author: JUSTICE KNECHT

text:
    LARRY E. DAILY, Plaintiff-Appellant, v. BOARD OF TRUSTEES OF THE POLICE PENSION FUND OF SPRINGFIELD, ILLINOIS, Defendant-Appellee.
    Fourth District
    No. 4—92—0983
    Argued July 21, 1993. —
    Opinion filed September 30, 1993.

      Stanley H. Jakala (argued), of Berwyn, for appellant.
    Fredric Benson (argued), of Feldman & Wasser, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Plaintiff Larry E. Daily appeals from an order of the circuit court which, on administrative review, affirmed the decision of the Board of Trustees of the Police Pension Fund of Springfield, Illinois (Board), to deny him a “not-on-duty” disability pension under section 3 — 114.2 of the Illinois Pension Code (Code) (Ill. Rev. Stat. 1991, ch. 108x/2, par. 3 — 114.2) and a “line-of-duty” disability pension pursuant to section 3 — 114.1 of the Code (Ill. Rev. Stat. 1991, ch. ÍOS1^, par. 3 — 114.1). We affirm.

Plaintiff became a police officer with the City of Springfield (City) on September 7, 1976. On April 9, 1988, he commenced serving a 90-day suspension for insubordination. The suspension ended on July 7, 1988, and plaintiff was to report to duty the next day. He, however, failed to do so. On July 28, 1988, the Department of Public Safety (Department) of the City filed written charges with the Civil Service Commission (Commission), seeking plaintiff’s discharge for various rule violations, including insubordination and failure to report to work. On January 6, 1989, the Commission found cause existed for plaintiff’s discharge..

Prior to his discharge, plaintiff filed a written application with the Board seeking a duty-related or, in the alternative, a nondutyrelated disability pension. Plaintiff claimed he suffered from stress and post-traumatic stress syndrome which disabled him from working at the Department. After conducting hearings pursuant to article 3 of the Code (Ill. Rev. Stat. 1991, ch. lOS1^, par. 3 — 101 et seq.), the Board concluded plaintiff was not suffering from post-traumatic stress syndrome on the date of his disability application, but was suffering from stress. It noted, however, the lack of medical evidence discussing and explaining stress in the context of being a sickness and concluded the stress plaintiff was under did not result from an act of duty, but rather from conflicts he had with his supervisors and other city officials. It further determined plaintiff did not suffer from a mental disability which rendered him unable to serve on the police department, but because of his personality may find continued service stressful and choose not to continue. Consequently, the Board denied plaintiff’s application for disability benefits.

On administrative review, the circuit court concluded the Board’s decision finding plaintiff suffered from a personality disorder and not a mental disability was not against the manifest weight of the evidence. It further concluded under any interpretation of the evidence plaintiff failed to establish suspension or retirement was necessary, or any alleged mental disability resulted from any active duty. After denial of plaintiff’s motion to reconsider, this appeal followed.

On appeal, plaintiff first contends the Board’s finding he was not entitled to a disability pension is against the manifest weight of the evidence. He argues in viewing the medical and nonmedical evidence presented the only possible interpretation is he suffered from stress, principally resulting from interpersonal conflicts he had with other officers, which aggravated his preexisting personality disorder, thereby disabling him from performing his duties. Since he is only required to prove he was disabled while performing an act of duty — rather than that the disability arose from the performance of an act involving a “special risk” (see Ill. Rev. Stat. 1991, ch. lOS1^, par. 5 — 113)—he maintains his long-standing controversy with the Department entitles him to a duty-related or a nonduty-related disability pension. Alternatively, he argues under Caauwe v. Police Pension Board (1989), 184 Ill. App. 3d 482, 540 N.E.2d 453, section 3 — 115 of the Code mandates a disability pension cannot be denied unless three physicians have certified the applicant is not disabled (Ill. Rev. Stat. 1991, ch. 108x/2, par. 3 — 115). Due to the absence of such certifications, he contends the case should be remanded to the Board for additional hearings to secure them.

On administrative review, the findings and conclusions of an agency on questions of fact are held to be prima facie true and correct. (Ill. Rev. Stat. 1991, ch. 110, par. 3 — 110; Worth v. Board of Trustees of the Police Pension Fund (1992), 230 Ill. App. 3d 349, 353, 595 N.E.2d 51, 53.) An administrative agency’s decision will only be disturbed on review if it is against the manifest weight of the evidence. (Stec v. Oak Park Police Pension Board (1990), 204 Ill. App. 3d 556, 561, 561 N.E.2d 1234, 1237; Ernzen v. Board of Trustees of the Batavia Firemen’s Pension Fund (1981), 96 Ill. App. 3d 1143, 1147, 421 N.E.2d 1065, 1068.) To make such a finding, the court must conclude that “ ‘all reasonable and unbiased persons, acting within the limits prescribed by the law and drawing all inferences in support of the finding, would agree that the finding is erroneous,’ [citation] and that the opposite conclusion is clearly evident.” Hahn v. Police Pension Fund (1985), 138 Ill. App. 3d 206, 209, 485 N.E.2d 871, 874, quoting O’Boyle v. Personnel Board (1983), 119 Ill. App. 3d 648, 653, 456 N.E.2d 998, 1002.

Plaintiff sought a line-of-duty disability pension pursuant to section 3 — 114.1 of article 3 of the Code, which provides:

“If a police officer as the result of sickness, accident or injury incurred in or resulting from the performance of an act of duty, is found to be physically or mentally disabled for service in the police department, so as to render necessary his or her suspension or retirement from the police service, the police officer shall be entitled to a disability retirement pension of 65% of the salary attached to the rank on the police force held by the officer at the date of suspension of duty or retirement.” (Ill. Rev. Stat. 1991, ch. 108x/2, par. 3 — 114.1.)

In contrast to article 5 of the Code (Ill. Rev. Stat. 1991, ch. IO8V2, pars. 5 — 101 through 5 — 236), which governs the police pension fund for cities of more than 500,000 in population, article 3 does not contain a definition of “act of duty.” (See Ill. Rev. Stat. 1991, ch. IO8V2, par. 5 — 113 (defining “act of duty”).) It does, however, state “[a] police officer shall be considered ‘on duty’, while on any assignment approved by the chief of the police department of the municipality he or she serves, whether the assignment is within or outside the municipality.” Ill. Rev. Stat. 1991, ch. IO8V2, par. 3 — 114.1.

Plaintiff also applied for not-on-duty pension benefits under section 3 — 114.2 of the Code, which states:

“A police officer who becomes disabled as a result of any cause other than the performance of an act of duty, and who is found to be physically or mentally disabled so as to render necessary his or her suspension or retirement from police service in the police department, shall be entitled to a disability pension of 50% of the salary attached to the officer’s rank on the police force at the date of suspension of duty or retirement.” Ill. Rev. Stat. 1991, ch. ÍOS1^, par. 3 — 114.2.

These sections are premised upon a finding that plaintiff’s disability rendered him unfit for duty. (Batka v. Board of Trustees of the Village of Orland Park Police Pension Fund (1989), 186 Ill. App. 3d 715, 722, 542 N.E.2d 835, 840.) To receive a disability pension under either section, plaintiff must,, therefore, prove (1) the existence of a physical or mental disability, (2) which renders his suspension or retirement necessary. In order to qualify for a duty-related pension, an applicant is also required to prove he was disabled as a result of an injury incurred in or resulting from the performance of an act of duty. (Ill. Rev. Stat. 1991, ch. IO8V2, par. 3 — 114.1.) Based on the evidence presented, plaintiff failed to establish all of the necessary requirements to be awarded a disability pension, and therefore the denial of benefits was not against the manifest weight of the evidence.

As the medical evidence demonstrated, plaintiff was examined by several doctors, and their reports were included in the record on appeal. Based on the reports submitted which were contemporaneous with plaintiff’s disability application, it is clear plaintiff was found to have a personality disorder, but this disorder did not disable him from performing the duties of a police officer. Specifically, Dr. Robert S. Hamilton, a psychiatrist who examined plaintiff and was the only physician to testify, stated his psychiatric evaluation revealed plaintiff had a mixed personality disorder with obsessive compulsive and paranoid traits and some narcissism. He asserted personality disorders were viewed as mental disorders and not as an illness. While it was a difficult question to answer whether plaintiff could work at his job, he finally asserted plaintiff could perform the duties of a police officer, but probably would feel it was not right for him to do.

Moreover, the nonmedical evidence indicated plaintiff could perform the duties of a police officer, but could not work with the present administration. This is specifically reinforced by plaintiff’s own testimony in which he stated he made the decision in April 1988 to stay with the Department in hopes an election would result in changes in the administration at the Department. He ultimately decided to leave because of the conflicts.

While the record indicates plaintiff’s tenure on the police department was difficult and he did experience stress, based on the evidence presented, there is sufficient evidence to support the Board’s finding plaintiff did not have a mental disability on the date of his disability application which rendered him unable to serve on the police department. Although plaintiff suffered from stress and had a personality disorder, these conditions did not deprive him of his ability to serve on the police department, but because of his personality he might find continued service stressful. Simply because he chooses not to continue work at the Department because it is stressful does not result in a conclusion he is mentally disabled so as to render him unfit for duty. On the basis of the record, the Board’s determination plaintiff was not disabled from performing his duty and was therefore not entitled to a disability pension under section 3 — 114.1 or 3 — 114.2 of the Code was not against the manifest weight of the evidence.

While other cases have determined an officer was entitled to “not-on-duty” benefits under section 3 — 114.2 due to stress-related conditions caused by employment, they do not support a similar conclusion in the present case. In these cases, medical testimony was introduced which indicated the stress-related conditions caused the applicant to be unfit for duty. (See Batka, 186 Ill. App. 3d at 723, 542 N.E.2d at 840 (where all the doctors who examined Batka agreed he was suffering from stress, much of which centered on a problem with the chief, but disagreed on whether plaintiff could continue to work as a police officer; three of the doctors, however, certified Batka was not fit for duty); Hahn, 138 Ill. App. 3d at 210-11, 485 N.E.2d at 874-75 (three of four psychiatrists who examined applicant concluded he was unfit for duty); Stec, 204 Ill. App. 3d at 565-66, 561 N.E.2d at 1240 (uncontroverted medical evidence indicated plaintiff was unfit for duty).) In the present case, no such determination was made by any physician.

Even if it were assumed plaintiff had a mental disability which rendered his suspension or retirement from the force necessary, the evidence still would not support a finding plaintiff suffered a disability as a result of the performance of an act of duty which would allow him to obtain a disability pension trader section 3 — 114.1 of the Code. Plaintiff argues under section 3 — 114.1 of the Code he need only show his disability occurred while performing an act of duty and not an act of duty “inherently involving special risk” as in section 5 — 113 of article 5 (Ill. Rev. Stat. 1991, ch. lOS1^, par. 5— 113; see also Worth, 230 Ill. App. 3d at 356, 595 N.E.2d at 55), and cases relying on such an interpretation of “act of duty” in article 3 were incorrectly decided. Conversely, defendant asserts the article 5 “special risk” component of an act of duty does apply to cases under article 3 (see Olson v. City of Wheaton Police Pension Board (1987), 153 Ill. App. 3d 595, 599-600, 505 N.E.2d 1387, 1390). We need not address this specific issue, however, because there is no showing plaintiff’s stress arose from the performance of any act of duty.

The evidence demonstrated the stress plaintiff experienced leading to his disability application resulted not from the duties of a police officer but from the conflicts he had with his superiors and peers. The plain meaning of the phrase “incurred in or resulting from the performance of an act of duty” is that the injury must be incurred in or result from an act of duty. Therefore, plaintiff needed to show causation, i.e., the disabling condition was caused or aggravated during the performance of a job-related task. (English v. Village of Northfield (1988), 172 Ill. App. 3d 344, 347, 526 N.E.2d 588, 590-91.) In this case, plaintiff has failed to show there was a causal relationship between the stress and the duties of a police officer.

Plaintiff also relies on Swanson v. Village of Lake in the Hills (1992), 233 Ill. App. 3d 58, 598 N.E.2d 430, to support his argument he is entitled to a disability pension. This case involved the receipt of a disability pension pursuant to the Public Employee Disability Act (Ill. Rev. Stat. 1987, ch. 70, par. 91). The present case, unlike Swanson, deals with an interpretation and application of section 3 — 114.1 of the Code, which as Swanson recognized is more restrictive than the Public Employee Disability Act. Therefore, the fact the court in Swanson found stress-related conditions caused by the job entitled an applicant to pension benefits does not result in a contrary finding in this case.

Finally, we address plaintiffs argument the case should be remanded to obtain proper certification. Section 3 — 115 provides:

“[a] disability pension shall not be paid unless there is filed with the board certificates of the police officer’s disability, subscribed and sworn to by the police officer if not under a legal disability, or by a representative if the officer is under legal disability, and by the police surgeon (if there be one) and 3 practicing physicians selected by the board. The board may require other evidence of disability.” (Ill. Rev. Stat. 1991, ch. ÍOS1^, par. 3-115.)

In the present case, the three physicians selected by the Board to examine plaintiff did not certify plaintiff had a disability. Based on this statute, without such certification, the Board could not give plaintiff a disability pension. However, plaintiff cites Caauwe for the proposition the Board could not deny a pension without certification from three doctors certifying plaintiff did not have a disability.

In Caauwe, the Board denied benefits; all the medical, evidence had been presented in the form of uncertified, unsworn, unverified written medical reports of the respective doctors. On appeal, petitioner argued because the doctors failed to certify his disability, or lack thereof, in their medical reports, there was insufficient evidence for the Board on which to predicate any finding of disability or lack thereof. Petitioner also asserted certification by the doctors he was not disabled was mandatory under section 3 — 115, and because the doctors’ reports lacked the certification of petitioner’s disability, the cause should be remanded for such certification. The first district agreed, holding the language of section 3 — 115 was clear and mandated the Board to select three practicing physicians and required them to furnish the Board with subscribed and sworn-to certifications of the applicant’s disability. Since the Board did not require the three physicians it selected to furnish certification of the applicant’s disability,. and the three physicians did not submit such certification, the circuit court’s order affirming the Board’s denial of pension benefits was reversed and remanded to the Board to receive certification of the three doctors of petitioner’s disability or lack thereof. Caauwe, 184 Ill. App. 3d at 484-86, 540 N.E.2d at 455-56.

Under the clear language of section 3 — 115 of the Code, certification of an officer’s disability is only required where the Board will be providing benefits to plaintiff, not when it is going to deny benefits. To the extent Caauwe mandates certification of an applicant’s disability prior to denying benefits, we find it is in express contradiction of the language of the statute and decline to follow it.

For the reasons stated, the circuit court’s order is affirmed.

Affirmed.

COOK and GREEN, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE STEIGMANN

license: Public Domain

text:
    JUDY ALLISON, Plaintiff-Appellee, v. JoANN STALTER, Defendant-Appellant.
    Fourth District
    No. 4—93—0146
    Argued August 19, 1993. —
    Opinion filed September 30, 1993.

      Kenneth L. Strong and C. Thomas Blakeman (argued), both of Strong, Blakeman & Schrock, Ltd., of Pontiac, for appellant.
    David J. Babb, Jr. (argued), of Fellheimer, Travers & Engelman, Ltd., of Pontiac, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In July 1986, plaintiff, Judy Allison, and defendant, JoAnn Stalter, were involved in a car accident. In April 1989, plaintiff sued defendant, claiming she suffered personal injuries because of defendant’s negligent driving. In October 1992, a jury returned a verdict for plaintiff assessing damages of $89,230.56 against defendant, the sum plaintiff’s counsel suggested during oral argument. The trial court denied defendant’s motion for a new trial and entered judgment on the verdict. Defendant appeals, arguing that (1) plaintiff’s argument improperly used a per diem or formula argument for assessing pain and suffering; and (2) the trial court erred by permitting a memorandum of damages excerpted from plaintiff’s closing argument to be delivered to the jury room.

We affirm.

I. Facts

On the date in question, defendant’s vehicle struck plaintiff’s vehicle in the rear. Just prior to the accident, plaintiff had stopped her car behind an automobile which was waiting to make a left-hand turn. As a result of the accident, plaintiff suffered neck injuries for which she had been receiving treatment continuously as of the date of trial. At trial, plaintiff presented testimony that her injuries were permanent and she might incur future medical expenses of an indefinite amount.

During closing argument, plaintiff’s counsel suggested that the jury compensate plaintiff for her pain and suffering for the 6.2 years from the date of the accident to the time of trial at $5,000 per year, totaling $31,000. Counsel also pointed out that plaintiff was 16 years old at the time of the accident. He then suggested, based on an expectancy that she would live another 55.8 years, that an award of $600 per year would be appropriate for future pain and suffering, totaling $33,480. Defendant objected that plaintiff improperly raised a per diem argument. The court responded: “The jury will be instructed to not simply arrive at damages by multiplication, but the counsel is entitled to teU you what the life expectancy of the plaintiff is.” Plaintiff’s counsel then concluded his argument with a suggestion to the jury that the sum of $89,230.56 would be an appropriate award for all the elements of damages.

When the jury retired to deliberate, defendant’s counsel waived his presence at further proceedings. Approximately one hour later, the jury sent a note to the judge requesting a specific breakdown of the amount of damages plaintiff’s counsel suggested in his closing argument. The trial court unsuccessfully attempted to reach defendant’s counsel at both his home and his office and then directed plaintiff’s counsel to prepare a written memorandum of the damages he suggested during his closing argument. Counsel did so, and the court then had that memorandum delivered to the jury. The jury later returned a verdict in favor of plaintiff and assessed damages in the amount of $89,230.56 — $9,250.56 as economic damages and $79,980 as noneconomic damages — the exact amount plaintiff’s counsel suggested during his closing argument and set forth in the memorandum delivered to the jury.

Defendant filed a post-trial motion arguing that the trial court committed reversible error by delivering to the jury plaintiff’s memorandum itemizing damages and by permitting plaintiff to make a per diem argument for damages for pain and suffering. In denying defendant’s post-trial motion, the court found that (1) submission of the itemized damages was within its discretion, (2) the jurors would have had the same information if they had taken notes during closing argument, and (3) the memorandum was an accurate way of refreshing their recollection. The court also found that defendant had waived any objection she might have had because of her counsel’s voluntary absence during the jury’s deliberations.

II. Plaintiff’s Closing Argument On Damages

Defendant first argues that plaintiff made an improper “formula” argument for fixing damages, citing Caley v. Manicke (1962), 24 Ill. 2d 390, 182 N.E.2d 206, which condemned a per diem calculation of damages. Defendant concedes that subsequent decisions have limited the application of Caley. See Johnson v. Chicago Transit Authority (1973), 11 Ill. App. 3d 16, 19, 295 N.E.2d 573, 576 (jury admonished that the amount of damages for pain and suffering was for its determination, and counsel’s per annum arguments were a small part of his entire argument to which he gave no undue emphasis); Friedland v. Allis Chalmers Co. (1987), 159 Ill. App. 3d 1, 8-9, 511 N.E.2d 1199, 1205 (the suggestion of an annual sum multiplied by life expectancy, even assuming it to be a per diem argument, was a small portion of the total argument, and counsel indicated the figures merely reflected his own view of what would be fair and reasonable compensation); Watson v. City of Chicago (1984), 124 Ill. App. 3d 348, 351, 464 N.E.2d 1100, 1102 (a request for $49,000 for 49 years of pain and suffering did not suggest a mathematical formula, but was merely a proper suggestion of a lump-sum figure for pain and suffering in conjunction with a proper reference to life expectancy).

In this case, plaintiff’s counsel’s closing argument covers approximately 25 pages in the record. That portion of the argument suggesting dollar sums for pain and suffering comprises at most V-k pages. Further, the trial court admonished the jury that it could not arrive at damages merely by multiplication. We. conclude that the argument suggesting sums for past and future pain and suffering based upon the years elapsed since the time of the accident and plaintiff’s life expectancy complied with this court’s decision in Thompson v. Lietz (1981), 95 Ill. App. 3d 384, 391, 420 N.E.2d 232, 238 (“Counsel was suggesting possible figures to the jury for pain and suffering and mentioned [plaintiff’s] life expectancy”), as well as the other cases cited earlier. We do not find counsel's argument to be the type of per diem argument found to be error in Caley.

III. The Jury’s Request For Damages Figures Used In Plaintiff’s Closing Argument

Defendant next argues that the trial court committed reversible error by submitting to the jury the memorandum itemizing the elements of damages plaintiff suggested during closing argument.

In response, plaintiff first asserts that defendant waived this issue when her counsel voluntarily absented himself and was unavailable during jury deliberations. In finding waiver, the trial court relied on dicta in both Hunter v. Smallwood (1975), 28 Ill. App. 3d 386, 328 N.E.2d 344, and Gale v. Hoekstra (1978), 56 Ill. App. 3d 400, 375 N.E.2d 456, indicating that actions taken by the trial court in the absence of counsel during jury deliberations were within its discretion and any error was waived.

Defendant asserts that her counsel’s absence does not constitute waiver, but (alternatively) if it does, submission of the memo to the jury may be reviewed as “plain error,” a doctrine we note that usually arises only in criminal cases. (See 134 Ill. 2d R. 615(a).) However, some decisions have held that assignments of error not preserved for review may be noticed as “plain error” to the extent the parties cannot otherwise receive a fair trial or a deterioration of the judicial process occurs. (See Belfield v. Coop (1956), 8 Ill. 2d 293, 313, 134 N.E.2d 249, 259; Underwood v. Pennsylvania R.R. Co. (1966), 34 Ill. 2d 367, 371, 215 N.E.2d 236, 239; City of Quincy v. V.E. Best Plumbing & Heating Supply Co. (1959), 17 Ill. 2d 570, 577, 162 N.E.2d 373, 378; see also 134 Ill. 2d R. 366(a)(5).) Because civil proceedings do not implicate sixth amendment concerns (U.S. Const., amend. VI), we hold that application of the plain error doctrine to civil cases should be exceedingly rare and limited to circumstances amounting to an affront to the judicial process.

Counsel cannot, by his voluntary absence, be permitted to impede the judicial process, or to rely upon reviewing courts to address issues which might have been resolved at trial had he been present. We hold that the absence and unavailability of trial counsel during jury deliberation waives review of any assignment of error arising by virtue of a judicial response to a jury inquiry or request, absent judicial conduct amounting to an affront to the judicial process. For the reasons that follow, we hold that the trial court’s conduct in the present case does not even approach constituting an affront to the judicial process.

Defendant argues that the jury should consider only the testimony and exhibits admitted in evidence at trial. She notes that the trial court instructed the jury both that its verdict must be based on the evidence (see Illinois Pattern Jury Instructions, Civil, No. 1.01(3) (3d ed. 1992) (hereinafter IPI Civil 3d)) and that arguments of counsel are not evidence (see IPI Civil 3d No. 1.01(5)). Defendant thus contends that delivering the memorandum of plaintiff’s argument to the jury during its deliberations violated section 2 — 1107(d) of the Code of Civil Procedure (Code) because the memorandum was not documentary evidence “read or received in evidence.” Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1107(d).

In support of her argument, defendant cites cases holding that the trial court erred by permitting a jury to take into the jury room during deliberations matters of any sort which were not admitted into evidence. (See People v. Carr (1977), 53 Ill. App. 3d 492, 497, 368 N.E.2d 128, 131; Gertz v. Bass (1965), 59 Ill. App. 2d 180, 183, 208 N.E.2d 113, 115.) Defendant also compares the present case to Griffin v. Subram (1992), 238 Ill. App. 3d 712, 606 N.E.2d 560, and Bieles v. Ables (1992), 234 Ill. App. 3d 269, 599 N.E.2d 469, where submission of extraneous material to the jury constituted reversible error. In Griffin, the appellate court found that the trial court committed reversible error when, without first consulting counsel for either party, that court sent to the jury room a medical chart, used in an attempt to impeach plaintiff’s expert during cross-examination but denied admission into evidence. (Griffin, 238 Ill. App. 3d at 718-19, 606 N.E.2d at 565.) In Bieles, an attorney’s trial notes disparaging the credibility of a witness were inadvertently submitted to the jury. The appellate court held that because the credibility of each witness was a crucial element in the decision-making process, notes viewed by the jury impugning the credibility of a particular party’s witness would have denied that party a fair trial. Bieles, 234 Ill. App. 3d at 272, 599 N.E.2d at 471-72.

Plaintiff, by contrast, compares the itemization submitted here to that submitted in American National Bank & Trust Co. v. Thompson (1987), 158 Ill. App. 3d 478, 486, 511 N.E.2d 1206, 1211. In that case, the trial court allowed defendant’s handwritten memorandum of mathematical computations, based upon expert testimony as to present cash value, to go to the jury; the appellate court found that the record showed no abuse of the court’s discretion. Thompson, 158 Ill. App. 3d at 486, 511 N.E.2d at 1211.

We find that submission of the memorandum to the jury was within the court’s discretion because that memorandum was based on the evidence presented at trial and figures suggested during closing argument, which the jury was free to accept or reject. This memorandum cannot be classified as “extraneous” material which was not properly before the jury, as was the case in Griffin and Bieles. Further, as the trial court correctly noted, the jury could have taken notes on the elements of damages that counsel suggested during closing argument.

IV. Conclusion

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

COOK and LUND, JJ., concur.


text:
      In re MARRIAGE OF MARY B. FORBES, Petitioner-Appellee, and GORDON B. FORBES, Respondent-Appellant.
    Fourth District
    No. 4—93—0145
    Opinion filed September 30, 1993.
    Andrew C. Schnack III, of Schnack, Schnack & Cashman, of Quincy, for appellant.
    Roland F. Porter, of Chicago, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Respondent Gorden Forbes appeals from a property distribution following a dissolution of marriage, alleging the trial court abused its discretion by failing to equitably distribute property (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)), and specifically, in assigning a $50,695.18 marital debt to him. We agree and reverse.

Gordon and Mary Forbes were married in 1969. Gordon was employed as a management trainee at Sears, Roebuck and Company for the first two or three years of the marriage. After leaving Sears, Gordon opened his own clothing store, Forbes Clothiers, Inc. (FCI); Gordon also was involved in and owned stock in IBG, Inc., a buying cooperative. FCI initially operated only one store, but later opened a second store. Mary was employed as a high school English teacher for the first four years of the marriage. After leaving her teaching position, Mary was a substitute teacher for four months, worked part-time at the parties’ clothing stores, and attended board meetings and served as an officer of FCI. Mary has a trust which had a principal balance of approximately $300,000 in 1990. Income from Mary’s trust fund and large gifts from Mary’s parents enabled Gordon and Mary to live beyond their means during the marriage.

The marriage was dissolved, and a distribution of property made, in 1991. At the time of dissolution, Gordon was employed as the president of FCI and IBG, Inc. Gordon’s income for 1990 was $20,000. Mary’s income from her trust and investments in 1990 was $69,000. By agreement, Gordon was awarded custody of the parties’ two minor children and child support was fixed at $1,212.38 per month.

In distributing the property, the trial court awarded Mary the marital residence ($234,500), a car ($4,850), and crystal and silver ($11,760). The court ordered Mary to pay the $16,737 due on a loan from Mary’s parents for the construction of the marital home. The court additionally determined Mary used nonmarital funds to discharge a marital debt ($22,437) and to pay taxes ($79,493). The court found Mary should be “reimbursed” for these expenditures, and treated the repayment as reimbursement rather than an award of property. Mary was additionally awarded in excess of $1 million in nonmarital property. The court awarded Gordon the stock in FCI, which was not valued, the IBG stock ($55,628), a car ($16,100) and various accounts and individual retirement accounts ($41,037). The court found a liability ($70,000) incurred by Gordon during the marriage for the benefit of FCI to be a nonmarital debt. Finally, the court found a debt to the estate of Mary’s father ($50,695.18) to be the joint responsibility of both parties.

Gordon appealed and we affirmed in part, reversed in part and remanded with directions in an unpublished order. (In re Marriage of Forbes (4th Dist. 1992), No. 4 — 91—0529 (unpublished order under Supreme Court Rule 23).) Specifically, we found (1) the trial court erred in determining Mary should be “reimbursed” for the $79,493 expended for taxes as she did not meet her burden of proving any determinate amount was spent for anything other than taxes on her own nonmarital income; (2) the trial court erred in assigning the $50,695 debt to both parties since a continuing joint responsibility to satisfy the debt would fail to meet the goal of terminating the financial entanglement of the parties; (3) the classification of the $70,000 debt as Gordon’s nonmarital debt was not an abuse of discretion, especially since the debt was incurred for the benefit of the business which was awarded to him; and (4) we could not determine whether the trial court had effected an equitable distribution of property because the court had not assigned a value to the FCI stock awarded to Gordon. We remanded, directing the trial court to assign a value to the FCI stock and assign the $50,695.18 note to one of the parties; we additionally noted our resolution of the issues on appeal might affect the trial court’s determination of how to equitably distribute the property.

On remand, the parties stipulated the value of the FCI stock was zero. The trial court assigned the $50,695.18 debt to Gordon, but did not otherwise adjust the distribution of property. The parties agreed the $79,493 should not be a credit or reimbursement to Mary. The result was to award Mary net marital assets of $211,936 and nonmarital assets of over $1 million while awarding Gordon net marital assets of $62,070 (i.e., marital assets awarded less the $50,695.18 debt) and nonmarital debts of $70,000. Gordon appeals.

On appeal, Gordon alleges (1) the trial court failed to make an equitable distribution of property pursuant to the requirement of section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)); (2) the trial court erred in assigning him the debt to Mary’s father’s estate on remand, as this “exacerbated the already disparate distribution”; and (3) the trial court failed to follow the instructions given by this court in an earlier appeal.

Mary contends Gordon has waived consideration of his second and third “arguments,” due to a failure to cite to pertinent authority. Supreme Court Rule 341(eX7) provides an appellate brief shall contain the contentions of the appellant and the reasons therefor, with citations to authority. (134 Ill. 2d R. 341(e)(7).) We have previously held a contention that is supported by some argument, but no authority whatsoever, does not satisfy the requirements of Rule 341(e)(7). (In re Tally (1991), 215 Ill. App. 3d 385, 390, 574 N.E.2d 1262, 1265.) In his brief, Gordon contends, in the first “argument,” that the trial court failed to achieve an equitable distribution of property, citing several cases in support of his position. The second and third “arguments” do not seem to be independent of the first “argument,” but appear to set forth the specifics supporting his argument that the trial court erred in distributing the property. The brief could have been more aptly structured, but we do not believe a finding of waiver is appropriate.

The FCI stock has been valued by the trial court, so we are now able to review the distribution of marital assets to determine whether an equitable distribution has occurred. The factors which are to be considered in distributing property upon dissolution of marriage include (1) the contribution to the acquisition, preservation, or depreciation or appreciation of marital or nonmarital property; (2) the value of the property set apart to each spouse; (3) the duration of the marriage; (4) the relevant economic circumstances of each spouse, including the desirability of awarding the marital home or the right to live therein to the spouse having custody of the children; (5) obligations arising from prior marriages; (6) any antenuptial agreement; (7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities and needs of the parties; (8) the custodial provisions for the children; (9) whether the apportionment is in lieu of or in addition to maintenance; (10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and (11) the tax consequences of the property division. Ill. Rev. Stat. 1991, ch. 40, par. 503(d).

The trial court’s distribution of property will not be disturbed absent an abuse of discretion. (In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 381, 571 N.E.2d 1135, 1142.) However, reversal is warranted where the trial court fails to consider the statutory factors in making a distribution of property. (See In re Marriage of Schroeder (1991), 215 Ill. App. 3d 156, 163, 574 N.E.2d 834, 838.) While the trial court made a conscientious effort to follow our directions, our review of the record shows the pertinent statutory factors were not fully considered. Application of the factors to this case suggests an award of $62,070 net marital assets to a custodial parent out of a net marital estate of $274,006 falls woefully short of an equitable distribution of assets.

The first factor, contribution to the acquisition and maintenance of the assets, does not weigh in favor of either party. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(1)0 During the marriage both parties contributed financially to the marriage and neither party has introduced evidence that he or she made greater noneconomic contributions than the other spouse. The fifth, sixth and eleventh factors, regarding obligations from prior marriages, antenuptial agreements and tax consequences, respectively, are not pertinent to the present case. (Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(5), (d)(6), (d)(11).) The balance of the factors weigh in favor of awarding Gordon a larger share of the marital property.

Initially, applying the third and ninth factors to this case, we note this was a marriage of lengthy duration, 22 years. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(3).) The parties enjoyed a lavish lifestyle, which Gordon will be unable to continue with the assets awarded to him. Maintenance was not awarded. Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(9).

The second, seventh, and tenth factors, which require the court to take into consideration each spouse’s property, income and employability, and future ability to acquire income and assets, weigh in favor of a larger award of property to Gordon. (Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(2), (d)(7), (d)(10).) In Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 180, 429 N.E.2d 465, 468, the supreme court found it was proper to award almost all of the marital property to the ex-wife where the ex-husband had significant nonmarital assets and his opportunity to acquire income and assets was better than that of the ex-wife. The facts in Atkinson, which were set forth in the appellate court opinion, indicated the ex-husband had nonmarital assets valued at $584,000 and annual income of $54,000, while the ex-wife earned $15,000 annually. In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617, 626, 402 N.E.2d 831, 837.

This case is similar to Atkinson. Mary has nonmarital assets of $1 million, which, according to 1990 figures (the most recent figures in the record), generated income of $69,000 that year. The record additionally reflects Mary has experience teaching high school students; thus, Mary could increase her income if she chose to return to teaching. Gordon has no nonmarital assets and has nonmarital debts of $70,000. He earned $20,000 in 1990, which was derived, at least in part, from employment at a business which is either failing or has failed. Mary has substantial nonmarital property, earns more income, and has a greater opportunity to acquire assets and income in the future than Gordon. Yet, of the net marital estate of $274,006, the trial court awarded Gordon net marital assets of only $62,070.

The fourth and eighth factors, which take into consideration the custodial provisions for the children, also weigh in favor of a larger property award to Gordon. (Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(4), (d)(8).) Gordon was awarded custody of the children. Section 503(d) recognizes the desirability of awarding the marital home to the spouse having custody of the children. (See In re Marriage of Wiley (1990), 199 Ill. App. 3d 169, 178, 556 N.E.2d 809, 815; In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 576, 521 N.E.2d 621, 627.) Although Gordon was awarded custody of the children, the court awarded the marital home, the major asset of the marital estate, to Mary.

In conclusion, we find the trial court erred in failing to consider the statutory factors in distributing the marital property. The application of the statutory factors to the facts of the present case mandates a finding the award of only $62,070 of the net marital estate of $274,006 to Gordon did not constitute an equitable award of property. We reverse and remand. The trial court must revisit this case and make an equitable distribution of property in accord with this order and the statutory factors.

Reversed and remanded.

STEIGMANN, P.J., and GREEN, J., concur.


text:
      In re MARRIAGE OF SHERYL LYNN IMLAY, Petitioner-Appellee, and LARRY ALVIN IMLAY, Respondent-Appellant.
    Fourth District
    No. 4—92—1001
    Argued June 17, 1993. —
    Opinion filed September 30, 1993.
    Holly W. Jordan (argued), of Meyer, Capel, Hirschfeld, Muncy, Jahn & Aldeen, P.C., of Champaign, for appellant.

      Glenn A. Stanko (argued), of Reno, O’Byrne & Kepley, P.C., of Champaign, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

Respondent, Larry Imlay, appeals from the November 1992 order of the trial court which denied his petition to modify his child support and educational expense obligations because he had been fired from his job. The court found “that [Respondent’s loss of employment was not fortuitous, but instead, was the result of deliberate conduct on [his] part which jeopardized his children’s interests.” The sole question this case presents is whether respondent’s discharge from his employment for nonperformance constitutes sufficient grounds to deny his petition to reduce his support and educational obligation. We hold that it does and affirm.

I. Background

The parties’ marriage was dissolved in July 1987, and petitioner was granted custody of their three minor children. Thereafter, the trial court entered a series of temporary support orders based on respondent’s employment status until December 1988, when the court entered a permanent support order requiring respondent to pay 32% of his net employment income as support for the children. In June 1991, the court entered an agreed order providing that respondent make monthly payments of $1,010 per month — $516 in child support for the minor living at home, and $494 as respondent’s share of the educational and maintenance expenses of the two children pursuing a college education. The court also ordered respondent to pay an additional $50 per month on a $3,450 arrearage.

In August 1992, respondent filed a petition to modify his support obligation. At the October 1992 hearing on that petition, respondent testified that on September 3, 1992, he had been terminated from his employment as an outside salesman for Nationwide Papers. He had sold paper products for Nationwide by calling on customers both in person and by telephone in a multi-county area extending from Peoria to Danville and from Rantoul to Carbondale. In December 1991, defendant was convicted of drunk driving (DUI), and his driver’s license was revoked. Subsequently, he continued to call on his customers by telephone. He also had his present wife drive him to make personal calls on several occasions.

Beginning in June 1992, respondent’s immediate supervisor talked to respondent about his failure to meet his sales goals and about his customers’ complaining of infrequent personal service and communication. In August 1992, an account comprising 50% of respondent’s commissions was reassigned to another salesman because of the customer’s complaint of respondent’s lack of contact and attention to detail. Nationwide subsequently discharged respondent in September 1992 based on his nonperformance.

At the conclusion of the October 1992 hearing, the trial court took the matter under advisement. In November 1992, the court entered a written order denying respondent’s request for modification of the June 1991 support order. The court explained its ruling as follows:

“Respondent bases his request that the Court modify his child support obligation and his obligation to contribute to the college education of the parties’ two oldest children on the loss of his employment as an outside salesman for Champion International-Nationwide Papers. The Court finds, however, that Respondent’s loss of employment was not fortuitous, but instead, was the result of deliberate conduct on Respondent’s part which jeopardized his children's interests. Notwithstanding his employment as an outside salesman, which required extensive use of an automobile, Respondent was convicted of DUI which resulted in the revocation of his driver’s license. This led to his being fired based, in substantial part, on complaints from his customers that their accounts were not being properly serviced. Respondent’s request that the Court enter an order modifying his child support obligation and his obligation to contribute to the college expenses of the parties’ two oldest children is denied.”

II. Analysis

The decision to either grant or deny a petition to modify an award for child support or educational expense lies within the sound discretion of the trial court, and this court will not disturb the trial court’s decision on appeal absent an abuse of discretion. (See In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; In re Marriage of Korte (1990), 193 Ill. App. 3d 243, 250, 549 N.E.2d 906, 911.) In determining whether to reduce an order of child support, the trial court may appropriately consider any substantial economic reversal resulting from a change in employment. (In re Marriage of Donovan (1984), 122 Ill. App. 3d 803, 805, 462 N.E.2d 9, 11; In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 1017, 481 N.E.2d 765, 767.) However, the party seeking a reduction must show good faith for voluntarily changing his employment. Chenoweth, 134 Ill. App. 3d at 1018, 481 N.E.2d at 767.

Respondent contends that the trial court erred in denying his request to modify his support payments because (1) he did not voluntarily lose his employment, and (2) the record contains no evidence showing either his lack of good faith or that he somehow caused his job termination because he was motivated by a desire to evade financial responsibility for his children. (See In re Marriage of Kowski (1984), 123 Ill. App. 3d 811, 814, 463 N.E.2d 840, 843 (a voluntary change in employment made in good faith may warrant modification of support; however, good faith is not shown where the change in employment has been prompted by a desire to evade financial responsibilities).) He asserts that the continuance of his at-will employment was not a condition within his control and that Nationwide’s assessment of “nonperformance” was measured against arbitrary goals of sales and account servicing. He also argues that when, as here, the record contains no affirmative acts of on-the-job misconduct (such as insubordination, absenteeism, or substance abuse), the trial court cannot properly deem his employment termination for “nonperformance” as voluntary. Last, he asserts that the absence of evidence showing a desire to evade his support obligation or jeopardize his children’s interests prompted his loss of employment demonstrates that the court erred in finding that his job loss was occasioned by his lack of good faith. We do not find respondent’s arguments persuasive.

Whether respondent’s conduct leading to the loss of his employment constituted acts of commission or omission, we find the evidence was sufficient to allow the trial court to conclude that his conduct was deliberate and his discharge was not merely a fortuitous occurrence. Nationwide had employed respondent as an outside salesman for three years prior to his discharge, and the sales goals set for his territory were those he himself had projected when he was hired. His supervisor testified that respondent could have continued in his employment had he made the effort required of a sales representative, and respondent admitted that following the loss of his driver’s license, he had not called on his customers as he should have. Respondent’s driving drunk, which resulted in his DUI conviction, adversely — and foreseeably so — affected his ability to make in-person calls on his customers. However, we also note that respondent’s job performance (as shown by customers’ complaints) suffered because of his failure to maintain sufficient telephone contact with his customers or to simply return phone calls — failures unrelated to his restricted mobility after his DUI conviction. The evidence does not suggest Nationwide fired respondent for reasons beyond his control. Thus, under these circumstances, we hold that the trial court could properly view his change of employment as “voluntary.”

A party who voluntarily changes employment resulting in a reduced income and seeks to modify a support obligation must show the employment change was made in good faith. See In re Marriage of Mitteer (1993), 241 Ill. App. 3d 217, 608 N.E.2d 607 (both the lack of evidence that a four-year degree was necessary to secure respondent’s future in his chosen career and the existence of and failure to pay an arrearage had a bearing on respondent’s good faith in seeking an abatement of child support); In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 330, 547 N.E.2d 749, 751 (respondent’s good-faith decision to reduce his hours of employment in order to return to school justified modification of support order from $150 to $125 per month); In re Marriage of Lyons (1987), 155 Ill. App. 3d 300, 304-05, 508 N.E.2d 458, 461-62 (job change allegedly prompted by injury was not made in good faith and instead was a deliberate attempt to evade support obligations where respondent was able to perform his former work); In re Marriage of Stephenson (1983), 121 Ill. App. 3d 698, 700-01, 460 N.E.2d 1, 3 (denial of modification of maintenance affirmed where change in economic conditions was voluntary and the result of deliberate action; respondent resigned from his job over five months prior to the expiration of his term of employment); Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790 (order denying modification of support order vacated where respondent’s decision to quit his job to attend law school was made in good faith and not prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests).

Moreover, respondent here may not shift his burden of proof on this matter to petitioner. The party petitioning for modification must carry the burden of showing his changed employment status was made in good faith. In other words, the party seeking the modification must present evidence of a motive — other than evasion of financial responsibility for the support of his children — in support of the petition for modification. (See Lyons, 155 Ill. App. 3d at 305, 508 N.E.2d at 462; Chenoweth, 134 Ill. App. 3d at 1018, 481 N.E.2d at 767; In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 147, 398 N.E.2d 1243, 1245.) While proof that respondent had a motive to evade financial responsibility for the support of his children may defeat a showing of good faith, the converse is not true — the absence of such evidence does not, without more, establish respondent’s good faith. Here, the record contains no evidence of a good-faith motive for respondent’s loss of employment.

Respondent argues that the decision in Cohn v. Cohn (1984), 122 Ill. App. 3d 763, 461 N.E.2d 1028, supports his argument, but we disagree. In Cohn, respondent, a striking union member, defied a presidential order to return to work and was terminated from his employment with the Federal Aviation Administration. The trial court denied the respondent’s petition for modification of child-support payments, finding his loss of employment a voluntary act without good faith done in conscious disregard for his children’s rights. (Cohn, 122 Ill. App. 3d at 765, 461 N.E.2d at 1030.) Respondent appealed, and the appellate court found that the trial court had failed to consider respondent’s good-faith motives for participation in the strike. (Cohn, 122 Ill. App. 3d at 766, 461 N.E.2d at 1031.) The court noted that respondent, a rank and file member of the union, was motivated to participate in the strike by peer pressure and a desire to increase his salary and improve his working conditions, the same goals which had prompted successful union action in the past. (Cohn, 122 Ill. App. 3d at 766, 461 N.E.2d at 1031.) In contrast to Cohn, respondent’s actions here in failing to service his accounts and his sales territory cannot similarly be viewed as motivated by efforts to improve his employment status.

The record here supports the trial court’s exercise of its discretion in denying respondent’s petition to modify his support obligation. We cannot conclude on this record that the trial court was required to reduce respondent’s support or educational expense obligations merely because he lost his job.

III. Conclusion

For the reasons stated, we affirm the order of the circuit court denying the petition for modification.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARL W. BENSON, Defendant-Appellant.
    Fourth District
    No. 4—93—0069
    Argued August 18, 1993. —
    Opinion filed September 30, 1993.
    Richard D. Frazier (argued) and Michael B. Metnick, both of Metnick, Barewin, Wise & Cherry, of Springfield, for appellant.

      Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and Beth McGann (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In August 1992, a jury convicted defendant, Carl W. Benson, of one count of aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 16). In January 1993, the trial court sentenced defendant to seven years in prison and ordered him to pay restitution. Defendant appeals, alleging that (1) the court deprived him of his right to a public trial by ordering spectators excluded during the testimony of the child victim, and (2) the court erred by ordering him to pay restitution for anticipated counseling sessions for the victim.

We affirm.

I. Excluding Spectators From The Courtroom

In December 1991, the State charged defendant with two counts of aggravated criminal sexual abuse, alleging that he committed acts of sexual conduct against his eight-year-old granddaughter, H.B., involving H.B.’s vagina and defendant’s hand. The jury convicted him of one count and acquitted him of the other.

At the start of the trial, after the prosecutor informed the trial court that H.B. would testify first, the prosecutor asked the court to clear the courtroom while H.B. testified. In support of this request, he cited section 115 — 11 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 115 — 11). That section reads as follows:

“In a prosecution for a criminal [sexual] offense *** where the alleged victim of the offense is a minor under 18 years of age, the court may exclude from the proceedings while the victim is testifying, all persons, who, in the opinion of the court, do not have a direct interest in the case, except the media.” Ill. Rev. Stat. 1991, ch. 38, par. 115 — 11.

The defendant objected on the basis that his friends and relatives in the courtroom had an interest in the proceeding and that the court ought not grant the prosecutor’s request in the absence of “extraordinary circumstances.” The court then asked counsel to identify the family members present and the nature of the interest of the other spectators, as well. Defendant responded that the spectators were his sisters, brothers, nieces, nephews, and neighbors. However, defendant’s response was generalized; he did not identify any particular spectator by name or relationship. He further informed the court that neither his wife nor any of his children were present.

At that point, the court and defense counsel said the following:

“THE COURT: So we only have collateral relatives of his at this point, right?
[Defense counsel]: Yes.
THE COURT: I’m going to grant the [S]tate’s motion and exclude from the courtroom not only these persons who are collateral relatives, but also any other spectators from the courtroom in addition who do not have — I find that that is not a direct interest as contemplated by the statute. So the Court will clear the courtroom.”

The court also stated that the spectators present lacked the direct interest contemplated by the statute. After the court ordered the courtroom cleared, defense counsel made no offer to distinguish particular family members from neighbors among the spectators.

Defendant argues that the trial court’s clearing the courtroom during H.B.’s testimony deprived him of his right to a public trial under the sixth amendment to the United States Constitution (U.S. Const., amend. VI). In support of this argument, defendant cites Press-Enterprise Co. v. Superior Court (1984), 464 U.S. 501, 78 L. Ed. 2d 629, 104 S. Ct. 819, Waller v. Georgia (1984), 467 U.S. 39, 81 L. Ed. 2d 31, 104 S. Ct. 2210, People v. Holveck (1990), 141 Ill. 2d 84, 565 N.E.2d 919, and People v. Priola (1990), 203 Ill. App. 3d 401, 561 N.E.2d 82.

Because both Press-Enterprise and Waller are distinguishable on their facts from the present case, they provide very little support for defendant’s argument. Press-Enterprise involved a newspaper’s first amendment claim that it had the right to be present during voir dire examination of prospective jurors. The trial court denied the newspaper’s request on the ground that the privacy rights of prospective jurors might be violated. Thus, all but approximately three days of the six-week-long voir dire examination was closed to the public and the media. Press-Enterprise, 464 U.S. at 503-04, 78 L. Ed. 2d at 634-35, 104 S. Ct. at 820-21.

The United States Supreme Court held that this procedure violated the guarantee of open public proceedings in criminal trials. In so holding, however, the Court made clear-that it was concerned about an order which excluded not only the public, but also the media from courtroom proceedings. (See Press-Enterprise, 464 U.S. at 509-10, 78 L. Ed. 2d at 637-38, 104 S. Ct. at 824, quoting Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 606, 73 L. Ed. 2d 248, 257, 102 S. Ct. 2613, 2620, as follows: “ ‘[T]he circumstances under which the press and public can be barred from a criminal trial are limited; the State’s justification in denying access must be a weighty one.’ ” (Emphasis added).) In that context (namely, an order excluding the media from court proceedings), the Court wrote that the presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest. Press-Enterprise, 464 U.S. at 510, 78 L. Ed. 2d at 638, 104 S. Ct. at 824.

Waller also addressed a trial court’s exclusion of the media during court proceedings. Over defendant’s objection, that he was being denied his sixth and fourteenth amendment right to a public trial, the trial court in Waller conducted a suppression hearing lasting seven days at which wiretaps were played in open court. (Waller, 467 U.S. at 41-43, 81 L. Ed. 2d at 35-36, 104 S. Ct. at 2212-14.) The State moved to close the suppression hearing in order to avoid breaching the expectation of privacy of persons other than the defendant who might have been recorded during the wiretaps. The court granted the motion and ordered the suppression hearing closed to all persons other than witnesses, court personnel, the parties, and the lawyers. (Waller, 467 U.S. at 42, 81 L. Ed. 2d at 36, 104 S. Ct. at 2213.) The Georgia Supreme Court ruled that the trial court had properly balanced the defendant’s rights to a public hearing under Georgia law and the sixth amendment against the privacy rights of others. The United States Supreme Court reversed, holding that the defendant’s sixth amendment right to a public trial applied to the suppression hearing and that the trial court failed to give proper weight to sixth amendment concerns. (Waller, 467 U.S. at 43, 81 L. Ed. 2d at 36, 104 S. Ct. at 2214.) In so holding, the Court in Waller cited Press-Enterprise and concluded that “the closure of the entire suppression hearing plainly was unjustified.” Waller, 467 U.S. at 48, 81 L. Ed. 2d at 39, 104 S. Ct. at 2216.

In Holveck, the Supreme Court of Illinois addressed a situation more similar to the present case. There, the trial court granted the State’s motion under section 115 — 11 of the Code to exclude from the courtroom those persons except the media who, in the opinion of the court, did not have a direct interest in the case. The supreme court in Holveck discussed Press-Enterprise and Waller, but did so in the context of reviewing a decision by the appellate court as to whether the trial judge expressed sufficient reasons to warrant closure of the trial. (Holveck, 141 Ill. 2d at 99-100, 565 N.E.2d at 925-26.) The supreme court reversed the appellate court’s determination that the trial judge improperly utilized section 115 — 11 of the Code because (according to the appellate court) the record contained insufficient evidence that “the trial judge balanced the victims’ rights against the defendant’s sixth amendment right to a public trial.” Holveck, 141 Ill. 2d at 99-100, 565 N.E.2d at 925-26.

In our judgment, the supreme court in Holveck did not adopt the criteria discussed by the United States Supreme Court in Press-Enterprise and Waller when it determined that the limited closure of the courtroom authorized by section 115 — 11 of the Code does not violate the United States Constitution. In so concluding, we note the following from the Holveck decision:

“In deciding the motion for closure, the judge based his decision on the effects on a young child of testifying while a large number of people were in the courtroom. In answer to the defendant’s argument that, by allowing only the members of the family and other interested parties to be in the courtroom, the public was thus excluded in violation of the defendant’s sixth amendment right to a public trial, the judge said that the fact that the media were present actually allowed public presence. ***
*** By allowing the media to attend, the judge preserved the defendant’s sixth amendment right to a public trial. The trial judge considered that the media presence is, in effect, the presence of the public. ***
* * *
*** [Section 115 — 11 of the Code] provides that the judge may use his discretion in connection with the exclusion of those persons who, in his opinion, are not directly interested in the case. Unlike the statute in Globe Newspaper Co. v. Superior Court (1982), 457 U.S. 596, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (statute excluded the press and the general public), our statute is limited to discretionary closure in a criminal trial and does not allow the media to be excluded. Too, the statute provides guidelines to ensure that the judge does not overstep the authority conferred. The statute provides that closure can be effected only in the narrow instance when a minor is testifying and it will be limited to the time when the child is testifying. The trial court properly involved section 115 — 11, which does not violate the constitutions [of the United States or of this State].” (Emphasis added.) Holveck, 141 Ill. 2d at 100-03, 565 N.E.2d at 926-27.

We hold that because section 115 — 11 of the Code permits only limited closure of trial court proceedings, that section does not violate (or even implicate) any State or Federal constitutional provisions. We further hold that the criteria discussed by the United States Supreme Court in Press-Enterprise and Waller do not apply to closures ordered pursuant to section 115 — 11 of the Code.

Section 115 — 11 of the Code places three limitations upon thé trial court’s authority to close the courtroom. The first is to explicitly prohibit the court from excluding the media. That statutory provision renders the present case factually distinguishable from the circumstances in Press-Enterprise and Waller. Additionally, as the Illinois Supreme Court wrote in Holveck, “[b]y allowing the media to attend, [the statute] preserve^] the defendant’s sixth amendment right to a public trial.” (Holveck, 141 Ill. 2d at 101, 565 N.E.2d at 926.) The second limitation section 115 — 11 of the Code places upon the trial court is to direct that the court may exclude from the proceedings only those persons who, in the opinion of the court, do not have a direct interest in the case; the obverse of this means that those persons who do have a direct interest in the case, such as a defendant’s immediate family, may not be excluded. The third limitation the statute places upon the trial court is to authorize the court to exclude persons from the proceedings only while the victim under 18 years of age is testifying.

Given these limitations, the issue becomes which spectators may the trial court properly exclude from the courtroom? The answer essentially is only those spectators whose connection to the case on trial is tenuous or whose presence simply reflects their curiosity about the trial court proceedings. We hold that the “interests” of such spectators to be present in court while some child recounts in open court how he or she was the victim of sexual abuse do not suffice to render unconstitutional the protections the legislature sought to provide such child victims. The sixth amendment to the United States Constitution was meant for weightier matters, and we hold that section 115 — 11 of the Code does not conflict with that amendment’s purpose of abolishing secret trials. The statute’s explicit commands that the trial court may exclude neither the media nor those spectators who have a direct interest in the case steer it clear of any constitutional infirmity.

In the present case, although the trial court might have more definitively stated its basis for excluding the alleged friends and relatives of defendant while H.B. testified, we hold that the record sufficiently supports the court’s decision to clear the courtroom. The trauma inextricably connected with a child’s testifying about being the victim of sexual misconduct — here, H.B. testified about her grandfather’s fondling of her vagina under her clothing — gives rise to an overriding interest to reduce that trauma whenever possible, such as by excluding from the courtroom those persons who have no direct interest in the case and whose presence may amount to little more than voyeurism.

In the present case, before the court entered the order that apparently excluded all spectators from the courtroom (mainly defendant’s collateral relatives and neighbors), the court expressly asked defendant whether any spectators were members of his immediate family — persons who presumably would have a direct interest in the outcome of the case. At that point, the burden shifted to defendant to specifically identify each spectator that he wished to exempt from the closure order and to define the interest of each. Defendant’s doing so would have given the court the opportunity to tailor the closure order to ensure that it was no broader than necessary. However, here defendant’s vague reference to his collateral kin, neighbors, and acquaintances made no distinction between those possibly having a direct interest in the proceeding and those who did not. Defendant’s failure to provide the trial court with the information it requested waives this issue on appeal.

As we stated earlier, defendant also cites Priola, a decision of the Second District Appellate Court that held that the Waller criteria applied to section 115 — 11 of the Code. (Priola, 203 Ill. App. 3d at 419-20, 561 N.E.2d at 95-96.) The Priola court further found that the trial court did not comply with the Waller criteria because it neither made findings nor considered alternatives to closing the proceeding during testimony of the child victim of sexual assault. However, the Priola court also found that defendant had waived this issue on appeal by failing to object to closure at trial or to raise the issue by post-trial motion. (Priola, 203 Ill. App. 3d at 420, 561 N.E.2d at 96.) For the reasons stated earlier, we decline to follow the Priola court’s holding that the Waller criteria apply to section 115 — 11 of the Code.

II. The Order Of Restitution

At the sentencing hearing, the State asked the court to order defendant to pay restitution for counseling sessions for H.B. The State indicated that $868 had already been paid for such counseling and that future counseling sessions might be necessary. In making this request, the State conceded that the victim’s family had not responded to a recent request for information on additional expenditures. Nonetheless, the court ordered defendant to pay restitution of $868 and an additional sum of up to $2,304 for future counseling. The court calculated this latter sum to be the cost of twice-monthly counseling sessions for an additional 12-month period if the victim should continue to require them.

Defendant argues the trial court erroneously ordered him to pay $2,304 for prospective counseling expenses, arguing that the court improperly speculated about the cost of future counseling sessions for H.B. Citing People v. White (1985), 135 Ill. App. 3d 563, 482 N.E.2d 134, defendant maintains that this court must vacate the restitution order. We disagree.

In White, the record contained no evidence regarding medical expenses to support the restitution order, contrary to section 5 — 5—6 of the Unified Code of Corrections (Unified Code) (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6). On appeal, the State conceded that remandment for a hearing on the amount and manner of payment was necessary. White, 135 Ill. App. 3d at 565-66, 482 N.E.2d at 135-36.

Contrary to defendant’s assertion, nothing in White prohibits inclusion in a restitution order of expenses incurred for prospective psychological counseling of the victim of a sexual offense. This court has previously found that section 5 — 5—6(g) of the Unified Code (Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 5—6(g)) permits a restitution order for such prospective expenses when the court specifies a maximum dollar limit and time frame for completing counseling in the restitution order. See People v. Strebin (1991), 209 Ill. App. 3d 1078, 1082, 568 N.E.2d 420, 423.

We do not view the trial court’s order here as speculative because it set both a ceiling on the amount of additional restitution which defendant might have to pay and a time frame in which therapy might be completed. The order specified restitution of “up to” $2,304, based on twice-monthly counseling sessions for an additional 12 months if the victim needed to continue therapy. We find this order complied with section 5 — 5—6 of the Unified Code and was not an abuse of discretion.

III. Conclusion

For the reasons stated, we affirm the judgment of conviction and the order of restitution.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.