author: JUSTICE GOLDENHERSH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN G. WILLS, Defendant-Appellant.
    Fifth District
    No. 5—92—0313
    Opinion filed November 9, 1993.
    Brocton Lockwood, P.C., of Marion, for appellant.
    Gene Gross, State’s Attorney, of Pinckneyville (Norbert J. Goetten, Stephen E. Norris, and Gerry R. Arnold, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Steven G. Wills, appeals from the denial of his motion to modify sentence, entered in the circuit court of Perry County. In this cause, defendant raises three issues: (1) whether the trial court erred in imposing consecutive sentences when defendant was not admonished that the sentences could be consecutive, (2) whether the trial court erred in imposing more than two consecutive sentences, and (3) whether the trial court abused its discretion in imposing the maximum sentence allowable. We vacate and remand with directions.

Originally, defendant was charged in two separate cases with numerous counts of theft over $300 and several counts of forgery involving multiple victims. The crimes occurred in 1986 when defendant worked as an investigator for two personal injury attorneys. Defendant admitted that he participated in a scheme to induce personal injury clients to invest proceeds of their settlements. Instead of investing the money as arranged, defendant used the money for himself. When the clients sought return of their money, the attorney who employed defendant denied any knowledge that the money had not been properly invested and blamed defendant for the resulting losses. Defendant, on the other hand, admitted to wrongdoing but insisted that his employer was a coconspirator.

Prior to being arrested on the instant charges, defendant was charged and sentenced on a Federal offense. In the summer of 1991, defendant was serving time on the Federal offense and was returned to Illinois to face the instant charges. The State negotiated with defendant, and on January 2, 1992, defendant pleaded guilty to four counts of theft over $300. Three separate victims were involved. The plea was a partially negotiated disposition in which the question of defendant’s incarceration was left open. Defendant agreed to pay a total of $10,000 in restitution to the victims, but the plea agreement left open the question of whether any additional fines or penalties should be assessed. At the time the negotiated plea was entered, counsel for defendant advised the court that defendant was changing his position in reliance upon the agreement prior to sentence. Defense counsel specifically stated:

“Just for the record, what this envisions is that this will allow the defendant to go ahead in reliance of this agreement, actually in effect change his position by agreeing to give statements to the various people who are investigating the [attorneys]. And as the State’s Attorney has indicated the amount of restitution has been agreed to by the victims in this case.”

A review of the record in this case shows that defendant cooperated with authorities to make a case against the attorneys for whom he worked. The victims involved requested leniency for this defendant so that he would cooperate in the investigation against his former employers.

Defendant was admonished by the court about possible sentences. Defendant was told that he could receive two to five years’ imprisonment on each count. He was also advised with regard to an extended-term sentence. At no time was he admonished that he could be sentenced to consecutive sentences on these four counts. Ultimately, the trial court imposed four five-year consecutive prison sentences, which were also to run consecutively to defendant’s Federal sentence. Defendant was fined $10,000 on each charge and ordered to pay $10,000 in restitution. Defendant was denied credit for time served in the Perry County jail while awaiting disposition of the instant charges.

Defendant filed a motion to modify his sentence, asking that the sentences run concurrently so as to conform to the admonishments of the trial court. Defendant also filed a motion to withdraw his guilty plea, which was later withdrawn. The trial court denied defendant’s motion but offered to allow defendant to withdraw his guilty plea. Defendant rejected this offer and argued that the sentence be reduced in accordance with the admonitions. The trial court refused and this appeal followed.

The first issue we are asked to consider is whether the trial court erred in imposing consecutive sentences when defendant was not admonished that the sentences could be consecutive. Defendant contends that the trial court erred in imposing consecutive sentences when defendant was not advised that consecutive sentences were a possibility. Defendant contends that in order to rectify the situation the sentences must be ordered to run concurrently because defendant changed his position in reliance on acceptance of the plea. Defendant cooperated with authorities in the investigation of the attorneys who employed him, which implicated not only the attorneys but also himself. Defendant also assisted the victims in their civil case against the attorneys. Under these circumstances, defendant contends there is no way that he can be placed in the position he was before the plea was accepted and, thus, the sentences must run concurrently. The State’s reply is that defendant has waived his right to relief. According to the State, defendant had only two options after pleading guilty and being sentenced. First, defendant could have filed a motion to withdraw the guilty plea based on its involuntary nature due to insufficient admonishments, or second, defendant could have filed a motion to modify seeking a reduction of the sentences. The State contends that defendant is not entitled to intermix the remedies because he should not be able to retain the benefits of his guilty plea, including the dismissal of numerous other charges, while also obtaining a substantial reduction in the length of his sentences. Moreover, the State contends that vacating the guilty plea is an adequate remedy because defendant has the ability to protect himself against any prejudice which might otherwise result from his making incriminating statements in reliance on a plea agreement. For example, defendant could file motions in limine to preclude use of those statements based upon their lack of voluntariness.

Supreme Court Rule 402 provides that before accepting a guilty plea a defendant must be admonished as to “the minimum and maximum sentence prescribed by law, including, when applicable, the penalty to which the defendant may be subjected because of prior convictions or consecutive sentences.” (Emphasis added.) (134 Ill. 2d R. 402(a)(2).) A court’s failure to substantially comply with this dictate renders a defendant’s guilty plea involuntary. (People v. Akers (1985), 137 Ill. App. 3d 922, 926-27, 484 N.E.2d 1160, 1163; People v. Lundeen (1977), 55 Ill. App. 3d 799, 371 N.E.2d 329.) Where a defendant is not admonished prior to a guilty plea that consecutive sentences might be imposed, consecutive sentences cannot be imposed. (People v. Lundeen (1977), 55 Ill. App. 3d 799, 371 N.E.2d 329; People v. Willingham (1976), 38 Ill. App. 3d 612, 349 N.E.2d 120; People v. Flannigan (1971), 131 Ill. App. 2d 1059, 247 N.E.2d 739.) In this regard the Flannigan court specifically stated:

“Where a defendant is charged with more than one crime, the manner in which he may have to serve the sentences imposed for those crimes, whether consecutively or concurrently, is obviously a consequence of his plea, and must be considered as crucial to his decision as the admonition on the maximum penalty for each of the charges. ***
***
*** The validity of defendant’s guilty plea must be reviewed in the posture in which that plea was entered and defendant is entitled to enter his plea with full knowledge of the possible consequences of that plea as they exist at that time.” (Flannigan, 131 Ill. App. 2d at 1064-65, 267 N.E.2d at 744.)

Basically, a court’s failure to state the penalty to which a defendant may be subjected because of consecutive sentences renders a defendant’s plea involuntary. (People v. Butler (1989), 186 Ill. App. 3d 510, 541 N.E.2d 171.) Whether reversal is required depends on whether real justice has been denied or whether defendant has been prejudiced by the inadequate admonishment. People v. Davis (1991), 145 Ill. 2d 240, 582 N.E.2d 714.

In People v. McCracken (1992), 237 Ill. App. 3d 519, 604 N.E.2d 1104, the defendant, who was charged with Class 4 driving under the influence (DUI) because he had three or more prior DUI violations (Ill. Rev. Stat. 1989, ch. 95V2, pars. ll-501(d)(1), 6-303(d)), was never informed that there was a possibility that the sentence then in issue would be consecutive to a three-year prison sentence for a DUI conviction in another county. The McCracken court found that since the trial court’s admonishments left the defendant believing that his sentences would not be consecutive, the defendant’s guilty plea must be remanded to allow him to plead anew. (Mc-Cracken, 237 Ill. App. 3d at 521-22, 604 N.E.2d at 1106.) The problem in the instant case is that defendant has relied to his detriment on the admonishments of the trial court. Vacating the sentences and allowing defendant to plead anew will not correct the situation here.

The trial court did not admonish as to the possibility of consecutive sentences. Relying on the admonishments of the trial court, defendant then gave statements to authorities implicating himself and his former employees. Defendant made restitution to the victims and assisted them in their civil case against his former employers. Defendant argues that because the trial court did not admonish him about the possibility of consecutive sentences, the sentences must be ordered to run concurrently in order to comply with the trial court’s representations as the maximum sentence. In support of his argument defendant cites United States ex rel. Baker v. Finkbeiner (7th Cir. 1977), 551 F.2d 180. In Baker, the petitioner (defendant in the State court) was seeking habeas relief because he was not advised of a mandatory parole term which automatically became part of his sentence. Petitioner agreed to plead guilty, not knowing of the mandatory parole term, in exchange for the prosecutor’s promise that he would recommend a specific sentence of one to two years. Before accepting this plea, the State trial judge informed the defendant of the statutory range of imprisonment for the pending charges and told the defendant that his sentence would conform to the plea agreement. The trial court failed to mention that mandatory parole term, and neither the defense attorney nor the prosecutor remedied the omission. The defendant served his sentence and was released on parole. After violating parole, the defendant was imprisoned for an additional term. The Baker court held that because the defendant was given a substantially more onerous sentence than he was promised, his guilty plea had been unfairly induced in violation of the due process clause of the fourteenth amendment. (Finkbeiner, 551 F.2d at 183-84.) The defendant’s guilty plea was thus involuntary since the defendant lacked a full understanding of its consequences. To remedy the situation, the Baker court did not vacate the guilty plea, as vacating the plea would have permitted the State to reprosecute a defendant who had already performed his part of the bargain by serving his prison sentence. The Baker court determined that fundamental fairness required that the State be compelled to adhere to the agreement, and the Baker court ordered the petitioner released from custody. (Finkbeiner, 551 F.2d at 184; see also United States ex rel. Ferris v. Finkbeiner (7th Cir. 1977), 551 F.2d 185.) Likewise, defendant herein asks not that he be allowed to withdraw his guilty plea but rather that the sentence be reduced to conform with the trial court’s admonishments.

Illinois courts have also modified sentences to reflect the maximum penalty promised by the trial court. For example, in People v. Jackson (1973), 13 Ill. App. 3d 232, 300 N.E.2d 557, the defendant, who originally pleaded guilty to the offense of aggravated battery, challenged an order which revoked his probation and imposed a sentence from two to 10 years in the penitentiary. At the time the defendant pleaded guilty, he was admonished by the court that he could be sentenced to not less than one year nor more than five years in the penitentiary. In affirming the conviction, the Jackson court determined that the defendant’s sentence must be modified to reflect the maximum penalty promised by the trial court. The Jackson court specifically stated:

“It is readily apparent that an accused’s knowledge of the consequences is not only a determining factor in the voluntariness of his plea but is often an inducement to a guilty plea.
Justice and fairness demand that if a guilty plea rests on an inaccurate representation as to the maximum penalty the promise implied in the representation should be fulfilled.” (Jackson, 13 Ill. App. 3d at 236, 300 N.E.2d at 560.)

The Jackson court then reduced defendant’s maximum prison sentence to five years.

In the instant case, we find that the consecutive sentences imposed were fundamentally unfair to defendant, who was never admonished that he could receive consecutive sentences. We agree with defendant that his sentences must be ordered to run concurrently because defendant relied to his detriment on the trial court’s admonishments and made statements against his interest implicating himself in the schemes. Defendant was prejudiced by the trial court’s inadequate admonishment. (Cf. People v. Coultas (1979), 75 Ill. App. 3d 137, 394 N.E.2d 26 (where the defendant was unable to establish any prejudice but a mere technical violation of Supreme Court Rule 402).) Here, due process demands that the trial court’s admonition define the maximum sentence, including the possibility of consecutive sentences. We cannot agree that defendant should have proceeded on his motion to withdraw his guilty plea. Defendant could not adequately be protected by motions in limine. Defendant had paid some restitution and cooperated with the State in the cases against his ex-employers and also cooperated with the victims in their case against defendant’s ex-employers. Defendant has undeniably been prejudiced.

The State contends that even if we agree with defendant that his sentences should be reduced because defendant was not admonished that the aggregate of his prison sentences could amount to a total of 20 years, we should only reduce defendant’s prison sentences to 10 years rather than five years because defendant was advised that he could receive an extended term of 10 years’ imprisonment. The State admits that defendant was not eligible for an extended term but argues that that fact is inconsequential. We disagree.

The cases cited by the State in support of this argument are all distinguishable from the case at bar. For example, in People v. Beck (1989), 190 Ill. App. 3d 748, 546 N.E.2d 1127, the defendant was a 14-year-old juvenile who was not eligible for an extended term because of his age. The Beck court determined that even if the defendant was not eligible for an extended term, the extended-term statute served the purpose of a measuring statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2) for the consecutive sentence statute (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—4). (Beck, 190 Ill. App. 3d at 763-64, 546 N.E.2d at 1137.) However, in Beck, as in the other cases cited by the State, the question of whether defendant was properly admonished about the possibility of consecutive sentences never arose. In the instant case, we cannot agree with the State that defendant can be sentenced to consecutive prison terms for a total of 10 years when even the State agrees that defendant was ineligible for an extended term. The record is clear, and the State readily admits, that defendant was never advised he was eligible for consecutive sentences.

Finally, defendant contends that the trial court erred in refusing to give him credit for time served in the county jail while awaiting disposition of these charges, because the trial court failed to advise defendant that it was possible he would not receive credit for time served in the county jail on these charges. The State replies that no such admonishment is required under Supreme Court Rule 402, and because defendant was in the county jail pursuant to the agreement on detainers (Ill. Rev. Stat. 1991, ch. 38, par. 1003— 8 — 9), defendant was not entitled to credit against the instant sentences at least until he was sentenced in the case at bar. We agree.

Section 5 — 8—7(b) of the Unified Code of Corrections provides:

“(b) The offender shall be given credit on the determinate sentence or maximum term and the minimum period of imprisonment for time spent in custody as a result of the offense for which the sentence was imposed, at the rate specified in Section 3 — 6—3 of this Code.” (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-7(b).)

A review of Supreme Court Rule 402 shows there is no requirement that a defendant be advised it is possible he will not receive credit for time served in the county jail prior to the disposition of a case. Here, defendant was already sentenced and serving time for a Federal offense and was brought to Illinois pursuant to the agreement on detainers. Defendant was not confined because of the charges pending against him in Illinois but was confined due to his sentence on a previous Federal offense. (See People v. Harvey (1991), 213 Ill. App. 3d 83, 571 N.E.2d 1185; People v. Gardner (1988), 172 Ill. App. 3d 763, 527 N.E.2d 155.) We do not believe that defendant is entitled to any additional credit for time served against his sentence.

For the above reasons, the judgment of the circuit court of Perry County sentencing defendant to consecutive terms is hereby vacated, and the cause is remanded for issuance of an amended judgment order and mittimus in conformity with this opinion. Defendant’s sentences are to run concurrently to each other and concurrent to defendant’s Federal sentence. Defendant is entitled to no additional credit for time served against his sentence. Because of our decision on the first issue raised by defendant, we need not address the additional arguments raised by defendant.

Affirmed in part; vacated in part and remanded with directions.

CHAPMAN, P.J., and LEWIS, J., concur.


source: Caselaw Access Project

author: JUSTICE MAAG

license: Public Domain

text:
      In re MARRIAGE OF DANNY AVERY, Petitioner-Appellee, and VIRGINIA AVERY, Respondent-Appellant.
    Fifth District
    No. 5—92—0482
    Opinion filed November 1, 1993.
    Patrick M. McCann, of McCann & Foley, of Murphysboro, for appellant.
    Richard Kruger, of Kruger & Henry, of Metropolis, for appellee.
   JUSTICE MAAG

delivered the opinion of the court:

Respondent, Virginia Avery, appeals from an order entered by the circuit court of Johnson County on June 26, 1992, denying her petition to enforce terms with respect to increasing child support as contained in a previous order of the court dated January 7, 1986. For the reasons that follow, we affirm in part and reverse and remand with directions.

A judgment of dissolution of marriage was entered on March 26, 1985, dissolving the bonds of matrimony between the parties. On July 19, 1985, the parties appeared before the circuit court on all remaining issues and entered into a marital settlement agreement. This agreement was reduced to writing by Danny’s attorney and entered as an order of the court on January 7,1986.

The order entered January 7, 1986, awarded Virginia the marital domicile of the parties and provided in pertinent part:

“C. Child Support:
(1) [Danny] shall pay to [Virginia] for the support of the child, Hope Amber Avery, the sum of $87.50 every two weeks. [Danny] shall commence his payment of child support beginning ■with his first pay period following July 19, 1985. Said child support of $87.50 every two weeks shall continue until the present mortgage on the marital home is paid.
* * *
(2) Once the said mortgage on the marital home has been paid then [Danny] shall pay to [Virginia] the folio-wing child support for Hope Amber Avery:
***
(B) In the event that John Avery ([Danny’s] son by a prior marriage) has attained the age of 18, the child support shall be 20% of [Danny’s] net pay as net pay is defined in the Illinois Marriage and Dissolution of Marriage Act.
* * *
(4) That the child support set forth above in this agreement, along with the mortgage payments to be paid by [Danny] to the Goreville State Bank on the marital home in which the minor child of the parties resides, meets the guidelines for child support set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act.” (Emphasis added.)

The following facts are not in dispute. At the time the court order of January 7, 1986, was entered, the payments being paid on the marital domicile to the Goreville State Bank were at the rate of $379.49 per month per the original mortgage signed by both parties on June 14, 1984. The original mortgage recites that the indebtedness is to be “paid in 86 monthly installments of $379.49 *** first installment due July 14, 1984 and each month thereafter until paid in full.” If Danny had made payments of $379.49 per month, the loan on the marital domicile would have been paid off in July 1991.

On January 1, 1988, Danny reduced the payments to the bank from $379.49 a month to $200 without informing Virginia. On June 26, 1991, Danny entered into an agreement entitled “Mortgage Extension and Modification Agreement” with the bank again without the knowledge of Virginia. The mortgage extension modification agreement provides that the indebtedness on the marital domicile is to be repaid in “96 bi-monthly payment [sic] of $109.01” and extended the date the marital domicile would be paid off to June 28,1995.

On February 20, 1992, Virginia filed a petition to enforce the order dated January 7, 1986, and in particular sought to enforce paragraph (cX2Xb) of that order increasing the cash amount of child support she receives to 20% of Danny’s net income. A hearing on the petition to enforce was held on May 15, 1992. The only explanation Danny offered for his unilateral reduction of the amount paid monthly on the mortgage was the fact that things were economically “tight” and he had remarried. Danny testified that his new wife was unemployed and that they both had bills that needed his attention thus necessitating the reduction.

The trial court orally ruled at the close of the hearing and stated:

“In regards to the child support, the Order says $87.50 every two weeks until the present mortgage is paid. Now in retrospect, obviously, it would have been better to have put a cut off date in there. I suppose the parties should have capitulated [sic] when the mortgage was anticipated to have been paid. The document entitled Defendant’s Exhibit 4, the mortgage extension, is an extension of the present mortgage, in my opinion, and the present mortgage is still pending. The note secured by the mortgage, I suppose, has been changed. The note executed by the mortgage itself is still in effect. This is not a petition to modify the child support, it’s a petition to enforce the original agreement, the original Order. And as I read the original Order, as long as the present mortgage or once the present mortgage is paid, until the present mortgage is paid the child support is $87.50 every two weeks ***.”

The order which is the subject of this appeal was entered on June 26,1992. The order of June 26,1992, provides in pertinent part:

“3. That paragraph ‘c’ of the order dated January 7, 1986 states as follows:
‘Said child support of $87.50 every two weeks shall continue until the present mortgage on the marital home is paid.’
4. [Danny] unilaterally decreased his payments to the bank starting January 1,1988.
5. That [Danny] entered into a mortgage extension agreement with the bank without [Virginia’s] knowledge or consent in June, 1991.
6. That such mortgage extension agreement is the same as the words present mortgage [sic] as contained in paragraph ‘c’ of the order dated January 7, 1986, therefore, [Danny] is not required to increase his child support payments to 20% of his net income.
* * *
B. That the mortgage extension agreement entered by [Danny] without the knowledge of [Virginia] is a continuation of the present mortgage as used in paragraph ‘c’ of the order dated January 7,1986.”

The sole issue presented for review is whether the trial court erred in finding that the mortgage extension and modification agreement is a continuation of the present mortgage as such term is used in paragraph (c) of the order of January 7,1986.

On appeal Virginia argues that allowing Danny to unilaterally reduce the monthly payments on the mortgage is unfair, and she further advocates that the instant case should be decided in accordance with principles as contained in In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 481 N.E.2d 765, and similar cases. In Chenoweth we prohibited the reduction of child support based upon the deliberate acts of the party seeking the reduction. Virginia requests that we reverse the trial court and remand with instructions to the trial court to increase Danny’s child support to 20% of his net income from July 1991.

Danny argues that the payment of the mortgage indebtedness is a condition precedent to the automatic increase, and since the mortgage indebtedness has not been satisfied his obligation of child support to Virginia cannot be automatically increased. Danny asserts that Virginia has suffered no harm by the original arrangement or his unilateral modification by reducing and extending the payments. Further, although Danny has only been allowed to talk with his daughter on one occasion since the divorce in 1986, he continues faithfully to pay child support to Virginia plus the mortgage payments. Danny contends that had the parties wanted the child support to increase at a definite time, the parties could have expressly written a date certain in the judgment. Likewise, if the parties had wanted the child support increase to begin when the note was paid, as opposed to the mortgage, the parties could have expressly written it into the judgment. Lastly, Danny argues that absent contrary indications in the record, it is presumed that the decision of the trial court is correct. (In re Estate of Friedman (1984), 123 Ill. App. 3d 82, 462 N.E.2d 692.) We find Danny’s arguments unpersuasive.

For purposes of determining the proper standard of review, the trial court’s construction of the order of June 26, 1992, which provided for an automatic increase in child support to Virginia after the payment of the “present mortgage,” addresses a matter of law rather than a finding of fact. (Allen v. Board of Trustees of Belleville Area College District 522 (1986), 144 Ill. App. 3d 389, 494 N.E.2d 1168.) We may determine the correctness of the trial court’s ruling on a question of law independent of the trial court’s judgment. (Arneson v. Board of Trustees (1991), 210 Ill. App. 3d 844, 569 N.E.2d 252.) Our independent examination reveals that the trial court erred in finding that the mortgage extension and modification agreement is a continuation of the “present mortgage.”

Although both parties failed to provide any relevant case law or statutory authority, under general statutory provisions concerning child support Danny cannot unilaterally reduce his obligation of child support even if the payment is to a third person or institution rather than his former spouse.

The Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.)) provides that a court is required to determine the minimum amount of child support by following the guidelines as contained in section 505(1). (750 ILCS 5/505(1) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 505(1)).) The guidelines must be applied in each case unless the court finds a reason, based upon relevant factors, for deviating from the guidelines. (750 ILCS 5/505(2) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 505(2)).) It is not disputed by Danny or Virginia that the payment of the mortgage was, in fact, part of Danny’s child support obligation. It is clear from the original order and the record before us that Danny’s obligation of child support included $87.50 paid every two weeks to Virginia plus the payment of the mortgage. The monthly payment of $379.49 to the bank and the child support paid directly to Virginia brought Danny’s obligation up to or in excess of the mandatory minimum guidelines.

The Act further requires:

“Except as otherwise provided ***, the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of a motion for modification and only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 510(a)).

When Danny unilaterally reduced his payments to the bank on the mortgage, he was reducing the amount of child support he was paying, in violation of section 510(a). Just as Danny cannot unilaterally reduce his child support payments to Virginia, he cannot unilaterally reduce the payments to the bank which he acknowledges are in the nature of child support.

More importantly, in the Act our legislature specifically addressed the very issue before us. In order to determine net income for child support purposes, courts are instructed to total all income from all sources and subtract enumerated deductions, which include:

“(h) Expenditures for repayment of debts that represent reasonable and necessary expenses for the production of income, medical expenditures necessary to preserve life or health, reasonable expenditures for the benefit of the child and other parent, exclusive of gifts. The court shall reduce net income in determining the minimum amount of support to be ordered only for the period that such payments are due and shall enter an order containing provisions for its self-executing modification upon termination of such payment period.” (Emphasis added.) 750 ILCS 5/505(3)(h) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 505(3)(h)).

We believe that the payment of the mortgage on the marital domicile was a reasonable expenditure for the benefit of the parties’ child and Virginia. In accordance with section 505(3)(h), the circuit court properly reduced Danny’s net income in determining the child support payable directly to Virginia and included a provision in its order for a self-executing modification. The trial court premised the self-executing modification upon termination of the “present mortgage.”

It is weU established that “[i]f the language of a decree is broader than is required or permitted by law, it will be limited by construction so that its effect shall be such only as needed for the purposes of the case and in conformity with the law applicable thereto.” Midland Electric Coal Corp. v. County of Knox (1953), 1 Ill. 2d 200, 224, 115 N.E.2d 275, 278.

Section 505(3)(h) limits the reduction of child support below the minimum statutory guidelines only for the period that such payments are due on the repayment of the debt, as distinguished from allowing the reduction of child support so long as there is a balance on the debt. When the order of January 7, 1986, was entered, the period that the original mortgage payments were due ended July 1991. Thus, the trial court could only reduce Danny’s obligation of child support to Virginia until July 1991. In other words, in order to comply with section 505(3)(h), “present mortgage” cannot be construed as including any extension or modification of payment. At the conclusion of the original repayment period, Danny’s obligation of child support to Virginia was 20% of his net income pursuant to the order of January 7, 1986, and in accordance with section 505(3){h) of the Act.

Contrary to Danny’s argument, there can be no dispute that Virginia has been harmed by Danny’s unilateral acts. Had Danny paid the monthly mortgage payments at the original rate of $379.49, the marital domicile, which was awarded to Virginia, would have been free of all indebtedness to the bank as of July 1991. Further, Virginia would have automatically been entitled to 20% of Danny’s net income as child support after that date. Because an obligation of child support must be in dollar amounts and not a percentage (750 ILCS 5/505(5) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 505(5))), it would have been necessary to hold a hearing at the expiration of the payment period to determine the amount of support if the parties could not stipulate to the proper amount.

While a reviewing court is not required to consider contentions which are not essential to the determination of the case at hand (Illinois Racing Board v. Hammond (1977), 56 Ill. App. 3d 609, 371 N.E.2d 1189), we believe that there is a substantial public interest in issues concerning child support. Accordingly, we will address the claim by Danny that his obligation to pay child support is dependent upon visitation. Because this claim is of a type that is likely to recur (Suhadolnik v. City of Springfield (1989), 184 Ill. App. 3d 155, 540 N.E.2d 895), we will address it on the merits. As trial judges and attorneys who handle divorces can attest, the most popularly held belief and excuse of litigants concerning their obligation of child support is that it is not owed because visitation has not occurred or has been denied. We will reiterate once more that visitation and child support are not dependent and both are for the benefit of the children. Section 509 of the Act specifically provides that visitation and child support are independent and “[i]f a party fails to comply with a provision of a judgment, order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended.” 750 ILCS 5/509 (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 509).

For the foregoing reasons, that portion of the circuit court’s order of June 26, 1992, finding that the mortgage extension and modification agreement is a continuation of the “present mortgage,” as such term is used in paragraph (c) of the order of January 7, 1986, is reversed, and this cause is remanded with directions to the trial court to hold a hearing to determine Danny’s obligation of child support as of August 1991, that being 20% of his net income as defined by section 505 of the Act (750 ILCS 5/505 (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 505)), to state the support level in dollar amounts (750 ILCS 5/505(5) (West 1992) (formerly Ill. Rev. Stat. 1991, ch. 40, par. 505(5))), and to determine any arrearages for child support consistent with this order and to enter judgment thereon for Virginia.

The remainder of the order is affirmed.

Affirmed in part; reversed in part and remanded with directions.

CHAPMAN, P.J., and LEWIS, J., concur.


author: JUSTICE LEWIS JUSTICE WELCH,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. DAVID HAMILTON, Defendant-Appellee.
    Fifth District
    No. 5—92—0684
    Opinion filed October 26, 1993.

      WELCH, J., dissenting.
    Robert Haida, State’s Attorney, of Belleville (Norbert J. Goetten, Stephen E. Norris, and Mary H. Doyle, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Janet Gandy Fowler, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

The State appeals the circuit court’s order granting defendant’s, David Hamilton’s, motion to quash arrest and suppress evidence. We affirm for the reasons set forth below.

At the hearing on defendant’s motion to suppress evidence, defendant testified that on April 2, 1992, he was a passenger in his own car, which was being driven by Neon Bryant. On that date, a police officer stopped the car and informed defendant and Bryant that a car matching the description of their car had been reported stolen. The officer asked defendant and Bryant for identification, and defendant said he gave the officer identification for himself and for his car. The officer ran a check on his identification, and the check came back clear.

The officer had defendant and Bryant get out of the car and did a pat-down search of them. They had been outside the car for 10 to 15 minutes when the check on Bryant revealed that there was an outstanding warrant on Bryant. Defendant stated: “[The officer then] looked in [the car] and he seen a jar full of gold cleaner for my gold tooth.” The officer asked defendant what it was, and defendant told him it was gold cleaner for his tooth. The police officer called other officers to come to the scene.

Defendant was placed in a squad car while another officer tested the contents of the jar. Defendant stated that neither he nor Bryant gave anyone permission to search the car. Subsequently, an officer arrived with a dog, and the officer with the dog searched the car. The search revealed a gun under the hood of defendant’s car, and defendant was placed under arrest at that time.

On cross-examination, defendant admitted that his front windshield on his car was cracked. He further admitted that the plates on the car belonged to a Renault (the car involved here was an 1982 Chevrolet Caprice Classic), but he stated that he was in the process of having the plates transferred. Defendant testified that Bryant was placed under arrest at the time the check revealed that he had an outstanding warrant.

Defendant stated that the gold cleaner was in a pill bottle with a label on it that stated “gold cleaner.” Defendant described the gold cleaner as a white powder.

Illinois State Trooper Chris Tracy testified that he had been a trooper for three years, and that he was on duty on April 2, 1992. At about 6:30 that evening, he heard an ISPERN broadcast that there was a blue Chevy, early 1980’s, stolen during an armed robbery. Trooper Tracy saw defendant’s blue Chevy proceeding westerly on Highway 40, thought the car matched the description on the broadcast, and turned around and followed defendant’s car. Trooper Tracy ran a check on the license plates of defendant’s car even though the plates were a different number than those reported in the ISPERN broadcast. The check of the license plates came back as being registered to a Renault, leading Trooper Tracy to believe that the plates had been switched. Trooper Tracy also noted that defendant’s car had a shattered windshield.

Trooper Tracy notified police headquarters that he was going to stop defendant’s car, which he did. After defendant’s car was stopped, Trooper Tracy asked defendant and Bryant over his public address speaker to raise their hands where he could see them. Trooper Tracy stated he was treating the persons in the car as though they were armed. Tracy then came to the passenger side of defendant’s car and had defendant get out of the car. Tracy conducted a pat-down search of defendant and asked defendant to step in front of the car.

Tracy then had Bryant slide over to the passenger side of the car and get out. Tracy also conducted a pat-down search of Bryant. During the pat-down search of Bryant, Tracy explained to defendant and Bryant that he had stopped them because of the possibility of the car being stolen. Defendant told Tracy that the car belonged to him. Tracy’s pat-down search of the two men did not disclose any weapons.

After both defendant and Bryant got out of the car, Tracy noticed a prescription bottle lying on the front passenger seat. Tracy picked up the bottle. Tracy could see through the bottle, and he saw that the contents were a white powder. Tracy stated that the label on the container said “gold tooth polish.” Tracy asked defendant about the container, and defendant told Tracy that the bottle contained what the label said, gold tooth powder.

When Tracy asked defendant and Bryant for identification, neither had their ID’s with them but both told Tracy their names and dates of birth. Tracy went to the squad car and gave the names to the dispatcher to run a check on them. Defendant’s check came back clear, i.e., he had a valid driver’s license and had no outstanding warrants for his arrest. Bryant’s check came back as no record on file, which indicated that Bryant did not have a driver’s license. This fact led Tracy to believe that Bryant was lying as to who he was, and Tracy confronted Bryant about this. Bryant then told Tracy his true name, and when Bryant’s name was checked the second time, it was revealed that there was an outstanding warrant for Bryant’s arrest out of Sangamon County for the offense of criminal sexual assault. The record does not reflect whether Bryant had a valid driver’s license; however, Bryant was not issued a ticket for not having a driver’s license. Tracy placed Bryant under arrest at about 6:45 p.m., because of the warrant. Tracy again searched Bryant after the arrest and found two rock-like substances on Bryant’s person. When asked what the substances were, Bryant told Tracy that the rocks were also soap for gold teeth. Tracy found the explanation to be suspicious.

After arresting Bryant, Tracy called police headquarters and told them he had Bryant in custody. Tracy also asked that a canine unit and someone with a field test kit come to his location. Tracy stated that he placed this call at about 7:05 p.m. Tracy explained that he wanted the white powder in the prescription bottle tested to see if it was cocaine, and that he wanted the dog unit to see if there were other drugs'in the car.

Trooper Kimble was the first officer to arrive in response to Tracy’s call for assistance. Tracy had Kimble place defendant, who was handcuffed, in the back of Kimble’s squad car. Next, Sergeant Runyon and Master Sergeant Bramlett arrived at about 7:15 or 7:20 that evening. Runyon did a field test of the white powder and the rock-like substances, and the test came back negative for cocaine. Bramlett advised Tracy to wait for the canine unit before he did anything else.

Tracy testified that Trooper Parker arrived with a dog at about 7:40 p.m. At that time, the dog was placed inside the car, and although it exhibited great interest, the dog did not “alert” on anything. The dog was then walked around the exterior of the car, where it alerted on the right front grill area of the car. The hood of the car was opened, and a loaded revolver was discovered behind the car’s battery. Tracy ran a criminal check on defendant and found that he was a convicted felon. At about 8 p.m., Tracy placed defendant under arrest for unlawful use of a weapon by a felon.

When questioned by the court, Tracy admitted that he had no search warrant for the car, that he had no arrest warrant for defendant, and that he was not impounding the car. Further, defendant was not under arrest for a stolen vehicle, and defendant was not under arrest for his “gold tooth powder.” Tracy also told the court that defendant’s car was properly registered and that he did not issue a traffic citation to defendant. Tracy stated that the reason he held defendant after the field test came back negative was because Bramlett thought that the white powder might be a cutting agent and that there might be cocaine hidden in the car. All of the officers present disbelieved the “gold tooth story.” They also thought the rock-like substances were going to be sold as a look-like for crack cocaine.

Sergeant John Runyon of the Illinois State Police confirmed Tracy’s testimony that he came to the scene of defendant’s car in response to Tracy’s call on April 2, 1992, that he ran a field test on a white powder substance for the presence of cocaine, and that the test resulted in a negative finding.

Trooper Lynn Parker testified that he brought his dog to the scene of defendant’s car on April 2, 1992, at Tracy’s request. Parker initially had the dog search the passenger compartment, but the dog did not alert. Parker explained that when the dog alerts, his breathing pattern changes and he breathes more rapidly, the dog becomes “perpendicular,” and the dog either bites or scratches the area to indicate the presence of an illicit substance. His dog was trained to detect the odor of cannabis, heroin, methamphetamine, cocaine, and nitrates, including gun powder.

After searching the interior of the car, Parker asked Tracy what would happen now. Tracy told him that if nothing was found, he would have to release the car to defendant. Parker then walked the dog around the outside of the car, and the dog alerted on the right side of the front grill. The hood of the car was opened and the gun was found. Parker conducted his search of the car at about 7:45 that night.

In arguing his motion, defendant conceded that the police had reasonable suspicion to justify stopping his car, that the pat-down searches were permissible, and that the pill bottle was in plain view. However, defendant contended that after the field test of the white powder came back negative at 7:20 p.m., the police no longer had any reason to detain him and the subsequent warrantless search of his car by the dog unit was illegal. Therefore, since he was illegally detained after the completion of the field test, the gun which was found as a result of the illegal search was inadmissible. The court agreed and granted defendant’s motion to suppress the evidence of the gun. The State appeals.

On appeal, the State argues that the court found defendant’s detention was illegal from the time of the initial stop and presents its arguments as to why the defendant was not illegally detained. We do not agree that the court so held, but even if that was the court’s determination, we may uphold the court’s judgment on any ground warranted regardless of whether it was relied upon by the court and regardless of whether the court’s reasoning was correct. (People v. Holloway (1985), 131 Ill. App. 3d 290, 475 N.E.2d 915.) In any event, we will present our analysis of this case in accord with the State’s arguments.

We agree with the State that the initial stop of defendant’s car was a permissible investigatory stop under Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868. In Terry, the Supreme Court held that an officer may stop and temporarily detain a motorist for the purpose of a limited investigation if the officer has specific, articulable facts, taken together with reasonable inferences drawn from the officer’s experience, to justify the investigative stop. (Terry v. Ohio (1968), 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868; People v. Stewart (1993), 242 Ill. App. 3d 599, 610 N.E.2d 197.) Whether an officer had sufficient information to make an investigative stop depends on the facts of each particular case, and unless a court’s decision in this regard is manifestly erroneous, a reviewing court will not disturb the trial court’s determination. (People v. Matlock (1992), 223 Ill. App. 3d 498, 585 N.E.2d 238.) Information received by a police officer through official police communication channels can be relied upon by an officer to justify an investigatory stop. (People v. Fairman (1989), 182 Ill. App. 3d 497, 538 N.E.2d 227.) Further, an officer may conduct an immediate and limited search of a person upon stopping a car if the officer reasonably believes that he or someone else is in danger of attack. (People v. Fairman (1989), 182 Ill. App. 3d 497, 538 N.E.2d 227.) Probable cause is not necessary to conduct a stop and frisk. (People v. Fair-man (1989), 182 Ill. App. 3d 497, 538 N.E.2d 227.) Here, the totality of the circumstances would have justified the trial court finding that Trooper Tracy’s initial stop and frisk of defendant and Bryant was proper.

The record revealed that Tracy received a radio dispatch regarding an armed robbery in which a car was stolen. Tracy’s testimony established that defendant’s car matched the description of that vehicle. While there were other questions that went unasked and unanswered about the circumstances of the armed robbery, such as when did it occur, where was the location of the armed robbery and was defendant’s car in close proximity to the crime, and was there a description of the perpetrators of the armed robbery given and did defendant and his companion match that description, Trooper Tracy was still justified in stopping defendant’s car. This is so since in addition to the car matching the description of the stolen vehicle, the license plates on defendant’s car belonged to a Renault. This information presented specific, articulable facts that justified the initial investigatory stop of defendant’s car.

Similarly, the trial court could properly find that Trooper Tracy was entitled to frisk both defendant and Bryant upon stopping the car. Tracy’s information was that an armed robbery had been committed, which would lead the officer to reasonably believe that the occupants of the car may be armed.

With regard to the evidence of the prescription bottle containing a white powdery substance, the seizure of this evidence was legal as the vial was in plain view on the front passenger seat of the car. (People v. Sturlic (1985), 130 Ill. App. 3d 120, 474 N.E.2d 1.) At this point in time, a trial court could justifiably find from the evidence that Trooper Tracy had probable cause to search defendant, Bryant, and defendant’s car.

Where the problem arises in this case is whether the warrant-less search of defendant’s car was legal at the time of the search. As this court pointed out in People v. Smith (1991), 208 Ill. App. 3d 44, 566 N.E.2d 939, the brevity of the stop is an important factor in a Terry stop in determining whether the stop is unreasonable. Here the defendant was detained for at least one hour, while the officer allayed his suspicions. Trooper Tracy called and requested a field test of the substance he found in the car. Once the white powder tested negative for cocaine, Trooper Tracy no longer had probable cause or even a reasonable suspicion to believe that defendant possessed a controlled substance. “Mere suspicion or curiosity is not enough to justify a search.” (Stewart, 242 Ill. App. 3d at 605, 610 N.E.2d at 202.) We cannot find that the trial court was manifestly erroneous when it determined that defendant was illegally detained after the completion of the field test and that the search of his car was illegal.

The law is well settled that, in order to conduct a warrantless search of a vehicle, the circumstances must fall within an exception to the warrant requirement. (People v. Kolody (1990), 200 Ill. App. 3d 130, 558 N.E.2d 589.) A warrantless search is permissible if an officer has probable cause to believe there is contraband in the car. (People v. Clark (1982), 92 Ill. 2d 96, 440 N.E.2d 869; People v. Kolody (1990), 200 Ill. App. 3d 130, 558 N.E.2d 589.) In determining if probable cause exists to justify the search, the totality of the circumstances known to the officer at the time of the search must be considered. People v. Kolody (1990), 200 Ill. App. 3d 130, 558 N.E.2d 589.

In the case sub judice, we cannot say it was manifestly erroneous for the trial court to find that Trooper Tracy did not have probable cause to believe that there was contraband in defendant’s car at the time of the search. Trooper Tracy initially stopped defendant’s vehicle because he thought it was stolen during an armed robbery. This information would not lead a reasonable person to believe that the car contained contraband. While the discovery of a white powdery substance may give rise to a reasonable belief that there was contraband contained in the car, that belief was dispelled upon the testing of the substance and the results of the tests being negative for cocaine. Thus, since Trooper Tracy had dispelled any reason to detain defendant prior to the time of arrival of the dog, there was no probable cause or reasonable suspicion to justify detaining defendant for a further search. (People v. Stewart (1993), 242 Ill. App. 3d 599, 610 N.E.2d 197.) Trooper Tracy’s explanations as to why they detained defendant after the field test were mere hunches and suspicions. Citizens should not be handcuffed and detained in police cars after the police have effectuated the purpose of the “investigatory stop,” unless there is probable cause or a reasonable suspicion to believe that the citizen has committed a crime. The trial court’s determinations that defendant was illegally detained and that the search of his car was illegal and the court’s order granting defendant’s motion to suppress evidence were not manifestly erroneous.

For the foregoing reasons, the judgment of the circuit court of St. Clair County is affirmed.

Affirmed.

GOLDENHERSH, J., concurs.

JUSTICE WELCH,

dissenting:

I do not agree with the majority’s conclusion that, after the white powder field tested negative for cocaine, Trooper Tracy no longer had probable cause to believe that defendant’s vehicle contained contraband. To the contrary, I believe that, given the totality of the circumstances, Trooper Tracy did have probable cause to believe that defendant’s vehicle contained contraband even after the negative field test, and that further detention of defendant and the canine search were therefore valid.

A warrantless search of a vehicle is permissible if an officer has probable cause to believe there is contraband in the car. (People v. Kolody (1990), 200 Ill. App. 3d 130, 134, 558 N.E.2d 589, 593.) Probable cause exists when, considering the totality of the circumstances known to the police officer at the time of the search, a reasonable person would believe that contraband was present in the vehicle. (Kolody, 200 Ill. App. 3d at 134-35, 558 N.E.2d at 593.) In the instant case, the totality of the circumstances known to the officers at the time of the search of the car would justify a reasonable person in believing that contraband was present in the car.

Just before Trooper Tracy conducted the pat-down search of Mr. Bryant, he noticed the prescription bottle on the front passenger seat. He picked it up and saw that it contained a white powder and was labelled “gold tooth polish.” The trooper asked the defendant what it was, and the defendant stated that it was gold tooth soap. The trooper then asked the defendant and Mr. Bryant for their identification. Neither had driver’s licenses with them so the officer used their names to check their records. The defendant’s record came back clear and showed that he had a valid driver’s license. Although Mr. Bryant’s record was clear, it did not list a driver’s license, which indicated to the trooper that Mr. Bryant was lying. After Mr. Bryant revealed his true identity, the trooper found out that he was wanted in Sangamon County for criminal sexual assault. Trooper Tracy placed Mr. Bryant under arrest based on the outstanding warrant and conducted a more thorough search of him. During this search, the trooper found two rock-like substances wrapped in plastic in Mr. Bryant’s front pocket. The trooper again was told that the substance was gold tooth polish.

At this point, Trooper Tracy had two different substances which the defendant and Mr. Bryant claimed to be gold tooth polish, one a white powder and the other a rock-like substance. The claim that both of these substances were gold tooth powder led Trooper Tracy to reasonably believe that the white powder in the prescription bottle was cocaine, so he called for a field testing kit and the canine unit. When Master Sergeant Bramlett arrived with Sergeant Runyon, Sergeant Runyon field tested the white powder and the rock-like substances. Both the powder and the rock-like substances tested negative for cocaine.

The defendant below argued, and the trial court agreed, that at this point, when the substances tested negative for cocaine, the search should have ended and the further detention and search of the defendant and his car were unreasonable. Although there is no talismanic time beyond which any investigatory stop becomes an unreasonable seizure, the brevity of the stop is an important factor in determining whether the stop is unreasonable. However, a reviewing court must also consider whether the police acted diligently in pursuing their investigation. (People v. Smith (1991), 208 Ill. App. 3d 44, 50, 566 N.E.2d 939, 943; United States v. Place (1983), 462 U.S. 696, 709, 77 L. Ed. 2d 110, 122, 103 S. Ct. 2637, 2645-46.) Furthermore, if answers to initial inquiries during an investigatory stop dispel questions in an officer’s mind, the stop may go no further and the individual may no longer be detained. However, if the inquiries arouse further suspicion, the stop may be prolonged and the scope expanded. (People v. Smith (1991), 208 Ill. App. 3d 44, 50, 566 N.E.2d 939, 943.) Finally, if an officer’s suspicions are not allayed within a reasonable time, he must either make an arrest or allow the individual to leave. Smith, 208 Ill. App. 3d at 50, 566 N.E.2d at 943.

In the case at bar, the negative field test results did not dispel the officers’ suspicions, especially in light of the defendant’s and Mr. Bryant’s story that both substances were gold tooth powder, and the rock-like substances were packaged in the same manner as crack cocaine is packaged and sold. The officers reasonably believed that the powder might be a cutting substance and the rock-like substances might be passed off as crack cocaine. (See Ill. Rev. Stat. 1991, ch. 56V2, par. 1404.) Therefore, Master Sergeant Bramlett ordered everyone to wait for the canine unit. Furthermore, Sergeant Runyon stated that the powder could have been some other controlled substance and that it is possible for the test kit to give a false negative. Because the field test did not dispel the officers’ suspicions, it was proper for them to continue the search of the car. Further, the officers acted diligently in pursuing their investigation despite the fact that the detention lasted nearly an hour and a half. The length of the detention was due in large part to the amount of time it took the officers to arrive at the scene. With the exception of the canine unit, it took all the officers 15 to 20 minutes to arrive at the scene. It took the canine unit 30 to 35 minutes to arrive. Each officer responded immediately to the call for assistance. The record reveals no improper delaying tactics or lack of diligence to get to the scene on the part of the officers.

In the present case, the officers did have probable cause to continue the investigation despite the fact that the substance tested negative for cocaine. As stated earlier, probable cause to search an automobile exists when the totality of the circumstances known to the officers at the time of the search would justify a reasonable person in believing that contraband was present in the automobile. (People v. Kolody (1990), 200 Ill. App. 3d 130, 134-35, 558 N.E.2d 589, 593.) Even though the substances tested negative for cocaine, a reasonable person would believe that contraband was present in the automobile. The officers were confronted with two different substances, both of which were purported to be gold tooth cleaner. One substance was a white powder in a medicine vial, and the other was rock-like and wrapped in plastic. Trooper Tracy testified that the rock-like substance was packaged in the manner that crack cocaine is sold and that Master Sergeant Bramlett told him that the powder could have been a cutting substance and that the rock-like substance could have been passed off as crack cocaine. Further, Sergeant Runyon stated that the powder could have been some other controlled substance as the test kit only tested for cocaine. In addition, the field test kit was not as accurate as a lab test, and the kit could have given a false negative. Faced with these circumstances, a reasonable person would be justified in believing that contraband was present in the car and, therefore, probable cause existed for the further search of the defendant’s car. I believe the court below erred in granting the defendant’s motion to suppress.

Accordingly, I would have reversed the order of the circuit court suppressing the weapon as manifestly erroneous. I therefore respectfully dissent.


author: JUSTICE McLAREN

text:
    ROBERT C. REDA et al., Plaintiffs-Appellants, v. JOSEPH M. OTERO, Indiv., et al., Defendants-Appellees (The Department of Professional Regulation, Defendant and Intervenor-Appellee).
    Second District
    No. 2—92—1071
    Opinion filed October 20, 1993.

      Robert S. Reda and Scott D. Verhey, both of Robert S. Reda & Associates, P.C., of Chicago, for appellants.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Jerald S. Post, Assistant Attorney General, of Chicago, of counsel), for appellee Department of Professional Regulation.
   JUSTICE McLAREN

delivered the opinion of the court:

Plaintiffs, Robert C. Reda and Robert S. Reda, appeal from an order of the circuit court of Lake County directing defendant-intervenor, the Illinois Department of Professional Regulation (Department), to pay plaintiffs $11,958.65 from the Real Estate Recovery Fund (Fund) (225 ILCS 455/23 (West 1992)). Plaintiffs claim that the trial court erred by limiting their recovery to $10,000 plus costs and attorney fees and that they are each entitled to an award of $10,000 plus a total of $3,458.65 in costs and attorney fees, for a total of $23,458.65. For the reasons that follow, we reverse.

Plaintiff Robert C. Reda is an Illinois businessman and the father of plaintiff Robert S. Reda. Defendant Joseph M. Otero was owner and president of Provident Realty Group, Inc., and a real estate broker licensed by the Department. On March 8, 1990, plaintiffs agreed to invest a total of $40,000 for the development of real estate purportedly owned by defendant. Plaintiffs gave defendant $37,500 with the remaining $2,500 to be delivered at closing.

Plaintiffs filed suit against defendant on May 16, 1991, alleging that defendant failed to conclude the development project as agreed. Plaintiffs notified the Department of their intent to collect any unsatisfied judgment from the Fund and on July 1, 1991, the trial court granted plaintiffs leave to serve the Director of the Fund. Defendant failed to appear or otherwise defend, and on February 10, 1992, the trial court entered judgment for plaintiffs in the amount of $37,500.

After unsuccessfully attempting to collect the $37,500 from defendant, plaintiffs filed on July 13, 1992, a verified petition for a court order directing payment out of the Fund. In the petition, plaintiffs alleged that they were unable to collect on the judgment and that they incurred attorney fees and court costs in the amount of $7,807 and $458.65, respectively. Plaintiffs requested that the trial court enter an order directing payment in the amount of $23,458.65. Plaintiffs claimed that they were each entitled to the maximum award of $10,000 allowed by statute, plus a total of $3,000 in attorney fees and $458.65 in costs. The Department claimed that the statute creating the fund limited their recovery to a total of $10,000 plus costs and attorney fees.

On August 6, 1992, the trial court ordered the Department to pay plaintiffs $11,958.65 from the fund. This sum included what the court thought to be the statutory maximum recovery amount of $10,000 plus $1,500 for attorney fees and $458.65 for court costs. Plaintiffs filed this timely appeal.

The Fund is designed to provide payment to persons who have obtained a valid but unsatisfied judgment against a licensed real estate broker arising out of the broker’s professional activities. (225 ILCS 455/25(g), (h) (West 1992).) The provision at issue in this appeal, section 23 of the Real Estate License Act of 1983 (Act), reads in pertinent part as follows:

“The Department shall establish and maintain a Real Estate Recovery Fund from which any person aggrieved by an act, representation, transaction or conduct of a duly licensed broker *** [which] results in money or property being unlawfully obtained from any person by false pretenses *** or by reason of any fraud, misrepresentation, discrimination or deceit by or on the part of any such licensee *** and which results in a loss of actual cash money *** may recover. Such aggrieved person may recover *** an amount of not more than $10,000 from such fund for damages sustained by the act, representation, transaction, or conduct, together with costs of suit and attorneys’ fees incurred in connection therewith of not to exceed 15% of the amount of the recovery ordered paid from the Fund. ***
The maximum liability against the Fund arising out of any one act shall be as provided in this Section and the judgment order shall spread the award equitably among all co-owners or otherwise aggrieved persons, if any. The maximum liability against the Fund arising out of the activities of any single broker *** shall be $50,000.” 225 ILCS 455/23 (West 1992).

Plaintiffs argue on appeal that section 23 of the Act should be interpreted as stating that whenever two or more persons are aggrieved by the single act of a real estate broker, each aggrieved person may recover up to $10,000 from the Fund plus costs and attorney fees, with a maximum recovery of $50,000. Under this interpretation, plaintiffs would be allowed to recover a total of $20,000 plus $3,000 for attorney fees (15% of $20,000) and $458.65 for court costs.

The Department contends that the trial court correctly ruled that the maximum recovery from the Fund based on a single transaction involving a real estate broker is $10,000 plus costs and attorney fees regardless of the number of persons aggrieved as a result of the transaction. The Department also claims that, even if this court were to adopt plaintiffs’ interpretation of the statute, a remand of the cause would still be necessary to determine the amount each plaintiff contributed to the real estate venture. Finally, the Department argues that the trial court’s calculations regarding the appropriate amount of costs and attorney fees are incorrect and should be remedied on remand.

The parties’ dispute in this case involves the maximum recovery from the Fund that plaintiffs are entitled to by virtue of their single transaction with defendant. Section 23 of the Act states that the “maximum liability against the Fund arising out of any one act shall be as provided in this Section.” (225 ILCS 455/23 (West 1992).) In determining the legislative intent with respect to the maximum liability against the Fund for a single transaction it is necessary to look first to the language of the statute, and if the language used is certain and unambiguous, it will be given effect without resort to other aids in construction. Abrahamson v. Illinois Department of Professional Regulation (1992), 153 Ill. 2d 76, 91; Interlake, Inc. v. Industrial Comm’n (1983), 95 Ill. 2d 181, 192-93.

To resolve this dispute, it is necessary to determine whether the language “as provided in this Section” refers to the $10,000-per-person limitation contained in the first paragraph or the $50,000-per-broker limitation contained in the second paragraph. In making this determination we rely on the language of section 23 and the well-established principle that a statute should not be construed so that its specific language is rendered meaningless or superfluous. (People v. Singleton (1984), 103 Ill. 2d 339, 345; Maske v. Kane County Officers Electoral Board (1992), 234 Ill. App. 3d 508, 512.) Section 23 clearly states that “any” person aggrieved by a fraudulent act of a real estate broker may recover from the Fund and that each “aggrieved person” may recover up to $10,000 from the Fund. (225 ILCS 455/23 (West 1992).) To interpret this provision as allowing a maximum recovery of $10,000 in situations where two or more persons have suffered a loss as a result of a single transaction with a real estate broker would render the language allowing each aggrieved person a recovery of up to $10,000 superfluous. Section 23 clearly speaks of a maximum recovery of $10,000 per aggrieved person, and, therefore, we must give effect to the intent of the legislature as indicated by this language. Therefore, we conclude that the maximum liability against the Fund arising out of a single transaction with a real estate broker is $50,000.

The Department advances several arguments in support of a contrary conclusion. Initially, the Department points out that at the time of the establishment of the Fund in 1973 there was no $50,000 limitation (Ill. Rev. Stat. 1973, ch. 1141/2, par. 108.1 (now codified, as amended, at 225 ILCS 455/23 (West 1992))), and therefore the $10,000 limitation was the only potential subject of the first sentence of the second paragraph of this provision. The Department argues that as the statute was originally enacted, a maximum of $10,000 could be recovered from the Fund per transaction and the later amendment adding the $50,000 limitation on total transactions by a single broker (Ill. Rev. Stat. 1975, ch. 1141/2, par. 108.1 (now codified, as amended, at 225 ILCS 455/23 (West 1992))) did not change the legislature’s intent with regard to the $10,000 limitation.

Consideration of the original language of the statute does not mandate the result advocated by the Department. Even if we were to rely on the original language of the statute, we would conclude that plaintiffs would still be entitled to a recovery of $10,000 each. The language in the 1973 version of the statute likewise stated that the maximum liability against the Fund for a single act “shall be as provided in this Section.” (Ill. Rev. Stat. 1973, ch. 1141/2, par. 108.1 (now codified, as amended, at 225 ILCS 455/23 (West 1992)).) We agree that in 1973 this provision could only have referred to the $10,000 limitation in the first paragraph. We interpret this provision, however, as stating that the maximum liability against the Fund arising out of any one act is $10,000 per aggrieved person. To interpret this provision otherwise would, as we have already stated, render the language allowing each aggrieved person a maximum recovery of $10,000 superfluous.

We note that this interpretation does not render the statute’s direction to the court to “spread the award equitably among all co-owners or otherwise aggrieved persons” meaningless or superfluous. If, for example, the plaintiffs in this case had invested a total of $20,000, with the father contributing $15,000 and the son contributing $5,000, the appropriate total recovery from the Fund would be $15,000. After entering the order directing payment from the Fund in the amount of $15,000, the trial court would then proceed to divide the award equitably among the two aggrieved persons. In this hypothetical, the equitable distribution would be an award of $10,000 to the father and $5,000 to the son. Thus, in some instances, the trial court will spread the award equitably by awarding all plaintiffs $10,000 each, and in other instances the equitable distribution will require an award of $10,000 for some plaintiffs and an award of less than $10,000 for others.

Even if we were to adopt the Department's interpretation of the statute as it existed in 1973, we would nevertheless conclude that today the maximum liability against the Fund arising out of a single transaction with a single real estate broker would be $50,000. Generally, an amendment is presumed to change the law as it formerly existed, and this presumption of change is rebutted only if the circumstances surrounding the enactment of the amendment suggest otherwise. Hession v. Illinois Department of Public Aid (1989), 129 Ill. 2d 535, 543.

If, as the Department argues, the law as originally enacted limited recovery to $10,000 per transaction in every instance, then there exists a presumption that the 1975 amendment changed that law, enhancing the maximum recovery per transaction. The Department cites no authority or legislative history suggesting that this was not the purpose of the amendment, and, accordingly, we will not ascribe the same meaning to this provision today as the Department claims it possessed prior to the amendment.

The Department’s next argument is based on the definition of the term “person” contained in section 4(16) of the Act. Section 4(16) states that “ ‘|p]erson’ means and includes individuals, corporations and partnerships.” (225 ILCS 455/4(16) (West 1992).) The Department argues that because the Act’s definition of “person” speaks of “individuals,” the two plaintiffs together constitute only one “person” for purposes of recovering from the Fund and are therefore entitled to only one recovery in the amount of $10,000. We decline to adopt the Department’s strained interpretation of this definitional provision. The language in a statute should be given its plain and commonly understood meaning unless the intention of the legislature is to the contrary. (Scadron v. City of Des Plaines (1992), 153 Ill. 2d 164, 185.) The more plausible interpretation of this provision is that if an entity falls within the classification of entitles known as individuals, then that entity is a “person” for purposes of recovery from the Fund. If the legislature intended such an unusual definition of the term “person” as the Department suggests, then it is likely that it would have expressed such an intent more clearly. See, e.g., Weights and Measures Act (225 ILCS 470/ 2(1) (West 1992) (“ ‘Person’ means both singular and plural as the case demands, and includes individuals, partnerships, corporations, companies, societies and associations”)).

The Department’s next contention is that the Act’s legislative history supports its interpretation of the limitation provision. When the house bill that was ultimately passed into law came back from the senate with an amendment, Representative Walsh, one of the bill’s sponsors, summarized some of the bill’s main points. Concerning the limitation provision, Representative Walsh stated that the bill “also provides that the maximum liability *** is $10,000. That is that only $10,000 can be recovered from the recovery fund from one incident so that if there were two contract purchases [sic] *** each of whom lost $10,000, they would have to share *** in the $10,000 recovery.” (78th Ill. Gen. Assem., House Proceedings, June 30, 1973, at 39 (statements of Representative Walsh).) The Department claims that plaintiffs’ interpretation is directly contrary to Representative Walsh’s interpretation upon which the General Assembly voted.

Reliance on these legislative statements is neither necessary nor warranted. First, because we have already determined that the language of section 23 clearly speaks of a maximum recovery of $10,000 per aggrieved person, reliance on extrinsic aids in construction such as legislative history is unnecessary. Abrahamson, 153 Ill. 2d at 91; Interlake, Inc., 95 Ill. 2d at 192-93.

Second, even if we were to turn to the legislative history as an aid in construing the limitation provision of section 23, we would not consider these statements of an individual legislator to be meaningful evidence of legislative intent. Statements of individual legislators made during legislative debate assist in revealing the legislative intent behind a statute only when examined in the context of the debate in its entirety. Statements of individual legislators made outside the context of legislative debates are generally immune from the verbal interplay and the presentation of countervailing ideas inherent in the debate process. (Morel v. Coronet Insurance Co. (1987), 117 Ill. 2d 18, 24-25.) The statements of Representative Walsh, which were not made in the context of legislative debates but instead in the context of a summary of the senate amendments to the bill, do not necessarily reflect the intent of the legislature as a whole when the bill was debated and passed.

Finally, Representative Walsh’s statements were made before the 1975 amendment which added the $50,000 limitation to section 23. It is unlikely, therefore, that Representative Walsh’s interpretation of the bill as it existed in 1973 is an accurate interpretation of section 23 as it exists today.

The Department cites to two cases from the Appellate Court, First District, which it claims support its interpretation of section 23. In both of those cases, there were two plaintiffs who jointly entered into a transaction with a real estate broker and lost more than $10,000 each as a result of fraud on the part of the broker. The trial courts in both cases allowed a total recovery of only $10,000 from the Fund plus costs and attorney fees. (Daly v. Three Star Enterprises, Inc. (1982), 110 Ill. App. 3d 386, 387; Jones v. Anderson (1978), 62 Ill. App. 3d 284, 287.) The Department contends that the actions of the trial courts in these cases lend further support to its claim that section 23 provides for a maximum recovery of $10,000 per transaction regardless of the number of persons aggrieved as a result of the transaction.

The reviewing court in both cases did not have an opportunity to address the propriety of limiting the plaintiffs’ recovery to $10,000 because the parties did not raise this issue on appeal. The reviewing court in both cases affirmed the orders of the trial court on other grounds which were raised in the appeal. (Daly, 110 Ill. App. 3d at 389 (15% limitation on attorney fees and costs is based on the amount actually recovered from the Fund and not on the amount of damages awarded in the underlying action against the broker); Jones, 62 Ill. App. 3d at 288-89 (trial court’s judgment that plaintiffs had complied with the statutory requirements and were thus entitled to recovery from the Fund was not erroneous).) In the absence of an affirmative ruling by the reviewing court in those cases on the maximum recovery allowed in such situations, we are unable to rely on those cases as authority governing this case.

In light of all the foregoing, we conclude that section 23 of the Act allows each person aggrieved as a result of a single transaction with a real estate broker to recover up to $10,000 from the Fund, with the maximum total recovery being $50,000. Under this interpretation, if, for example, six plaintiffs each suffered a loss in excess of $10,000 as a result of a single transaction with a real estate broker, the total recovery from the Fund would be limited to $50,000, as opposed to $60,000, and the trial court would be required to spread the award equitably among all six plaintiffs, which, in this example, would mean that the six plaintiffs would share equally in the $50,000. This interpretation of the Fund provisions gives effect to the legislature’s intent as evidenced by the language of the statute and furthers the Act’s purpose of allowing only a limited recovery from the Fund. See Buonincontro v. Kloppenborg (1978), 61 Ill. App. 3d 1041, 1043.

The Department argues that if we adopt plaintiffs’ interpretation of section 23, the cause must be remanded for a determination of each plaintiff’s actual losses. The record demonstrates that Robert C. Reda was the remitter of a cashier’s check in the amount of $37,500 payable to defendant. The record is unclear as to the size of Robert S. Reda’s contribution to that total investment of $37,500. The Department argues that the cause should be remanded to determine the exact amount of Robert S. Reda’s contribution to the investment, and if the trial court finds that Robert S. contributed less than $10,000, then it should reduce his award accordingly.

The Department did not raise this issue in the trial court. It is well settled that an argument which was not raised in the trial court cannot be urged on appeal. (Nugent v. Miller (1983), 119 Ill. App. 3d 382, 387.) The issues in the trial court were identical to those present in this appeal, and the Department should have advanced this alternative argument in the trial court as well. It may not raise this issue as an afterthought for the first time on appeal.

The Department’s final contention is that the trial court erred in its calculation of costs and attorney fees. The trial court ordered an award of attorney fees equal to 15% of the amount recovered from the Fund plus $458.65 for court costs. The Department claims that section 23 states that the sum of costs and attorney fees must total no more than 15% of the amount recovered from the Fund.

The Department has waived this issue as well. When a decision contains a specific finding adverse to an appellee, the appellee must file a cross-appeal raising as an issue that adverse finding. (Burrgess v. Industrial Comm’n (1988), 169 Ill. App. 3d 670, 677.) If the Department was of the opinion that the trial court incorrectly calculated the appropriate amount of costs and attorney fees, then it should have appealed from that portion of the order. By failing to preserve properly this issue for review by filing a cross-appeal, the Department has waived this issue.

We hold that each plaintiff is entitled to a payment from the Fund in the amount of $10,000 plus $1,500 for attorney fees. Plaintiffs are also entitled to a payment from the Fund totaling $458.65 for court costs.

Accordingly, the judgment of the circuit court of Lake County is reversed, and judgment is entered for plaintiffs in the amount of $23,458.65 pursuant to Supreme Court Rule 366(aX5). 134 Ill. 2d R. 366(aX5).

Reversed.

QUETSCH and DOYLE, JJ., concur.


author: JUSTICE DOYLE

text:
    WILLIAM SELOF, Plaintiff-Appellant, v. ISLAND FOODS, INC., Defendant-Appellee.
    Second District
    No. 2—92—1177
    Opinion filed November 5, 1993.

      Michael E. Coppedge, of Cowlin, Ungvarsky, Curran & Coppedge, of Crystal Lake, for appellant.
    Philip L. Mandell and Sigi M. Offenbach, both of Pitler & Mandell, of Chicago, for appellee.
   JUSTICE DOYLE

delivered the opinion of the court:

On February 20, 1992, plaintiff, William Selof, filed a complaint, sounding in retaliatory discharge, against defendant, Island Foods, Inc. The brief complaint alleged that, prior to December 15, 1991, plaintiff was employed by defendant. On November 15, 1991, plaintiff was admitted to a hospital for alcohol treatment and rehabilitation, and he notified defendant of his hospitalization on November 16. Plaintiff stated that he was informed that defendant “supported him one-hundred percent.” However, on December 7, 1991, defendant discharged plaintiff from employment. The complaint concludes that the discharge was “for no cause other than the fact that he was hospitalized and seeking treatment for alcohol rehabilitation.”

Relying on sections 1 — 102 and 8 — 103 of the Illinois Alcoholism and Other Drug Dependency Act (Act) (20 ILCS 305/1 — 102, 8 — 103 (West 1992)) directed principally at the need to provide coordinated programs for the prevention, intervention and treatment for alcohol and drug abuse or addiction in this State, plaintiff further alleged that his discharge by defendant was a wilful and wanton violation of a clear and compelling mandate of public policy of the State of Illinois and that he was damaged thereby. The trial court granted defendant’s motion to dismiss the complaint pursuant to section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/2 — 615 (West 1992)) and granted plaintiff 28 days to file ap amended complaint. Plaintiff elected to stand on his complaint, and the court dismissed the cause with prejudice on August 13, 1992. Plaintiff maintains on appeal that it was error for the trial court to dismiss his complaint because, in his view, it sufficiently states a cause of action for retaliatory discharge.

The tort of retaliatory discharge was first recognized by our supreme court in Kelsay v. Motorola, Inc. (1978), 74 Ill. 2d 172, as an exception to the general rule that “at-will” employment is terminable at any time for any or no cause. (See Palmateer v. International Harvester Co. (1981), 85 Ill. 2d 124, 128.) The Kelsay court found it necessary to establish this cause of action where a worker exercised her statutory right to file a worker’s compensation claim and the employer discharged her contrary to the express public policy of the workers’ compensation law then in effect which protected employees by affording them prompt compensation for their injuries. (See Ill. Rev. Stat. 1973, ch. 48, par. 138.1 et seq. (now codified, as amended, at 820 ILCS 305/1 et seq. (West 1992)); Kelsay, 74 Ill. 2d at 180-81.) The court reasoned that the statutory scheme would be seriously undermined if the employers were permitted to abuse their power to terminate by threatening to discharge employees seeking compensation for covered injuries. Kelsay, 74 Ill. 2d at 182.

The supreme court recognized this tort where it appeared that there was no other suitable remedy available to the employee (Kelsay, 74 Ill. 2d at 182) and where the employee was discharged from employment in “ ‘contravention of a clearly mandated public policy.’ ” (Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502, 516 (Moran, J., dissenting), quoting Palmateer, 85 Ill. 2d at 134; cf. Balla v. Gambro, Inc. (1991), 145 Ill. 2d 492, 498, 501 (tort of retaliatory discharge is limited and narrow exception to general rule of at-will employment, and public policy of protecting lives and property was otherwise adequately safeguarded without extending tort to in-house counsel who threatened to report perceived violations of safety regulations).) In determining whether a plaintiff has stated a cause of action for retaliatory discharge based on a violation of clearly mandated public policy, this court must take into account that the tort has thus far been narrowly circumscribed. See Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520, 525.

To establish a prima facie case of retaliatory discharge, a plaintiff must show that (1) he exercised a statutory or constitutional right; (2) he was discharged in retaliation for his activity; and (3) the defendant’s conduct was motivated by unlawful considerations, that is, the discharge was in contravention of a clearly mandated public policy (Fellhauer v. City of Geneva (1991), 142 Ill. 2d 495, 505). See Beckman v. Freeman United Coal Mining Co. (1988), 123 Ill. 2d 281, 287; Eisenbach v. Esformes (1991), 221 Ill. App. 3d 440, 443.

In Illinois, actions for retaliatory discharge have been allowed in two circumstances: (1) when an employee has been discharged for asserting a right to workers’ compensation; and (2) when an employee has been discharged for reporting illegal or improper conduct (“whistle blowing” cases). (Layne v. Builders Plumbing Supply Co. (1991), 210 Ill. App. 3d 966, 974; see Eisenbach, 221 Ill. App. 3d at 443-44.) In one other situation where the tort was recognized, the employee was discharged after refusing to work with an improperly functioning radioactive machine which would allegedly expose him to radiation hazards in violation of Federal safety regulations. Layne, 210 Ill. App. 3d at 974, discussing Wheeler v. Caterpillar Tractor Co. (1985), 108 Ill. 2d 502.

In recognizing this tort, our supreme court has sought to achieve “ ‘a proper balance *** among the employer’s interest in operating a business efficiently and profitably, the employee’s interest in earning a livelihood, and society’s interest in seeing its public policies carried out.’ ” (Fellhauer, 142 Ill. 2d at 507, quoting Palmateer, 85 Ill. 2d at 129.) The cause of action is allowed “where the public policy is clear, but is denied where it is equally clear that only private interests are at stake.” (Palmateer, 85 Ill. 2d at 131.) We observe too that the “mere citation of a constitutional or statutory provision in a complaint will not by itself be sufficient to state a cause of action for retaliatory discharge. Rather, a plaintiff must demonstrate that the public policy mandated by the cited provision is violated by his discharge.” Fellhauer, 142 Ill. 2d at 505.

Thus, for example, in Mein v. Masonite Corp. (1985), 109 Ill. 2d 1, the supreme court refused to recognize a cause of action for retaliatory discharge where the plaintiff alleged age discrimination and the claim was cognizable under the Illinois Human Rights Act (Ill. Rev. Stat. 1983, ch. 68, par. 1—101 et seq.). Similarly, the court denied such a cause of action where the employees claimed that their discharge violated their constitutional guarantee of free speech and where the provisions relied on by plaintiffs concerned only limitations on the powers of government but mandated nothing concerning the relationship of private individuals — including private individuals in the employer-employee relationship. Barr v. Kelso-Burnett Co. (1985), 106 Ill. 2d 520 (the court also found the complaint defective in that it did not allege that plaintiffs were discharged in retaliation for their activities).

In the present case, in urging that defendant has violated a clearly mandated public policy, plaintiff relies on sections 1 — 102 and 8 — 103 of the Illinois Alcoholism and Other Drug Dependency Act (20 ILCS 305/1 — 102, 8 — 103 (West 1992)). In section 1 — 102, the legislature has declared:

“The human suffering and social and economic loss caused by the illness of alcoholism, addiction to controlled substances *** and the abuse and misuse of alcohol and other drugs are public health problems of grave concern to the people of the State of Illinois. It is imperative that a comprehensive and coordinated strategy be developed through the leadership of a State agency, and implemented through the facilities of Federal and local government and private agencies, to the end that persons and their spouses and children, if any, who abuse or misuse alcohol or other drugs be restored to good health and become productive citizens in the community. The human, social, and economic benefits of preventing alcohol and other drug abuse and dependence are great, and it is imperative that there be interagency cooperation in the planning and delivery of alcohol and other drug abuse prevention, intervention, and treatment efforts in Illinois.
The provisions of this Act shall be liberally construed to enable the Department to carry out these objectives and purposes.” 20 ILCS 305/1-102 (West 1992).

Regarding the specific rights of clients and residents of any treatment program, section 8 — 103 states:

“No client or resident of any treatment program shall be deprived of any rights, benefits or privileges guaranteed by law solely on account of his status as a client or resident of a program.” (Emphasis added.) 20 ILCS 305/8 — 103 (West 1992).

A perusal of the Act (20 ILCS 305/1 — 101 et seq. (West 1992)) shows that it was intended to establish a Department of Alcoholism and Substance Abuse to carry out a coordinated program of prevention, intervention, and treatment of alcohol and drug abuse or addiction. Plaintiff points to no provision of the Act governing the conduct of the employer-employee relationship, and we are unable to conclude from the cited provisions that, even if defendant discharged plaintiff, it was in contravention of a clearly mandated public policy. The cited provisions appear to mandate nothing concerning the relationship of these private individuals even in the context of the employer-employee relationship. (See Barr, 106 Ill. 2d at 528.) Assuming that plaintiff was an at-will employee, there appears to be no deprivation of any right, benefit or privilege guaranteed by law. The circumstances of the case at bar do not appear to fit the pattern established by the workers’ compensation cases, or the whistle blower or unsafe working condition cases. See Lambert v. City of Lake Forest (1989), 186 Ill. App. 3d 937 (and numerous cases cited therein).

Given the circumstances of this case, we cannot read into the cited provisions a requirement that the employer must permit an employee to enter a treatment program and maintain a position open until the employee successfully completes the program. Plaintiff’s interest in obtaining treatment appears to be of a personal nature rather than one involving a clearly mandated public policy. (See Buechele v. St. Mary’s Hospital Decatur (1987), 156 Ill. App. 3d 637, 643 (right to file personal injury lawsuit was a purely personal right not involving clearly mandated public policy).) The nature of the interest at stake here is sufficiently “muddled” so that a cause of action for retaliatory discharge has not been stated. See Fellhauer, 142 Ill. 2d at 522-23 (Freeman, J., specially concurring, joined by Clark & Heiple, JJ.).

Plaintiff has provided no binding or persuasive authority for this court to expand the tort to the factual circumstances of this case. The only case having analogous facts which we have found in which a recovering alcoholic urged expansion of the tort is Pierce v. Engle (D. Kan. 1989), 726 F. Supp. 1231. There, in the absence of precedent, the Federal district court refused to expand the tort of retaliatory discharge under Kansas law even though the plaintiff, a recovering alcoholic, urged that his nonrenewal of employment as a school principal contravened the policy of the State of Kansas favoring the treatment of alcoholics. The Pierce court noted that the tort was limited to such cases as retaliation for filing workers’ compensation cases.

It is possible that under qualifying circumstances a recovering alcoholic or substance abuser may conceivably have a statutory cause of action based on disability or handicap under State (see, e.g., Habinka v. Human Rights Comm’n (1989), 192 Ill. App. 3d 343) or Federal anti-discrimination laws (see, e.g., Teahan v. Metro-North Commuter R.R. Co. (2d Cir. 1991), 951 F.2d 511). However, plaintiff has not pursued such a theory, and we therefore express no opinion on whether he could have had a cause of action based on discriminatory discharge.

While it is unfortunate that persons who seek treatment for alcoholism or substance abuse may encounter hardships attendant to those circumstances, we cannot recognize a cause of action for retaliatory discharge under the facts and law presented in this case. We con-elude that plaintiff has failed to state a cause of action for retaliatory discharge because he has not shown that the employer violated a clearly mandated public policy. The factual circumstances of this case do not fit the pattern of cases previously recognizing this tort. It is our view that the question of providing any new avenues of redress must be left to our supreme court or to the legislature. The trial court did not abuse its discretion in dismissing the cause with prejudice.

The judgment of the circuit court is affirmed.

Affirmed.

McLaren and QUETSCH, JJ., concur.