text:
      In re MARRIAGE OF MARIE R. COURTRIGHT, Petitioner-Appellant and Cross-Appellee, and JOHN B. COURTRIGHT, Respondent-Appellee and Cross-Appellant.
    Third District
    No. 3-88-0481
    Opinion filed June 21, 1989.

      Leonard F. Sacks, of Sacks, Albrecht & Copeland, of Kankakee, for appellant.
    Gill M. Garman and Randall Ray, both of Sebat, Swanson, Banks, Garman & Townsley, of Danville, for appellee.
   JUSTICE STOUDER

delivered the opinion of the court:

The trial court entered a judgment for the dissolution of the parties’ marriage, which included a two-year, reviewable maintenance award of $1,100 per month to the petitioner, Marie R. Courtright. Marie appealed, arguing that permanent maintenance should have been awarded. On appeal, this court affirmed the.maintenance award granted by the trial court. In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891.

At the end of the two-year period, the trial court reviewed Marie’s circumstances and found that she had failed to put forth a good-faith effort to become self-sufficient. The court nonetheless extended the maintenance award for two additional years, but reduced the amount she was to receive to $600 per month for the first year and $350 per month for the second year. Maintenance was then to automatically terminate after the second year. Marie appeals the reduction in the amount and duration of the award. The respondent, John B. Courtright, cross-appeals, arguing that the maintenance award should not have been continued for an additional two years.

The record shows that the parties were married for 29 years. At the time of the review hearing, Marie was 55 years old and had an education degree from Northwestern University. She was not, however, licensed to teach and prior to the dissolution of the marriage had not worked outside the home for 28 years. She was generally in good health, although she had some residual disability in her left foot as the result of childhood polio and had some discomfort in her right foot from an arthritic condition. As a result, she was unable to work at jobs that required her to be on her feet for any length of time.

John, a licensed physician, worked in a three-man clinic as a general practitioner. His gross income for the four years prior to the dissolution ranged between $83,000 and $100,000. In 1986, his income was $101,565 and in 1987, $101,300.

As part of the property settlement, Marie received, among other items, the marital home valued at $135,000 and a 200-acre farm valued at $360,000. The net value of all of the property she received was $484,766. John received $234,100 in assets.

After the divorce, Marie worked at several jobs. In the beginning of 1986, she worked at a gift shop in a Colorado resort for several months. She then returned to Illinois in the summer of 1986 and worked at a Holiday Inn as a front-desk clerk. Marie testified that she was fired from that position after two months because her age and her appearance did not fit the company image. Thereafter, she applied at several other places, including St. Joseph’s Catholic School in Kentland, Indiana. She was subsequently recruited by IDS American Express, where she underwent a six-month training program and passed the test to become a financial planner. She was to receive a salary of $24,000 her first year. Thereafter, compensation would be solely on a commission basis. However, Marie testified that she left American Express in October of 1987, because she realized that given the office expenses she would have to pay out of her commission, she could not support herself on the remainder. She then started working at Dean Witter in a support staff position, earning $12,000 per year. Marie testified that she was fired from that position in March of 1988, because she sounded confused on the telephone and missed too many days from work due to court appearances.

The trial court found that Marie had failed to make a good-faith effort to become self-sufficient. In support of its determination, the court focused on two factors. First, it found that Marie had failed to obtain her teaching certificate, which would have enabled her to utilize her degree. Second, it found that she had not sold the marital home. The court noted that although Marie had the right to gamble with the real estate market in order to obtain the highest price possible, it would not permit that risk to be indefinitely passed along to John. The court stated that selling the house would significantly reduce Marie’s expenses and would convert an essentially wasted asset into an income-producing asset. Based upon its findings, the court entered its order modifying the amount and duration of Marie’s maintenance award.

Marie argues on appeal that the above findings of the trial court were against the manifest weight of the evidence and that the court abused its discretion in reducing the amount and duration of the maintenance award. John cross-appeals, arguing that because Marie failed to put forth a good-faith effort to become self-sufficient, maintenance should be terminated.

A trial court’s award of maintenance will not be overturned unless the court’s findings and conclusions were against the manifest weight of the evidence, thus showing an abuse of discretion. (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229.) Section 504(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)) provides that in determining the amount and duration of maintenance awards, the court must consider, among other factors, the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment. The Act creates an affirmative obligation on the part of the maintenance payee to seek the appropriate training and skills to become financially independent. (Mittra, 114 Ill. App. 3d at 634, 450 N.E.2d at 1233.) Failure of the payee to make good-faith efforts to achieve this goal may be a basis for a reduction or termination of maintenance. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) However, the trial court should bear in mind that financial independence does not mean the ability to merely meet one’s minimum requirements, but entails the ability to earn an income which will provide a standard of living similar to that enjoyed during the marriage. See In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596; In re Marriage of lngrassia (1986), 140 Ill. App. 3d 826, 489 N.E.2d 386.

In the instant case, the trial court found that because Marie had failed to obtain her teaching certificate, she had not invested the required effort to become self-sufficient. We do not agree. At the time of the review hearing, Marie was 55 years old. Prior to her divorce, she had not worked outside of the home for 28 years. She suffered some residual disability in both of her legs, rendering her unable to stand on her feet for any length of time. Though she did have a teaching degree, Marie testified that she did not feel emotionally stable enough to deal with school-aged children. Nonetheless, she still attempted to obtain a teaching position at a school in Indiana. Further, she worked as a clerk in a Colorado gift shop and then upon returning to Illinois worked as a desk clerk at a hotel. Although she was terminated from that position, Marie went on to work for IDS American Express and Dean Witter.

We find that Marie has put forth substantial effort to find suitable employment. Her lack of success thus far is understandable for one who has been absent from the work world for so long. There is nothing in the record indicating that Marie did not actively seek employment or that she refused to work at any time within the two years she was receiving maintenance. While she did not obtain her teaching certificate, this merely evidenced a conscious decision on her part not to teach.

The trial court further found that Marie’s failure to sell the marital home and receive some income from the property indicated a lack of good faith. The record shows that a few months after the divorce, Marie listed the house for sale. The house was originally listed at $155,000, although the trial court had valued the house at $135,000. Marie testified that she was willing to settle for the trial court’s valuation. The highest offer, however, was $120,000, which Marie rejected. The trial court also noted that the farm property Marie received from the property settlement could be a source of income for her.

We note that a maintenance payee is not required to sell her assets or impair her capital in order to generate income from which she can support herself. (In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 466 N.E.2d 925.) In the instant case, we are unable to find that Marie’s failure to sell the home constituted a lack of good faith. Marie has had the house on the market since the time of the divorce, and although she has received a number of offers, the highest offer thus far was well below the court-determined value of the home. We cannot say that merely because Marie is attempting to realize the highest realistic price possible for her home she is not acting in good faith. Likewise, Marie is not required to sell the farm, though we note that she has expressed a willingness to do so if necessary to support herself.

We conclude that so far Marie has made a good-faith effort to become self-sufficient and that the trial court’s determination to the contrary was against the manifest weight of the evidence. The trial court abused its discretion when it in essence punished - Marie for her lack of success despite her efforts. It is not realistic or fair to expect a recent divorcee who has worked solely as a homemaker for 28 years to quickly and smoothly transform herself into a financially independent member of society, with a standard of living approaching the standard she enjoyed during the marriage. That does not mean that if another two years pass and she still has not found permanent employment or sold her property John must continue supporting her indefinitely. At this time, however, because we find that Marie has made a good-faith effort to become self-sufficient, we vacate the trial court’s order reducing Marie’s maintenance award and reinstate its prior maintenance award of $1,100 per month for two years, reviewable at that time. (See In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596.) Our decision renders moot John’s cross-appeal.

The judgment of the circuit court of Iroquois County reducing maintenance is vacated. The court’s prior award of maintenance is reinstated. The cause is remanded, with the court ordered to retain jurisdiction over the cause so that it may review the propriety of continued maintenance at the end of two years and periodically thereafter if necessary.

Vacated and remanded.

BARRY and SCOTT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    BRYAN SHAW, Plaintiff-Appellee, v. CITIZENS STATE BANK OF SHIPMAN, Defendant-Appellant.
    Fourth District
    No. 4-89-0032
    Opinion filed June 28, 1989.
    Ronald L. Pallmann and Kevin J. Stine, both of Suelthaus & Kaplan, P.C., of Fairview Heights, for appellant.

      Christopher B. Hunter, of Godfrey, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On April 21, 1988, plaintiff Bryan Shaw filed a three-count complaint in the circuit court of Macoupin County against defendant Citizens State Bank of Shipman (Bank) in that court’s case No. 88 — L— 29, contending the Bank had tortiously interfered with plaintiff’s farming operations. The complaint indicated inter alia that (1) plaintiff had entered into a certain “cash farm lease” with his father, Julius Shaw; (2) defendant had previously loaned money to Julius Shaw and, in return, had received a security interest in all growing crops and stored grain grown on Julius Shaw’s farm; (3) the Bank had made claims to various grain elevators that they had a lien against grain grown on the farm which was actually plaintiff’s pursuant to the terms of the “cash farm lease” with his father; and (4) plaintiff was not a party to any of the agreements between defendant and Julius Shaw.

On May 13, 1988, plaintiff filed an additional suit (No. 88 — CH— 18) in the circuit court of Macoupin County naming the Bank and Missouri Mills, Inc. (Mills), as defendants. The thrust of those charges was that Mills was one of the entities to whom the Bank claimed a lien upon plaintiff’s grain, and the Bank had persuaded Mills to make all checks for plaintiff’s grain payable to plaintiff and the Bank. Injunctive relief was sought. On June 30, 1988, the two cases were consolidated. On December 16, 1988, the court denied a motion by the Bank to “Stay Trial and Enjoin and Restrain plaintiff” from prosecuting the case pending the outcome of an appeal of a bankruptcy case. An issue in that case was highly significant in the instant cases. The Bank has appealed, pursuant to Supreme Court Rule 307 (107 Ill. 2d R. 307), from the interlocutory order denying the stay. We reverse and remand.

The bankruptcy case referred to in the motion for stay was a voluntary proceeding brought by plaintiff’s parents, Julius and Phyllis Shaw. On May 6, 1988, the United States Bankruptcy Court for the Central District of Illinois (Bankruptcy Court) entered an order dismissing the Shaws’ petition. In doing so, the Bankruptcy Court found Julius and Phyllis Shaw were not eligible for relief under chapter 12 of the Bankruptcy Act (11 U.S.C. §101 et seq.), because they were not engaged in a farming operation on the date they filed their chapter 12 petition. That court found the cash rent lease between plaintiff and his parents to be valid. The Bank has subsequently appealed the dismissal of that bankruptcy action.

At a hearing in the instant consolidated case, plaintiff introduced into evidence the Bankruptcy Court’s finding that a valid lease existed, and he contended the principle of res judicata should apply to that finding. The trial court agreed and held that the Bankruptcy Court’s decision that a valid farm lease existed would govern the issue in this case. The Bank then filed a motion to stay trial and enjoin the proceedings while its appeal in the bankruptcy case is pending.

The Bank maintains that the existence and validity of plaintiff’s lease with his father is a major factual issue in the combined cases, because, for plaintiff to prevail, he must show that the lease for a cash rent is valid, thus preventing creditors of his parents from having a lien upon the grain grown upon the land. The Bank argues that because the Bankruptcy Court’s determination in regard to the lease is subject to a pending appeal and could be set aside, the circuit court proceedings should be stayed until a conclusive determination is made in the bankruptcy proceeding.

In support of its motion to stay trial, the Bank cited Wiseman v. Law Research, Inc. (1971), 133 Ill. App. 2d 790, 270 N.E.2d 77, decided by this court. There, those plaintiffs filed a complaint alleging those defendants breached their contractual relationship. Those plaintiffs then asserted that the finding of a New York trial court that the defendant had breached its contractual relationship with them should be res judicata in the Illinois case. The defendant then filed a motion to stay the trial pending the outcome of the New York case on appeal. The trial court denied the motion to stay. On appeal, this court reversed and held that the trial court should have granted the motion, pending a reasonable time for the disposition of the New York appeal.

Here, the trial court relied on the supreme court’s decision in State Life Insurance Co. v. Board of Education (1948), 401 Ill. 252, 81 N.E.2d 877, in support of its determination to deny the motion for a stay. That court indicated:

“The rule has been settled that where a judgment in one case has successfully been made the basis for the judgment in a second case, the second judgment will stand as res judicata, although the first judgment be subsequently reversed.” State Life, 401 Ill. 2d at 257, 81 N.E.2d at 880.

This court recognized in Wiseman, citing State Life, that a judgment of a trial court could be res judicata even where that judgment was being appealed. This court also recognized, however, the unfortunate result which could occur where a judgment being appealed in one case is used as a basis for a second case before the appeal is final. If the first decision is subsequently reversed, the second decision, though then erroneous, would be required to stand, and there would be no avenue of relief. To avoid that situation, the Wiseman court determined that the final decision in the second case should be delayed until the decision on appeal had been rendered. The court added the caveat that the circuit court could determine at a subsequent date whether the appeal was proceeding at a reasonable pace, and if it were not, the stay order could be set aside and the proceedings could continue in their ordinary course.

Plaintiff seeks to distinguish this case from Wiseman on the basis that in Wiseman, both the New York proceeding and that to be stayed in Illinois turned entirely on whether a particular contract had been breached. Plaintiff points out that, here, the validity of the cash rent lease is only one question involved, and even if that issue is resolved in his favor, he must prove other matters as well. We do not agree this is a sufficient distinction to negate application of the Wise-man theory. We recognize that an issue decided in another case may be so collateral to the case where a court is requested to give res judicata effect to that decision that no stay pending appeal of the earlier case is warranted. But here, where the question in the other case is so significant, the unfairness of denying a party an opportunity to refute a determination of another tribunal which may be determined to be wrong requires the application of the Wiseman precedent.

We also recognize that the Wiseman opinion stated: “One should not be able to avoid the use (in a res judicata context) of a judgment against him merely by taking an appeal.” (Wiseman, 133 Ill. App. 2d at 793, 270 N.E.2d at 80.) Plaintiff maintains this language requires the judge, to whom a request for stay is made, to make a determination of the likely merits of the appeal from the decision to which res judicata is sought to be applied and to only grant the stay when the chances of reversal appear to be significant. Plaintiff contends the trial judge made the determination here that the bankruptcy appeal was likely without merit. We do not interpret the language of Wise-man in that way, nor do we consider the record before us to indicate the trial judge here made such a determination. Furthermore, the record here does not indicate the strength of the appeal in the bankruptcy case.

The Wiseman opinion recognizes that the period of the stay should not be unreasonably long, and if the appeal does not proceed with reasonable dispatch, the stay should be lifted. However, when the record shows that the issue on appeal is as significant as here, and no conclusive showing is made that the appeal is frivolous or a sham, Wiseman requires the trial court to grant a stay for a reasonable time. Such a holding is not contrary to State Life.

Accordingly, we reverse the trial court’s decision and remand with directions that the trial court grant the motion for stay subject to later reconsideration based on whether the appeal in the bankruptcy case is proceeding in a reasonable manner.

Reversed and remanded with directions.

McCULLOUGH, EL, and SPITZ, J., concur.


text:
    JERRY SAMPSON, Adm’r of the Estate of Ray Sampson, Deceased, Plaintiff-Appellant, v. CAPE INDUSTRIES LIMITED et al., Defendants (Zurich Insurance Company, Garnishee-Appellee).
    Fourth District
    No. 4-88-0658
    Opinion filed June 28, 1989.

      James Walker, Ltd., of Bloomington, for appellant.
    William Robert Brandt, of Livingston, Barger, Brandt & Schroeder, of Bloomington, and Peter C. John and Matthew J. Gehringer, both of Phelan, Pope & John, Ltd., of Chicago, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

In the narrow context within which this appeal arises, the principal question for us to decide concerns the following set of facts. On May 14, 1984, a default judgment in the amount of $245,590.92 was entered in the circuit court of McLean County in favor of plaintiff Jerry Sampson, administrator of the estate of Ray Sampson, deceased, and against defendant Cape Industries Limited (Cape). The recovery was for the wrongful death of the deceased arising from his asbestosis. On March 22, 1984, plaintiff filed an affidavit for garnishment in that court seeking satisfaction of the judgment against garnishee, Zurich Insurance Company (Zurich). Plaintiff’s claim was based upon the theory that Cape was insured under certain liability policies issued by Zurich to North American Asbestos Corporation (NAAC).

For the purposes of this appeal we must assume that two of those policies did provide such coverage. At the time of service of the garnishment summons, sufficient portions of the limits of those two policies were available for payment of claims, but thereafter Zurich exhausted the sums available under those policies by paying other claims. Then, on July 8, 1988, pursuant to Zurich’s motion, the court entered summary judgment for Zurich and against plaintiff in the garnishment proceeding.

Plaintiff has appealed, contending he had perfected a right prior to others, pending garnishment proceedings, to the sums available under the two policies because of the effect of service of the garnishment summons upon Zurich before those policy limits were exhausted. In issue is the operation of section 12 — 707(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 707(a)), which concerns the duties of a garnishee. It requires a garnishee, upon service of a garnishment summons, to hold subject to court order, “any non-exempt indebtedness or other non-exempt property” in the garnishee’s control “belonging to the judgment debtor” or in which the latter “has any interest” all to the extent of the balance due on the judgment for which the garnishment is brought. It also provides that upon service of garnishment summons upon a garnishee, the balance due on the underlying judgments “becomes a lien on the indebtedness and other property held by the garnishee” and remains a lien pendente lite. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 707(a).) Plaintiff maintains that as a judgment creditor of Cape, an insured of the policies in issue, Cape had an “interest” in the proceeds available under the policy to which he established a temporary entitlement by service of the garnishment summons.

A summary judgment is properly granted only when the pleadings, depositions, affidavits, and other documents properly considered show, without existing questions of fact, that the requesting party is entitled to the judgment as a matter of law. (Purtill v. Hess (1986), 111 Ill. 2d 229, 489 N.E.2d 867.) The formation of the issues upon which summary judgment was granted here was somewhat uncertain. The record shows Zurich filed a motion for summary judgment on October 23, 1986, alleging plaintiff, for valid consideration, had entered into a covenant not to make claim against Zurich for any cause of action arising out of the injury to and death of plaintiff’s decedent. On February 17, 1987, Zurich filed a motion for summary judgment based upon the theory that any coverage of Cape under the policy issued to NAAC had been voided by Cape’s failure and refusal to cooperate with Zurich. Finally, on June 16, 1988, Zurich filed a document entitled “Memorandum in Support of Zurich Insurance Company’s Motion for Summary Judgment.” That pleading set forth that Zurich was not liable to plaintiff in garnishment, because Zurich had paid out sums equal to its policy limits on the policies in question to other persons making covered claims against other insureds.

The record makes reasonably clear that the request for the summary judgment was presented, argued, and decided upon the basis of the allegations in the memorandum and not upon the basis of the previous motions. That basis was that Zurich had effectively cut off any rights of plaintiff against the two policies by good-faith payments in amounts exhausting the policy limits to other persons making claims against entities insured under the policies. Thus, the question of whether Cape was an insured under the two policies was not an issue in the summary judgment proceedings. The court rejected plaintiff’s theory that Zurich could not cut off rights he might have to the funds available. Zurich maintains this decision was correct, and that in any event, plaintiff was shown, as a matter of law, to be estopped to deny that the exhaustion of policy limits did not negate any liability it might otherwise have to plaintiff.

We agree with plaintiff that, assuming arguendo that Cape was an insured under the policies in question, the service of the garnishment summons on Cape gave plaintiff a prior right to the available policy proceeds subject to its ability to prove coverage under the policies. We also agree with plaintiff that Zurich did not conclusively show plaintiff was estopped to dispute Zurich’s ability to cut off any rights of plaintiff by exhausting the policy limits. Accordingly, we reverse the summary judgment.

We consider first the question of whether, absent waiver or estoppel, Zurich could defeat any rights of plaintiff to garnish Zurich by exhausting its policy limits after it had been served with the garnishment summons. A provision in the two Zurich policies in issue stated Zurich “may make such *** settlement of any claim or suit as it deems expedient.” Clearly, Zurich had the power to cut off subsequent garnishment claims by exhausting the policy limits before those claims were reduced to judgment against an insured and before a service of garnishment summons on it. (Pekin Insurance Co. v. Home Insurance Co. (1985), 134 Ill. App. 3d 31, 479 N.E.2d 1078; State Farm Mutual Automobile Insurance Co. v. Murphy (1976), 38 Ill. App. 3d 709, 348 N.E.2d 491; Harmon v. State Farm Mutual Automobile Insurance Co. (Fla. App. 1970), 232 So. 2d 206; see also Zurich Insurance Co. v. Raymark Industries, Inc. (1987), 118 Ill. 2d 23, 514 N.E.2d 150.) However, none of the foregoing cases involves the instant situation where the question was raised concerning the rights of a judgment creditor of an insured who had served this insurer with a garnishment summons prior to the insurer exhausting the policy limits.

The decision in Zimek v. Illinois National Casualty Co. (1939), 370 Ill. 572, 19 N.E.2d 620, sets forth that garnishment, is a recognized procedure whereby a judgment creditor who has obtained a judgment arising out of a covered occurrence may obtain satisfaction of the judgment by garnishing the judgment debtor’s insurer. That decision also refutes any contention that uncertainty in regard to whether Cape qualifies as an insured here would make plaintiff’s claim against Zurich too contingent to permit a garnishment suit or to create any priority of right to plaintiff pursuant to section 12 — 707(a) of the Code of Civil Procedure. According to the Zimek court, that type of contingency arises when policy coverage depends upon a condition to be performed or an event to occur in the future. Zimek, 370 Ill. at 576, 19 N.E.2d at 623.

The difficulty in determining whether plaintiff secured any prior right to policy proceeds by service of the garnishment summons upon Zurich centers upon the general principle recited by Zurich that a .garnishor can obtain no greater right against a garnishee than the rights of the judgment debtor against the garnishee. (Burkart v. Toraason (1982), 107 Ill. App. 3d 92, 437 N.E.2d 388; Marengo State Bank v. West (1971), 132 Ill. App. 2d 106, 267 N.E.2d 527.) However, as we have indicated, no case has determined what rights such an insured, as Cape is taken to be, has against an insurer to prevent future exhaustion of policy limits when that insured already has a judgment against it.

Section 12 — 707(a) of the Code of Civil Procedure concerning the duties of a garnishee upon receiving summons speaks of the garnishee holding, subject to court order, “any non-exempt indebtedness or other non-exempt property” with the judgment upon which the garnishment is brought becoming “a lien on the indebtedness or other property held by the garnishee” pendente lite. (Ill. Rev. Stat. 1987, ch. 110, par. 12 — 707(a).) A debt owed by the garnishee to the judgment debtor is a subject for garnishment and an interest to which the lien created by service of a garnishment summons attaches. (Pilafas v. Pilafas (1963), 39 Ill. App. 2d 69, 188 N.E.2d 235.) Under the holding in Zimek, the garnishment claim of a judgment creditor against an insurer of a judgment debtor is a claim liquidated by the certainty of the amount of the judgment even though questions of policy coverage are in issue. The claim of the alleged insured would seem to have similar status.

An authority on insurance describes the operation of the service of a garnishment summons on an insurer in these words: “The writ of garnishment is not a physical attachment of property, but is a notice to the garnishee to retain in his hands any indebtedness due to the principal defendant.” (Emphasis added.) (22A J. Appleman, Insuranee Law and Practice §14562, at 461 (rev. ed. 1979).) Under Zimek, the liquidated judgment was “indebtedness due to the principal defendant,” Cape, at the time the garnishment summons was issued under the stated facts upon which the court entered summary judgment. To permit the lien of section 12 — 707(a) to attach under the circumstances shown by the record would place a fair limitation upon the ability of an insurer to choose which claimants with which to make settlement. Zurich contends an insurer would be unduly hamstrung by having possible policy proceeds tied for the period of time to determine rights under a garnishment proceeding, but there is some desirability in permitting an early judgment creditor an opportunity to establish a right to those proceeds.

Zurich also purports to be concerned with being held to be in bad. faith in not settling claims which could be settled if portions of policy limits are not tied up in garnishment proceedings. But undoubtedly, the lack of availability of funds within policy limits would be considered in judging the propriety of the conduct of the insurer.

The record shows plaintiff’s attorney was also attorney for the parties who effected subsequent settlements with Zurich which exhausted the limits of the two policies. This relationship is at the heart of Zurich’s assertion plaintiff is estopped to refute Zurich’s contention that exhaustion of the policy limits released Zurich of any liability to plaintiff regardless of policy coverage or the effects of section 12— 707(a) of the Code of Civil Procedure. Zurich points out plaintiff’s attorney knew of the exhaustion of the policy limits and requested those settlements be made. Plaintiff is certainly charged with whatever notice his attorney had. However, Zurich petitioned the court to approve the settlements exhausting policy limits but the matter was never heard. In any event, as far as any duty was placed upon plaintiff to protect his rights, that duty was fulfilled by service of the garnishment summons. As Zurich has suggested, the most important element necessary to create an estoppel is conduct attributable to the party to be estopped which deceives the other party causing a detrimental reliance on the existence of the subject matter of the deceit. (Northern Trust Co. v. Oxford Speaker Co. (1982), 109 Ill. App. 3d 433, 440 N.E.2d 968.) Here, any deceit would have to have been with reference to whether plaintiff’s attorney was acting on behalf of plaintiff when, in representation of others, he obtained the settlement which exhausted policy limits. Any responsibility of plaintiff’s attorney to plaintiff is not before this court; however, we cannot find, as a matter of law, that plaintiff’s attorney so deceived Zurich.

Another aspect of Zurich’s claim of estoppel presents a somewhat more complicated situation. The record showed plaintiff, while represented by the same attorney, had joined in a written agreement with NAAC. At one point that document stated plaintiff “covenants not to execute on, or otherwise seek to collect any judgment or satisfaction from *** any obligation arising from the issuance of *** policies of insurance to NAAC by” Zurich. That agreement also recited plaintiff intends to continue seeking to pursue claims against others, including Cape. Plaintiff maintains the document is ambiguous. We need not decide that issue to conclude the document does not estop plaintiff from disputing that the exhaustion of the policy limits eliminated any liability of Zurich.

The agreement is one referred to in one of the earlier motions for summary judgment. This document, if properly supported, may well constitute an affirmative defense for Zurich as to the garnishment action. Neither the court record nor the Zurich brief indicates it is or has been considered in this way. Rather than presenting this evidence as a matter decisive in itself, it is presented merely to estop plaintiff from disputing a contention of Zurich’s. Regardless of the interpretation given to the document, it does not create an estoppel.

For the reasons stated, we reverse the summary judgment appealed and remand the cause to the circuit court of McLean County with direction to proceed further.

Reversed and remanded.

McCULLOUGH, P.J., and LUND, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTINE M. JANECEK, Defendant-Appellant.
    Fourth District
    No. 4-88-0734
    Opinion filed June 28, 1989.

      Daniel D. Yuhas and Karen Munoz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Robert W. Mueller, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On June 28, 1988, following a bench trial in the circuit court of McLean County, defendant Christine Janecek was convicted of reckless driving and felony criminal damage to property. She was subsequently sentenced to concurrent terms of 6 months’ and 30 months’ probation, respectively, and she was ordered to pay $1,078.96 restitution. Defendant maintains on appeal her conviction should be reversed, because she proved, by a preponderance of the evidence, that she was insane at the time she led police on a 24-mile high-speed chase, and that she was unable to appreciate the criminality of her conduct or to conform to the requirements of the law. We reverse.

Prior to trial, defendant was examined by Dr. Robert Chapman and, on June 1, 1987, following a hearing, was found unfit to stand trial. Following hospitalization and treatment, she was subsequently found fit to stand trial.

At trial, the State’s only witness, Deputy Sheriff Greg Fillmore, testified that on April 6, 1987, he was in an unmarked squad car on Interstate 74 when a vehicle passed him traveling at a great rate of speed. He said he accelerated to 110 miles per hour, and the vehicle was pulling away from him. He then described the pursuit, which involved three police cars chasing the vehicle for 24 miles at speeds in excess of 100 miles per hour. He said he saw cars being forced off the road because of the high rate of speed of the car he was chasing. Fillmore indicated that when defendant’s vehicle finally got off the interstate and pulled to a stop at a “T” intersection, defendant seemed to be confused. He said he then pulled his car in front of defendant’s to block her path, got out of his car, and went to defendant’s car to try to get her out. He said she was staring straight ahead, pulled her car forward and struck the squad car. He indicated that the squad car sustained over $1,000 worth of damages.

Fillmore then testified that when he opened her car door, defendant began screaming incoherently and struggling. Fillmore stated he had no reason to believe defendant was under the influence of alcohol or drugs at the time she was stopped, and he did not notice any odor of alcohol or any sign of motor skill problems or slurring of speech.

Fillmore testified that when he spoke to defendant later that day, she said she was on her way to Peoria, but her “car wanted to go” to Indianapolis. He said she indicated she had not heard the sirens but did see the various lights on the police cars. He said she told him she did not stop because she did not want to, that she ran cars off the road because she had been “drag racing” and that she knew she was breaking the law and driving recklessly. Finally, Fillmore said that defendant did not remember striking his car, but she said that if she did, it was his fault because he jumped out of his car with a gun in his hand. Fillmore admitted on cross-examination that he had drawn his gun from the holster when he approached defendant initially and that she was a “little agitated” when he interviewed her at the police station several hours after her arrest.

Dr. Robert Chapman then testified for the defense. He said (1) he was a psychiatrist and had examined defendant on May 1, 1987, three weeks after her arrest; (2) he had reviewed the charges against her and the various police reports and documents relevant to this incident; (3) he obtained a medical history of defendant including numerous hospitalizations for mental problems in the previous 10 years; (4) based on his examination, he diagnosed defendant as having an “unspecified” psychosis, which was a “major mental disorder that prevents the individual from being able to organize her thoughts, function in day-to-day activity, and presents a break with reality to such a degree that, if unsupervised, unattended or unassisted, [she] would be unable to care for [herself]”; and (5) based on his examination of defendant three weeks after the incident, he was of the opinion that the mental disease or defect was present at the time of the incident, and she was, by the statutory definition (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2), insane.

Chapman indicated he formed his opinion because defendant was having delusions and hallucinations at the time of the incident and was fearful and believed she was in danger. He said she believed she needed to be evasive and get off the highway. He indicated his opinion would not be changed by statements defendant made following her arrest that she believed her activities were unlawful and reckless. He stated that defendant would have been willing to make any kind of statement she believed that those whom she feared wanted her to make. He also said his opinion would not be changed upon learning that defendant remembered seeing squad cars with lights but did not want to stop. He said defendant would be willing to make statements that were not in her best interests, because she was not aware and did not appreciate the circumstances.

David Janecek, defendant’s former husband, testified at trial that (1) defendant was hospitalized 18 times between 1973 and 1987 for psychiatric treatment; (2) she was last hospitalized in 1984; (3) one evening, approximately one week prior to the incident, she took the car for a half-hour drive and called six hours later saying she was 150 miles away and out of gas; (4) she would lock herself in a room and play music loudly, while ignoring the couple’s three children, who were aged 2, 10, and 12; and (5) in the weeks prior to the incident, she was afraid someone was going to harm her and talked about “pyramids and catching electric rays.” He then described the various events which had led to her former hospitalizations.

Defendant then testified that on the day of the incident, she was not feeling well. She said she recalled being on Interstate 74, losing her sense of direction and traveling at a high rate of speed, but she said she did not know why. She said she recalled being at a stop sign and could not decide whether to turn left or right when Officer Fillmore came around the back of his car. She said he called her a bitch and threatened to blow her head off if she did not get out of her car. She said he then threw her to the ground and beat her. She said he put handcuffs on her so tightly that she screamed for about three minutes. She denied hearing any voices concerning her route of travel.

Following arguments, the court indicated it considered all of the evidence, “especially [that] of the officer and the defendant” and that of her doctor and found that defendant had the capacity to understand the criminality of her actions and that she could have conformed her conduct to the requirements of the law. The court said it would not accept the defense of insanity under the conditions of the evidence presented and found her guilty of all charges.

When the defense of insanity is raised at trial, the defendant has the burden of proving, by a preponderance of the evidence, that the defendant is not guilty by reason of insanity. (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2(e).) The statute provides:

“(a) A person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” Ill. Rev. Stat. 1987, ch. 38, par. 6— 2(a).

The question of defendant’s insanity at the time of the offense is one of fact, and the fact finder’s resolution of that issue will not be disturbed unless it is contrary to the manifest weight of the evidence. People v. Martin (1988), 166 Ill. App. 3d 428, 433, 519 N.E.2d 1085, 1088.

The State argues that the trial court acted within its discretion in basing its opinion on lay testimony and rejecting the expert’s opinion on defendant’s sanity. The State cites People v. Marshall (1983), 114 Ill. App. 3d 217, 448 N.E.2d 969, where this court affirmed a finding that the defendant was guilty but mentally ill at the time she shot her brother. There, the only evidence in support of defendant’s assertion that she was insane at the time of the shooting was the opinion of a psychiatrist that she was incapable of conforming her conduct to the requirements of the law. The court pointed out, however, that inconsistencies in the physician’s testimony raised “serious doubts” as to the validity of this conclusion (Marshall, 114 Ill. App. 3d at 226, 448 N.E.2d at 976) and was, thus, entitled to “little, if any,” weight. Moreover, there, the testimony of defendant demonstrated she was able to conform her conduct to the requirements of the law, and the State presented testimony that defendant was calm and did nothing unusual prior to the shooting.

The State also cites People v. Spears (1978), 63 Ill. App. 3d 510, 380 N.E.2d 423, where the court held that the State’s evidence was sufficient to meet its then burden of demonstrating the defendant’s sanity in spite of expert testimony to the contrary. There, the court noted that the jury was not required to accept the conclusions of the psychiatrist and that it could properly reach a finding of sanity by accepting lay testimony over expert testimony. The court noted the expert testimony was relatively weak, and other testimony by State witnesses as well as the defendant showed defendant appeared “normal” at the time of the incident. (Spears, 63 Ill. App. 3d at 520, 380 N.E.2d at 430.) The court noted the judgment of the lay witnesses was substantiated by testimony that the defendant was able to follow all instructions given to him on the day in question.

Here, however, there is no substantial disparity between the State and defense witnesses regarding defendant’s capacity to conform her conduct to the requirements of the law. The officer’s testimony tends to support that of the psychiatrist and defendant’s former husband that she was not “sane” within the meaning of section 6 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 6 — 2).

In People v. Garcia (1987), 156 Ill. App. 3d 417, 509 N.E.2d 600, the defendant was found guilty of attempt (murder) in the stabbing of his brother. Witnesses for the State testified that shortly after the stabbing, defendant appeared “normal,” was cooperative, indicated he understood his rights, and agreed to talk to the State’s Attorney. Psychiatrists testifying for the defense indicated, however, defendant was a schizophrenic paranoid and was unable to conform his conduct to the requirements of the law.

The appellate court reversed a finding of “guilty but mentally ill,” noting the evidence “convincingly” established that, at the time of the offense, defendant was suffering from a recognized mental illness and lacked the ability to conform his conduct to the requirements of the law. The court noted that the trial court did not seem to question the credibility of the psychiatrists appointed to examine defendant, but rather seemed to draw different conclusions than the psychiatrists. The court concluded there existed a reasonable doubt of defendant’s sanity at the time of the stabbing and reversed the conviction.

In People v. Williams (1980), 87 Ill. App. 3d 860, 409 N.E.2d 439, at a hearing to determine a defendant’s fitness to stand trial, the only witnesses who testified indicated the defendant was so incompetent as to be unable to assist in his defense. The trial court concluded that the psychiatrists’ opinions were “guarded,” “imprecise,” and “in the nature of a psychiatric guess” and, based on “common sense,” determined the defendant was fit to stand trial.

The appellate court reversed the finding of fitness because the only testimony at the hearing indicated defendant was not fit to stand trial. The court noted that such a conclusion should not be rejected by a trial court without other testimony or evidence that defendant was in fact fit. The court found the trial court’s rejection of the expert witnesses’ conclusions was not warranted, and its finding of fitness was against the manifest wéight of the evidence.

Similarly, here, the testimony presented by State and defense witnesses indicated that at the time of the incident, defendant was “confused,” “incoherent,” and suffering from delusions and hallucinations. The psychiatrist who examined defendant a short time after the incident concluded she could not have conformed her conduct to the requirements of the law and indicated his opinion would not be changed by evidence of her alleged knowledge of the unlawfulness and recklessness of her acts. The testimony of the State and other defense witnesses substantially supported this conclusion. Thus, we conclude the trial court's rejection of the expert witness’ conclusions was against the manifest weight of the evidence.

For the foregoing reasons, we reverse the decision of the trial court finding defendant guilty of the charges and remand to the trial court for entry of a finding of not guilty by reason of insanity and further proceedings pursuant to section 115 — 3(b) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115— 3(b)).

Reversed and remanded with directions.

LUND and SPITZ, JJ., concur.


text:
    DIANA PHELPS, Petitioner-Appellant, v. THE HUMAN RIGHTS COMMISSION et al., Respondents-Appellees.
    Fourth District
    No. 4-88-0571
    Opinion filed June 28, 1989.
    Diana N. Cherry, of Metnick & Barewin, of Springfield, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for respondents.
   JUSTICE GREEN

delivered the opinion of the court:

Section 7 — 102(A) of the Illinois Human Rights Act (Act) states that a person seeking relief from a civil rights violation shall file “a charge in writing under oath or affirmation” (emphasis added) with the Department of Human Rights “[wjithin 180 days after the date” of the alleged commission of the violation. (Ill. Rev. Stat. 1985, ch. 68, par. 7 — 102(A).) Section 7 — 102 further provides that, upon receipt of such a charge, the Department shall give notice to any respondent to a charge, investigate the allegations, hold a fact-finding conference, and report to the Director of the Department, who shall, within 300 days or such extension agreed upon by the parties, determine whether to file a complaint with the Illinois Human Rights Commission (Commission). Section 7 — 102(G)(2) of the Act authorizes the person making the charge to file a complaint with the Commission within 30 days of the expiration of the time for the Department to make that decision if the Department has not done so. Ill. Rev. Stat. 1985, ch. 68, par. 7— 102(G)(2).

The evidence here showed that no later than October 16, 1986, the Department received from petitioner Diana Phelps an unverified document charging respondents, the Department of Corrections (DOC), petitioner’s employer, and Steven Horner, petitioner’s supervisor with that employer, with a series of acts of sexual harassment (Ill. Rev. Stat. 1985, eh. 68, par. 2 — 101(E)), the last act of which occurred on May 1, 1986. This act allegedly took place less than 180 days before the Department’s receipt of the document. The Department did not process the document as a charge within the 480 days after receiving the document. Within the last 30 days of that period, petitioner filed a complaint with the Commission making allegations similar to those in the previous document. DOC moved for a summary order (Ill. Rev. Stat. 1987, ch. 68, par. 8 — 106.1) dismissing the complaint for lack of jurisdiction of the Commission because the previous document which petitioner filed with the Department was not verified. After a hearing, an administrative law judge recommended entry of such an order. On June 28, 1988, the Commission entered a summary order dismissing the complaint for want of jurisdiction. Petitioner filed with this court for administrative review. Ill. Rev. Stat. 1987, ch. 68, par. 8-111(A)(l).

In dismissing petitioner’s complaint, the Commission explained that, in Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746, the court held the requirement of section 7— 102(A) of the Act that a charge be filed with the Department within 180 days of a civil rights violation was a condition precedent to the Commission’s subsequent exercise of jurisdiction over a complaint. The Commission here reasoned that, similarly, the failure of a charge to meet the requirement of section 7 — 102(A) that it be “under oath or affirmation” must also be a jurisdictional requirement for the Commission’s later consideration of a complaint. As the Commission noted, it had recently so held in Gonzalez v. St Anne’s Hospital (1988), __ Ill. Hum. Rts. Comm’n Rep. _ (HRC No. 1984CF1488).

In Gonzalez v. Human Rights Comm’n (1989), 179 Ill. App. 3d 362, 534 N.E.2d 544, the appellate court for the first district reversed the Commission’s decision, holding that a charge filed with the Department within the 180-day period of section 7 — 102(A) need not be verified prior to the expiration of the 180-day period in order for the Commission to later acquire jurisdiction of a complaint concerning the same alleged violation. Rather, the court concluded that, when an unverified charge is filed within 180 days, “equitable principles” control a determination as to whether the Commission can later properly proceed. (Gonzalez, 179 Ill. App. 3d at 371, 534 N.E.3d at 549.) The opinion indicated a complainant would be barred from relief for failure to verify the charge if the complainant was guilty of laches in regard to that failure.

In Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203, this court followed Pickering and held that the statutory requirement for the filing of the charge with the Department was a jurisdictional requirement and, unlike a statutory period of limitations, could not be waived or tolled. As we subsequently amplify in more detail, we need not retreat from that position to decide this case consistently with Gonzalez. The filing of a charge puts in force the machinery tying a claimant to a particular claim within a short period of the alleged deprivation of rights and sets in motion a time schedule. The filing of the charge also begins a scheme of notices to parties respondent. The verification requirement merely serves as some protection to the parties charged from false claims.

This court has never decided whether the requirement for verification within the 180-day period is a condition precedent to subsequent jurisdiction by the Commission. We recognize arguments both ways. We further recognize different precedent between the districts of the appellate court of this State is permissible. (People v. DeVoss (1986), 150 Ill. App. 3d 38, 501 N.E.2d 840.) However, when an issue involves the jurisdictional concerns of an administrative agency from which all districts often sit in administrative review, we deem a difference in controlling precedent to be very undesirable. The decision in Gonzalez is very credible. Acting in comity, we chose to follow Gonzalez.

The Commission contends the facts of this case are so different from those in Gonzalez that, putting the question of jurisdiction aside, petitioner was so dilatory as to justify - the dismissal. The Commission’s order did indicate the petitioner here was less deserving of equitable consideration than was the petitioner in Gonzalez. We do not agree the difference is controlling.

In this case and in Gonzalez, the petitioner (1) obtained from the Department a multipage document called a “complainant information sheet” (CIS); (2) had the document filled out and signed; and (3) returned the document to the Department within 180 days of the alleged civil rights violation. The first page of the CIS was headed “YOU MAY FILE A CHARGE.” It admonished prospective claimants that the Department would help them but would have to get information from them with particular reference to whether the Department had jurisdiction. The first page ended its admonition with these words:

“However, if it should happen that we counsel you that we do not believe that we have jurisdiction or that it appears unlikely that we can help you or that the organization has violated the law, based on what you tell us, YOU MAY, NONETHELESS, FILE A CHARGE WITH US. That is YOUR decision to make. It is possible that your filing a charge will result in its being dismissed because we do not have jurisdiction or because it is determined that the law has not been violated. But even if we counsel you that we do not have jurisdiction or that it appears that we will not be able to help you or that it appears that the law has not been violated, YOU MAY FILE A CHARGE.” (Emphasis in original.)

That page then contained a statement that the claimant had read the page along with places for signature and date. This page gave no indication that verification was required.

The other four pages of the document contained blanks for the person wishing to make a charge to fill out. The questions concerned information in regard to the claimant and the nature of the charge the claimant wished to make. The final page contained a single line for signature and no designation of a place for a notary public to certify to the verification by the person signing nor was any obvious space left for the imprinting of the notary’s rubber stamp seal. Ill. Rev. Stat. 1985, ch. 102, par. 203 — 102.

The bottom one-third of the last page of the CIS located below the signature line was headed by the word “NOTE.” Thereunder appeared several admonitions, the following of which are significant:

“The law requires that a charge be filed within 180 [emphasis in original] days from the date of the alleged discrimination. If you are returning this form, by mail, make sure that this form, is post marked, no later than the 180th [emphasis in original] day from the date this action was taken against you. * * *
If your claim is accepted by the Department as a charge, it will be typed on the Department’s charge form and returned to you for your signature and notarization.” (Emphasis added.)

The last sentence of the foregoing was the only indication on the entire document that verification of a charge was required. That statement is couched in terms which suggest “notarization” was required only after the claim had been accepted by the Department. As that language appears after the statement of the requirement of filing within 180 days, the date of presentation of the document for acceptance could reasonably be understood by claimants as the date of filing, and the time for “notarization” could be interpreted to be at a later point after the CIS is accepted and returned to the claimant. As we will explain, the Gonzalez opinion indicated that was substantially the practice of the Department at that time.

The undisputed testimony in the instant case was that petitioner contacted her local union steward Robert Juhl who, in turn, contacted Chief Steward Liz Madden concerning petitioner’s claim. Madden testified she was informed by an employee of the Department that petitioner should go to the Department, obtain a form, return it to the Department and “that there was [sic] 180 days to file the complaint from the time of the last incident.” Madden further stated she obtained a CIS form of the type we have described and took it to Juhl. He testified petitioner filled out the form in his presence, and he then took it to Madden. Both Juhl and Madden testified they examined the form and decided it needed supplementation. Juhl testified he then supplied an addendum to the form and mailed it to Earline Christian at the Department on October 11 or 12, 1986. Juhl testified he had earlier talked to Christian. He recalled Christian had said she would review the form and then notify them if anything further could be furnished. Juhl testified Christian may have said she would type a charge upon receipt of the form and then mail it to petitioner for signature and notarization.

Department records were introduced which showed a receipt of mail from “Diane Sue Phelps” on October 16, 1986, and the mail was given to Earline Christian. The latter testified she was the intake person for the Department. She said she drafted charges based upon information she received from complainants. She further indicated she kept daily records of her telephone calls in the course of her employment. She said her records showed she received a phone call from Liz Madden on September 29, 1986, and one from Robert Juhl on October 9, 1986. She did not have with her her records from October 16, 1986. However, she said she had no record that petitioner had filed a charge with her.

Christian further stated the CIS sheet which petitioner allegedly submitted did not constitute a “charge of discrimination.” Rather, she said the information contained in such a document would normally be used to draft the actual charge. She said a perfected charge would have to be notarized. She acknowledged complainants do not have access to the actual charge form used. However, she said they could write it on ordinary paper, sign it and have it notarized, and it would be accepted as a charge. She also stated she drafted a formal charge in every case in which the Department had jurisdiction. If jurisdiction was lacking, she said she then notified the complainant by letter. Christian testified she could not recall ever talking with petitioner and had no record of doing so. Christian said she was certain she had never told petitioner she could do nothing about petitioner’s claim.

Petitioner testified that, some time after her CIS form was mailed, she received a phone call from a woman at the Department. (She later recognized the woman’s voice as belonging to Earline Christian.) She said the woman told her that, because DOC had held an internal employee review hearing on her supervisor, the Department could do nothing with her claim. Both Juhl and Madden stated petitioner informed them of the content of her telephone conversation with the Department. Petitioner stated that, after receiving this call, she did not pursue the matter further until she filed her complaint.

The evidence in Gonzalez differed from the situation here in that, there, petitioner filed a charge with the Department and a Federal charge with the Equal Employment Opportunity Commission. The latter charge was dismissed for lack of cause. However, the Department determined petitioner’s charge was based on substantial evidence and filed a complaint. The Commission allowed a motion to dismiss the complaint because the charge had not been verified until seven days after the expiration of the 180-day period. In reversing, the appellate court noted the CIS forms did not provide for verification. Furthermore, it noted petitioner had taken a CIS form prepared by his attorney to the Department and left it there upon being told that personnel from the Department would type a charge and send it to him. No typed charge was sent to that petitioner before the expiration of the 180-day period. Evidence was presented there of a practice by the Department of having proceeded with over 5,000 unverified charges by sending the charges back to claimants for verification after the expiration of the 180-day period.

The Gonzalez court acknowledged the existence of Department rules which purport to allow verification of a charge after the expiration of the 180-day period by relating the information in the charge back to the date of filing the charge. Petitioner calls our attention to these rules here. They are:

(1) Department Rule 2520.360, which states:

“A charge or any part thereof may be amended by the complainant to cure technical defects or omissions, or to clarify or amplify allegations made therein, or to set forth additional facts or allegations related to the subject matter of the original charge, and such amendments shall relate back to the original filing date.” (Emphasis added.) 56 Ill. Adm. Code §2520.360 (1985).

(2) Department Rule 2520.350, stating:

“In the event the Department receives a written statement from an individual which complies substantially with Sections 2520.320 and 2520.330 hereof, but which is not notarized or is lacking elements specified in Section 2520.3J/.0, the Department may accept and docket the statement (or a refined version of it) as an unperfected charge. The Department shall notify the complainant in writing of the elements which must be supplied to perfect the charge.” (Emphasis added.) 56 Ill. Adm. Code §2520.350 (1985).

(3) Rule 2520.320, providing:

“A charge shall be in writing and signed by the complainant, or by the Director in the case of a charge initiated by the Department, under oath or affirmation before a notary public or other person authorized by law to administer oaths or affirmations. Notary service shall be provided without cost at the Department’s offices.” (Emphasis added.) 56 Ill. Adm. Code §2520.320 (1985).

The Commission and DOC emphasize the obvious difference between this case and Gonzalez. There, the Department sent that petitioner a charge a few days after the expiration of the 180-day period, and he verified the charge and returned it. Here, petitioner has never verified a charge. However, the evidence indicates the equities of the situation favor petitioner, and we do not deem her guilty of laches.

In attempting to aid prospective complainants, the Department apparently adopted procedures which instead confused them. Here, the procedures confused not only petitioner but also union stewards whose duties most likely had given them some experience with the problems associated with dealing with bureaucracies. As we have indicated, the CIS and the explanations apparently given by the Department could easily have been interpreted to mean the CIS was a charge which was to be presented within the 180 days, and subsequent verification was only a formality. The Gonzalez opinion stated this had been the practice of the Department. Here, the evidence showed that an employee of the Department held petitioner’s CIS until after the expiration of the 180-day period, and no charge was ever prepared.

In Gonzalez, the record showed the petitioner was represented by counsel at an early date. Here, the record does not show when petitioner obtained counsel, but it does show conduct attributable to the Department which confused her well past the 180-day deadline. She then had only presented an unverified CIS to the Department. With hindsight, we can see she should have offered to verify that document, but we cannot seriously fault her for not having done so.

The reasons why we must reverse the order of the Commission which dismissed the complaint bear upon differences between the situation here and that in Larrance where we upheld a Commission order dismissing a complaint. The proceedings there were initiated under the then Fair Employment Practices Act (Ill. Rev. Stat. 1979, ch. 48, par. 851 et seq.), which was similar to the legislation involved here. However, at that time charges were not automatically accepted. The CIS form used was a general information sheet which the complainant completed. That form did not, as here, contain the information which might mislead a person filling out the form to conclude it was a charge. There the intake officer examined the CIS form and on a date prior to the expiration of the 180-day period, informed the complainant that the charge was not accepted and no charge would be filed.

The differences between Gonzalez and this case do require different remedies. There, the Department had accepted that petitioner’s presented document as a charge, processed the charge, found the existence of probable cause, and filed a complaint before the Commission. The appropriate remedy there was for the Commission to be ordered to hear the complaint on its merits. Here, the document filed by petitioner has never been processed, and nó finding as to probable. grounds for relief has been made. Accordingly, the relief to which petitioner is entitled is merely to proceed before the Department.

We reverse the Commission’s order of dismissal of June 28, 1988, and remand the case to the Commission with directions to remand the cause to the Department with directions to either allow petitioner to verify her CIS and treat that document as a charge or to allow petitioner to file a verified charge. Petitioner is to be given a reasonable time to proceed. Whichever procedure is followed, the 300-day period of section 7 — 102 of the Act shall begin to run upon the verification by petitioner of her CIS or the filing by her of a charge. The Department shall be directed to process the document presented as a charge according to the provisions of the Act.

Reversed and remanded with directions.

McCULLOUGH, P.J., and LUND, J., concur.


text:
    JOHN L. WUBBOLDING, Plaintiff-Appellant, v. RAVINDER P. KUNDRA, Defendant-Appellee.
    Fourth District
    No. 4-88-0846
    Opinion filed June 21, 1989.

      Richard J. Winkel, Jr., of Harrington, Porter & Winkel, of Champaign, for appellant.
    Rex L. Reu, of Thomson & Weintraub, of Bloomington, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On March 25, 1988, plaintiff John L. Wubbolding brought suit in the circuit court of Champaign County against defendant Ravinder R Kundra seeking monetary damages for defendant’s alleged breach of a contract to purchase real estate from plaintiff. After issue was joined, the case was heard at bench. On November 1, 1988, the court entered judgment in favor of defendant in bar of action. Plaintiff has appealed. We reverse and remand for a determination of plaintiff’s damages.

The evidence was undisputed that a contract for the sale of the real estate was entered into between the parties on February 13, 1987, providing for a purchase price of $199,300 with a down payment of $6,500 to be paid by March 1, 1987, and with a closing date of March 15, 1987, at which time the balance was due. The contract contained a provision making time “of the essence” of the contract. Under the pleadings, plaintiff’s readiness and willingness to perform on the date of closing and thereafter is not disputed. Defendant agrees he did not make the payments required at any time. However, the evidence also showed defendant was having difficulty in obtaining financing, and plaintiff acquiesced in defendant not closing the purchase on the agreed date. The evidence also showed plaintiff never made a demand of defendant to pay the purchase price before filing suit on March 25, 1988.

The case turns upon whether plaintiff was required to make an actual demand on defendant for payment by a set date before bringing suit. The circuit court held plaintiff was required to do so and ruled in favor of defendant because plaintiff had not done so. Plaintiff maintains he was not required to make the demand because (1) the issue of demand was not raised by the pleadings; and (2) his repeated requests to defendant to close the contract in addition to a statement made on defendant’s behalf by his agent made demand unnecessary. We hold that, under the circumstances shown by the evidence, no demand was necessary.

We dispose of plaintiff’s assertion that the issue of demand was not raised by the pleadings summarily. The complaint alleged the making of a demand for payment, and defendant’s answer denied the allegation. Plaintiff maintains that lack of a demand is an affirmative defense but cites no authority in support. His theory is contrary to the usual definition of an affirmative defense as one which “gives color to the opposing party’s claim and then asserts new matter by which the apparent right is defeated.” (Warner Agency, Inc. v. Doyle (1984), 121 Ill. App. 3d 219, 222, 459 N.E.2d 633, 635.) Moreover, the state of the pleadings negates plaintiff’s contention he was taken by surprise. The issue of demand was clearly raised by the pleadings.

Plaintiff’s second contention raises a more difficult question. Defendant seeks to draw analogy between the situation here, where plaintiff is merely seeking to recover the agreed purchase price under the contract, and situations where a vendor seeks to obtain a forfeiture of a down payment, to rescind a contract of sale, or to prevent being required to specially perform under such a contract. The circumstances here and those in the situations to which analogy is drawn all involve a failure of a vendee to pay the purchase price at the time set forth in a real estate contract, while the vendor has stood by and acquiesced in the delay of the vendee in making payment. The circuit court made this analogy in making its decision.

Before explaining any further details of evidence or the reasons for our decision, we consider a discussion of the cases cited in support of the circuit court’s decision to be desirable.

The circuit court relied most heavily upon the precedent of Hockenbury v. Lorentz (1976), 35 Ill. App. 3d 983, 343 N.E.2d 90. There, a vendor and vendee had contracted for a sale of realty for a price of $16,000. A down payment of $1,400 had been paid. One day after the execution of the contract, that vendee’s attorney asked those vendors to rescind the contract because of that vendee’s mental condition but the vendors refused. The closing date was set for August 10, 1973. On that date, the vendors warned the vendee they would take his down payment and resell the property if he failed to pay, but they did grant him an extension for making payment. The vendee wrote to the vendors on August 31 acknowledging the grant of the extension, which he stated he assumed to be for 30 days. The record did not indicate any further communication between the parties, but, after August 10, 1973, the vendors advertised the property for sale and sold it on September 27, 1973, to a third party. The vendee then filed suit for a return of the down payment. After a trial, the circuit court entered judgment for the vendors.

On appeal in Hockenbury, the appellate court reversed. It recited the court’s abhorrence of forfeitures and noted all of the parties had intended for the vendee to continue to be seeking financing to make the purchase when the vendors advertised for the sale and made the sale. The court held the vendors' conduct constituted an offer to rescind, permitting the vendee to recover his down payment.

Defendant also cites Bell v. Yale Development Co. (1981), 102 Ill. App. 3d 108, 429 N.E.2d 894, where an assignee of a vendor sought to rescind a contract of real estate although that vendor had granted numerous extensions of time to make payment to that vendee. The appellate court held the vendor was entitled to a summary judgment of rescission upon repaying to the vendee the small down payment it had made. The vendor contended the vendee’s conduct had indicated an intent to abandon the contract. The appellate court concluded that, on the basis of extensive correspondence between the vendee and the vendor, it could not find, as a matter of law, that the vendee had abandoned the contract. However, that court concluded the vendor had given the vendee a sufficient demand to perform with an ample length of time to do so that, upon the failure of the vendee to comply, the vendor was entitled to rescission as a matter of law. The appellate court reasoned that the same demand for performance was required of the vendor in order to obtain a rescission of the contract as would have been required of the vendor to obtain a forfeiture in Hockenbury.

Defendant also calls to our attention the decision in Brown v. Jurczak (1947), 397 Ill. 532, 74 N.E.2d 821, where a circuit court had granted a defense motion to dismiss, in bar of action for failure to state a cause of action, a complaint for specific performance brought by vendees under a contract for sale of real estate. The thrust of the motion was that the vendees’ complaint showed on its face that the vendees had failed to tender payment within the time required by the contract. The supreme court reversed, holding that the complaint set forth a factual question as to whether the vendors had waived timely tender by granting various extensions and making new demands on the vendees at the time of the latest tender. Upholding the position of the vendors would have enabled them to retain a small down payment made by vendees. The supreme court noted the vendors had not declared a forfeiture. The court then stated that “lapse of time, alone, would not put an end to the contract [and a] default in payment is required to be followed by some act of the vendor indicating his election to consider the contract at an end before it will be terminated.” (Emphasis added.) (Jurczak, 397 Ill. at 542, 74 N.E.2d at 826.) The court explained the abhorrence of courts to forfeitures.

The final case cited by defendant in support of his theory that he was entitled to a demand for payment and a reasonable time to make payment before suit was brought is Cantrell v. Kruck (1975), 25 Ill. App. 3d 1060, 324 N.E.2d 260. This also concerned a suit for specific performance. The appellate court affirmed a circuit court decree ordering a vendor to convey to a vendee although the vendee had not made payment by the time set forth in the contract of sale. The evidence showed the parties had orally agreed to an extension of indefinite length, and the vendees had tendered payment within 10 or 11 days after the contract date.

As conceded by defendant, this case differs from the cited cases in that here, rather than (1) seeking to obtain a forfeiture of a down payment and still retain the real estate, or (2) seeking to rescind a contract either by direct action or in defense of a suit for specific performance, plaintiff has brought suit on the contract to uphold the contract and obtain the purchase price for which he bargained. Defendant has cited no decisions in cases involving these circumstances. While we do not hold that a demand by vendors of vendee for payment on a new and reasonable date may not be required in suits for the purchase price where, as here, the vendor has acquiesced in the vendee’s failure to pay the purchase price on the contract date, we deem the difference in the type of case here to be significant.

Also significant here are special circumstances shown by the undisputed evidence. After not requiring the defendant to make payment on March 1, 1987, plaintiff, acting either individually or by authorized agent, repeatedly engaged in conversations with defendant or his authorized agent in which defendant or his agent was requested to close the transaction soon. This period culminated some six or seven months after the closing date of March 1, 1987, when, during a conversation with plaintiff or his agent, an attorney for defendant, authorized by him to speak on his behalf, stated that financing did not appear to be available and that plaintiff “should do whatever he needed to do to *** otherwise protect his position.” Plaintiff then brought suit some four months later and at a time when defendant had not made any tender of payment.

A rule of contract law has been stated to provide that a demand for performance is unnecessary when to make the demand would be useless. (17A C.J.S. Contracts §478b, at 676-77 (1963); see Dillon v. Elmore (1934), 276 Ill. App. 548, 564, aff’d on other grounds (1935), 361 Ill. 356, 198 N.E. 128.) The foregoing statement of defendant’s agent is not of itself sufficient to show an absolute inability of defendant to pay the purchase price on the contract, nor is it definite enough to constitute an anticipatory breach of the contract. (Henderson v. Lemna (1979), 76 Ill. App. 3d 168, 394 N.E.2d 1070.) However, we consider the statement to be very important, and, when taken with the rest of the undisputed evidence in the case, we deem it to be decisive.

A noted authority explains that an obligee can be estopped from holding an obligor to the strict time limits of a contract, of which, as here, time is of the essence by such conduct as accepting delayed payments when the conduct is “such as to induce in the obligor a reasonable belief that time will no longer be treated as of the essence.” (3A A. Corbin, Corbin on Contracts §722, at 380 (1960).) The fact that the obligor was likely misled to believe he had further time to make payment was emphasized in both Brown and Hockenbury as a major reason for imposing an estoppel or declaring the existence of a waiver in regard to the vendor. Here, the statement made by defendant’s agent several months before plaintiff filed suit indicated defendant was not misled into believing he had further time to make payment. See Chemetron Corp. v. McLouth Steel Corp. (7th Cir. 1975), 522 F2d 469.

Clearly, here, defendant (1) was given a substantial time to make payment; (2) was not misled into believing he had further time to make payment; and (3) by all appearances could not have made payment if a formal demand was placed upon him. The action brought by plaintiff did not seek a forfeiture of any payment made by defendant nor did it seek to rescind any obligation placed on plaintiff. The action merely sought to compensate plaintiff for the loss of the bargain to which defendant agreed. Requiring plaintiff to make a formal demand for payment under these circumstances does not make sense. We hold such a demand was not necessary.

Accordingly, we reverse the judgment for defendant and remand the cause to the circuit court of Champaign County with directions to enter judgment for plaintiff and to determine the amount of damages.

Reversed and remanded with directions.

McCULLOUGH, P.J., and LUND, J., concur.


author: JUSTICE LUND

text:
      In re C.L.T. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Judith Tabor, Respondent-Appellant).
    Fourth District
    No. 4-88-0808
    Opinion filed June 21, 1989.
    Diana Lenik, of Urbana, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Rebecca L. White, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

The three minors, C.L.T., M.W.T., and M.J.T., were adjudicated abused in December 1985. By dispositional order, the circuit court of Champaign County made the minors wards of the court, and ordered their custody transferred to the Department of Children and Family Services (DCFS), along with power to place them. At a review hearing on October 24, 1988, the court continued its dispositional order with the following provision added. C.L.T. was allowed to choose which church she would attend, if any. Respondent, C.L.T’s mother, appeals only that portion of the order relating to C.L.T.’s ability to choose her own religious training.

The cause involving these three minors has been before us on two previous occasions. (In re C.L.T. (4th Dist. 1989), No. 4 — 88—0408 (unpublished order under Supreme Court Rule 23); In re C.L.T. (4th Dist. 1989), No. 4 — 88—0673 (unpublished order under Supreme Court Rule 23).) We need not recite the entire background in order to deal with respondent’s question. The pertinent facts follow.

This cause initially began as a result of an incident in which C.L.T. was punished for eating forbidden candy. She was 11 years old at the time, and her punishment was to be spanked on the buttocks 50 times with a wooden paddle. C.L.T. suffered severe bruising and some bleeding. Later, after the children had been involved in counseling, it was discovered the children had deep emotional scars left by respondent and her husband, Frederick Tabor. All of the children had very low self-esteem. In large part, this stemmed from the method of discipline used in the Tabor household. Respondent and Frederick attempted to achieve behavioral compliance by inflicting pain, oftentimes severe pain. At times, the wooden paddle was used and, at other times, a belt. As part of the family life-style, the children lived according to strict religious tenets.

After a period of time, a theme of excessive control appeared. Many of respondent’s actions were viewed by DCFS counselors as attempts to exercise excessive control over the lives of her children. Respondent underwent a psychological evaluation prior to the October 24, 1988, hearing. The evaluator expressed concern over respondent’s "need to control *** especially when it comes to her religion.” After being removed from the family home, two of the children rebelled against respondent’s life-style and expressed hostility to her. At a review hearing on May 4, 1988, it was noted that the oldest child, M.W.T., had ceased visitation with his mother. At that time too, C.L.T. expressed her desire to have visitation cease. Both children viewed the strict religious requirements as respondent’s method of maintaining control over their lives. According to the review report prepared for the October 24 hearing, C.L.T. maintained little contact with her mother and expressed her desire to sever her ties with her mother’s church as well. She was happy with her foster home and stated her desire to begin attending church with her foster family.

At the hearing on October 24, respondent expressed her desire to have the children maintain religious ties with her church. Respondent stated the control issue was, in essence, really one of following unchangeable church doctrine. The court disagreed:

“It’s a broader issue of control and control of all aspects of the children’s life, personality, development, likes, dislikes, thoughts, words, and actions. It’s the kind of desire, in fact, almost fanatic pursuit of control that led to many of the problems that have been encountered in this case including the ongoing physical abuse.
The religious aspect of it, I believe, is an illustration, and it’s an example of the issue. I don’t believe it is the issue in and of itself. The Court does not sit to decide what religions are appropriate for children and what if any religions are not appropriate. That also is not the issue, in my judgment. Whenever any religion, any religion, either in and of itself or as applied by a parent, hurts a child or is other than in the best interests of that child, then I believe that religious practice must be suspended until such time as it no longer injures the child or until such time as the parents’ use of that religion or implementation of that religion ceases to hurt the child. That would apply to any religious practice whatsoever of any denomination. So, I view the religion as simply an illustration of those issues raised by Dr. Matthews and frighteningly documented in the history of this case.”

The court allowed C.L.T., a 14-year-old, to attend the church of her choice.

On appeal, respondent argues her right to determine the religious training of her children has been improperly removed by the court. Clearly, the ability to worship God in one’s accustomed style is a cornerstone upon which this country was built. (See U.S. Const., amend. I.) Our own State Constitution similarly guarantees religious freedom:

“The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed, and no person shall be denied any civil or political right, privilege or capacity, on account of his religious opinions; but the liberty of conscience hereby secured shall not be construed to dispense with oaths or affirmations, excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of the State. No person shall be required to attend or support any ministry or place of worship against his consent, nor shall any preference be given by law to any religious denomination or mode of worship.” (Ill. Const. 1970, art. I, §3.)

However, the freedom to exercise one’s religious beliefs is not absolute. The Constitution of 1970 expressly limits religious freedom in those instances which interfere “with the peace or safety of the State.” In People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 625, 104 N.E.2d 769, 773-74, the court stated:

“Concededly, freedom of religion and the right of parents to the care and training of their children are to be accorded the highest possible respect in our basic scheme. [Citations.] But ‘neither rights of religion or rights of parenthood are beyond limitation.’ Prince v. Massachusetts, 321 U.S. 158, 167; see Reynolds v. United States, 98 U.S. 145; Jacobson v. Massachusetts, 197 U.S. 11.”

The Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.) endeavors to protect the parental right to choose a child’s religious training. Section 1 — 3(15) of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 3(15)) gives certain residual rights and responsibilities to the parents of minors who come within the jurisdiction of the Act, and states, in part:

“ ‘Residual parental rights and responsibilities’ means those rights and responsibilities remaining with the parent after the transfer of legal custody or guardianship of the person, including, but not necessarily limited to *** the right to determine the minor’s religious affiliation.”

The DCFS representative, at the hearing, stated the agency’s policy of abiding by the wishes of the parent in such situations. In this case, DCFS was prepared to implement respondent’s request to have C.L.T. attend respondent’s church. There are no cases which specifically address the situation before us.

Our previous orders (In re C.L.T. (4th Dist. 1989), No. 4— 88 — 0408 (unpublished order under Supreme Court Rule 23); In re C.L.T. (4th Dist. 1989), No. 4 — 88—0673 (unpublished order under Supreme Court Rule 23)) indicate in more detail the deep emotional scars left on C.L.T. and her siblings by both respondent and her husband. The excessive beating took place, as did a policy of severe restrictions. There was evidence of sexual abuse toward certain children of the family by both parents. We note that C.L.T., M.W.T., and M.J.T., while being natural birth siblings, were all adopted by respondent and her husband. While we support the obligation to respect and abide by the wishes of a minor’s parents as to religious affiliation and training, we find the trial court’s decision in this case was correct because of the exceptional circumstances.

The record supports the trial court’s conclusion that the real issue was not religious training, but an attempt by respondent to maintain a control over C.L.T. that hindered the process of healing C.L.T.’s emotional and psychological wounds. Respondent’s struggle with the issue of control has been identified by a professional psychologist as a destructive factor in her relationship with her children. This had been apparent to the court almost from the time of the initial dispositional order in early 1986. The issue of control overlaps with respondent’s right to train her children according to her religion. It appears to be in C.L.T’s best interest to allow her to break free of the control. It was not an abuse of discretion to allow C.L.T. the freedom to choose her own religious training.

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

Affirmed.

McCULLOUGH, PH., and KNECHT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS ex rel. EFFIE WILLIAMS, Plaintiff-Appellee, v. RONALD RHODES, Defendant-Appellant.
    Fourth District
    No. 4-88-0680
    Opinion filed June 22, 1989.

      Daniel D. Yuhas and M. Jeffrey Bergschneider, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Linda Susan McClain, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Defendant Ronald Rhodes appeals from an order of the circuit court of Champaign County entered September 13, 1988, in which the court accepted his stipulation and admission to the offense of indirect criminal contempt for violating the terms of a plenary order of protection previously entered against him on September 25, 1987. He maintains for the first time on appeal that that order of protection was void and must be vacated because the court violated his due process rights when it failed to appoint counsel to represent him prior to entry of that order. We disagree and, therefore, affirm.

Effie Williams, defendant’s wife, petitioned that court for an order of protection on September 18, 1987. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 2.) The court entered an emergency order of protection on her behalf and continued the matter until September 25, 1987, when it held a hearing on her petition. On that date, both Williams and defendant appeared pro se.

At the hearing, the court determined Williams still desired to pursue her request for an order of protection and was taking further action to dissolve the marriage. The court further explained to defendant the contents of the petition and court record and the relief sought by Williams. When the court asked defendant whether he had any questions concerning what it had just told him, defendant responded, “No, I don’t understand none of it.”

The court subsequently asked defendant whether he had committed the acts as alleged in the petition. Defendant admitted he had “pushed her, laid her on the bed, and said cool out.” He further admitted he had slapped her on at least one occasion. The court then entered the previously described plenary order of protection against defendant on September 25,1987, to expire on September 1, 1989.

To support his contention that his due process rights were violated as he was indigent and the trial court failed to appoint counsel for him prior to entering the order of protection, defendant relies upon Lassiter v. Department of Social Services (1981), 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153. There, a trial court had refused to appoint counsel for an indigent woman in a proceeding brought by the State to terminate her parental rights. The Supreme Court rejected her claim of a violation of her due process rights under the circumstances present there, concluding that constitutional provision did not require appointment of counsel in every termination of parental rights case.

The State first attempts to distinguish Lassiter by claiming that, here, as in Rosewell v. Hanrahan (1988), 168 Ill. App. 3d 329, 523 N.E.2d 10, an individual filed a petition to begin private proceedings. Since that claim involved no State action, no due process clause protections arose. While we generally agree with the State’s argument, we also conclude that, even if the State were the petitioner in the underlying suit when the protection order was entered, defendant still would not have had a right to appointed counsel.

The Supreme Court in Lassiter indicated the decision as to whether due process required appointment of counsel for indigent persons in a case of that nature was to be made by balancing the following three elements: the private interests; the governmental interests; and the risk the procedures used would lead to erroneous decisions. In balancing those interests in the Lassiter decision, the court recognized a parent’s interest in the care and custody of his or her children was an important one which warranted protection, especially in those cases involving a termination of all parental rights. Likewise, the State had an interest in the welfare of the child and desired an accurate and just decision, although it also possessed a pecuniary interest in making the decision in the most economical manner possible.

The court further analyzed the State procedures present in the case. It noted the proceedings could be complex and involve parents with little education which might make the risk of error extremely high in some cases. However, after examining the facts of the case before it, the court decided the presence of counsel would not have made a determinative difference there. The court therefore concluded the trial court did not err in failing to appoint counsel for the indigent mother whose parental rights were terminated.

Here, defendant contends a balancing of those factors in his case leads to a result in his favor. He claims his familial interest in his 12-year-old stepson and his property interest in his marital residence outweigh any economic interest the State might have in avoiding additional legal expenses. Further, he argues the risk of an erroneous decision here is high, especially considering his statement to the court that he did not understand the proceedings involved.

We find defendant’s arguments to be unpersuasive. At the time of the hearing on the petition for order of protection, defendant and Williams had been married for only three months. The 12-year-old boy was not defendant’s own biological child, and defendant had not legally adopted him. While we acknowledge the court’s order also served to protect the boy, Williams was the subject of abuse, and the order did not prohibit all contact with the boy. We note, too, that, unlike the complete termination of parental rights involved in Lassiter, any deprivation suffered by defendant here was only temporary in nature because the order was to expire after a two-year period. This case differs in substance from our decision in the case of In re T.W. (1988), 166 Ill. App. 3d 1022, 520 N.E.2d 1107, only in that there the contemnor of an order of protection was unrelated to the children protected by the order. We held that order of protection to be valid although the contemnor had been refused appointed counsel even though he was indigent.

With regard to his alleged property interest, defendant has cited no cases, nor do we know of any, which indicate an indigent person is entitled to counsel when deprivation of an interest in property is involved.

The State possesses an important interest in these types of proceedings in preventing the occurrence of spousal abuse and other acts of domestic violence. Again, the State also has an interest in insuring that these proceedings are conducted in an economical manner. Interests in informality, flexibility, and economy need not always be sacrificed in order to satisfy due process. Lassiter, 452 U.S. 18, 68 L. Ed. 2d 640, 101 S. Ct. 2153.

In the instant proceedings, it was the court’s role to determine whether petitioner had been abused by a family or household member. (Ill. Rev. Stat. 1987, ch. 40, par. 2312 — 14.) Williams in her petition had alleged defendant had committed several acts of abuse on her. When the court questioned defendant concerning those acts, defendant acknowledged he had struck and pushed Williams on at least one occasion. Under these circumstances, we cannot conclude the presence of counsel at the hearing on the petition for an order of protection would have made a determinative difference.

The protection order was not void for failure to afford defendant due process. Defendant was required to obey that order and was properly found in indirect criminal contempt when he failed to do so. For the reasons stated, the judgment of the circuit court of Champaign County is affirmed.

Affirmed.

McCULLOUGH, P.J., and LUND, J., concur.