author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALBERT ROBINSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—86—1899
    Opinion filed December 4, 1989.
    Rehearing denied June 28, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Bruce C. Landrum, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Inge Fryklund, Carol L. Gaines, and Janet C. Mahoney, Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Defendant, Albert Robinson, was convicted of rape (Ill. Rev. Stat. 1983, ch. 38, par. 11—1(a)), aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10—2(a)), unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10—3(a)), and deviate sexual assault (Ill. Rev. Stat. 1983, ch. 38, par. 11—3(a)). Following a jury trial, defendant was sentenced to concurrent prison terms of nine years, four years and nine years. On appeal, defendant contends that: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt; (2) the prosecutors’ comments during cross-examination and closing argument were improper and prejudicial, thereby denying him of his constitutional right to a fair trial; and (3) the trial court erred in denying his motion for judgment notwithstanding the verdict.

For the reasons set forth below, we affirm. The complainant testified that at about 3:30 p.m., on April 8, 1984, she was working at the Circle Hot Dog Stand on Maxwell Street when she first met the defendant, a person whom she had never seen before. He came into the hot dog stand and asked her if she had a sister attending a particular school. She responded that she did not, and the defendant left the hot dog stand. She soon left work, and while walking towards Mike’s Shoe Store to make a payment on shoes on layaway, she was again approached by defendant. He told her she was a nice looking young lady and inquired why she worked in a place like the Circle Hot Dog Stand. He told her he worked at the post office and could get her a good job. She went into the shoe store and paid on the shoes. Defendant followed her into the store.

When complainant left the store, defendant followed her out. He pulled out a knife, placed the knife at her right side and put his left arm around her shoulder. Defendant told complainant not to scream or he would kill her and that he was taking her somewhere else.

Defendant forced complainant to go with him on the eastbound bus on Roosevelt Road. She further stated that defendant grabbed the rear side door, held it open with the hand that had the knife in it and forced her onto the back of the bus with his other hand. During the ride, defendant kept his left arm around her and the knife, which was in his right hand, at her side. When the bus approached State Street, defendant pulled for her to get off; however, he kept close to her with the knife at her side as they departed the bus. They boarded and departed a second bus in the same manner. That bus proceeded in a southerly direction on State Street.

Complainant and defendant entered a housing project located at 29th and Dearborn Streets. She stated that it was at this time that she saw the knife as defendant closed it and placed it in his jacket pocket. She described it as brown and wooden with a five-inch blade and gold at the top and the bottom. Next, defendant pulled her into one of the buildings and took her to apartment 504 where a man, later identified as Curtis Hughes, opened the door. Defendant took her into the bedroom, sat her on the bed, and called her derogatory names, including a prostitute. Defendant repeatedly told complainant to take off her clothes; and when she refused, he slapped her in the face several times and threatened her. She then took off her clothes. Defendant laid her on the bed and engaged in oral sex and intercourse with her. She stated that she remained stiff, crying and shaking the entire time.

The complainant further testified that Curtis Hughes came into the room and spoke about assaulting her; however, after she cried and begged him to let her go, he left the room. After she dressed, defendant took her into the bathroom, where he took her pants down and washed her vagina with soap and water. Defendant took her to the bus stop at 29th and State Streets and told her not to tell anyone what had happened.

Upon arriving home, the complainant went directly to her bedroom but later took a bath. At approximately 12:30 a.m., she called her boyfriend, Patrick, and told him something bad had happened and asked him to come over to her house. When Patrick arrived, she told him she had been snatched off the street and raped. He then told her mother and sister, who called the police. She gave a statement to the female officer who came to the house. The officer then took her to Billings Hospital for an examination. After the examination, complainant spoke to two detectives who later accompanied her to the building at 2910 South Dearborn. While they were on the fifth floor, Curtis Hughes walked out of the apartment. The complainant identified him to the detectives, who then took Curtis into custody.

Chicago police officer Renee Daniels testified that on April 9, 1984, she and her partner were assigned to a rape case. At approximately 2 a.m., they responded to the call. They were met at the door by the complainant’s mother, who said her daughter had been raped. At first, complainant, very upset and crying, was unable to talk while Officer Daniels’ male partner was present; however, she was able to speak to Officer Daniels when they were alone. She told Officer Daniels what had happened and that she had been raped.

Patrick, complainant’s boyfriend, testified that on April 9, 1984, just after midnight, he got a call from complainant, who asked him to come over to her house. When he arrived she was crying and very upset. She told him she had been abducted and raped in the projects.

Following Patrick’s testimony, the parties stipulated that if Dr. Keene were called to testify, he would state that he examined the complainant in the early hours of April 9, 1984. This examination included a vaginal smear which he placed on a slide and gave to the Chicago police department.

Next, Jean Doliak, a microanalyst in the Chicago police department crime laboratory, testified that she analyzed the vaginal smear and concluded that the slide contained human spermatoza.

Detective Steven Barnas testified that he first interviewed complainant at the hospital on April 9, 1984. Later Detective Barnas, his partner and complainant went to the housing project at 2910 South Dearborn, where Curtis Hughes was taken into custody. Soon thereafter, the detectives approached defendant at work at the snack shop, where they found a knife in his jacket. Defendant was placed in custody; and while in custody, he gave a statement to the detectives that he had picked up a girl and had taken her to a friend’s apartment. The girl wanted some cocaine so she offered him sex for $100; however, after defendant and the girl had sex, she told him to forget about the money. On cross-examination, Detective Barnas acknowledged that defendant had also stated that he used the knife at work to open boxes.

Later that same day, the complainant identified defendant in a lineup and also identified the knife as being exactly like the one used by her assailant.

Curtis Hughes testified on defendant’s behalf. He stated that defendant often stayed in his apartment and came there on April 8, 1984, between 3:30 p.m. and 4:30 p.m. with complainant. He let them into his apartment, took complainant’s coat and asked her to sit down. The three of them proceeded to laugh, joke and talk and sit around for awhile watching television. Curtis left the apartment to meet a friend at the bus stop and returned with a girl about 30 to 40 minutes later. When he returned, the complainant and defendant were in the bedroom. Later, she came out of the bedroom and went into the bathroom alone. She then joined him and inquired if he had any money “to turn a date.” Then defendant joined Curtis, who was drinking beer, and the complainant, and the defendant proceeded to drink beer and smoke reefer. She never stated that she had been abducted. Curtis also testified that defendant left the apartment for a few minutes. However, on cross-examination, Curtis conceded that in his prior statements he never stated the complainant had asked him for a date or that anyone had left the apartment that night.

The defendant’s account of what occurred was very similar to the complainant’s version; however, his testimony differed in certain respects as follows. Defendant testified that on April 8, 1984, while waiting for a bus at approximately 3:30 p.m. at the Circle Hot Dog Stand, he and the complainant had a conversation. He then waited and left the stand with her when she got off work. They went to a shoe store together, and after she transacted her business, they left the store together and walked to Roosevelt Road to catch the bus. Defendant testified it was at this time that he told her they were going to 2910 South Dearborn. They boarded the bus by the front door, defendant paid her fare, and they sat together on the bus. They rode to State Street, where they boarded a second bus at the front door but this time they were unable to sit together. When defendant and complainant entered Curtis Hughes’ apartment, she decided she wanted to have sex with defendant. Then, she took her clothes off and lay on the bed. They engaged in sexual intercourse, but defendant did not ejaculate. Defendant stated that he did not force her to have sex with him, nor did he place his mouth on her, slap or threaten her or put a knife to her at any time. At some point during the time she was in the apartment, defendant left to get some cocaine and meet another young lady.

A jury found defendant guilty of rape, aggravated kidnapping, deviate sexual assault and unlawful restraint. The court denied defendant’s motions for a new trial and for a judgment notwithstanding the verdict.

We initially consider defendant’s contention that the evidence was insufficient to prove that he was guilty beyond a reasonable doubt. To sustain a conviction for the charges of kidnapping and unlawful restraint, the State must prove that the complainant was either abducted or secretly confined against her will or unlawfully detained by the defendant. (Ill. Rev. Stat. 1983, ch. 38, pars. 10—1, 10—3.) The State, in rape cases, is required to prove beyond a reasonable doubt that the act was committed by force and against the will of the complainant. Ill. Rev. Stat. 1983, ch. 38, par. 11—1; People v. Thomas (1981), 96 Ill. App. 3d 443, 421 N.E.2d 357; People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251.

The degree of force executed by an assailant and amount of resistance by a rape victim depends upon the facts of the particular case. (People v. Edmond (1979), 76 Ill. App. 3d 540, 395 N.E.2d 106.) The determination of force or lack thereof (and consent or lack thereof) is ultimately a matter of credibility and is therefore a question best left to the trier of fact (People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667); and in a criminal jury trial, this determination is exclusively within the province of the jury. People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267; People v. Ellis (1978), 74 Ill. 2d 489, 496, 384 N.E.2d 331; People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.

Defendant does not deny that he and the complainant had sexual intercourse; however, he asserts that his testimony that she voluntarily went with him to the housing project and engaged in sex is more credible. Defendant argues that this court must reverse his convictions because complainant’s testimony that she was forced to engage in sex with him is: (1) uncorroborated by other testimony and evidence, and (2) is so improbable, unconvincing, and unsatisfactory that it raises a reasonable doubt as to whether the acts were performed by force and against her will.

We disagree. As noted earlier, if there is a question of credibility or a conflict in the evidence, it is the function of the trier of fact to evaluate the credibility of the witnesses and to weigh the evidence and resolve any apparent conflicts therein (People v. Akis (1976), 63 Ill. 2d 296, 298-99, 347 N.E.2d 733; People v. Nally (1985), 134 Ill. App. 3d 865, 480 N.E.2d 1373), and the reviewing court has neither the duty nor the privilege to substitute its judgment for that of the trier of fact. People v. Novotny (1968), 41 Ill. 2d 401, 412, 244 N.E.2d 182.

In the present case, a jury listened to the testimony of all the witnesses, including the testimony of the defendant and the complainant, evaluated the witnesses’ credibility, reviewed and weighed this and the other evidence and then found the defendant guilty. A determination of the credibility of the witnesses and the sufficiency of the evidence will not be reversed upon review unless the evidence was so improbable as to create a reasonable doubt of guilt. (People v. Hall (1986), 114 Ill. 2d 376, 499 N.E.2d 1335.) The standard of review by which we are governed is “ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Moreover, contrary to defendant’s argument, it is not the function of the reviewing court to retry a defendant when considering a challenge to the sufficiency of the evidence of his guilt. People v. Jimerson (1989), 127 Ill. 2d 12, 43.

In view of these principles, we here conclude there is sufficient evidence to support the jury’s verdict. The knife was found in defendant’s jacket pocket at his job the day after the incident. The complainant later identified the knife as being exactly like the one her assailant held to her and used to threaten her. She testified that defendant held the knife to her and only put it away once they reached the housing complex. The housing project was an area with which defendant was completely familiar and where at least two people spoke to him by a nickname. Defendant instructed the complainant not to scream and informed her that no one would help her in his territory. Once inside the apartment, defendant again threatened her, called her derogatory names and slapped her in the face several times when she refused to remove her clothes. Under these circumstances, it would have been foolhardy for her to make an outcry. We believe she demonstrated such resistance that the acts performed upon her were against her will. The law does not require that a victim endanger her life or act in a foolhardy manner. She knew that the defendant still had a large knife which could be retrieved and used against her at any time. Rape can be established by the threat of force which coerces a female to engage in sexual intercourse, as well as by the actual use of force. Burgin, 74 Ill. App. 3d 58, 392 N.E.2d 251. See also People v. Watts (1985), 139 Ill. App. 3d 837, 487 N.E.2d 1077; People v. McMullen (1980), 91 Ill. App. 3d 184, 414 N.E.2d 214.

Additionally, there are several points of independent corroboration of the complainant’s testimony by other State witnesses. She timely reported the incident to the police. Her hospital examination revealed the presence of spermatoza in the vaginal smear. Both the defendant’s and Curtis Hughes’ testimony substantially corroborated her account of what happened, while their own testimony either conflicted with prior statements or with each other’s trial testimony.

Defendant, in reliance on People v. Rossililli (1962), 24 Ill. 2d 341, 181 N.E.2d 114, and People v. Wright (1986), 147 Ill. App. 3d 302, 497 N.E.2d 1261, contends that the complainant’s testimony — the only evidence against him — was so incredible, this court must reverse his conviction based upon that testimony. Defendant argues that she never cried out to anyone, attempted to escape or asked for help. Thus, he postulates that her testimony is not clear and convincing. Conversely, defendant maintains that his account of what occurred, that she voluntarily accompanied him to go to the housing project, that she requested drugs and consented to engage in sex, is clear and convincing. However, our review of the cases relied upon by defendant reveals that in order to sustain a criminal conviction, the testimony of the complaining witness must be clear and convincing or corroborated by other facts and circumstances.

Thus, the testimony of one witness, if positive and credible, is sufficient to convict in a criminal prosecution (Novotny, 41 Ill. 2d 401, 244 N.E.2d 182), and the testimony of the victim alone, if clear and convincing, is sufficient to support a conviction for rape (see People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367; see also People v. Fosdick (1988), 166 Ill. App. 3d 491, 519 N.E.2d 1102; People v. Luigs (1981), 96 Ill. App. 3d 700, 421 N.E.2d 611), even where the testimony is contradicted by the accused (People v. Tribett (1981), 98 Ill. App. 3d 663, 681, 424 N.E.2d 688). Clear and convincing does not mean that testimony must be uncontradicted or even unimpeached; for instance, variances in testimony may demonstrate no more than minor discrepancies which go to credibility. (See, e.g., Glover, 49 Ill. 2d 78, 273 N.E.2d 367.) Hence, we believe that the complainant’s testimony was clear and convincing and corroborated by other facts in evidence, and based upon this testimony, the trier of fact properly rejected defendant’s account of the incident.

Consequently, we here conclude that the evidence, which was weighed by the trier of fact, when viewed in a light more favorable to the prosecution, was sufficient to sustain the defendant’s convictions for rape and aggravated kidnapping. We decline to substitute our judgment for that of the trier of fact. (See People v. Laughlin (1987), 163 Ill. App. 3d 115, 516 N.E.2d 535.) The jury was in the best position to consider the testimony of the complainant and that of the defense witnesses to determine the credibility of the witnesses, the weight to be given to their testimony based on the evidence presented, and to observe the witnesses’ demeanor. The jury is not mandated to reject complainant’s testimony and accept the defendant’s version, nor does conflicting testimony of complainant and the defendant, or corroboration of the defendant’s testimony, require a reversal where the State presents evidence sufficient to convict. People v. Dixon (1976), 39 Ill. App. 3d 132, 136, 350 N.E.2d 193.

Next, defendant contends that the prosecutors’ comments during cross-examination and in closing argument substantially prejudiced his constitutional right to a fair trial. First, defendant asserts that the prosecution’s questions on cross-examination were improper and served only to arouse the antagonism of the jury. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880.) The complained-of comments here concern the prosecutor’s questions on cross-examination to the defendant inquiring about his use of a Bible.

“MR. McNERNEY [Assistant State’s Attorney]: I notice, sir, you have brought a Bible in here with you this afternoon. You took it to the stand with you, correct.
DEFENDANT: I didn’t hear you.
Q. You took the Bible with you to the stand?
A. I take my Bible with me everywhere I go.
Q. Did you take it in the room when you had sex with [complainant]?
A. I wasn’t reading my Bible — .
MR. SOSMAN [Defense attorney]: Objection.
MR. McNERNEY: Did you take it with you when you went to buy cocaine?
MR. SOSMAN: Objection.
THE COURT: Sustained.
MR. McNERNEY: You live by the book.
DEFENDANT: I am not trying to be phony. When it comes to God, I don’t play games.
Q. You live by that book?
A. I practice it.
Q. Nobody told you to bring that book in here and that it might help you to beat this case, did they?
MR. SOSMAN: Objection.
THE COURT: Objection sustained. The jury is instructed to disregard that inference.”

Defendant specifically contends that this line of questioning was initiated for only two possible purposes — to accuse defense counsel of fraud and trickery, or to ridicule the defendant — and, therefore, the questions were asked solely to arouse the antagonism of the jury. Defendant maintains that this type of prosecutorial behavior is improper, prejudicial and warrants the granting of a new trial. People v. Freedman (1954), 4 Ill. 2d 414, 123 N.E.2d 317.

It is well established that the latitude to be allowed on cross-examination is a matter within the sound discretion of the trial court, and a reviewing court will not reverse the trial court’s decision unless there is a showing of a clear abuse of that discretion that results in manifest or substantial prejudice to the defendant. See Collins, 106 Ill. 2d at 269. See also People v. Wright (1986), 111 Ill. 2d 128, 149.

The State, during oral argument, asserted that its comments on cross-examination inquiring as to the reasons why the defendant brought a Bible into the courtroom were in response to invited remarks by the defendant. We find nothing in the record which supports this contention. The record reflects that the defendant brought the Bible to court with him and took it on the stand with him when he testified. However, any significance to be attached to this occurrence escapes our reasoning. Further, the fact that defendant carried a Bible during the trial contains little or no probative value.

While we agree the comments are improper, we believe that they constitute no more than harmless error, not necessitating a reversal, where as here, they did not unduly influence the jury or result in substantial prejudice to the defendant. (People v. Tiller (1982), 94 Ill. 2d 303, 321, 447 N.E.2d 174; People v. Baptist (1979), 76 Ill. 2d 19, 29, 369 N.E.2d 1200.) In reaching our determination that the remarks did not result in substantial prejudice to the defendant, we considered: (1) the context of the language used; (2) its relationship to the evidence; and (3) its effect on the defendant’s right to a fair and impartial trial. People v. Bryant (1983), 94 Ill. 2d 514, 447 N.E.2d 301.

We conclude that the State’s questions concerning the defendant’s use of the Bible during the trial appeared to be no more than an afterthought inquiry why the defendant brought it to trial, had no relationship to any of the other evidence presented during the trial, and in no way constituted a material factor in defendant’s conviction, without which the jury might have reached a different result. (People v. Lyles (1985), 106 Ill. 2d 373, 391, 478 N.E.2d 291; People v. Lasley (1987), 158 Ill. App. 3d 614, 511 N.E.2d 661.) The court sustained defense counsel’s objections and instructed the jury “to disregard that inference.” Further, the trial court instructed the jury to disregard all questions which were withdrawn or to which objections were sustained. Accord People v. Requena (1982), 105 Ill. App. 3d 831, 435 N.E.2d 125.

Second, defendant maintains that comments by the prosecution during closing and rebuttal arguments were improper and thus mandate a reversal of his convictions. The remarks referred to are: (1) the jury should find the defendant guilty “for the women of the city”; (2) the sacrifice made by “society’s rape victims”; (3) if the jury acquitted the defendant, he would believe, “[Tjhere’s [sic] plenty of 17-year-old girls out there. Have yourself a ball”; and (4) on three separate occasions, references to the defendant as a “slick, modern-day Casanova.” Defendant contends that these remarks had no probative value, were not supported by the evidence and were made solely to inflame the passion of the jury. People v. Lee (1984), 128 Ill. App. 3d 774, 471 N.E.2d 567; People v. Frazier (1982), 107 Ill. App. 3d 1096, 438 N.E.2d 623.

Initially, we point out that of the three instances referred to regarding the remarks “slick” or “modern-day Casanova,” there was only one instance in which defense counsel objected to the remarks at trial. Since no objection was raised at trial, any alleged error concerning the first two instances is waived. Lyles, 106 Ill. 2d at 392.

As is the case with cross-examination, a prosecutor is allowed a great deal of latitude during his closing and rebuttal arguments, and a trial court is given great latitude in determining the propriety of a closing argument. (People v. Perez (1983), 113 Ill. App. 3d 143, 149, 446 N.E.2d 1229.) A conviction will not be disturbed on review unless: (1) the remarks constitute a material factor in the conviction or (2) the remarks resulted in substantial prejudice to the defendant, i.e., the jury would have reached a contrary verdict had the improper remarks not been made. People v. Witted (1979), 79 Ill. App. 3d 156, 165, 398 N.E.2d 68, citing People v. Franklin (1976), 42 Ill. App. 3d 408, 415, 355 N.E.2d 634.

In People v. Bracy (1986), 152 Ill. App. 3d 566, 576-77, 504 N.E.2d 764, the court referred to a two-part analysis to determine whether or not a trial court had abused its discretion. First, the reviewing court is required to look at the remarks in light of the record as a whole and the argument in its entirety. Second, the court must then determine whether the remarks were a material factor in the conviction.

In the case at bar, as earlier noted, the testimony of the complainant was clear and convincing and corroborated by other facts and circumstances, including the physical evidence of the knife found in defendant’s jacket at the time of his arrest. Further, during his examination, the defendant had an excuse for every factor which pointed towards any element of guilt. Defendant stated that he was in the area to take care of some business, the knife was used for work, he initially approached complainant because she looked like “her sister who went to a school,” and he needed her telephone number for a job application. Although defendant waived his right of review to the repeated remarks “slick, modern-day Casanova,” nonetheless, we believe they fall within legitimate recognized boundaries and in no way prejudiced the defendant’s right to a fair trial or affected the jury’s deliberations. (See Lasley, 158 Ill. App. 3d at 633.) Under these circumstances, it was not unreasonable for the prosecutor to comment how the defendant intended to “slide” out of this one.

Nor do we believe improper the statements regarding rape victims and 17-year-old girls, where the defendant here was charged with the crimes of rape and deviate sexual assault, crimes he was accused of perpetrating upon a young woman, 17 years old at the time of the incident. A prosecutor can argue any logical inference that can be drawn from the evidence. (People v. Higgins (1972), 50 Ill. 2d 221, 228, 278 N.E.2d 68.) The defendant admitted visiting Curtis Hughes’ apartment often, a fact also corroborated by Curtis’ testimony. In light of the record as a whole, and the entire argument of the State, predominantly based upon the evidence presented and inferences to be drawn therefrom, we do not believe that absent the remarks, a contrary verdict might have been reached. We conclude that the prosecutor’s statements made during closing argument were proper (see Lasley, 158 Ill. App. 3d at 625; Bracy, 152 Ill. App. 3d at 575), or at the very least, constituted harmless error, and that the trial court did not abuse its discretion.

The record demonstrates that defense counsel objected to the remarks and the court either sustained the objection or the prosecutor moved on to another subject. Further, the court admonished the jury that neither opening statements nor closing arguments were evidence and that any statement or argument made by the attorneys which was not based on evidence should be disregarded. Thus, any potential prejudice or alleged impropriety was cured when defense counsel’s objections were promptly sustained (Perez, 113 Ill. App. 3d at 149), and the court properly admonished and instructed the jury. Baptist, 76 Ill. 2d 19, 369 N.E.2d 1200.

Next, defendant maintains that his right to a fair trial was violated where the trial court improperly considered his motion for judgment notwithstanding the verdict. Defendant contends that remarks made by the trial judge during the hearing on defendant’s motions for a new trial, or in the alternative, for a judgment notwithstanding the verdict, indicate the judge did not use the proper “sufficiency of evidence” standard of review which is applied to both motions for directed verdict and judgment notwithstanding the verdict. (People v. Rey (1985), 136 Ill. App. 3d 645, 483 N.E.2d 982.) The remarks referred to are the trial judge’s comments that “[tjwelve jurors found this man guilty of rape. I am not going to set it aside. Well, you had an alternative you didn’t exercise the alternative, of waiving the jury, so in my opinion, I have to accept the jury’s finding.”

The State responds that a motion for judgment notwithstanding the verdict was not available to defendant because he failed to make a motion for directed verdict at the end of the State’s case or at the close of all of the evidence. Thus, the State argues that the trial court had no authority to consider defendant’s motion for judgment notwithstanding the judgment; however, the court did consider the motion and that consideration was correct.

Neither the directed verdict nor the judgment notwithstanding the verdict was available at common law in criminal trials. (People v. Van Cleve (1982), 89 Ill. 2d 298, 303, 432 N.E.2d 837.) In Illinois, the motion for directed verdict was recognized in the 1930’s. (Van Cleve, 89 Ill. 2d 298, 432 N.E.2d 837.) Today, the Code of Criminal Procedure expressly provides for the directed verdict in criminal proceedings. (Ill. Rev. Stat. 1983, ch. 38, par. 115—4(k).) Pursuant to this provision of the Code, a trial court can enter a judgment of acquittal when the evidence is insufficient to support a guilty finding. Although this provision does not expressly provide that a trial court has the authority to enter a judgment notwithstanding the verdict, case law has interpreted the judgment notwithstanding the verdict to be in substance and effect the same as a directed verdict and thus within the province of the trial court. Van Cleve, 89 Ill. 2d at 303; Rey, 136 Ill. App. 3d at 650.

In People v. Van Cleve, at the close of all the evidence, the defendants moved for directed verdicts, which the judge denied. After the verdicts were returned, defendant Van Cleve requested a judgment of acquittal in his motion for a new trial. The trial court entered a judgment of acquittal notwithstanding the verdicts for both defendants. Our supreme court sanctioned the entry of a judgment of acquittal by the trial judge on the grounds that it was proper for the judge to enter the judgment of acquittal notwithstanding the verdict if the judge concluded that his earlier decision denying the directed verdict was erroneous.

We agree that the People v. Van Cleve court’s analysis rests in part on the well-established principle that a trial court has inherent power to correct its interlocutory rulings. The State argues that People v. Van Cleve entitles a defendant to a judgment notwithstanding the verdict following a guilty verdict only where the trial court has previously denied the defendant’s motion for a directed verdict during trial. Although we have found no cases since People v. Van Cleve and-People v. Rey which are dispositive of the issue, our analysis, however, does not result in such a restrictive reading of People v. Van Cleve.

While ordinarily a defendant should know at the conclusion of the State’s evidence, or at the close of all the evidence, whether as a matter of law the evidence is insufficient to support a finding of guilty, there may be some circumstances where matters were not called to the court’s attention until after the verdict is returned, where a judgment of acquittal notwithstanding the verdict is proper even in the absence of a previous court denial of a motion for directed verdict. It is our view that the trial court maintains its inherent authority to correct previous erroneous rulings. Accord Van Cleve, 89 Ill. 2d 298, 432 N.E.2d 837.

A motion for a directed verdict asserts only that as a matter of law the evidence is insufficient to support a finding or verdict of guilty. (People v. Withers (1981), 87 Ill. 2d 224, 230, 429 N.E.2d 853.) The trial court considers only whether a reasonable mind can fairly conclude the guilt of the accused beyond a reasonable doubt, viewing the evidence most strongly in the State’s- favor. By parallel, a motion for judgment notwithstanding the verdict should be granted in instances only where the State’s evidence, when viewed in a light most favorable to the State, is insufficient to support a finding or verdict of guilty. See People v. Easter (1981), 102 Ill. App. 3d 974, 981, 430 N.E.2d 612.

In People v. Withers the supreme court found that the trial judge’s summary ruling on the defendant’s motion for directed verdict was not an abuse of discretion nor was it arbitrary. By comparison, the State’s evidence in the case at bar was presented in a short trial where the charges were uncomplicated. Defendant maintains that the judge’s remarks alone indicate he used the wrong standard of review. However, we believe the remarks referred to were cited by defendant out of context.

Our review of the record reveals that during the sentencing hearing on June 16, 1986, defendant presented argument on his motion for a new trial, or in the alternative, motion for judgment notwithstanding the verdict. The court denied both motions, commenting “[tjwelve jurors found this man guilty of rape. I am not going to set it aside.” Then, the hearing was continued until July 7, 1986. At this time, defense counsel again attempted to present evidence of defendant’s innocence. Counsel remarked that 85% of the juries find defendants guilty when they are charged with rape. It was in response to this and similar remarks that the trial judge remarked, “[wjell you had an alternative.” Hence, we believe that these remarks made by the trial judge during the sentencing hearing referred solely to the defendant’s decision to be tried by a jury and in no way represented the judge’s opinion or affected his ability to apply the correct standard in ruling on the motion for judgment notwithstanding the verdict.

Accordingly, in the absence in the record of any facts to the contrary, we believe that the trial court properly denied the defendant’s motions for a new trial, based on the weight of the evidence, and also properly denied the defendant’s motion for judgment notwithstanding the verdict, based on the sufficiency of the evidence standard. Accord Rey, 136 Ill. App. 3d at 650-51.

For the reasons above stated, the judgment of the circuit court is affirmed.

Judgment affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LaPORTA JUSTICE McNAMARA,

license: Public Domain

text:
      In re MARRIAGE OF STEVEN EDSEY, Petitioner-Appellee, and LYNNE EDSEY, n/k/a Lynne Yandura, Respondent-Appellant.
    First District (6th Division)
    No. 1—89—0008
    Opinion filed March 30, 1990.
    Rehearing denied June 12, 1990.

      Richard Gigante, EC., of Chicago (Paul R. Jenen, of counsel), for appellant.
    Kalcheim, Schatz & Berger, of Chicago, for appellee.
   JUSTICE LaPORTA

delivered the opinion of the court:

This appeal arises out of a determination regarding custody of the minor child and regarding a petition for attorney fees in connection with the judgment of dissolution of marriage of the petitioner, Steven Edsey, and the respondent, Lynne Edsey, n/k/a Lynn Yandura. The trial court awarded physical custody of the parties’ eight-year-old son, Douglas, to the petitioner and ruled, in petitioner’s favor at the close of respondent’s case on her petition for attorney fees. Respondent appeals the custody determination regarding Douglas and the ruling on her petition for attorney fees.

The evidence adduced at trial established that the parties were married on March 14, 1971. Steven Edsey, Jr., was born December 6, 1971; David Edsey was born June 3, 1973; and Douglas Edsey was bom March 12, 1980. The parties separated on October 4, 1984, and on March 7, 1985, a judgment for dissolution of the marriage was entered. That judgment incorporated the separation agreement between the parties which provided that they were to maintain joint legal custody of the three minor children and that physical custody was to be shared equally. At that time the parties lived within a mile of each other in Park Ridge, Illinois. Petitioner had physical custody of the children on 8 of 14 nights over a two-week period and on alternating weekends. Respondent had physical custody of the children during the weekdays, on the remaining 6 of 14 nights, and on alternating weekends. This visitation schedule was maintained by the parties until May 1986, when respondent moved to Lake Bluff, Illinois.

Respondent began dating her current husband, Gary Yandura, in September 1985, and subsequently sought an order of protection alleging that petitioner had pursued a course of action to harass, abuse, and annoy her. On December 19, 1985, the court entered an agreed order enjoining petitioner from harassing, annoying, or intimidating the respondent. On March 11, 1986, respondent married Gary Yandura, who was employed by the Lake Forest police department and was required to reside within 10 miles of the Lake Forest Public Safety Building. On May 3, 1986, respondent and Yandura moved into a home in Lake Bluff, Illinois, in accordance with the residence restriction imposed by Yandura’s employment. Prior to her move to Lake Bluff, respondent asked her two older sons whether they desired to move with her or to stay with their father in Park Ridge. Both boys indicated that they preferred to live with her if she remained in Park Ridge. If she moved to Lake Bluff, however, they wished to live with their father so that they could continue at their present schools and be near their friends. Respondent agreed that the two older boys could remain with their father.

Because Douglas was five years old when respondent moved to Lake Bluff with Yandura, she did not offer Douglas a choice as to where he wanted to live. Although she initially considered having all three boys live with their father, respondent subsequently concluded that Douglas should remain in her care because of his young age. On April 28, 1986, petitioner sought an injunction preventing respondent from removing Douglas from his kindergarten class in the Park Ridge school system prior to the completion of the 1985-86 school year, and the court entered an order requiring respondent to keep Douglas in the Park Ridge school system. The order further required respondent to deliver him to and pick him up from school. In accordance with the court’s order, respondent drove Douglas daily to and from his school in Park Ridge from May 1986 until the conclusion of the school term.

During the summer of 1986, all three of the parties’ sons lived with respondent in her home in Lake Bluff. In the autumn of 1986, the two older boys returned to their home with their father and resumed school with their classmates in Park Ridge. Douglas remained with respondent and commenced first grade in Central School in Lake Bluff. Respondent was not employed at that time and cared for Douglas before and after school. She also drove Douglas to his father’s home in Park Ridge every Friday evening so he could spend the weekend with his father and brothers. On April 30, 1987, petitioner brought his petition seeking sole custody of Douglas.

At the hearing on the petition, petitioner testified that during the weekends, he and Douglas played football together and went to bookstores with the two older boys. They sometimes built things together in the basement or went bicycling or to their farm in Wisconsin, where they had good friends. Douglas also played with his brothers and with his friend, Patrick, who lived in the house next to petitioner’s. When he arrived, Douglas was very excited to see his brothers and liked to sleep with petitioner or with one of his brothers.

Petitioner testified further that Douglas expressed feeling lost at respondent’s home and as though he lived with strangers. He also told petitioner of having several nightmares in which he was chased by snakes or people who were trying to kill him. In one such nightmare, Douglas dreamt that respondent and Yandura had turned into green monsters and killed him. In another, he dreamt that respondent had left him at a grocery store and that there was no one around to help him. After each of these nightmares, petitioner assured Douglas that they were just dreams and that he was in no danger. Petitioner also indicated that Douglas had made several statements about the possibility of his own death. On each of these occasions, petitioner assured Douglas that he was not going to die. Petitioner indicated further that Douglas appeared very depressed when it was time to return to his home in Lake Bluff after spending the weekend in Park Ridge and that Douglas had told him many times that he wanted to live with him and his brothers in Park Ridge. In response, petitioner had told Douglas that he would do everything he could to have Douglas reside with him in Park Ridge.

Petitioner acknowledged that he had not attended any school functions or parent-teacher conferences for Douglas, but explained that he avoided these events because he had previously been threatened by Yandura. He also acknowledged that since September 1986, respondent had provided him with each of Douglas’ report cards. He stated further that although he had called Douglas’ school and requested notice of parent-teacher conferences, he had received no response.

Respondent testified that after her marriage to Yandura, she and Douglas moved to their home in Lake Bluff, Illinois. During the summer of 1986, all three of her sons lived with her, and respondent was able to observe them together. Yandura’s two children from a prior marriage also lived in their Lake Bluff home at that time. Respondent observed that Douglas spent much more time playing with Brad Yandura, her husband’s six-year-old son, than he did with his older brothers. Steven Jr. and David spent a lot of time watching television together and frequently teased Douglas, instigating arguments. Respondent indicated that her three sons spent very little time together and fought a lot when they were together.

From September 1986 through June 1987, respondent saw her two older boys approximately once a month and when they had days off school or on holidays. Respondent stated that she had requested more time with Steven Jr. and David, but petitioner refused to allow her to take them on additional weekends and told her that if she wanted to see them more, she would have to drive to his home in Park Ridge during the week. From January 1, 1987, through the end of the school term, petitioner did not offer respondent any weekend visitation with either of her two older sons. In the summer of 1987, petitioner requested that respondent take custody of all three boys during the week and allow him to take them on the weekends. After some discussion, the parties agreed that the boys would stay with petitioner from Friday evening through Tuesday and with respondent from Wednesday to Friday. During that time period, Douglas spent most of his time playing with his friends in Lake Bluff and spent very little time with his brothers.

Respondent testified further that Douglas had grown very close to Brad Yandura and that they got along very well together. During the week, respondent cared for Douglas before and after school, including preparing his breakfast, lunch, and after-school snack. When Douglas returned from school, she spent time with him before he went out to play with his friends or to attend other activities. While living in Lake Bluff, Douglas became involved in a Cub Scout troop and attended CCD classes. Respondent drove him to and from these activities. During the summer of 1987, Douglas took swimming lessons for four weeks, attended summer school for two weeks, and took tennis lessons for two weeks. During the 1986-87 school year, Douglas received the “Student of the Month” award in his class. Douglas had done very well in school that year and had worked very hard when compared to his performance at the Park Ridge school.

Respondent testified that she did not learn until February 1987 that petitioner required Douglas to wear diapers because of bed wetting. When she became aware of this situation, respondent immediately spoke to petitioner about it, indicating that Douglas should not be wearing diapers at his age and that he had to take responsibility for his actions. She stated further that Douglas very rarely wet the bed in her home and that it usually only occurred on Sunday nights after Douglas had spent the weekend at petitioner’s home in Park Ridge. Other than those rare occasions after he had stayed with petitioner, Douglas did not wet the bed at all in her home. Respondent also stated that Douglas had not had any nightmares about snakes when he slept in her home and did not talk about death to her. He did, however, have two nightmares in August 1987 and one in January 1988.

Respondent indicated that petitioner had not participated in any of Douglas’ school activities and did not request to be included in them. Petitioner had never asked her about parent-teacher conferences or requested the names of Douglas’ teachers or counselors. Although petitioner never requested copies of Douglas’ report cards, she provided them to him. When respondent requested that petitioner send her the report cards of Steven Jr. and David, petitioner responded that he did not even know that the report cards had been issued. Respondent subsequently obtained copies of these report cards directly from the school attended by her sons. Respondent acknowledged that she had not advised petitioner of conferences at Douglas’ school or that Douglas had been receiving counseling from Naomi Zimmerman.

Respondent stated that Douglas had established ties with children in Lake Bluff and that she had been providing a very good, loving, and emotionally secure environment for Douglas. In addition, she had provided all of his clothing and school supplies over the previous two years. She believed that her three sons were happy with the current custody arrangement. Finally, respondent acknowledged that she had never sought the court’s permission to modify the joint custody agreement, but testified that she would have adhered to the previous schedule if petitioner would have shared in the responsibility for transporting Douglas to and from the parties’ homes.

Steven Edsey, Jr., testified that he was 16 years old and was a sophomore in high school. He was employed part time at the YMCA and worked three afternoons each week as well as Saturday mornings. He also played music with a band and practiced his guitar for one hour each night. He practiced with the band on Mondays after school, on Friday nights, and on Saturdays. Steven Jr. did homework for approximately one-half hour each night, then took a shower and went to bed about 10 p.m.

He indicated that he missed Douglas a lot and spent all of Sunday and most of Saturday with him. Douglas had told him more than once that he wanted to live with his father and brothers in Park Ridge. Steven Jr. stated that petitioner appeared unhappy when respondent remarried and had expressed sadness to him about the fact that Douglas did not live with them.

David Edsey testified that he was 14 years old and was a freshman in high school. He indicated that he took care of their new dog, which was acquired for Douglas on March 12, 1988. He stated further that he usually had dinner with Steven Jr. and their father. David then did his homework and watched television with his brother. On weekends, Douglas played with his friend, Pat, who lived in the house next to theirs. David said that he often played football or computer games with Douglas and Pat. He usually spent Friday night and all of Saturday morning with Douglas.

David also testified that Douglas had said that he wanted to go to Field School in Park Ridge and that he liked it when he was around his brothers. David indicated that he was sad that Douglas did not live -with him and missed him a lot. He would rather have Douglas live with him and talked to him almost every night on the telephone. David also stated that petitioner talked to him every couple of days about how sad he was that Douglas did not live with them.

Douglas Edsey testified that he felt fine while staying with respondent in the Lake Bluff home and indicated that everything was perfect there. He played with Brad a lot, watched television, and did things with respondent and Yandura. He indicated that when he stayed at petitioner’s home, he played with his new puppy and with his friends, Patrick and Kevin. Douglas stated further that he sometimes played computer games with his brothers. When he was at petitioner’s home, he most liked being with his brothers and with petitioner. Douglas stated that the best place for him to live was with petitioner so he could visit with his brothers.

Gary Yandura testified that he shared joint custody of his two children, Brad, age 6, and Amy, age 9, with his former wife. Although his children lived with their mother, he saw them once during the week and on alternating weekends. Yandura indicated that Douglas got along well with both of his children and had a close relationship to Brad. During the summer of 1986, Yandura observed that Douglas sometimes watched television with Steven Jr. and David, but that most of his time was spent playing with Brad and Amy. Yandura stated that he had participated in activities with all of the children, including swimming and a trip to Great America amusement park.

Yandura testified further that he met with Douglas’ first-grade teacher for conferences and accompanied respondent to two school assemblies. He also attended two school functions during the 1987-88 school year and went to two parent-teacher conferences. Yandura indicated that he participated with Douglas in the Cub Scout troop and felt good about his ability to communicate with Douglas.

Douglas’ first-grade teacher, Delores Januik, and his second-grade teacher, Patricia Quade, both testified that Douglas had done well in their classes, was well liked by the other children, and had developed friendships with his peers. Both teachers indicated that they became acquainted with respondent and Yandura at conferences and other functions. Neither of the teachers had ever met petitioner. Januik stated that the school honored requests by parents for information regarding a student’s progress or regarding dates of parent-teacher conferences.

Peggy Edsey, petitioner’s mother, testified that she was employed as a social worker and intended to commence working on a part-time basis when she reached 62 years of age in July 1988. Mrs. Edsey stated that she and petitioner had discussed the possibility of her caring for Douglas after school if petitioner was awarded custody. Mrs. Edsey acknowledged that she told Dr. Bussell that respondent was a quality mother and testified that she still believed that.

Lynn McGain testified that she lived in the house next to petitioner’s. She indicated that her son, Patrick, was very close to Douglas and that they usually play together when Douglas visits petitioner on weekends. McGain stated further that she had agreed to care for Douglas before and after school in the event that petitioner’s mother was unavailable.

Naomi Zimmerman testified that she was a psychiatric social worker, family therapist, and child therapist employed by the Family Services of South Lake County in Highland Park and had been involved in this type of social work for 50 years. She first met respondent, Yandura, Douglas, Brad, and Amy on June 30, 1986, when they requested guidance in blending their two families. Zimmerman met with the individual family members and with the family as a unit on 25 occasions during a two-year period.

During September 1986, Douglas went through a period in which he refused to talk to Yandura or to Brad or Amy. This behavior was radically different from that exhibited by Douglas on prior visits. Previously, Zimmerman had observed all three children playing remarkably well together. During an individual interview with Douglas, Zimmerman questioned him about his change in attitude. Douglas responded that he was not supposed to play with strangers and that Yandura and his children were strangers. He explained that both his brothers and petitioner had told him that he should not live with strangers. After this meeting with Zimmerman, Douglas’ attitude improved considerably until December 1986, when he said that people were asking him too many questions such as with whom he wanted to live. Zimmerman noted that Douglas appeared very upset on another occasion during the autumn of 1987 because he had wanted to attend a friend’s birthday party in Lake Bluff but was unable to do so because petitioner was unwilling to wait two additional hours before picking him up.

Zimmerman related that Douglas had been very happy living with respondent and Yandura when she began her sessions with the family. In August 1986, Douglas told her that he liked living with respondent and Yandura and he was able to see his brothers and petitioner every weekend. Zimmerman’s last visit with Douglas was on December 14, 1987. She saw no further reason to see him because he had been making excellent adjustment to his school and friends.

Although she had never met Steven Jr. and David, Zimmerman knew that Douglas loved his brothers. She also indicated that she thought that petitioner had been a good father based upon Douglas’ responses about him. Zimmerman stated that she believed respondent’s marriage to Yandura was a sound one and recommended that respondent maintain custody of Douglas. Although this meant separating him from his brothers, Zimmerman testified that in her opinion it was more important for him to remain in the stable home environment established by respondent than to be with his brothers and be cared for by a “substitute mother” when petitioner was unavailable. Finally, Zimmerman stated that she was aware of the large age difference between Douglas and his two older brothers and indicated that in a short time their interests would be very different from his.

Dr. Robert Bussell, who was retained by petitioner, testified that he had been licensed to practice medicine in the State of Illinois since 1958 and had been eligible to practice psychiatry for 25 years. He specialized in the field of adult and child psychiatry. Bussell interviewed petitioner, respondent, their three sons, and Gary Yandura. As a result of these interviews, Bussell found no significant psychopathology in either petitioner or respondent. He also found nothing which would interfere with the ability of either party to be an appropriate parent to Douglas.

Bussell did, however, detect what he considered to be a significant psychopathology in Douglas. He believed that Douglas suffered from reactive depression, which is frequently experienced when one suffers a loss. Bussell found Douglas to be confused about the instant custody battle. He testified that Douglas demonstrated confusion in terms of his loyalty to respondent as opposed to his brothers and petitioner. Douglas exhibited separation anxiety and did not feel secure in his setting. Bussell concluded that Douglas demonstrated a depressed affect.

Bussell perceived Douglas as a sensitive youngster who exhibited exaggerated fear and anxiety relative to separation. He stated that these fears and anxieties were expressed in a relatively active fantasy life replete with themes of loss, separation, and death. Bussell felt that Douglas would need ongoing therapy regardless of which parent had custody, but believed that Douglas’ emotional stability would be increased if custody was awarded to petitioner.

Bussell noted that Douglas never expressly verbalized his preference about where he wanted to live. Bussell believed, however, that his preference was manifested during a game in which Bussell played the role of a judge and showed Douglas one piece of paper which said “Mom” and another which said “Dad.” Bussell asked Douglas to give him the piece of paper indicating with whom Douglas wanted to live. Douglas selected the piece of paper which said “Dad.” Bussell later told Douglas that he intended to suggest to the court that Douglas live with his father and inquired whether Douglas wanted that suggestion changed. Douglas said he did not and that he wanted the suggestion to get to the judge soon.

Bussell found no evidence that respondent had abandoned Douglas or that he was not perfectly cared for by her. He also found no psychopathology in Yandura which would preclude him from being an appropriate step-parent to Douglas. Bussell noted that Douglas got along well with both of Yandura’s children and was especially close to Brad. When Bussell questioned Douglas about his bed wetting, Douglas stated that he thought it was caused by the fact that he drank more water when he stayed with petitioner and that his mother gets more upset when he wets the bed. He also indicated that he preferred that petitioner not put diapers on him and that he would like to try to see if he can go without wetting the bed in petitioner’s home.

Bussell concluded that Douglas had a very close relationship with his brothers and was confused as to why he was not living with them. He indicated that Douglas did not want to be disloyal to either parent. Bussell stated that in his opinion, it was in the best interest of Douglas to have custody transferred from respondent to petitioner. Bussell believed that this would afford Douglas a better feeling of stability and that it would be detrimental to Douglas’ mental health to keep him separated from his brothers. Although Bussell could not be certain, he did not believe that Douglas’ responses had been influenced by petitioner or by his brothers.

Dr. Margaret Wein testified that she was a licensed psychiatrist associated with the Cook County Psychiatric Institute. In accordance with the Institute’s established procedures, Mary J. Fleming, a social worker, evaluated Douglas, David, and Steven Jr. as well as Gary Yandura. Wein examined petitioner and respondent.

Upon consideration of Fleming’s report and her own observations, Wein concluded that it was in the best interest of Douglas to continue the current arrangement whereby the parties shared physical custody of Douglas. This conclusion was based in part upon the fact that respondent had always been the primary caregiver and a very good parent. In addition, respondent was willing to agree to visitation with petitioner each and every weekend. Wein noted that Douglas expressed very positive feelings toward respondent and liked the fact that she was there when he came home from school. Wein also found it significant that Douglas’ main focus in his interviews was not that he missed petitioner, but was that he missed his brothers.

Wein stated that although it was usually not preferable in a custody case to separate siblings, this case was different because the two older boys chose to stay in their old neighborhood with their friends and father. Wein also found it significant that there was a great age difference between Douglas and his brothers and, consequently, the two older boys were in an entirely different social group with different interests and activities.

Wein indicated that she focused on which party was the better parent to have custody rather than on how many hours Douglas would spend with his brothers. She stated further that she believed Douglas would be unhappy regardless of which party had physical custody because he would not be able to live with both of his parents together. Wein noted that during one interview Douglas indicated that he wanted to live with respondent, but in another interview he stated that he wanted to live with petitioner. Wein was not surprised that Douglas’ statements were contradictory because he wanted to be with both of his parents. Wein also explained that Douglas appeared to have experienced a lot of pressure from his brothers and petitioner to side with them against respondent.

Dr. Karen Smith testified that she was an attorney and a clinical psychologist employed by the circuit court of Cook County. Smith interviewed and evaluated both petitioner and respondent. Based upon her evaluation of the parties, Smith indicated that petitioner exhibited mood instability and believed that it would not be in Douglas’ best interest to be in petitioner’s custody. Smith indicated further that respondent exhibited a conventional outlook within the bounds of reality and was in touch with her emotions. Smith also noted that respondent appeared to be a caring and involved parent with no gross psychopathology that would interfere with her ability to care for Douglas. Smith concluded that there was no need to alter the current living conditions of Douglas.

Upon consideration of all of the evidence presented, the trial court found by clear and convincing evidence that there had been a fundamental change in the geographic location of the parties which required a modification in custody of Douglas. The trial judge then indicated that she had considered all of the required statutory factors and concluded that it was in Douglas’ best interest to grant custody to petitioner. The judge stated that a child’s preference as to his custody was important and indicated further that she was satisfied that Douglas’ preference was to live with his brothers who lived with his father. The trial judge specifically stated, however, that she had not based her decision to modify custody upon Douglas’ separation from his brothers.

Respondent subsequently filed a petition for attorney fees, and at the hearing on her petition, she testified that she had incurred legal expenses totalling $24,810, of which she had already paid $20,412. She stated that she had taken out a home equity loan in order to pay her counsel $15,000 of that amount in June 1988. She had also borrowed $5,300 from her parents to pay counsel and she had repaid her parents about 50% of that amount. She had also paid her appellate counsel the sum of $7,000 plus an additional $2,300 for the payment of trial transcripts.

Respondent testified further that she had an equity line of credit against her home in the amount of $23,000 of which she had used $15,000 to pay counsel in June 1988. Her various savings and checking accounts reflected balances totaling $4,088. Respondent also indicated that she was working as a crossing guard five days each week during the school term, earning a net salary of $159 each two weeks. She stated that she had no other source of income and that she was a housewife. She also indicated that she had been employed throughout her marriage to petitioner and had last worked on a full-time basis in 1969.

The parties stipulated that respondent’s counsel was an expert in the field of matrimonial law and that his hourly fees were reasonable for divorce specialists in the Chicago community given his level of competence. The parties further stipulated that the summary of hours expended in these proceedings by respondent’s counsel correctly set forth all of the time expended by him in representing respondent.

Petitioner testified that he owned a corporation of which he was president. The evidence disclosed that petitioner earned gross wages of $60,000 in 1986, $70,000 in 1987, and $78,000 in 1988. His corporation paid for his health insurance and for the health insurance for his three sons. His corporation purchased a 1987 Chevrolet Suburban vehicle in 1987 which was used by petitioner for his personal needs. Petitioner testified further that he owned a home in Park Ridge, a farm in Wisconsin, and had various other investments having values totaling $180,000. He stated that he had paid legal fees for representation in these proceedings in the amount of $19,500.

At the close of respondent’s case on her petition for fees, the trial judge indicated that respondent had an additional equity line of credit of $8,000 and found that she could not determine what respondent’s income would be. In a verbal ruling, the court denied respondent’s petition for fees. Thereafter, the court on its own motion entered a written order which augmented her verbal ruling. The written order reflected that respondent had not shown her inability to pay her attorney fees in that there had been no showing as to why she was not capable of gaining full-time employment.

Approximately six months after the trial court awarded physical custody of Douglas to petitioner, respondent filed a petition for modification of the court’s custody order in which she asserted that there had been changes in circumstances which adversely affected the physical, mental, and emotional health of Douglas. Respondent’s petition requested that physical custody of Douglas be returned to her. The record indicates that this matter was referred to the mediation program of the domestic relations division of the circuit court of Cook County, but does not disclose the ultimate disposition of respondent’s petition for modification.

Initially, we note that the trial court’s ruling on the custody of Douglas was entered on May 6, 1988. The record reveals that the order of May 6, 1988, denied petitioner’s request for sole custody of Douglas, reaffirmed the prior order of joint custody, but altered the place of residence of Douglas. This order also stated that the issue of visitation with Douglas was reserved for the parties’ agreement or for further determination by the court, specifically provided for the filing of petitions for attorney fees by both parties, and reserved judgment on those issues. The order entered on May 6, 1988, did not contain a finding that it was final and appealable under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). On November 17, 1988, the trial judge entered a verbal ruling denying respondent’s petition for attorney fees. On November 30, 1988, the trial court on its own motion entered a written order which augmented the prior verbal ruling on respondent’s petition for attorney fees. The written order indicated only that respondent had not shown her inability to pay her attorney fees in that there had been no showing as to why she was not capable of gaining full-time employment. This order did not reflect that it was final and appealable under Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). On December 20, 1988, the court entered an order disposing of all pending issues, including visitation with Douglas, child support, and attorney fees. This order stated that it was final and appealable. The notice of appeal was timely filed on January 5, 1989.

We next address respondent’s contention that the trial court erred in awarding petitioner custody of Douglas.

Section 610(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that a court shall not modify a custody judgment unless it finds by clear and convincing evidence, upon facts that have arisen since, or were unknown at the time of, the prior custody order, that a change has occurred in the circumstances of the child or his custodian and that modification is necessary to serve the best interest of the child. (Ill. Rev. Stat. 1987, ch. 40, par. 610(b).) This provision reflects an underlying policy favoring the finality of child custody judgments and creates a legislative presumption in favor of the present custodian, thereby promoting the stability and continuity of the child’s custodial and environmental relationship which is not to be overturned lightly. In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 499, 485 N.E .2d 367, 371; In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E .2d 1385, 1389.

In child custody proceedings, the best interest of the child is of paramount concern (In re Marriage of Hazard (1988), 167 Ill. App. 3d 61, 69, 520 N.E.2d 1121, 1126), and section 602 of the Act sets forth certain factors which must be considered by the court in determining the best interest of the child, which include the wishes of the child’s parents, the wishes of the child, the interaction and interrelationship of the child with his parent or parents, his sibling and any significant others, and the child’s adjustment to his home, school and community (Ill. Rev. Stat. 1987, ch. 40, par. 602(a); Shoff v. Shoff (1989), 179 Ill. App. 3d 178, 184, 534 N.E.2d 462, 466).

In the instant case, the trial court found by clear and convincing evidence that respondent’s move to Lake Bluff altered the geographic location of the parties and constituted a fundamental change in circumstances which required a modification in custody of Douglas. With respect to the best interest of the child, the court found Dr. Bussell’s testimony persuasive and indicated that Douglas’ preference was important, finding that Douglas preferred to live with his brothers who lived with his father. The trial judge stated that she was clearly convinced that it was in Douglas’ best interest to award custody to petitioner. Although the judge indicated that she had considered all of the required statutory factors, the record does not reflect that these factors were analyzed within the evidence before the court. Rather, it appears that the court’s decision was predicated primarily upon the testimony of Dr. Bussell and upon Douglas’ in camera statement that the best place for him to live was with his brothers who lived with his father.

The court’s primary reliance on these factors attributed to them undue importance where the evidence revealed that Douglas had in other interviews expressed a preference for residing with the respondent and that his main focus was not that he missed the petitioner, but that he missed his brothers. We find it significant that Bussell testified that Douglas never verbally expressed a preference for living with the petitioner and that this testimony corroborated other evidence indicating that Douglas wanted to live with both of his parents together and was very confused about where his loyalties should lie. There was also evidence that Douglas had been pressured by his brothers and by petitioner to side with them against respondent, and Bussell acknowledged that he could not be certain that Douglas’ responses had not been influenced by his brothers or by petitioner.

This evidence indicates that Douglas’ in camera statement and his responses during his interview with Bussell were less than reliable indicators of his desires as to which party should have custody. Moreover, it has been held that a court need not ascribe controlling weight to a child’s preference where the child is not mature or where there is no indication that the preference was based on sound reasoning. (Shoff, 179 Ill. App. 3d at 185, 534 N.E.2d at 467.) A court may find that the child’s preference is not in the child’s best interest (In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 810, 499 N.E.2d 1042, 1054), especially where the child’s reasons are not related to his best welfare (Shoff, 179 Ill. App. 3d at 185, 534 N.E.2d at 467; In re Marriage of Jones (1987), 160 Ill. App. 3d 593, 597, 513 N.E.2d 1181, 1184). In addition, it has been held that it may sometimes be in the best interest of the child to separate him from siblings. Hazard, 167 Ill. App. 3d at 70, 520 N.E.2d at 1127; In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 587, 487 N.E.2d 739, 742.

In the instant case, it is clear that eight-year-old Douglas cannot be considered mature and that his responses were not related to his best welfare, but were motivated solely by his desire to be with his brothers.

In making her ruling, the trial judge specifically noted the length of Dr. Bussell’s report and stated that she found that report persuasive. We do not believe that the length of a psychiatrist’s report, the number of issues addressed, or the number of persons interviewed are necessarily controlling factors in consideration of a custody case, and we note that the witnesses for respondent also addressed all of the relevant issues.

In addition, some of the evidence which could have impacted upon the court’s analysis of the statutory factors was apparently overlooked or greatly discounted. Specifically, the evidence established that Douglas experienced nightmares and a problem with bed wetting when he stayed with petitioner. Even though he had occasionally experienced these problems in respondent’s home, it was rare, and they occurred with much greater frequency at petitioner’s home. Although petitioner had reassured Douglas that he need not fear nightmares or death, his response to the bed-wetting issue was to put diapers on his son, which Douglas told Bussell he disliked. There was no evidence that petitioner had ever attempted or even considered obtaining some form of counseling or guidance to help Douglas overcome these obstacles.

Moreover, the evidence indicated that Douglas had, in fact, become integrated into his home, family, school, and community in Lake Bluff. He had grown very close to Brad Yandura, had developed ties and friendships with peers, and was involved in Cub Scouts and CCD classes. This conclusion is supported by the testimony of respondent, Yandura, Zimmerman and Douglas’ teachers. Yet, in entering her decision, the trial judge made no reference to the testimony of Zimmerman and that of Douglas’ teachers. Thus, the record does not reflect what weight, if any, the court ascribed to this evidence.

Additionally, we note that Douglas is seven years younger than David and nine years younger than Steven Jr. The record indicates that the two older boys are both in high school and are involved with extracurricular activities and part-time employment after school. Because the trial judge made no comment in her ruling as to the disparity in the ages of the three brothers and what interests they might share, even if living in the same household, we believe the court failed to consider this important factor in reaching her decision.

In custody cases, the question for the reviewing court is whether the trial court’s decision was contrary to the manifest weight of the evidence. (Sussenbach, 108 Ill. 2d at 499, 485 N.E.2d at 371.) A court of review may consider the entire record before it. (Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill. 2d 150, 155, 449 N.E.2d 125, 127; La Salle National Bank v. Edward M. Cohon & Associates, Ltd. (1988), 177 Ill. App. 3d 464, 474, 532 N. E.2d 314, 321.) Regardless of the view expressed in the dissent, we find that no fair-minded trier of fact would conclude that the evidence in this case was overwhelming in favor of the petitioner. Rather, we find that consideration of the entire record indicates that the trial court’s determination was contrary to the manifest weight of the evidence.

We next consider whether the trial court erred in ruling in petitioner’s favor at the close of respondent’s case on her petition for attorney fees.

Section 508(a)(3) of the Act provides that the trial court may order either party to pay a reasonable amount for attorney fees necessarily incurred by the other party in any proceeding under the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(3).) An award of attorney fees is justified where the spouse seeking relief demonstrates (1) financial inability to pay, and (2) the ability of the other spouse to pay. (Hazard, 167 Ill. App. 3d at 71, 520 N.E.2d at 1128.) Proof of financial inability does not require a showing of destitution and will be demonstrated where payment would strip the person of the means of support and undermine her economic stability. (Hazard, 167 Ill. App. 3d at 71, 520 N.E.2d at 1128.) The award or denial of attorney fees is within the sound discretion of the trial court, and that decision will not be disturbed absent a clear abuse of discretion. Hazard, 167 Ill. App. 3d at 71, 520 N.E.2d at 1128.

In the instant case, the evidence established that there was a great disparity between the earning abilities of the parties. We believe that the trial judge erred in denying respondent’s petition for fees. Due to this disparity in earning abilities, we find that the trial court’s ruling on respondent’s petition for fees was an'abuse of discretion and that further proceedings on respondent’s petition for attorney fees are required to determine what fees are reasonable.

In addition, we believe that the trial court relied upon inappropriate reasons to justify her ruling on the petition. In ruling in petitioner’s favor at the close of respondent’s case, the trial judge found that she was unable to determine what respondent’s income would be. The written order that was subsequently entered reflected that respondent had not shown her inability to pay fees in that there had been no showing as to why she was not capable of gaining full time employment. Neither of these reasons provides a sufficient basis to deny attorney fees under section 508(a)(3) of the Act. Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(3).

For the foregoing reasons, the judgments of the circuit court of Cook County are reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

EGAN, J., concurs.

JUSTICE McNAMARA,

dissenting:

I respectfully dissent from the majority holding which reverses the trial court order granting custody of Douglas to his father, the petitioner. I would find that the evidence overwhelmingly supports the trial court decision, and thus we are prohibited from disturbing that order.

A custody determination lies within the sound discretion of the trial court, since it alone is in the best position to judge the witnesses’ credibility and determine the needs of the child. (In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 485 N.E.2d 367.) The reviewing court is prohibited from trying the case de novo, as the majority appears to be doing here. It must limit its role to determining whether the trial court’s transfer of custody constituted an abuse of discretion or is contrary to the manifest weight of the evidence. In re Custody of Sussenbach (1985), 108 Ill. 2d 489, 485 N.E.2d 367.

The majority asserts that the trial court’s decision demonstrates a “primary reliance” on Douglas’ preference, as expressed to Dr. Bussell and to the court in chambers. The trial court, however, rested its decision on a much broader foundation than just Douglas’ preference. It considered all of the statutory factors under section 602 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 602).

After the trial, the court specifically cited examples of testimony, explaining that it wanted to reassure the parties that it had heard all of the evidence. The evidence considered included testimony from teachers, neighbors, family friends and various experts. The evidence also included report cards, family photographs, psychological test results, expert reports and Douglas’ drawings. The evidence addressed issues of school performance, after-school activities, hours of watching television, movies attended, religion classes, Cub Scouts, outside interests, sports and recreational activities, enjoyment of computer games, musical interests, friendships, vacations, parent-teacher conferences, Christmas celebrations, and doctor visits.

In the face of the trial court’s diligent and close attention to such detailed, exhaustive evidence, it is erroneous to conclude that the court’s decision was predicated primarily on Douglas’ preference.

Moreover, the majority fails to recognize that the court’s heavy reliance on Dr. Bussell’s recommendation went far beyond Dr. Bus-sell’s single statement that Douglas preferred to live with his father. The court expressly stated it was impressed by the depth of Dr. Bussell’s interviews and the persuasiveness of his overall testimony.

Dr. Bussell submitted an 11-page, single-spaced report to the court. He conducted 16 interviews of the parties, Yandura, the three Edsey children, and the paternal grandmother. He addressed a vast array of issues related to Douglas’ welfare, and went far beyond the mere preference indicated by Douglas. The trial court properly relied on the fact that Dr. Bussell based his recommendation on many factors, and that Dr. Bussell did not look at each family member or individual factor in a vacuum.

For example, Dr. Bussell, a child psychiatrist for 25 years, concentrated on Douglas’ emotional problems within the context of the family’s interactions, and in a much more extensive and in-depth manner than did the Psychiatric Institute’s social worker in her single interview with Douglas. Dr. Bussell found psychopathology in Douglas:

“He is confused by the custody battle. He is demonstrating confusion in terms of his loyalty to his mother versus his father and his brothers. He has some definite separation anxiety and he does not really at this time feel secure in his setting.”

Douglas needed more stability. Dr. Bussell described Douglas as needing “ongoing therapy irrespective as to which parent has custody. I do feel, however, that at this time his emotional stability will be increased if custody is awarded to father.” He quoted the results of psychological testing done on Douglas: “He comes across as a sensitive, perceptive youngster but one who exhibits exaggerated fears and anxieties relative to separation. These fears and anxieties are expressed in a relatively active fantasy life, one replete with themes of loss and separation, and death.” Douglas appeared depressed in all four of the sessions with Dr. Bussell. The psychological testing “essentially confirmed” Dr. Bussell’s impression of depression.

Dr. Bussell was asked for an opinion as to the impact on Douglas if he were forced to live separate from his brothers.

“I think it would be detrimental to his mental health. Possibly even more so now that the litigation has been effected because before he may have been less than happy with his setting, but now he is optimistic that it will be changed. He is confident that the court will do the right thing. So it would be a significant disappointment. I’m not saying he would not get over it at some time, but it would certainly be a significant psychological blow to him at this time.”

Dr. Bussell, testifying in rebuttal for petitioner, reaffirmed his opinion that Douglas suffered from depression directly as a reaction to the situation of his immediate environment. He disagreed with any opinion to the contrary offered by the Psychiatric Institute. Moreover, if Douglas stayed with his mother, the depression would probably get worse. In addition to the heightened depression, he would expect to see an element of bitterness added to the child’s personality.

The court could also rely on the fact that Dr. Bussell met with the family members many more times than any other expert. Psychiatric Institute team members never saw a family member more than once. Dr. Bussell saw the father five times, the mother three times, Douglas four times, David, Steve and Yandura each once, and the paternal grandmother once. The trial court was also entitled to rely on the fact that Dr. Bussell carefully examined the relationship of the siblings to each other, and the relationship of the siblings to their parents. The Psychiatric Institute virtually ignored this factor.

Dr. Bussell noted, for example, that petitioner, one of eight children, had a “very, very close” family which “still maintains significant interaction.” He went on to reason that “[t]his may have somewhat rubbed off on Douglas and may well explain his extremely close relationship and feelings for his two older brothers.” Dr. Bussell found that in “some ways it seems that Douglas feels more stability in his relationship with his brothers than with either parent.”

While there was some negative reference made by the Psychiatric Institute to the age difference between Douglas and his brothers, Dr. Bussell noted that “[c]uriously enough, the [age] spread between Lynne and her next older brother is almost identical to the spread between Doug and David.” Respondent testified that she was close to her brothers.

In fact, Dr. Bussell suggested that the age difference permitted an even closer bonding and provided important stability for Douglas which his parents individually had not been able to provide. He explained that Douglas has a “very close filial relationship with his brothers. He has seen his parents separate, and not infrequently, and there is a significant age difference here between him and his next older brother, and not infrequently a child will establish a stronger bond with his siblings.” Douglas had “very definitely” done that. The siblings’ bond was “more than average. It is a combination of what I think is going on in his life, what has gone on in the recent past, and also he has observed his father’s family which is very, very close.”

Again avoiding isolating any single factor, Dr. Bussell took an expanded view of the impaired relationship between respondent and the two older boys, and the effect that would continue to have on Douglas were he to live with his mother. He explained, “This relationship has to be considered in the recommendation due to the fact that one must consider [the two older boys’] potential influence on Doug in view of the fact that both feel somewhat rejected and hurt by [their] mother, to their perception, only really wanting Doug with her.” Dr. Bussell testified, “The fact that he was not with his brothers and that he did not feel that she wanted them with her, that would affect the relationship.”

Thus, Dr. Bussell offered his opinion, based on the extensive interviews, psychological testing, and all documentary materials reviewed, including reports from Zimmerman and the Psychiatric Institute, that within a reasonable degree of psychiatric certainty, it would be psychiatrically in Douglas' best interest to live with his father.

“In my opinion after the evaluation I feel his best interest would be served by a transfer of physical custody from mother to father. With very extensive and liberal visitation for mother. *** I think it would afford him a better feeling of stability in a setting, he has a great deal of affection for both of his parents, and they are both essentially healthy people, and that is why this case is so very, very difficult. I feel that his stability will be heightened living with his brothers and his father. I think he will overcome a significant amount of depression.”

For the majority to conclude that the trial court was not entitled to place considerable reliance on this expert’s recommendation simply ignores the depth, the thoroughness, and the solid foundation upon which the recommendation rests. It is for the trier of fact, not this court, to resolve conflicts between expert opinions in custody cases. The majority has no basis for characterizing the trial court’s reliance on Dr. Bussell as granting “undue importance” to that opinion.

The majority is wrong, therefore, in suggesting that the trial court “ascribed controlling weight” to Douglas’ preference. However, while the record reveals no indication that the preference received such weight, the court certainly was entitled to consider the numerous, credible ways in which Douglas expressed that preference. The likelihood of Douglas’ preference being accurately given was revealed by Dr. Bussell’s extensive use of various objective means to explore the issue. He did not merely ask Douglas whose home he preferred.

Dr. Bussell first offered four possible alternate solutions, and asked Douglas to grade them by his preference. Douglas chose this order: (1) He would live in Park Ridge with his father and brothers; (2) his mother would move back to Park Ridge and split time with his father; (3) his father would move to Lake Bluff and split the time; and (4) his brothers would move in with his mother.

Next, Dr. Bussell asked Douglas to draw a picture of his “family,” which tends to demonstrate the child’s perception of “his relationship within the family.” Douglas drew Steve first mowing the lawn, his father second golfing, Dave third riding his bike, and himself fourth watching television at his father’s home. At trial, Dr. Bussell noted that not including the mother or her new husband was significant, “and what made it even slightly more significant in this particular instance is that the day that he did the drawing at my request was the day that [his] mother brought him in to the interview so she was sitting and waiting.”

Douglas also told Dr. Bussell he would prefer to attend the Park Ridge school, which is near his father’s home.

In addition, Douglas told Dr. Bussell to “tell the court that I want to live with my dad.”

Furthermore Dr. Bussell offered Douglas two slips of paper, one which said “mom” and the other which said “dad.” He asked Douglas to pass Dr. Bussell the note which stated which parent he wanted to live with, and Douglas passed him “dad.” Dr. Bussell responded, “Oh! I see mom!” Douglas immediately corrected him, pointing out that it said “dad.” Dr. Bussell then asked if his left hand felt differently than his right hand, but Douglas again passed the note which read “dad.”

At trial, Dr. Bussell testified that he saw Douglas a fourth time, after he had submitted his written report.

“[H]e was not aware as far as I could discern that I had submitted a report, and I had told him on that occasion that I had suggested that he live with his dad but it was not too late and I could send in an addendum to the report if there was anything he would like me to do. He said he did not want me to change the report and just wanted me to get to the judge soon.”

Dr. Bussell also noted that Douglas often left his school clothes at his father’s home, which, together with the family drawing, and the paper slip game, “would appear to indicate that his unconscious preference is to be with his father and brothers.”

For the majority to brush aside this strong, corroborated evidence by saying “Douglas never verbally expressed a preference for living” with his father is another improper and persistent attempt to supplant the role of the trier of fact. 199 Ill. App. 3d at 55.

In addition, the majority asserts that Douglas’ preference was the result of pressure from his brothers and father. I note that Dr. Bussell “checked” the preference with many different methods, exploring any unconscious desires or coaching. The majority offers weak reasoning when it states that Dr. Bussell “acknowledged that he could not be certain that Douglas’ responses had not been influenced by his brothers or by petitioner.” (199 Ill. App. 3d at 55.) Obviously, no one — even the parents — can guarantee the absence of any undue influence or coaching. However, Dr. Bussell testified, “To a reasonable degree of medical certainty, I would say he [the father] did not” influence Douglas regarding his preference.

Moreover, the court could rely on its own in camera interviews with the three boys, in which they corroborated each other in expressing Douglas’ wishes, and the older boys’ wishes, that he live with their father.

The majority focuses on the assertion that Douglas’ preference to live with his father was “not related to his best welfare, but [was] motivated solely by his desire to be with his brothers.” (199 Ill. App. 3d at 55.) It also states that Douglas’ “main focus was not that he missed the petitioner, but that he missed his brothers.” (199 Ill. App. 3d at 55.) I am unaware of any principle which prohibits, particularly in view of the equality of the parties’ parenting capabilities, the consideration of the child’s needs within the context of a significant, strongly bonded sibling group.

I believe that the majority becomes a trier of fact when it asserts that “some of the evidence which could have impacted upon the court’s analysis of the statutory factors was apparently overlooked or greatly discounted.” (Emphasis added.) (199 Ill. App. 3d at 55.) In so doing the majority supplies its own expert opinion and explanation for the child’s behavior.

It first lists the nightmare problem which occurred “with much greater frequency at petitioner’s home.” (199 Ill. App. 3d at 56.) Each parent cited a few nightmares. No expert paid considerable attention to them, and they are not an area of expertise for our court. Then the majority refers to the bedwetting problem. It implies that the bedwetting indicates that Douglas experienced more stress in his father’s home. This is also outside our field of expertise. It is for the trier of fact to consider the witnesses’ testimony regarding bedwetting.

The majority also lists the fact that Douglas had become “integrated” into his mother’s home, had friends, and went to CCD classes and cub scouts. There was equal evidence of Douglas’ integration into his life in Park Ridge, where he had lived since he was born. The trial court was not required to find the Lake Bluff integration any more significant than in Park Ridge.

The remaining evidence which “could have impacted upon the court’s analysis,” which the majority believes was “apparently overlooked or discounted,” is such that the court was entitled to disregard it. 199 Ill. App. 3d at 55.

For example, the Psychiatric Institute team recommended that Douglas live with his mother. The trial court was justified in its express finding, however, that the Psychiatric Institute report suffered, in comparison to Dr. Bussell’s report, in “two significant ways.” First, the Institute focused almost exclusively on the “pathology of the parents *** versus the best interest of the child, which is what I am required to determine.” Second, Dr. Wein’s “failure to talk to Doug herself in light of the interview that she was presented with by her associates made it very difficult for me to adopt her conclusions.”

Karen Smith, a psychologist who worked on the Psychiatric Institute team, recommended that Douglas live with his mother. However, she never saw Douglas. She spent about an hour with each parent and decided the father had “personality problems.” She admitted, however, that she did not have the “time or space” to write down many of the father’s statements, and that an in-depth evaluation requires more time and tests. In addition, she based her perceptions about the father on the mother’s descriptions of the father. Incredibly, she explained, “I had no reason to doubt her.”

Notably, on rebuttal Dr. Bussell disagreed with Smith. He offered a strong opinion that based on his five interviews, his experience, and the psychological evaluation performed by a psychologist he had worked with for 20 years, he did not believe the father had a narcissistic personality or other personality problems.

Dr. Margaret Wein, a psychiatrist and member of the Psychiatric Institute team, testified as an expert for respondent and recommended that Douglas live with his mother. Dr. Wein spent 45 to 60 minutes interviewing the mother and the father, and admitted that the time was inadequate to get full and complete personality profile information. When Douglas was asked his living preference, Wein believed his answer to be ambivalent. The only information Dr. Wein could offer to help the court was that Douglas was in conflict, wanting both parents, but he especially missed his brothers. She also offered the less than helpful opinion that Douglas would be unhappy in either situation. Generally, Dr. Wein would leave siblings together. Here, she would ignore the general rule simply because the two older boys preferred to be with their father.

In view of these weaknesses in the other “discounted” evidence, the trier of fact could reasonably choose not to rely on the expert opinion of the Psychiatric Institute, and instead choose to rely on the expert opinion of Dr. Bussell.

Nor was the trial court required to rely on the testimony of Naomi Zimmerman, a social worker who also testified for respondent that Douglas should live with respondent. Zimmerman had seen some of the family in 25 counseling sessions over a two-year period. Most significantly, however, she never saw petitioner, or the two older brothers. Zimmerman found this fact unimportant. Quite simply, Zimmerman believed a child’s place is with the mother. Interestingly, Zimmerman stated that “a mother of a child of five should be utilized if she’s available and well and sound of mind, for a five year old. I might make a different opinion if he were 10 or 12.” In fact, Douglas is now 10 years old.

I must also comment on the idea which was expressed several times, that the mother was somehow better suited for custody because Douglas could thereby avoid having a babysitter (his grandmother or next door neighbor) for a few hours after school. A trier of fact could reasonably conclude that this opinion carries little weight for several reasons. Most notably, the judgment for dissolution of marriage stated: “The parties acknowledge that it is likely that both may be employed and therefore each party agrees to obtain proper care for the minor children while the minor children are in their physical custody and they are at work.” Moreover, the December 20, 1988, order instructs the mother to find full-time employment and assist in supporting the three children.

The trial court might also have considered other indications that Douglas’ best interest would not be served were he to live with his mother. For example, the mother admitted that she agreed to let all three boys live with the father, as evidenced by a letter she wrote on April 23, 1986, and subsequently surprised everyone by abruptly changing her mind. In addition, the mother unilaterally changed the joint custody agreement, an action which is never favored by the courts. Moreover, by all accounts, her relationship with the two older boys was quite conflictual.

For these reasons, I would affirm the trial court order finding that it would be in Douglas’ best interests to change physical custody from a 50-50 split between the parents to the father, because that decision is not against the manifest weight of the evidence.

I agree with the majority’s finding that the trial court erred in denying respondent’s petition for fees.