author: JUSTICE SCARIANO

text:
    KAREN SYDNEY RUBINSON, Plaintiff-Appellee and Cross-Appellant, v. ADOLPH A. RUBINSON et al., as Co-Trustees of the Fannie Rubinson Memorial Trusts (Trust A), a/k/a The Karen Sydney Rubinson Trust, Defendants-Appellants and Cross-Appellees.
    First District (2nd Division)
    Nos. 1 — 91—1378, 1—91—2509 cons.
    Opinion filed July 27, 1993.

      Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London, of Chicago (Howard A. London, of counsel), for appellants.
    Holleb & Coff, of Chicago (Jeffrey H. Hornstein, of counsel), and Elliot L. Evans, of New York, New York, for appellee.
   JUSTICE SCARIANO

delivered the opinion of the court:

This appeal arises from the trial court’s grant of summary judgment in favor of plaintiff after it determined that defendants, as co-trustees of a trust, breached their duty to plaintiff, a beneficiary of that trust. It premised its decision on an amendment to the trust, effected by defendants, which divested plaintiff of her beneficial interest therein. Defendants appeal from that judgment and from the court’s denial of their cross-motion for summary judgment. Plaintiff also cross-appeals from the court’s denial of her motion to surcharge defendants for $40,000 in attorney fees paid out of trust assets to cover costs incurred in the defense of this action, the court having held that it had discretion to allow such payments from trust assets and that the amount incurred was not unreasonable.

On January 24, 1990, plaintiff Karen Sydney Rubinson filed an action in equity against defendants Adolph Rubinson and William Rubinson in their capacities as trustees of the Fannie Rubinson Trust (trust), created in 1954 by defendant Adolph Rubinson, who was its settlor as well as the drafter of the instrument. Under its terms as originally drafted, plaintiff was a beneficiary along with her brother, Kenneth Rubinson. The trust also named additional limited beneficiaries, namely defendant William Rubinson, his wife, and any educational or charitable institution chosen by the trustees. Defendants were successor co-trustees, duly appointed under the terms of the trust by Morris and Walter Rubinson, who served as the original trustees. The trust was initially funded with a $1,000 face-amount debenture paying 4.80% per annum due in 1987.

A recital in the trust stated:

“In compliance with the request of FANNIE RUBINSON to use the property *** to express her love for her grandchildren and children in any manner considered suitable by [the trustees] ***.”

In paragraph 4 of the declaration of trust, the trustees were directed to accumulate income for the six years immediately following its formation, after which the trustees had complete and unfettered discretion with regard to the payment of monies out of the trust. They could pay any amount or any part of the principal or income of the trust to the beneficiaries, or if they chose, they could make no disbursements at all. The trust included a provision which suggested some factors the trustees could look to when deciding if and how much to pay to the beneficiaries; however, since these factors were merely precatory, they neither diminished nor augmented the trustees’ discretionary authority over payments to be made to the beneficiaries.

Paragraph 6 of the declaration authorized the trustees to make any amendment or include any provision which could have been incorporated in the original declaration of trust, and the exercise of this power was restricted only by the following limitations:

“(1) No amendment shall be made or shall be valid which shall permit the Trust to continue beyond the lives of the survivors of Karen and Kenneth Rubinson plus a period of 20 years.
(2) No amendment shall be made or shall be valid which shall provide that the beneficiaries of the Trust as amended shall be Morris Rubinson, Walter Rubinson, Adolph Allen Rubinson or his wife Helen Pollack Rubinson, nor that any TRUSTEE shall be a beneficiary of the Trust.
(3) No amendment shall be made or shall be valid if at the time it is made it increases the taxes to be paid by the TRUSTEES of [sic] by the beneficiaries as compared with the taxes to be paid under the terms of the Trust as of the date immediately preceding the effective date of the amendment. The opinion of an attorney selected by the TRUSTEES to advise upon such question shall be conclusive as to the validity of the proposed amendment even though an amendment adopted by the TRUSTEES with such advice shall subsequently be questioned in a final decision by an administrative agency or a court of competent jurisdiction shall subsequently hold contrary to such opinion.
(4) No amendment shall be made or shall be valid which shall impose upon persons other than the TRUSTEES or beneficiaries, taxes based upon the income of Trust Fund or upon transfer of Trust Fund to the beneficiaries. In the event such taxes are assessed against, or claimed by the taxing authorities from, persons other than the TRUSTEES or beneficiaries and paid by such other persons, the TRUSTEES shall make such other persons whole.”

Prior to the amendment at issue in the instant action, the original trustees had twice exercised their amendatory power. The first such amendment, in October 1955, divided the corpus of the trust into equal parts for as many grandchildren as would become beneficiaries in the future. The second, made in July 1962, included the children of William Rubinson as additional limited beneficiaries.

At some point after the trust was created in 1954, a breach occurred in the personal relationship of defendant trustee Adolph Rubinson and his daughter, plaintiff Karen Sydney Rubinson, and although the record before us is not clear as to what happened, the event or events appear to have been sufficiently severe to cause Adolph to cease speaking with and apparently disown plaintiff sometime in or around 1964. It also appears that plaintiff stopped receiving disbursements from the trust at about that time as well.

In a November 1988 letter to defendant William Rubinson, plaintiff’s uncle, she expressed a renewed interest in the trust. She informed him that she had recently discovered documents concerning the trust and asked her uncle to update her on its status and to send her a copy of the instrument. When William did not comply with this request or with similar ones made later, plaintiff retained an attorney who, on July 18, 1989, formally demanded by letter that Adolph provide all pertinent trust documents and an accounting. Adolph at first denied that plaintiff was entitled to any of the information sought, but after further correspondence, he relented and provided the requested information. Among the documents provided to plaintiff, Adolph included a document entitled “Fannie Rubinson Memorial Trust, Trust A, Declaration of Trust, May 21, 1985” and another entitled “Memorandum of Formal Action of Trustees — May 21, 1985.”

The effect of these two documents was to divest plaintiff of her beneficial interest in the trust of 1954, and to turn that trust into a charitable one, endowing scholarships at various schools of the University of Chicago. In the memorandum, defendants invoked the amendatory power of the original trust in order to validate their action and stated that in keeping with what they described as the original purpose of the 1954 trust, they would endow research into the cause of and remedies for the weakening of family values, finding this to be the nearest approximation of what Fannie Rubinson would want.

Although these two instruments were dated May 21, 1985, plaintiff alleged that they were not actually prepared until after she made inquiries as to the trust. In his affidavit in support of defendants’ motion for summary judgment, Adolph admitted that the documents were not prepared or executed until late 1989 (consistent with plaintiff’s allegation). He further stated that he and his brother had agreed in 1985 to the substance of the transaction, but that it was not memorialized until 1989.

Plaintiff’s verified complaint in equity requested the court to set aside defendants’ purported transfer of assets from the 1954 trust to the one created by the declaration of trust dated May 21, 1985; to remove defendants from their position as trustees and appoint a successor trastee; and to order an accounting. In defendants’ motion for summary judgment, they asserted that under the trust agreement, they had the authority to amend the trust as they did as a matter of law. Plaintiff cross-moved for summary judgment. The court accepted memoranda in support of the motions and heard argument on December 28,1990.

The court found first that William could serve as a trustee even though he was also a beneficiary. Next, the court determined that under the 1954 trust, the trustees did not have the power to replace that with a new one naming different beneficiaries and for a new purpose. It accordingly held that the attempt to do so by defendants constituted an abuse of discretion and a breach of trust, necessitating their removal as trustees. The court issued its order on January 4, 1991, which, along with granting plaintiff’s motion for summary judgment and denying defendants’, restored the trust to its original status; ordered William and Adolph to retransfer all the assets of the trust to it; appointed the Northern Trust Company as successor trustee; and enjoined William and Adolph from transferring any assets or acting pursuant to the trust declaration dated May 16, 1985. It also ordered William and Adolph to provide a full accounting to plaintiff. Lastly, the court allowed defendants to petition for recompense from trust assets the attorney fees expended in defense of this action.

On January 28, 1991, defendants’ attorney submitted a petition for fees wherein he sought nearly $11,000 allegedly incurred in the action. On January 30/1991, defendants filed a motion asking the court to reconsider and vacate its order granting plaintiff’s motion for summary judgment which the court denied on March 19, 1991. By that same order the court granted defendants’ petition of January 28 to pay their attorney fees with trust assets.

Subsequently on May 21, 1991, plaintiff filed a petition for a rule to show cause why the court should not hold defendants in contempt for failing to comply with its order to provide plaintiff with a full accounting. The petition explained that on May 6, 1991, the day the court had ordered the accounting due, Adolph had served plaintiff with an affidavit stating that an accounting would be too costly. He further claimed that a full accounting was not necessary because nothing had been paid from the trust except for taxes and incidental expenses. He averred that given the simplicity of the transactions of the trust over time, the funds could easily be traced using only its brokerage account statements, and in support of this belief, he attached the three most recent statements.

The circuit court held a hearing on plaintiff’s show cause petition where it was established that defendants had paid out of the corpus of the trust, not only the $11,000 in fees which the court had approved, but also additional fees for the defense of this action, totalling in all $39,961.33. Upon learning this, plaintiff filed a motion asking the court to vacate its order of March 19, 1991, allowing the $11,000 in fees, and she also filed a petition seeking to surcharge defendants $39,961.33 for all attorney fees paid in defense of this action.

The court denied both plaintiff’s motion to vacate its earlier order which authorized defendants to pay out of the trust’s assets $11,000 owed to their attorney, and her petition to surcharge defendants for the additional monies paid out of the trust. It held that although defendants’ actions breached their fiduciary duties, the court was vested with the discretion to grant attorney fees and that all the fees paid, both those authorized and those not yet authorized, were reasonable. Plaintiff timely filed a notice of appeal from that order and her appeal was then consolidated with that of defendants.

I

The first issue we address is whether the trial court correctly determined that, because defendants’ acts went beyond their authority as trustees, plaintiff was entitled to summary judgment as a matter of law. With regard to this procedural device, our supreme court has recognized that the purpose of summary judgment is to permit the trial court to determine whether, after analyzing the pleadings, depositions and admissions in the record and any affidavits which may have accompanied the motion, any genuine issue of material fact exists. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) When deciding the motion, the trial court must construe all the evidence before it strictly against the movant. (Reed v. Bascon (1988), 124 Ill. 2d 386, 393, 530 N.E.2d 417, 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Our supreme court has warned that while summary judgments are to be encouraged in the interests of the prompt disposal of lawsuits, they are a drastic measure. (Bascon, 124 Ill. 2d at 393, 530 N.E.2d at 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.) Consequently, trial courts should grant summary judgments only where the movant’s right to judgment is so clear as to be free from doubt. Bascon, 124 Ill. 2d at 393, 530 N.E.2d at 420; Purtill, 111 Ill. 2d at 240, 489 N.E.2d at 871.

Moreover, this court reviews the grant of summary judgment de novo. (Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 497, appeal denied (1992), 145 Ill. 2d 635, 596 N.E.2d 630.) This standard is of particular significance “where the evidence consists mainly of documents” (Polo National Bank v. Lester (1989), 183 Ill. App. 3d 411, 414, 539 N.E.2d 783, 785), as is the situation here.

Since it formed the basis of the circuit court’s grant of summary judgment in plaintiff’s favor, we first consider whether the court properly decided that the paramount purpose of the trust was to benefit plaintiff and her brother, and in order to make that determination, we must look, at least initially, to the four corners of the instrument which created it. (Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502, 369 N.E.2d 1262; Harris Trust & Savings Bank v. Taylor (1977), 49 Ill. App. 3d 349, 364 N.E.2d 349.) Although the instrument before us does not expressly spell out its purpose, when it is viewed as a whole, we cannot agree with the circuit court that its main purpose was to benefit the children and grandchildren of Fannie May Rubinson. We recognize that the trust contains language which, when considered in isolation, supports an inference that the purpose of the trust is the one proposed by plaintiff. For instance, plaintiff, in suggesting a possible purpose of the trust, emphasizes the recital that forms its introductory paragraph and which states in pertinent part: “In compliance with the request of FANNIE RUBINSON to use the [corpus of the Trust] to express her love for her grandchildren and children * * * f)

When construing a trust, however, we cannot fix upon each of its provisions in isolation, but must instead consider the document as a whole in order to arrive at the true intent of the settlor. (In re Support of Halas (1984), 104 Ill. 2d 83, 92, 470 N.E.2d 960, 964.) Accordingly, when viewing the recital of the trust in the context of its other provisions, we do not read it to be an expression of the central purpose of the trust as plaintiff proposes. While the recital does explain that the trust’s assets were intended to benefit Fannie’s children and grandchildren, that purported manifestation of the intent of the trust is immediately modified by the clause “in any manner considered suitable by Morris Rubinson *** and Walter Rubinson *** [(who were named as the original trustees)].” This language does not convey to us an unrestrained desire on the settlor’s part to benefit Fannie’s progeny as the circuit court found, but rather a desire to bestow a benefit upon them if that gift were to be in accord with the best judgment of the trustees.

It follows from such an understanding of the recital that the trust also contemplated and allowed for the possibility that the trustees would find that a gift from the trust could be inappropriate and would remain that way in perpetuity. And since, under this instrument, disbursements were not mandatory, for all intents and purposes the beneficiaries of the trust could be divested of their interest by implication. See In re Woodward’s Trust (1954), 284 A.D. 459, 132 N.Y.S.2d 266 (holding that an instrument which left to the settlor’s discretion the proportion of a trust fund to be disbursed implicitly empowered the settlor to reduce that proportion to a nominal amount or to exclude a beneficiary entirely); see also In re Steiner’s Estate (N.Y. App. Div. 1909), 118 N.Y.S. 833, 835 (explaining that where a trust endows the trustee with the power to use its assets for the benefit of himself and his sisters “in such proportions and at such times and in such manner as he *** shall deem proper, right and advisable,” disbursements of trust assets were fully within the trustee’s discretion, and accordingly “[h]e may give such amount to his sisters as he may choose to, or nothing[ ]”).

We find that in all the instances where the document at issue in this case demonstrates the semblance of a desire to benefit Fannie’s children and grandchildren, the ability of the trustees to do so is subject only to their sole discretion. Paragraph 4(b), which authorizes the trustees to disburse funds to the beneficiaries, does so with the proviso that the trustees pay out any amount to the beneficiaries that the trustees consider proper, and if they so choose, they are authorized by that clause to accumulate funds until such time that they determine that the beneficiaries are deserving of the income. Thus, any perceptible desire to benefit is not unchecked, but in all cases is clearly subject to the discretion of the trustees. This is especially evident in the fact that under the express terms of paragraph 4(b), the trustees need never pay any amount to any beneficiary if they so choose.

We are constrained to hold, therefore, that given the extent of the discretion vested in the trustees, the court erred in determining, as a matter of law, that the overarching purpose of the trust was to benefit plaintiff and her brother. It necessarily follows, given the court’s reliance on its erroneous decision, that it also erred in deciding that the trustees abused their discretion and breached their fiduciary obligation. Consequently, the court’s grant of plaintiff’s motion for summary judgment must be reversed.

II

Plaintiff offers another ground by which we may affirm the trial court’s judgment. She claims that under the trust, defendant William was ineligible to serve as a trustee. Accordingly, because the trust dictated that for any trust-related action to be valid, it must have the consent of two trustees, the amendment which stripped her of her beneficial interest, effected by only one qualified trustee, was void ab initio. In support of her assertion, she points to paragraph 6b(2) of the 1954 trust. It states: “No amendment shall be made or be valid which shall provide that the beneficiaries of the Trust as amended shall be [the original trustees appointed in 1954, defendant Adolph Rubinson and his wife], nor that any trustee shall be a beneficiary of the trust.” Plaintiff maintains that this clause coupled with William’s status as a beneficiary barred him from acting as a trustee unless he disclaimed his beneficial interest in the trust. Under section 1 of an “Act to provide for disclaimer of succession to real and personal property under nontestamentary instruments,” as it existed in 1973 when William became a trustee (Ill. Rev. Stat. 1973, ch. 30, par. 211), the holder of an interest in a nontestamentary trust could disclaim that interest only by filing with or delivering to the trustee of the trust (Ill. Rev. Stat. 1973, ch. 30, par. 212) a signed and acknowledged written disclaimer which described the property or interest disclaimed. William concedes that he filed no such disclaimer. Plaintiff asserts, therefore, that his appointment as a successor trustee of the trust was invalid.

Accordingly, plaintiff contends, since the trust instrument at bar commands that no amendment is valid unless and until it is approved by at least two trustees acting jointly, Adolph, without the agreement and acquiescence of a co-trustee, could not amend the trust. She again relies on the language of the trust to support this contention. In paragraph 5(a), the trust states that “the TRUSTEES shall act jointly.” Furthermore, in the declaration of successor trustees, the original trustees, along with naming Adolph and William as their successors, set forth that “[ujntil otherwise provided, there shall continue to be two TRUSTEES of the TRUST.” Plaintiff thus concludes that the amendment dated May 21, 1985, which extinguished her beneficial interest was void ab initio because William was disqualified from acting as a trustee, and Adolph, as the only qualified trustee at the time of the amendment, could not act alone.

We disagree. Even assuming arguendo that plaintiff’s proposed construction of the instrument is correct and that, according to its terms, William could not serve as a trustee while retaining his interest as a beneficiary, we would nonetheless have to rule that Adolph, acting as sole trustee, had the authority to enact the amendment which divested plaintiff of her interest. We find the situation presented by plaintiff’s scenario to be indistinguishable from that which would exist if Morris and Walter had never named William or any other successor trustee other than Adolph or if William had died prior to the naming of his successor. In such a case, Illinois law has long held:

“ ‘[I]f two or more persons are named as trustees and one or more of them fails to become trustee or dies, resigns, is removed or otherwise ceases to be trustee, the powers conferred upon the trustees can properly be exercised by the remaining trustee or trustees, unless it is otherwise provided by the terms of the trust.’ ” (Home For Destitute Crippled Children v. Boomer (1941), 308 Ill. App. 170, 196, 31 N.E.2d 812, 824, quoting Restatement of Trusts §195 (1935).)

Our supreme court has construed this rule to allow a surviving trustee to act alone where, as here, the trust instrument initially names two trustees and authorizes the naming of successor trustees. (Booth v. Krug (1938), 368 Ill. 487, 494, 14 N.E.2d 645, 648 (holding that the death of one trustee does not invalidate actions taken by co-trustee prior to the appointment of a successor trustee).) We can conceive of no meritorious reason as to why this rule should not apply to the situation at bar as well.

Illinois law creates a presumption that a trust which initially names two trustees authorizes the surviving co-trustee to act alone. In Golder v. Bressler (1883), 105 Ill. 419, the court held that only where the terms of the trust imperatively require that a vacancy of a co-trustee be filled, will a court invalidate the actions of the surviving trustee who acts prior to the appointment of a successor trustee. Illinois’ position in this regard is firmly in the mainstream. See, e.g., Bank of Delaware v. Bancroft (Del. Ch. 1970), 269 A.2d 254; Musgrave v. Dierks Lumber & Coal Co. (Okla. 1966), 421 P.2d 867; 3 W. Fratcher, Scott on Trusts §195, at 172-73 (4th ed. 1988) (“Where there are several trustees and one of them refuses to become or ceases to be a trustee, the powers conferred upon them can ordinarily be exercised by the remaining trustee or trustees”); Annot., Right of Surviving or Remaining Trustee or Trustees to Act Without Substitution of Another Trustee in Place of One Who has Died or Resigned or Been Removed, Where the Will or Other Instrument Provides for Substitution or Replacement, 142 A.L.R. 1099 (1943) (“It seems to be well settled that the mere fact that a trust instrument authorizes the appointment of successor trustees to fill vacancies caused by the death, refusal to act, resignation or removal of those originally named *** does not necessarily deprive the surviving trustee *** of the right to act in the execution of the trust without such substitution”).

Our review discloses nothing in the 1954 trust instrument or any amendments to it which expressly requires that two trustees must serve. Plaintiff points to language which mandates joint trustee action, but that alone does not rebut the presumption that a surviving trustee can act alone. Golder held that the instrument must create an imperative of multiple trustees before a surviving trustee would be deemed powerless to act alone. We find it eminently plausible to construe those sections of the document which require the “joint action of the trustees” to apply only when there are in fact two trustees. That language does not indisputably mandate multiple trustees; thus, the presumption of Golder is not rebutted thereby.

Plaintiff also highlights the language in the declaration of successor trustees which states that “[ujntil otherwise provided, there shall continue to be two TRUSTEES of the TRUST.” This language, cast as it is in imperative terms, would rebut the presumption disfavoring mandatory co-trustees if it were a part of the trust or were an amendment thereto. However, as a mere declaration of successor trustees enacted pursuant to the trustees’ power under paragraph 5(a) and not pursuant to their power of amendment under paragraph 6(a), this language does not constitute a part of the trust and, therefore, does not rebut Golder’s presumption that a surviving trustee can act alone, nor does it render amendments made by only one trustee ineffective. Adolph, acting alone, had the authority under the trust to amend it as he did; as a result, it is immaterial for the purpose of this appeal whether or not William was qualified to serve as a trustee.

III

Defendants further appeal from the circuit court’s denial of their motion for summary judgment. They contend that given the broad amendatory power vested in them by the 1954 trust agreement, they had the authority to enact the instrument entitled Fannie Rubinson Memorial Trusts, Trust A, Declaration of Trust, dated May 21, 1985, thereby divesting plaintiff of her beneficial interest in the 1954 trust. Throughout this action, defendants have attached many different labels to their actions. However, “[i]n equity, the substance of a transaction controls, not its form.” (Metcalf v. Altenritter (1977), 53 Ill. App. 3d 904, 909, 369 N.E.2d 498, 502.) The substance of the trustees’ action here was to amend the trust so as to deprive plaintiff of her beneficial interest. Our task, therefore, is to determine whether, as a matter of law, defendants could exercise their amendatory power to extinguish absolutely the interest of a named beneficiary.

The amendatory power granted to the trustees in the instrument is quite broad. Paragraph 6(a) of the trust is the controlling provision, and it states in pertinent part:

“This declaration of Trust may be amended from time to time *** by the TRUSTEES serving at the time of such amendment, provided the individuals who are serving as such TRUSTEES include one or more of the undersigned or persons designated by them or either of them as additional or successor TRUSTEES. Such amendment may include, with the exceptions set out below, any provision that could have been incorporated in this original Declaration of Trust. *** It is the intent of this Declaration of Trust to give persons who are personally familiar with the character and wishes of Fannie Rubinson, ***, broad freedom to administer the Trust free from liability *** >>

Obviously, this language bestowed extensive amendatory power upon the trustees. The exceptions to the authority mentioned in the paragraph either ensure that the trust will never violate the rule against perpetuities or that it will continue to conform with various provisions of the estate and gift tax subtitle of the Federal Internal Revenue Code (26 U.S.C. §§2001 through 2704 (1988)), thereby limiting its tax liability. We can perceive of no exception that can be read into the language quoted above that would limit meaningfully the spacious authority of the trustees to amend the instrument or to add to it “any provision that could have been incorporated in the original Declaration of Trust.”

Plaintiff responds that no matter how broad a reserved power to amend may be, a settlor, or a trustee so empowered, can never exercise it in a way which would be inconsistent with the purpose of the trust. While never expressly asserting the point, plaintiff threads throughout her brief the idea that in the absence of an express term to the contrary, the law will imply a restriction on all amendatory power. She intimates that it is this implicit restriction which prevents the trustee or settlor who reserves the power to amend from exercising it in a way that contradicts the trust’s purpose. Plaintiff offers no binding or persuasive support for this contention.

Instead, she bases her argument on semantics. She reasons that it is contradictory to argue that a trustee or settlor, given the power only to amend a trust, can use that power to terminate the trust or to replace beneficiaries of the trust or to change the purpose of the trust. In sum, plaintiff argues that in trust law, the power to amend is not the power to destroy.

Although this argument is somewhat consistent with Websters’ New Collegiate Dictionary’s definition of “amend,” it ignores the long-settled rule and the plethora of cases that have held that where the settlor reserves the unrestricted power to amend a trust, or where the instrument vests such power in the trustees, that power may be used to terminate the trust or, as here, change the beneficiaries of the trust.

Comment h to section 331 of the Restatement (Second) of Trusts states:

“h. Whether power to modify [the trust] includes power to revoke [the trust]. If the settlor reserves a power to modify the trust, it is a question of interpretation to be determined in view of the language used and all the circumstances whether and to what extent the power is subject to restrictions. If the power to modify is subject to no restrictions, it includes the power to revoke the trust." (Emphasis in original and added.) Restatement (Second) of Trusts §331, Comment h (1959).

E.g., Scott v. Dane (1964), 346 Mass. 782, 196 N.E.2d 195; Stahler v. Sevinor (1949), 324 Mass. 18, 84 N.E.2d 447; Lipic v. Wheeler (1951), 362 Mo. 499, 242 S.W.2d 43; see also Annot., Construction and Application of Provision in Trust Instrument Relating to Amendments and Modification, 128 A.L.R. 1173 (1940); 4 W. Fratcher, Scott on Trusts §331 (4th ed. 1989).

It is true that defendants’ power to amend is not unrestricted; they cannot, for instance, amend the trust so as to violate the rule against perpetuities. The emphasized portion of the Restatement then, taken literally, does not apply to this situation. However, even the most cramped interpretation of the amendment power in paragraph 6 of the trust would find that the trustees had the authority to divest plaintiff of her beneficial interest and to appoint a new beneficiary.

Paragraph 6(a) gives the trustees the authority to include any provision that could have been included in the original document except for four technical provisions, unrelated to what defendants did here. For instance, a clause allowing the trustee to revoke the trust could have been initially included in the instrument and, thus, since such a clause does not run afoul of the express restrictions on the amending power in paragraph 6, the trustees had the authority to employ that power to make the instant trust revocable. From this we draw the conclusion that if the amendatory clause empowered the trustees to revoke the trust, it also empowered them to take the lesser step of divesting plaintiff of her beneficial interest and naming a new beneficiary in her stead. (See In re Soloman’s Estate (1938), 332 Pa. 462, 463, 2 A.2d 825, 826 (holding that a reserved power “to modify, alter or amend” the trust “in whole or in part” authorized a changing of the beneficiaries).) As a result, since defendants were acting as authorized by the instrument, they cannot be held to have violated their fiduciary obligation to plaintiff. Therefore, the trial court erred when it found to the contrary.

Not only does paragraph 6(a) support this holding, but we also find other portions of the 1954 trust agreement which support the conclusion that, as a matter of law, defendants had the authority to divest plaintiff of her beneficial interest. Paragraph 6(bX2), for example, states:

“No amendment shall be made or shall be valid which shall provide that the beneficiaries of the Trust as amended shall be Morris Rubinson, Walter Rubinson, Adolph Allen Rubinson, or his wife, Helen Pollack Rubinson, nor that any TRUSTEE shall be a beneficiary of the Trust.”

This provision, which serves to limit the trustees’ power to amend the trust, demonstrates, contrary to the contentions of plaintiff, that the settlor contemplated that the amendment power could be used to change the original beneficiaries. Otherwise, if the power to amend did not include the power to change the beneficiaries, this clause would be meaningless, and it has been recognized that we must, when practicable, avoid constructions of trusts which would render any portion of the document meaningless or void. (In re Support of Halas, 104 Ill. 2d at 92-93, 470 N.E.2d at 964.) Consequently, given the trustees’ extensive power to amend the trust, they had the authority, as a matter of law, to amend it so as to divest plaintiff of her beneficial interest therein. Thus, the trial court also erred in denying defendants’ motion for summary judgment.

IV

With regard to plaintiff’s cross-appeal which seeks a return of the attorney fees paid by defendants in defense of this action, since we have held that they acted within their authority and without fault, under Illinois law they clearly had the authority to pay attorney fees out of the trust assets. As the court noted in First Midwest Bank/Joliet v. Dempsey (1987), 157 Ill. App. 3d 307, 316, 509 N.E.2d 791, 798, appeal denied (1987), 116 Ill. 2d 553, 515 N.E.2d 106: “The general rule is that a trustee found to be without fault is entitled to reimbursement from the trust for all expenses properly incurred in administering and defending the trust.” This rule includes payment of attorney fees. (Webbe v. First National Bank & Trust Co. (1985), 139 Ill. App. 3d 806, 487 N.E.2d 711; Brown v. Commercial National Bank (1968), 94 Ill. App. 2d 273, 237 N.E.2d 567, aff'd (1969), 42 Ill. 2d 365, 247 N.E.2d 894.) Therefore, since we have found defendants to be without fault, the sole question of plaintiff’s cross-appeal has become moot.

For the foregoing reasons, the judgment of the circuit court is reversed and this action is remanded for entry of summary judgment in favor of defendants.

Reversed and remanded with instructions.

McCORMICK, RJ., and DiVITO, J., concur.

      The current value of the res of the trust appears to be approximately $350,000.

      Moreover, we note that our supreme court has long recognized that a recital or preamble is presumed to have no substantive effect on the instrument, but is merely intended by the drafter to be introductory or precatory. (Brookens v. Peabody Coal Co. (1957), 11 Ill. 2d 322, 325, 143 N.E.2d 25, 27 (“Generally, the recognized rule is that the obligations *** of the parties in the operative portion of [an instrument] prevail over a preliminary recital or preamble”); see also Illinois Housing Development Authority v. M-Z Construction Corp. (1982), 110 Ill. App. 3d 129, 441 N.E.2d 1179 (holding that the preliminary recitals of an instrument impose no binding obligations on the parties unless its operative portion manifested an intent to make it so).) Accordingly, even if we accepted plaintiff’s construction of the recital here, we would not be able to give it the substantive effect she desires.

      Plaintiff cites Stuart v. Continental Illinois National Bank & Trust Co. (1977), 68 Ill. 2d 502, 369 N.E.2d 1262, Harris Trust & Savings Bank v. Wanner (1946), 393 Ill. 598, 66 N.E.2d 867, and In re Trusteeship Under the Last Will & Testament of Hartzell (1963), 43 Ill. App. 2d 118, 192 N.E.2d 697, as support for this proposition. However, not one of these cases addresses the argument that the purpose of a trust serves as an implicit restriction on the express amendatory power of a trustee or settlor. At best, and giving plaintiff every benefit of the doubt, the three cases arguably stand for the proposition that a trustee cannot act inconsistent with the express purposes of the trust. However, these cases do not bind this court as they do not concern a trustee or settlor vested with the broad amendatory power that defendants have under the instant trust instrument.

      “3. to change or modify; to alter esp. in phraseology; to alter formally by modification, deletion or addition.” Webster’s New Collegiate Dictionary 100 (1984).


source: Caselaw Access Project

author: JUSTICE HOFFMAN

license: Public Domain

text:
    ESTELLE COHN, Plaintiff-Appellant, v. THE NORTHERN TRUST COMPANY, Defendant-Appellee.
    First District (4th Division)
    No. 1 — 91—3643
    Opinion filed July 29, 1993.

      Dan Karlin, Ltd., and Fischel & Kahn, Ltd., both of Chicago (Dan Karlin & Angela M. Kalamaras, of counsel), for appellant.
    Johnson & Bell, Ltd., of Chicago (Scott W. Hoyne and Greg D. Conforti, of counsel), for appellee.
   JUSTICE HOFFMAN

delivered the opinion of the court:

On December 14, 1983, the plaintiff, Estelle Cohn, was injured as she was exiting the premises of the defendant, the Northern Trust Company, through a revolving door. The plaintiff filed the instant action and charged, in her third-amended complaint, that the defendant was negligent in maintaining its revolving door and that her injuries were aggravated when the defendant’s employees moved her after her initial fall. The matter was tried before a jury, but, at the close of the plaintiff’s case, the trial court directed a verdict in favor of the defendant. The plaintiff has appealed, and, for the reasons which follow, we affirm.

Before we address the underlying issues presented by this case, we feel compelled to address the proper standard to be applied in ruling on motions for directed verdicts in cases tried before a jury.

In their briefs on appeal, both parties refer to the manifest weight of the evidence standard in discussing the propriety of the actions of the trial court in granting the defendant’s motion for a directed verdict. Both parties cite to the decision in Thomas v. University of Chicago Lying-In Hospital (1991), 221 Ill. App. 3d 919, 583 N.E.2d 73, in support of their manifest weight arguments. In cases tried without a jury, the trial judge as the trier of fact applies a manifest weight standard to a motion for a directed finding at the close of a plaintiff’s. case. (City of Evanston v. Ridgeview House, Inc. (1976), 64 Ill. 2d 40, 349 N.E.2d 399.) However, this case was tried before a jury and, as such, the manifest weight standard has nothing whatever to do with the trial court’s ruling on the defendant’s motion for a directed verdict.

Directed verdicts in jury cases are governed by the Pedrick standard: that is, directed verdicts ought be granted only in cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504.) To the extent that Thomas implies that a manifest weight test is to be applied in judging the propriety of a directed verdict in a jury case, we decline to follow it. (See City of Evanston, 64 Ill. 2d at 57-58.) Having articulated the standard, we will now address the propriety of the trial court’s order applying the Pedrick rule.

In her third-amended complaint, the plaintiff charged that the defendant was negligent in: (1) maintaining the revolving door so as to permit the door to move in a fast and unusual manner; (2) moving the plaintiff after she fell; (3) allowing the plaintiff to rise to her feet after she fell; and (4) lifting the plaintiff out of a chair and placing her in a wheelchair after her fall. The plaintiff alleged that her first charge proximately caused her injury and the remaining three charges aggravated the injury.

Four witnesses testified as to the condition and maintenance of the door itself: the plaintiff; Earl Cornelius, one of the defendant’s security guards; Gustav Prengen, employed in the defendant’s maintenance department; and Salvatore Maggoire, the building manager.

The plaintiff testified that on December 14, 1983, she was exiting the defendant’s bank through a revolving door. As she was about to exit the revolving door, someone entered another compartment of the door; the door whirled, hitting her in the back and throwing her to the floor. She described the movement of the door as “fast.” She also testified that she had used the revolving doors many times before and they moved slowly.

Cornelius testified that he was working as a security guard on the date of the plaintiff’s fall. After being notified by another guard that a woman had fallen in the vestibule of the bank, he went to the location where the plaintiff was lying on the floor just outside of the revolving door. When he reentered the bank, he walked through the revolving door and it seemed to be operating properly, but he never checked the timing of the door. Cornelius testified that he made a report of the incident, but because he did not detect any malfunction in the revolving door, he did not direct a copy of the report to the maintenance department.

Prengen testified that on the date of the plaintiff’s injury, he was employed by the defendant as a maintenance carpenter. He testified that no one from the maintenance department asked him to inspect the door after the plaintiff’s fall and he did not do so. Prengen stated that the revolving door in issue was supposed to move at the rate of one revolution every five seconds and the doors were inspected quarterly. It was his responsibility to check the door speed at the quarterly inspections. When he checked the door in February 1984, the quarterly inspection after the plaintiff’s fall, it did not need adjustment.

Maggoire, the defendant’s building manager at the time of the plaintiff’s fall, testified that no one in the maintenance department was notified of the plaintiff’s fall and no inspection of the door was performed until the regular quarterly inspection in February 1984.

To prevail on her theory that the defendant’s negligent maintenance of its revolving door proximately caused her injuries, the plaintiff was required to come forward with some evidence tending to prove that a specified condition under the defendant’s control caused her to fall. (See Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.) In this case, the condition was alleged to be the speed at which the revolving door rotated. The only testimony in the record relating to the proper speed of rotation was that of Prengen, who testified that the door was supposed to rotate once every five seconds. The plaintiff was unable to estimate the speed of the door at the time of her fall. She could only describe it as fast compared to its slow rotation when she used it on prior occasions. The plaintiff did not testify that the door moved faster than normal when she pushed it; it was her testimony that it moved fast after another person entered the door.

The plaintiff’s subjective verbal characterization that the rotation was fast, without more, is so lacking in precision of meaning that it fails to give the jury any evidence from which it could conclude that at the time of the plaintiff’s fall the door was out of adjustment. (See Lucker v. Arlington Park Race Track Corp. (1986), 142 Ill. App. 3d 872, 492 N.E.2d 536.) Liability cannot be predicated upon guess, speculation, or conjecture as to the cause of an injury. Proximate cause can only be established upon probative evidence tending to establish that the defendant’s acts caused the injury complained of, and, if a plaintiff fails to come forward with such evidence, a prima facie case has not been made and a directed verdict is proper. (Vance v. Lucky Stores, Inc. (1985), 134 Ill. App. 3d 166, 480 N.E.2d 167.) Under the facts of this case, it is no more probable that the plaintiff’s injury was caused by a maladjustment of the defendant’s door than by the rotation of the door by the person who entered it as the plaintiff was exiting. To suggest otherwise would be to engage in pure speculation. Liability cannot be established where the cause of an injury rests upon conjecture or surmise. Consolino v. Thompson (1984), 127 Ill. App. 3d 31, 468 N.E.2d 422.

The plaintiff’s three other theories of liability all relate to an aggravation of her initial injury by reason of the manner in which the defendant’s employees handled her after she fell. The plaintiff testified that after her fall, she tried to get up but was unable. The next thing she remembered was being put in a wheelchair. She did not remember being moved from the spot where she fell prior to being placed in the wheelchair. The only medical testimony in this case came from Dr. Nasim Rana, the plaintiff’s treating physician, whose evidence deposition was read to the jury. After testifying that forcing the plaintiff to walk after her fall could aggravate her injury, Dr. Rana conceded that he could not say with a reasonable degree of medical certainty what aggravation, if any, occurred after the plaintiff fell. No witness testified that the defendant’s employees in fact caused the plaintiff to place weight upon her injured leg and the plaintiff was unable to remember any such event. In sum, there is no evidence in this record to support the notion that the plaintiff’s injuries were aggravated after her initial fall, much less aggravated by the defendant’s employees.

Lastly, the plaintiff argues that a directed verdict was inappropriate in light of the defendant’s failure to produce the original incident report written by Cornelius pursuant to the plaintiff’s Supreme Court Rule 237 notice to produce. (134 Ill. 2d R. 237.) The plaintiff contends that the original report would have revealed whether the defendant’s maintenance department had been notified of the plaintiff’s accident, whether the subject door was inspected, and whether the door was found to be defective.

The record reflects that the plaintiff made two pretrial requests for the subject report. The first came on July 6, 1988, as part of a notice for the taking of Maggoire’s discovery deposition; and the second, on January 12, 1989, as part of the notice for the taking of the deposition of Lillian Jacobs, another of the defendant’s employees. In response to these requests, the plaintiff received two copies of the report. The first copy that was tendered had redacted from it certain writing in the upper left-hand comer of the document. The second copy contained writing in the upper left-hand comer indicating its distribution path.

On August 29, 1991, the plaintiff served a Rule 237 notice upon the defendant’s counsel commanding the production of copies of all written reports of inspections of the revolving door where the plaintiff fell and the statements of all witnesses. At the time of trial, the plaintiff raised an objection to the defendant’s failure to produce the original of Cornelius’ report. The defendant contended that it no longer possessed the original, stating that it had been sent to its insurance broker. The plaintiff then issued a subpoena for the broker’s file and specifically requested the production of the original of the incident report prepared by Cornelius. When the broker failed to produce the original, the defendant conceded that the broker did not have the original. The copy produced at trial had an original stamp on it dated one day after the plaintiff’s accident. When Cornelius was shown the copy of the incident report with writing in the upper left-hand corner, he identified the writing as his own. Cornelius denied routing the report to the maintenance department because he did not detect anything wrong with the door.

The plaintiff argues that the defendant’s failure to produce the original incident report limited her scope of examination. She contends that she repeatedly requested the original report. However, the record fails to reflect any specific demand for the original report until the mid-trial subpoena issued to the defendant’s insurance broker. The record further reflects that the plaintiff possessed the unredacted copy of the report for two years and four months prior to trial yet the production of the original never became an issue until the trial actually commenced. The plaintiff’s Rule 237 notice, although generally describing a group of documents which would include the Cornelius incident report, did not specifically call for the production of the original of this report.

Supreme Court Rule 237(b) provides that upon a party’s failure to comply with a notice to produce documents at trial, “the court may enter any order that is just, including any order provided for in Rule 219(c) that may be appropriate.” (134 Ill. 2d R. 237(b).) To be sure, the giving of an adverse inference instruction is an approved remedy for a party’s failure to produce documents (Buehler v. Whalen (1977), 70 Ill. 2d 51, 374 N.E.2d 460); but, as with discovery sanctions, the remedy for noncompliance with a Rule 237 notice is a matter committed to the sound discretion of the trial court (Yassin v. Certified Grocers of Illinois, Inc. (1986), 150 Ill. App. 3d 1052, 502 N.E.2d 315). “Rule 237 notices are not discovery tools and should not be used as a substitute for the discovery rules.” Lannert v. Ramirez (1991), 214 Ill. App. 3d 1102, 1105, 574 N.E.2d 238, 240.

The plaintiff was aware of the redaction of information from the first copy of the incident report tendered to her for more than two years prior to trial. She received what was represented to be an unredacted copy in May 1989 upon taking the discovery deposition of Jacobs, yet in the two years and four months that elapsed prior to trial, the record fails to disclose any efforts on the plaintiff’s part to compel production of the original document. If the document in its original form was so vital to the plaintiff’s case, logic would have it that some effort would have been made to compel its production prior to trial. A trial court’s refusal to employ any sanction in the face of a violation of a Rule 237 notice is not a per se abuse of discretion. Among the factors to be considered in determining whether a sanction is appropriate is the diligence of the party claiming the viofation in attempting to secure the document prior to trial. (See Ashford v. Ziemann (1984), 99 Ill. 2d 353, 459 N.E.2d 940; Campen v. Executive House Hotel, Inc. (1982), 105 Ill. App. 3d 576, 434 N.E.2d 511.) The plaintiff’s failure in this regard, coupled with Cornelius’ testimony that he did not direct the report to the maintenance department and the fact that the copy of the report that was produced at trial bore the defendant’s original stamp dated one day after the plaintiff’s fall, leads us to conclude that the trial court did not abuse its discretion in failing to sanction the defendant for being unable to produce the original of the document.

For these reasons, we affirm the order of the trial court directing a verdict in favor of the defendant.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE JOHNSON

text:
    AFSHAR, INC., Plaintiff-Appellee, v. CONDOR AIR CARGO, INC., Defendant and Third-Party Plaintiff-Appellant (A C Express et al., Third-Party Defendants).
    First District (4th Division)
    No. 1 — 92—0508
    Opinion filed July 29, 1993.
    Robert A. Roth, of Keck, Mahin & Cate, of Chicago, for appellant.
    Jeanine L. Stevens, of Bischoff, Maurides & Swabowski, Ltd., of Chicago, for appellee.
   JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Afshar, Inc., filed this action in the circuit court of Cook County against defendant, Condor Air Cargo, Inc., to recover for damages sustained to a Persian rug while in transit between two cities. Following a bench trial, the trial court entered a verdict in plaintiff’s favor on the original complaint, and in favor of AC Express, on the third-party complaint defendant filed against AC Express and Atlantic Delivery, Inc. Defendant appeals, contending that the trial court (1) committed reversible error in holding it strictly liable, and (2) erred in denying its motion for judgment at the end of plaintiff’s case.

We affirm.

There is no record of proceedings as no court reporter was present at trial. The evidence adduced at trial, as presented by the parties’ briefs, is as follows. In August 1990, Eileen and James Swoboda, residents of Virginia, agreed to purchase an $11,000 Bijar Halvaii carpet from plaintiff in Chicago. The Swobodas inspected the rug and found it to be in pristine condition. Plaintiff later entered into an oral agreement with defendant under which defendant agreed to transport the carpet to Oakton, Virginia.

On August 17, 1990, Ani Afshar, president of Afshar, Inc., together with her two sons and a Mend, inspected the rug at her home. After finding no blemishes, they completely enclosed the rug in heavy-duty transparent plastic using heavy-duty woven tape. Later that afternoon, defendant retrieved the rug from the Afshar home. Ms. Afshar believed that the carpet would be transported only by defendant.

On August 21, 1990, the carpet was delivered to the Swoboda residence in Virginia. Upon delivery, Ms. Swoboda noticed that the plastic enclosing the rug had been ripped, thereby exposing a portion of the rug. Ms. Swoboda insisted that the delivery person remain while she inspected the carpet more thoroughly. In so doing, Ms. Swoboda noticed that the carpet was wet and its colors had run, and noted such on the delivery receipt before signing. Ms. Swoboda paid shipping charges of $118.90 which plaintiff did reimburse.

Ms. Swoboda immediately telephoned Ms. Afshar and informed her that the carpet had been damaged and refused to pay for it. Ms. Afshar directed her to ship it to a restoration company where it was examined, washed and stretched for $333.50 which Ms. Afshar paid. Ms. Afshar also paid $600 in storage fees.

On May 15, 1991, plaintiff filed a two-count complaint against defendant based on strict liability and negligence. Defendant generally denied all material allegations of the complaint. Defendant later filed a third-party complaint against the third-party defendants for contribution and indemnity.

At the bench trial held on January 8, 1992, after plaintiff presented its opening statement, defense counsel moved for judgment in its favor alleging that plaintiff failed to make a prima facie case under the Carmack Amendment to the Interstate Commerce Act (49 U.S.C. §11707 (1988)). The trial court denied defendant’s motion. At the end of plaintiff’s case, defendant again moved for judgment pursuant to section 2 — 1110 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 1110). The trial court denied defendant’s motion, noting that defendant failed to plead the Carmack Amendment as an affirmative defense and that defendant argued only that the Carmack Amendment precluded recovery because Afshar failed to establish damages. After weighing the evidence and considering the credibility of witnesses, the trial court entered a verdict in plaintiff’s favor on the original complaint based on strict liability, and in favor of AC Express on the third-party complaint.

On appeal, defendant contends that the trial judge committed reversible error in holding it strictly liable and not determining its liability under the Carmack Amendment. Plaintiff argues, however, that defendant waived this defense at trial, and also here on appeal, by failing to plead it in its answer to the complaint.

Section 2 — 613(d) of the Illinois Code of Civil Procedure provides that any affirmative defense, such as any transaction that “cannot be recovered upon by reason of any statute,” which a litigant wishes to assert at trial, must be set out in his answer or reply. (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 613(d).) Where a litigant fails to do so, he has waived the defense and it may not be considered even though the evidence may suggest the existence of the defense. Spagat v. Schak (1985), 130 Ill. App. 3d 130, 134.

As defendant notes in its brief, the Carmack Amendment preempts all State and common law remedies inconsistent with the Interstate Commerce Act. (Hughes v. United Van Lines, Inc. (7th Cir. 1987), 829 F.2d 1407, 1415.) Since it would have defeated plaintiff’s claims based on negligence and strict liability, the Carmack Amendment meets the test for an affirmative defense and defendant should have raised it in its answer. (See Schute v. Chambers (1986), 142 Ill. App. 3d 948, 952.) However, since it did not, we hold that the trial court did not err in holding defendant strictly liable.

Because we hold that defendant waived its argument concerning the Carmack Amendment here on appeal, we need not address its remaining argument.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

CAHILL and HOFFMAN, JJ., concur.


author: PRESIDING JUSTICE JIGANTI

text:
      In re MARRIAGE OF NANCY O. DUERR, Petitioner-Appellant, and GORDON JOHN DUERR, JR., Respondent-Appellee.
    First District (4th Division)
    No. 1 — 91—3295
    Opinion filed July 29, 1993.

      David I. Grund and Linda K. Schneider, both of Grund, Nadler & McNish, of Chicago, for appellant.
    Diane M. Bruzas, of Chicago, for appellee.
   PRESIDING JUSTICE JIGANTI

delivered the opinion of the court:

Nancy Duerr appeals from an order of the circuit court denying a petition for rule to show cause that she brought against her ex-husband, Gordon Duerr, for allegedly failing to pay back child support in the amount of $18,900. The trial court found that Nancy was estopped from bringing her action. The circuit court also denied Nancy’s request that Gordon contribute to the psychiatric and private education expenses of their oldest son, Jay, and pay for Nancy’s attorney fees. The court ordered Nancy to contribute child support for the couple’s youngest son, Bradley, and modified the amount of child support Gordon is obliged to pay Nancy.

The marriage of Nancy and Gordon Duerr came to a formal conclusion in Indiana on April 8, 1983. By court order, Nancy was awarded custody of the couple’s children, Jay and Bradley. Gordon was ordered to pay child support. In May of 1983 Nancy moved with the children to Cook County in Illinois. Thereafter, in August of 1987, the Illinois court increased Gordon’s child support payments to $1,350 per month for both children.

In the spring of 1988, Gordon took Jay and Bradley on a trip to Florida. While on the trip Bradley expressed a desire to live with Gordon. After the Florida trip, the children returned to their residence in Illinois. Later, in May of 1988, both boys went to live with Gordon in Logansport, Indiana. In response to the children’s move, Gordon purchased a new home for $125,000, adding $75,000 in improvements. Gordon also hired a nanny for the boys and purchased a car for the nanny. Nancy made no child support contributions to Gordon during the time the boys lived with him.

At trial, Gordon testified that after Jay and Bradley came to live with him, he ceased making child support payments to Nancy. Gordon testified that at the time he believed as a matter of “logic” that “since they were living with [him] that it was obvious to [him] that [he] didn’t need to pay child support.” Gordon also testified that in June of 1988, after the children moved in with him, Gordon sent Nancy 11 post-dated checks in the amount of $1,350 each. With the checks Gordon enclosed a note to Nancy explaining that he understood that having the children move out was a difficult transition for her. Gordon testified that he did not view the checks as child support payments, but rather as assistance to Nancy for her lease payments. In the note to her Gordon explained to Nancy that he recognized that she would not be able to adjust her living expenses immediately; however, he requested that whenever Nancy obtained a new lease she return any remaining checks to him. Gordon testified that in a subsequent conversation with her, Nancy told him she would do the best she could. Gordon admitted that he received no formal response from Nancy regarding the nature of the payments he forwarded to her. In explaining why he did not seek a court order formally changing the custody and support arrangements, Gordon referred to the August 1987 court order increasing his child support payments and testified that he did not feel like going through another protracted litigation. As of May 1989, Gordon provided no further payments to Nancy.

In her testimony, Nancy admitted receiving and cashing the 11 post-dated checks; however, she denied receiving any note of explanation from Gordon. Nancy denied that she and Gordon had had any discussion or agreement regarding the cessation of child support payments from him to her. Nancy testified that she did not ask Gordon for any further payments after she cashed the last post-dated check of April 1989.

In June of 1990, the couple’s oldest son, Jay, returned to live with Nancy in Chicago. Bradley remained with his father. Nancy enroUed Jay in a private school at an approximate cost of $8,000 per year. Nancy testified that Gordon signed a contract with the school and paid an $800 deposit; however, he refused to pay any further tuition. Nancy presented no evidence indicating a need for Jay to attend private school. Nor did she provide evidence corroborating her testimony regarding the expense she incurred in providing a private education for Jay. Nancy also obtained psychological counseling for Jay. She testified that when Jay returned from living with his father he was depressed, lethargic, and “nonparticipatory.” Nancy stated that after several psychiatric counseling sessions, Jay’s mental state greatly improved. Nancy did not provide independent documentation of Jay’s therapy expenses. Neither of the counselors who treated Jay testified at trial.

Nancy’s 1991 gross income to date of trial (approximately five months) was approximately $21,000 with monthly expenses of $12,000. Nancy did not provide documentation of her monthly expenses. In 1990, Nancy earned $75,000 selling realty for J.M.B. Realty, Inc. At the time of trial she was no longer employed by J.M.B. Gordon’s gross monthly income for 1991 was $17,010, with expenses of $12,160. Gordon also receives bonuses from the corporations he has interests in.

On July 6, 1990, Nancy filed a petition for rule to show cause, alleging Gordon owed her child support arrearage in the amount of $18,900 for the period May 1989 to July 1990. Gordon responded to Nancy’s charge with two affirmative defenses: subsequent agreement between the parties and equitable estoppel. The trial court found that the parties had agreed in May of 1988 that the two boys would go to live with their father. The court further determined that Gordon had suffered a detriment as a result of assuming full custody of the children. As a consequence, the trial court ruled that Nancy was estopped from bringing a petition for rule to show cause. On appeal, Nancy asserts that the requisite elements of equitable estoppel are not present in this case and, therefore, the trial court erred in denying her petition. We disagree.

The defense of equitable estoppel is available where a person’s statement or conduct induces another to rely to his or her detriment on the statement or conduct. (In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 547 N.E.2d 749.) The reliance should be reasonable. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125.) Within the context of the general rules applying to child support, the doctrine of equitable estoppel is an exception to the otherwise inflexible rule that child support payments become vested when they accrue. Elliott v. Elliott (1985), 137 Ill. App. 3d 277, 484 N.E.2d 482.

The Illinois courts have ruled that the equitable estoppel exception will generally be inapplicable where the respondent has unilaterally determined that the child’s emancipation relieves the respondent of the obligation to pay child support. This is true despite the petitioner’s silence, which the courts have viewed as not the kind of conduct that in itself creates an equitable estoppel. (See In re Marriage of Jackson (1989), 179 Ill. App. 3d 479, 534 N.E.2d 687; Jones v. Meade (1984), 126 Ill. App. 3d 897, 467 N.E.2d 657; Jozwick v. Jozwick (1979), 72 Ill. App. 3d 17, 390 N.E.2d 488.) Further, the supreme court of Illinois has determined that the petitioner is not equitably estopped from seeking child support arrearage, albeit the petitioner admittedly agreed to waive support in exchange for the respondent’s relinquishment of visitation rights. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125.) The court reasoned in part that the forfeiture of visitation rights and the failure to anticipate an action for unpaid support did not constitute the detriment required to establish an estoppel defense. (Blisset, 123 Ill. 2d at 169, 526 N.E.2d at 129.) The court also stated that as a general rule parties may not bargain away their children’s support or visitation interests.

In contrast to the above-noted cases, the Illinois courts have tended to find that an informal change in custody preceding a cessation of child support payments lends credibility to an assertion of the defense of equitable estoppel. Johnston v. Johnston (1990), 196 Ill. App. 3d 101, 553 N.E.2d 93; In re Marriage of Webber (1989), 191 Ill. App. 3d 327, 547 N.E.2d 749; Strum v. Strum (1974), 22 Ill. App. 3d 147, 317 N.E.2d 59; also see discussion in Baker v. Baker (1990), 193 Ill. App. 3d 294, 549 N.E.2d 954. Contrast Elliott v. Elliott (1985), 137 Ill. App. 3d 277, 484 N.E.2d 482 (court found respondent improperly relied on petitioner’s silence as agreement to reduce unallocated child support for one child out of four who went to live with respondent).

In these cases, as in the present one, whether the parties had agreed to the cessation or suspension of child support payments during the time the custody arrangement was altered was a matter in dispute. However, the fact that the respondent was in custody of the child and fully supporting him or her during the period in question provided evidence that the respondent was acting to his or her detriment in reasonable reliance upon an agreement with the petitioner. Under these circumstances, the trier of fact could properly find the petitioner estopped from asserting an arrearage in child support. Johnston v. Johnston (1990), 196 Ill. App. 3d 101, 553 N.E.2d 93.

It is important to note that in these cases the child’s support rights are not bargained away as the child is being supported by the obligor parent. Nor is visitation or any other of the child’s best interests compromised. (See Johnston v. Johnston (1990), 196 Ill. App. 3d 101, 553 N.E.2d 93.) Further, under these circumstances, a finding of equitable estoppel precludes the petitioner from receiving an unwarranted benefit, the windfall of support payments for support she or he has not actually furnished. Johnston v. Johnston (1990), 196 Ill. App. 3d 101, 553 N.E.2d 93; also see Hoos v. Hoos (1980), 86 Ill. App. 3d 817, 823, 408 N.E.2d 752, 757.

In the present case, it is undisputed that the parties agreed that the children would live with Gordon after Bradley expressed the desire in the spring of 1988. It is undisputed that to support the children, Gordon purchased a new home and spent a considerable amount of money rehabilitating the house and providing a nanny for the children. It is undisputed that Nancy did not contribute to the support of the children while they lived with Gordon. It is also undisputed that Nancy continued to receive 11 months’ worth of payments in the amount of $1,350. Gordon asserts the payments were for rent. Nancy does not dispute that she was obligated to her lease for the 11-month period. Nancy did not assert to Gordon until more than a year after she cashed the last of the checks that she had expected child support to continue during the time both boys resided with Gordon.

A finding that the doctrine of equitable estoppel applies as a defense must be based on clear and convincing evidence and will not be overturned absent an abuse of discretion by the trial court. (Elliott v. Elliott (1985), 137 Ill. App. 3d 277, 484 N.E.2d 482.) Under the circumstances of the present case, we do not believe the court abused its discretion in finding that Gordon ceased to pay child support to Nancy in reasonable reliance to his detriment on Nancy’s conduct. Nancy is therefore estopped from seeking from Gordon child support arrearage for the period of time during which Gordon actually and solely provided home and support for the children.

In her next argument on appeal, Nancy contends that the court erred when, in response to Gordon’s petition, it ordered her to pay Gordon $350 per month for the support of Bradley and reduced Gordon’s child support payments to her to $1,000 per month. At trial, .Nancy stipulated that the custody of Bradley be awarded to Gordon. Nancy argues that Gordon has not shown a substantial change in circumstances that warrants a modification of his child support obligations. (Ill. Rev. Stat. 1991, ch. 40, par. 510(a).) Further, Nancy asserts that because of the disparity between her and Gordon’s income, any reduction in Gordon’s support obligation and imposition of an obligation on her serves to reduce the standard of living Jay would have enjoyed inside the marriage and perpetuates a disparity in the lifestyles of the two boys. Finally, Nancy contends that the court improperly ordered that the modification in Gordon’s payments be retroactive to July 1, 1990, and that Nancy’s support obligation be retroactive to August 9, 1990. Although Gordon filed his original petition on August 9, 1990, it was later dismissed. Gordon filed an amended petition on February 21, 1991, the date from which, according to Nancy, any modifications in the child support arrangements must begin.

We do not believe the trial court abused its discretion or ruled against the manifest weight of the evidence with respect to the child support arrangements in this case. As the custody of Bradley changed from Nancy to Gordon, the threshold question of a substantial change in circumstances has been met. (In re Marriage of White (1990), 204 Ill. App. 3d 579, 561 N.E.2d 1387.) Moreover, both parents have an obligation to financially support their children. (In re Marriage of Schuster (1992), 224 Ill. App. 3d 958, 975, 586 N.E.2d 1345; In re Marriage of Fazioli. (1990), 202 Ill. App. 3d 245, 559 N.E.2d 835.) The Illinois Marriage and Dissolution of Marriage Act provides as a guideline that the noncustodial parent pay approximately 25% of his or her net monthly income in child support when there are two children. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(1).) When custody is split, the court may apportion the percentage between the parents. In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 493 N.E.2d 666.

Although the evidence at trial supports Nancy's assertion that Gordon’s income is more than hers, we believe that based on the evidence presented, the trial court remained well within the statutory guidelines in determining that Nancy could provide a portion of Bradley’s support. (See In re Marriage of Keown (1992), 225 Ill. App. 3d 808, 587 N.E.2d 644.) Further, we find nothing in the record to support Nancy’s assertion that the amount of support Gordon is to pay for Jay results in a standard of living less than that Jay would have enjoyed in the marriage. Although we have some indication of Gordon and Bradley’s living conditions, Nancy has not shown that her and Jay’s standard of living is beneath theirs. To the contrary, Nancy testified that she has managed to provide private education and therapeutic counseling for Jay.

We also do not believe that the trial court erred in ruling the modified child support obligations retroactive. The fact that Gordon’s petition was originally dismissed is not controlling as Gordon later filed an amended petition with leave of the court which related back to his original petition. (See Wolf v. Meister-Neiberg, Inc. (1991), 143 Ill. 2d 44, 570 N.E.2d 327 (amended complaint filed after expiration of statute of limitations related back to original timely filed complaint); also see Kawa v. Harnischfeger Corp. (1990), 204 Ill. App. 3d 206, 561 N.E.2d 1179 (where a party granted leave to file amended complaint, cause is still pending and undecided).) Therefore, the date of due notice to Nancy with respect to Gordon’s petition is the date of his original filing. The court could properly modify the support award for any installments accruing from the date of due notice. Ill. Rev. Stat. 1989, ch. 40, par. 510(a); see Shoff v. Shoff (1989), 179 Ill. App. 3d 178, 534 N.E.2d 462.

Nancy also argues on appeal that the trial court erroneously denied her request that Gordon contribute to the private educational and therapeutic expenses incurred on behalf of Jay. Nancy failed to produce specific evidence of the reasonable necessity of providing private education for Jay or her actual expenditures. (See Ill. Rev. Stat. 1989, ch. 40, par. 505(a); In re Marriage of Loffredi (1992), 232 Ill. App. 3d 709, 597 N.E.2d 907.) The record is also devoid of any testimony other than Nancy’s indicating psychotherapy was in Jay’s best interests or necessary to his well-being. For these reasons, we do not believe the trial court’s denial of Nancy’s petition was improper.

Finally, Nancy argues that the trial court abused its discretion in denying Nancy a hearing to determine whether Gordon should pay any or all of Nancy’s attorney fees. We do not believe the court abused its discretion in this respect. Because Gordon’s failure to make support payments during the time the boys lived with him was not without justification, Nancy is not entitled to attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1989, ch. 40, par. 508(b).

Further, as the trial court had heard evidence of the parties’ financial situation during trial, it was not error for the court to fail to hold a separate hearing on the subject of fees. The Illinois Marriage and Dissolution of Marriage Act merely requires the court to consider the financial resources of the parties in coming to a conclusion about attorney fees. (Ill. Rev. Stat. 1989, ch. 40, par. 508(a); In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) The allowance of attorney fees is within the discretion of the trial court and its determination will not be disturbed absent an abuse of discretion. (In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707.) In the present case, we believe that the trial court, considering the financial resources and other circumstances of the parties, could properly find it unnecessary for Gordon to pay Nancy’s attorney fees. Jones v. Meade (1984), 126 Ill. App. 3d 897, 467 N.E.2d 657.

The judgment of the trial court is affirmed.

Affirmed.

JOHNSON and CAHILL, JJ., concur.


author: JUSTICE SLATER

text:
    THE VILLAGE OF WINNETKA, Appellant, v. THE INDUSTRIAL COMMISSION et al. (William Fisher, Appellee).
    First District (Industrial Commission Division)
    No. 1 — 92—4423WC
    Opinion filed July 30, 1993.

      Jack M. Shanahan, of Johnson, Drozdzik, Van Briska & Andros, Ltd., of Chicago, for appellant.
    Richard J. Barr, Jr., of Lannon, Lannon & Barr, Ltd., of Chicago, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

Claimant, William Fisher, brought a workers’ compensation claim against his employer, the Village of Winnetka, for injuries sustained on April 21, 1989. The arbitrator granted the claimant’s petition finding that his injuries occurred within the course of his employment. On review, the Industrial Commission (Commission) affirmed the award and the circuit court confirmed the decision of the Commission. The employer appeals. We affirm.

The claimant had worked for the village as a trash collector for approximately four years prior to the incident giving rise to this claim. During that time, his regular partner was George Schladt. Employees were scheduled to arrive at work at 7 a.m., although the village allowed its trucks to.leave on their routes as early as 6:30 a.m. When the route was completed, the employees were allowed to leave early. Even though the claimant’s route could be completed within four to six hours, the village paid for a full eight hours. The claimant and Schladt both had second jobs as limousine drivers with Lois Limo.

On April 21, 1989, the claimant came to work at 6:45 a.m. Originally he was not scheduled to go on a trash collecting route because he had been sick. However, he had been rescheduled to go on the route with Schladt. When the claimant saw Schladt, Schladt started yelling at him and calling him names. Schladt told the claimant that he should have been there at 6:30 a.m. because Schladt wanted to finish the route so he could go home early. As they started their route, Schladt continued to call him names. After picking up the garbage at one stop, Schladt came up behind the claimant, kicked him, and called him a “son of a bitch.” Schladt then punched him four times in the face, put him in a headlock, and asked, “Do you want to fight?” After he was released, claimant began walking back to the yard and was picked up by another truck. He testified that his face hurt and blood was coming from his nose.

The claimant told his supervisor, Bill Willins, about the fight. Willins then brought Schladt and Fisher into his office. Schladt told Willins that Fisher had “screwed me up” because he was not at work by 6:30 a.m. and Schladt needed to get to his second job.

The claimant described Schladt as grumpy and always mad at people. On one prior occasion, Schladt had thrown and hit Fisher with a tennis ball because he did not drive the truck in the right spot.

After the attack, claimant saw Dr. Stephen Yeh, who noted that Fisher had a blocked nasal passage and a nasal fracture coupled by troubled breathing. Dr. Yeh performed surgery, and a second surgery was performed by Dr. David Randolph.

At the time of the attack, the claimant’s average weekly wage with the employer was $540.90. He was also working a second job as a limousine driver for Lois Limo from which he made a total of $1,662.64 in nine weeks.

The arbitrator awarded the claimant 46/? weeks of temporary total disability at a rate based on an average weekly wage of $725.64. The average weekly wage was determined by adding the claimant’s average weekly wage with the employer to the average weekly wage from Lois Limo.

On appeal, the village argues that the circuit court erred in finding the claimant’s injuries arose out of the course of his employment. It initially argues that the standard for review on this issue is not whether the Commission’s decision is against the manifest weight of the evidence, but whether the decision was correct as a matter of law.

While the facts in the instant case may be undisputed, where they present more than one reasonable inference, the determination of the issue presents a question of fact and the decision of the Commission will not be disturbed on review unless it is contrary to the manifest weight of the evidence. (R.A. Cullinan & Sons v. Industrial Comm’n (1991), 216 Ill. App. 3d 1048, 575 N.E.2d 1240.) A court will not disregard permissible inferences drawn by the Commission merely because other inferences might be drawn from the same evidence. Orsini v. Industrial Comm’n (1987), 117 Ill. 2d 38, 509 N.E.2d 1005.

In the case sub judice, the Commission could have reasonably inferred that the employer’s last-minute reassignment of the claimant on the day of the assault contributed to his injuries. Moreover, the Commission could infer that Schladt had an ongoing behavioral problem which created an added risk to the claimant.

Injuries caused by an assault by a co-worker at the work place during work hours are compensable if the assault arose in the course of a dispute involving the conduct of the work, provided the claimant is not the aggressor. (Rodriguez v. Industrial Comm’n (1982), 95 Ill. 2d 166, 447 N.E.2d 186.) However, injuries suffered by an employee as a consequence of an assault are not compensable if the motive was personal to the victim rather than work related. Schultheis v. Industrial Comm’n (1983), 96 Ill. 2d 340, 449 N.E.2d 1341.

The employer claims that it merely “acquiesced” to the scheduling policy that allowed workers to leave early, and, therefore, the assault was not work related. However, the employer created the policy, and it was this scheduling policy which was the cause of Schladt’s assault on the claimant. The supervisor changed the claimant’s schedule and instructed him to go on the garbage route with Schladt. Schladt wanted to start work at 6:30 a.m. so he could finish early and go to his second job. Shortly after starting their route, Schladt assaulted the claimant because the claimant did not arrive at 6:30 a.m., although he was not scheduled until 7 a.m. Given the foregoing facts and inferences, it cannot be said that the Commission’s decision was against the manifest weight of the evidence.

The village contends that the circuit court’s decision is based on facts and inferences not found by the Commission. It takes exception to the circuit court’s finding that the fight involved “work activities.” While the Commission does not use this specific language, it stated that the village “created the situation which gave rise to the assault by allowing the employees to start work early so they could leave early.” These two findings are reasonably analogous.

The village also takes exception to the circuit court’s finding that Schladt had an “ongoing behavioral problem,” while the Commission found that Schladt had an “ongoing pattern of aggressive behavior.” Again, although the two findings are worded differently, the results are analogous. As such, the circuit court’s findings are consistent with those of the Commission.

The village next argues that the Commission erred in its calculation of the claimant’s average weekly wage. The claimant made $28,126.80 in the prior year working for the village, a stipulated average of $540.90 per week. He also made $1,662.64 in nine weeks working for a second employer, Lois Limo.

The Commission calculated claimant’s average weekly wage by adding the average weekly pay of 52 weeks from the village to the average weekly pay earned by the claimant from Lois Limo. In other words, the Commission added the $540.90 to Lois Limo’s average of $184.74 to arrive at an average weekly salary of $725.64.

The employer argues that the correct calculation should have been to add the $1,662.64 total made at Lois Limo to the $28,126.80 total made the previous year from the employer, and then divide that total of $29,789.44 by 52 weeks for an average weekly salary of $572.87. Both parties concede there is no case law on point. The statutory basis for computing average weekly pay is as follows:

“Where the employment prior to the injury extended over a period of less than 52 weeks, the method of dividing the earnings during that period by the number of weeks and parts thereof during which the employee actually earned wages shall be followed. *** When the employee is working concurrently with two or more employers and the respondent employer has knowledge of such employment prior to the injury, his wages from all such employers shall be considered as if earned from the employer liable for compensation.” (Ill. Rev. Stat. 1991, ch. 48, par. 138.10.)

Based on the language of the statute, we find the Commission was correct in its calculation. In cases of concurrent employment, “wages *** shall be considered as if earned from the employer liable for compensation.” To calculate the employer’s wages for a period of less than 52 weeks “earnings during that period” must be divided by the “number of weeks *** during which the employee actually earned wages.” Ill. Rev. Stat. 1991, ch. 48, par. 138.10.

We note that the statutory computation is somewhat ambiguous. It could be construed that “wages from all such employers shall be considered as if earned from the employer liable for compensation” means simply to add the total of the two wages together and then divide by 52 weeks to arrive at the weekly average. However, such a calculation in the instant case would lead to a second job average of only $31.97. We believe this figure does not fairly represent the claimant’s earning power at the time of his injury.

The judgment of the circuit court of Cook County is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, WOODWARD, and RARICK, JJ., concur.