text:
      In re MARRIAGE OF CARRON GAY BEAN, Plaintiff-Appellee and Cross-Appellant, and JERRY OWEN BEAN, Defendant-Appellant and Cross-Appellee.
    Fifth District
    No. 5—87—0671
    Opinion filed March 30, 1989.

      Crowder & Scoggins, Ltd., of Columbia (Mark S. Rohr, of counsel), for appellant.
    Steven E. Katzman, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On September 16, 1986, the circuit court of St. Clair County entered a judgment dissolving the marriage between plaintiff, Carrón Gay Bean, and defendant, Jerry Owen Bean. In that judgment, the circuit court ordered defendant to pay plaintiff the sum of $440 per month for the care and support of the parties’ minor child, Matthew Edward Bean. Approximately four months later, on January 22, 1987, plaintiff filed a motion in which she requested that the decree be modified to increase the amount of child support defendant was required to pay. Defendant, in turn, moved that the decree be modified to reduce his child support obligations. Following a hearing, the circuit court denied defendant’s motion, granted plaintiff’s motion, and ordered the defendant to pay $575 per month in child support, an increase of $135 per month over the amount specified in the original dissolution judgment. Defendant now appeals. Plaintiff cross-appeals. We affirm.

Motions to modify judgments awarding child support are governed by section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)). That statute provides, among other things, that a modification of a judgment respecting child support may be made “only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1987, ch. 40, par. 510(a).) The burden-of demonstrating such a substantial change in circumstances is on the party seeking the relief. Deardeuff v. Deardeuff (1986), 149 Ill. App. 3d 406, 409, 500 N.E.2d 992, 993.

Motions to modify child support must be decided on the facts and circumstances of each case. Consequently, the modification of child support payments rests with the sound discretion of the trial court, and the trial court’s determination will not be disturbed on review absent an abuse of that discretion. 149 Ill. App. 3d at 409, 500 N.E.2d at 994; Wilson v. Wilson (1988), 166 Ill. App. 3d 1035, 1037, 520 N.E.2d 1230, 1231.

Defendant argues that the circuit court abused its discretion in this case because plaintiff failed to prove that the needs of the parties’ minor child had increased since the dissolution judgment was entered. That plaintiff failed to substantiate any increase in the child’s need can hardly be disputed. Although plaintiff attempted to identify certain categories of expense, including food, clothing and medical and dental costs, which were greater now than they had been in the past, she was unable to show that any of the claimed increases had occurred subsequent to the dissolution judgment. Post-judgment changes are, of course, the only ones which may be considered on a motion to modify. Plaintiff urges us to look back before the dissolution here because the judgment was not entered until well after the trial in the original proceeding and circumstances had already changed substantially by the time the judgment was entered. This argument is not well taken. If circumstances changed following the original trial, plaintiff should have brought such changes to the circuit court’s attention before judgment was entered. There is nothing in the record before us which would excuse her failure to do so in this case. Under such circumstances, plaintiff cannot use a motion to modify as a vehicle for launching a collateral attack on the accuracy of the evidence upon which the circuit court relied in formulating its judgment.

Although plaintiff was unable to substantiate that the child’s needs had increased subsequent to the dissolution, this does not mean that the circuit court abused its discretion in granting her motion to modify. Child support obligations may be increased pursuant to section 510 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510) based upon the supporting parent’s increased ability to pay, regardless of whether the child’s needs have also increased. (Wilson v. Wilson (1988), 166 Ill. App. 3d 1035, 1038, 520 N.E.2d 1230, 1232.) Here, such an increase in ability to pay occurred. Following the dissolution judgment, defendant received a substantial increase in his income. Previously he had earned $665 a week plus an additional $187 which he received once a month for work done on Sunday. This was increased to approximately $800 a week plus $200 once a month for Sunday work. Defendant estimated that the net increase in his income as a result of this raise, after deductions, was approximately $287 a month.

Defendant protests that this increase in his income was offset by additional expenses which he has been forced to incur. The record indicates, however, that his own living expenses remained modest. He indicated that his automobile expenses had increased, but the circuit court may have found this testimony vague and unpersuasive. He claimed, for example, that he now had a $200-per-month car payment, but the new car he claims to have purchased had been his mother’s car and the $200-per-month payments he allegedly made were made to her. These payments were supposedly being paid by defendant to his mother at the same time defendant was residing with her without having to pay rent or make any significant contribution to defray utility expenses or the cost of groceries. Other increased expenses claimed by defendant were either insubstantial, unsubstantiated, or gratuitous, such as the contributions defendant testified he was making to his emancipated sons.

Defendant also claims that the circuit court should not have raised his support obligations because the evidence showed that plaintiff’s income had actually increased, proportionally, more than his own. We find this argument unpersuasive. While the percentage increase in plaintiff’s earnings was higher than the percentage increase in defendant’s income, the actual dollar value of the increase in plaintiff’s earnings was far lower. Plaintiff testified that she now grosses approximately $16,640 a year in her job as manager of a Dress Bam store, whereas she had previously grossed $15,200 per year. This was an increase of only $1,440 a year. In terms of actual take-home pay, plaintiff testified that this worked out to a mere 20 extra dollars a week. That plaintiff was able to secure this modest increase in her income hardly renders the circuit court’s decision an abuse of discretion.

Defendant further argues that the increased child support awarded by the circuit court should be set aside because it exceeds the expenses itemized by plaintiff as being necessary for the care of the minor child. Again we disagree. Where the noncustodial parent has ability to pay support in excess of the stated needs of the child, the court may order child support in excess of the needs to enable the child to enjoy the standard of living he would have had if the marriage had not been dissolved. See In re Marriage of Bussey (1985), 108 Ill. 2d 286, 297, 483 N.E.2d 1229, 1234.

A review of the record shows that the circuit court considered all relevant factors in deciding that defendant’s support obligations should be raised, and we cannot say that the court abused its discretion in ruling as it did. On her cross-appeal, plaintiff claims that she should actually have been awarded a greater amount for child support. She cites no authority in support of her position, however, and once again, we do not believe that the circuit court’s ruling constituted an abuse of discretion.

Plaintiff also claims on her cross-appeal that defendant should have been ordered to pay at least a portion of her attorney fees. This argument is likewise without merit. Attorney fees are the primary obligation of the party for whom the services are rendered. (In re Marriage of Jacobson (1980), 89 Ill. App. 3d 273, 276, 411 N.E.2d 947, 949.) In a proceeding to modify a dissolution judgment, the court may, of course, order one spouse to pay some or all of the attorney fees and costs necessarily incurred by the other. (See Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(2).) The awarding of attorney fees and the proportion in which the fees should be paid are matters committed to the sound discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of that discretion. In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 964, 511 N.E.2d 1157, 1163.

Before one spouse may recover attorney fees from the other, the spouse seeking fees must demonstrate that he or she is financially unable to pay and that the other spouse has the ability to pay. (158 Ill. App. 3d at 964, 511 N.E.2d at 1163.) In this case, the fees and costs sought by plaintiff appear to be somewhat in excess of $1,100. As we have indicated, plaintiff is employed in a job which now pays her approximately $16,640 a year. She owns assets, including an automobile and an interest in the marital residence. By virtue of the judgment from which this appeal and cross-appeal have been taken, she will also be receiving an additional $135 per month for the care and support of the parties’ minor child. Although plaintiff testified that she had to borrow money to meet certain expenses in connection with the marital residence and that she had incurred substantial repair costs for her automobile, we believe that there was ample basis in the record for the trial court to have concluded that she would, in fact, be able to pay her own attorney fees and costs. To be sure, defendant also has resources sufficient to enable him to bear plaintiff’s fees and costs, and his financial situation is undoubtedly stronger than plaintiff’s. Nevertheless, merely showing that the other spouse has a greater ability to pay attorney fees is not sufficient. (158 Ill. App. 3d at 966, 511 N.E.2d at 1165.) Accordingly, we cannot say that the trial court abused its discretion in refusing to require defendant to pay a portion of plaintiff’s attorney fees.

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

Judgment affirmed.

WELCH, P.J., and HOWERTON, J., concur.


source: Caselaw Access Project

author: JUSTICE HOWERTON

license: Public Domain

text:
    JOHN R. PETERSON et al., Plaintiffs-Appellees, v. MONSANTO COMPANY et al., Defendants-Appellants.
    Fifth District
    No. 5—87—0767
    Opinion filed April 13, 1989.
    Richard A. Mueller, Bruce D. Ryder, and Paul A. Streiff, all of Coburn, Croft & Putzell, of Belleville, for appellants.
    Patrick S. O’Brien, of Pratt & Callis, P.C., of East Alton, for appellees.
   JUSTICE HOWERTON

delivered the opinion of the court:

This is the second time this case has been appealed. This time we find that the circuit court properly refused to transfer this case from Madison County on forum non conveniens grounds.

Originally, 32 plaintiffs filed a suit against Monsanto Company and Dow Chemical Company in Madison County for injuries received from exposure to dioxins. Plaintiffs were exposed while spraying herbicides on numerous occasions at numerous sites. Defendant Monsanto moved to transfer for wrongful venue under section 2 — 104 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2— 104). Defendant’s motion was denied and defendant appealed.

This court found that venue properly had been laid in Madison County as to five plaintiffs, and reversed as to 27, and further found that while the exposure of the five to the dioxin in Madison County was minimal, it had been enough to make venue in Madison County proper. Peterson v. Monsanto Co. (1987), 157 Ill. App. 3d 508, 510 N.E.2d 458.

In this appeal, we deal with the case remanded to Madison County in the 1987 decision of this court involving the five remaining plaintiffs.

After remand, Monsanto filed a motion to transfer for forum non conveniens as to the five remaining plaintiffs claiming that St. Louis County is a more convenient forum. The circuit court of Madison County denied defendant’s motion, and Monsanto was granted leave to appeal under Supreme Court Rule 306(a)(l)(iv) (107 Ill. 2d R. 306(a)(l)(iv)).

There are two types of forum non conveniens: (1) intrastate; and (2) interstate.

Under intrastate forum non conveniens, one court in Illinois may transfer a case to another Illinois court.

Under interstate forum non conveniens, Illinois courts may decline jurisdiction if it is more convenient to try the case in another State.

This case involves interstate forum non conveniens.

There are various private and public interests factors that must be balanced to determine whether the case should be transferred. (Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 507 N.E.2d 838.) Although the plaintiff’s choice of forum is given deference, this choice may be set aside when the balance of relevant factors strongly favors the defendant. (Torres v. Walsh (1983), 98 Ill. 2d 338, 351, 456 N.E.2d 601, 607.) The additional factors to be considered in comparing the fora which have jurisdiction include: relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witnesses; costs of obtaining attendance of willing witnesses; possibility of a view of the premises, if such a view would be helpful or appropriate, and all other practical considerations which make trial of a case easy, expeditious and inexpensive. Other relevant factors to be considered include docket congestion, the burden of jury duty on citizens of the forum, and the plaintiff’s right to choose a forum. Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 508-09, 91 L. Ed. 2d 1055, 1062-63, 675 S. Ct. 839, 843; see also Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 497 N.E.2d 745.

The supreme court of Illinois has identified two factors in addition to those set forth in Gulf Oil Corp. v. Gilbert. First, the trial court is required to give greater deference to the plaintiff’s selection if the plaintiff resides in that forum; and second, there is an expressed desire that the forum include the place of injury. Wieser v. Missouri Pacific R.R. Co. (1983), 98 Ill. 2d 359, 371-72, 456 N.E.2d 98, 102; Brummett v. Wepfer Marine, Inc. (1986), 111 Ill. 2d 495, 499, 490 N.E.2d 694, 697.

Here, no one can determine the moment of injury. Injury is the result of an accumulation of exposures, part of which were in Madison County. Likewise, place of injury cannot be determined with precision, since it is conditioned upon moment of injury.

None can say the situs of injury is outside Madison County; but, all can agree that Madison County is part of a set of counties in which there was exposure, the accumulation of which caused injury. Therefore, Madison County is one site of injury. Being the situs, the case should remain in Madison County. The fact that plaintiff was injured in Madison County provides a “significant factual connection with the forum.” Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 289, 507 N.E.2d 838, 842-43.

A circuit court has discretion to deny & forum non conveniens motion. The decision will not be disturbed by a reviewing court unless that was abused. Meyers v. Bridgeport Machines Division of Textron, Inc. (1986), 113 Ill. 2d 112, 117-18, 497 N.E.2d 745, 747; Weaver v. Midwest Towing, Inc. (1987), 116 Ill. 2d 279, 288, 507 N.E.2d 838, 842.

We find that the trial court did not abuse its discretion in denying Monsanto’s motion to transfer for forum non conveniens.

The circuit court is affirmed.

Affirmed.

WELCH, P.J., and HARRISON, J., concur.


author: PRESIDING JUSTICE WELCH

text:
    HAROLD WALLMAN, Plaintiff-Appellee, v. ZONING BOARD OF APPEALS, CITY OF FAIRVIEW HEIGHTS, Defendant-Appellant.
    Fifth District
    No. 5—87—0530
    Opinion filed April 17, 1989.
    Alvin C. Paulson, of Kassly, Bone, Becker, Dix, Tillery & Reagan, P.C., of Belleville, for appellant.
    Robert J. Sprague, of Sprague & Sprague, of Belleville, for appellee.
   PRESIDING JUSTICE WELCH

delivered the opinion of the court:

This appeal is from a judgment entered in the circuit court of St. Clair County on July 16, 1987, vacating defendant’s denial of plaintiff’s application for an area-bulk variance and ordering defendant to issue the requested variance.

On June 21, 1985, Harold Wallman (hereinafter plaintiff) was ticketed for constructing an addition to an accessory structure which extended the accessory structure to less than 10 feet from the principal structure, in violation of the Fairview Heights municipal ordinance which requires that a minimum of 10 feet setback be maintained between primary structures and any accessory structures. (Fairview Heights, Ill., Development Code ch. 14, par. 14 — 3—7(c)(1) (1988).) He was also cited for failing to obtain a building permit; however, this is not made an issue in this appeal. Plaintiff entered pleas of guilty to the two charges and was granted time to petition the Zoning Board of Appeals, City of Fairview Heights, Illinois (hereinafter the Board), for an area-bulk variance which would relieve him from strict enforcement of the setback requirements.

On November 26, 1985, the Board heard testimony regarding plaintiff’s request for a variance. Following the hearing, the Board voted unanimously to deny plaintiff’s request for a variance. Pursuant to statutory sections providing for review of administrative decisions (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 101 et seq.), plaintiff filed a complaint in the circuit court of St. Clair County seeking to have the Board’s denial of his request for a variance set aside, and, ultimately, the approval of his request for a variance. The circuit court, in an order entered July 16, 1987, annulled and vacated the Board’s denial of plaintiff’s request for a variance and directed the Board to issue the variance as requested. The Board appeals from the decision of the circuit court.

Without expressing opinion as to the underlying merits, we must decline consideration of the Board’s appeal. In accordance with Illinois law, as well as the holdings of the majority of jurisdictions, we hold that a board like the one in the instant case lacks standing to prosecute an appeal from a reversal of its own decision. (Speck v. Zoning Board of Appeals (1982), 89 Ill. 2d 482, 486-87, 433 N.E.2d 685, 687 (and cases cited therein).) In Speck, the supreme court ruled that a zoning board of appeals was not authorized to appeal the reversal of its decision by a circuit court because the board’s duty was to conduct hearings and render decisions; thus, from this adjudicatory or quasi-judicial capacity, the board was not a proper party to bring appeal from a reversal of its decision. To allow a board of appeals to assume the role of an advocate, the Speck court reasoned, would compromise the board’s required duty of impartiality. (Speck, 89 Ill. 2d at 485, 433 N.E.2d at 687.) The Board not being a proper party to bring the instant appeal, we must refrain from entering judgment on the merits of such an appeal and dismiss the appeal.

Accordingly, the appeal from the judgment of the circuit court of St. Clair County is hereby dismissed.

Appeal dismissed.

HARRISON and LEWIS, JJ., concur.


author: JUSTICE HARRISON JUSTICE HOWERTON,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. STEPHEN ROOS, Defendant-Appellee.
    Fifth District
    No. 5—87—0316
    Opinion filed April 17, 1989.

      John R. Clemons, State's Attorney, of Murphysboro (Kenneth R. Boyle, Stephen E. Norris, and Kathy J. Geer, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel M. Kirwan and Dan W. Evers, both of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Defendant, Stephen Roos, was charged with driving under the influence of alcohol in violation of section 11 — 501 of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 11 — 501). He filed a motion under section 114 — 12 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 114 — 12) to quash his arrest and suppress evidence on the grounds that his arrest had been unlawful. Following a hearing in the circuit court of Jackson County, that motion was granted and the case was dismissed. The State now appeals pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)). We reverse and remand for further proceedings.

A circuit court’s ruling on a motion to suppress should not be disturbed unless it is manifestly erroneous. (People v. Beck (1988), 167 Ill. App. 3d 412, 415, 521 N.E.2d 269, 272.) In view of the testimony presented at the suppression hearing here, however, we believe that manifest error was committed in this case. What took place at the suppression hearing has been set forth in an agreed statement of facts which the parties have prepared and submitted to us in lieu of a report of proceedings under authority of Supreme Court Rules 323(d) and 612(c) (107 Ill. 2d Rules 323(d), 612(c)).

The agreed statement of facts indicates that the only witness to testify at the suppression hearing was Steve Michaels, an officer with the Carbondale police department. According to the statement, Michaels told the court:

“[T]hat on January 18, 1987 at approximately 4:00 a.m. while on routine patrol, he observed an oncoming vehicle southbound on Oakland Street in Carbondale, Illinois, operating with high beam headlights. Officer Michaels flashed his lights at the vehicle, but the oncoming vehicle failed to dim its headlights. The vehicle turned west onto Walnut Street. Officer Michaels turned around on Oakland Street and pursued. At the intersection of Walnut and Poplar Streets, the officer observed the vehicle stop; the vehicle’s brake lights were not functioning. Officer Michaels then initiated a traffic stop based solely on the headlight and brake light violations.
The officer approached the driver, identified in court as the defendant, Stephen Roos. Officer Michaels spoke with the defendant and observed a strong odor of alcoholic beverage about the defendant’s person. The officer asked for identification and received a copy of an Illinois Official Sworn Report/ Notice of Statutory Suspension.
Officer Michaels, after observing the odor of alcohol on the defendant’s person, asked the defendant to submit to a field sobriety test. The defendant consented. The officer requested the defendant to say the alphabet. The defendant submitted to that test and performed ‘fine’ according to the officer. Officer Michaels then demonstrated and explained the one-leg stand test to the defendant. The defendant submitted to that test. Officer Michaels observed the defendant put his foot down and sway, but testified that the defendant’s performance was not unsatisfactory.
As the officer was about to discontinue the one-leg stand test and release the defendant without arrest, he looked closely at the Notice of Statutory Summary Suspension and observed that it had been issued by Southern Illinois University Police Department less than an hour earlier on the same morning. Officer Michaels further observed that the defendant’s blood-alcohol content had been measured in connection with the prior arrest at .16. The officer then verified the arrest, blood alcohol reading, and suspension notice with the Southern Illinois University Police Department. Officer Michaels testified that he then arrested the defendant for driving under the influence of alcohol based on the strong odor of alcohol observed on the defendant’s breath combined with the close proximity of the previous driving under the influence of alcohol arrest and blood-alcohol content of .16.”

If circumstances were as Officer Michaels related in his testimony, there can be no question that the arrest of defendant was valid. Officer Michaels’ observation gave him probable cause to believe that two separate traffic violations were present in this ease. The first is a violation of section 12 — 210(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95%, par. 12 — 210(a)), which provides:

“Whenever the driver of any vehicle equipped with an electric driving head lamp or head lamps is within 500 feet of another vehicle approaching from the opposite direction, the driver shall dim or drop such head lamp or head lamps.”

The second is a violation of section 12 — 208(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1985, ch. 95V2, par. 12 — 208(a)), which states:

“Every vehicle other than an antique vehicle displaying an antique plate operated in this State shall be equipped with a stop lamp or lamps on the rear of the vehicle which shall display a red or amber light visible from a distance of not less than 500 feet to the rear in normal sunlight and which shall be actuated upon application of the service (foot) brake, and which may but need not be incorporated with other rear lamps.”

Once defendant was arrested for these traffic violations, the strong odor of alcohol observed on his breath combined with the close proximity in time of his previous arrest for DUI and recent alcohol test reading of .16 gave Officer Michaels probable cause to arrest him for DUI on this occasion. See People v. Wingren (1988), 167 Ill. App. 3d 313, 320, 521 N.E.2d 130, 135.

Given these circumstances, the only conceivable explanation for the circuit court’s decision was that it simply did not believe Officer Michaels’ testimony. We acknowledge that an order of the trial court is presumed to be correct and that this court may not substitute its own judgment regarding the credibility of witnesses for that of the trial judge, who actually heard their testimony and observed their demeanor. (People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 442, 391 N.E.2d 142, 145.) In this case, however, Officer Michaels’ testimony was consistent and uncontradicted. There is absolutely nothing to indicate that he might not have been telling the truth. Although the record contains no evidence that defendant was ever charged for the traffic violations which prompted his initial stop, this certainly does not mean that the stop was pretextual. A police officer may always warn of a traffic violation or reprimand a driver without citing him, and he is not required to charge a minor violation when, after a stop, he discovers a serious one. People v. Patterson (1980), 88 Ill. App. 3d 144, 146, 410 N.E.2d 223, 224.

The assessment of a witness’ credibility is central to the fact-finding process, and we do not mean to circumscribe the circuit court’s fact-finding responsibility in any way. A circuit court’s orders involving findings of fact are not, however, insulated from appellate review merely because the circuit court observed the demeanor of the witnesses. If the circuit court finds a witness to lack credibility, this must somehow be reflected in the record. “A court of review will not presume that there were aspects of such a witness’s testimony and demeanor not apparent from the cold type of the record which justified the trial court in entirely disregarding the testimony.” (People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 443, 391 N.E.2d 142, 145; see also People v. Patterson (1980), 88 Ill. App. 3d 144, 145, 410 N.E.2d 223, 224.) Here, there is absolutely no indication of any kind that the circuit court found any lack of credibility on the part of Officer Michaels. We must therefore conclude that its order granting defendant’s motion to quash arrest and to suppress evidence is contrary to the manifest weight of the evidence. See People v. Beck (1988), 167 Ill. App. 3d 412, 417, 521 N.E.2d 267, 272.

Defendant attempts to resist this conclusion by arguing that the State should be precluded from challenging the circuit court’s order because the record it presented on review is incomplete. This argument must also fail. Defendant correctly points out that “where a party desires to have a judgment reviewed it is incumbent upon him to present in the record the proceedings and judgment sufficient to show the errors complained of” (People v. Davis (1983), 117 Ill. App. 3d 98, 99-100, 452 N.E.2d 887, 888-89), but in this case that was done. It was done, as we have indicated, through an agreed statement of facts. Our review of that agreed statement of facts has shown that the circuit court committed manifest error. If defendant believed that the statement did not accurately reflect the facts material to this controversy, he should not have agreed to it.

For the foregoing reasons, the order of the circuit court of Jackson County granting defendant’s motion to quash arrest and suppress evidence is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

WELCH, P.J., concurs.

JUSTICE HOWERTON,

dissenting:

This decision holds that a factual basis justifying disbelief of a police officer must be given. This decision is wrong.

The majority finds that the circuit court did not believe the police officer, but reverses anyway, saying, “[i]f the circuit court finds a witness to lack credibility, this must somehow be reflected in the record.” 181 Ill. App. 3d at 685.

Be forewarned, therefore, all you who suppressions give, you must state a factual basis justifying your disbelief of a police officer, or you shall be reversed!

Be forewarned, further, that saying, “I do not believe the police officer,” is not enough to support a suppression order, for the majority has said, “ ‘[a] court of review will not presume that there were aspects of *** a witness’s *** demeanor not apparent from *** the record which justified the trial court in *** disregarding the testimony.’ ” 181 Ill. App. 3d at 685, quoting People v. Gunsaullus (1979), 72 Ill. App. 3d 440, 443, 391 N.E.2d 142, 145.

Be forewarned! You must observe, articulate, and be justified!

It is wrong to require a court to give a factual basis justifying disbelief.

It is wrong because it requires too much.

It is wrong because we do not require the same of juries; yet, they also sit as triers of fact.

It is wrong, because it is inconsistent with reality.

People decide who to believe and who not to believe without giving a factual basis. We should require no more of judges, who, by the way, do not escape their humanity by donning a robe.

A factual basis for belief is rarely given, because it usually is impossible to give. It is rarely, if ever, said, “How do I believe thee? Let me count the ways. Thee did not sweat, nor tremble, nor did thy tongue stumble.”

No.

Belief is a product of experience and intuition as well as observation, and the basis for intuition almost always refuses articulation.

Here is the folly of this decision.

Suppose the circuit judge had said, “I do not believe that the police officer’s testimony is reasonable when he said ‘the oncoming car did not dim his lights.’ ” Would that satisfy the majority? No. It would not, because no factual basis justifying disbelief is given. Suppose further, the judge attempted to justify disbelief by saying, “The police always say the oncoming car did not dim its lights.” Would that satisfy the majority? No. It would not satisfy the majority, because the police officer’s statement is uncontradicted and unimpeached, and the majority believes that they should not presume that “ ‘[tjhere were aspects of *** a witness’s *** demeanor not apparent from the cold type of the record which justified the trial court in disregarding the *** testimony.’ ” (181 Ill. App. 3d at 685, quoting Gunsallus, 72 Ill. App. 3d at 443, 391 N.E.2d at 145.) That can only mean this case commands, “Give a factual basis.”

Since the word presume is being thrown around, I think I will say that we ought to presume that circuit courts are faithful to their oath. I believe we should presume that they are in good faith when they do not believe a witness.

Our whole judicial system rests on faith and belief in judges, and on acquiescence in their orders. We command no troops. We bear no arms. We command by our integrity and the force of our ideas.

We have announced our disbelief in the faithfulness of our circuit courts by presuming that the circuit court was wrong in disregarding a police officer’s testimony. How then will we preach belief, preach trust, preach faith, preach acquiescence to the public, when we ourselves act in contradiction to our message? We will not, at least successfully, and especially we will not when it is apparent that the real basis of the decision is a notion that a police office’s testimony is somehow different.

The majority says that police officers must be believed, unless there are observations about the witness’ demeanor which are articulated, justifying disbelief. Would such a rule be fashioned for firemen? For teachers? For mechanics? For used care salesmen, or television preachers? I think not.

Listen! Just as I do not believe judges are unfaithful, likewise, I do not believe police officers lie. But my task here is not to choose between one being faithful on the one hand, and the other not telling the truth on the other. Ironically, both might be faithful, truthful. But, my task is not to resolve that conflict. My task is to uphold the framework of the house of justice as best I can. In doing my duty, I place no wager on either of them. Instead, I place my trust in the system of justice that has kept my Fathers, me, and, I hope, my posterity free.

That trust calls us to affirm. Failing that, it calls me to dissent.

I may be long-winded, but I hope I am not deluded about the influence of this decision.

This decision will not cause the collapse of American jurisprudence. It will not strike a deathblow to our constitution. It will not topple the free world. In fact, I hope it hides its face, turns away from the mainstream of the law and is never heard of again. And, it most likely will.

I am personally glad we have little influence outside our district: A lot of influence truly would be frightening when decisions like this one are plunged into an unsuspecting world, for in a grave sense, this decision, in a hidden, yet corrosive way, like a termite, nibbles at the foundation of some basic American values.

In this grave sense, this decision has the effect of commanding courts to believe police officers.

In America, courts are not commanded to believe anyone, not even the police.


author: JUSTICE GOLDENHERSH

text:
    NANCY LEWIS, Plaintiff-Appellee, v. BOARD OF EDUCATION OF NORTH CLAY COMMUNITY UNIT SCHOOL DISTRICT NO. 25, CLAY COUNTY, Defendant-Appellant.
    Fifth District
    No. 5—87—0750
    Opinion filed April 19, 1989.
    S. Jeff Funk, of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for appellant.

      Ralph H. Loewenstein, of Drach & Deffenbaugh, P.C., of Springfield, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Defendant, Board of Education of North Clay Community Unit School District No. 25, appeals from a declaratory judgment entered by the circuit court of Clay County entitling plaintiff, Nancy Lewis, to resign her position as the girls’ volleyball coach but to continue teaching as a full-time teacher. The court did not award money damages and no cross-appeal was filed on that claim. Defendant raises the following issues on appeal: (1) whether defendant abused its discretion when it assigned extracurricular activities to plaintiff for the 1986-87 school year, and (2) whether the trial court properly admitted parol evidence to explain the language in the contract regarding assignments. This court affirms.

On August 19, 1986, plaintiff filed a declaratory judgment seeking the circuit court to “enter an order declaring the rights of the parties and declaring that the plaintiff be allowed to resign her position as the High School Volleyball Coach and to retain her position as a full time teacher.”

On May 11, 1987, the court held a hearing on the motion. Plaintiff presented the following evidence. Plaintiff stated that she was employed by defendant in the fall of 1977 to teach physical education and health for six class periods. She taught approximately 150 students.

During the 1977-78 school term, she not only taught six classes but was also assigned to be the volleyball coach, cheerleading coach, pep club sponsor and GAA (Girls’ Athletic Association) sponsor. As cheerleading sponsor, she was responsible for selecting the girls, ordering the uniforms, setting up for practice, attending each ball game and riding on the fan bus. Pep club sponsor was intertwined with the responsibilities as cheerleading sponsor. As a cheerleading sponsor, plaintiff had to attend 20 to 25 boys’ basketball games and attend cheerleading practice one to two hours per evening.

As volleyball coach, plaintiff was required to start prior to the season to schedule games and officials. She would receive the Illinois High School Association (IHSA) rules and attend IHSA-sponsored rules interpretation meetings. Before the school term started she would hold practice sessions for two- to three-hour sessions five days a week. Plaintiff was in charge of these sessions and did not have an assistant coach for help. To coach volleyball, she expended 240 to 250 hours and was given $800 in compensation.

When school started, the practice sessions would be after school on nongame days for an hour and a half. The volleyball season lasted 11 weeks, which included 16 to 18 games and two to three tournaments for an approximate total of 25 games. Each game day lasted 4^2 to 5 hours. About half of the games were away and required traveling 7 to 50 miles to the other school. For at least five nights a week, plaintiff had coaching responsibilities.

On a typical school day during volleyball season, she would be at school by 8 a.m. and would teach her classes. When school was dismissed at 3:20, she would then set up volleyball nets, get the balls and prepare for practice, which lasted until 5 p.m. After practice ended, she would allow the girls 15 to 30 minutes to gather their things and wait for their rides home. Plaintiff did not leave until all the girls had left. Eventually plaintiff would get home around 6 p.m. At home, she had books to read and papers to grade for her classes.

On the day of a game, when school was dismissed, she was required to stay until 3:40 p.m. When she left, she had to pick up her son, take a shower, eat dinner, spend some time with her family and then leave. She was back at the school between 5 and 5:30 p.m. After an organized practice session, the game would start at 6:30 and last two to three hours. After the games, she was responsible for the equipment, for the statistics, and waiting for the girls to leave. She arrived home at 9:30 or 10 p.m., but then had to wait to talk to the newspaper and report the game statistics.

When plaintiff accepted the cheerleading and volleyball coaching position, she did not have any expertise in either activity. She learned volleyball by reading the IHSA rules book and attending the preseason rules meeting.

On cross-examination, she stated that she had two courses in volleyball while at college and another course in playing softball and volleyball. She did have an offer of an assistant but she refused because the person would not want to do it.

In 1978-79, plaintiff was assigned the same extracurricular activities. By the end of the year, she resigned as cheerleading and pep club sponsor because it worked an extreme hardship on her and the girls deserved better. Plaintiff was allowed to resign and was not required to find a replacement prior to resigning. The school librarian and history teacher was assigned those activities.

However, during the 1979-80 school term, plaintiff was not only assigned as volleyball coach, but also softball coach. Plaintiff did not recall volunteering for the assignment.

Plaintiff had no special expertise in the area of softball. As softball coach she was again responsible for scheduling games and umpires. She read the current year’s rules book and attended the IHSA-sponsored rules meeting. She also prepared the play field for practice or games. The softball season was approximately 10 to 12 weeks with 11 to 12 games plus the regional tournaments. As coach, she ordered uniforms and equipment. She also hauled the equipment to and from the field, supervised and organized practice sessions, coached during the games and attended the Midland Trail Conference meetings. Before the season started, she held softball practice sessions five days a week after school. During the season, for five days a week she was either at a game or at practice. About half of the games are away, ranging from 7 to 50 miles in distance. She expended a total of 100 hours per season for $550 in compensation.

Out of the 36 weeks of the school term, plaintiff devoted 20 to 22 weeks to coaching responsibilities. Plaintiff stated that coaching took a great toll on her marriage and her responsibilities to her son. The only qualification plaintiff understood as necessary for the positions as coach was the willingness to put in the time required to coach the sport. During the 1980-81 school term, she was assigned to coach volleyball and softball. After the 1980-81 school term, plaintiff resigned her position as softball coach. She was not required to find a replacement. Defendant assigned Colleen Webb, the special education teacher, to the position.

During the 1981-82 school term, plaintiff was volleyball coach and freshman class sponsor. As freshman class sponsor, she was involved with fundraisers and all responsibilities associated with that activity.

During the 1982-83 school term, she was volleyball coach and sophomore class sponsor. As sophomore class sponsor, she was involved with fundraisers, monthly meetings and class parties.

During the 1983-84 school term, she was assigned as volleyball coach and junior class sponsor. As junior class sponsor, she was again involved with fundraisers to pay for the prom and the senior trip. As sponsor, she had to attend all home ball games in order to supervise the students while they sold cake and candy and to account for the money. She was also involved with planning and organizing the senior prom as well as decorating, cleaning up and chaperoning.

During the 1984-85 school term, she was assigned as volleyball coach and senior class sponsor. As a senior class sponsor, she was involved with the fundraising for the senior class trip, graduation preparation, selling popcorn at all home ball games, a cake raffle, coat check and planning the homecoming dance. She also planned and accompanied the seniors on the class trip, which was six days in Florida.

For the 1985-86 school term, she was assigned to coach both volleyball and softball. She received notice of the assignments in the first part of August. She called the principal, Robert Strotzum, to see if a mistake had been made. He said that he thought the volleyball program was for one year and that she would be softball coach.

Around the first of March of 1986, she submitted her letter of resignation as coach to defendant and to the principal. She felt at that time not only that the program needed a change but also plaintiff and her family needed a change. The principal responded that coaching a girls’ sport should be handled by the girls’ physical education teacher and told her that if the basketball coach resigned she would also acquire that assignment. She then wrote to defendant. Richard Sealman responded that he would have the principal find out if any fellow teachers were interested. However, the principal told Sealman that none of the teachers wanted the position. Defendant wrote that since it had the power to assign, it would assign her to the position again. Thus, during the 1986-87 term, she was assigned as volleyball and softball coach as well as sophomore class sponsor. Again, she submitted a resignation letter regarding her position as volleyball coach for the 1987-88 school term. She did not receive any response from defendant.

Since 1977, plaintiff was volleyball coach for 10 terms, softball coach for four terms, class sponsor for four terms, and GAA, cheer-leading and pep club sponsor for two years each. Besides these assignments, she had the same extra duties that all other teachers shared, which included supervising a specified area before school started each day, selling lunch tickets on Monday mornings, punching lunch tickets as the students went through the line, supervising detention hall and having a homeroom during activity period. Although by the end of the day during season she was exhausted, she still had to prepare classes for the next day.

Plaintiff stated that there were other activities that did not require the hours or require time after school, but could be done during school hours. These activities included, but were not limited to, Spanish Club, Industrial Arts, Business Club, Honor Society and Drama Club. Coaching monopolized so much of her time during the school term that she was unable to pursue education beyond her bachelor’s degree. In effect, her salary could not be increased without a master’s degree.

On cross-examination, she stated that the principal told her that if she could find someone as a replacement, he would consider her resignation. Plaintiff did ask around but no one was interested. She stated, however, that she does not have the authority to require another teacher to be a coach of a sport or to do an extracurricular activity. She stated that she was aware that the collective bargaining agreement for 1986-88 contained a clause which stated that defendant had the discretion to fill assignments for extracurricular activities.

Richard Sealman, the superintendent of North Clay Community Unit School District No. 25 since 1972, stated that he could assign any teacher to any extracurricular duties and had the discretion to allow certain persons not to resign their positions. When those teachers resigned, he did not require them to find replacements as he did plaintiff. During the 1985-86 school year, 28 full-time teachers were not assigned to any extra duties, and during the 1986-87 term, 29 full-time teachers were without assignments. Two of the teachers not assigned to any extra duties were Sandra and Charles Strotzum, the brother and sister-in-law of the principal. Sealman stated that nothing would disqualify the Strotzums from being assigned extracurricular duties.

In the past, Sealman assigned grade school and junior high school teachers to extra duties at the high school. He admitted that there are no written job descriptions or qualifications for any coaching positions and that teachers have been assigned coaching positions without having any prior experience or training. The only qualification for a coaching position is a teaching certificate. The teacher assigned does not have to be employed full time as a teacher in the district, and he has assigned such teachers to positions. He stated that there were qualified physical education teachers at the grade school who were not assigned extra duties. Sealman admitted that after plaintiff filed this lawsuit, her position was reduced to half time while a less senior teacher remained full time. It was not until after plaintiff’s attorney wrote a letter demanding reemployment to full time was plaintiff reinstated to full time.

Cheri Burkett, a teacher for Johnsonville School in the North Wayne School District, stated that prior to the present position she was employed from fall 1980 to summer 1986 as a part-time teacher by the Flora School District. She does have a teaching certificate and coached volleyball for 5V2 years for the Flora School District. Her responsibilities as volleyball coach were similar to those of plaintiff.

In July of 1986, she applied for plaintiff's volleyball coaching position. About two weeks before practice began, she contacted the principal, Robert Strotzum, by telephone and told him that she was a certified teacher with experience coaching volleyball. The principal responded politely and stated he would take the information into consideration and would contact her later. When the principal did not call her back, she called him back lxlz to 2 weeks later. He told her that plaintiff would be keeping her duties for the next year.

Burkett stated that there were neither problems with her being a volleyball coach and not a full-time teacher in defendant’s school district nor problems with her being available for the times required for coaching. She told Strotzum that the principal of her school district did not have problems with her being a coach in another school district.

Monty Aldrich was a teacher and an assistant basketball coach at Olney Central College. From December 1985 through March 1986, he was an assistant coach for North Clay High School. He was not a full-time teacher at the school, but rather a substitute teacher for the district. Prior to the job he had not played college basketball or served as a basketball coach.

Darren Sheehan, a certified teacher in Flora, was an assistant basketball coach from 1986-87 for North Clay High School. During that time, he was a substitute teacher for North Clay and Flora School District. His only experience coaching was as a student teacher when he volunteered to be an assistant coach for the eighth grade at Flora Junior High. He had no other experience and his teaching certificate was in social sciences.

Nick Yeremis, a certified teacher for North Clay School District, stated that he teaches junior high school physical education and is the physical education supervisor for grades two through six. He also stated that when he had served as the girls’ high school basketball coach in the 1983-84 season, he was employed in the junior high school. He stated that he had no problems or conflicts with his position as coach and teacher. He also named two other teachers who were coaches at the high school while being employed at the junior high or grade school level.

Carolyn Dawkins, a certified teacher for North Clay, stated that she teaches American history, political science, and American problems. She was assigned to coach softball from 1981 to 1985. When she accepted the coaching position, she did not have any experience in playing or coaching softball. She learned about softball through the rules and regulations book and attending a preseason interpretation of the rules sponsored by the IHSA. Prior to volunteering for the coaching position, no one asked her about her qualifications. She resigned her position as coach in April of 1985 because she was not able to devote time to her classes. She was not required to find a replacement, and defendant permitted her to resign.

Kent Lewis, a certified teacher at North Clay, stated that he teaches chemistry, physical science, and drivers’ education. He also coaches girls’ basketball with the help of an assistant. From 1968 to 1971, he coached boys’ baseball and basketball. From 1974 to 1982, he coached boys’ basketball and cross-country. He resigned twice from basketball in 1971 and in 1982 because of personal reasons. In 1982 he was allowed to resign after the boys’ basketball season began. He was not required to find a replacement and defendant permitted him to resign.

Norma Henning, a certified teacher with North Clay, stated that she is the librarian and teaches world history and twentieth century American history. Her extracurricular assignments have included three class plays and class sponsor for four years. From 1979 through 1984, she was a cheerleading sponsor. Her only experience in cheer-leading was in the seventh grade. She learned cheerleading by reading books and from the girls. When she resigned, she was not required to find a replacement. Defendant accepted her resignation. Defendant then assigned a nonteacher to the position as cheerleading sponsor.

Defendant then presented its witnesses. The first was Richard Sealman, superintendent of the school district. He stated that the contract language regarding the assignment of extracurricular activities means that defendant has the right to assign reasonable extracurricular duties against the teacher’s wishes. However, when the contract was negotiated, Sealman was not the spokesperson and as such he would not be aware of any other understandings regarding that language.

Robert Strotzum, a principal with the school district for seven years, stated that he makes the teaching assignments as well as the teaching schedules for the academic year and the extracurricular assignments. He does not give extracurricular assignments to grade school or junior high school teachers. He stated that his assignments for extracurricular duties are based on expertise in the particular area as well as educational background, prior training, and prior experience. He also takes into account teaching assignments. If there is no one with the expertise, he will look within the community. However, very few people volunteer for these assignments.

When plaintiff told him that she wanted to resign, he began a search. He initially put announcements in the teachers’ mailboxes regarding the possible vacancy. When he received no responses, he approached the teachers and asked if they were interested but no one was interested. When he had contact with Cheri Burkett late in the summer about the volleyball coaching position, practice had already started. He mainly discussed with Burkett the problems she might have in meeting the responsibilities of coaching since she lived in a neighboring town and worked in another town farther away. He wondered if she would be able to make practice sessions and games. When she called back, he told her that it would not be in the best interests of the school to hire her. In previous years, he offered plaintiff an assistant, but she said she was not interested.

Strotzum read the qualifications for coaches from the IHSA book for 1986-87, which provided, in part:

“Athletic coaches must be regularly certified to teach in the schools of Illinois and be:
(a) regularly employed teachers doing at least two periods of teaching or classroom supervision daily in the member school; or
(b) teachers who are employed full-time in any of the elementary or junior high schools in the same attendance area of the member school; or
(c) assistant teachers, resource aides, lay supervisors, or other paraprofessionals who are employed at least half-time per day in the member school; or
(d) teachers who are employed full time in any elementary district, any of whose territory is a part of the high school district.
(e) If a member school is unable to fill a coaching 'position under the terms of items a, b, c or d above with personnel acceptable to its Board of Education or governing board, it may, with the approval of the IHSA Board of Directors, employ a regularly certified teacher who is not otherwise employed in the member school.” (Emphasis added.)

Strotzum admitted that defendant could assign grade school or junior high school teachers to perform extra duties at a high school and could assign duties to teachers who did not want them. He also stated that the junior high and grade school teachers are on the same salary schedule as the high school teachers. Nonetheless, he stated that he believes a teacher must have some expertise in the sport to which he or she is assigned. This qualification, however, was not necessary when he assigned Carolyn Dawkins to coach softball because she volunteered. He admitted that there would be no reason why a person who has a teaching certificate could not be a coach. He stated further that there are no job descriptions or specific qualifications beyond a teaching certificate in order for a person to coach. There are no rules regarding exactly when practice sessions must begin or end.

The crux of the issue on appeal is whether or not the defendant abused its discretion in assigning plaintiff to coach volleyball for the 1986-87 school term and in refusing to let her resign. Defendant contends that it has the discretion to make extracurricular assignments. Plaintiff argues that defendant may not assign a teacher to extra duties which are unreasonable, overly burdensome or discriminatory. Both parties agree that the controlling case is District 300 Education Association v. Board of Education (1975), 31 Ill. App. 3d 550, 334 N.E.2d 165.

In District 300, the plaintiffs alleged that assignments to nonacademic duties such as supervision at football and basketball games, pep rallies and music programs not only bore no reasonable relationship to the contractual duties but were also not reasonable. Since no other case had addressed the question, this court followed Parrish v. Moss (1951), 200 Misc. 375, 106 N.Y.S.2d 577. In Parrish, the New York Supreme Court stated:

“The hours established in any case must be reasonable. The broad grant of authority to fix ‘duties’ of teachers is not restricted to classroom instruction. Any teaching duty within the scope of the license held by a teacher may properly be imposed. The day in which the concept was held that teaching duty was limited to classroom instruction has long since passed. Children are being trained for citizenship and the inspiration and leadership in such training is the teacher. Of course, it is recognized that any bylaw of a board outlining teachers’ duties must stand the test of reasonableness.” (106 N.Y.S.2d at 584.)

In view of Parrish, this court held that the assignments complained of were not onerous in nature nor unreasonably time-consuming. This court found that the assignments were not demeaning to the professional stature of the teachers and were not made in a discriminatory way. Thus, this court held that the assignments were reasonably related to the teaching duties and were within the discretion of the board and the administration to assign.

Defendant cites numerous cases from other jurisdictions for the proposition that the assignment of extracurricular duties for teachers is within the discretion of the board. Defendant also argues that these cases hold that a board may not impose duties on a teacher which are unrelated to the teacher’s teaching duties.

After reading the cases, this court finds that the central issue in each of the cases cited is whether the board assignments were reasonable. In answering this question, we must look at the facts of the sitúation. As stated in Board of Education v. Asbury Park Education Association (1976), 145 N. J. Super. 495, 368 A.2d 396,

“ ‘[T]he extra assignment must be reasonable: it (1) must not require excessive hours beyond the normal teaching period; (2) must have some relation to the teachers’ interests, abilities and certification; (3) must be made with a purpose beneficial to pupils; (4) must not be discriminatory; and (5) must be professional in nature.’ ” (Emphasis in original.) (145 N.J. Super, at 500-01, 368 A.2d at 398-99, quoting E. Bolmeier, Teachers’ Legal Rights, Restraints & Liabilities §9.7, at 125 (1971).)

Although the abovementioned factors are numerous, this court is not limited to those factors alone because each case must be reviewed individually. In this case, we find that defendant acted arbitrarily and unreasonably.

Plaintiff had been burdened not only with the same everyday assignments that all the teachers share but also extra duties which require more of her time outside of the classroom. While it was not unreasonable to assign plaintiff to coach a sport, it was unreasonable to burden her with more than one coaching position. The school district in this case is very small. The number of qualified candidates to take a coaching position is very limited. No doubt when the IHSA rules were written regarding who is qualified to be assigned to such positions, it did not want to restrict the school to a select group. The only qualification necessary is an Illinois teaching certificate. To limit a school district of defendant’s size to anything more would create an undue hardship on the school district. A small school district, as in this case, would find it very hard to fill a physical education teacher’s position or to have such a teacher for any extended period and as such the sports program would have a very high turnover.

Moreover, defendant did not establish that assigning the volleyball and softball positions to plaintiff, and potentially also basketball assignments, was reasonable. Quite to the contrary, defendant revealed that it did not have any established pattern of how it assigned the extra duties, to whom it assigned a duty or who was allowed to resign. In some of the larger school districts where there are numerous physical education teachers, it would not be unreasonable for the board to assign coaching positions to those teachers only. However, as defendant’s past history regarding all of its assignments reveals, such a restriction to coaching positions in this case would be a hardship. In a situation such as this, defendant should realize that it is better to have a teacher willing to accept the position, to learn all there is about the sport and to be interested in the students, rather than a teacher who has either no interest in the position or no longer has the enthusiasm to benefit the students. The utmost concern must be the benefit of the students and not defendant’s ability to assign. Thus, this court finds that the trial court properly entered an order for declaratory relief for plaintiff.

Defendant’s last issue on appeal is whether the trial court properly allowed extrinsic evidence to explain the meaning of the contract clause at issue. Defendant argues the contract between it and the teachers’ union regarding the assignment of extracurricular activities was not ambiguous. Defendant specifically argues that since the assignment of extra duties is for the board, the contract was not ambiguous and represented the full and complete understanding between the parties. Defendant’s argument concerns the testimony of Michael Hindmann, Uni-Serv Director of the Illinois Education Association.

Hindmann stated that he works with the local teachers’ association in a geographic area assisting them to negotiate contracts, enforce the contracts and other supportive activities. He is responsible for the North Clay School District, was involved in the first written master contract negotiated for 1984 through 1986 and the second contract for 1986-88, and was the spokesperson for the bargaining team.

Hindmann testified that both contracts as negotiated stated that extracurricular assignments would be filled at defendant’s discretion. He then explained:

“The [teachers’] association attempted to negotiate into the contract language that would make it very clear that extracurricular activities were voluntary and that the teachers could be allowed to volunteer for those positions and not be required to accept them and likewise, if they were going to be removed from them they ought to be removed for good reason and not just the whim of the Board.”

Since defendant was not willing to agree to that language in the contract, the parties agreed to leave the contract silent regarding whether teachers had a unilateral right to deny these duties. When Hindmann was asked whether the language in the contract gave defendant the right to make extracurricular assignments, counsel for defendant objected that the question and previous line of questioning were impermissible parol evidence. Plaintiff’s counsel argued that since the contract language was ambiguous, parol evidence was admissible. The court overruled the objection.

Hindmann then stated:

“In my mind this language did not give the Board the unilateral power to assign teachers to do any of these duties on the list.”

He stated that by the contract being silent on the subject of extracurricular activities, it protected defendant from being required to fill all of the positions listed in the contract when there were financial problems because defendant wanted to be free to eliminate any of the positions.

It is well established that when a contract is ambiguous, parol evidence may be introduced to aid in its interpretation. A contract term is ambiguous when it is reasonably capable of being understood in more senses than one because the language or expression is not definite or due to the term having a double or multiple meaning. However, the mere fact that the parties take a divergent view of the meaning of the contract language does not render the agreement ambiguous. (Zurich Midwest, Inc. v. St. Paul Fire & Marine Insurance Co. (1987), 159 Ill. App. 3d 961, 963, 513 N.E.2d 59, 60.) In this case, the contract language in question is, -“These positions will be filled at the Board’s discretion.”

By itself the language seems easily understood, but its application is far from a simple understanding. The ambiguity exists in the word “discretion.” Does that discretion exist only in assigning all of the positions, only in assigning some of the positions, or does it relate to assigning the position to whomever defendant chooses? These varied meanings are reasonable interpretations because it is unlikely that the teachers’ union agreed to permit defendant unlimited discretion in assigning extra duties. On the other hand, it is unlikely defendant’s discretion relates only to the assignment power but not to the number of assignments. The trial court properly determined that the contract language was ambiguous.

Even if the language is susceptible to only one meaning — that defendant has absolute discretion in assigning extra duties — that power is not without limitation. As discussed in the previous issue, defendant cannot assign duties which are unreasonable, onerous, burdensome or make assignments in a discriminatory manner. In this case, defendant acted unreasonably in its assignments to plaintiff and its refusal to accept her resignation. This court finds that the trial court properly admitted extrinsic evidence to explain the contract language in question.

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

Affirmed.

CHAPMAN and RARICK, JJ., concur.


author: JUSTICE CHAPMAN

text:
      In re MICHAEL WEBER, a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Donna Tarrant (Weber), Respondent-Appellant).
    Fifth District
    No. 5—87—0310
    Opinion filed April 19, 1989.

      David V. Grigsby, Public Defender, of Hillsboro, for appellant.
    Gregory Grigsby, State’s Attorney, of Taylorville (Kenneth R. Boyle, Stephen E. Norris, and Matthew E. Franklin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

On June 10, 1986, a petition for adjudication of wardship was filed in the circuit court of Christian County in which the petitioner sought to have Michael Weber, a child approximately two years of age, declared an abused minor pursuant to the Juvenile Court Act. (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 4(2).) The petition alleged that Michael was abused because his mother “allowed (or caused) to be inflicted upon the minor physical injury in that the parent allowed (or caused) the minor to be struck repeatedly and that this beating caused several bruises.” The petition also requested a “shelter care” hearing. That hearing was held the following day and Michael was placed in “shelter care” with the Department of Children and Family Services. At the adjudicatory hearing, held on December 15, 1986, the State moved to amend the pleadings by adding an additional count, which the trial court allowed over the objection of defense counsel. At that time, the State filed an amended petition for adjudication of wardship which included a second count:

“Count II. Pursuant to ch. 38, sec. 702 — 4(2)(b), the minor is abused in that the minor is under 18 years of age and whose environment is injurious to his welfare in that the minor repeatedly received unexplained bruises.”

A number of witnesses testified at the hearing, including Dorothy Coultas, Michael’s grandmother. Mrs. Coultas had obtained weekend visitation rights with Michael when Michael’s parents were divorced. Mrs. Coultas and her husband also have custody of Joshua Lynch, Michael’s half-brother.

Mrs. Coultas testified that in early May 1986 she discovered bruises on Michael. He had bruises on the side and top of his head, black bruises on his arms and buttocks, and red marks on the back of his legs. Mrs. Coultas called Donna Tarrant (Weber), Michael's mother, and asked her about the bruises, but Donna was unresponsive.

A week later Mrs. Coultas again found bruises on Michael and photographed them. Still more bruises were found the following week, including 30 to 40 small bruises under Michael’s diaper. After again photographing the bruises, Mrs. Coultas contacted Randy Pettus, the Taylorville juvenile officer, and the Department of Children and Family Services, and then took Michael to a doctor for an examination.

Dr. Quat Ngo, a physician specializing in family practice, testified that on June 7, 1986, he examined Michael Weber and found bruises extending from the lower neck down to the buttocks. Dr. Ngo described these bruises as thin, parallel lines that could have been caused by something like a small stick. The doctor stated that there were approximately 20 such lines across the child’s back and more on the back of the child’s legs. Dr. Ngo further testified that it was unlikely that the bruises were caused by the child falling, someone spanking the child, or by another child four to five years of age, such as Michael’s half-brother Joshua, using a stick, since a four- to five-year-old probably lacks the strength to cause those kinds of bruises.

Michael’s mother, Donna Jean Tarrant (Weber), testified that Michael had a bruise over his eye which he received when he fell off a toy motorcycle, and that she had also noticed three bruises on the back of his leg, but that she did not know the origin of these bruises. She stated that other than these bruises, Michael had no additional bruises either before or after he visited with Mr. and Mrs. Coultas. Mrs. Tarrant denied that she or her husband, Gary Tarrant, had ever beaten Michael, though Gary had spanked Michael on the rump once. Mrs. Tarrant further stated that even though she bathed Michael daily, she did not see the bruises described by Dr. Ngo or the bruises shown in the photographs taken by Mrs. Coultas and the bruises must have been caused while Michael was at Mrs. Coultas’ house.

At the close of all the evidence and after hearing the arguments of counsel, the court found that the child was abused under count II of the amended petition alleging injurious environment. The court was unable to determine, however, who was responsible for abusing the child. The court stated that while there was insufficient evidence to find that the mother, Donna Tarrant, caused the bruises, if she “were properly supervising the situation these bruises could not exist without her knowing that.” The ultimate responsibility, stated the court, “goes with the custodian of the child and that is the mother.”

On February 24, 1987, a dispositional hearing was held to determine custody of the minor child, Michael Weber. After hearing all the evidence and arguments of the counsel, the court denied custody to Donna Tarrant and placed Michael with the Illinois Department of Children and Family Services. In announcing its decision, the court stated:

“The statute requires where a minor is found by the court to be neglected or abused under section 2 — 4, which I did, ‘custody shall not be restored to any parents found to be’ — I stopped short of that. And yet I think from the evidence we know that somewhere some neglect happened. It places a burden on the party requesting custody to prove fitness. No one stepped forward and indicated how Michael Weber received the injuries that he received. And of course that bothers the court.
There’s obviously a priority here that surpasses the interests of Michael. So the court certainly under the circumstances is not going to return the child to the parents at this time. I’m not persuaded that the mother is ready to assume — I honestly feel she believes she’s ready. I think in her own mind she feels she is ready and I don’t question that. But there’s a real question in the court’s mind that she is ready.
It’s the stated purpose of the Department of Children and Family Services to eventually work the child back into the home with the mother. I have no problem with that.
And there has been no evidence presented to the court that closes the door on the natural mother. Until that door is closed, I think the Department of Children and Family Services must maintain the custody and guardianship. They must work the child back into the home with the mother if that is to happen.
And the court in the best interests of Michael at this time I think, given the evidence, must allow the Department to make that attempt.
I’m not optimistic about it totally. But I think the law is that the benefit must be given, every benefit must be given the natural parents to assume their parental responsibilities. I’ll allow the Department to try to work Mrs. Weber into that situation.
With the allegations of physical abuse, I want somebody monitoring the situation.”

The respondent raises two issues on appeal. The first is whether the trial court erred in adjudicating the minor as abused under count II of the amended petition. More specifically, is a petition alleging that the minor repeatedly received unexplained bruises sufficient to sustain a cause of action for injurious environment under section 2— 4(2)(b) of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 702 — 4(2)(b))? The second issue raised by respondent is whether the trial court erred in denying custody of the minor to his mother. More specifically, must the trial court find that the mother inflicted abuse on the child before denying custody of the child to her?

The statute at issue here, section 2 — 4 of the Juvenile Court Act, states:

“Neglected or Abused Minor.
(1) Those who are neglected include any minor under 18 years of age: whose parent or other person responsible for the minor’s welfare does not provide the proper or necessary support, education as required by law, or medical or other remedial care recognized under State law as necessary for a minor’s well-being, or other care necessary for his or her well-being, including adequate food, clothing and shelter, or who is abandoned by his or her parents or other person responsible for the minor’s welfare.
(2) Those who are abused include any minor under 18 years of age:
(a) whose parent or immediate family member, or any person responsible for the minor’s welfare, or any person who is in the same family or household as the minor, *** or a paramour of the minor’s parent:
(i) inflicts, causes to be inflicted, or allows to be inflicted upon such minor physical injury, by other than accidental means, which causes death, disfigurement, impairment of physical or emotional health, or loss or impairment of any bodily function;
(ii) creates a substantial risk of physical injury to such minor by other than accidental means which would be likely to cause death, disfigurement, impairment of emotionál health, or loss or impairment of any bodily function;
(iii) commits or allows to be committed any sex offense against such minor, as such sex offenses are defined in the Criminal Code of 1961, as amended, and extending those definitions of sex offenses to include minors under 18 years of age;
(iv) commits or allows to be committed an act or acts of torture upon such minor; or
(v) inflicts excessive corporal punishment; or
(b) whose environment is injurious to his or her welfare.” Ill. Rev. Stat. 1985, ch. 37, par. 702 — 4.

The respondent contends that count II of the amended petition for adjudication of wardship improperly stated a cause of action for injurious environment by making allegations of physical abuse, relying on In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242. In Harpman, the trial court found that the minors’ environment was injurious to their welfare based on an allegation in the petition that the children’s father had previously been adjudged unfit because of the sexual abuse of his daughters by a prior marriage. The petition alleged that because of this past abuse of his other children, and his failure to engage in any meaningful therapy, the children of his current marriage were exposed to a substantial risk of sexual abuse, thereby creating an environment injurious to their welfare. The parents argued that, in the absence of any allegation of actual abuse, in the sense of damage or hurt, the petitions failed to state a cause of action. The Fourth District Appellate Court stated that this “contention flies in the face of the clear wording of the statute.” (Harpman, 146 Ill. App. 3d at 511, 496 N.E.2d at 1246.) The court explained that an injurious environment was formerly part of the allegation of neglect. By amendment in 1982 that section was expanded to include both neglected and abused minors. “Neglected minors” is defined in subsection 1 and “abused minors” is defined in subsection 2. The court went on to state:

“Subparagraph (a) of subsection (2) sets forth five separate forms of abuse in the sense of damage or hurt to a minor. Subparagraph (b), cast in the alternative to subparagraph (a), sets forth injurious environment as a species of abuse in contradistinction to the acts of physical abuse found in subpara-graph (a).
It follows as a matter of good pleading that if the sole ground for the petition is an injurious environment, it cannot, and should not, include any allegations of physical abuse.” Harpman, 146 Ill. App. 3d at 511, 496 N.E.2d at 1246.

While the language used by the court in Harpman fully supports the respondent’s position, it is clear that such language was not necessary to the decision of the case, and it is therefore mere dicta. The holding in Harpman, narrowly construed, is that a petition alleging injurious environment need not include allegations of physical abuse. It is sufficient to allege only that the father had been adjudged unfit because of sexual abuse of his daughters by a prior marriage. It was unnecessary for the court to state that allegations of physical abuse should never be included in a petition alleging injurious environment.

It should be noted, however, that the Second District Appellate Court, in a case not cited by the parties, at least partially relied on Harpman to uphold a trial court’s finding that a child’s environment was not injurious to her welfare. (In re J.H. (1987), 153 Ill. App. 3d 616, 505 N.E.2d 1360.) While the issue in In re J.H. was the weight of the evidence, and not the state of the pleadings, the court cited Harpman and noted that “it has been held that sexual abuse is not part of a cause of action for injurious environment.” In re J.H., 153 Ill. App. 3d at 631, 505 N.E.2d at 1370.

While the dicta in Harpman is unequivocal, it is unpersuasive for several reasons. First, prior to 1982, the “injurious environment” language was, as pointed out in Harpman, included under the definition of a neglected minor. (Ill. Rev. Stat. 1979, ch. 37, par. 702— 4(l)(b).) Under this paragraph, proof of physical abuse was routinely used by the courts to establish an injurious environment. (See, e.g., In re D.M.C. (1982), 107 Ill. App. 3d 902, 438 N.E.2d 254 (excessive spanking of minor was sufficient to find that his environment was injurious to his welfare); In re Johnson (1981), 102 Ill. App. 3d 1005, 429 N.E.2d 1364 (physical abuse alone will support a finding of neglect); In re Christenberry (1979), 69 Ill. App. 3d 565, 387 N.E.2d 923 (evidence of skull fractures and other injuries due to beating was sufficient to sustain finding that environment was injurious to child’s health).) When the 1982 amendment expanded this section to include both neglected and abused minors, it borrowed its definitional language from the Abused and Neglected Child Reporting Act (Ill. Rev. Stat. 1979, ch. 23, par. 2053), and was meant to parallel the language contained in that act. 82d Ill. Gen. Assem., House Proceedings, May 18, 1981, at 9 (statement of Representative McClain: “[The amendment] parallels the language *** presently used in the Child Abuse Reporting Act and moves it also into the Juvenile Court Act. That’s done because a lot of courts are interpreting from different Acts differently and its inconsistent with the courts’ findings”); 82d Ill. Gen. Assem., Senate Proceedings, June 16, 1981, at 56 (statement of Senator Gitz: “[The amendment] makes the definitions in the bill conform to the Abused and Neglected Child Reporting Act”).

Indeed, a comparison of the relevant sections in each act reveals that they are, for the most part, identical in all respects but one: the “injurious environment” language is contained in the Juvenile Court Act definition of an abused minor, but that same language is completely absent from the Abused and Neglected Child Reporting Act. It would appear then, that the legislature consciously chose to retain this language. Moreover, they chose to place this language under the abused minor category, rather than let it remain as part of the neglected minor category. Placement in the abused minor category, in which all the language makes reference to various forms of physical abuse, suggests that an “injurious environment” was meant to encompass types of physical abuse other than those listed elsewhere in the abused minor section. Perhaps, as the petitioners suggest in their brief, the first part of the abuse section focuses on abuse knowingly caused or allowed by a custodial adult, while the second section focuses on situations in which the child’s health, safety, and well-being are in danger irrespective of the identity of the person who inflicted the abuse.

Second, an environment injurious to a child’s welfare has been interpreted by our supreme court, in a different but related statutory section, to include a physically abusive environment. In In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84, the supreme court held that evidence that a noncustodial father was aware of bruises and cigarette bums on his daughter, and failed to take any action to remedy the situation or protect the child, was sufficient to find that the father was “unfit” under the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501(D)(g)). That section provides that unfitness for purposes of adoption includes a person who fails “to protect the child from conditions within his environment injurious to the child’s welfare.” Ill. Rev. Stat. 1977, ch. 40, par. 1501(D)(g).

Finally, in a case decided after section 2 — 4 of the Juvenile Court Act was amended, the Fifth District Appellate Court held that physical injuries are sufficient to establish an injurious environment. (In re Simmons (1984), 127 Ill. App. 3d 943, 469 N.E.2d 215.) In Simmons, the minor sustained bruises and a broken leg, but the trial court was unable to determine that the custodial mother or her paramour caused the injuries. This court held that even if the evidence failed to establish who had caused the injuries, it was sufficient to establish that the mother and her paramour had allowed the minor to be seriously injured by nonaccidental means. “Furthermore, it cannot seriously be contended that the environment in which the injuries occurred was not injurious to [the child’s] welfare.” Simmons, 127 Ill. App. 3d at 950, 469 N.E.2d at 219-20.

The respondent seeks to have this court follow the dicta in In re Harpman (1986), 146 Ill. App. 3d 504, 496 N.E.2d 1242, but provides no reasons to do so other than the mere fact that it exists. To do so might compel a judge to allow a child to remain in an environment in which he is obviously being physically abused, but where there is insufficient evidence to determine the person responsible for the abuse. Such a result would not only be contrary to the purpose and policy of the Juvenile Court Act (see Ill. Rev. Stat. 1985, ch. 37, par. 701—2(3)(c) (parents’ right to custody shall not prevail when the court determines that it is contrary to the best interests of the child); In re Stilley (1977), 66 Ill. 2d 515, 520-21, 363 N.E.2d 820, 822 (the essential policy consideration in child neglect and custody cases is the best interests and welfare of the child)), but would also be inconsistent with cases decided under the Act prior to the 1982 amendment, which held that a finding of neglect may be based on unintentional as well as willful disregard of parental duty. In re B.K. (1984), 121 Ill. App. 3d 662, 665, 460 N.E.2d 43, 46; In re Christenberry (1979), 69 Ill. App. 3d 565, 567, 387 N.E.2d 923, 925; In re Brooks (1978), 63 Ill. App. 3d 328, 337, 379 N.E.2d 872, 879.

Therefore we hold that a petition alleging that the minor repeatedly received unexplained bruises is sufficient to sustain a cause of action for injurious environment under section 2 — 4(2)(b) of the Juvenile Court Act.

The respondent next contends that the trial court erred in denying custody of the minor to his mother. Respondent argues that the trial court erroneously relied on the second paragraph of section 5 — 2(l)(d) of the Juvenile Court Act, which states:

“However, in any case in which a minor is found by the court to be neglected or abused under section 2 — 4 of this Act, custody of the minor shall not be restored to any parent, guardian or legal custodian found by the court to have caused the neglect or to have inflicted the abuse on the minor until such time as a hearing is held on the issue of the fitness of such parent, guardian or legal custodian to care for the minor and the court enters an order that such parent, guardian or legal custodian is fit to care for the minor.” Ill. Rev. Stat. 1985, ch. 37, par. 705-2(l)(d).

The respondent asserts that this paragraph is only applicable where the court finds that the parent has inflicted the abuse. Therefore, since the court explicitly stated that it could not determine who was responsible for the abuse of the child, the court should not have denied custody to the mother. In support of her position the respondent cites In re Brown (1980), 87 Ill. App. 3d 1074, 410 N.E.2d 486, in which the appellate court reversed a finding of the trial court that a noncustodial parent was an unfit person under section l(D)(g) of the Adoption Act (Ill. Rev. Stat. 1977, ch. 40, par. 1501(D)(g)), which provides that unfitness includes a failure to protect the child from conditions within his environment injurious to the child’s welfare. The appellate court held that the father’s failure to protect his daughter from the bruises and bums she received did not make him an unfit parent.

As the petitioner points out, however, respondent’s reliance on Brown is misplaced. The respondent cites the appellate decision of Brown, which was reversed by the Illinois Supreme Court in In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84. The supreme court held that the trial court properly terminated the parental rights of the father for his failure to protect his daughter from an environment which was injurious to her welfare. In re Brown (1981), 86 Ill. 2d at 153, 447 N.E.2d at 87.

In any event, Brown is not dispositive of the issue in the instant case, since here no termination of parental rights occurred. What is at issue in the instant case is whether the trial court’s dispositional order was proper under section 5 — 2(l)(d). Resolution of this issue requires an examination of subparagraph (d) in its entirety, not merely the second paragraph quoted by the respondent. The first paragraph of section 5 — 2(l)(d) states:

“A minor under 18 years of age found to be neglected under section 2 — 4 may be (1) continued in the custody of his or her parents, guardian or legal custodian; (2) placed in accordance with section 5 — 7; or (3) ordered partially or completely emancipated in accordance with the provisions of the Emancipation of Mature Minors Act.” Ill. Rev. Stat. 1985, ch. 37, par. 705—2(1)(d).

When the two paragraphs of subparagraph (d) are read together, it is clear that the second paragraph modifies the first. The first paragraph sets out the kinds of dispositions available to the court, one of which is to allow the child to remain in the custody of the parents. The second paragraph removes this option when the court finds that the parent is responsible for abusing the child. This paragraph does not, however, affect the other possible dispositions available to the judge, including placement in accordance with section 5 — 7. This section provides that an abused minor may be placed under the care of the Department of Children and Family Services if the court finds that parents are unfit or unable to

“care for, protect, train or discipline the minor or are unwilling to do so, and that appropriate services aimed at family preservation and family reunification have been unsuccessful in rectifying the conditions which have led to such a finding of unfitness or inability to care for, protect, train or discipline the minor, and that it is in the best interest of the minor to take him from the custody of his parents.” Ill. Rev. Stat. 1985, ch. 37, par. 705-7(1).

At the dispositional hearing, Donna Tarrant testified that she and her husband had been attending mental health sessions aimed at improving their marriage and their parenting skills. The court also heard testimony from a case worker for the Department of Children and Family Services indicating that the person in charge of these counseling sessions stated that she couldn’t recommend that the child be returned home because she had not seen the Tarrants enough at the mental health center to believe that enough progress or change had occurred to improve conditions in the home. Donna Tarrant also testified that she missed several of the counseling sessions and that she eventually stopped attending the sessions because she did not feel she needed any more counseling. Linda McGuire, a homemaker employed by the Department of Children and Family Services, was responsible for supervising the weekly home visits between Michael and his mother which the Department had scheduled upon Michael being placed in their custody. She stated that on four or five occasions she brought Michael to his mother’s home for a scheduled visit but found no one at home.

After hearing the evidence and arguments of counsel, the court indicated that it did not believe that the mother was ready to assume her parental duties. The court found that it was in the best interests of the child to remain in the custody of the Department of Children and Family Services so that the Department could work with the mother to help obtain custody of the child. The court further stated that it wanted the Department of Children and Family Services to monitor the situation because of the “allegations of physical abuse.”

It appears that the evidence adduced at the hearing, as well as the findings of the court, are sufficient to satisfy the statutory requisites under section 5 — 7. While the findings of the court did not mimic the statutory language in all regards, the evidence is sufficient to hold that the statutory requirements were met.

Furthermore, it is not at all clear from the record that the trial court relied, as the respondent claims, on the second paragraph of section 5 — 2 in denying custody of the child to the mother. In announcing its decision, it appears that the court began by paraphrasing the second paragraph of section 5 — 2(l)(d):

“The statute requires where a minor is found by the court to be neglected or abused under section 2 — 4, which I did. Custody shall not be restored to any parents found to be. I stopped short of that.”

This language suggests that the trial court was aware that the second paragraph of section 5 — 2(l)(d) requires a finding that the parent inflicted the abuse. The court recognized that it had not made such a finding. It is inferable that the court, upon recognizing that the paragraph did not apply, did not then apply it. The court went on to state, however: “And yet I think from the evidence we know that somewhere some neglect happened. It places a burden on the party requesting custody to prove fitness.” The court’s reference to a “burden to prove fitness” suggests, on the other hand, that the court may indeed have been applying the second paragraph of section 5— 2(l)(d). This paragraph requires that before custody may be restored to an abusing parent, a hearing must be held to determine the fitness of the parent. However, absent any other indications in the record that the court may have misapplied section 5 — 2, and inasmuch as it is apparent that the trial court’s primary consideration was the child’s welfare, the court’s finding should not be disturbed. (See In re Stilley (1977), 66 Ill. 2d 515, 521, 363 N.E.2d 820, 823 (upholding trial court’s decision to deprive parents of custody where it was not palpably erroneous or against the manifest weight of the evidence, and where there was “no evidence that the court failed to consider the child’s welfare as its primary consideration”).) In all procedures under the Juvenile Court Act, “[t]he parents’ right to the custody of their child shall not prevail when the court determines that it is contrary to the best interests of the child.” (Ill. Rev. Stat. 1985, ch. 37, par. 701 — 2(3)(c).) Therefore, we hold that the trial court did not err in denying custody of the child to the mother.

Judgment of the trial court is affirmed in all respects.

Affirmed.

LEWIS and RARICK, JJ., concur.


author: JUSTICE RARICK

text:
    SHARON BROOKS, Plaintiff-Appellee, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF THE CITY OF EAST ST. LOUIS et al., Defendants-Appellants.
    Fifth District
    No. 5—87—0044
    Opinion filed April 20, 1989.
    Robert L. Merriwether, Jr., of East St. Louis, for appellants.
    No brief filed for appellee.
   JUSTICE RARICK

delivered the opinion of the court:

On November 13, 1981, Bruce Morrison, then chief of the East St. Louis police department, filed written charges with the city’s board of fire and police commissioners (hereinafter the Board) alleging that on two successive days patrol officer Sharon Brooks was guilty of “neglect of duty and being absent without permission from duty.” Specifically, the charges alleged that Officer Brooks was scheduled to work on October 24 and 25, 1981, and failed to report for work or inform the police department that she would not be reporting for work.

A hearing was held on December 15, 1981. Officer Brooks was found guilty and subsequently discharged. Brooks thereupon filed a complaint for administrative review in the circuit court of St. Clair County. The court held that the Board’s finding that Officer Brooks failed to inform the police department that she would not be reporting for work on October 24, 1981, was against the manifest weight of the evidence but that such finding with respect to October 25, 1981, was not against the manifest weight of the evidence. The court also found that the Board did not have cause for discharge and remanded the cause to the Board to determine a different sanction; It is from this decision that the Board appeals.

We cannot address the merits of the Board’s appeal, however, because we find that this court does not properly have jurisdiction. To be appealable, an order must be final and must terminate the litigation between the parties. In the present case, were we to affirm the trial court, a new sanction would have to be imposed which could again be appealed to the trial court. In Kvidera v. Board of Fire & Police Commissioners, the court held that “[a]n order remanding the cause to the [administrative] agency to impose a sanction other than the one imposed is not final and appealable because it does not terminate the litigation between the parties.” (Kvidera v. Board of Fire & Police Commissioners (1988), 168 Ill. App. 3d 380, 381, 522 N.E.2d 757, citing Mitrenga v. Martin (1982), 110 Ill. App. 3d 1006, 443 N.E.2d 268.) The facts of this case are almost identical. Where the circuit court has the power to remand an agency decision, jurisdiction remains with the circuit court until final disposition of these matters and only then does this court have jurisdiction.

The appeal of the Board of Fire and Police Commissioners of East St. Louis is dismissed.

Appeal dismissed.

CHAPMAN and GOLDENHERSH, JJ., concur.