author: JUSTICE INGLIS

text:
      In re MARRIAGE OF JANET PAGANO, Petitioner-Appellant, and THOMAS PAGANO, Respondent (Rinella & Rinella, Ltd., Appellee).
    Second District
    No. 2—88—0648
    Opinion filed April 13, 1989.

      Joanne P. Pitulla, of Chicago, for appellant.
    Rinella & Rinella, Ltd., of Chicago (Richard A. Rinella, of counsel), ap-pellee pro se.

   JUSTICE INGLIS

delivered the opinion of the court:

This is an appeal by petitioner, Janet Pagano, from the denial of a section 2 — 1401 petition to vacate an order for attorney fees awarded to Rinella & Rinella, Ltd. (Rinella). Ill. Rev. Stat. 1985, ch. 110, par. 2 — 1401 (formerly section 72 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 72)).

On appeal, petitioner contends that (1) the trial court lacked subject matter jurisdiction to enter fee awards in the absence of any pleading to seek such awards; (2) Rinella did not have standing in the absence of a fee petition; (3) petitioner was entitled to relief pursuant to section 2 — 1401 of the Code of Civil Procedure; (4). petitioner is entitled to a hearing on the reasonableness and necessity of attorney fees; (5) Rinella had a fiduciary duty to petitioner which prevented it from entering into agreed orders with petitioner for attorney fees; (6) the agreed orders were not final orders which could be recorded as liens against marital property; (7) the agreed orders cannot stand in absence of proof as to the reasonableness of the fees; (8) the agreed orders violated section 2 — 1301 of the Code of Civil Procedure; and (9) Rinella through its conduct has forfeited its right to collect attorney fees. We reverse and remand.

In her dissolution of marriage proceedings against Thomas Pa-gano, petitioner was represented by Rinella. On June 2, 1986, during the course of this proceeding, an agreed order was entered in the amount of $20,000 in favor of Rinella and against petitioner. That order provided:

“That Janet B. Pagano, having been advised of her right to a full and complete hearing with respect to her attorney’s fees under section 508 of the Illinois Marriage and Dissolution of Marriage Act, and having knowingly waived her right to said hearing, agrees that she shall pay RINELLA & RINELLA, LTD. the sum of TWENTY THOUSAND ($20,000) DOLLARS as and for additional fees shé has already paid said law firm.
2. That judgment is hereby awarded RINELLA & RINELLA against JANET P. PAGANO for said sum and said judgment shall be a lien against her interest in the residence located at 7 South 441 Donwood Drive, Naperville, Illinois, until paid in full.”

On May 18, 1987, again during the course of the proceedings and prior to any judgment of dissolution, a second agreed order with substantially the same language was entered in favor of Rinella for $30,000 against Janet B. Pagano. With regard to this order, the trial court queried petitioner as follows:

“THE COURT: On the record, Mrs. Pagano, your attorney has just handed me an order which bears your signature acknowledging that you owe the firm of Rinella & Rinella the sum of $30,000 for their fees in their representation of you in this cause.
MRS. PAGANO: Yes, your Honor.
THE COURT: And you signed that order, is that correct, Mrs. Pagano?
MRS. PAGANO: That’s correct.”

We note that the first order has never been released or modified. Therefore, after entry of the second order, Rinella had and still has a total of $50,000 in judgments against petitioner.

On July 27, 1987, William J. Stogsdill filed an appearance as additional counsel on behalf of petitioner.

On September 14, 1987, Rinella was granted leave to withdraw as attorney of record for petitioner.

After obtaining the two judgments totalling $50,000, Rinella filed a petition for attorney fees on September 21, 1987. This petition was extensive. It requested fees for two attorneys for a total of 235.10 hours with hourly fees ranging from $125 an hour to $200 an hour. The total fees requested were in the amount of $37,034.15, $700 of which had been paid. Rinella prayed for a judgment of $36,334.15 and for such other relief as equity required. Attached to the petition was a breakdown alleging that various work had been performed and the time spent on such work.

Judgment for dissolution of marriage was entered on September 21, 1987.

On December 2, 1987, a hearing was held on Rinella’s petition for attorney fees. Rinella did not present any evidence but stated that it was standing on the order entered on May 18, 1987, and on its petition for attorney fees. In ruling, the following colloquy occurred:

“THE COURT: Mr. Rinella, you give me no choice other than to state that the Court has previously entered an order and made a finding by the entry of that order relative to the reasonableness of the fees that were agreed to between you and your client for the sum of $30,000.00.
That order was entered in May of 1987. There has been no motion to vacate or set the order aside. The judgment has been entered in this case, is that correct?
MR. MARINACCIO: Yes, your Honor.
THE COURT: There has been no notice to appeal that I am aware of filed in this case, is that correct?
MR. RINELLA: No, there isn’t.
THE COURT: And more than 30 days have passed since judgment was entered.
MR. RINELLA: That’s correct.
THE COURT: But I can’t see, Mr. Rinella, without further testimony or evidence that I can’t award additional attorney’s fees.
MR. RINELLA: Well, Judge, we are standing on our petition.
THE COURT: The law is quite clear especially in the Second District, Mr. Rinella, that you have to set forth testimony and time sheets and a lot of other things.
MR. RINELLA: We do have that attached to our petition, Judge.
THE COURT: As I said before, I think I am correctly stating the law in the Second District as I understand it is that the mere filing of the petition and standing on that petition is not sufficient cause for the Court to award fees. There is a modification in the Second District.
MR. RINELLA: Well, we would ask leave to put the case on, Judge.
THE COURT: Well, that is what I asked you to begin with.
MR. RINELLA: It is discretionary with you whether or not—
THE COURT: I am not going to grant that. There is an order of Court. That order is to remain in effect.”

On December 2, 1987, an order was entered which (1) denied the petition for attorney fees from Thomas Pagano and further stated, “the order entered on May 18, 1987, awarding Rinella & Rinella fees of THIRTY THOUSAND ($30,000) DOLLARS shall be the total fees awarded to Rinella & Rinella on this cause.”

Also on December 2, 1987, William Stogsdill was granted leave to withdraw as attorney of record for petitioner.

On February 11, 1988, petitioner moved pursuant to section 2— 1401 to vacate the order entered on May 18, 1987, and to vacate the order entered on December 2,1987.

On March 7, 1988, Rinella filed a motion to strike the petition to vacate. On March 7, 1988, an order was entered which provided that attorney Joanne Pitulla was denied leave to represent petitioner solely as to the section 2 — 1401 petition and further provided that leave was granted to withdraw the section 2 — 1401 petition to vacate.

On April 15, 1988, petitioner filed a section 2 — 1401 petition to vacate the orders entered on May 30, 1986 (from the description of the order we take this to mean the order of June 2, 1986), May 18, 1987, and December 2, 1987. An affidavit in support of this petition was also filed on April 15, 1987. The section 2 — 1401 petition alleged, among other things, that on May 14, 1987, just prior to the commencement of trial of the dissolution action, Richard A. Rinella told petitioner that he would not represent her at the trial if she did not immediately agree to pay Rinella $30,000 and sign an order to that effect; that petitioner signed the order because of the threat; that in May 1986, Richard Rinella and Steven Russo, an attorney with the Rinella firm, told petitioner that she had to sign an agreed order for $20,000 in favor of Rinella as security for their fees and further told her that this was normal procedure and that she should not worry about the fees since her husband would be responsible as he had the ability to pay and she did not; that no itemized statements were submitted to petitioner; that no retainer agreement had been executed between petitioner and Rinella; that no hourly rates for the services of Rinella were ever disclosed to petitioner; and that on numerous occasions Richard Rinella and Steven Russo assured petitioner that they would seek the payment of their fees from respondent, Thomas Pa-gano.

Rinella subsequently filed a motion to strike and dismiss the section 2 — 1401 petition.

The trial court heard arguments regarding the section 2 — 1401 petition and thereafter granted Rinella’s motion to strike the petition finding that petitioner lacked due diligence.

We initially note that Rinella contends that petitioner is attempting to use a section 2 — 1401 petition as a substitute for appeal. The purpose of a section 2 — 1401 petition is to bring to the trial court’s attention facts not of record which if known by the trial court at the time judgment was entered would have prevented entry of the judgment, (In re Petition of Village of Kildeer to Annex Certain Property (1987), 162 Ill. App. 3d 262, 272, aff’d (1988), 124 Ill. 2d 533.) Petitioner’s section 2 — 1401 petition alleges such facts. We therefore find that it is not an attempt to save an appeal whose time had passed.

Petitioner initially contends that the trial court lacked subject matter jurisdiction to enter the agreed orders in the absence of any pleading seeking such awards. Petitioner contends that when awarding fees it must act within the authority vested in it by the Illinois Marriage and Dissolution of Marriage Act. According to petitioner, the trial court lacks jurisdiction to enter a fee award where there is no petition.

In response, Rinella contends that a petition was not required for subject matter jurisdiction because there was a fee petition filed prior to the December 2 order, and that with respect to the agreed order, subject matter jurisdiction arose out of the filing of the initial petition for dissolution of marriage which initially requested attorney fees.

A trial court’s jurisdiction is found in the Constitution (III. Const. 1970, art. VI, §9). (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 294.) There, jurisdiction of the circuit courts is extended to all justiciable matters. (Ill. Const. 1970, art. VI, §9; Bussey, 108 Ill. 2d at 294.) Section 508 of the Illinois Marriage and Dissolution of Marriage Act provides for the awarding of attorney fees. (III. Rev. Stat. 1985, ch. 40, par. 508.) Thus, it is evident that the awarding of attorney fees within a dissolution proceeding is a justiciable matter. The argument that a petition is required for an award of attorney fees goes to procedure and not subject matter jurisdiction. As the court noted in Bussey, procedural matters may be corrected in the trial court whereas questions of jurisdiction cannot. (Bussey, 108 Ill. 2d at 294-95.) Accordingly, we find that the trial court had subject matter jurisdiction to enter agreed orders, absent a petition for attorney fees.

Although we do not fin'd the filing of a fee petition to be a jurisdictional requirement, we do find it to be a procedural requirement of section 508. In this respect, we agree with the assessment of section 508 stated in In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 961:

“While section 508 permits judicial economy by eliminating the need for an attorney to sue his own client in a separate action to obtain a judgment for his attorney fee, we must not lose sight of the fact that it also places an attorney and his client in adversary positions during the course of court proceedings. Moreover, the situation presents a circumstance where the client is not represented by counsel, although he or she is being opposed by counsel on a matter in which a judgment may be entered against the client. Plainly, what is permitted by section 508 is unique in, and is otherwise inimical to, the legal profession.”

Because section 508 puts clients in a position where they are effectively before the court without representation, we are of the opinion that precautions must be taken to ensure that any rights of the client are not relinquished unknowingly and that any resulting attorney fee is fair. At a minimum, we find that prior to entering an award of attorney fees on behalf of an attorney against his client, the trial court must be presented with a petition for attorney fees and an itemization of the billing including the hourly cost, the time spent on the case, and an itemization of the tasks performed. In being presented with such a petition, the trial court will have a basis for ensuring that the fees awarded are fair. In absence of a petition for attorney fees, we find that entry of the agreed orders on June 2, 1986, and May 18, 1987, was error. We do not, however, reverse on this particular error as this is an appeal from the denial of a section 2 — 1401 petition, and the lack of a petition for attorney fees was procedural and, standing alone, not a basis for granting a section 2 — 1401 petition.

Petitioner next contends that Rinella did not have standing since the agreed orders were not entered pursuant to section 508. Petitioner reasons that an attorney only becomes a party to a dissolution for the purpose of seeking fees pursuant to section 508, that fees were not awarded pursuant to section 508, and, thus, Rinella had no standing.

Attorneys for litigants in a dissolution proceeding are considered as parties in interest in an action for attorney fees, and the attorney has standing in such cases to pursue an action himself for fees. (In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 893.) In the instant case, the agreed orders themselves purport to be entered pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act. Thus, we find that Rinella had standing.

The next two arguments of petitioner will be considered together since they are interrelated and their outcomes depend upon one another. These contentions are (1) that the trial court improperly denied petitioner’s section 2 — 1401 petition without an evidentiary hearing; and (2) that Rinella’s fiduciary duty to petitioner prevented it from entering into a valid agreed order for attorney fees.

In addressing the above issues, we first consider the attorney-client relationship. The relationship between an attorney and client is fiduciary in nature. (Durr v. Beatty (1986), 142 Ill. App. 3d 443, 449.) As noted by our supreme court, as the attorney-client relationship grows, a sense of trust develops which can be abused by an unscrupulous attorney. (Franciscan Sisters Health Care Corp. v. Dean (1983), 95 Ill. 2d 452, 465.) Therefore, where an attorney-client relationship exists, the utmost good faith must be exercised by the attorney in all dealings with the client (Goranson v. Solomonson (1940), 304 Ill. App. 80, 82-83), and all transactions arising out of an attorney-client relationship will be subject to the closest scrutiny (Durr, 142 Ill. App. 3d at 449). With these precepts in mind, the specific issues may now be addressed.

A section 2 — 1401 petition must set forth facts showing the existence of a meritorious defense and the exercise of due diligence in presenting both a defense to the original action and the petition to vacate. (Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 221.) However, “[a] showing of due diligence is not required when it is clear from all the circumstances that a party has procured an unconscionable advantage through the extraordinary use of a court process.” (Hiram Walker Distributing Co. v. Williams (1981), 99 Ill. App. 3d 878, 881.) In determining whether a section 2 — 1401 petition states grounds for relief, all well-pleaded facts in the petition must be taken as true. In re Petition of Village of Kildeer, 162 Ill. App. 3d at 274.

In the instant case, there are no allegations in the petition to show that petitioner acted with due diligence. Nonetheless, we find that the record indicates that petitioner was diligent.

In determining whether due diligence was exhibited, the court must be mindful of the facts and circumstances peculiar to the case including the conduct of the parties. In re Petition of Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 548.

Because there is a fiduciary relationship between an attorney and his client (Durr, 142 Ill. App. 3d at 449), we believe that under the circumstances in this case, petitioner had no reason to take action against her attorney while that relationship still existed. At the time of the relationship, it may be presumed that the client looks to the attorney for guidance relating to legal affairs. It cannot be expected that an attorney will advise a client to act swiftly against him. It would also ask too much of a client to expect the client to take action against her attorney while still under the attorney’s guidance. Thus, in the instant case, whether petitioner exhibited due diligence should not be measured from entry of the May 18 order, but from the time when the attorney-client relationship between Rinella and petitioner ceased which was on September 14, 1987. Yet, on September 21, 1987, shortly after the relationship ceased, Rinella petitioned for attorney fees, thereby putting the question at issue once again. There was then no determination on that petition until December 2, 1987. Since attorney fees were at issue until this time, we find that it would have appeared to petitioner that there was no need to raise the issue of attorney fees or file a section 2 — 1401 petition since the attorney fees had been put at issue by Rinella. Moreover, the May 18 order was not final and appealable, as the judgment for dissolution was not entered until September 21, 1987. Thus, under the circumstances, failure to set forth the allegations presented in the section 2 — 1401 petition on or prior to December 2, 1987, cannot be construed as lack of due diligence by petitioner. Consequently, we find that whether petitioner exhibited due diligence must be measured from December 2, 1987.

In the instant case, petitioner had substitute counsel at the hearing on December 2, 1987, and at the end of the hearing, that attorney was granted leave to withdraw. Petitioner was thus left without counsel.

It is not clear from the record when present counsel was retained. However, petitioner’s original section 2 — 1401 petition was filed on February 11, 1988. Leave to withdraw this petition was granted on March 7, 1988, and a new section 2 — 1401 petition was filed on April 15,1988.

We find that in light of the fact that petitioner was left without an attorney as of December 2, 1987, her original filing of a section 2— 1401 petition on February 11 (less than three months from the order of December 2, 1987) and her subsequent filing of another section 2— 1401 petition on April 15, 1988, showed due diligence. (See Chastain v. Chastain (1986), 149 Ill. App. 3d 579, 582 (filing of section 2 — 1401 motion within approximately three months showed due diligence where the petitioner changed attorneys before filing a section 2 — 1401 petition).) We thus find that the trial court abused its discretion in holding that petitioner had not shown due diligence. Yet, even if we did not find that petitioner exhibited due diligence, we would find that the court abused its discretion.

Because the section 2 — 1401 petition alleges impropriety by an attorney, which the courts should be peculiarly vigilant in guarding against (see Franciscan Sisters, 95 Ill. 2d at 464 (courts closely scrutinize allegations involving attorneys’ conduct with their clients)), a section 2 — 1401 petition hearing should have been granted even in the absence of due diligence. (See Smith, 114 Ill. 2d at 225 (section 2— 1401 involves the equitable powers of the court); Hiram Walker Distributing Co., 99 Ill. App. 3d at 881 (due diligence is not required where a party has procured a unconscionable advantage through the extraordinary use of a court process).) In addition to the allegations of impropriety, the record before the trial court indicated that Rinella had obtained an unconscionable advantage as it had obtained $50,000 in judgments against petitioner when its petition alleged that Rinella had earned only $37,034.15.

The next question before us is whether petitioner had a meritorious defense. As stated earlier in this opinion, the purpose of section 2 — 1401 is to bring to the trial court’s attention facts not of record which, if known by the trial court at the time judgment was entered, would have prevented entry of the judgment. (In re Petition of Village of Kildeer, 162 Ill. App. 3d at 272.) A motion to dismiss a section 2 — 1401 petition should not be granted unless it appears from the petition that no set of facts would entitle petitioner to relief. (See Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 280.) This question turns on the propriety of the agreed order entered on May 19, 1987, since the trial court based its order of December 2, 1987, on the May order. In this respect, petitioner’s main contention is that the fiduciary duty of Rinella prevented it from entering into a valid agreed order for attorney fees.

Where a transaction is entered into between an attorney and his client during the existence of that relationship and the attorney benefits from the transaction, it is presumed that the attorney exercised undue influence. (Klaskin v. Klepak (1989), 126 Ill. 2d 376, 386; see also In re Marriage of Bennett (1985), 131 Ill. App. 3d 1050, 1056 (a fee agreement which is modified to the attorney’s advantage during the attorney-client relationship is presumptively fraudulent).) Although the burden of persuasion is upon contestant (the client) to establish undue influence (Franciscan Sisters, 95 Ill. 2d at 464), the burden is upon the attorney to come forward with clear and convincing evidence that such contract was fair, equitable, just, and did not come about from undue influence. (Klaskin, 126 Ill. 2d at 386; Franciscan Sisters, 95 Ill. 2d at 465.) It must also be shown that the client had a full understanding of the facts and their legal consequences. (Drake v. Becker (1973), 14 Ill. App. 3d 690, 694.) In the absence of clear and convincing evidence to rebut the presumption, the presumption of undue influence prevails. (See Franciscan Sisters, 95 Ill. 2d at 463.) However, where clear and convincing proof is presented, the presumption vanishes (95 Ill. 2d at 462), and it is then for the trier of fact to determine whether there actually was undue influence (see 95 Ill. 2d at 466).

It is evident from Franciscan Sisters that the attorney-client relationship does not prevent an attorney from ever benefitting from a client. Franciscan Sisters indicates that the agreed orders were not void ab initio, as petitioner would have this court believe, but rather presumptively fraudulent. An attorney is not prohibited from dealing with his client so long as such dealings are open, fair, and honest. See In re Saladino (1978), 71 Ill. 2d 263, 270.

Because section 2 — 1401 petitions are a proper means for setting aside consent judgments obtained by fraud or coercion (see Thompson v. Thompson (1980), 91 Ill. App. 3d 943, 945), and because agreements between an attorney and client entered into during the attorney-client relationship are presumptively the product of undue influence (Klaskin, 126 Ill. 2d at 386), we find that the section 2 — 1401 petition to set aside the agreed orders between petitioner and her attorney, Rinella, should have been granted.

In making this finding, we recognize that, prior to entry of the agreed order in the instant case, the trial court questioned petitioner as to whether she had signed the agreement. However, no inquiry was made as to whether she signed it voluntarily. Even had she said it was signed voluntarily, such a fact would not defeat her section 2—1401 petition. At that time, petitioner was being represented by Rinella, and, according to her petition, which must be taken as true (In re Petition of Kildeer, 162 Ill. App. 3d at 274), she was under the influence of coercion. According to her petition, on May 14, 1987, just before entering the courtroom for her trial, Richard Rinella told petitioner that she had to sign the agreed order or he would not represent her at trial. We find this to be a matter not before the court which would have prevented the order from being entered. This court has previously recognized that a proveup hearing which would lead to a final judgment is the most critical stage of a dissolution proceeding and that a client is in no position to oppose her attorney at that time. (See In re Marriage of Bennett (1985), 131 Ill. App. 3d 1050, 1055; see also Drake, 14 Ill. App. 3d at 697 (it is improper for an attorney, as litigation is reaching its climax, to burden his client with the choice of paying an extra fee or terminating their relationship).) Moreover, the record indicates that two “agreed orders” had been entered at that time: one for $20,000 and the other for $30,000, for a total of $50,000. In light of the fact that Rinella’s fee petition and the attached statement showed that Rinella was only entitled to $37,034.15, $700 of which had been paid, it was evident from Rinella’s own pleadings that entry of the two agreed orders totaling $50,000 was improper. It is notable that with regard to the first order of June 2, 1986, for $20,000, Rinella claims that the validity of the order is not at bar and is not relevant to the hearing of December 2, 1987. According to Rinella, the order of June 2, 1986, is only relevant in that in it petitioner acknowledged that she owed Rinella $20,000 and that the order advised her of her rights to a hearing. However, as we have previously noted, the first order is relevant because it was never released or modified. Consequently, we find that petitioner alleged sufficient facts in her section 2 — 1401 petition to require a hearing, and the trial court’s order striking petitioner’s section 2 — 1401 petition was an abuse of discretion.

Petitioner further contends that fees were improperly awarded because there was no hearing on the reasonableness of the fees. In response, Rinella contends that petitioner waived her right to a hearing. However, petitioner contends that a party cannot waive her right to a hearing and in support thereof cites In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956.

Pitulla was another case in which Rinella sought attorney fees. In that case, no written retainer agreement was prepared and no attorney fee amount was stated. (141 Ill. App. 3d at 958.) Richard Rinella prepared a settlement agreement which provided that Rinella was to receive $8,500 as his fee in addition to $1,500 already paid as a retainer. (141 Ill. App. 3d at 958.) There was a prove up after which Pi-tulla requested an itemized bill from Rinella. (141 Ill. App. 3d at 958.) Rinella refused the request and told Pitulla that the judgment for dissolution would not be entered until she paid Rinella’s fee in full. (141 Ill. App. 3d at 958.) Pitulla thereafter paid the fee and later filed a section 2 — 1401 petition, which was denied.

In addressing the case, the court noted that section 508 is unique in that it places the attorney and the client in adversary roles during the course of the proceedings. (141 Ill. App. 3d at 961.) The court went on to state:

“As a result, we must be circumspect that the attorney’s right under the statute does not in any way encroach upon the rights of his client. In this regard, we must make sure that the client does not waive any right by his or her own admission or inaction.” (141 Ill. App. 3d at 961.)

The court concluded that the client’s right to an itemized statement of fees was not waived because the attorney fee was included in the judgment dissolving the marriage, or because the client signed the marital settlement agreement which was incorporated in the judgment for dissolution, or because the client assented to the amount of the attorney fee. (141 Ill. App. 3d at 961.) The court further found that if the attorney refuses to provide the client with an itemized statement of services, the client has a right to an evidentiary hearing to determine the reasonableness of the attorney fees pursuant to a section 2 — 1401 petition. 141 Ill. App. 3d 956.

As stated earlier in this opinion, we agree with the assessment of section 508 made by the court in Pituita and accordingly have found that the granting of fees pursuant to section 508 requires the filing of a petition. However, we find that a client may waive her right to a hearing under section 508.

In In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 6-7, this court held that the right to a hearing on attorney fees had been waived. The court stated:

“While Robert has questioned the portion of the court’s order granting Arlene $7,200 from a $17,209 marital savings account, the balance to be divided equally between the parties’ attorneys for attorney fees, we find no error. In effect, the ruling was one which required each spouse to pay the fees for his or her own attorney. There is no showing on the record before us that the fees were not reasonable. Moreover, Robert has waived his right to a hearing on attorney fees, as there is no indication that he ever requested such a hearing before the trial court.” 125 Ill. App. 3d at 6-7.

In In re Marriage of Bennett (131 Ill. App. 3d at 1054), this court followed its holding in Lord, stating:

“Where the trial court orders a spouse to pay the fees of his or her own attorney and there is no showing on the record that this fee was unreasonable and where the party never requested a hearing before the trial court, an objection to the fee is waived.” 131 Ill. App. 3d at 1054.

However, this court found that the trial court abused its discretion in awarding attorney fees where the trial court had no information upon which to base a finding of reasonableness and necessity. (131 Ill. App. 3d at 1054.) This court further found that the wife’s failure to object to the fee and her failure to request a special hearing did not constitute waiver because her attorney acknowledged that there had been no notice given to her of the attorney’s intention to seek entry of an order for attorney fees. (131 Ill. App. 3d at 1054-55.) In Bennett, the amount of the attorney fees was incorporated in the settlement agreement and judgment of dissolution. 131 Ill. App. 3d at 1052.

Both Bennett and Lord indicate that a party can waive her right to a hearing under section 508 (see also In re Marriage of Brand (1984), 123 Ill. App. 3d 1047, 1051), and we agree. Nevertheless, waiver is a limitation on the parties and not the court. (Bennett, 131 Ill. App. 3d at 1055.) Where it would be unjust to enforce orders as entered, a reviewing court may consider the issues despite the fact that they have been waived. (See 131 Ill. App. 3d at 1055.) Both Bennett and Lord indicate that if the record shows that the fees are unreasonable waiver should be disregarded. (See Bennett, 131 Ill. App. 3d at 1054; Lord, 125 Ill. App. 3d at 6.) We also note that Rule 2— 106 of the Code of Professional Responsibility provides that a lawyer shall not collect an excessive fee and that a fee is excessive when a “lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee.” (107 Ill. 2d R. 2 —106.) Therefore, as a matter of public policy, an attorney should not be able to retain a fee that is excessive. Any application of waiver to the contrary would thus be violative of public policy.

As we have noted before, two agreed orders were entered in the present case for a total of $50,000 even though Rinella’s own petition for fees indicated that only $37,034.15 had been earned. While it may have been the intent of Rinella to have the second agreed order supersede the first, that is not clear from the second order. Consequently, we find that both orders must be vacated since the two combined were excessive. Additionally, we find that since the order of December 2, 1987, was based on the second agreed order it too must be vacated. Consequently, we find that the section 2 — 1401 petition should have been granted. Thus, we reverse and remand for a hearing on attorney fees pursuant to section 508.

Because of our foregoing disposition, we find it unnecessary to address petitioner’s contention that the agreed orders violated section 2 — 1301 of the Code of Civil Procedure and were not final and thus could not be liens. We further find that it would be premature for us to address petitioner’s contention that Rinella forfeited its fees because it breached its fiduciary duty since no such factual determination has been made as of yet.

Finally, we find it incumbent upon ourselves to recommend that similar orders between attorneys and their clients, especially those relating to attorney fees, be avoided in the future. In Franciscan Sisters, our supreme court noted it is usually unnecessary for lawyers to prepare documents under which they benefit, as there is almost always a third party available who can intervene and provide a disinterested perspective. (Franciscan Sisters, 95 Ill. 2d at 465.) This is certainly the case where the issue is attorney fees in actions for dissolution of marriage, as section 508 provides a procedure whereby a court is to act as the disinterested party. (See Ill. Rev. Stat. 1985, ch. 40, par. 508.) Moreover, the fact that agreements entered into between an attorney and his client during the course of the attorney-client relationship are presumed to be the product of undue influence means that such agreements are easily subject to attack. Thus, rather than being efficient and expedient, as are most agreed orders, they appear to invite unneeded proceedings. In closing, we also note that attorneys should make clients aware of their hourly fees at the outset. It was stated in Pitulla that Rinella did not so inform the client (Pitulla, 141 Ill. App. 3d at 958), and in the present case a similar allegation has been made. The effect of failure to so inform a client is not presently at issue, and we therefore do not address it.

For the foregoing reasons, we reverse the decision of the trial court and remand for a hearing on attorney fees pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 508).

Reversed and remanded.

LINDBERG and REINHARD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF GORDON HUGH ENGELBACH, Petitioner-Appellee, and DONNA YOUNG ENGELBACH, Respondent-Appellant.
    Second District
    No. 2—88—0699
    Opinion filed April 12, 1989.

      Virginia Kenney Micheli, of Wheaton, for appellant.
    Justin J. Tedrowe, of Woodridge, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Donna Engelbach, n/k/a Donna Matthews, appeals from an order of the circuit court of DuPage County modifying a judgment of dissolution of marriage and transferring the custody of her two minor children to petitioner, Gordon Engelbach. Respondent contends that: (1) the trial court erred by admitting evidence that her new husband was convicted of aggravated criminal sexual abuse and criminal sexual assault; (2) the trial court erred in prohibiting her from offering evidence to rebut the facts underlying those convictions; and (3) the trial court’s decision was against the manifest weight of the evidence. We affirm.

Petitioner and respondent were married on August 12, 1972, and had two children, Sara, now nine years old, and Christopher, now seven years old. On February 19, 1986, petitioner and respondent obtained a dissolution of their marriage. Pursuant to the terms of a written separation agreement incorporated within the judgment of dissolution, respondent was granted custody of the children.

Prior to the dissolution of her marriage with petitioner, respondent established a relationship with David Matthews. On February 2, 1987, Matthews was convicted of aggravated criminal sexual abuse and criminal sexual assault involving his own minor daughter. The convictions were based on indictments alleging that Matthews touched his daughter’s vagina for the purpose of his own sexual arousal and further engaged in an act of sexual penetration with his daughter by placing his penis in her vagina. Matthews was convicted of both charges after he stipulated to the facts underlying those charges. Matthews was sentenced to serve three years’ probation with eight months’ periodic imprisonment in a work release program. Matthews was also ordered to attend counseling and was prohibited from contacting the victim without court approval.

On February 18, 1987, petitioner filed an emergency motion seeking to enjoin respondent from allowing Matthews to be in the presence of the Engelbach children. Petitioner’s motion referred to Matthews’ criminal convictions as a basis for the relief sought and was supported by certified copies of the indictments and judgment orders.

On March 30, 1987, petitioner and respondent entered into an agreed order providing that Matthews would only be allowed to be with the children in the presence of another adult. That order further set the cause for a hearing on July 15, 1987. On that date, respondent filed her answer to petitioner’s request to admit facts and acknowledged that Matthews had been convicted of aggravated criminal sexual abuse and criminal sexual assault. The trial court continued the agreed order to July 1988.

On May 10, 1988, petitioner filed an emergency motion for temporary custody, child support, and termination of maintenance. Petitioner’s motion alleged that respondent and Matthews were married on May 7, 1988. That motion further stated that it was in the best interests of the children for them to be placed in the temporary custody of petitioner. Petitioner also filed a motion seeking permanent custody and child support. The trial court denied petitioner’s motion for temporary custody, terminated maintenance, and set the cause for a hearing on June 20, 1988.

On June 20, 1988, the trial court held a hearing on petitioner’s motion for a change of custody. The hearing began with the parties arguing cross-motions in limine. Petitioner sought to bar respondent from introducing any evidence attacking Matthews’ criminal convictions. Petitioner noted that respondent had previously admitted knowledge of the criminal convictions in her answer to petitioner’s request to admit facts. Respondent argued- that the convictions could not be used against her since she was not the defendant in the criminal proceedings, and, in any event, she was entitled to rebut that evidence. The court then engaged the parties’ counsel in the following colloquy:

“THE COURT: Was he convicted as a result of a plea of guilty or as a result of trial?
MS. MICHELI [Respondent’s counsel]: There was a stipulation.
MR. TEDROWE [Petitioner’s counsel]: Stipulation to the facts underlying. There were 12 indictments. He stipulated to the facts, represented by Attorney Thomas Newman, stipulated to the facts as to a Class X felony and a Class 1 felony, finding of conviction.
MS. MICHELI: I beg your pardon, sir. Not a Class X felony.
THE COURT: Well, I really don’t care what the penalty in the criminal case is. I want to know whether or not he pled guilty to the offenses.
MS. MICHELI: Judge, I have a transcript. And under the cases that say these types of stipulations are tantamount to pleas of guilty, he stipulated.
THE COURT: Okay.
MS. MICHELI: But all of the plea language is in there.
THE COURT: And he stipulated, and then he did not present any evidence?
MS. MICHELI: That’s correct.
THE COURT: He was found guilty based on his statements?
MS. MICHELI: That’s correct.
THE COURT: And his admission of the statement of fact?
MS. MICHELI: That’s correct.”

The trial court granted petitioner’s motion in limine, stating:

“Then I will allow the fact that he’s been convicted as a result of that procedure in [sic]. And I am not going to go into anything behind that.
I don’t want to hear the facts of the circumstances. And we are not going to allow anyone to rebut it. The fact is he pled guilty to those types of offenses, and that’s all that’s germane to this proceeding.”

Respondent did not make an offer of proof identifying the evidence she would have presented to rebut Matthews’ convictions, and in fact stated that she was “not interested in presenting evidence about [Matthews’] criminal trial,” but rather sought only to present evidence about Matthews generally. The trial court held that she would be permitted to do so.

Respondent’s motion in limine sought to bar introduction of the criminal convictions. Respondent did not argue this motion and noted instead that the court’s ruling on petitioner’s motion in limine effectively denied her that relief. Respondent also moved to prohibit petitioner’s expert from basing her opinion on certain interview reports which were not admissible as evidence. The trial court denied respondent’s motion and proceeded with the hearing.

Petitioner testified that he was 42 years old, single, and lived in a single-family residence in Downers Grove, Illinois. Petitioner further testified that he was employed as a high school teacher and earned approximately $51,000 per year. Petitioner stated that he had a “loving and strong” relationship with his children and exercised regular visitation with them. Petitioner testified that while he considered respondent to be a fit parent, he was nonetheless concerned about the entry of Matthews into her family. Specifically, petitioner stated that he initiated this proceeding because Matthews had been convicted of two sex offenses involving his own minor daughter from a previous marriage. Petitioner thereafter described the effect a change in custody would have on the children and specifically outlined his plans for providing for their academic, religious, and social welfare. On cross-examination, petitioner stated that he knew about the allegations against Matthews and of Matthews’ relationship with respondent prior to signing the marital separation agreement granting respondent sole custody of the children. Petitioner stated that he nonetheless gave Matthews “every opportunity at that time to be innocent.” Petitioner further testified that he did not commence this action until after Matthews was convicted.

Respondent testified as an adverse witness and stated that Matthews moved in with her and the children when he was discharged from the work release program. Respondent further testified that she and Matthews were married on May 7, 1988. Respondent stated that she had complied with the corut order prohibiting Matthews from being alone with the children. Respondent further stated that she did not believe Matthews posed any risk to the children. Respondent also testified that petitioner was a good father and a fit parent.

Shirley Robinson, a social worker experienced in child sexual abuse, testified as an expert witness for petitioner. Robinson testified that she reviewed the psychological reports, indictments, case findings, and certain medical reports in evaluating whether Matthews was a danger to the Engelbach children. Robinson concluded that the children were in "some danger of being molested when living with Mr. Matthews.” Robinson testified that she was particularly concerned because Matthews had not received treatment for his sexually abusive behavior. Robinson also testified that the danger was further significant because respondent did not believe that Matthews committed the crimes for which he was convicted. Robinson noted that respondent’s attitude would make her less likely to watch for improper contact between Matthews and the children. On cross-examination, Robinson testified that while several psychologists found that Matthews was not sexually dangerous, she disagreed -with those conclusions because there was no indication in their assessments that Matthews received any treatment for the sex offenses.

Respondent introduced the testimony of two clinical psychologists who interviewed Matthews. Dr. Katie Gienapp testified that she met with Matthews in April 1987 to evaluate the best interests of his children regarding visitation. Dr. Gienapp stated that she continued seeing Matthews and counseled him as a sex offender. According to Dr. Gienapp, Matthews did not pose any risk to the Engelbach children. In addition, Dr. Roger Hatcher interviewed Matthews to evaluate the danger Matthews posed to the Engelbach children. Dr. Hatcher concluded that Matthews did not pose a risk to the Engelbach children. Dr. Hatcher also testified that Matthews did not understand what he was stipulating to in the prior criminal proceedings. A third clinical psychologist, Dr. Maria Nucci, testified that Matthews had a warm, close relationship with the Engelbach children. Dr. Nucci further testified that she found no evidence of an improper sexual relationship between Matthews and the children.

Respondent testified on her own behalf and characterized her relationship with the children as “loving and trusting.” Respondent further testified that she gave the children instructions regarding improper sexual touching and frequently asked them questions about any improper activity. Respondent went on to describe her relationship with the children and expressed reservations about petitioner’s ability to provide adequate supervision. Respondent also testified that if the court granted custody to petitioner, she and Matthews would have their marriage annulled or get a divorce.

The trial court ruled that it was in the best interests of the children that custody be transferred to petitioner. The court specifically found that Matthews’ presence in respondent’s home posed a clear and present danger to the well-being of the children given the fact that he had been convicted of two felony sex offenses. The trial court entered a written order in accordance with that ruling and further set a visitation schedule for respondent. That order also provided that the children should not be left alone with Matthews. Respondent brought this timely appeal.

Before reaching the merits of this appeal, we note that respondent’s brief is in violation of Supreme Court Rule 341(e)(4)(ii) (122 Ill. 2d R. 341(e)(4)(ii)). That rule, which became effective on August 1, 1988, provides that in all cases appealed to the appellate court, the appellant shall set forth a brief statement or explanation of the basis for the appeal under the heading “Jurisdiction.” (122 Ill. 2d R. 341(e)(4)(ii).) Respondent’s brief was filed on November 16, 1988, but does not contain a jurisdictional statement as required by Supreme Court Rule 341(e)(4)(ii). While failure to comply with our supreme court rules can result in the waiver of issues on appeal, we have elected not to impose that sanction here given the relative youth of the new rule. However, future violations of this rule will be met with appropriate sanctions.

As the instant action involves a post-dissolution modification of custody, it falls under section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610). Section 610(b) of the Act provides, in pertinent part:

“The court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, *** and that the modification is necessary to serve the best interest of the child.” (Ill. Rev. Stat. 1987, ch. 40, par. 610(b).)

This statute reflects a legislative presumption in favor of the custodial parent in order to promote stability and continuity in the child’s environment. (In re Marriage of Eldert (1987), 158 Ill. App. 3d 798, 805.) Thus, custody cannot be modified unless the court finds a material change in circumstances of the child or the child’s custodian and'that transferring custody is in the child’s best interests. (158 Ill. App. 3d at 805.) The standard of review for modification of a child custody order after a dissolution judgment becomes final is whether the modification is against the manifest weight of the evidence or constitutes an abuse of discretion. 158 Ill. App. 3d at 805; In re Marriage of Kading (1986), 150 Ill. App. 3d 623, 631.

Respondent first contends that the trial court erred in admitting evidence of Matthews’ criminal convictions. Respondent acknowledges that as a general rule, evidence of a final judgment entered after a trial or upon a plea of guilty is admissible against the convicted person in a subsequent civil suit. However, respondent argues that she was a third party to the criminal proceedings which resulted in Matthews’ convictions and, as such, she should not be bound by those convictions in this civil proceeding to which Matthews is not a party. We disagree.

In support of her position, respondent cites this court’s decision in Smith v. Andrews (1964), 54 Ill. App. 2d 51, 62, wherein the defendant’s prior criminal convictions for robbery and forcible rape were admitted as evidence against him in a subsequent civil proceeding to terminate his parental rights on the grounds of depravity. In Smith, the defendant argued that proof of his prior convictions was inadmissible to prove that he actually committed the crimes of which he was convicted. (54 Ill. App. 2d at 57.) The court noted that the defendant pleaded guilty to the robbery charge and, as such, his conviction based on a guilty plea constituted a judicial admission which could be used against him in a subsequent civil proceeding as evidence that he actually committed the robbery. (54 Ill. App. 2d at 57-58.) However, the court went on to address whether his conviction for forcible rape following a trial could be used against him in the same manner. (54 Ill. App. 2d at 58.) The court noted that the defendant’s rights were extensively protected in the criminal proceeding and further noted that the standard of proof in that proceeding was much higher than in the subsequent civil proceeding. (54 Ill. App. 2d at 60.) Thus, the court concluded that the differences in procedure weighed more in favor of admissibility than against it. (54 Ill. App. 2d at 61.) The court held that the better rule in such a case was to allow evidence of a prior conviction to be introduced against the convicted person as prima facie evidence in a subsequent civil proceeding that the person did in fact commit the crime for which he was convicted. 54 Ill. App. 2d at 61; see also Thornton v. Paul (1978), 74 Ill. 2d 132, 151; In re McMullen (1975), 29 Ill. App. 3d 284, 287; E. Cleary & M. Graham, Handbook of Illinois Evidence §803.21, at 590-91 (4th ed. 1984).

In the instant action, respondent asserts that, because she was not the person convicted in the prior criminal proceeding, those convictions should not be used against her in this case. Indeed, in announcing the rule set forth above, the Smith court expressly stated that it was not deciding a case where one party offers to prove that someone not a party to the civil suit was convicted in a criminal case. (Smith, 54 Ill. App. 2d at 59.) In such an event, the court noted, the party against whom the judgment was offered, having not been a party to the criminal case, should not be bound by anything which occurred in that case. (54 Ill. App. 2d at 59.) However, while we recognize that the admissibility of a criminal conviction in a subsequent civil proceeding has been limited to use against the party convicted, we nonetheless note that such a strict application of the rule in a child custody proceeding following one parent’s remarriage would bar introduction of any evidence of the new spouse’s criminal record. Such a result in a proceeding primarily concerned with the best interests of the children ignores the purpose of the proceeding and is contrary to common sense.

Section 610(b) of the Act provides that the changed circumstances of the child or child’s custodian which affect the best interests of the child shall be ground for modifying custody. (Ill. Rev. Stat. 1987, ch. 40, par. 610(b).) A change in circumstances justifying a modification of child custody need not relate solely to the custodial parent, and the remarriage of the custodial parent and subsequent stability of environment are important considerations. (In re Marriage of Gunter (1981), 93 Ill. App. 3d 1043, 1049; Kjellesvik v. Shannon (1976), 41 Ill. App. 3d 674, 677.) Modification of custody may be proper where the remarriage of the custodial parent affects the welfare of the child. (Swanson v. Swanson (1971), 1 Ill. App. 3d 753, 755.) Because the remarriage of the custodial parent results in the children living and associating with the new spouse, evidence bearing on the character of that person is relevant in a custody proceeding. (See Serotzke v. Serotzke (1948), 335 Ill. App. 485, 490; see also Johnson v. Johnson (1975), 34 Ill. App. 3d 356, 368; Maroney v. Maroney (1969), 109 Ill. App. 2d 162, 170.) Accordingly, courts have often granted petitions for modification of custody where the custodial parent remarried someone of questionable character. See In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498-500 (father granted custody where evidence indicated that mother’s new spouse was frequently unemployed and had emotional problems); In re Marriage of Kading (1986), 150 Ill. App. 3d 623, 632 (father granted custody where evidence indicated that mother’s new spouse spent time in jail for molesting his 10-year-old daughter from a previous marriage); In re Marriage of Gunter, 93 Ill. App. 3d at 1049 (father granted custody where evidence indicated that mother’s new spouse had a drinking problem and was mentally and physically abusive); Kjellesvik, 41 Ill. App. 3d at 678 (father granted custody where evidence indicated that mother’s new spouse suffered from mental problems); Maroney, 109 Ill. App. 2d at 171-72 (father granted custody where evidence indicated that mother’s new spouse had been involved in a crime involving moral turpitude and was also receiving psychiatric counseling); Day v. Day (1961), 33 Ill. App. 2d 247, 251-52 (father granted custody where evidence indicated that mother’s new spouse was convicted of taking indecent liberties with child, and where mother allowed new spouse to have contact with children after he admitted to improper contacts); Serotzke, 335 Ill. App. at 490 (father granted custody where evidence indicated that mother’s new spouse was a convicted felon and married the mother while he was still married to another woman).

In the instant action, the basis for the trial court’s judgment transferring custody of the children to petitioner was respondent’s remarriage to Matthews, a convicted sex offender of children. While we do not consider respondent’s marriage to an ex-convict sufficient as a matter of law to grant petitioner’s motion for custody (see Van Buskirk v. Van Buskirk (1974), 19 Ill. App. 3d 647) (abstract of decision), we are nonetheless of the opinion that inquiry into the nature of his prior criminal record is proper. (See In re Marriage of Kading, 150 Ill. App. 3d at 632; Johnson, 34 Ill. App. 3d at 367-68; Maroney, 109 Ill. App. 2d at 170; Serotzke, 335 Ill. App. at 490.) Similarly, in Maroney, the court rejected the mother’s argument that the trial court erred by allowing the father’s attorney to cross-examine her and her new spouse concerning a crime committed by her new spouse which involved moral turpitude. (Maroney, 109 Ill. App. 2d at 170.) In so ruling, the court noted that the cases cited by the mother did not involve child custody hearings. (109 Ill. App. 2d at 170.) Subsequently, in Johnson, the court addressed the propriety of allowing the father to prove up the mother’s new spouse’s criminal record by having a witness read from a report of the Federal Bureau of Investigation. (Johnson, 34 Ill. App. 3d at 367-68.) The court concluded that while introduction of the evidence in that manner constituted hearsay, such evidence was relevant and admissible if properly presented. 34 Ill. App. 3d at 368.

Accordingly, we hold that the trial court did not err in allowing petitioner to introduce evidence of Matthews’ prior convictions in this child custody proceeding. In so ruling, we are especially cognizant that the trial court was primarily concerned with the best interests of the children. Matthews’ relationship with the children would place him in a special position of trust and dominance, particularly while he is residing with the children. Where the custodial parent remarries and brings the new spouse into the home with the children, attention must necessarily focus on the character of the new spouse. To say that such attention may not extend to consideration of the new spouse’s criminal convictions because to do so would amount to holding them against a third party is to ignore the primary focus of the proceedings, the safety of the children, and common sense.

Respondent next contends that the trial court erred in ruling that she could not rebut the evidence of Matthews’ criminal convictions. We agree.

In Smith v. Andrews (1964), 54 Ill. App. 2d 51, 61, the court noted that although evidence of a defendant’s prior criminal conviction after a trial could be used against him in a subsequent civil proceeding as prima facie evidence that he committed the crime of which he was convicted, equity nonetheless required that the defendant be afforded the opportunity to rebut that evidence. Subsequently, in In re McMullen (1975), 29 Ill. App. 3d 284, 287-88, the court concluded that the defendant in a termination of parental rights case was properly allowed to explain the circumstances surrounding his plea of guilty to battery in a prior criminal proceeding.

We agree with respondent that since the defendant in a civil case is allowed to present evidence concerning his conviction in a prior criminal proceeding, such a rule should be equally applicable to a third party against whom another's criminal conviction is used. Here, the trial court expressly ruled that respondent could not present any evidence regarding the criminal proceedings resulting in Matthews’ convictions. While we believe that the trial court erred in so restricting respondent’s proofs, we do not believe that the error, at least as represented on this record, constitutes a basis for reversal.

First, although the trial court barred respondent from introducing any evidence rebutting Matthews’ criminal convictions, respondent failed to make an offer of proof concerning what that evidence might include. It is well established that a party is not entitled to a reversal on the ground that evidence was improperly excluded without showing what the evidence would have been. (Scoggin v. Rochelle Community Hospital (1988), 176 Ill. App. 3d 648, 651.) In such a case, an offer of proof may be necessary to assess both the admissibility of the proffered evidence and the prejudice resulting from its exclusion. (176 Ill. App. 3d at 651.) Absent an offer of proof in the instant action, this court is without any basis in the record to determine whether the trial court’s ruling was prejudicial.

Second, and perhaps most telling, it appears from this record that respondent was not in fact precluded from introducing any evidence that she intended to introduce. In the extensive colloquy between the court and the parties’ attorneys during the hearing on the motions in limine, respondent’s attorney represented to the court that she was “not interested in presenting evidence about [Matthew’s] criminal trial,” but rather sought only to present evidence about Matthews generally. The court held that respondent would be allowed to introduce such evidence, and the record indicates that respondent did present the testimony of three witnesses who opined that Matthews did not pose a danger to the children. In fact, one of those witnesses further testified that, in his opinion, Matthews did not understand what he was stipulating to in the prior criminal proceedings.

Accordingly, from the record before us, we can discern no error requiring reversal.

Respondent next contends that the trial court’s ruling was against the manifest weight of the evidence. Essentially, respondent argues that her witnesses were more credible than petitioner’s witnesses and that petitioner’s expert did not have a “factual basis” for her opinion. Therefore, respondent contends that reversal is mandated. We disagree.

Determining whether a change in custody is necessary is a matter which rests within the sound discretion of the trial court, and great deference should be accorded that decision since the trial court is in the best position to judge the credibility of the witnesses and determine the needs of the child. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 498-99.) A reviewing court should not disturb the decision of the trial court unless it is against the manifest weight of the evidence. 108 Ill. 2d at 499.

In the instant action, the trial court received evidence establishing that Matthews had been convicted of aggravated criminal sexual abuse and criminal sexual assault involving his own minor daughter from a previous marriage. In her answer to petitioner’s request to admit facts, respondent admitted that Matthews had been convicted of those offenses. The judgment orders from those criminal proceedings further indicated that Matthews stipulated to the facts underlying the charges. Respondent’s attorney acknowledged that Matthews’ representations in the criminal proceedings were tantamount to a guilty plea, and the trial court in this action concluded that Matthews pleaded guilty to the criminal charges. Where a defendant stipulates to the facts underlying a charge, he makes a binding admission that he did the act alleged, and that admission is admissible in a subsequent civil proceeding. (Batterton v. Thurman (1982), 105 Ill. App. 3d 798, 802.) Thus, the court had a sound basis for concluding that Matthews had previously committed acts of sexual abuse and sexual assault on a child under his care.

In addition to the evidence indicating that Matthews was a sex offender of children, the court also heard from witnesses regarding the risk Matthews posed to the Engelbach children. Two witnesses testified that Matthews did not pose a danger to the children, and a third witness testified that there was no evidence of any improper contacts with the children. However, another witness testified that Matthews did pose a risk to the children and specifically stated that it did not appear from the records provided that Matthews had received any treatment for his sexually abusive behavior. Although that witness did not personally interview Matthews, she did base her opinion on the facts underlying the convictions and the assessment reports of the psychologists who interviewed Matthews. There is nothing in the record before us that would indicate that the trial court abused its discretion in affording petitioner’s evidence more credibility than that presented by respondent, and we cannot say that its decision to transfer custody to the petitioner was against the manifest weight of the evidence.

Accordingly, the judgment of the circuit court of Du Page County is affirmed.

Affirmed.

NASH and WOODWARD, JJ., concur.


author: JUSTICE McLAREN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CLIFFORD JONES, Defendant-Appellee.
    Second District
    No. 2—88—0345
    Opinion filed April 13, 1989.

      Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Cynthia M. Alexander, of Law Offices of Cynthia M. Alexander, of Waukegan, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Clifford Jones, was charged by indictment with unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56x/2, par. 1402(b)) and unlawful possession with intent to deliver a controlled substance (Ill. Rev. Stat. 1987, ch. 56V2, par. 1401(b)(2)). Prior to trial, defendant filed a motion to quash the arrest and suppress evidence. The circuit court of Lake County granted the motion. The State appeals. We affirm.

Six witnesses testified at the suppression hearing. Detective Curtis Brahme, an agent for the Metropolitan Enforcement Group (MEG), was the first witness. Detective Brahme testified that the MEG office was informed of narcotics traffic in North Chicago. On November 17, 1987, at 8 p.m., Brahme and another officer set up surveillance on the 1800 block of Greenfield Street in North Chicago. Brahme stated that a brown Delta 88 Oldsmobile was parked on the street. The officers watched the car for two hours. During this time, approximately 20 individuals approached the car and appeared to make transactions with the individuals inside the car. Brahme indicated that he could not identify any of the persons inside the car due to the lighting conditions.

Around 10:10 p.m., the officers halted the surveillance and decided to obtain assistance from the North Chicago police department. Around 10:30 p.m., the officers, along with two additional officers, returned to the 1800 block of Greenfield Street. At this time, the officers approached the vehicle. Brahme testified that all persons in the area were stopped and searched for weapons. Brahme stated that defendant left the vehicle and was stopped and searched. A search of defendant revealed several small packets of cocaine. Defendant was then placed under arrest.

Defendant also testified at the suppression hearing. Defendant stated that he played basketball in a park district league until 10 p.m. He was given a ride to the 1800 block of Greenfield after the game had ended. After being dropped off, defendant was stopped by the police and searched. Defendant stated that at no time was he in the brown Oldsmobile.

Defendant presented three alibi witnesses at the hearing. Dennis Ritz testified that he was the official scorer for the basketball league. Ritz stated that the scorebook indicated that defendant had participated in a park district game on the night in question. It was Ritz’ opinion that the basketball game ended sometime between 9:30 and 10 p.m.

John Washington and Excell Robinson both testified that they left the basketball game around 10 p.m. in a borrowed brown Delta 88 Oldsmobile. Two other passengers were in the car. However, defendant was not one of the passengers. Both witnesses stated that the police surrounded the vehicle after it entered the 1800 block of Greenfield Street. Both witnesses got out of the car, were told to lie on the ground, and were subsequently searched.

Following arguments of counsel, the trial court granted defendant’s motion to suppress the evidence. The court stated:

“[T]he problem I have here is we have a vehicle with no identification by way of who is in the car at the time. .There’s no identification by way of license plate number or anything else or anything particularly unusual about the vehicle that would distinguish it from others, other than the make and color. Then we have testimony of course that I think is entirely credible that the defendant was engaged in a basketball game during the time that the officer was watching.
But the problem I have is exactly what defense counsel alluded to, we have that gap and when he [Detective Brahme] returned, he doesn’t see any illegal transactions going on and there’s no way to know, in fact, because there’s no identification of the license plate or the car or the people if in fact it is the same people that were there before. That part was never established. Because of the gap.
Unlike the case of a house that doesn’t move or the car that’s being followed and the defendant’s presence is really part of the surveillance, I think it’s been established by the evidence that he wasn’t there.
What the officer did was reasonable. The problem is maybe the chain, but you can’t say chain like a chain of custody, but there is a kind of a chain of events that was broken and with that, they lost the identification.
The Court grants the motion.”

The State filed a certificate of impairment and a timely notice of appeal.

On appeal, the State contends that the trial court’s order granting defendant’s motion to suppress was manifestly erroneous. The State correctly points out that a trial court’s ruling on a motion to suppress will not be overturned unless it is manifestly erroneous. (People v. Stout (1985), 106 Ill. 2d 77, 88; People v. Hoddenbach (1988), 169 Ill. App. 3d 499, 506.) The State argues that the stop, and subsequent search of defendant, were justified under the rule announced in Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. In Terry, the court held that a police officer may briefly stop an individual to investigate possible criminal activity, even though the officer has no probable cause to make an arrest. (392 U.S. at 22, 20 L. Ed. 2d at 906-07, 88 S. Ct. at 1880.) The holding in Terry has been codified in section 107 — 14 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 107 — 14). In addition, Terry also allows an officer to conduct a limited search for weapons if the officer reasonably believes that the individual is armed. 392 U.S. at 24, 20 L. Ed. 2d at 908, 88 S. Ct. at 1881.

We believe that the situation in the present case is distinguishable from the situation in Terry. Here, by Detective Brahme’s own admission, defendant was neither committing a crime nor was he about to commit one at the time of the stop and search. Detective Brahme stated, “I didn’t see him [defendant] violate any law.” Defendant was merely in the vicinity of the suspicious vehicle when the officers returned to the 1800 block of Greenfield. At no time did Detective Brahme question defendant. Instead, defendant was ordered to lie down and submit to a search. At no time did defendant attempt to escape. At no time did defendant refuse to cooperate with the police.

The State contends that the decisions in People v. Pittman (1984), 126 Ill. App. 3d 586, and People v. Solis (1985), 135 Ill. App. 3d 991, support its position that the officers had a reasonable suspicion to stop and search defendant. We disagree. In Pittman, the officer noticed a bulge in the defendant’s coat jacket pocket. The appellate court held that the police officer properly patted down the defendant based on the officer’s reasonable concern for her own safety. (Pittman, 126 Ill. App. 3d at 593.) In Solis, a witness called the police after seeing the defendant leave a neighbor’s house with a television set. The witness also observed the license plate number of the defendant’s automobile. The police stopped the defendant and searched him. The appellate court held that the information obtained from the witness, coupled with the large number of residential burglaries in the area, justified the initial stop and the subsequent search. Solis, 135 Ill. App. 3d at 995.

In both of the cases that the State cites, there were specific and articulable facts present to justify the stop and the search. Such is not the case in the case at bar. Detective Brahme stated that he searched defendant because he was “concerned about weapons in the area.” However, no weapons were found on any of the individuals searched. In addition, a search of the area around the vehicle revealed no weapons. We farther note that the recent supreme court decision in People v. Galvin (1989), 127 Ill. 2d 153, supports the trial court’s ruling in the case at bar. In Galvin, the police stopped the defendant’s vehicle and searched the defendant, notwithstanding the fact that no statutory violations were observed. The search turned up a rifle ammunition magazine, a screwdriver, and a flashlight. The defendant was placed under arrest for theft and possession of burglary tools. 127 Ill. 2d at 161.

The trial court granted the defendant’s motion to suppress, and the appellate court affirmed. (People v. Galvin (1987), 161 Ill. App. 3d 190.) The supreme court also affirmed, holding that the trial court’s ruling was not manifestly erroneous. (127 Ill. 2d at 164.) The court stated that the validity of a frisk after a stop must be reviewed under an objective standard. (127 Ill. 2d at 167, citing People v. Lee (1971), 48 Ill. 2d 272, 276.) The court could find no specific fact which would warrant the police officer’s belief that his safety was in danger at any time. (127 Ill. 2d at 169.) In addition, the mere fact that a valid Terry stop was made did not automatically authorize a search. (127 Ill. 2d at 170.) The court stated that the reasonableness of a search necessarily depends upon the particular facts of the case. 127 Ill. 2d at 173; People v. Williams (1974), 57 Ill. 2d 239, 246.

After examining the record in the instant case, we can find no specific and articulable facts which would indicate to a reasonably prudent person that defendant was armed and dangerous. Simply because Detective Brahme believed that there may be weapons in the area did not give him the right to search everyone present in the 1800 block of Greenfield Street. In addition, the record is clear that defendant was not present in the 1800 block of Greenfield during the initial surveillance. Defendant did not arrive on Greenfield until after 10 p.m., at which time Detective Brahme had already left Greenfield Street to obtain additional officers. We do not believe that the trial court’s ruling was manifestly erroneous.

For the above stated reasons, the order of the circuit court of Lake County is affirmed.

Affirmed.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE DUNN

text:
      In re T.A.B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. T.A.B., Respondent-Appellant).
    Second District
    No. 2—87—1006
    Opinion filed April 14, 1989.

      G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Richard L. Salon, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, T.A.B., appeals from an order of the circuit court of Du Page County adjudicating him a delinquent minor. On appeal, respondent makes the following contentions: (1) that the State failed to present sufficient evidence to establish the requisite mental state for the offense of criminal damage to property; (2) that the State failed to prove beyond a reasonable donbt that respondent violated section 4— 103(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95V2, par. 4 — 103(a)) by possessing a motor vehicle which he knew had been stolen or converted; (3) that section 4 — 103(a) of the Code is unconstitutional; and (4) that the restitution amount ordered by the court was excessive in light of defendant’s financial circumstances. Because we agree that the State failed to prove beyond a reasonable doubt that respondent committed the above offenses, we deem it unnecessary to consider the other issues raised by respondent on appeal. We reverse and remand.

The second amended delinquency petition charged respondent with driving without a license or permit (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 101), and respondent entered an admission to this charge. The petition also charged respondent with violating section 4 — 103(a) of the Code and with two offenses of criminal damage to property (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a)). The hearing on the petition was held on April 20,1987.

At the hearing, John Breivigan testified that he was respondent’s foster father. On April 6, 1987, respondent drove Breivigan’s Datsun 280 ZX automobile without permission. Breivigan was on vacation in Florida at the time. When Breivigan returned home, he found that the car had been damaged beyond repair. He valued the car at $9,800. Respondent had lived with Breivigan about six to seven months at the time.

Robert Hiebert testified that at approximately 8:15 on the morning of April 6, 1987, he was waiting to make a left turn at the intersection of Clarendon Hills Road and 67th Street. While his car was stopped near the intersection, Hiebert looked in his rearview mirror and saw a white car approaching him from behind on Clarendon Hills Road. The car was going very fast. Hiebert thought that the white car was going to hit his car. Hiebert heard a screech from the other car’s brakes as the car swerved. Instead of hitting him directly from behind, as Hiebert had feared, the white car clipped his right rear bumper, went through the intersection, and hit a telephone pole on the side of the road. The two occupants of the white car then got out of the car and hugged each other. Hiebert identified respondent as the driver of the white car.

Hiebert had an estimate performed on his car after the accident which showed that approximately $1,800 in repairs would be necessary. According to Hiebert, the white car would have hit his car directly from behind if respondent had not attempted to go around him.

Jay Elmahassni, a classmate of respondent, testified that respondent picked him up at school at about 8 a.m. on the morning of April 6, 1987. Respondent went to Elmahassni’s classroom, threw up the car keys, and said, “Jay, I’ve got the Datsun.” Jay got into the car with respondent. Respondent was driving around 70 miles per hour down Clarendon Hills Road before the accident. When respondent saw Hiebert’s car, he attempted to shift gears in order to slow down but was unable to do so. Respondent then hit the brakes and the tires locked. According to Elmahassni, the back of the Datsun then hit the back of Hiebert’s car. The Datsun then swerved into a telephone pole. Elmahassni stated that respondent took the car because he just wanted to drive around.

Officer Gerald Piccoli of the Darien police department was dispatched to the scene to investigate the accident. Piccoli testified that in his opinion respondent tried to avoid colliding with the Hiebert car.

The trial court ordered that respondent be adjudicated a delinquent minor. Respondent’s post-trial motion was denied. The trial court ordered respondent to serve a five-year term of probation and to pay $8,793.99 in restitution. Respondent, who earned about $60 per week, was ordered to pay half his earnings until the $8,793.99 re-stitutionary sum had been satisfied. Respondent filed a timely notice of appeal.

In a juvenile proceeding, the State must prove beyond a reasonable doubt that respondent committed the charged offense. (In re Thompson (1980), 79 Ill. 2d 262, 267-68, 402 N.E.2d 609, 612.) Respondent contends that the State failed to prove that he was guilty beyond a reasonable doubt of criminal damage to property because it failed to establish the requisite mental state. Respondent was charged with violating section 21 — 1(a), which states that a person is guilty of criminal damage to property if he or she “[k]nowingly damages any property of another without his consent.” (Ill. Rev. Stat. 1987, ch. 38, par. 21 — 1(a).) Respondent asserts that the evidence did not establish that he knowingly damaged his foster father’s car or the Hiebert car.

If an offense is defined in terms of a particular result, a person acts knowingly if he is “consciously aware” that his conduct is “practically certain” to cause the result. (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5(b); People v. Herr (1980), 87 Ill. App. 3d 819, 821, 409 N.E.2d 442, 445.) The offense of criminal damage to property is defined in terms of the result of the accused’s conduct, which is damage to the property of another. Furthermore, as the court pointed out in Herr, knowledge involves an awareness of the harm that will result from a person’s act while negligence involves the failure to be aware of such results in a situation in which the person has a legal duty of awareness. Herr, 87 Ill. App. 3d at 822, 409 N.E.2d at 445.

Even though the evidence indicates that respondent was driving at a highly excessive rate of speed, it cannot be said that he was consciously aware that he was practically certain to damage the two automobiles in question as a result. It is clear from the evidence that respondent did not deliberately damage either car since he did swerve in an attempt to avoid colliding with Hiebert’s car. While traveling 70 miles per hour on a street with a speed limit of 35 miles per hour would substantially increase one’s chance of becoming involved in an accident, it would not make such an occurrence a practical certainty. Respondent’s conduct may have been negligent or even reckless. The evidence fails to demonstrate, however, that defendant knowingly damaged either of the vehicles.

The State argues that respondent’s intentional act of wrongfully taking the car is sufficient evidence of intent. The two cases cited by the State in support of this proposition, People v. McEwen (1987), 157 Ill. App. 3d 222, 510 N.E.2d 74, and People v. Hickman (1973), 9 Ill. App. 3d 33, 291 N.E.2d 523, are both distinguishable from the present case. In McEwen, the court upheld the felony murder conviction of a defendant who claimed his gun accidentally discharged during the perpetration of an armed robbery. We note that under section 9—1(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(3)), the intent to kill or do great bodily harm is not an element of felony murder. By contrast, as we have seen, knowledge is an element of the offense of criminal damage to property.

In Hickman, defendant fired a bullet at his brother which struck his former wife instead. The court relied upon the doctrine of transferred intent in sustaining defendant’s conviction for aggravated battery, stating that defendant’s intent to harm his brother was sufficient to support the conviction, even though the bullet hit his ex-wife. (9 Ill. App. 3d at 44, 291 N.E.2d at 527.) The transferred intent doctrine might be applicable if respondent had intended to collide with Hiebert’s car and damage it but collided with another car instead. In Hickman, defendant had the requisite mental state for the offense of which he was convicted, but harmed someone other than the person he intended to harm when he fired the shot. In the case at bar, there was no evidence that defendant ever had the requisite mental state for the offense of criminal damage to property. The trial court’s finding that he was guilty on two charges of this offense must therefore be reversed.

Respondent was also charged with violating section 4 — 103(a)(1) of the Code, which makes it unlawful for “[a] person not entitled to the possession of a vehicle or essential part of a vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have been stolen or converted.” (Ill. Rev. Stat. 1987, ch. 951/2, par. 4 — 103(a)(1).) While respondent and the State address the issue of whether respondent converted the Breivigan car, we take note that the second amended delinquency petition alleges that respondent violated section 4 — 103(a)(1) by possessing the car in question “knowing it to have been stolen from Jacqueline Barnes and John Breidigan [sic].” In People v. Bivens (1987), 156 Ill. App. 3d 222, 509 N.E.2d 640, defendant was charged by means of indictment of violating section 4 — 103(a). As in the case at bar, the charge in Bivens was limited to possession of a stolen vehicle rather than possession of a converted vehicle. The court concluded that, under these circumstances, the State had to prove knowledge on defendant’s part that the vehicle was stolen. 156 Ill. App. 3d at 230, 509 N.E.2d at 646.

Stolen property is statutorily defined as “property over which control has been obtained by theft.” (Ill. Rev. Stat. 1987, ch. 38, par. 15 — 6.) Here, as in Bivens, it is clear from the evidence that the party accused of violating section 4 — 103(a) was the one who had taken the owner’s car without permission. Under these circumstances, the Bivens court concluded that the State was obliged to prove that defendant knowingly exerted control over the car in such a manner as to permanently deprive the owner of its use, or, in effect, prove that defendant committed theft (Ill. Rev. Stat. 1987, ch. 38, par. 16—1). Bivens, 156 Ill. App. 3d at 230, 509 N.E.2d at 646.

In the case at bar, the State failed to prove that respondent committed a theft. The evidence merely reveals that respondent took his foster father’s car without permission and drove it around the area in which he resided for awhile. Such joyriding escapades are not considered thefts. (See People v. Woods (1974), 17 Ill. App. 3d 835, 838, 308 N.E.2d 856, 859.) There is simply no evidence that respondent intended to permanently deprive his foster father of the use or benefit of the car. Although respondent did damage the car beyond repair in the accident, we have already held that the State failed to prove this was a knowing or intentional act.

Since the State failed to prove that respondent possessed the car knowing it to have been stolen, as charged in the delinquency petition, the trial court's finding that respondent violated section 4—103(a) of the Code must be reversed. Because of our holding, we need not address respondent’s contention that section 4 — 103(a) is unconstitutional, although we note that this court recently rejected this contention in People v. Larson (1987), 158 Ill. App. 3d 135, 511 N.E.2d 191. We also need not address respondent’s argument that the restitutionary amount set in the dispositional order was excessive, as we vacate the dispositional order and remand for a new dispositional hearing with regard to the charge to which respondent entered an admission, driving without a license.

The judgment of the circuit court of Du Page County is reversed and the cause remanded for a new dispositional hearing.

Reversed and remanded.

UNVERZAGT, P.J., and McLAREN, J., concur.