agree.

Where a minor has notice, appears at a proceeding, and is properly represented by a guardian ad litem throughout the proceedings, personal service is unnecessary. (In re P.W. (1988), 178 Ill. App. 3d 522, 528, 533 N.E.2d 922; In re R.W. (1988), 176 Ill. App. 3d 868, 874-75, 531 N.E.2d 294.) Where a parent has appeared and participated in all proceedings before the circuit court, and does not object to jurisdiction, she has waived the formality of service of process and voluntarily submits to the jurisdiction of the court. (In re J.W. (1981), 87 Ill. 2d 56, 429 N.E.2d 501; In re T.A. (1989), 181 Ill. App. 3d 1034, 537 N.E.2d 1118.) Furthermore, where there is no showing that any substantial interest of the minor was prejudiced by failure to obtain personal service on the minor, the court’s decision is not void for lack of jurisdiction. In re Pronger (1987), 118 Ill. 2d 512, 524, 517 N.E.2d 1076; In re P.W. (1988), 178 Ill. App. 3d 522, 528, 533 N.E.2d 922; In re R.W. (1988), 176 Ill. App. 3d 868, 874-75, 531 N.E.2d 294.

Here, respondent never objected to jurisdiction and has therefore waived any objections as to the court’s jurisdiction over L.M. and D.M. (In re J.W., 87 Ill. 2d 56, 429 N.E.2d 501; In re T.A., 181 Ill. App. 3d 1034, 537 N.E.2d 1118.) Furthermore, a guardian ad litem represented L.M. and D.M. at all court proceedings; they appeared at several court hearings but were removed from the courtroom during testimony; and there has been no allegation or showing of prejudice regarding any of their interests. Therefore, no useful purpose would be served by remanding for additional notice and additional proceedings. In re P.W., 178 Ill. App. 3d 522, 533 N.E.2d 922; In re R.W., 176 Ill. App. 3d 868, 531 N.E.2d 294.

II

Respondent contends that there was no evidence presented that she improperly used a belt to whip her children. Alternatively, she maintains that it was not clearly established that a belt was used in a vicious manner or for other than disciplinary reasons, and that, in any event, using a belt on one’s own children cannot be the basis for a finding of child abuse. We disagree.

The petition alleged that respondent used excessive corporal punishment by whipping L.M. with a belt. (Ill. Rev. Stat. 1983, ch. 37, par. 702 — 4(2)(a)(v).) Although the Juvenile Court Act does not define “excessive corporal punishment” and each circumstance is unique (In re Stilley (1977), 66 Ill. 2d 515, 520, 363 N.E.2d 820), it has been held to be unreasonable conduct to spank a child with one of the child’s belts so that some of the blows fall upon the child’s back and chest (People v. Swanson (1980), 84 Ill. App. 3d 245, 405 N.E.2d 483), and to hit a child with an extension cord (People v. Reynolds (1980), 91 Ill. App. 3d 683, 685, 415 N.E.2d 685). Moreover, it has been determined to be excessive corporal punishment for a parent to whip his son twice with an extension cord (People v. Johnson (1985), 133 Ill. App. 3d 881, 884, 479 N.E.2d 481), and to paddle or spank a nine-year-old boy with a leather belt on his unclothed buttocks (In re D.M.C. (1982), 107 Ill. App. 3d 902, 905, 438 N.E.2d 254).

Here, testimony by Stephen English and the boys’ father established that the whipping by respondent of her seven-year-old son with a belt was vicious and unreasonable and exceeded the bounds of proper parental force (People v. Johnson, 133 Ill. App. 3d 881, 479 N.E.2d 481; People v. Swanson, 84 Ill. App. 245, 405 N.E.2d 483), and therefore, constituted excessive corporal punishment. (In re D.M.C. (1982), 107 Ill. App. 3d 902, 905, 438 N.E.2d 254.) Moreover, during consultations with a therapist and a DCFS social worker, respondent had admitted to whipping the boys with a belt. That testimony corroborated L.M.’s recitation of excessive whippings. In re D.P. (1988), 176 Ill. App. 3d 456, 531 N.E.2d 162.

Respondent erroneously relies upon In re Aaronson (1978), 65 Ill. App. 3d 729, 731-32, 382 N.E.2d 853, as support for her argument that using a belt on her own children cannot be the basis of a finding of child abuse in the absence of clear evidence that the striking was vicious or for other than disciplinary purposes. Aaronson is distinguishable in that there the evidence failed to establish excessive, unreasonable, or vicious punishment. In re Aaronson (1978), 65 Ill. App. 3d 729, 731-32, 382 N.E.2d 853.

Here, the circuit court’s findings were not against the manifest weight of the evidence. (In re D.M.C. (1982), 107 Ill. App. 3d 902, 905, 438 N.E.2d 254.) Because the trial court must have broad discretion in determining the existence of neglect and abuse (In re Stilley (1977), 66 Ill. 2d 515, 520, 363 N.E.2d 820), there was no abuse of discretion where a whipping, as in this case, left permanent scars on a seven-year-old’s back.

Ill

Respondent asserts that the circuit court erred when it received into evidence, without proper foundation and authentication and over objection, a document alleged to be a psychological evaluation concerning respondent. She contends that the document was inadmissible hearsay since Dr. Simms, the psychologist who prepared the evaluation, was not present in court or subject to cross-examination.

In support of her argument, respondent refers to the section of the Juvenile Court Act which provides the proper procedure for establishing a foundational basis and authenticity for admitting written records of a hospital or a public or private agency. (Ill. Rev. Stat. 1985, ch. 37, par. 704 — 6(4)(a).) However, respondent cites the section which refers to the procedures necessary to admit evidence at the adjudicatory hearing; here, the report was admitted at the dispositional hearing.

The propriety of the admission of the psychological report by Dr. Simms at the dispositional hearing, following the finding of neglect and abuse of L.M. and D.M. several months prior, is controlled by section 5 — 1(1) of the Juvenile Court Act, the pertinent part of which reads as follows:

“At the dispositional hearing, the court shall determine whether it is in the best interests of the minor and the public that he be made a ward of the court, and, if he is to be made a ward of the court, the court shall determine the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining these questions, including oral and written reports, may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing.” (Emphasis added.) Ill. Rev. Stat. 1985, ch. 37, par. 705 — 1(1).

This section of the Act plainly provides that the circuit court should consider all reports, whether or not the author testifies, which would assist the court in determining the proper disposition for the minor. (In re Smith (1975), 33 Ill. App. 3d 354, 356, 337 N.E.2d 109.) Concerns over the hearsay portions of the report may be alleviated by asking for the opportunity to controvert the report pursuant to the provisions of section 5 — 1(2) of the Juvenile Court Act. (In re Calkins (1981), 96 Ill. App. 3d 74, 78, 420 N.E.2d 861.) Since a psychological report may be admitted in evidence at a dispositional hearing even if it is hearsay evidence (In re Calkins (1981); 96 Ill. App. 3d 74, 78, 420 N.E.2d 861; In re Smith (1975), 33 Ill. App. 3d 354, 356, 337 N.E.2d 109), the report admitted in this case was properly admitted.

IV

Respondent argues it was arbitrary and against the manifest weight of the evidence for the circuit court to find that it was in the best interests of the boys that they be adjudged wards of the court, that she was unwilling to care for the boys, and that the service plan had not been successfully completed by her. We do not agree.

Under the Juvenile Court Act, when the court finds that a parent is unable or unwilling to care for her child, that remedial services have been ineffective, and that it is in the best interests of the child to be taken from the parent, the child may be placed under the guardianship of another. (Ill. Rev. Stat. 1985, ch. 37, pars. 705— 7(l)(a), (3).) A reviewing court should not reverse a trial court’s determination of parental unfitness unless it is palpably erroneous and contrary to the manifest weight of the evidence (In re Hillyer (1980), 82 Ill. App. 3d 505, 510, 403 N.E.2d 36), or an abuse of discretion. In re Nitz (1979), 76 Ill. App. 3d 15, 394 N.E.2d 887; In re Prough (1978), 61 Ill. App. 3d 227, 376 N.E.2d 1078.

The unfitness of a parent may be proven by clear and convincing evidence that her efforts to visit her children were “halfhearted and easily abandoned” and that she lacked any commitment necessary to complete a service plan. (In re T.R. (1985), 135 Ill. App. 3d 1017, 482 N.E.2d 372.) Evidence that a parent’s compliance with a service plan were “very sporadic” or that she failed to participate in a service plan and was unfit are sufficient to show that she failed to maintain a reasonable degree of interest, concern, or responsibility for the welfare of her children. See In re T.R. (1985), 135 Ill. App. 3d 1017, 1022, 482 N.E.2d 372; In re Hillyer (1980), 82 Ill. App. 3d 505, 509, 403 N.E.2d 36.

In the instant case, respondent did not participate in her service plan on a consistent basis. She complained about her therapist, and when that therapist was changed, she failed to see the replacement for three months. Nor did she regularly visit her children. Moreover, Stephen English, the DCFS social worker, in recommending against the boys’ placement with their mother, testified about respondent’s unfitness and her lack of commitment to complete the terms of the service plan.

The evidence in this case established that respondent often ignored her children and let them roam for long periods without knowing their whereabouts. Although she claimed to search for them during her other errands, the evidence showed that respondent did not make the home accessible to them or provide their basic nourishment or assist in their hygiene. Shelter, food, and cleanliness are necessary for the welfare of children. The whip marks across L.M.’s back were additional evidence which the circuit court correctly considered in making its finding.

Respondent argues that testimony in the record showed that she visited the children and that the paternal grandmother and a DCFS worker had said that the visits went well. The testimony to which respondent refers occurred in 1984, two years prior to the adjudicatory and dispositional hearings. That testimony was not that the visits were going well, but that the grandmother “had no problems” with the visits. When the evidence is considered in proper context, it shows that respondent lacked the necessary parental commitment and it was therefore proper to terminate her parental rights.

Additionally, there is evidence of a warm relationship between L.M. and D.M. and their father. The boys stated they wanted to live with their father. The record reveals a father who is committed to his sons in incurring expense, in rearranging his military duties so that he could participate in all court proceedings, and in arranging for his military assignment to be transferred so that he could actively care for them. The circuit court did not abuse its discretion when it appointed the father as guardian. We cannot say that the court’s determinations were palpably erroneous (In re Hillyer, 82 Ill. App. 3d 505, 403 N.E.2d 36) or against the manifest weight of the evidence. In re T.R., 135 Ill. App. 3d 1017, 482 N.E.2d 372.

V

Respondent argues thau the order terminating her unsupervised visits without prejudice must be vacated because there is no mention of it in the transcripts. Respondent cites no authority for this position.

Supreme Court Rule 321, in pertinent part, provides that there is no distinction between the common law record and the report of proceedings for the purpose of determining what is properly before the reviewing court. (107 Ill. 2d R. 321.) Additionally, the common law record imports verity and is presumed correct, but where other facts appear contrary to the record, the court should consider the record as a whole. People v. Williams (1963), 27 Ill. 2d 327, 189 N.E.2d 314.

In People v. Bowers (1972), 4 Ill. App. 3d 453, 456, 280 N.E.2d 784, the court examined the docket clerk’s entry of judgment which recited the trial court’s orders although the transcript omitted them. The court held that based on Rule 321 and the representation of defendant by counsel, the common law record containing a recitation of the court’s admonition to a defendant entering a plea of guilty was sufficient. People v. Bowers (1972), 4 Ill. App. 3d 453, 456, 280 N.E.2d 784, citing People v. Stack (1945), 391 Ill. 15, 62 N.E.2d 807.

Here, the transcript reflects: testimony that respondent might again harm her children and not realize that she was doing so; that the circuit court noted the possibility of such danger; respondent’s representation by legal counsel; and the notation on the docket folder by the docket clerk that the disposition was that the father was to have custody and that unsupervised visits by respondent were to be terminated. The record viewed as a whole (People v. Williams, 27 Ill. 2d 327, 189 N.E.2d 314) dispels any alleged error caused by the disposition not being transcribed. People v. Bowers (1972), 4 Ill. App. 3d 453, 457, 280 N.E.2d 784.

For the foregoing reasons the circuit court’s findings and orders are affirmed.

Affirmed.

HARTMAN and SCARIANO, JJ., concur.


source: Caselaw Access Project

author: JUSTICE SCARIANO

license: Public Domain

text:
    JOEL LABOVITZ et al., Plaintiffs-Appellants, v. CHARLES F. DOLAN et al., Defendants-Appellees.
    First District (2nd Division)
    No. 1—88—1942
    Opinion filed September 26, 1989.

      Jay A. Canel and Peter M. King, both of Jay A. Canel, P.C., of Chicago, for appellants.
    Jerrold E. Salzman, Raymond J. Mengler, and Daniel J. Lesser, all of Freeman, Freeman & Salzman, P.C., of Chicago, for appellees.
   JUSTICE SCARIANO

delivered the opinion of the court:

We have for decision in this case the issue, as posited by the plaintiffs, of whether management discretion granted solely and exclusively to a general partner in a limited partnership agreement authorizes the general partner to use economic coercion to cause his limited partner investors to sell their interests to him at a bargain price.

Plaintiffs as limited partners invested over $12 million in a cable-vision programming limited partnership sponsored and syndicated by defendant general partner Dolan. In 1985, the partnership reported earnings of over $34 million and in 1986, it had earnings of just under $18 million as a result of which each of the limited partners was required to report his pro rata share thereof on his personal income tax returns for those years. Plaintiffs claim that although the partnership had cash available to fund the limited partners’ tax obligations, Dolan elected to make only a nominal distribution of cash to cover such liability; accordingly, in 1985 and in 1986 the limited partners were required to pay taxes almost entirely from their own funds on income retained by the partnership. In late November of 1986 an affiliate owned and controlled by Dolan offered to buy out the interests of the limited partners for approximately two-thirds of their book value. Over 90% of the limited partners accepted the offer, but simultaneously filed suit claiming Dolan’s tactics to be a breach of his fiduciary duty to them. The circuit court dismissed plaintiffs’ complaint with prejudice pursuant to section 2 — 619(a)(9) of our Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 619(a)(9)), holding that Dolan’s acts were within the broad discretion granted him under the terms of the partnership agreement. Plaintiffs appeal from that ruling.

The limited partnership in this case, Cablevision Programming Investments (CPI), was organized for the purpose of investing in entities that produce and acquire programming for marketing and distribution to cable and other pay television services. Dolan and the Dolan owned and controlled Communications Management Corporation of Delaware (CMC) were the general partners in this venture. In 1980, CPI sold 85 limited partnership units at a per unit price of $200,000; plaintiffs purchased 62.4595 of those units for a collective price of $12,491,900 and constituted 73% of all investors. The 263-page “Private Placement Memorandum” (PPM) explained that the proceeds of the CPI offering would be used to purchase 100% of the class A limited partnership interests in another entity (Rainbow) that was organized for the same purpose as CPI; that Rainbow would fund subsidiary partnerships that would produce a variety of programming for distribution to cable TV systems and would have the same general partners as CPI; and that Rainbow would fund another Dolan-controlled entity, Rainbow Programming Services Company, which would distribute “affiliated and unaffiliated cable programming.”

The PPM also advised investors that their rights and obligations “are governed by the Articles of Limited Partnership” (the Articles), which were bound as an exhibit to the PPM, and added, in a section entitled “Projected results of Operations of Cablevision Programming Investments,” that:

“The Partnership, Cablevision and its affiliates’ intended policy is to make cash distributions to partners each year in an amount approximating the amount of taxable income reflected each year, after providing for adequate working capital requirements deemed necessary by the General Partners. Although the projections assume that this policy can be followed in the future, there are significant contingencies relating to many factors which, from time to time, may prohibit any distributions, including, but not limited to cash, cash availability, general working capital requirements, lending restrictions and revised costs and capital requirements.”

The Articles provided that Dolan will have “full responsibility and exclusive and complete discretion in the management and control of the business and affairs of the partnership”; that “Dolan in his sole discretion shall determine the availability of Cash Flow for distribution to partners”; that they “contain the entire understanding among the partners and supersede any prior understanding and/or written or oral agreements among them”; and that Dolan would be liable to the limited partners for his willful misconduct but not for “errors in judgment or for any acts or omissions that do not constitute willful misconduct.”

CPI limited partnership interests were offered and sold only to “wealthy and sophisticated investors.” To qualify for exemption from registration under securities laws, the partnership interests were stated in the PPM to be “suitable only for investors with a net worth in excess of $750,000 (excluding home, furnishings, and automobiles) per unit purchased, and having an anticipated taxable income in 1980, 1981 and 1982 of which a substantial portion would have been taxable in each year for Federal income tax purposes at a rate of 50% or more.” Prospective investors were apprised in the PPM, that the “offering and the operations of the entities summarized [therein] are complex,” and that a “thorough understanding of such matters is essential in order for prospective investors to evaluate the merits and risks of the offering.” In addition, investors were required to represent that they or their representatives were “capable of evaluating the merits and risks of the investment.” The offering of 85 units was fully subscribed.

The articles provided also that net profits, net losses and cash flow were to be allocated as follows: Dolan .5%, CMC .5% and limited partners 99%. In 1985, the partnership earned $34,101,000; in 1986 it earned $17,842,000. As noted above, the limited partners were required to pay taxes on these earnings, but Dolan did not distribute cash in an amount sufficient to cover their tax liability. Dolan did, however, lend CPI money to other companies he controlled.

An examination of a limited partner’s “K-l” tax forms reveals that from 1980 through 1984, CPI provided no cash to the limited partners but did afford them some tax benefits. In 1985, each partner was required to report a taxable income of $415,331 per unit, while Dolan distributed only $12,000 per unit; and in 1986, the partners were required to report a taxable income of $216,750 per unit, while again receiving a distribution of only $12,000 per unit.

On November 25, 1986, Cablevision Systems Corporation (CSC), owned and controlled by Dolan, made an offer to purchase all of the CPI limited partnership interests for $271,870 per unit, payable $90,623 in cash and the remainder was to be paid either in 9% notes due on June 30, 1988, and June 30, 1989, or in CSC class A common stock. The offer disclosed that “Dolan and his affiliates would derive substantial benefits in connection with the offer” and that “although the partnership was potentially very valuable *** it was extremely difficult to determine its true value since it was likely that current assumptions would not materialize and that unanticipated events and circumstances would occur.” The offer further disclosed that although the partnership had incurred an operating loss of $96,000 per unit in 1986, proceeds from extraordinary and nonrecurring sales of assets would result in sizable taxable income to those limited partners who retained their interests. However, the offer continued, by selling their interests, limited partners would realize not only an added $71,870 per unit in cash profits on their initial investment in addition to the $24,000 previously distributed, but they could also convert their position in 1986 from that of having large taxable income to that of showing a sizable tax loss. This was because, as the offer explained, each limited partner’s capital account had been inflated for tax purposes by proceeds from extraordinary and nonrecurring sales to the extent that the book value of a limited partnership interest was shown at $405,000. The “business reasons” given for making the offer were that “the buyout would avoid conflicts since both the operating and the programming entities would be under the same ownership, and would provide a needed source of funds for the development of the programming companies.” The articles provided that a limited partner could not sell or otherwise transfer his interest in the partnership without the prior written consent of the general partners. More than 90% of the limited partners elected to accept CSC’s offer and sold their interests in CPI to CSC.

On December 1, 1986, plaintiff Joel Labovitz, who had owned three units, filed a class action complaint, but after other former owners joined in his suit as individual plaintiffs, that complaint was withdrawn and this action was substituted.

On April 5, 1988, defendants moved to dismiss plaintiffs’ complaint pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure, and on June 21, 1988, as noted above, the circuit court dismissed the complaint with prejudice. Both parties place heavy reliance upon the documents considered by the trial court and discussed herein, namely, the PPM, the Articles, and defendant’s offer to buy the interests of the limited partners. In fact, since plaintiffs omitted attaching copies of these documents to their complaint, which made reference thereto, defendants supplied them in support of their motion to dismiss. (Perkaus v. Chicago Catholic High School Athletic League (1986), 140 Ill. App. 3d 127, 488 N.E.2d 623.) In their complaint plaintiffs sought the imposition of “a constructive trust upon the funds held by Dolan, the Partnership and Rainbow which were not required to meet current obligations, to maintain a sound financial position or establish reasonable reserves, and distribute these funds to plaintiffs,” and for damages for breach of fiduciary duty. Plaintiffs appeal the order of dismissal, contending that since “ ‘discretion’ can never be exercised in breach of a fiduciary duty,” the trial court erred in holding that the PPM and the Articles granted Dolan the discretion to treat his limited partners as he did, without permitting a trial that would inquire into his intent regarding the fairness of the transactions at issue.

In what has become the most celebrated pronouncement characterizing the fiduciary relationship that exists among partners, Chief Judge Benjamin N. Cardozo stated for the court in the case of Meinhard v. Salmon (1928), 249 N.Y. 458, 463-64, 164 N.E. 545, 546, that

“copartners[] owe to one another *** the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions. [Citation.] Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”

Judge Cardozo’s standard has been adopted by the courts of virtually every American jurisdiction, including our own. Indeed, defendants do not argue otherwise. (Nelson v. Warnke (1984), 122 Ill. App. 3d 381, 461 N.E.2d 523.) As between partners, Judge Cardozo went on to hold, “the heavier weight of duty” rests upon him who manages the affairs of the partnership. Accordingly, plaintiffs argue, Dolan, as general partner, owed the limited partners a duty of good faith and loyalty. More specifically, they add, partners owe each other the duty to exercise the highest degree of honesty, fairness and good faith in their dealings with one another and in the handling of partnership assets. (Couri v. Couri (1983), 95 Ill. 2d 91, 447 N.E.2d 334; Mandell v. Centrum Frontier Corp. (1980), 86 Ill. App. 3d 437, 450, 407 N.E.2d 821.) Plaintiffs complain that the circuit court did not appear to apprehend this duty, but instead, treated Dolan and his limited partners as arm’s-length strangers.

Dolan’s discretion to withhold cash, plaintiffs assert, was not absolute; it was limited by an implied covenant of good faith and fair dealing implicit in every Illinois contract and by his fiduciary duty to his partners. In Illinois, they aver, such a covenant is implied in every contract absent an express disavowal (Dayan v. McDonald’s Corp. (1984), 125 Ill. App. 3d 972, 989-90, 466 N.E.2d 958), and that it “has its most natural and common application to the situation where one party exercises discretionary authority in a manner that affects the rights and duties of the other party” (Rao v. Rao (7th Cir. 1983), 718 F.2d 219, 223, citing Foster Enterprises, Inc. v. Germania Federal Savings & Loan Association (1981), 97 Ill. App. 3d 22, 30, 421 N.E.2d 1375). “Good faith between contracting parties requires that a party vested with contractual discretion must exercise his discretion reasonably and may not do so arbitrarily or capriciously.” Foster Enterprises, 97 Ill. App. 3d at 30.

Plaintiffs accordingly urge that the manner in which Dolan exercised his discretion must be measured against this “good faith” standard implicit in every Illinois contract. The circuit court, according to plaintiffs, instead of employing this standard, treated the partners not as parties to a contract, but as strangers with no relationship, focusing its holding on a narrow reading of Nelson v. Warnke (1984), 122 Ill. App. 3d 381; 461 N.E.2d 523. In Nelson, the plaintiff claimed that the general partner breached his fiduciary duty by allowing funds held for distribution to the limited partners to remain in non-interest-bearing accounts. The court held the money to be partnership funds and dismissed Nelson’s action because the partnership agreement expressly permitted the general partner to so invest such funds. Plaintiffs reason that in Nelson, since the general partner did not personally benefit from his failure to invest funds in interest-bearing accounts, for example, by lending money to himself, his family or friends at no interest, the court would have reached a different result.

Plaintiffs point out that the PPM provides

“Distributions of Cash Flow of the Partnership and Cable-vision will be made at such times and in such amounts as Charles F. Dolan, as the individual General Partner of both partnerships, in his sole discretion shall determine, subject to any restrictions on distributions to partners contained in loan agreements which may be entered into by Cablevision as a condition to its borrowings and which restrictions are not ascertainable at this time.
* * *
The Partnership, Cablevision and its affiliates’ intended policy is to make cash distributions to partners each year in an amount approximating the amount of taxable income reflected each year, after providing for adequate working capital requirements deemed necessary by the General Partners.”

Thus, plaintiffs argue, Dolan made it clear in the PPM that he intended to distribute cash flow annually when not required to meet current obligations; accordingly, his “discretion” to distribute cash flow was limited by his fiduciary duties to his partners.

Defendants respond that the Articles “unambiguously” support the trial court’s conclusion that Dolan had the sole discretion to determine the availability of cash for distribution to the limited partners, pointing to section 7.3 of the Articles, which provides:

“Dolan in his sole discretion shall determine the availability of cash flow for distribution to partners.”

Defendants maintain with great insistence that plaintiffs do not and cannot point to any provision in the Articles which expressly or impliedly limited Dolan’s discretion to determine whether partnership funds were needed for partnership purposes or could be distributed as cash to the limited partners; instead, defendants interpret plaintiffs argument as being that certain statements contained in the PPM dilute that discretion. However, defendants assert, this argument is seriously impaired by the fact that the Articles, and not the PPM, defined the partners’ rights and obligations, pointing to section 15.10 of the Articles, which provides in pertinent part:

“These Articles contain the entire understanding among the partners and supersedes [sic] any prior understandings and/or written or oral agreements among them respecting the within subject matter.”

Defendants claim that although the “rights and obligations of the Investors are governed by the Articles.” the PPM was merely “intended to furnish information to the proposed investors with respect to the investment described.” Thus, defendants contend, the PPM is entirely consistent with the Articles’ grant of sole discretion to Dolan to determine how partnership proceeds should be allocated.

Defendants point out that the trial judge, having both the PPM and the Articles before him, held that these documents conferred upon Dolan, as general partner, “the discretion and the decision-making power to decide whether there was adequate working capital required for the operation by this general partner, of this limited partnership, and that he had the right to make revisions of policy and that it was made clear in that document that contingencies could prohibit distribution.” In support of his holding the judge specifically relied upon section 7.3 of the Articles, conferring “sole discretion” on Dolan to determine the availability of cash flow for distribution to partners, as well as on section 8.6, providing that the general partner shall not be liable for errors in judgment and that Dolan’s liability is to be limited to acts or omissions which amount to willful misconduct. Defendants aver that any fair reading of the PPM must lead to the conclusion, as it did in the trial court, that Dolan neither made a representation nor a binding commitment to distribute cash flow.

Defendants’ further response to plaintiffs is that the general partner’s specific authority to determine how partnership proceeds should be allocated was not inconsistent with any fiduciary duty owed by Dolan to the plaintiffs, insisting that partners have the right to establish among themselves, by a partnership agreement, their rights, duties and obligations. (Saballus v. Timke (1983), 122 Ill. App. 3d 109, 460 N.E.2d 755, citing Meyer v. Sharp (1950), 341 Ill. App. 431, 94 N.E.2d 510.) Defendants add that a limited partner who endows a general partner with certain powers to operate the partnership may not later complain that the general partner, by exercising those powers, has breached some fiduciary duty, citing Nelson v. Warnke, 122 Ill. App. 3d 381.

In construing a partnership agreement, defendants urge, a court should consider the object, purpose and nature of the agreement (Estate of McKay v. Moses (1976), 35 Ill. App. 3d 458, 343 N.E.2d 45), and that the constraints plaintiffs now seek to place on Dolan’s sole discretion are antithetical to the nature and purpose of the limited partnership formed in this case, which was designed, they argue, “to offer wealthy and sophisticated investors a unique investment opportunity-access to a family of related entities in an emerging industry, guided by a pioneering and immensely successful talent.” Dolan was given, they continue, “the sole discretion to determine whether partnership proceeds were needed to fund related entities or could be distributed as cash to the limited partners so that he would have the flexibility needed to meet and anticipate the ever-changing business conditions in the industry,” and in deciding how to allocate partnership proceeds, “Dolan was called upon to exercise his business judgment in anticipating future needs, expanding profitable areas and exploring promising new fields.” Plaintiffs now attempt, defendants claim, “to second-guess Dolan’s business judgment with respect to whether proceeds withheld from distribution were needed for the sound operation of CPI’s business affairs and to have the court do likewise.”

Opinion

It is abundantly clear, as defendants point out, that Dolan was granted rather wide latitude in deciding whether or not to distribute cash to the limited partners; the Articles grant him “sole discretion” in the matter and do not mention any distribution for the purpose of meeting the limited partners’ tax obligations. Even in the PPM, where distributions of cash approximating the amount of taxable income each year are projected in tabulated form, the language is far from precise and gives the general partner rather liberal discretionary powers as to such distribution.

It is also clear, however, that despite having such broad discretion, Dolan still owed his limited partners a fiduciary duty, which necessarily encompasses the duty of exercising good faith, honesty, and fairness in his dealings with them and the funds of the partnership. (See Couri, 95 Ill. 2d 91, 447 N.E.2d 334; Mandell, 86 Ill. App. 3d 437, 407 N.E.2d 821; Dayan, 125 Ill. App. 3d 972, 466 N.E.2d 958; Foster Enterprises, 97 Ill. App. 3d 22, 421 N.E.2d 1375.) It is no answer to the claim that plaintiffs make in this case that partners have the right to establish among themselves their rights, duties and obligations, as though the exercise of that right releases, waives or delimits, somehow, the high fiduciary duty owed to them by the general partner — a gloss we do not find anywhere in our law. On the contrary, the fiduciary duty exists concurrently with the obligations set forth in the partnership agreement whether or not expressed therein. Indeed, at least one of the authorities relied upon by defendants is clear that although “partners are free to vary many aspects of their relationship inter se, they are not free to destroy its fiduciary character.” Saballus, 122 Ill. App. 3d at 116.

Thus, the language in the Articles standing alone does not deprive plaintiffs of the trial they seek against Dolan for breach of fiduciary duty. We therefore agree with plaintiffs that the trial court did not give due consideration to Dolan’s duty as general partner to exercise the highest degree of honesty and good faith in his handling of partnership assets, and instead treated the parties as arm’s-length strangers (Couri, 95 Ill. 2d at 98; Foster Enterprises, 97 Ill. App. 3d at 29; Rao, 718 F.2d at 222-23; Dayan, 125 Ill. App. 3d at 989), holding that no inquiry could be made into the fairness of the transactions at issue because of the language in the Articles regarding Dolan’s discretion. Yet in any fiduciary relationship, the burden of proof shifts to the fiduciary to show by clear and convincing evidence that a transaction is equitable and just. (Bandringa v. Bandringa (1960), 20 Ill. 2d 167, 170 N.E.2d 116; Schueler v. Blomstrand (1946), 394 Ill. 600, 69 N.E.2d 328; Grossberg v. Haffenberg (1937), 367 Ill. 284, 11 N.E.2d 359.) Indeed, cases cited and relied upon by defendants hold that when there is a question of breach of fiduciary duty of a managing partner, all doubts will be resolved against him, and the managing partner has the burden of proving his innocence.” (Emphasis added.) Saballus, 122 Ill. App. 3d at 117-18, citing Bakalis v. Bressler (1953), 1 Ill. 2d 72, 78, 115 N.E.2d 323.

Defendants, however, charge that in an attempt to sustain this appeal, plaintiffs advance for the first time a new theory not presented in their pleadings, nor argued below and never ruled upon by the trial court; that in exercising his sole discretion to determine whether partnership income was needed for partnership purposes or was available for case distributions to the limited partners, Dolan did not act in “good faith” because he was motivated by the specific intent of forcing the limited partners to sell their interests.

Defendants err. Plaintiffs’ complaint in essence charges that Dolan, as general partner, owed plaintiffs, his limited partners, a fiduciary duty “to distribute available cash flow to his partners in 1983 through 1986,” which duty he breached because “he never intended to pay cash flow to the limited partners,” thus “forcing or squeezing his limited partners into accepting his below book value offer” to buy out their interests, to their financial damage. The complaint goes on to allege that by Dolan’s selling of the 85 limited partnership units at $200,000 per unit, $17 million was realized as capital for the partnership. After deducting $2 million to pay fees to Dolan and to reimburse him for attorney and accounting fees and other costs incurred in the preparation of the PPM, the sum of $15 million remained as the partnership’s capital. In addition to the cash flow generated by operations, the partnership and its related entities realized cash as follows: $20 million in 1983 by selling interests in two related entities to a subsidiary of The Washington Post. In 1985 there was a $31,600,000 gain upon the sale of an interest in a related entity to a subsidiary of CBS, Inc., plus $50 million when a lawsuit against Ted Turner and MGM was settled. In 1986, approximately $20 million was paid to the partnership by MGM/UA Home Entertainment Group in exchange for a license option agreement, and $3,500,000 in exchange for the termination of a distribution agreement.

In 1985 the partnership showed income of $2,778,000 exclusive of the gain on the sale of assets and after allowing for depreciation of $1,289,000. During 1986 the balance in the partnership cash account increased $11 million, receivables from parties “related” to Dolan and the partnership increased $3,600,000; and long-term notes receivable increased $9 million. For the year ending December 31, 1986, partnership net income was $17,658,000 and working capital increased by $10,220,000. A footnote to the financial statement for the year ended December 31, 1985, discloses that Dolan retained significant amounts of money within the partnership which were loaned to “related parties”; more specifically, that Rainbow had advanced funds to Rainbow Programming Services Company “which, at December 31, 1985 & 1984, amounted to approximately $13,417,000 and $19,139,000 respectively,” besides Rainbow’s having made a capital contribution of $8,800,000 to RPSC.

We can think of no reason as to why these allegations should not be found to be sufficient to encompass the claim raised on this appeal, and sufficient also to apprise defendants thereof. “No pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he or she is called upon to meet.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 612(b).) Moreover, it is well settled that “[p]leadings shall be liberally construed with a view to doing substantial justice between the parties.” (Mlade v. Finley (1983), 112 Ill. App. 3d 914, 445 N.E.2d 1240; Sherman v. Field Clinic (1979), 74 Ill. App. 3d 21, 392 N.E.2d 154; Ill. Rev. Stat. 1987, ch. 110, par. 2-603(c).) Plaintiffs’ allegation that Dolan, by breaching his fiduciary duty, “squeezed” plaintiffs out, despite its employment of a breezier, more colorful syntax than a simple charge of “willful misconduct,” in the precise words of the articles, does not fail, in its context, to comply with the requirement of our Code of Civil Procedure relating to the proper pleading of a cause of action. Although other pleaders may have cast the same issue in different terms, or may have crafted it more artfully, that factor alone should not command a different result. The law has long since outgrown its primitive state of formalism where the precise word was the sovereign talisman and every slip was fatal. (See Wood v. Duff-Gordon (1917), 222 N.Y. 88, 118 N.E. 214.) We further note that the trial judge made it quite clear in his remarks at the hearing on defendants’ motion to dismiss that he had no difficulty in apprehending the allegations contained in plaintiffs’ complaint or their claim advanced in oral argument that Dolan had breached his fiduciary duty by “failing to distribute cash” and “by using undue influence to have an affiliate offer to buy out those limited partners at a price.”

In the alternative, defendants urge that should this court undertake to consider plaintiffs’ “new” theory, it still should not inquire into the motivation behind Dolan’s exercise of his discretion in allocating partnership funds because plaintiffs do not allege that Dolan acted other than in the manner contemplated by the partnership documents and in furtherance of the partnership’s declared purpose, contending that general partners who exercise powers given to them under a partnership agreement do not thereby breach any fiduciary duty, regardless of their motivation, citing Murphy v. Gutfreund (S.D.N.Y. 1984), 583 F. Supp. 957, 971. However, we regard this argument as having a timbre no different in resonance from the one we have deposed of above, namely, that partners have the right to establish among themselves their rights and responsibilities. We need not, therefore, give it any further or any different consideration here.

Defendants next assert that the good-faith doctrine protects only the reasonable expectations of the contracting parties (Dayan v. McDonald’s Corp., 125 Ill. App. 3d 972, 466 N.E.2d 958), and that a party’s legitimate expectations are not violated where there is good cause for a party’s exercise of its contractual discretion, regardless of what other motives the acting party may have. (Corbin on Contracts §654D, at 664 (Supp. 1984).) In Dayan, plaintiff’s franchise agreement had been terminated after he violated its terms. Plaintiff contended that the franchisor had terminated him not because he had violated the franchise agreement, but because the franchisor desired to recapture the franchisee’s lucrative market for himself. The court ruled that since there was good cause to support the franchisor’s exercise of his discretion to terminate the franchise agreement, it would make no further inquiry into the franchisor’s motivation.

Defendants here make the same contention: that no inquiry into Dolan’s motivation is necessary to protect the reasonable expectations of the limited partners, and more particularly, that plaintiffs could have no reasonable expectation that Dolan would distribute partnership funds to them instead of utilizing such funds to meet partnership needs, pointing out that partnership documents warned prospective investors that they could lose their entire investment, and that no representation as to the availability of future cash for distribution to the limited partners could be made. Defendants add that the allegation that Dolan breached his fiduciary duty to the limited partners by forcing them to choose between selling their interests at an unfairly low price, or remaining a powerless limited partner depends on whether or not Dolan promised to distribute cash in the manner in which plaintiffs allege, and since he did not make any such commitment, the allegations of the complaint are undercut and must be dismissed — the very basis upon which the trial court granted defendants’ motion to dismiss.

As Professor Daniel S. Reynolds of the Northern Elinois University School of Law states in his article, Loyalty & Limited Partnership, 34 U. Kan. L. Rev. 1, 25-26 (1985),

“Self-dealing and conflicts of interest are endemic to the limited partnership. Limited partnerships ‘are born in conflicts of interest, live in conflicts of interest, and sometimes poof out of existence in conflicts of interest.’ [Quoting from 16 Sec. Reg. & L. Rep. (BNA) 1559 (1984).] The general partners are typically the organizing entrepreneurs or promoters. They may be affiliated with the sellers of the enterprise’s assets, and are frequently involved in multiple, potentially competing related enterprises. This may be good, bad, or indifferent. Categorical prohibitions of conflicting interests might be a coherent response to all this, but a potentially fatal one as well for whatever assumed benefits of flexibility in capital formation the form provides. Categorical permission for conflicting interests might also be a coherent response, but one running all the risks that ‘fiduciary ideology’ is supposed to prevent. What is desired is a scheme for containing conflicts, a fairness-promoting regime that ensures, to the extent possible, that investors in the limited partnership are not being exploited, overreached, or taken advantage of by the managers of their money.”

Defendants prevailed in the trial court on their section 2— 619(aX9) motion on the ground that the claim is defeated by affirmative matter, namely, Dolan’s sole discretion in the matter of distributing cash flow. As to such affirmative defense, defendants choose to remain completely oblivious to the fact that although the Articles clearly gave the general partner the sole discretion to distribute cash as he deemed appropriate, that discretion was encumbered by a supreme fiduciary duty of fairness, honesty, good faith and loyalty to his partners. Language in an agreement such as a “sole discretion” does not metamorphose the document into an unrestricted license to engage in self-dealing at the expense of those to whom the managing partner owes such a duty. Defendants cite no authority, and we find none, for the proposition that there can be a priori waiver of fiduciary duties in a partnership — be it general or limited. Nor is the practice of imposing purported advance waivers of fiduciary duties in limited partnership enterprises to be given judicial recognition on the basis of the facts developed in this case. Defendants’ argument that the good-faith doctrine protects only the reasonable expectations of the contracting parties is, we think, aptly answered by. plaintiffs’ statement to the trial judge at the hearing on defendants’ motion to dismiss: “[t]he risk we took was that the business would not. succeed. We did not take the risk that the business would succeed so well that the general partner would squeeze us out and take the investment for himself,” an argument, by the way, that sets forth a precise formulation of the exact issue in this case.

Our courts are not bound to endow it as doctrine that where the general partner obtains an agreement from his limited partner investors that he is to be the sole arbiter with respect to the flow that the cash of the enterprise takes, and thereby creates conditions favorable to his decision that the business is too good for them and contrives to appropriate it to himself, the articles of partnership constitute an impervious armor against any attack on the transaction short of actual fraud. That is not and cannot be the law. (See Remillard Brick Co. v. Remillard-Dandini Co. (1952), 109 Cal. App. 2d 405, 241 P.2d 66.) And that is precisely the gravamen of plaintiffs’ complaint: that the general partner refused unreasonably to distribute cash and thereby forced plaintiffs to continually dip into their own resources in order to pay heavy taxes on large earnings in a calculated effort to force them to sell their interests to an entity which Dolan owned and controlled at a price well below at least the book value of those interests. Such a claim plainly presents an issue for the finder of fact, namely, whether or not Dolan was serving his own interests or those of the partnership. Although defendants state in their brief that Dolan allocated the partnership’s funds to meet its needs and to serve its purposes, and although in oral argument defendants represented that the partnership was continually short of cash, the record at this stage is totally devoid of any such evidence. To be sure, all of the allegations made by plaintiffs in their complaint and noted above stand, according to the record made in this case, as unrebutted, undenied, unexplained and uncontroverted.

Plaintiffs therefore correctly maintain that they “were entitled to a trial in which Dolan must prove he acted fairly and not as his limited partners’ business adversary.” Accordingly, we hold that the trial judge incorrectly granted the defendants’ section 2 — 619(a)(9) motion and that plaintiffs were entitled to a trial on the issues formulated in this case.

Reversed and remanded.

BILANDIC, P.J., and HARTMAN, J., concur.


author: JUSTICE WHITE

text:
      In re MARRIAGE OF PAMELA COHEN, n/k/a Sorah Marcu, PetitionerAppellee, and JOSEPH COHEN, Respondent-Appellant.
    First District (3rd Division)
    No. 1—87—2332
    Opinion filed September 27, 1989.
    Rehearing denied October 30, 1989.

      Kalcheim, Schatz & Berger, of Chicago (Andrew D. Eichner, of counsel), for appellant.
    Rinella & Rinella, Ltd., of Chicago (David A. Novoselski, of counsel), for appellee.
   JUSTICE WHITE

delivered the opinion of the court:

In January 1980, a judgment of dissolution was entered ending the marriage of Joseph Cohen, respondent, and Pamela Cohen, petitioner. Pursuant to this judgment, petitioner was given custody of the parties’ two minor children, Samuel, born 1977, and Anne, born 1979, and respondent was granted reasonable rights of visitation.

In May 1981, an agreed order was entered granting the parties joint custody of the children. Under this order, the children were to reside with respondent from May through October and with petitioner from November through April of each year. Both parties were granted weekly visitation while the children resided with the other, and respondent was granted visitation on Jewish holidays, while petitioner was granted visitation on secular holidays.

In December 1985, respondent filed an emergency petition for change of custody and injunctive relief, alleging that petitioner had remarried and planned to remove the children from the State. A temporary restraining order was entered granting respondent physical possession of the children and setting the matter for hearing on December 27, 1985. Petitioner failed to turn over the children to respondent, and on December 24, respondent filed a petition seeking to have petitioner held in contempt for her failure to comply with the court’s order.

On December 27, petitioner filed a petition seeking a change of custody and requesting permission to remove the children from the State. The court continued the hearing on petitioner’s and respondent’s petitions and extended the order preventing removal of the children.

Subsequently, petitioner filed an emergency petition to modify the terms of visitation and change custody of the children. For unknown reasons, respondent has not included this petition in the record on appeal, nor has he included a second pleading apparently filed during this period by petitioner. However, it appears that both pleadings contained allegations that the respondent sexually abused his daughter, Anne. In response to these pleadings, respondent filed a motion for an examination of petitioner, her husband, and Anne, pursuant to Supreme Court Rule 215(a) (107 Ill. 2d R. 215(a)).

A hearing was held before Judge Richard Jorzak on January 10, 1985, on the allegations in the petitioner’s emergency petition. After interviewing the children and hearing the testimony of petitioner and Randee Wolinsky, an investigator from the Department of Children and Family Services (DCFS), the court found that the allegations of sexual abuse had not been proven. Petitioner was instructed to allow respondent to exercise the scheduled visitation, the parties were ordered to submit to mediation, and all other pending petitions were continued.

A mediation schedule was agreed to on January 13, 1986, under which the parties were to be evaluated by a court-appointed expert and, on January 17, an agreed order was entered enjoining the parties from obtaining independent psychiatric evaluations of themselves or the minor children. On February 25, pursuant to the January 13 order, Dr. Bennett Leventhal was appointed to conduct psychiatric examinations of the parties and the children.

On April 24, 1985, a hearing was held before Judge Barbara Disko on an emergency petition filed by respondent alleging that petitioner had refused to turn the children over to him for visitation during Passover and seeking to have petitioner held in contempt of court. At the hearing, Shirley Robinson, director of the Child Sexual Abuse Treatment and Training Center of Illinois, testified that she interviewed Anne on April 21 and that Anne told her that she had been sexually abused by respondent. Robinson also testifiéd that the abuse had taken place before January 1985, and that petitioner brought Anne to her after being referred by the DCFS. The court ordered that the children be turned over to respondent and reserved ruling on the contempt charge.

The following day, respondent appeared before Judge Disko and presented another emergency petition, alleging that the court’s April 24 order had not been complied with. Respondent testified that after petitioner delivered the children to his house, a police officer and Frank Pontillo, a DCFS investigator, took the children into protective custody. The court issued a rule to show cause against petitioner, ordered her to turn over the children to respondent, and continued the matter to April 29.

On April 28, 1986, the parties went before Judge .Charles Porcellino on petitioner’s emergency petition to abate respondent’s visitation. (This petition also has been omitted from the record and we have no way of determining its contents.) Judge Porcellino ordered the depositions of Pontillo, Robinson, and Dr. Allen Ravitz, who apparently was acting on behalf of Dr. Leventhal, the court-appointed psychiatrist. The court also ruled that custody of the children, which was supposed to be turned over to respondent on May 1, would not be transferred until the hearing on petitioner’s emergency petition was concluded.

The following day, April 29, a hearing on respondent’s emergency petition and rule to show cause was held before Judge Disko. At the hearing it was revealed that the DCFS had returned the children to petitioner the evening of April 24, after removing them from respondent’s home. It was also revealed that petitioner had placed the children in Mount Sinai Hospital, for evaluation at the hospital’s sexual abuse clinic. The matter was continued, and on April 30, respondent filed another petition for a rule to show cause, seeking to have petitioner held in contempt of court for violating the court’s order of January 17 enjoining the parties from obtaining independent psychiatric examinations of the children.

On May 2, 1986, Judge Disko found petitioner in contempt of court for violating the April 24 order requiring her to turn over the children to respondent and sentenced her to seven days in the House of Corrections. On that same day, Judge Porcellino ordered that the children should remain in Mt. Sinai Hospital for evaluation.

In the period before trial commenced before Judge Porcellino on the parties’ petitions to change custody, petitioner was found in indirect contempt of court for her violation of the January 17 order, fined $500, and sentenced to two years’ supervision. In addition, the court denied respondent’s motion for a Rule 215(a) examination of the parties and a motion in limine filed by respondent in an effort to bar admission of evidence and testimony from Mt. Sinai personnel.

Trial began December 1, 1986, and continued through March 1987. On June 27, 1987, the trial court entered a finding that respondent had sexually abused Anne and that both children had suffered “psychological trauma related to their father.” The court awarded permanent custody of the children to petitioner, allowing her to remove them to Indiana. The court terminated respondent’s visitation except for supervised visits once a month, for five to eight hours. In addition, respondent was ordered to undergo psychotherapy and petitioner and the children were ordered to undergo family counselling.

In his appeal from the trial court’s order, respondent argues that: (1) the court’s findings were against the manifest weight of the evidence; (2) the court abused its discretion in denying his Rule 215(a) request for physical and mental examinations of petitioner and the children; and (3) the court erred in denying his motion in limine to exclude the testimony and evidence from Mt. Sinai personnel.

Respondent contends that it was reversible error to deny his request for a Rule 215(a) hearing. We agree.

Supreme Court Rule 215(a) states:

“In any action in which the physical or mental condition of a party or of a person in his custody or legal control is in controversy, the court, upon notice and for good cause shown on motion made within a reasonable time before the trial, may order the party to submit to a physical or mental examination by a physician suggested by the party requesting the examination, or to produce for such examination the person in custody or under legal control who is to be examined. The court may refuse to order examination by the physician suggested but in that event shall permit the party seeking the examination to suggest others. A party or person shall not be required to travel an unreasonable distance for the examination. The order shall fix the time, place, conditions, and scope of the examination and designate the examining physician.” 107 Ill. 2d R. 215(a).

The provisions of the rule are not mandatory. (Happel v. Mecklenburger (1981), 101 Ill. App. 3d 107, 427 N.E.2d 974.) A trial court has broad discretion in determining whether a physical examination should be ordered under Rule 215(a), and the court’s decision will not be reversed absent an abuse of that discretion. (Happel, 101 Ill. App. 3d 107; In re Estate of Ragen (1979), 79 Ill. App. 3d 8, 398 N.E.2d 198.) In In re Estate of Stevenson (1970), 44 Ill. 2d 525, 256 N.E.2d 766, the Illinois Supreme Court pointed out that the rule does not permit unlimited and indiscriminate mental and physical examinations of persons, but gives a court discretion to order such examinations only when the physical or mental condition of the person sought to be examined is in controversy and good cause is shown for the examination. 44 Ill. 2d at 529.

In Marcus v. Marcus (1974), 24 Ill. App. 3d 401, 320 N.E.2d 581, this court stated that the physical and mental condition of both parents is necessarily a material issue in cases involving custody of a child. (24 Ill. App. 3d at 406.) It follows that in a custody case such as the one before us, where there is an allegation that the minor children were sexually abused by one of the parents, the physical and mental condition of the children and of both parents is necessarily a material issue. Therefore, we hold that the trial court abused its discretion when it denied respondent’s request for a Rule 215(a) examination.

Petitioner contends that because respondent failed to make an offer of proof as to what testimony respondent’s expert would have given if an examination had been ordered, the trial court properly denied his request. It hardly needs saying that it would be impossible for respondent to make an offer of proof of the testimony his expert would have given on the question of whether the children had been sexually abused when respondent’s expert was not allowed to examine the children. Accordingly, we find that petitioner’s argument is wholly without merit.

Petitioner also contends that the trial court’s decision need not be disturbed simply because it refused to allow “still more” testing of the children, who had already been interviewed by numerous psychiatrists and psychologists. This argument ignores the fact that apart from the court-ordered examinations, all of the interviews and examinations to which the children were subjected were done at the behest of the petitioner. While we agree that it is undesirable to expose minor children to repeated psychiatric and psychological testing, we believe it would be both improper and unfair to deny respondent the opportunity to obtain an expert opinion on the validity of accusations as serious as those involved in this case.

Because we have determined that respondent is entitled to a new trial, we need not reach his arguments concerning the weight of the evidence. However, we will consider respondent’s arguments concerning the admissibility of testimony from the employees of Mt. Sinai Hospital, since that issue is likely to recur on remand.

Respondent argues that the trial court erred in denying his motion in limine seeking to exclude the Mount Sinai evidence. He contends that because the evidence was obtained in violation of the January 17 order enjoining both parties from obtaining psychiatric examinations of the children, it should have been excluded. While we do not condone petitioner’s actions in violating the court’s order, we do not believe that the trial court was required to exclude the Mt. Sinai evidence.

The decision to admit or exclude improperly obtained evidence is within the discretion of the trial court. (See Poor v. Di Mucci Home Builders, Inc. (1982), 103 Ill. App. 3d 543, 431 N.E.2d 1338.) We do not believe that the trial court abused its discretion by admitting the Mt. Sinai testimony.

The primary consideration before a trial court in a child custody case is the best interests and welfare of the children. (In re Marriage of Leopando (1982), 106 Ill. App. 3d 444, 435 N.E.2d 1312; In re Marriage of Rizzo (1981), 95 Ill. App. 3d 636, 420 N.E.2d 555.) The best interests and welfare of children necessitate that full advantage should be taken of psychiatric evaluations and opinions in custody cases, particularly where emotional problems are apparent. (De Franco v. De Franco (1978), 67 Ill. App. 3d 760, 384 N.E.2d 997.) In reaching our conclusion, we are mindful that there was evidence that Mount Sinai’s examination of the children was incomplete and that it was not done in accordance with the hospital’s normal procedure. However, these factors affect only the weight to be given the evidence, not its admissibility.

Accordingly, the judgment of the circuit court of Cook County is reversed and this cause remanded for a new trial.

Reversed and remanded.

FREEMAN, P.J., and RIZZI, J., concur.

      This court feels compelled to comment on the state of the record and briefs on appeal. The record consists of seven volumes which have not been paginated; basic materials, such as petitioner’s emergency petition, have been omitted; and we are unable to discern any logical pattern in the manner in which the transcripts of proceedings have been bound. Further, respondent’s brief on appeal makes repeated references to matters that have not been included in the record and a number of respondent’s citations to the record are incorrect. Despite these violations of the supreme court rules (107 Ill. 2d R. 321 et seq.), we will accept the record and briefs as presented in order to expedite a resolution to this already lengthy dispute.


author: JUSTICE CERDA

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TONY FRANKLIN, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—2360
    Opinion filed September 27, 1989.

      Randolph N. Stone, Public Defender, of Chicago (Barbara J. McClure, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, James E. Fitzgerald, and Daniel J. Lynch, Assistant State’s Attorney, of counsel), for the People.
   JUSTICE CERDA

delivered the opinion of the court:

The defendant, Tony Franklin, was convicted following a bench trial of involuntary manslaughter (Ill. Rev. Stat. 1985, ch. 38, par. 9— 3) for the shooting death of Michael Whitaker. The trial court sentenced the defendant to four years’ imprisonment and two years’ mandatory supervised release. The defendant contends on appeal that his conviction must be reversed because the shooting was an accident. In the alternative, the defendant requests a new trial, contending that the trial court erred in denying his motion to suppress inculpatory statements he gave to the police and to the assistant State’s Attorney on the ground that he did not knowingly, voluntarily, and intelligently waive his Miranda rights because he was intoxicated during interrogation. Finally, the defendant argues that the trial court was authorized to impose only one year of mandatory supervised release as involuntary manslaughter is a Class 3 felony.

The trial testimony revealed that on August 10, 1986, the defendant and the victim, Michael Whitaker, had been drinking in celebration of the defendant’s birthday at 7514 South Winchester in Chicago. Also present were the defendant’s brother and sister, Raffe Franklin and Erline Franklin, the defendant’s girl friend, Charlotte Brown, and Carlton Thompson. Everyone present, including the victim, all lived at the same address. The drinking began the previous day at 6 p.m. and lasted until 4 a.m. or 5:30 a.m. that morning. At 9 a.m., Raffe Franklin and Michael Whitaker left to purchase liquor and cigarettes. Upon their return, the party resumed and more alcohol was consumed. The testimony revealed that around 12 p.m. the defendant and his brother began wrestling. Erline Franklin stated that the two brothers were playing, but Carlton Thompson testified that they were actually arguing. After the argument, everyone except the defendant left to go outside. Carlton Thompson slept in a car parked in front of the residence. At some point, the defendant threw a table and a chair through the front door and asked Michael Whitaker to come inside. A few minutes later, Erline heard a shot, whereupon she woke Thompson from his sleep so he could investigate. Thompson went inside and found the defendant in his bedroom sitting on a couch with his head down and a shotgun on a nearby table. Michael Whitaker was on the floor in the opposite corner with a fatal gunshot wound in the head.

The defendant did not testify at trial. However, the testimony from the motion to suppress hearing was stipulated to and incorporated into the trial record. That testimony revealed that when the police arrived, the defendant told them he had shot the victim in his bedroom. The police smelled alcohol on Franklin's breath, and they could tell he had been drinking. Franklin related that he had been sitting on a couch in his bedroom when Whitaker entered and an argument ensued. The defendant told police that Whitaker “came at him” and so he picked up a gun which had been lying on his bed. As he stood up, he stumbled and fell backwards, causing the shotgun to discharge, striking and killing Michael Whitaker. The police read Franklin his Miranda rights, and Franklin answered in the affirmative when asked if he understood those rights. After being advised of his rights, Franklin agreed to talk and repeated his story. When asked for the location of the gun, the defendant informed the police that he had thrown the weapon on the el tracks near his home because he had panicked. After the defendant was handcuffed behind his back, he led police to the area where he stated he threw the gun. A search of the area failed to produce the weapon; however, the police later discovered that the gun had been disassembled and hidden at the home of Carlton Thompson’s mother.

Detective Krippel interrogated Franklin at approximately 3:30 p.m. at the station. An assistant State’s Attorney again questioned Franklin at 4:30 p.m. On both occasions, Franklin was advised of his Miranda rights and indicated he understood those rights. The detective testified that the defendant had initially described a version of events different from that given to the arresting officers. According to Detective Krippel, Franklin stated that he heard noises in the house and someone “shuffling.” Franklin retrieved his shotgun from his bed and the gun accidentally discharged, striking a person in the next room. When Detective Krippel asked for more details, Franklin changed his story, giving an account similar to the one he gave to the arresting officers. The detective stated that he could smell alcohol on the defendant’s breath, but that the defendant was responsive to his questions and his answers were intelligible. Detective Krippel was also present when the assistant State’s Attorney questioned Franklin.

The assistant State’s Attorney testified that the defendant had told him that the argument involved two other individuals and not WThitaker, but that something was said between Whitaker and the defendant when Whitaker entered the defendant’s room. The assistant State’s Attorney testified that the defendant was responsive to his questions and detailed in his description of the crime scene and the shooting. The assistant State’s Attorney terminated the interview but indicated to Krippel that he intended to return the following day to reinterview the defendant. Krippel testified that the assistant State’s Attorney discontinued interviewing the defendant and the witnesses because everyone had been drinking and the attorney wanted them to remember the facts as they occurred. The assistant State’s Attorney, however, denied making that statement to Krippel. The assistant State’s Attorney returned the following day, but the defendant produced a piece of paper with a phone number and requested to speak to a public defender before making any statements.

The assistant State’s Attorney dialed the number and talked to a public defender. Thereafter, Franklin spoke to the public defender and invoked his right to remain silent. There was conflicting testimony as to what was said between the assistant State’s Attorney and the public defender. The public defender testified that the assistant State’s Attorney told him he needed to reinterview the defendant because he did not think that Franklin’s statement from the day before would hold up in court. The assistant State’s Attorney denied making any such statement.

On appeal, the defendant maintains that the act of picking up the shotgun was a lawful act in self-defense and that the shooting was an accidental outgrowth of that lawful act. The defendant argues that the shooting was an accident because the alcohol in his system caused him to stumble, which in turn caused the shotgun to discharge. Therefore, the defendant asserts that the necessary element of recklessness for involuntary manslaughter is absent as the shooting was caused by an involuntary act. The State contends, however, that the trial court correctly found that the mere handling of the weapon in his intoxicated state was reckless.

Section 9 — 3 of the Criminal Code of 1961 provides:

“A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly ***.” (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3.)

The Criminal Code defines “recklessness” as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.)

An accident is not to be equated with recklessness, and an accidental discharge of a gun will not support a conviction for involuntary manslaughter. (People v. Spani (1977), 46 Ill. App. 3d 777, 780, 361 N.E.2d 377.) The determination of whether a killing has resulted from an accident or reckless conduct, however, is a question for the trier of fact. (People v. Schwartz (1978), 64 Ill. App. 3d 989, 993, 382 N.E.2d 59.) That determination will not be disturbed unless it is palpably contrary to the weight of the evidence. People v. Post (1968), 39 Ill. 2d 101, 105, 233 N.E.2d 565.

In contending that his conviction must be reversed, the defendant relies principally upon People v. Post (1968), 39 Ill. 2d 101, 233 N.E.2d 565. In Post, a husband and wife observed a stranger climb over a fence and enter their property under the cover of darkness. The husband chased the intruder away and fired a gun into the ground so that the intruder would never return. The bullet ricocheted and struck the intruder as he fled. The supreme court reversed the husband’s involuntary manslaughter conviction, holding that firing into the ground or in the air to frighten away a “marauder” is not a reckless act. (Post, 39 Ill. 2d at 105.) The facts in Post, however, are clearly distinguishable from the instant case.

Section 7 — 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 7 — 1) provides that one may use “force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself” with the limitation that “force which is intended or likely to cause death or great bodily harm” may be used “only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself.” The record here, however, reveals that Whitaker was not armed. There was also testimony that Franklin and Whitaker were friends and that they had never been known to quarrel. Also important is the fact that Whitaker, who had been living in the Franklin household for two to three years, had been dating Franklin’s sister for three years and had planned on marrying her. On these facts, the trial judge, as trier of fact, could have reasonably concluded that Franklin was not threatened by the victim in a manner justifying his use of a gun. The trial judge could have reasonably found that the element of “reasonableness” that must have characterized the defendant’s state of mind in believing that it was necessary to arm himself was absent.

It has been previously held that handling a gun while intoxicated is reckless conduct. (People v. Bembroy (1972), 4 Ill. App. 3d 522, 526, 281 N.E.2d 389.) The defendant’s additional contention, that the firing of the weapon was accidental because there was no voluntary act involved, has previously been rejected. In People v. Andersch (1982), 107 Ill. App. 3d 810, 818, 438 N.E.2d 482, a defendant argued that a discharge of a weapon was accidental because it was caused by an “unconscious” act. The court replied that the defendant’s argument “confuses reckless conduct with the risks or results that are the natural products of such acts.” (Andersch, 107 Ill. App. 3d at 818.) Here, too, the defendant confuses that which we call conduct with that which we call the risks and results associated with such conduct. Handling a loaded gun while intoxicated was reckless. Tripping or stumbling while handling the gun and the subsequent discharge were risks the defendant took, and Whitaker’s death was the end result. Accordingly, we hold that the trial judge’s finding that Whitaker’s death was the result of reckless conduct by the defendant was not palpably contrary to the weight of the evidence.

The defendant next contends that a new trial is required because the trial court erred in denying his motion to suppress inculpatory statements made to the police and to an assistant State’s Attorney while in an intoxicated condition. The law is well settled that where a suspect is so grossly intoxicated that he no longer has the capacity to waive his rights, any statements made while in such condition will be suppressed. (People v. Andersen (1985), 134 Ill. App. 3d 80, 95, 479 N.E.2d 1164; In re Shutters (1977), 56 Ill. App. 3d 184, 188, 370 N.E.2d 1225.) However, the fact that the accused is under the influence of alcohol does not automatically render any statements that are made inadmissible at trial. (Andersen, 134 Ill. App. 3d at 95.) Unless the evidence of a defendant’s intoxicated condition clearly demonstrates that he lacked the capacity to waive his rights, any inculpatory statements made are admissible, and the evidence of the defendant’s intoxicated condition will go only to the weight of his confession. (Andersen, 134 Ill. App. 3d at 95.) The determination as to whether a defendant has knowingly and intelligently waived his rights depends upon the particular facts and circumstances of each case, and the trial court’s decision will not be overturned unless it is against the manifest weight of the evidence. (People v. Markiewicz (1976), 38 Ill. App. 3d 495, 498, 348 N.E.2d 240.) The State carries the burden of proving by a preponderance of the evidence that the defendant has knowingly and intelligently waived his rights. People v. Lester (1981), 102 Ill. App. 3d 761, 765, 766, 430 N.E.2d 358.

The defendant argues that the circumstances surrounding his confession parallel those found in People v. Roy (1971), 49 Ill. 2d 113, 273 N.E.2d 363. In Roy, the supreme court held that a defendant did not knowingly and intelligently waive his rights where an incriminating statement was made while intoxicated. (Roy, 49 Ill. 2d at 116.) The testimony at Roy’s suppression hearing revealed that he was in a state of confusion and that he swayed while standing. The arresting officers testified that they smelled a strong odor of alcohol on Roy’s breath. Further testimony revealed that Roy continually answered “What?” and “Yeah” in response to recitation of his Miranda rights by the arresting officers while en route to the station. One of the arresting officers testified that Roy appeared drunk and that he never indicated that he understood the warnings.

A review of the record now before us, however, demonstrates that the defendant’s argument is not supported by the facts. The testimony at Franklin’s suppression hearing also revealed that he had an odor of alcohol on his breath. However, Officer Cullinan characterized the odor as weak or mild. Officer Kaufmann testified that he was able to understand Franklin’s speech and that he only smelled alcohol on defendant’s breath when he moved in closer to search the defendant and the defendant opened his mouth to speak. Officer Kaufmann also stated that he was present when Franklin led police to the area where Franklin said he threw his gun. He stated that Franklin was able to walk without assistance while handcuffed behind his back and never stumbled. Officer Cullman also testified that he observed the defendant walk without assistance while handcuffed behind his back as other officers took him to search for the gun. The assistant State’s Attorney also testified that he was able to understand Franklin’s speech. Based on this review of the record, the court finds that the trial court’s decision to deny the defendant’s motion to suppress was not against the manifest weight of the evidence. Accordingly, we affirm the defendant’s conviction.

The defendant requests this court to reverse and remand for resentencing because the trial judge erroneously imposed a two year mandatory supervised release following his prison term. The State agrees that the length of the supervised release is not authorized as involuntary manslaughter is a Class 3 felony (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 3(1)), and only one year of supervised release can be imposed (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—1(d)). The State recommends that the court reduce the supervised release to one year without remand pursuant to Supreme Court Rule 615(b)(4) (107 Ill. 2d R. 615(b)(4)). We agree that the appropriate relief is to reduce the defendant’s mandatory supervised release to one year rather than remand for resentencing. The defendant’s mandatory supervised release is hereby reduced to one year.

The judgment of the circuit court is affirmed.

Judgment affirmed.

FREEMAN, P.J., and RIZZI, J., concur.