text:
    JOHN W. GRAB, Plaintiff-Appellant, v. HOWARD J. KELLER, JR., Indiv. and as Co-Trustee, et al., Defendants-Appellees.
    First District (4th Division)
    No. 1—90—1649
    Opinion filed December 19, 1991.

      David J. Feeley, Ltd., of Winnetka, and David A. Novoselsky & Associates, of Chicago (David A. Novoselsky, of counsel), for appellant.
    Ashcraft & Ashcraft, Ltd., of Chicago (Timothy J. McGonegle, of counsel), for appellees.
   JUSTICE LINN

delivered the opinion of the court:

Following the entry of summary judgment in their favor, defendants filed a petition for attorney fees against plaintiff, John W. Grab. Defendants are Howard J. Keller, Jr., individually and as co-trustee, and the Northern Trust Company as co-trustee under the will of Howard J. Keller. According to the fee petition, brought pursuant to section 2 — 611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2—611), plaintiff’s lawsuit was frivolous and unfounded. One judge granted summary judgment to defendants on the merits of the lawsuit and another judge heard and granted the petition for attorney fees.

On appeal, plaintiff argues that the trial court abused its discretion in finding a violation of section 2 — 611 and also in awarding an amount of fees without adequate proof.

We reverse.

Background

In December 1980, Grab purchased a cooperative apartment from the estate of Howard J. Keller. A month earlier, plaintiff had executed the sales agreement, which made certain provisions for- prora-tions at closing. Approximately three years later, plaintiff informed the Northern Trust Company, through new counsel, that he had not received proper credits for real estate taxes and the co-op’s portion of the outstanding mortgages at the time of closing. The Northern Trust responded with a letter explaining the bank’s position that the explicit wording of the real estate sales agreement precluded any cause of action based on the further proration of real estate taxes or mortgages, which were paid as part of the monthly assessment amount. Plaintiff’s counsel also contacted the attorney who had handled the sale and closing on behalf of plaintiff in 1980. That attorney stated his belief, in a letter, that plaintiff was not entitled to any further credits or prorations based on the documents. Notwithstanding this information, plaintiff filed suit to collect approximately $30,000 that he alleged was not credited to him at the closing.

In summary, plaintiff alleged that he had entered into an agreement to buy the co-op for $210,000 and that the price he paid for his apartment unit should have been credited with its pro rata share of the outstanding mortgages on the apartment building. This proration was calculated at $22,241. In addition, plaintiff alleged that he should have received a proration credit of $6,283.92 for the 1980 real estate taxes. Instead, the only proration he received at closing was for that portion of the monthly assessment of $1,097.43 that he was entitled to as of the date of closing, December 12, 1980. The monthly assessment included interest on the mortgage and a charge for a tax escrow and operating expense escrow.

Defendants filed an answer and affirmative defenses, along with a motion for judgment on the pleadings. Defendants’ position was that plaintiff received all the prorations he was entitled to under the express terms of the agreement and that his action was thereby precluded. Judge Thomas Rakowski heard arguments on the motion and ultimately concluded that the real estate sales agreement of November 20, 1980, was ambiguous, as to both the issue of the outstanding mortgage balance and the unpaid real estate taxes.

Thereafter, Judge Willard J. Lassers heard defendants’ motion for summary judgment and concluded that the evidence in favor of defendants’ position was “overwhelming.” Accordingly, the court granted judgment in favor of defendants.

Defendants filed their motion for attorney fees, which was heard by Judge Myron Gomberg. The judge reviewed the papers and granted the motion, noting that the action “shouldn’t ever have been filed at all.” Judge Gomberg subsequently denied plaintiff’s motion to reconsider the granting of sanctions and set a date for hearing on the amount of fees. The matter was transferred to the assignment judge, however, and still another judge was assigned to the ease. That judge declined to assess damages based on another judge’s finding of a section 2 — 611 violation and the matter came back before Judge Lassers, the judge who had granted summary judgment in favor of defendants as to the merits of the complaint.

Over plaintiff’s objection, Judge Lassers ruled that the fee petition itself could stand as the direct presentation of the movant, and that plaintiff could then cross-examine the affiants, who were the accounting manager for the defendants’ law firm and a partner of the firm. Another lawyer was examined also.

The trial court filed a memorandum and order, granting fees and costs in the amount of $4,964.68. This figure was based on the time and costs expended after November 25, 1986, the effective date of the revised section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). This section required courts to assess fees if the signer of pleadings was found to have failed to undertake a reasonable inquiry as to whether a pleading was well-grounded in fact or warranted by existing law. Section 2 — 611 has since been preempted by Supreme Court Rule 137 (134 Ill. 2d R. 137), which restores discretion to the trial court in deciding whether to award sanctions. Judge Lassers did not explain why the earlier version of section 2 — 611 was inapplicable and did not award fees and costs for the period before November 1986. In his order, the judge noted that the issues were not highly specialized and the work for which fees were sought “involved a motion for summary judgment based upon extrinsic evidence for a contract found to be ambiguous.”

Opinion

We believe that the resolution of this appeal depends on whether plaintiff’s interpretation of the real estate sales agreement is merely tenuous, as distinguished from “frivolous,” in the sense of being unreasonable and untrue. (See, e.g., Ready v. Ready (1961), 33 Ill. App. 2d 145, 161, 178 N.E.2d 650, 658 (legislature intended to penalize “frivolous or false matters”).) Based upon our review of the record, we find that the requirements of section 2 — 611 have not been met in this case.

Initially, there was a question in the trial court as to which version of the attorney fee statute should apply. We find that because the second amended complaint was filed in 1984, the applicable law is the original version of section 2 — 611 (the successor to section 41 of the Civil Practice Act), which provided that sanctions could not be awarded unless the allegations were “made without reasonable cause and found to be untrue.” (Ill. Rev. Stat. 1983, ch. 110, par. 2—611.) This version of section 2 — 611 is recognized as narrower in scope than the amended (and now superseded) version. We have noted that the 1986 version of section 2 — 611 “is much more extensive in scope than the prior version in that it now extends to every paper filed by a party, is applicable to attorneys as well as litigants, and does not expressly limit ‘appropriate sanctions’ to ‘reasonable expenses actually incurred by the other party’ and attorney fees as did its predecessor.” Safeway Insurance Co. v. Graham (1989), 188 Ill. App. 3d 608, 613, 544 N.E.2d 1117, 1120 (new section 2—611 could not be applied retroactively).

The contract in question is structured as a sale of shares of stock in the building corporation, along with the transfer of a proprietary lease on the apartment unit. The purchase price is given as $210,000, with $21,000 to be paid as earnest money and “the balance of $189,000, plus or minus prorations, at the time of closing.” The emphasized language forms the basis for plaintiff’s lawsuit.

The contract contains only one other reference to prorations, in paragraph 8, which reads as follows:

“8. Seller represents that the present monthly assessment, including interest on the mortgage, taxes and operating expenses, is $1,097.43. Seller shall pay all assessments to date of closing. The assessment for the month in which closing occurs shall be prorated between the parties.” (Emphasis added.)

Another provision of the agreement, paragraph 4, refers to the existence of a first and second mortgage which secured the building corporation’s promissory notes. This paragraph states that the “Buyer agrees to accept the Assignment of the Proprietary Lease subject to the terms of those mortgages.”

The closing statement dated December 12, 1980, is a form that contains the address of the property, the buyer’s and seller’s names, the broker’s name and address and the credits given to purchaser and seller. It also contains blank lines or spaces next to printed language referring to taxes and mortgages. The form shows only these credits to the purchaser, typed in the appropriate spaces: a $21,000 credit representing earnest money, and a $189,682.62 payment, representing the balance of the purchase price. Under the seller’s column is the contract price of $210,000 plus the proration of the assessment for the month of closing, $672.62. The prorated period was from December 12 to December 31, and the seller received the credit because it had paid the full monthly assessment of $1,097.43 for December. This handling of the proration appears to be consistent with paragraph 8 of the sales agreement, which specifically refers to the inclusion in the assessment of mortgage interest and taxes.

Plaintiff maintained in the trial court that he was entitled to receive a credit for the outstanding mortgage balance attributable to his apartment unit, as well as the 1980 real estate taxes. In his second amended complaint, he argued that the agreement for the sale of shares in the building corporation was ambiguous as to what, exactly, was to be prorated at the time of closing. To aid the court in interpreting the allegedly ambiguous agreement, plaintiff attached to his second amended complaint as an exhibit the listing agreement for the cooperative apartment he had purchased. This document showed a listing price of $255,000, “broken down as a mortgage balance and equity, both of which totaled $255,000.” The second amended complaint claims damages in excess of $35,000.

In July 1985, Judge Rakowski heard the defendants’ motion for judgment on the pleadings of the second amended complaint. In opposition to the motion, plaintiff took the position that paragraph 8 of the contract was limited to the monthly assessment proration, which included current mortgage interest. According to plaintiff, paragraph 8 did not address the question of a proration credit for the principal balance of the mortgage attributable to the apartment unit. In other words, the sum of approximately $22,000, which would be that portion of the total principal mortgages on the building allocated to the unit in question, should have been “paid off” at closing, or credited to the buyer. Instead, the buyer paid the full amount of the “gross” purchase price. Because he was not credited for paying off the seller’s mortgage indebtedness and tax liability, he overpaid and should be reimbursed.

Defendants countered by citing paragraph 4, which states that the buyer accepts the proprietary lease. The lease necessarily subjugates the unit buyer’s interest to the terms of the existing mortgages on the whole building.

From the record it is apparent that the arguments of counsel caused confusion, and the judge put the hearing over to the following day, when additional arguments were presented. Plaintiff raised the issue of custom and usage, specifically in the context of how real estate taxes are paid in Illinois. For example, taxes for the year 1979 are not paid until 1980. Accordingly, plaintiff contended that he should have been credited in 1980 and 1981 with a portion of the real estate taxes for 1979 and 1980, since his monthly assessments in 1980 and 1981 would be paying off the 1979 and 1980 liability.

Defendants reiterated their position that the unambiguous contract terms were controlling.

The judge considered that, while paragraph 8 of the agreement dealt with the monthly assessment as including a portion of mortgage interest and real estate taxes, the contract did not “seem to control” two matters, the “unpaid” real estate taxes and the outstanding mortgage. The judge declined to assume that either side had agreed to be responsible for the unpaid taxes and mortgage principal, finding that it appeared to be a missing term in the contract. Reviewing paragraph 4, the section dealing with the buyer’s taking the property subject to the proprietary lease and mortgage terms, the judge said that he could not interpret paragraph 4 to “read anything more than what it says.” The judge noted, “Again, I have the same problem with respect to ambiguity. It doesn’t appear that the parties have reached an agreement as to what is to be done with the outstanding mortgage.” Responding to the defendants’ assertion that the proprietary lease itself created obligations, the court noted that such an argument “takes [defendants] completely out of the ambit for motion of judgment on the pleadings because that [lease] agreement isn’t incorporated by reference into this agreement.”

The judge concluded that the motion for judgment on the pleadings would be denied, finding “the contract in question is ambiguous as to both issues, issue of the outstanding mortgage balance and the issue as to the unpaid real estate taxes.”

In light of the parties’ arguments and Judge Rakowski’s findings, we cannot conclude that attorney fees should have been assessed upon a later court’s determination that plaintiff’s lawsuit was unfounded as a matter of law or based on false statements of fact. In our opinion, attorney fees should not be awarded simply because two judges out of three may have found plaintiff’s theory untenable in light of the express terms of the agreement for the sale of the co-op apartment.

Once Judge Rakowski found an ambiguity based on what he viewed as a missing term, he concluded that extrinsic evidence was needed to resolve the factual question of which party was responsible for the prorated items.

The question of the parties’ intent was subsequently resolved in favor of defendants, on summary judgment. Plaintiff’s deposition testimony set forth reasons why he believed he was entitled to the additional credits. Referring to the gross price in the listing agreement, plaintiff explained that it is customary to advertise co-op apartments at gross prices, less a credit for the mortgage. Although the price he paid, $210,000 was less than the reduced asking price of $240,000, he believed that the $210,000 was a “gross” price against which the mortgage balance attributable to his unit would be credited.

To contradict plaintiff’s stated belief, defendants offered the affidavit of the attorney who had represented plaintiff during the sales negotiations and closing. Plaintiff’s current attorney objected to the use of such affidavit, which stated that plaintiff appeared to understand and approve the deal and that he voiced no challenge to the closing statement figures. Judge Lassers expressed doubts about the propriety of relying on the statements of plaintiff’s former attorney and therefore did not consider the affidavit in deciding the motion for summary judgment.

Defendants also argued that plaintiff, who was a “sophisticated buyer” with a seat on the Chicago Board of Options Exchange, freely signed the agreement to purchase the co-op after negotiating down the purchase price. By signing the agreement, he knew his interest was subject to the existing proprietary lease and mortgages on the building. The transfer of ownership of shares of stock in a co-operative building corporation requires such an arrangement, and plaintiff had the advice of counsel and his accountant.

During argument on the motion for summary judgment, the parties again explained their respective positions as to the ambiguity or lack of ambiguity in the contract. Plaintiff’s counsel explained his gross price theory, which views the payment of $210,000 as an overpayment because it included what in effect is a debt of the seller. To bolster his position regarding his understanding of the agreement, plaintiff presented the standard real estate form contract that he had completed and signed as his offer to purchase the co-op. Boilerplate language in that form provided that existing mortgages and lien indebtedness would be paid out of the sales proceeds. Plaintiff also referred to the affidavit of a representative of the bank trustee, which said that after receiving the plaintiff’s form offer, the bank conveyed. its “acceptance.” That form contract was never signed by the bank as trustee, however, and the agreement that was ultimately executed was drafted to conform to the mechanics of a transfer of shares in a co-operative building corporation.

Judge Lassers rejected plaintiff’s position because it was “in the teeth” of the parties’ agreement. In the judge’s view, the case was “clear cut.” The parties had entered into a negotiated sales agreement that covered all relevant terms and at the closing plaintiff failed to state any surprise over or objection to the exclusion of what would be a substantial credit of almost $40,000. It was not until three years later that he raised the issue of his supposed overpayment. The judge found that the parties’ agreement “unmistakably and unequivocally provides for only one item to be prorated; namely, the assessment for the month in which the closing occurred and that was to be prorated.” The judge concluded that the evidence was overwhelmingly in favor of granting defendants’ motion for summary judgment.

Defendants then filed their motion for attorney fees pursuant to section 2 — 611. Judge Gomberg heard the arguments and granted the motion, stating that he did not want to consider the extraneous documents that had been considered in the two previous hearings. In his view, the final, signed version of the parties’ contract was all that was relevant. The judge said that plaintiff was bound by the contract he signed and that it was “clear, that is not ambiguous at all.”

It is well established that fees are not automatically awarded when a party’s legal theories and conclusions are found unavailing; if that were the law, fees would go to the prevailing party in many a case. (See Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 532 N.E.2d 595 (section 2—611 does not permit trial courts to impose sanctions simply because an argument or theory of recovery is unjustified; sanctions are not awarded for failure to prevail) (affirming fee award under circumstances).) Here, there is no evidence that plaintiff advanced wholly unwarranted theories of law or made false statements of fact.

In Lecrone v. Leckrone (1991), 220 Ill. App. 3d 372 (one judge dissenting), this court reversed a trial judge’s award of sanctions in a case involving the attempt of plaintiffs to impress a constructive trust on a decedent’s estate and the estate executors for dissipation of estate funds supposedly earmarked for plaintiffs. The plaintiffs’ attorneys had found one constructive trust case that arguably supported their legal theory, although that case involved an intestate estate as distinguished from a testamentary estate. The trial court believed that plaintiffs’ theory of recovery was contrived and lacked meaningful investigation of the facts or existing law. On appeal, however, this court disagreed that plaintiffs’ “tenuous” theory warranted the imposition of sanctions, and set aside the award. See also Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 518 N.E.2d 1374, appeal denied (1988), 121 Ill. 2d 586, 526 N.E.2d 839 (reversing award of attorney fees against unsuccessful plaintiffs despite trial court’s finding that the case was not well-grounded in fact or law; fact that plaintiffs failed to establish a prima facie breach of contract in connection with a written management contract was not a basis for fee award); Wollschlager v. Sundstrand Corp. (1986), 143 Ill. App. 3d 347, 493 N.E.2d 107 (fees for meritless lawsuit properly denied where litigant had demonstrated an unwavering belief that the basis of his claim was valid).

In La Salle National Bank v. Kissane (1987), 163 Ill. App. 3d 534, 516 N.E.2d 790, the court affirmed denial of attorney fees against a bank that had alleged it held valid title in an action to quiet title. The court held that the bank’s incorrect assertion was a legal conclusion and that even though the bank’s title was found to be void, sanctions based on “untrue” pleadings were inappropriate under the circumstances. The court held that the bank’s position that it held valid title “was not a factual statement but instead a legal conclusion. Therefore, La Salle was entitled to present this issue to the court for a ruling.” 163 Ill. App. 3d at 542-43, 516 N.E.2d at 795.

Similarly, we believe, the essence of plaintiff’s claim required legal construction of the agreement, based on the documents and other matters presented. He was entitled to advance the issue for a ruling and, in fact, one of the three judges who considered his arguments agreed that the executed agreement was ambiguous as written. That a later judge apparently based attorney fee sanctions on the fact that the contract was clearly not ambiguous misses the point of assessing attorney fees for untrue pleadings made without reasonable cause.

We agree with the trial court that plaintiff’s legal conclusions were unpersuasive. Defendants did everything they could to explain to plaintiff’s new attorney the strength of their position before the suit was filed and even put plaintiff on notice that they would seek attorney fees. It may therefore seem unfair that defendants are, by our decision, forced to pay the attorney fees caused by plaintiff’s lawsuit. Ours remains a system of requiring both sides to bear their own fees, however, and the penalty embodied in section 2 — 611 is not to be employed for punishing losing parties who fail to adequately support their legal positions. Contracting parties may wish to draft attorney fee provisions in their agreements as a matter of course, and thus avoid submitting their claims for fee sanctions to judges that may hold differing viewpoints as to which suits are truly frivolous (and which are “merely meritless”).

We believe that in situations involving contract construction courts should be cautious in awarding sanctions if the reason for the award is that one side “overwhelmingly” proves its position. Motions to dismiss or for judgment on the pleadings test the legal adequacy of pleadings. Motions for summary judgment test the adequacy of factual proof. These and similar motions are tools for ending litigation that is going nowhere. Plaintiff in this case survived a motion for judgment on the pleadings before one judge. He lost the subsequent motion for summary judgment before a different judge, but no specific factual statements were actually pinpointed as being false and made without reasonable cause. (See Monahan v. Village of Hinsdale (1991), 210 Ill. App. 3d 985, 996, 569 N.E.2d 1182, 1189 (“There is no evidence that the plaintiff’s pleadings contained intentionally false allegations”).) Instead, a third judge found liability for fees based on the belief that the contract was unambiguous in its meaning and that the case should not have been brought. Those differences in legal judgment, however, should not result in attorney fee sanctions. See Lewy v. Koeckritz International, Inc. (1991), 211 Ill. App. 3d 330, 570 N.E.2d 361 (reversing fee sanction assessed against lawyers who argued to second judge an interpretation of an order that the original judge found contrary to his own intention).

For the foregoing reasons, we reverse.

Judgment reversed.

JIGANTI, P.J., and McMORROW, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE JIGANTI

license: Public Domain

text:
    FRANK ARGUETA et al., Plaintiffs-Appellees, v. BALTIMORE AND OHIO CHICAGO TERMINAL RAILROAD COMPANY, Defendant-Appellant (Parsec, Inc., et al., Defendants and Third-Party Plaintiffs-Appellees and Separate Appellants; Paceco, Inc., Third-Party Defendant and Separate Appellee).
    First District (4th Division)
    No. 1—89—2813
    Opinion filed December 19, 1991.

      Thomas L. Hogan, of Gorham, Metge, Bowman & Hourigan, of Chicago, for appellant.
    Richard S. Fleisher and Matthew I. Baker, both of Karlin & Fleisher, and David A. Novoselsky & Associates, both of Chicago (David A. Nov-oselsky and Linda A. Bryceland, of counsel), for appellees Frank Argueta and Barton Kohl.
    Algimantas Kezelis, Russell P. Veldenz, and Terence R. Selby, all of French, Kezelis & Kominiarek, P.C., of Chicago, for appellees Parsec, Inc., and Transpersonnel, Inc.
    McKenna, Storer, Rowe, White & Farrug, of Chicago (James P. DeNardo, Lydon C. Molzahn, and Christine L. Olson, of counsel), for appel-lee Paceco, Inc.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

The plaintiffs, Frank Argueta and Barton Kohl, employed as car-men by the Baltimore & Ohio Chicago Terminal Railroad (B&OCT), were injured on the job while riding in the cab of a gantry crane when a spindle pin attaching one of the crane’s wheels fractured, causing the wheel to snap off and the crane to collapse.

The plaintiffs brought an action against B&OCT under the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (1988)) alleging that B&OCT failed to provide a safe work place. The plaintiffs also sued Parsec, Inc., whose employee was operating the crane at the time of the accident.

B&OCT filed a cross-complaint against Parsec, Inc., for contribution and contractual indemnity. Parsec, Inc., filed a third-party action under the Contribution Among Joint Tortfeasors Act (Contribution Act) (Ill. Rev. Stat. 1985, ch. 70, par. 301 et seq.) against Paceco, Inc., the manufacturer of the crane.

The jury found that B&OCT and Parsec were both negligent and awarded $269,591.38 to Kohl and $1,986,246.59 to Argueta. During jury deliberation, but before the jury returned its verdict, Parsec settled with both plaintiffs for $150,000. After the verdict, the court entered judgment solely against B&OCT and denied B&OCT’s motion to enter judgment against Parsec pursuant to the contractual indemnity agreement.

After all of the evidence had been presented, the court severed the closing arguments and jury deliberation in the third-party action from the main action. Accordingly, the jury returned a separate verdict and found Paceco not liable to Parsec for contribution.

B&OCT appeals from the judgment entered on the jury verdict in favor of the plaintiffs and alleges numerous trial court errors. B&OCT contends that the trial court erred in failing to apply FELA substantive law at trial, specifically, with regard to jury instructions on damages, the admission of the plaintiffs’ medical expenses, and the treatment of an economist’s testimony at trial. B&OCT further asserts the trial court erred by refusing to admit several pieces of proffered evidence directed at B&OCT’s liability. Finally, B&OCT appeals on the ground that Parsec’s settlement with the plaintiffs was not in good faith and the trial court erred by refusing to grant B&OCT’s contractual indemnity claim against Parsec.

Parsec also appeals from the jury’s separate verdict in favor of Paceco and contends that the verdict was against the manifest weight of the evidence and was the result of jury prejudice and bias. Parsec also alleges that the trial court erred in excluding relevant evidence.

The plaintiffs, Frank Argueta and Barton Kohl, were employed as carmen helpers for B&OCT and worked at the Forest Hill yard in Chicago. At Forest Hill, tractor trailers are loaded and unloaded from railroad flatbed cars by using cross-gantry overhead cranes. The cranes are approximately 40 feet tall and 65 feet wide and travel on four wheels by way of concrete pads parallel to the railroad tracks. To move from one set of tracks to another, the crane must travel across specifically delineated crossing pads at the north end of the yard. Lift beams are attached to the trolley of the crane and are designed to lift trailers from the railroad cars. At either end of the crane, two cabs are attached which serve to carry crane operators.

In January 1985, B&OCT signed a contract with Parsec, Inc., in which Parsec agreed to supply operators for the overhead cranes. Parsec was in charge of hiring, firing, and supervising the operators. B&OCT gave the crane operators written instructions for safe operation of the cranes. The instructions mandated that when crossing from one set of tracks to another, the operator must position the lift beam against the mechanical stops in the direction in which the crane was moving.

When driving a crane, the crane operator was normally assisted by B&OCT carmen. Due to the poor visibility inherent to the size of the crane, the carmen would sit in the cab opposite the operator and would advise him of any obstructions in the crane’s path.

On July 23, 1985, plaintiffs Argueta and Kohl were assisting Charles Chrisos, the Parsec employee who was operating B&OCT’s crane No. 283. Argueta and Kohl were seated in the east cab of the crane as Chrisos was driving the crane and seated in the west cab. When traveling across the crossing pad, Chrisos struck a pothole which measured three feet wide and four to five inches deep. At this point, the crane began to shake, the steel spindle pin attaching the northwest wheel onto the crane fractured, the wheel snapped off the crane, and the crane collapsed. Chrisos, seeing the imminent accident, kicked out the window in his cab and jumped out. Argueta and Kohl sustained injuries for which they received medical treatment. Kohl returned to work within six weeks. Argueta’s back injuries have prevented him from returning to work for B&OCT.

Evidence was presented at trial that the presence of potholes in the railroad yard, the failure to test the spindle pins of the crane’s wheels more frequently, the rough operation of the crane, and the fact that the lift beam was not in the proper position as Chrisos was traveling across the crossing pad were all factors which contributed to the spindle-pin fracture and the subsequent collapse of the crane.

I. FELA ISSUES

The first issue which B&OCT raises on appeal is that the trial court committed reversible error by refusing its proffered jury instruction that any damage award would not be subject to income tax. B&OCT argues that since the plaintiffs’ action against the railroad was brought under the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (1988)), it was entitled to this instruction, as it is mandated under Federal law. See Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755.

The plaintiffs do not dispute the fact that a defendant sued under FELA is entitled to this instruction. However, the plaintiffs assert that the presence of a common-law defendant, Parsec, in the lawsuit precluded B&OCT from its entitlement to the instruction.

The plaintiffs rely on the Illinois Supreme Court’s decision in Klawonn v. Mitchell (1985), 105 Ill. 2d 450, 475 N.E.2d 857, a common-law case, which held it was reversible error to give a jury instruction that a compensatory damage award is not taxable.

It is well settled that questions concerning the measure of damages in FELA actions are Federal in character, even if the action is brought in State court, and must be settled according to general principles of law as administered in the Federal courts. (See, e.g., Monessen Southwestern Ry. Co. v. Morgan (1988), 486 U.S. 330, 100 L. Ed. 2d 349, 108 S. Ct. 1837; Chesapeake & Ohio Ry. Co. v. Kelly (1916), 241 U.S. 485, 60 L. Ed. 1117, 36 S. Ct. 630.) Moreover, the United States Supreme Court has held that it is reversible error for a State trial court in an action brought under FELA to refuse to give the requested instruction on the taxability of damages. (Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 498, 62 L. Ed. 2d 689, 696, 100 S. Ct. 755, 759.) The Supreme Court reasoned that a jury may not be aware of the provisions in the Internal Revenue Code which provide that damages received for personal injuries are not taxable income and the jury may unnecessarily increase the plaintiff’s award in order to insure that the injured party is fully compensated. (Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 496, 62 L. Ed. 2d 689, 695, 100 S. Ct. 755, 759.) The Court further stated that the instruction “would not be prejudicial to either party, but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages.” Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 498, 62 L. Ed. 2d 689, 696, 100 S. Ct. 755, 759-60.

The Illinois Supreme Court in Klawonn v. Mitchell (1985), 105 Ill. 2d 450, 475 N.E.2d 857, had occasion to disagree with the reasoning in Liepelt in a case which involved purely State law. In its ruling on the propriety of the trial court’s decision to give a Liepelt instruction on damages in a wrongful death action brought under Illinois law, the court expressed its belief that “proof of pecuniary loss *** should not be rendered more complex by injecting the question of income tax or other extraneous factors.” (Klawonn, 105 Ill. 2d at 458, 475 N.E.2d at 861.) While the court agreed that Liepelt established that in FELA actions, upon request, the jury must be instructed that any damages awarded are not subject to taxation, the court held that in an action involving “purely State law,” an instruction on the nontaxability of damages, given over the plaintiff’s objection, was reversible error. Klawonn, 105 Ill. 2d at 456, 475 N.E.2d at 860.

We believe that the Elinois Supreme Court’s holding in Klawonn is limited to actions based solely on State law. In an action such as the one before us, where a plaintiff chooses to join Federal and common-law actions in one lawsuit, Federal law and its construction by the United States Supreme Court cannot be ignored. The supremacy clause of the United States Constitution requires preemption of State laws or common-law standards which conflict with Federal statutes and the execution of their full objectives. U.S. Const., art. VI, cl. 2; see also Papas v. Upjohn Co. (11th Cir. 1991), 926 F.2d 1019.

In the case at bar, the plaintiffs cannot reap the benefits derived from pursuing one defendant under a Federal statute, and then selectively eliminate unfavorable portions of the statute by relying on the presence of another defendant whom the plaintiff has sued under State law. The FELA instruction does not adversely affect the common-law defendant, nor does the instruction confuse the jury since any damages for which the common-law defendant may be responsible are ultimately nontaxable as well.

For the reasons set forth, we find that the trial court erred in failing to instruct the jury on the nontaxability of damages as mandated by the Federal statute and construed by the United States Supreme Court.

For this error, B&OCT requests a new trial on damages only. However, the plaintiffs contend that this court should not consider any of the errors which B&OCT has raised relating to the issue of damages. The plaintiffs argue that B&OCT has waived its right on appeal to seek a new trial on damages since in its post-trial motion, B&OCT only requested a judgment notwithstanding the verdict or, in the alternative, a new trial.

A request for a new trial on certain aspects of a case is included in a request for a new trial. (Carter v. Chicago & Illinois Midland Ry. Co. (1988), 168 Ill. App. 3d 652, 522 N.E.2d 856.) While a post-trial motion must state the relief desired (Ill. Rev. Stat. 1985, ch. 110, par. 2—1202(b)), it is also clear that the legislature intended the Code to be liberally construed with the ultimate objective of resolving controversies according to the substantive rights of the parties. Ill. Rev. Stat. 1985, ch. 110, par. 1-106; 107 Ill. 2d R. 2(a).

In a case such as the one before this court, in which B&OCT seeks lesser relief from the reviewing court than the relief which was requested in the post-trial motion, we believe that waiver is not at issue. By requesting a new trial in its post-trial motion, B&OCT has essentially requested both a new trial on liability and a new assessment of damages.

For the foregoing reasons, we find that B&OCT is entitled to a new trial on the issue of damages. Since this will be retried using FELA substantive law, we do not reach B&OCT’s issues regarding the plaintiffs’ medical expenses and the trial court’s treatment of the testimony of the plaintiffs’ economist.

II. EVIDENTIARY ISSUES

B&OCT further contends that the trial court erred in refusing several pieces of proffered evidence. The first challenge pertains to ultrasonic test reports of the spindle pins. Prior to the accident, Calumet Testing Services, Inc., and Conam Inspection performed the tests at the request of B&OCT as a part of B&OCT’s routine testing of the spindle pins. Calumet and Conam recorded their findings and submitted the reports to B&OCT. The trial court refused to admit the reports under the business record exception to the hearsay rule, reasoning that the reports were generated by the third parties, Calumet Testing Services, Inc., and Conam, and therefore, were not B&OCT’s business records.

B&OCT argues that the failure of the trial court to admit the reports into evidence allowed the jury to assume that B&OCT was negligent in failing to test the spindle pins and prevented B&OCT from defending its action on the basis that it took reasonable steps to provide a safe place to work.

Supreme Court Rule 236 provides for the admission of business records “made in the regular course of any business” as an exception to the hearsay rule. (107 Ill. 2d R. 236(a).) At issue is under what circumstances does a document, produced by a third party, become a business record of the party seeking to introduce it.

A number of Illinois cases have held that documents produced by third parties were inadmissible as business records. In each of these cases, the documents were not commissioned by the business seeking to introduce them into evidence, albeit the documents were retained in the business files. International Harvester Credit Corp. v. Helland (1986), 151 Ill. App. 3d 848, 503 N.E.2d 548 (minutes of board of director’s meeting of a company were not the business records of a second company); Pell v. Victor J. Andrew High School (1984), 123 Ill. App. 3d 423, 462 N.E.2d 858 (letter from a manufacturer was not the business record of a second manufacturer); Benford v. Chicago Transit Authority (1973), 9 Ill. App. 3d 875, 293 N.E.2d 496 (a note made by employee’s private physician was not the business record of employer).

By contrast, a business report generated by a third party has been held to be admissible when it was commissioned in the regular course of business of the party seeking to introduce it. Birch v. Township of Drummer (1985), 139 Ill. App. 3d 397, 487 N.E.2d 798 (survey of an engineering firm commissioned by county admissible as business record of the county).

The key consideration is the authority of the third party to act on the business’ behalf. Where a third party is authorized by a business to generate the record at issue, the record is of no use to the business unless it is accurate and, therefore, the record bears sufficient indicia of reliability to qualify as a business record under the hearsay rule. See also NLRB v. First Termite Control Co. (9th Cir. 1981), 646 F.2d 424; Fed. R. Evid. 803(6); M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.10, at 647 (5th ed. 1990).

Accordingly, we find that the trial court erred in its ruling that the ultrasonic test reports were inadmissible. The reports were the business records of B&OCT. Although the reports were generated by Calumet and Conam, the tests were performed at the direction of the railroad in the regular course of its business.

However, we believe that the failure to admit the ultrasonic testing reports was harmless error. The jury heard sufficient other testimony that the spindle pins were regularly tested at the direction of the railroad. B&OCT’s assistant foreman testified to the frequent inspection of the cranes and spindle pins. The railroad’s mechanical superintendent testified that the pins were ultrasonically tested at three-month intervals. Thus, the ultrasonic testing reports would have merely been cumulative evidence on the issue of B&OCT’s negligence.

B&OCT next objects to the trial court’s refusal to admit test results on the fractured spindle pin following the accident. The railroad’s metallurgist engineer tested the pin and issued a report which showed that the pin had not been manufactured according to specifications. The trial court denied admission of this report because the pin was not available to other parties prior to trial. B&OCT alleges that the pin was inadvertently destroyed, and since there was no evidence that the pin was intentionally destroyed, the trial court was obligated to allow the report into evidence. B&OCT also claims that the plaintiffs were not prejudiced by the loss of the pin.

We believe the trial court did not abuse its discretion in barring the admission of B&OCT’s metallurgist’s report. A trial court is not required to find that a party intentionally destroyed evidence in order for the court to bar testimony regarding that evidence. (See, e.g., Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 473 N.E.2d 444.) At the time the pin was lost, B&OCT was aware of an impending lawsuit. The trial court had discretion to conclude that the other parties in the suit were prejudiced by their inability to conduct tests of their own on this material piece of evidence.

Finally, B&OCT contends that the trial court erred in refusing to allow statements from Transpersonnel’s cross-complaint against Parsec. Transpersonnel sought contribution and indemnity from Parsec and alleged in its complaint that Parsec failed to instruct the crane operator and that the operator negligently operated the crane. B&OCT argues that these statements should have been read into evidence as admissions against interest against both Parsec and Trans-personnel. B&OCT alleges that the court’s failure to allow this evidence constitutes reversible error. Since the cross-complaint was ultimately dismissed, and Transpersonnel was granted a directed verdict, Parsec responded to this contention.

Since admissions are statements made by a party and Parsec did not make the statement at issue, we find no merit to B&OCT’s assertion that the statements contained in Transpersonnel’s pleading should have been read to the jury as an admission against Parsec.

III. PARSEC ISSUES

B&OCT filed a cross-claim against Parsec seeking contribution in the event the jury found B&OCT liable to the plaintiffs. After the jury began its deliberations, but before the jury returned its verdict, counsel for Parsec notified the court that Parsec and the plaintiffs had reached a settlement agreement of $150,000 and requested the court to issue a finding of good faith. The court considered the arguments of counsel and found that the settlement agreement was in good faith.

B&OCT now contends that the trial court erred in its finding. B&OCT argues that since the settlement did not occur until the end of the four-week trial, and the railroad was prejudiced by virtue of Parsec’s involvement in the trial, the settlement was in bad faith.

The Illinois Supreme Court has stated that to determine whether a settlement agreement has been entered into in good faith, courts must take into account the entire circumstances surrounding the settlement. (Ballweg v. City of Springfield (1986), 114 Ill. 2d 107, 499 N.E.2d 1373.) Once a preliminary showing of good faith is made, the burden shifts to the party opposing the settlement to prove by clear and convincing evidence that the settlement is invalid. (McKanna v. Duo-Fast Corp. (1987), 161 Ill. App. 3d 518, 515 N.E.2d 157.) The circuit court is allowed broad discretion in determining what is required for a finding of good faith. (Ruffino v. Hinze (1989), 181 Ill. App. 3d 827, 537 N.E.2d 871.) The trial court must often rely on its own experience to determine whether a settlement is proper since good or bad faith is a question of fact in each case. Wasmund v. Metropolitan Sanitary District of Greater Chicago (1985), 135 Ill. App. 3d 926, 482 N.E.2d 351.

At the time of settlement, the court in this case had presided over a four-week trial and, armed with a thorough understanding of the case, was in the best position to assess whether the parties were negotiating in good faith. There is no evidence to support a finding that the plaintiffs retained Parsec in the suit in order to impede the presentation of the railroad’s defense. Moreover, the record contains no evidence of collusion or fraudulent conduct by the parties to the settlement agreement. (See Lowe v. Norfolk & Western Ry. Co. (1984), 124 Ill. App. 3d 80, 463 N.E.2d 792.) The sole fact that the settlement was reached at the end of trial does not support a finding of collusion.

B&OCT has failed to establish, by clear and convincing evidence, that Parsec’s settlement with the plaintiffs was in bad faith. Thus, there is no basis here to disturb the circuit court’s finding of a “good faith” settlement; the dismissal of B&OCT’s cross-claim for contribution accordingly must be affirmed.

B&OCT’s second contention regarding Parsec addresses the fact that following Parsec’s settlement with the plaintiffs, and after the jury returned its verdict, the trial court entered judgment solely against B&OCT. B&OCT maintains that since the jury found that Parsec was negligent as well, the trial court erred in amending the substance of the verdict. B&OCT asserts that it is consequently entitled to a judgment notwithstanding the verdict because the judgment, as entered, is void and unenforceable.

We disagree. B&OCT relies on Anderson v. Smith (1980), 91 Ill. App. 3d 938, 415 N.E.2d 643, for the proposition that an amendment of a jury verdict is only permissible when the defect is one of form, rather than substance. B&OCT alleges that in the case at bar, the trial judge’s entry of a judgment solely against B&OCT constitutes a substantive, impermissible amendment.

However, as the Anderson case explains, an amendment of a jury verdict becomes substantive when the trial court changes the verdict in such a way as to no longer reflect the outcome which the jury determined. In other words, a trial judge cannot modify a jury’s verdict of “guilty” to “not guilty” because the judge believes that this is the outcome the jury should have reached.

In the case at bar, we believe that the judge’s entry of a verdict against B&OCT after Parsec had reached a settlement with the plaintiffs did not amount to a substantive amendment of the jury’s verdict. The Illinois Contribution Act dictates that once a jury verdict has been entered against two joint tortfeasors and the plaintiff settles with one of them, the nonsettling tortfeasor is entitled to a setoff in the amount of the settlement and is liable for the remaining judgment. (Ill. Rev. Stat. 1985, ch. 70, par. 302(c).) If the trial court had entered judgment against both B&OCT and Parsec, the court would have then entered a satisfaction of the judgment against Parsec in the amount of settlement and would have respectively modified the judgment against B&OCT to reflect the setoff. Thus, by entering judgment solely against B&OCT and later modifying the amount of damages to reflect the settlement, the end result was ultimately the same.

Finally, B&OCT challenges the court’s failure to enter judgment against Parsec pursuant to an indemnification agreement between Parsec and B&OCT. B&OCT argues that the court’s ruling should be reversed and the case remanded, with directions to enter judgment against Parsec for the entire verdict, attorney fees, and property damage.

The indemnification clause in the contract between Parsec and B&OCT provided:

Parsec agrees:
“(a) To indemnify, protect, defend and save harmless B&O from and against all loss, damages, costs and expenses, including attorneys’ fees, claims, demands and causes of actions on account of—
(i) Injury to or death of all persons (including, but not limited to, employees of the Contractor and the B&O), and loss of or damage to any property, including property of the B&O, caused by or resulting in any manner from any acts, omissions or negligence of the Contractor or any of the Contractor’s officers, agents or employees, in performing or failing to perform any of the services or duties on the part of the Contractor to be performed under this Agreement.”

B&OCT contends that the “clear and explicit” reference in the agreement to indemnification for claims for injuries to railroad employees establishes the intent of the parties to provide indemnification even in a case where B&OCT was concurrently liable under FELA.

It is well settled in Illinois that indemnity contracts are to be strictly construed. Since Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp. (1946), 395 Ill. 429, 70 N.E.2d 604, Illinois courts have consistently held that indemnification contracts will not be construed as indemnifying against a party’s own negligence unless such construction is required by clear and explicit language of the contract or such an intention is expressed in unequivocal terms. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 356 N.E.2d 93; Zadak v. Cannon (1974), 59 Ill. 2d 118, 319 N.E.2d 469.

We find that strict construction of the indemnity provision in Parsec’s contract with B&OCT can only lead us to conclude that Parsec agreed to indemnify B&OCT for damages arising from Parsec’s own negligence, and not that of B&OCT. The contract explicitly states that Parsec agreed to indemnify B&OCT for “any acts, omissions or negligence of the Contractor.” (Emphasis added.)

We further find that B&OCT’s reliance on Duffield v. Marra, Inc. (1988), 166 Ill. App. 3d 754, 520 N.E.2d 938, is misplaced. In Duffield, a railroad employee brought an action against a railroad under the Federal Employers’ Liability Act to recover for injuries sustained when he slipped while crossing the parking lot of a motel in which he was lodging during the course of employment for the railroad. The court upheld an indemnity agreement between the motel and the railroad which provided that the motel would indemnify the railroad for injuries arising out of the use and occupancy of their motel rooms by railroad employees. Unlike the case at bar, the employee’s injuries were actually caused by the acts or omissions of the motel. The court found that the railroad’s liability was “merely constructive or derivative,” arising under FELA for the railroad’s failure to inspect the motel premises. (Duffield, 166 Ill. App. 3d at 764, 520 N.E.2d at 945.) Thus, the court concluded, the railroad was not seeking to require the motel to “shoulder the liability for the Railroad’s negligence, but to take responsibility for its own wrongdoing.” Duffield, 166 Ill. App. 3d at 764, 520 N.E.2d at 945.

The jury’s finding of B&OCT’s negligence was not constructive or derivative. B&OCT was found negligent for its own acts and omissions which contributed to the accident, namely, its failure to repair potholes on the cement surfaces over which the cranes travelled, and its failure to replace and adequately inspect the crane’s spindle pins. B&OCT’s contention that Parsec should shoulder the liability for its own negligence, absent a clear expression of such an intent in the indemnification agreement, must fail.

IV. PARSEC v. PACECO

As we mentioned earlier in this opinion, Parsec filed a third-party action against Paceco, the manufacturer of the crane, seeking contribution for Parsec’s potential liability to the plaintiffs. After all of the parties presented their cases, the trial court severed the closing argument and jury deliberation in the third-party action. The jury returned a verdict in favor of Paceco, finding it was not liable to Parsec for any amount of contribution. Parsec appeals the jury’s finding as against the manifest weight of the evidence and further contends the jury verdict was the result of prejudice and bias, and the trial court erred in excluding certain evidence.

To begin, in response to Parsec’s appeal from the jury verdict, Paceco alleges that, as matter of law, Parsec is not entitled to contribution. Paceco bases its assertion on a statement in Parsec’s brief, namely, Parsec’s statement that it “paid its pro rata share of the judgment.”

Paceco contends that since contribution exists only in favor of a tortfeasor who has paid more than its pro rata share of the common liability, Parsec’s statement serves as a judicial admission precluding it from seeking contribution.

We find Paceco’s argument to be without merit. Parsec’s statement, upon which Paceco relies, must be read within the context of its intended meaning. Parsec was responding to B&OCT’s allegation of trial court error and arguing that B&OCT had not been prejudiced by the alleged error because Parsec had ultimately settled with the plaintiffs and “paid its pro rata share of the judgment.” Thus, when read within the context of its intended meaning, Parsec’s statement is not a judicial admission precluding Parsec’s action against Paceco for contribution.

Parsec’s initial contention is that the jury verdict in favor of Paceco was against the manifest weight of the evidence. Parsec argues the jury ignored evidence that Paceco failed to adequately design its spindle pins, failed to design a control system which would prevent the crane from moving with the lift beam in an inappropriate position, failed to warn users of the potential for crane collapse in the event of a pin failure or if the lift beam was in the wrong position, and failed to incorporate dead legs into the crane to prevent crane collapse in the event of a pin fracture.

A reviewing court will not set aside a jury verdict on the ground that it is contrary to the manifest weight of the evidence unless it is obvious that the jury arrived at the wrong conclusion. (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 413 N.E.2d 1345.) We believe the jury’s finding for Paceco was not against the manifest weight of the evidence for the reasons below.

The record reflects and the parties agree to the fact that the spindle pin which failed in the accident was not manufactured by Paceco, but rather was made by Calumet Machine and Welding Company according to specifications which B&OCT provided Calumet. Therefore, it cannot be said that Paceco’s failure to design a proper spindle pin was a proximate cause of the accident.

As for Paceco’s failure to design a control system to prevent the crane from moving with the lift beam in the wrong position, it is clear from the record the jury heard testimony that Paceco’s operating instructions, as well as B&OCT’s rules, specifically dictated the appropriate position for the lift beam. The record also establishes the jury heard testimony that Parsec’s employee was not operating the crane according to Paceco’s and B&OCT’s instructions. The evidence supports the jury’s finding that Parsec’s employee’s failure to follow instructions, and not Paceco’s failure to install a control system, contributed to the accident.

As for Paceco’s failure to warn of the potential for crane collapse, a duty to warn is not required where a product is not defectively designed or manufactured. (Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465.) There is no evidence in the record to support the proposition that the crane designed by Paceco, and purchased by B&OCT in 1967, was defectively designed or manufactured. On the contrary, the jury heard evidence that the crane had been manufactured according to industry standards. Therefore, as a matter of law, Paceco did not have a duty to warn of a potential for crane collapse.

Finally, Parsec contends the jury ignored evidence that Pace-co did not install “dead legs” onto its cranes which could have prevented the crane from tipping over. Paceco’s expert testified that it was not the prevailing industry custom at the time the crane was manufactured to install “dead legs” and the crane, as designed, complied with industry standards. There is also no evidence in the record to support a conclusion that if “dead legs” had been installed, the crane would not have collapsed.

Next, Parsec contends the trial court erred in granting Paceco’s motion in limine to exclude a photograph of B&OCT’s crane which replaced crane No. 283 after the accident. Because the replacement crane had “dead legs,” Parsec contends that the photograph would have assisted the jury to understand the nature of “dead legs,” the feasibility of their installation, and whether they would have prevented the crane from collapsing.

The decision whether to admit or exclude photographic evidence is reserved for the discretion of the trial judge. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 541 N.E.2d 643.) Furthermore, a photograph is admissible if it has a reasonable tendency to prove a material fact in issue and may be excluded if it is irrelevant, immaterial, or if its prejudicial nature clearly outweighs its probative value. Lindsay v. Appleby (1980), 91 Ill. App. 3d 705, 414 N.E.2d 885.

Parsec’s proffered photograph depicted a crane manufactured after the crane which was involved in the accident and by a company other than Paceco. We agree with the trial court that the fact that a different manufacturer installed “dead legs” on its crane was not relevant to the issue of Paceco’s negligence. Also, the jury had already seen a photograph of a crane with “dead legs” for purposes of illustration. Therefore, we believe the trial court did not abuse its discretion in disallowing the evidence as it was not relevant or material to the issue of Paceco’s negligence.

Finally, we address Parsec’s contention that the jury verdict resulted from prejudice and bias of the jurors after the court improperly severed the closing arguments and jury deliberations of the third-party action. Parsec alleges that because, after a four-week trial, the jury was instructed to return on a Monday to listen to separate closing arguments and deliberate, this “naturally resulted in a mind set against PARSEC.” Parsec essentially argues that the jury found in favor of Paceco because the jury blamed Parsec for forcing it to return the Monday following its decision for the plaintiffs.

A motion to sever is addressed to the sound discretion of the trial court and its decision "will not be disturbed absent an abuse thereof. (Fedt v. Oak Lawn Lodge, Inc. (1985), 132 Ill. App. 3d 1061, 478 N.E.2d 469.) Further, the order of presentation of evidence at trial rests within the discretion of the trial judge and an abuse of discretion is likely to arise only if the opportunity is denied to impeach witnesses, or to meet new points raised by the opponent. M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §611.1, at 396 (5th ed. 1990).

In the case at bar, we do not believe the trial judge abused his discretion by severing the closing arguments and the jury deliberation in the third-party action. Parsec’s assertion that the jury’s verdict was a result of bias and prejudice resulting from the severance is not supported by the evidence.

For the foregoing reasons, the judgment of the circuit court of Cook County on the principal complaint is remanded for a new trial on damages, and the judgment in the third-party action is affirmed.

Affirmed in part; reversed and remanded in part.

LINN and JOHNSON, JJ., concur.

      The plaintiffs settled with Calumet Machine, Inc., the manufacturer of the spindle pin, before trial. The plaintiffs also sued Transpersonnel, Inc., which supplied crane operators to Parsec, Inc. Transpersonnel was granted a directed verdict after a finding that Transpersonnel had no control of the crane operators once they were employed by Parsec.


author: PRESIDING JUSTICE LORENZ

text:
    PATRICIA LEE FRITCH, Plaintiff-Appellee, v. DENNIS R. FRITCH, Defendant-Appellant.
    First District (5th Division)
    No. 1—89—2824
    Opinion filed December 20, 1991.

      Egan & Trapp, of Chicago (Robert A. Egan and David W. Koivun, of counsel), for appellant.
    Robert Gonnella, and Onesto, Giglio, Meltreger & Associates, of Chicago, for appellee.
   PRESIDING JUSTICE LORENZ

delivered the opinion of the court:

Patricia Lee Fritch (plaintiff) filed suit against her former husband, Dennis R. Fritch (defendant), requesting child support arrear-ages and contribution for a child’s college expenses. After a hearing, the court found defendant liable for $19,930 in child support arrear-ages and for $16,800 in college expenses. The trial court also entered a contempt finding against defendant. Defendant appealed. We consider the following issues: (1) whether the trial court erred by entering a contempt finding against defendant as a means to enforce payment of the child support arrearages; (2) whether the trial court’s findings of child support arrearages were against the manifest weight of the evidence; (3) whether the trial court’s award for college expenses was an abuse of discretion; (4) whether the trial court erred finding defendant liable for the college expenses over defendant’s objection that he had a right to prior consultation; and (5) whether the trial court erred by not barring plaintiff’s claims pursuant to the doctrines of equitable estoppel and laches.

We affirm in part and reverse in part.

Relevant to this appeal are the following facts as disclosed by the record. Plaintiff and defendant were married in Chicago, Illinois, on December 18, 1965. Plaintiff and defendant were divorced on January 21, 1971. Three children were bom during the marriage: Denise Lee Fritch, Dennis Ray Fritch II, and Daniel Anthony Fritch. The youngest child reached the age of majority in October 1987.

During the pendency of the divorce proceeding, plaintiff and defendant entered into a written marital settlement agreement (Agreement) which was incorporated into the divorce judgment. The Agreement provided that plaintiff would have custody of the three children and that defendant would pay $64 per week in child support. Defendant was also responsible for the medical expenses of the children. The Agreement provided further that defendant would pay for the college and professional school expenses of the children including tuition, books, board, lodging, and various other fees and charges. Defendant’s obligation for college expenses was conditioned upon three factors: (1) the child has the desire and aptitude for college or professional school; (2) the education be limited to two or four years with certain exceptions; and (3) the defendant have the financial ability to pay the education expenses.

Between 1972 and 1979 plaintiff filed three petitions requesting increases in child support or alleging arrearages in child support payments. In 1975 the child support was, in fact, increased to $74 per week. The petition filed in 1979 never reached a final disposition.

On February 8, 1988, plaintiff filed the instant petition. In count I of the petition, plaintiff alleged arrearages in child support from 1978 to 1987 totaling $31,680. Plaintiff requested the court to find defendant in contempt for his willful failure to pay child support. In count II of the petition, plaintiff sought contribution toward the college expenses of one of the children, Denise. Defendant’s answer to count II admitted, in part, his financial ability to pay for the college expenses.

On October 7, 1988, the court held a hearing on the petition. The following is a summary of the testimony at the hearing.

Plaintiff testified that after her divorce in 1971, she lived in an apartment in Chicago with her three children for one year. Then, from 1972 to 1987, she lived in a house in Chicago with her mother, her stepfather, and her three children. Her mother owned the house.

Plaintiff testified that she received her last child support payment from defendant in April 1978. Prior to that point, defendant mailed money orders in the amounts of $64 or $10 as payment of child support. She never received money orders in the amount of $74.

Plaintiff did not see defendant from 1974 until the summer of 1979. One day in the summer of 1979, defendant arrived at the family’s house. The children talked to defendant, and plaintiff's mother invited defendant to stay for dinner, which he did. A few days later, defendant stopped by the house again to see the children. The children wanted to have their father around so plaintiff received her mother’s permission to have defendant move in. According to plaintiff, defendant first moved his furniture into the house and later, in January 1980, moved in himself. Plaintiff testified that defendant lived as a boarder. However, she admitted that from 1979 to 1984 she occasionally had sexual relations with defendant.

Plaintiff admitted that defendant contributed $40 per week for household expenses. However, there were periods in which defendant was absent from the home. Plaintiff produced her own notes which recorded the dates of defendant’s absences. The notes indicated absences from: April 1980 to July 1980; February 1981 to April 1981; April 1981 to February 1982 (sporadic absences); and February 1982 to October 1982. During some of the absences plaintiff knew where defendant resided, during other absences she did not. Plaintiff tolerated defendant’s returns after his absences because she thought it was important for her children to know their father.

Plaintiff admitted that the whole family went on a vacation to Colorado in April 1981. She, her mother, and defendant paid for the trip. When defense counsel reminded plaintiff that according to her notes defendant had been absent in April 1981, plaintiff admitted that her notes might be inaccurate. However, plaintiff insisted that defendant was absent for substantial periods.

Plaintiff testified that defendant did not pay child support while he lived with the family or during any of his absences. In April 1984 defendant moved out permanently and plaintiff did not know where defendant resided thereafter. Defendant did not pay child support at any time after April 1984. However, plaintiff admitted that she did receive some envelopes containing cash from defendant after April 1984. She explained that each envelope also contained a receipt from defendant’s union indicating that the cash was for repayment of family medical expenses.

Plaintiff had opened a checking account with a local bank in 1980. Plaintiff testified that any time she deposited money into the account she recorded the source of the money. Sources included paychecks from her employer and loans from both banks and individuals. Plaintiff also received money from defendant while they lived together because defendant did not have a checking account; he cashed his paychecks every Friday and gave the money to her and she deposited the money into her account. Defendant gave plaintiff a total of $17,142. However, plaintiff also kept a record of how she spent the money she deposited into the account. Plaintiff testified that she did not use any of the $17,142 for her or for the children’s benefit. Instead, her records indicated that she spent a total of $17,088 on behalf of defendant. For example, she used the money to make payments on defendant’s cars and to pay his union dues and credit card bills. However, the records indicated that at least 10 deposits from defendant were made at times when defendant was allegedly absent and some expenditures were made on his behalf after he left in 1984.

In 1985, plaintiff received a $15,000 loan from a bank. Plaintiff testified that the loan was used to pay Denise’s college expenses. She did not, however, have any cancelled checks to show that the money was used in this way. She explained it was difficult to find her papers because she had moved so often. Plaintiff told Denise that she would need defendant’s help to pay back the school loans. Denise was depen-dant on plaintiff during her entire time in college including the semester she spent abroad.

Plaintiff owned a Lincoln automobile which was destroyed in an accident in 1979. From 1979 to 1986, plaintiff drove a used Oldsmobile which defendant purchased. In 1986 the Oldsmobile was sold and plaintiff received the proceeds. Defendant and plaintiff together bought an older model (1957) Oldsmobile which was later sold. Plaintiff again received the proceeds ($1,500). Plaintiff denied that defendant sold another one of his cars and then used the proceeds to pay off her $5,000 bank loan.

Plaintiff testified that in 1971 she worked as a waitress, from 1977 to 1981 she owned a restaurant, and from 1982 to 1987 she worked part time as a bartender and waitress. In 1980 her restaurant burned down. She received $55,000 in insurance proceeds. She testified that she used $14,000 of the proceeds to satisfy a bank loan, she gave $2,000 to defendant’s parents, and she gave $5,000 to her mother. She used other amounts to pay off personal loans and to pay off one of defendant’s car loans. After all of her expenditures, $25,000 remained. She deposited $1,000 into a new checking account •with a bank in Evergreen Park. She then hid $24,000 in cash in her home. She testified that no one in the family knew about the hidden $24,000.

Plaintiff denied that she did not file a petition between 1979 and 1988 because defendant was, in fact, paying child support. She denied that she requested defendant to pay child support in cash after he moved out. She denied that she filed the instant petition against defendant because he did not have a checking account and had no records of having made the cash payments for child support after he moved out.

Finally, plaintiff testified that she was currently living in Las Vegas with her mother, her stepfather, and two of her children. She was currently unemployed.

Denise Fritch, one of the children, testified that she applied to the Art Institute of Chicago while a junior in high school, was accepted, and enrolled as a full-time student in September 1984. She did not apply to other schools. She graduated from the Art Institute in May 1988. She was employed during school at a flower shop earning college credits instead of a salary. Her grandmother gave her money for some of her school expenses, and she received other grants and scholarships which did not have to be repaid. However, her indebtedness for college expenses exceeded $29,600. She estimated that her school supplies cost $1,000 per semester for eight semesters. Denise produced the following exhibits as evidence of her outstanding indebtedness: (1) exhibit 6, Illinois guaranteed loans in the total principal amount of $11,500; (2) exhibit 7, Academic Financial Services Association loans in the amount of $1,660; (3) exhibit 8, a Butler loan of $900; and (4) National Direct Student loans of $2,330. Denise acknowledged that she received $8,000 from defendant. Denise knew that defendant obtained the money by cashing an IRA account which she and defendant had opened years earlier. She did not remember additional details about the account other than that she thought she was entitled to the entire amount in the account. She spent $6,000 of the $8,000 during her semester in Europe. The money was spent on miscellaneous expenses; the tuition for the semester in Europe was paid for by her grandfather and by loans. Denise had no documentation for her costs for supplies, her semester in Europe, or for the money she borrowed from individuals. Denise testified she currently lived in Las Vegas and was employed earning $170 per week. The job she left in Chicago paid $275 per week.

After Denise’s testimony, defendant moved for a directed verdict on count II concerning the college expenses. The court reserved ruling on the motion.

Defendant testified first as an adverse witness and then again in his case in chief. Because plaintiff’s petition requested child support arrearages from 1978 to 1987, plaintiff requested that defendant produce any receipts for child support during that time. Defendant produced carbon copies of currency exchange money order receipts for each week of 1978 totaling $4,167 and for various weeks in 1979 totaling $1,924. All of the individual receipts for 1979 and some for 1978 were in the amount of $74. Although the receipts did not bear plaintiff’s signatures indicating that the money orders had been cashed, defendant testified that either he or his parents delivered the money orders to plaintiff. Defendant’s parents were employed by the same currency exchange from which the money orders were purchased.

Defendant testified that he moved back in with plaintiff before Thanksgiving in 1979. He had no receipts for child support payments from the fall of 1979 through July 1984 and had no receipts for any periods subsequent to July 1984. Defendant testified that he made his child support payments during these periods in cash.

Defendant explained from 1980 to 1984 he cashed his weekly paychecks at Dominick’s or Jewel, kept $50, and gave the rest to plaintiff. Plaintiff deposited the money into what defendant believed to be a joint checking account. Defendant testified that some of the money was used to pay plaintiff’s bills, including $500 for a medical bill, $800 for a gas bill, and $1,200 for an electric bill. At some point he stopped contributing the $40 per week for household expenses but he could not remember the reason. Nonetheless, he continued giving plaintiff his cashed paychecks minus the $50. Plaintiff never asked him for child support from 1980 to 1984.

Defendant admitted that he was absent several times while living with plaintiff: once, for one night; once, for just over a week; and twice, for a couple of weeks. He moved out in 1984. The day he moved out, plaintiff told him she wanted $100 a week in cash, not money orders. Thereafter, he paid her $100 per week in cash, but occasionally missed several weeks. He left her the money in an envelope in her mailbox or left the money with the children. If conditions at work deteriorated, he gave her only $80 to $85. He also reduced the amount when his son, Dennis, moved out of the family home. He admitted that he stopped making payments permanently in March 1987 because plaintiff sold his 1957 Oldsmobile and kept the proceeds. He had no knowledge that plaintiff secretly kept $24,000 in the home.

Defendant produced his tax returns from 1984 to 1987 which indicated that he had been employed earning a gross yearly income ranging from $31,740 to $40,473.

Defendant testified that one of his cars, a Cadillac, was stolen and that he used the $6,000 in insurance proceeds to pay off a $5,000 bank note in plaintiff’s name. After plaintiff’s Lincoln was destroyed in an accident, he negotiated the purchase of the used Oldsmobile, made some of the payments, and thereafter plaintiff handled the finances. He signed the title over to her after he left the house.

Defendant admitted that he became aware that Denise was a student at the Art Institute in 1983 when she received a grant. He was also aware that Denise graduated in 1988. As to contribution towards Denise’s expenses, defendant testified that in 1987 he cashed an IRA account which was in his name and then contributed $8,000 toward Denise’s expenses. He opened the account in 1980 with $1,200 of his own money and $800 from Denise. By 1987 the account had matured into $14,000. Defendant withdrew the entire $14,000 and disposed of it as follows: he gave $8,000 to Denise for her college expenses; he paid $1,400 as a 10% penalty for early withdrawal; he paid $4,000 in taxes; and he kept $2,000. The entire $14,000 appeared on defendant’s 1987 tax return as income. Defendant testified that he cashed the IRA account pursuant to Denise’s request. He received only one other request, during a 1985 phone call from plaintiff, that he contribute to Denise’s college expenses.

Dennis Fritch II, defendant’s son, testified that he had been residing with defendant in Tinley Park, Illinois, since 1987. From 1980 to 1984 Dennis lived with plaintiff and defendant at the family house. Defendant was treated like a boarder at the house. Dennis testified that after defendant moved out in April 1984, he did not see defendant. However, Dennis testified that after 1984 he often met defendant on the street corner to pick up envelopes usually containing $80 in cash. The envelopes never contained a check. Dennis then gave the money to plaintiff. Dennis testified that the purpose of the money was to provide child support but he admitted that the money could have been used for medical expenses. In 1985 he retrieved envelopes with cash from the mailbox 30 to 40 times. Plaintiff complained to him if the envelopes were late. He did not see the envelopes regularly in 1986 or after because he had left for college. Defendant gave each child $10 weekly allowance and occasionally gave Dennis money to buy groceries while he lived with the family from 1979 to 1984. On cross-examination, Dennis admitted that he started college in 1985 and not 1986.

Mary Fritch, defendant’s mother, testified that she had visited her son’s family when he was living with plaintiff. She and her husband occasionally delivered an envelope with money when defendant could not do so. She was unsure whether she delivered any envelopes in 1986.

Raymond Fritch, defendant’s father, testified that he delivered envelopes to plaintiff’s house after defendant moved out and that the money was intended for child support. He delivered the envelopes on his way to work in the morning six to eight times.

Grace Rothan, plaintiff’s mother, testified in rebuttal that defendant lived with his family in her house for a four-year period. She did not think he had ever been absent for more than a year but the shortest absence had been a couple of months. Defendant contributed $40 per week for household expenses. She had no knowledge of any financial dealings between plaintiff and defendant. She was not aware that defendant left any money after he moved out, but she was usually at work from 7 a.m. to 7 p.m. or later. She loaned plaintiff money but she did not know that plaintiff received $55,000 from an insurance claim or that she kept $24,000 in the house. She never questioned plaintiff if she needed money.

Plaintiff also testified in rebuttal. She denied that her son Dennis had ever given her money for child support in 1984 or 1985. She did not recall defendant’s mother or father delivering any payments. She did admit to receiving some envelopes containing cash but claimed the money was used for medical expenses.

Finally, Denise Fritch testified again in rebuttal. She stated she had never picked up any child support money from defendant after he moved out, she was not aware of her brother Dennis having done so, and she was not aware that her grandparents had brought money to the house. Regarding defendant’s absences, she stated he left more than three times, the longest absence being a few months and the shortest being four weeks. From 1984 to 1987, she was in school and was gone each weekday and on some Saturdays.

After the completion of the testimony, the attorneys presented their closing arguments. A transcript of these arguments is not in the record.

On December 12, 1988, defendant filed a request for findings of fact. Defendant requested the court to find, in part, that plaintiff's prayer for arrearages for 1978 and 1979 was barred by the doctrines of equitable estoppel and laches.

On August 1, 1989, the court held a hearing to make its findings. The court divided the testimony as to count I into three periods and found that defendant owed child support as follows: (1) From April 1978 to January 1980 the court found defendant owed $1,850. After weighing the credibility of the testimony for this period, the court found that defendant paid child support for those weeks accounted for by defendant’s currency exchange money order receipts but did not pay the support for those weeks for which the receipts were missing. The court calculated the arrearages accordingly. (2) From January 1980 to April 1984 the court found defendant owed $7,000. The court credited defendant for having paid child support for 30 months, the period in which the court determined defendant lived with the family. The court based the credit on the evidence that defendant contributed $40 per week for household expenses and also gave his cashed paycheck minus $50 to plaintiff. However, the court found defendant did not pay child support during his absences. The court determined this period to be 22 months and calculated the arrearages accordingly. (3) From April 1984 to October 1987 the court found defendant owed $11,080. The court determined that defendant made no support payments after he moved out of the house. The court calculated the ar-rearages accordingly. However, the court reduced the arrearages for this period by the amount that plaintiff received from the proceeds of the sale of one of the automobiles.

As to count II, the court denied defendant’s pending motion for a directed verdict. The court found that Denise had in fact incurred debt for college expenses and that $29,644 remained outstanding. The court initially determined that defendant was liable for $24,000 or, stated otherwise, $6,000 per year for the four years of schooling. The court based this determination on all of the following factors: defendant made child support payments; plaintiff and Denise were unable to “keep the respondent informed as to what these costs were to see if there was a possibility of trying to maintain some kind of lid on the expenses”; and the income of defendant. However, the court credited defendant for having already contributed $7,200 pursuant to the IRA funds ($8,000 minus the $800 that Denise originally invested). Therefore, defendant owed a total amount of $16,800 for Denise’s college expenses.

Finally, the court entered a contempt finding against defendant as a means to enforce the payment of the child support arrearages.

The court entered a final order reflecting the above findings on August 21,1989.

Defendant filed a petition for reconsideration and new trial in which defendant attacked, in part, the finding as to the contribution for Denise’s college expenses. Defendant argued that there was no evidence that the college expenses were reasonable; no evidence that the monies Denise received for her expenses were actually paid to the Art Institute; and no evidence that the indebtedness to the Art Institute, if there was one, had not already been satisfied. The court responded that in light of the testimony concerning Denise’s education at the Art Institute “the court did have a sufficient basis to enter the judgment that it did.” The court denied defendant’s petition and continued the matter in light of the contempt finding.

Defendant filed this appeal.

Opinion

We first address the trial court’s finding of contempt against defendant. Contempt is not a proper means of enforcing payment of child support arrearages where the children have reached their majority. (Fox v. Fox (1978), 56 Ill. App. 3d 446, 371 N.E.2d 1254.) Here, defendant’s youngest child reached the age of majority before plaintiff filed the instant petition. Therefore, the trial court’s finding of contempt against defendant was improper and is reversed.

We next consider whether the trial court’s findings of child support arrearages against defendant were against the manifest weight of the evidence. Plaintiff’s petition alleged that defendant owed child support from 1978 to 1987. The trial court divided this time into three separate periods based on its determination when defendant did and did not live with his family. Those periods were: (1) April 1978 to January 1980; (2) January 1980 to April 1984; and (3) April 1984 to October 1987. We will analyze the evidence for each period.

For the period April 1978 to January 1980 the court found defendant owed $1,850. Here, the court found that defendant paid child support for those weeks accounted for by defendant’s currency exchange money order receipts but did not pay the support for those weeks for which the receipts were missing. The court also found that defendant did not move into the house prior to Thanksgiving, 1979, as he claimed. Therefore, defendant appeals the finding for this period to the extent that it did not credit him for the those weeks for which the receipts were missing and to the extent that it did not find that he moved into the house prior to Thanksgiving, 1979. We find no reason to disturb the trial court’s finding. Plaintiff and defendant each presented testimony affirming or denying these questions of fact. The court based its finding, not on an insufficiency of evidence, but on the credibility of the testimony presented. It is well established that a credibility determination should be left to the trier of fact because it alone is in the position to see the witnesses, observe their demeanor, and assess the relative credibility of witnesses where there is conflicting testimony on issues of fact. (In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 500 N.E.2d 612.) Therefore, we will not disturb the court’s finding.

For the period of January 1980 to April 1984 the court found arrearages totaling $7,000. The court credited defendant for having paid child support except for the periods during which he was absent from the family. The court found that period to be 22 months. Defendant argues that the court’s finding of 22 months was based on incompetent, conflicting and insufficient evidence. Although we agree that the evidence of defendant’s absences (plaintiff’s testimony, her notes, and the testimony of Denise and plaintiff’s mother) was sketchy, we do not find that it was insufficient for the court to make its determination. All of this evidence suggested that defendant had been absent for substantial periods. Furthermore, defendant admitted that he was absent for several periods but suggested that his longest absence lasted only a couple of weeks. Again, the court based its finding, not on an insufficiency of evidence, but on the credibility of the evidence presented. Therefore, we will not disturb the court’s finding. In re Marriage of Kaplan, 149 Ill. App. 3d 23, 500 N.E.2d 612.

However, even if the court properly determined an absence of 22 weeks, defendant argues that the court erred by not crediting him for having paid support while he was absent. Defendant bases this argument, in part, on the testimony that defendant gave his cashed paychecks amounting to $17,142 to plaintiff for deposit into her checking account. However, plaintiff specifically testified that the cashed paychecks were not used for child support. The money was either spent on medical expenses or on defendant’s own behalf. Plaintiff presented her checkbook records in support of this testimony. Again, the court based its finding, not on an insufficiency of evidence, but on the credibility of the evidence presented. Therefore, we will not disturb the court’s finding. In re Marriage of Kaplan, 149 Ill. App. 3d 23, 500 N.E.2d 612.

For the period April 1984 to October 1987 the court found arrearages totaling $11,080. The court found that defendant made no payments during this period but credited defendant with the proceeds of an automobile sale which plaintiff received. Defendant argues in his brief that this finding totally discounted the testimony of the defendant, and the corroborating testimony of his son, Dennis, and his parents, who all affirmed that defendant made weekly support payments in cash pursuant to plaintiff’s request. We do not find defendant’s argument persuasive. The corroborating testimony of Dennis and of defendant’s parents was not particularly persuasive. For example, although Dennis testified that he saw the envelopes with cash through 1986, he did not know if the cash was for repayment of medical expenses. He also admitted on cross-examination that he had left for college in 1985. Furthermore, plaintiff testified that she received no support payments after defendant moved out; and Denise and plaintiff’s mother testified that they were not aware that defendant made any payments after he moved out. Again, the court based its finding, not on an insufficiency of evidence, but on the credibility of the evidence presented. Therefore, we will not disturb the court’s finding. In re Marriage of Kaplan, 149 Ill. App. 3d 23, 500 N.E.2d 612.

We next consider whether the trial court’s award for college expenses was an abuse of discretion. We note, here, that the court’s initial finding of $24,000 in liability amounted to only $6,000 per year for the four years of schooling. We also note that the court then credited defendant with the $7,200 in IRA funds which represented the only contribution that defendant claims to have made. As to the evidentiary basis for the $29,600 in outstanding expenses, both Denise and plaintiff testified that they obtained loans which were used to pay for Denise’s college expenses. Denise authenticated her indebtedness, in part, with the following exhibits: exhibit 6, Illinois guaranteed loans in the total principal amount of $11,500; exhibit 7, Academic Financial Services Association loans in the amount of $1,660; exhibit 8, a Butler loan of $900; and exhibit 9, National Direct Student loans of $2,330. Also, there was no dispute that Denise graduated from the Art Institute. We hold that the trial court did not abuse its discretion in accepting the documentary evidence of the student loans and the testimony of the witnesses to conclude that educational expenses had been incurred, that these expenses needed to be repaid, and that defendant should contribute in the amount the trial court determined.

We next consider whether the trial court erred in finding defendant liable for the college expenses over defendant’s objection that he had a right to prior consultation. On this issue, defendant does not contest that the provisions of the marital settlement agreement did not require consultation. Rather, defendant argues that it was implicit in the Agreement that he be consulted as to the expenses for which he would be held liable. We are not persuaded by this argument because defendant testified that he, in fact, knew in advance that Denise had been accepted to the Art Institute. We are also not persuaded that the court’s finding amounted to unfairness or hardship to defendant. In defendant’s answer to count II of plaintiff’s petition he admitted that he had the financial ability to contribute to Denise’s college expenses. Defendant’s tax returns for the years 1984 to 1987 support this admission.

Although defendant raises several additional arguments concerning his liability for the college expenses, we deem it necessary to address only one. In section 513 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 513), the legislature addressed the issue of court-awarded payments for the education and maintenance of divorced couples’ children, whether of minor or majority ages. The section directs the court to consider relevant factors, including the financial resources of both parents, the standard of living the child would have enjoyed had the marriage not been dissolved, and the financial resources of the child. Here, defendant argues that the trial court violated section 513 because the court did not consider the ability of either plaintiff or Denise to contribute to these expenses. We do not agree. The parties entered a marital settlement agreement which did not list as a factor the ability of either plaintiff or Denise to contribute to the college expenses. The terms of the marital settlement agreement prevail and those factors which might have been relevant under section 513 cannot excuse defendant’s duties under the agreement. In re Marriage of Houston (1986), 150 Ill. App. 3d 608, 501 N.E.2d 1015.

Finally, we consider whether the trial court erred by not barring plaintiff’s claims pursuant to the doctrines of equitable estoppel and laches. We have analyzed the record and, although defendant raised the doctrines in his request for findings of fact, we can find no indication that defendant raised these doctrines at the hearing on plaintiff’s petition, during the hearing in which the court made its findings, or in his petition for reconsideration and new trial. Therefore, defendant waived these arguments. In re Marriage of Carlson (1981), 101 Ill. App. 3d 924, 428 N.E.2d 1005.

In summary, we affirm the trial court’s August 21, 1989, final order except to the finding of contempt against defendant which we reverse.

Affirmed in part; reversed in part.

MURRAY and McNULTY, JJ., concur.