author: JUSTICE McNAMARA

text:
    NINA MAGNUS et al., Plaintiffs, v. ROBERT D. BARRETT, Defendant (Tania Meder et al., Plaintiffs-Appellants; Country Mutual Insurance Company, Defendant-Appellee).
    First District (6th Division)
    No. 1—88—2478
    Opinion filed April 27, 1990.
    Modified on denial of rehearing June 12, 1990.
    Fishman & Fishman, Ltd., of Chicago (Ronald S. Fishman, of counsel), for appellants.

      Beverly, Pause, Duffy & O’Malley, of Chicago (Michael W. Rathsack, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs, Tania Heder and Lara Heder, a minor, by Tania Heder, her mother, appeal from the trial court’s entry of judgment in favor of defendant, Country Hutual Insurance Company. After a trial without a jury, the trial court found that plaintiffs were not insureds within the meaning of defendant’s insurance policy and refused to reform the insurance policy. Prior to trial, the trial court also dismissed count IV, the negligence count of the fourth amended complaint.

Plaintiffs’ appeal arises out of an automobile accident which took place on August 22, 1981. On that date, an automobile driven by a defendant, Robert Barrett, collided with a pickup truck driven by another plaintiff, Nina Hagnus. Tania and Lara were passengers in the truck. Nina Hagnus and both Heders were injured. Neither the Barrett automobile nor the Hagnus truck was covered by liability or uninsured motorist insurance.

The truck was owned by Hagnus Farms, Inc. Hagnus Farms is owned and operated by Alexander Hagnus, who is the father of Nina Hagnus and the former husband of Tania Heder. Alexander Hagnus also owns and operates another corporation, Hanteks Company. The two companies owned a number of cars and trucks, all of which were insured by defendant.

In November 1980, Alexander Hagnus purchased a 1980 Chevrolet Chevette which he gave to Tania Heder. Title to the Chevette was held in the name of Hanteks Company. Alexander Hagnus testified that he instructed Tania Heder to obtain insurance on the Chevette from defendant, and suggested that she call George Grenda, an agent for defendant who had serviced his accounts. Tania Heder testified that she contacted Grenda and informed him that she needed insurance for her car. She told him that the automobile was held in Hanteks’ name, but she asked that the vehicle be insured in her name and her household’s name. Grenda replied that as soon as he received her first payment, the car would be insured. Tania stated that she subsequently signed a blank application for insurance at Grenda’s office.

Grenda testified that although he spoke with Tania regarding the insurance, he first was contacted regarding this vehicle by an employee of Hagnus Farms and was instructed to insure the vehicle. Grenda stated that he took notes during this contact as well as during his initial contact with Tania. He then filled out the necessary paperwork, naming Tania as the driver of the vehicle on the application, but naming Manteks as the insured. Grenda stated that he filled out the application and signed Tania’s name as applicant. (Prior to trial, the parties stipulated that Tania came to Grenda’s office to apply for insurance and that she signed the application.)

On December 3, 1980, Tania delivered a money order in the sum of $44.32 to Grenda. She indicated in an accompanying letter that the premium was “to cover three months for car insurance.” The letter also stated that the Chevette being insured was part of a fleet owned by Magnus Farms or Manteks. Shortly after receipt of the first premium, defendant issued its policy. The policy was issued to Manteks and showed Manteks as the insured. Tania made a second premium payment on March 13, 198Í. This premium was accompanied by a letter from her which stated in part as follows:

“I am enclosing a Money Order in the amount of $44.32 to cover three months for my automobile insurance.” (Emphasis added.)

This letter again indicated that the Chevette was part of the Magnus and Manteks fleet. Tania continued to pay the premiums regardless of whether she received premium notices. Premium notices were sent to Manteks.

Grenda stated that he received the two letters from Tania, along with the enclosed premiums. Grenda was aware that title to the vehicle was in a corporate name and that the automobile was to be used by Tania at her home. He testified that he intended to insure the vehicle and to insure Tania because “[i]t is inherent with the policy.” Nonetheless, Grenda noted that he was insuring the business because the business made the initial contact to him and because the business owned the vehicle. That is, he believed that he was insuring a business vehicle and that Tania was the assigned driver. Had he known that she was not an employee of Manteks, he would have approached insuring the vehicle differently. Grenda was unaware that Tania was Alexander Magnus’ ex-wife or that Alexander Magnus had purchased the car as a gift for Tania.

After the policy was issued, Tania complained to Grenda that she was not receiving premium notices. Grenda attempted to rectify this by listing her as a lienholder so that defendant could send a late notice or cancellation notice directly to her home address. Defendant indicated that it would not list Tania as a lienholder because the insurance policy was for liability only, without coverage for comprehensive or collision coverage. No further action was taken with respect to this situation.

The original complaint was filed by Nina Magnus against Barrett and defendant. (The action against Barrett is not involved in this appeal.) The complaint subsequently was amended to include as plaintiffs Tania and Lara Meder. Defendant denied all claims. (Prior to trial, defendant admitted that Nina Magnus was covered under at least one of the policies issued to the residence of Magnus Farms and, therefore, her claims are not at issue in this appeal.) Defendant maintained that the policy did not cover the Meders for any uninsured motorist benefits. In the amended complaint, Grenda was added as a party defendant.

The trial court granted Grenda’s motion to dismiss count IV, the negligence action directed against him. The court found that as an agent for a disclosed principal, Grenda could not be liable for negligence. After a series of motions and the filings of amended complaints, the court also granted defendants’ motion to dismiss the negligence count.

With respect to the Meders, the trial proceeded on count III, a declaratory action seeking uninsured motorist benefits, and count V, an action seeking reformation of the insurance contract. After trial the court entered judgment in favor of defendant on those two counts.

We first address plaintiffs’ contention that the trial court improperly denied their request for reformation of the insurance contract.

Plaintiffs initially urge this court to find that the parties’ subsequent voluntary reformation of the policy after this incident relates back to the initial policy date. We do not view this subsequent policy alteration as a reformation. The alteration was merely a change made in plaintiffs’ coverage upon renewal of the policy which had been in effect at the time of the accident. Moreover, as this argument was not raised in the trial court, it has been waived for purposes of our review and cannot control our resolution of the propriety of the trial court’s determination of the reformation count. See Reeves v. Brno, Inc. (1985), 138 Ill. App. 3d 861, 486 N.E.2d 405.

With respect to that count, we note that reformation permits amendment of an instrument in order to conform it to the actual agreement reached, and, of course, the law of reformation applies to insurance policies. (National Ben Franklin Insurance Co. v. Davidovitch (1984), 123 Ill. App. 3d 88, 462 N.E.2d 696.) When the contracting parties to a policy of insurance have made a mistake and the policy fails to express the written contract between them, and provisions other than those intended are inserted or admitted, equity has the right to grant relief by reformation of the contract. (State Farm Mutual Automobile Insurance Co. v. Hansen (1972), 7 Ill. App. 3d 678, 288 N.E.2d 523.) In cases in which reformation of an insurance contract has been allowed, there typically has been a clear showing of what the plaintiff intended to procure from the defendant insurer and of the latter’s knowledge of that intention, as a result of either express directions from the insured or by knowledge on the part of the insurer of circumstances wholly inconsistent with the provisions of the policy as issued. (Phillips v. Salk, Ward & Salk, Inc. (1974), 20 Ill. App. 3d 359, 314 N.E.2d 262; State Farm Mutual Automobile Insurance Co. v. Hanson (1972), 7 Ill. App. 3d 678, 288 N.E.2d 523; Sedlacek v. Sedlacek (1969), 107 Ill. App. 2d 334, 246 N.E.2d 6; New York Life Insurance Co. v. Rak (1961), 30 Ill. App. 2d 86, 173 N.E.2d 603.) Nonetheless, reformation of a contract should be allowed only when clear and convincing evidence compels the conclusion that the instrument as it stands does not properly reflect the true intention of the parties, and that there has been either a mutual mistake or a mistake by one party and fraud by the other. 319 South La Salle Corp. v. Lopin (1974), 19 Ill. App. 3d 285, 311 N.E.2d 288.

We find that the trial court’s refusal to permit reformation of the insurance contract was manifestly erroneous. Our review of the record reveals that Grenda mistakenly believed he was insuring a company car, one which would not need the type of coverage required for a personal use automobile. He testified that had he known he was insuring a personal use automobile, he would have approached the situation differently. Nonetheless, he believed he was insuring Tania, as the driver of the vehicle, and to that end, listed her as principal driver. In so doing, Grenda intended to and believed he had adequately covered Tania’s vehicle. Tania also intended to obtain adequate coverage for her vehicle. She believed Grenda had written the policy to fully cover her vehicle. She was under the impression that it was proper for the insurance company to name Manteks on the policy because it owned the automobile.

We believe it is clear that both Tania and Grenda thought that the policy, as written, would provide uninsured motorist and liability coverage to Tania. Grenda thought so because he believed that she was an employee of the named insured, and thus would be entitled to that coverage, and Tania thought so because she believed Grenda had properly written the insurance. Grenda and Tania reached a common understanding regarding coverage, but then inaccurately reflected that understanding when reducing the agreement to writing. The policy fails to express the true intent of the parties because each of them was mistaken as to who should be the policy’s insured. In our view, reformation of the insurance policy is the proper remedy in such a situation. See, e.g., State Farm Mutual Automobile Insurance Co. v. Hanson (1972), 7 Ill. App. 3d 678, 288 N.E.2d 523; Beddow v. Hicks (1940), 303 Ill. App. 247, 25 N.E.2d 93.

We note that as written, the policy provides no meaningful coverage in a situation such as the one under our consideration. That is, if, as here, Tania were to be involved in an accident with an uninsured driver, she would not be entitled to uninsured motorist benefits unless she was in the Chevette. Thus, she would be denied coverage if the accident occurred when she was in another vehicle or when she was a pedestrian. Significantly, although the vehicle was insured under Manteks’ name, no one from Manteks used the vehicle, and Tania was not its employee. No one from Manteks would ever seek the benefit of the liability or the uninsured motorist coverage of the policy. And paradoxically, Tania, who paid the premiums, would be unable to do so either. Grenda and Tania each testified that this was not the result that they intended. We find that the trial court improperly refused to grant relief in the form of reformation of the insurance policy. The policy should be reformed to reflect Tania Meder as an insured.

In view of our determination of the reformation issue, we deem it unnecessary to consider plaintiffs’ contention that Tania was an insured under the policy as originally written, or whether the trial court erred in dismissing the negligence count against Country Mutual.

For the foregoing reasons, the judgment of the circuit court of Cook County is reversed and the cause is remanded for further proceedings consistent with these holdings.

Judgment reversed and remanded.

LaPORTA, P.J., and EGAN, J., concur.


source: Caselaw Access Project

author: JUSTICE RAKOWSKI

license: Public Domain

text:
    CALLAGHAN PAVING, INC., Plaintiff-Appellant, v. KEENEYVILLE CONSTRUCTION COMPANY, INC., et al., Defendants (United States Fidelity and Guaranty Company, Defendant-Appellee).
    First District (6th Division)
    Nos. 1—88—2932, 1—88—3628 cons.
    Opinion filed April 27, 1990.
    Burke, Wilson & Mcllvaine, of Chicago (Stephen C. Voris, of counsel), for appellant.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Lawrence R. Moelmann, Nancy G. Lischer, and John E. Partelow, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiff appeals from an order entered by the circuit court of Cook County dismissing its amended complaint pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619), and the denial of its motion for reconsideration. The issue presented on appeal is whether the trial court’s dismissal of plaintiff’s amended complaint and the denial of plaintiff’s motion for reconsideration were reversible error. We affirm on other grounds.

On September 30, 1983, plaintiff entered into a written subcontract with a general contractor, Keeneyville Construction Co., Inc. (Keeneyville), to provide labor and material for the repaving of Ohio Street in Chicago, which was part of a City of Chicago Department of Public Works project.

Work began on or around May 2, 1983, but plaintiffs paving work was not performed until the latter stages of the project. Plaintiff states that October 27, 1983, was initially believed to be the last day that work was performed or materials were delivered. Invoices were submitted to Keeneyville for a total sum of $137,749.50, but plaintiff only received $45,000, leaving a balance due of $92,449.50. Plaintiffs attempts to collect the remaining amount were unsuccessful, and on November 2, 1984, plaintiff filed a notice of a claim for a lien upon the public funds designated for the project pursuant to section 23(b) of the Mechanics’ Liens Act (Ill. Rev. Stat. 1983, ch. 82, par. 23(b)). On January 31, 1985, plaintiff filed a complaint against Keeneyville and the city for an accounting.

On May 20, 1985, which was approximately 19 months after the time that plaintiff thought it had finished its work, the city called a meeting to discuss work still remaining on the project. One of the items discussed was work performed by Commonwealth Edison on its sub-sidewalk electrical vaults along Ohio Street. According to plaintiff’s brief, the city insisted that plaintiff return to the project and perform the work necessary to alleviate the drainage problem or it would not be paid the remaining money that plaintiff claimed it was still owed on the project. On October 11 and 12, 1985, plaintiff performed the work necessary to correct the drainage problem, which included the excavation of approximately 300 square feet of paving that plaintiff had previously installed in 1983 and the installation of four new tons of surface asphalt to regrade the area.

When plaintiff had still not been paid by February 4, 1986, it filed a verified notice of claim upon the performance bond issued by United States Fidelity & Guaranty Co. (USF&G), for the project pursuant to section 2 of the contracts for public works act (Ill. Rev. Stat. 1985, ch. 29, par. 16). On March 12, 1986, plaintiff filed its first amended complaint in which it added USF&G as a defendant and sought to foreclose upon its bond claim in count I of the complaint. Plaintiff had been granted leave of court to amend its complaint against the city, but the record does not contain any evidence that leave of court was ever obtained to add USF&G as a party. Plaintiff’s cause of action against Keeneyville and the city was subsequently resolved, and they are not parties to this appeal. USF&G then filed a motion to dismiss count I under section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619). In its motion, USF&G claimed that plaintiff lost its bond claim rights because it had failed to file its claim “within 180 days after the date of the last item of work or the furnishing of the last item of materials.” (Ill. Rev. Stat. 1985, ch. 92, par. 16.) USF&G claimed that the last day that plaintiff performed work or furnished materials was October 27, 1983, rather than October 11 and 12, 1985, as plaintiff alleges in its first amended complaint. On August 30, 1988, the trial court granted USF&G’s motion. Plaintiff then filed a motion to reconsider. Shortly thereafter, plaintiff filed a notice of appeal but did not pursue the appeal at this time. The trial court subsequently denied plaintiff’s motion to reconsider, and plaintiff filed a second notice of appeal. The prior appeal was consolidated with this appeal.

USF&G raises the issue for the first time on appeal that plaintiff’s claim against it is a nullity, and that this court does not have jurisdiction to address the merits of this appeal. It is undisputed that plaintiff initially filed a complaint against Keeneyville and the City of Chicago on January 31, 1985. Plaintiff subsequently filed a motion and was granted leave to amend its complaint against the city on or before February 21, 1986. However, plaintiff did not file its amended complaint until March 12, 1986, and at that time plaintiff included USF&G as a defendant. Therefore, while it is true that plaintiff requested and received leave of court to file its amended complaint against the city, plaintiff did not request or receive leave to add USF&G as a party.

A plaintiff can only amend a complaint to add a claim against a new party with leave of court. (Petrella v. Leisky (1981), 92 Ill. App. 3d 880, 881-82, 417 N.E.2d 134, 136; George F. Mueller & Sons, Inc. v. Volpe (1979), 74 Ill. App. 3d 879, 880-81, 394 N.E.2d 51, 52.) An amended complaint adding additional parties filed without leave of court is a nullity. Allen v. Archer Daniels Midland Co. (1985), 129 Ill. App. 3d 783, 786, 473 N.E.2d 137, 139; Torley v. Foster G. McGaw Hospital (1983), 116 Ill. App. 3d 19, 23, 452 N.E.2d 7, 10.

The main argument raised by plaintiff is that USF&G waived this issue not only by its failure to raise the issue before the trial court, but also because it was served, appeared and participated in the litigation for more than two years. However, the cases cited by plaintiff in support of its waiver argument refer to the waiver of defects in the form or substance of a complaint. (See Zelinski v. Security Lumber Co. (1985), 133 Ill. App. 3d 927, 479 N.E.2d 1091; Walter E. Heller & Co. v. Convalescent Home of the First Church of Deliverance (1977), 49 Ill. App. 3d 213, 365 N.E.2d 1285.) Plaintiff does not cite any authority which supports the position that an objection to an amendment adding a party without leave of the court can be waived.

Unlike errors in pleadings which can be waived, a pleading filed without leave of court must be disregarded on review. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962, 968, 447 N.E.2d 1358, 1362.) Because the error is jurisdictional, the issue can be raised by a reviewing court sua sponte, and it is not waived if a party fails to raise it in the court below. Torley, 116 Ill. App. 3d at 23, 452 N.E.2d at 10; Village of Lakewood, 113 Ill. App. 3d at 967-68, 447 N.E.2d at 1361.

Plaintiff also argues that Torley should not be used for the proposition that USF&G can raise the issue of jurisdiction for the first time on appeal because the decision in Torley was based on former section 21.1 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 21.1), now section 2 — 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 402), as opposed to former section 26 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 26), now section 2 — 407 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2 — 407). However, the Torley court addressed this question and held that the principle was the same under either statute and that a complaint could not be amended to add an additional party without leave of court. Torley, 116 Ill. App. 3d at 22-23, 452 N.E.2d at 9-10.

We conclude that plaintiff’s amendment to its complaint adding United States Fidelity & Guaranty Co. as a defendant without leave of court was a nullity, and it must be disregarded on review. For this reason, we are unable to address the remaining issue of this appeal.

Accordingly, the order of the circuit court is affirmed.

Affirmed.

McNAMARA and CERDA, JJ., concur.


author: JUSTICE RAKOWSKI JUSTICE McNAMARA,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICARDO PENSON, Defendant-Appellant.
    First District (6th Division)
    No. 1—88—3009
    Opinion filed April 27, 1990.

      McNAMARA, J., specially concurring.
    Seyfarth, Shaw, Fairweather & Geraldson, of Chicago (Stephen L. Golan, Thomas Dent, and Brent I. Clark, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Catherine Bernard, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

After defendant Ricardo L. Penson entered a plea of guilty to five counts of deceptive practice, he was sentenced to felony probation and ordered to pay restitution to the complaining bank. Subsequently, he was found guilty of indirect criminal contempt for making a willful misrepresentation to the court at the time of the plea agreement and for willful refusal to comply with the conditions of probation. He was sentenced to the Cook County Department of Corrections for 30 days.

Although defendant lists eight issues on appeal, we find two to be dispositive: (1) whether the State failed to prove beyond a reasonable • doubt that defendant’s misrepresentation was willful and therefore' constituted indirect criminal contempt of court; and (2) whether the court erred in failing to give defendant an opportunity to purge his contempt. We reverse.

On May 8, 1985, the court accepted Penson’s plea expressly conditioned upon the truth of his representation that he had wired $5,200 through a Texas bank to the victim bank. When questioned, Penson testified that he had authorized the wire transfer with his secretary in his Dallas office. He stated that his secretary had confirmed the transfer and had given him the bank receipt number, the time, and the name of the woman at the Federal Reserve Bank who took the order.

The court placed Penson on 30 months’ probation and ordered him to pay restitution of $492 per month. The conditions of probation included: “Defendant states he wired $5,200 to United National Bank on May 7, 1985 at 1:57 p.m.”

On January 14, 1986, the State filed a petition for violation of probation alleging that Penson had not paid the last two monthly payments and that the bank had not received the $5,200. The petition stated further that Penson was subject to various charges including contempt of court.

A violation of probation/contempt hearing was held on August 21, 1986. Penson testified that on May 9, 1985, he discovered the wire transfer of $5,200 had not occurred and immediately authorized two other transfers of $610 and $800. However, at the time of the hearing, more than one year and three months later, the bank had not yet received all of the $5,200 payment.

The trial court held that Penson’s misrepresentation, that he had wired the money to the bank, was willful and that he had failed to comply with the order of restitution. The court sentenced Penson to a term of 30 days.

Penson appeals.

Meanwhile, his probation for the initial offense was terminated August 31, 1988. That termination states: “Restitution paid in full per letter of release.”

I

Penson’s first issue on appeal is whether the State failed to prove beyond a reasonable doubt that he had made a willful misrepresentation.

In criminal contempt cases, the State must prove the element of knowledge or willfulness. (People v. Sheahan (1986), 150 Ill. App. 3d 572, 574, 502 N.E.2d 48, 50.) A finding of willful contempt is a matter of fact and “will not be disturbed on appeal unless there is a clear abuse of discretion.” People ex rel. Hartigan v. Jansen (1986), 151 Ill. App. 3d 208, 213, 502 N.E.2d 1129, 1133.

For this finding, guilt must be proved beyond a reasonable doubt. (Jansen, 151 Ill. App. 3d at 213, 502 N.E.2d at 1133.) When a reviewing court must consider whether the State met its burden of proof, “ ‘the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472, quoting Jackson v. Virginia (1979), 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573-74, 99 S. Ct. 2781, 2788-89.

Defendant contends that the State did not prove he had willfully misrepresented facts to the court. At the plea hearing, Penson entered into an agreement which was expressly conditioned upon the fact that he had already wired $5,200 to the victim bank. Upon questioning, Penson testified that he had not personally wired the money but had authorized his secretary in Texas to complete the transfer and had obtained a receipt number and other information to indicate that the transfer had occurred. Thus, he testified that he believed the money had been sent but did not truly know because he was relying on information from his secretary. The State did not present any direct evidence showing that Penson knew the money had not been sent at the time of the hearing.

Penson claims that when he discovered the money had not been transferred as he believed, he sent $1,410 to the bank. By the time of the contempt hearing, however, he had paid only $4,610 out of over $19,000 owed.

The trial court found that Penson’s misrepresentation at the plea hearing was willful. Looking at the court testimony, however, it appears that Penson stated his belief, held in good faith, that money had been wired by his secretary. This belief proved erroneous. The fact that Penson told the court his erroneous belief does not prove that he willfully misrepresented facts to the court. While the record may tend to prove that Penson willfully refused to comply with the conditions of his probation, it is devoid of evidence which would tend to show that his misrepresentation was willful.

Furthermore, while Pensons’ willful refusal to comply with conditions of probation may constitute civil contempt, we do not believe, based on our discussion of the next issue, that his actions rose to the level of indirect criminal contempt.

For these reasons, we hold that the State failed to meet its burden of proving that Penson’s misrepresentation was willful.

II

Penson also argues that the trial court erred when it failed to allow him to purge his contempt by paying the money owed, which is proper procedure in cases of civil contempt.

Contempt of court is “any act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity.” (People v. Gholson (1952), 412 Ill. 294, 298, 106 N.E.2d 333, 335.) Criminal contempt is action directed against the dignity or authority of the court, and civil contempt is failure to obey a court’s order for the benefit of an opposing party in a civil action. (Gholson, 412 Ill. at 298, 106 N.E.2d at 336.) Consequently, criminal contempt sanctions preserve the dignity of the court and civil sanctions aim to enforce rights of private parties and to compel obedience to orders. (In re Marriage of Wilde (1986), 141 Ill. App. 3d 464, 469, 490 N.E.2d 95, 98-99.) Since imprisonment for civil contempt is coercive in purpose, it can usually be avoided by compliance with the court’s orders. Hoga v. Clark (1983), 113 Ill. App. 3d 1050, 1058, 448 N.E.2d 196, 201.

Classifying a particular action as criminal or civil is often difficult because many cases involve elements of both. (Gholson, 412 Ill. at 298-99, 106 N.E.2d at 336.) The test for classifying contempt is the totality of circumstances as these influence the court’s purpose to either punish the defendant or coerce his compliance with a court order. (See People v. Marcisz (1975), 32 Ill. App. 3d 467, 471-72, 357 N.E.2d 477, 479.) Generally, for instance, imprisoning a party for failure to pay money is not solely for the purpose of punishing the contemnor, but also to force payment. Sullivan v. Sullivan (1973), 16 Ill. App. 3d 549, 552, 306 N.E.2d 604, 606.

Courts have found that violation of probation in the form of failure to pay costs or restitution can be treated as civil contempt. (People v. Mowery (1983), 116 Ill. App. 3d 695, 701, 452 N.E.2d 363, 368; People v. Bertalot (1988), 164 Ill. App. 3d 89, 92-93, 518 N.E.2d 465, 469.) The Unified Code of Corrections also provides a mechanism for enforcing payment of criminal penalties through civil contempt. Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 9—3(a), (b).

The court sentenced Penson both because he made a willful misrepresentation to the court, an act against the court’s dignity, and because he failed to make restitution to the victim. Our analysis here has concluded that the court did not have sufficient evidence to support a conviction for the first reason. Furthermore, an examination of the above-cited authorities leads us to conclude that Penson’s failure to abide by the court order of restitution is best characterized as civil contempt.

Once contempt has been classified as civil, then the contemner “holds the keys to the cell” in his pocket, i.e., he has the power to purge his contempt by obeying the court order. (In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 281, 545 N.E.2d 731, 734.) The “key” in a case with restitution is full payment of whatever is due. (Mowery, 116 Ill. App. 3d at 702, 452 N.E.2d at 368.) This key frees the contemnor even if the payment is part of a criminal sentence. Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 9—3(a), (b); Bertalot, 164 Ill. App. 3d at 93, 518 N.E.2d at 469.

Since Penson has paid his restitution in full, his contempt has been purged.

For these reasons, we reverse.

Judgment reversed and sentence vacated.

LaPORTA, P.J., concurs.

JUSTICE McNAMARA,

specially concurring:

I concur with the majority’s holding vacating the 30-day imprisonment sentence. I differ, however, with the majority in several other respects.

The majority avoids upholding the 30-day sentence by finding insufficient proof of wilfulness for the criminal contempt and by finding sufficient purging for the civil contempt. I agree that the 30-day sentence should not be upheld, but I rest my decision on a different basis. I believe that wilfulness for the criminal contempt was established, but that since defendant already served 16 days in jail for the underlying charge, I would vacate the 30-day sentence after finding that sufficient punishment in relation to this case has been imposed.

Criminal contempt concerns the dignity and authority of the court. A party acts in disrespect of the court or its process. The act tends to bring the court into disrepute or to obstruct the administration of justice. (People v. Gholson (1952), 412 Ill. 294, 106 N.E.2d 333; People v. Redlich (1949), 402 Ill. 270, 83 N.E.2d 736.) In the present case, the court clearly and consistently indicated over a long period of time that it was singularly concerned with defendant’s disrespect of the judicial process, obstruction of the administration of justice through that process, and the manner in which defendant’s conduct reflected on the court’s dignity and authority.

Defendant testified at the violation of probation hearing that he did indeed have possession of the money on May 7, and again on May 13, 1985. The $5,200 consisted of a check made out to defendant, which came from an account belonging to defendant and his wife. He testified that he “physically got hold of the check.” When defendant discovered the bank had not received the $5,200 on May 7, 1985, instead of wiring the same amount, incredibly he sent “whatever money was available,” which turned out to be $610 and $800. The bank suggested he pay the $5,200 through the adult probation officer. Defendant did not do so “because at that time probation was *** non-reporting.” Moreover, defendant also decided after the probation hearing that he should not have to pay the bank the full $5,200, because the bank had since debited his account in the amount of $2,365. Thus, he did not pay the bank or the probation officer because he believed “the money was not well accounted for and since [the bank was] not willing to speak to me I was just waiting until I got to court.”

Defendant testified further that he never paid the $5,200 on or near May 8, 1985, because he needed the money for other things. He “did not have the money anymore because I had to pay some debts also from that money.” He had to make payments to the IRS, to his parents, and to a bank in Cincinnati.

This testimony refutes the majority’s holding that defendant’s misrepresentation at the plea hearing merely reflected a mistaken belief that his secretary had wired the money and that his conduct was not wilful. Indeed, these facts demonstrate that the trial court acted properly in finding defendant guilty of indirect criminal contempt.

Defendant’s actions both at the May 8 hearing and immediately thereafter constituted conduct which tends to bring the court into disrepute. It virtually ignored the court’s authority, the meaning of sworn testimony, and the purpose underlying the judicial process. Defendant’s decision to use the money for other purposes instead of making certain the bank received the money reflected directly on the court’s dignity and authority. Defendant permitted the court to become a party to a meaningless, artificial probation proceeding. In addition to the probation order entered on May 8, 1985, the continuing status of probation rested upon a sworn promise that the money was being transmitted to the bank, which promise defendant casually and flagrantly ignored, even though he had the funds to comply. Defendant’s conduct, as set forth above, constituted indirect criminal contempt of court. Moreover, these facts establish that the State proved wilfullness beyond a reasonable doubt.

Nor did defendant’s eventual payment entitle him to be purged of that contempt. The record is clear that civil contempt is not involved. Civil contempt is a process to secure obedience to a judgment or to coerce a party into obeying a court order which incidentally benefits another party. (People ex rel. Scott v. Police Hall of Fame, Inc. (1979), 69 Ill. App. 3d 501, 387 N.E.2d 856; Eberle v. Greene (1966), 71 Ill. App. 2d 85, 217 N.E.2d 6.) The trial court, in finding defendant guilty of contempt, was not trying to secure obedience to a judgment or to coerce him to obey an order. The trial court found that defendant was “in indirect criminal contempt of court by [his] wilful refusal to comply and by making a wilful representation to this court.” The facts amply support the court’s finding.

Notwithstanding my belief that defendant was proved guilty of indirect criminal contempt, I agree with the majority that the 30-day sentence imposed should be vacated. I believe that the 16 days defendant has served in jail are sufficient punishment.


text:
    CARL SANDBURG VILLAGE CONDOMINIUM ASSOCIATION NO. 1 et al., Plaintiffs, v. FIRST CONDOMINIUM DEVELOPMENT COMPANY et al., Defendants (Eagle II et al., Third-Party Plaintiffs-Appellants; Wiss, Janney, Elstner and Associates, Inc., Third-Party Defendant-Appellee).
    First District (6th Division)
    Nos. 1—88—3253, 1—88—3380 cons.
    Opinion filed April 27, 1990.
    Rehearing denied May 30, 1990.

      Portes, Sharp, Herbst & Kravets, Ltd., and Jenner & Block, both of Chicago (David I. Herbst and Richard J. Gray, of counsel), for appellants.
    Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (Laurie A. Siwek, Nancy G. Lischer, and Robert P. Conlon, of counsel), for appellee.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this consolidated appeal is an order entered by the circuit court of Cook County, dismissing count II of both amended third-party complaints which alleged a cause of action for contribution. The issue presented on appeal is whether the third-party plaintiffs have a right to contribution if found in violation of the Consumer Fraud and Deceptive Business Practices Act (Consumer Fraud Act) (Ill. Rev. Stat. 1987, ch. VZV-lz, par. 261 et seq.).

Carl Sandburg Village is a residential development in Chicago which includes several high-rise apartment buildings. The buildings were operated as rental property until their conversion to condominiums in 1979. Shortly before the conversion, Eagle II, an Illinois general partnership, purchased four of the buildings and hired First Condominium Development Co. (First Condominium) to execute the conversion of the property. As part of this process, First Condominium was responsible for improvements and repairs, the selection of contractors as well as the inspection, supervision and approval of the work performed. One of the contractors hired was Wiss, Janney, Elstner and Associates, Inc. (Wiss, Janney), a consulting engineering firm, which was retained to review shop drawings, test materials and monitor the progress and quality of the concrete repair work.

Carl Sandburg Village Condominium Association No. 1 (Association 1) is a corporation consisting of the unit owners of buildings C and D, and Carl Sandburg Village Condominium Association No. 2 (Association 2) is a corporation consisting of the unit owners of buildings A and B. Once the conversion occurred, the associations assumed responsibility for the maintenance and management of the common elements of their respective buildings.

As each unit was purchased, the owners comprising Associations 1 and 2 entered into a written agreement with Eagle II and First Condominium which provided that, prior to October 1, 1980, Eagle II and First Condominium would make certain of improvements and repairs including those items identified in the architectural/engineering reports that were prepared as part of the conversion. However, on March 29, 1984, a multicount class action suit was filed by the associations against several defendants including Eagle II and First Condominium alleging several wrongs and injuries including their failure to perform certain repairs and improvements on the converted buildings or the performance of these repairs in a defective manner. The wrongs and injuries germane to this appeal were the alleged deficiencies in the concrete repairs which First Condominium hired Wiss, Janney to monitor and supervise. In the primary complaint plaintiffs sought recovery under numerous common-law and statutory theories. In April 1988, Eagle II and First Condominium (third-party plaintiffs) filed separate amended third-party complaints against Wiss, Janney. In count II of both complaints, third-party plaintiffs sought contribution for any judgment entered against them under several of the theories of recovery advanced by plaintiffs. Wiss, Janney filed a motion to dismiss count II of the amended third-party complaints, and the trial court granted the motion regarding some of the theories of recovery in the contribution counts and denied the motion regarding other theories. The theories of recovery in the contribution counts dismissed by the trial court which are relevant to this appeal were third-party plaintiffs’ claims for contribution if found liable for fraudulent misrepresentation or for violations of the Consumer Fraud Act. Following the partial dismissal of both contribution counts, the trial court entered an order finding that there was no just reason to delay enforcement or appeal of the order.

Third-party plaintiffs appealed the dismissal of their contribution claims relating to the Consumer Fraud Act and fraudulent misrepresentation, and the appeals were consolidated. Thereafter, Wiss, Janney filed a motion to dismiss the appeal for lack of jurisdiction, alleging that the partial dismissal of third-party plaintiffs’ contribution counts was not a final order. The third-party plaintiffs filed an objection, and the motion was taken with the case.

Supreme Court Rule 304(a) authorizes appeals from orders of the trial court that do not dispose of the entire controversy if there is an express written finding by the trial judge that there is no just reason to delay enforcement or appeal. (107 Ill. 2d R. 304(a); Waste Management v. Environmental Protection Agency of Illinois, Inc. (1985), 137 Ill. App. 3d 619, 625, 484 N.E.2d 1128, 1132.) However, the fact that an order contains the required language does not make an otherwise nonfinal order appealable. (Metzger v. Fitzsimmons (1988), 175 Ill. App. 3d 674, 675, 529 N.E.2d 1179, 1180; McGrew v. Heinold Commodities, Inc. (1986), 147 Ill. App. 3d 104, 108, 497 N.E.2d 424, 428.) An order is considered final if it disposes of the rights of the parties either on the entire controversy or some definite and separate portion of the subject matter. (Hull v. City of Chicago (1987), 165 Ill. App. 3d 732, 733, 520 N.E.2d 720, 721; Mar Cement, Inc. v. Diorio Builders, Inc. (1987), 153 Ill. App. 3d 798, 802, 506 N.E.2d 381, 384.) Generally, the controlling factor in determining whether an order appealed under Supreme Court Rule 304(a) is a final order is whether “the bases for recovery under the counts that are dismissed are different than those under the counts left standing.” Heinrich v. Peabody International Corp. (1984), 99 Ill. 2d 344, 348, 459 N.E.2d 935, 938.

In the instant case, third-party plaintiffs presented their contribution claims in a single count. Therefore, the trial court’s dismissal of only a portion of this count would not generally be a final order. However, the controversy arises in this case because the allegations of the contribution claims are based on the separate theories of recovery advanced by plaintiffs in the primary action. At issue in this appeal are the contribution claims relating to the Consumer Fraud Act. The arguments of both parties regarding the finality of the dismissal order have merit. However, for reasons set forth below, we conclude that even if the order were final, the trial judge’s entry of a Rule 304(a) finding was an abuse of discretion. For this reason, we deny the motion to dismiss the appeal. However, we limit this determination to the facts of this case.

The third-party plaintiffs contend that it was improper for the trial court to dismiss their contribution claims relating to the Consumer Fraud Act. They argue that, contrary to the trial court’s finding, a violation of the statute is not an intentional tort.

In order to establish a violation of the Consumer Fraud Act, a party must show a deceptive act or practice, an intent by the defendant that the plaintiff rely on the deception and that the deception occurred in the course of conduct involving a trade or commerce. (Wheeler v. Sunbelt Tool Co. (1989), 181 Ill. App. 3d 1088, 1109, 537 N.E.2d 1332, 1346.) Wiss, Janney argues that the intent that a plaintiff rely on the deception is the same as the intent to deceive and which would mean that the statute is an intentional tort.

In Warren v. LeMay (1986), 142 Ill. App. 3d 550, 491 N.E.2d 464, the court reviewed a judgment in plaintiff’s favor and against Orkin Exterminating Company (Orkin) and Century 21-Baebler Realtors for damage to their home from termite infestation. One of the issues addressed by the court was Orkin’s contention that it could not be found liable under the Consumer Fraud Act because it did not intend to deceive the plaintiff. The court held that the intent to deceive was not an element of the statute and that “[b]y its own terms, the statute requires only that a violator intend for a purchaser to rely on his acts or omissions. A party is considered to intend the necessary consequences of his own acts or conduct.” The LeMay court also stated that a violator’s good or bad faith was not important, and that even innocent misrepresentations may be actionable. LeMay, 142 Ill. App. 3d at 566, 491 N.E.2d at 474.

In making a determination as to whether specific conduct violates the Consumer Fraud Act, “[T]he center of focus in such matters is not on the intent of the seller but, rather, on the effect that the unlawful conduct might have on the consumer.” (People ex rel. Hartigan v. Stianos (1985), 131 Ill. App. 3d 575, 579, 475 N.E.2d 1024, 1027.) Furthermore, the court in General Motors Acceptance Corp. v. Grissom (1986), 150 Ill. App. 3d 62, 65, 501 N.E.2d 764, 765, held that a plaintiff need not establish all of the elements of fraud. There is also a recognition that the terms of the Consumer Fraud Act are not capable of precise definition, and whether a practice is unfair or deceptive must be decided on a case by case basis. (Scott v. Association For Childbirth At Home, International (1981), 88 Ill. 2d 279, 290, 430 N.E.2d 1012, 1018; Stianos, 131 Ill. App. 3d at 581, 475 N.E.2d at 1028.) Furthermore, section 11a of the statute expressly provides that, “This Act shall be liberally construed to effect the purposes thereof.” Ill. Rev. Stat. 1987, ch. 121V2, par. 271a; LeMay, 142 Ill. App. 3d at 563, 491 N.E.2d at 471.

Applying this reasoning to the instant case, the “intent” required by the statute is only the intent that plaintiffs in the primary action rely on the information that defendants gave them, as opposed to any intent on defendants’ part to deceive. Furthermore, to limit the application of the statute to intentional acts of deception would be contrary to the legislative purpose. We thus conclude that a violation of the Consumer Fraud Act may be based on an innocent or negligent misrepresentation as well as one that is intentional. In addition, this determination must be made before a party’s right to contribution for his liability under the Consumer Fraud Act can be decided.

In this case, a determination has not been made as to whether the liability of the defendants in the primary action is based on conduct which is intentional, negligent or innocent. If they are found liable under the statute, and, in a third-party action, their misrepresentations are found to be intentional, the third-party plaintiffs will not have a right to contribution for violations of the statute. However, if their misrepresentations are found to be the result of negligent or innocent conduct, the third-party plaintiffs may still have a cause of action for contribution against Wiss, Janney. Therefore, the trial court’s finding that the third-party plaintiffs did not have a right to contribution for liability under the Consumer Fraud Act was premature, and the entry of the Rule 304(a) finding was an abuse of discretion. See Fleetwood Development Corp. v. Northbrook Property & Casualty Insurance Co. (1988), 172 Ill. App. 3d 83, 85-86, 526 N.E.2d 381, 383.

Wiss, Janney further contends, without merit, that the third-party plaintiffs do not have a right to contribution for violations of the Consumer Fraud Act, pursuant to the reasoning of Hopkins v. Powers (1986), 113 Ill. 2d 206, 210, 497 N.E.2d 757, 759, that a person is not “subject to liability in tort” where the liability is grounded in a statute which proscribes conduct not actionable at common law. However, based on this premise, third-party plaintiffs could have a right to contribution where portions of the Consumer Fraud Act proscribe conduct which is actionable at common law.

Accordingly, we conclude that dismissal of the contribution claims related to the Consumer Fraud Act was error. Therefore, we reverse the order of the circuit court and remand for further proceedings.

Reversed and remanded.

LaPORTA, P.J., and McNAMARA, J., concur.

       After both appellants filed their briefs, the Illinois Supreme Court held that there was no right to contribution for an intentional tort. (Gerill v. Jack L. Hargrove Builders, Inc. (1989), 128 Ill. 2d 179, 538 N.E.2d 530.) Following this decision, both appellants conceded this issue.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE E. PHELPS, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0576
    Opinion filed April 27, 1990.
    Rehearing denied June 5, 1990.

      Donald Hubert & Associates, of Chicago (Donald Hubert, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Maria McCarthy, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McNAMARA

delivered the opinion of the court:

After a jury trial, defendant, Willie Phelps, was found guilty of attempted murder and aggravated battery. The trial court sentenced defendant to a 10-year term of imprisonment. On appeal, defendant contends that the trial court abused its discretion in denying his motion for a continuance to obtain new counsel.

On October 21, 1987, defendant was arrested for the September 26, 1987, shooting of Robert Morris and was charged with attempted murder and aggravated battery. On the following day, the public defender’s office was appointed to represent defendant. Defendant was released on bond.

On November 12, 1987, defendant was arraigned, and on November 20, 1987, he made his first appearance before the trial court. After being represented by the public defender’s office for eight months, defendant retained private counsel, who withdrew five weeks later. Defendant again was represented by the public defender’s office for the next six months.

On February 7, 1989, the case was again called for trial. It had been active for 14 months and had been continued 17 times during that period of time. On February 7, the prosecutor indicated that defendant wished new counsel.

“DEFENSE COUNSEL: This is Willie Phelps, Debra Neisen Public Defender.
THE COURT: This is the matter set for trial today. Will the State be ready?
STATE’S ATTORNEY: Judge, last night I received a call from Attorney Glen Maslowski, who indicated he had talked to defendant. He was going to file an appearance on his behalf, he was for a date for Friday.
THE COURT: This case is set for trial, it is a priority case and it is set for trial today. It is one of the oldest cases on the court call, it is going ahead today.
* * *
DEFENSE COUNSEL: The other thing is, Mr. Phelps told me he wants Mr. Maslowski to represent him.
THE COURT: This case has been pending[,] Mr. Phelps[,] in the criminal division. You had an attorney that withdrew, now you have the Public Defender. It has been pending here since November of ’87, it is one of the oldest cases on my call. This attorney indicates he was coming in here to represent you?
DEFENDANT: He didn’t say.
STATE’S ATTORNEY: Judge, the attorney called up our office yesterday, he spoke to Mr. Eberhart. Mr. Eberhart related to me that he realized the case was up today. He told us he had been in touch with Mr. Phelps, and he was asking the case be passed until Friday at which time he would be here to file his appearance on behalf of the Defendant.
THE COURT: That is not sufficient, it is for trial today. The attorney has not contacted the Court directly and indicated that he will be ready. The Court’s call is heavy, if we delay the case we won’t be able to get another date until late March or April. Let’s bring in the jury then, we will proceed with the selection of the jury today.”

It was indicated that the State also wanted a continuance to obtain the appearance of a witness. The trial proceeded, however, with the assistant public defender representing defendant. Defendant contends that the trial judge’s refusal to grant him a continuance in order to retain counsel of his own choice requires reversal. In view of the nature of the argument, it is unnecessary to set forth the facts adduced at trial.

Initially, the State maintains that the issue is waived because defendant failed to include the issue in his post-trial motion. The motion referred to a due process error generally. Moreover, the issue involves a substantial right to counsel of one’s choice. (Powell v. Alabama (1932), 287 U.S. 45, 77 L. Ed. 158, 53 S. Ct. 55.) We will, therefore, address the merits of the issue. See 107 Ill. 2d R 615(a).

The right to choose one’s own attorney is limited (People v. Solomon (1962), 24 Ill. 2d 586, 182 N.E.2d 736), and that right must be balanced against the equally, desirable public need for the efficient and effective administration of criminal justice. (People v. Aloian (1982), 105 Ill. App. 3d 694, 434 N.E.2d 768.) The right to choose one’s counsel may not be used as a weapon to indefinitely thwart the administration of justice or impede the effective prosecution of crime. (People v. Myles (1981), 86 Ill. 2d 260, 427 N.E.2d 59.) Whether the right to counsel of choice interferes unreasonably with the administration of justice depends on the facts in each case. (People v. Langdon (1979), 73 Ill. App. 3d 881, 392 N.E.2d 142.) Unless defendant has shown good cause, the trial court has the discretion to deny a request for substitute counsel. (People v. Washington (1968), 41 Ill. 2d 16, 241 N.E.2d 425; People v. Gornick (1982), 107 Ill. App. 3d 505, 437 N.E.2d 892.) Moreover, the court must consider the diligence shown by the movant when evaluating a motion for a continuance. (People v. Friedman (1980), 79 Ill. 2d 341, 403 N.E.2d 229.) Where a request for a continuance is denied, this court will not disturb that decision absent an abuse of discretion. People v. Friedman, 79 Ill. 2d 341, 403 N.E.2d 229.

In People v. Winfield (1987), 160 Ill. App. 3d 983, 513 N.E.2d 1032, this court upheld the trial court’s denial of defendant’s motion for a continuance to obtain new counsel where the request was made on the day of trial, no dissatisfaction was expressed with the public defender’s office during the time prior to trial, the court had already granted 10 continuances, thus causing the 41/2-month delay until trial, and defendant failed to make any showing of good cause as to why change of counsel was required.

Similarly, in the present case we find that the trial court acted within its discretion in denying the motion for a continuance to substitute counsel. The request was made on the day of trial. Significantly, defendant was out on bond during the 14-month period. Defendant’s new counsel did not contact the court to request a continuance. Nor did he make an appearance. Neither defendant nor the assistant public defender indicated that defendant was dissatisfied with the public defender’s office. In fact, defendant was represented by the public defender for almost the entire 14 months, except for a few weeks when a private attorney represented him. Thus, defendant failed to show good cause as to why a change of counsel was necessary. It was not unreasonable to infer that the request was an attempt to further delay the trial of defendant, who had been out on bond for 14 months.

Moreover, the case was one of the oldest on the trial court’s docket. It had been on the court’s call 17 times in a 14-month period. On two of the occasions, defendant failed to appear in court. The efficient administration of justice does not permit repeated delays by requesting new counsel on the day of trial. (See People v. Koss (1977), 52 Ill. App. 3d 605, 367 N.E.2d 1040.) Nor is our decision affected by the fact that the State also wished to have the matter continued.

In addition, defendant has failed to show he suffered any prejudice as a result of the court’s denying the motion for a continuance to obtain new counsel. Defendant does not contend he received ineffective assistance of counsel. The record reveals that defendant received representation which met the standards of the legal community. The assistant public defender effectively cross-examined the witnesses, exposing any weaknesses in the State’s case. Moreover, defense counsel was successful in having the court grant defendant’s motion for a directed verdict on two of the four counts. See Brown v. United States (D.C. Cir. 1959), 264 F.2d 363.

Defendant relies on United States v. Seale (7th Cir. 1972), 461 F.2d 345, for the proposition that the trial judge must inquire into defendant’s reasons for requesting a continuance to obtain new counsel. Seale, however, involved a defendant whose chosen counsel was having surgery, and the only attorneys present were merely acting as local counsel in accordance with court rule. Thereafter, the trial court denied defendant’s request to proceed pro se. The reviewing court pointed out that at the first and second hearings on the motion for a continuance, defendant was absent because he was incarcerated in California. Moreover, the local counsel, who had filed unauthorized appearances, were merely making a limited appearance and were engaged only in pretrial work. The court emphasized that defendant unexpectedly found himself without chosen trial counsel. (461 F.2d at 358.) The present case is clearly distinguishable.

Generally, the trial court is not required to inquire into a defendant’s reasons for desiring new counsel. People v. Washington, 41 Ill. 2d 16, 241 N.E.2d 425 (court notes that defendant failed to state any particular need for changing counsel); People v. Winfield, 160 Ill. App. 3d 983, 513 N.E.2d 1032 (court notes that defendant failed to make any showing of good cause as to why the change of counsel was necessary).

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

Judgment affirmed.

LaPORTA, P.J., and RAKOWSKI, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THERIAL BYNUM, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0701
    Opinion filed April 27, 1990.

      Massucci, Blomquist, Brown & Judson, of Arlington Heights (Douglas A. Judson, of counsel), for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Terence M. Madsen and William P. Pistorius, Assistant Attorneys General, of Chicago, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was convicted of conspiracy to commit the offense of kickbacks in violation of section 8A — 3(b) of the Illinois Public Aid Code (Ill. Rev. Stat. 1985, ch. 23, par. 8A — 3(b).) Defendant was sentenced to one year of probation, $5,000 restitution and 100 hours of community service. The issues presented on appeal are: (1) whether the statute under which defendant was convicted was unconstitutionally vague and (2) whether his conduct was proscribed by the statute.

Defendant, Dr. Therial Bynum, was a licensed medicaid provider who operated a medical practice on the northside of Chicago. According to defendant’s brief, the majority of his patients were medicaid recipients. Scott Deubel, a medical fraud investigator for the Illinois State Police Department, testified at defendant’s trial that he investigated the business relationship between defendant and Gran-Cal clinical laboratory, which was owned and operated by Oscar and Fe Millare. Deubel stated that between January and June 1985, defendant sent around 85% of his medical specimens to Gran-Cal laboratory for testing. From July to December 1985, defendant sent all of his specimens to Gran-Cal, and from January to June of 1986, Gran-Cal received 92% of defendant’s specimens. According to Deubel’s testimony, defendant informed him that he was approached by Oscar Millare in August of 1985, and that Millare offered to pay defendant’s receptionist a salary of $550 a month if defendant would do business with Gran-Cal. Defendant entered into an agreement with Gran-Cal and hired Lettie Sims as his receptionist. Defendant also told Deubel that beginning in January 1986, he was approached on several occasions by Fe Millare, who offered to pay defendant $10 a day for every day he sent the laboratory four or more health profiles, $5 for every ultrasound and $2 for each EKG. Defendant told Deubel that he responded to Millare’s offer by telling her that he would order tests that were needed, and he denied accepting money from her. Defendant stated that he stopped doing business with Gran-Cal in September 1986, when the laboratory informed him that it would no longer pay the salaries of Sims and another receptionist who had also been hired under the same financial agreement between Millare and defendant.

Oscar Millare testified that he worked as a sales representative for Gran-Cal laboratory, and that in August of 1985, defendant asked Millare to pay the salary of defendant’s receptionist in exchange for defendant’s use of Gran-Cal’s laboratory services. Millare also stated that several months later defendant requested another receptionist under the same arrangement and hired Jocelyn Riley. Millare paid the salaries of Sims and Riley but did not supervise their performance. Millare also testified that he gave defendant approximately $3,000 as a loan for moving expenses.

Fe Millare testified that she was president of Gran-Cal and Oscar Millare’s former wife. She acknowledged that she had falsified physician requisition and billing forms by adding testing procedures and billing the Department of Public Aid. She also corroborated the former testimony of Deubel and Oscar Millare regarding defendant’s financial arrangement with Gran-Cal. In March of 1986, Fe Millare told defendant that she had a problem with the Department of Public Aid and asked him to alter his records to match the billing records of Gran-Cal, which defendant agreed to do. Fe Millare also testified that defendant accepted cash payments for ordering additional laboratory tests. Both Fe and Oscar Millare pleaded guilty to soliciting and paying kickbacks.

Jocelyn Riley testified that she began working for defendant in October of 1985, and that her duties included greeting patients, taking medical histories, filling out forms, filing charts, weighing and taking patients’ temperatures and sweeping the offices. Although Riley performed these tasks for defendant, her salary was paid by Gran-Cal.

Defendant testified that he offered to send his specimens to Gran-Cal for laboratory analysis. He stated that, although the salaries of Sims and Riley were paid by Gran-Cal, the Millares never asked for anything in return. In April 1986, Fe Millare told defendant that Oscar Millare had been falsifying the billing to the Department of Public Aid. Defendant stated that he was appalled when she asked him to alter his records to correspond with those of the laboratory, and he refused to do so. Defendant also claimed that he refused to accept any cash payment to order additional testing.

On cross-examination, defendant acknowledged that he never repaid Oscar Millare the money loaned to him for moving expenses. He also testified that, although he knew in April of 1986 that Gran-Cal was falsifying bills sent to the Department of Public Aid, he continued using the laboratory’s services until September of that year.

Defendant contends that the statute is unconstitutionally vague and a violation of his right to due process because the term kickback or bribe and the phrase “in connection with the furnishing of medical assistance” are not defined, and defendant did not receive adequate notice that his conduct was proscribed. The relevant portion of the statute under which defendant was convicted states:

“Any person, firm, corporation, association, agency, institution or other legal entity that solicits, offers or receives any kickbacks or bribes in connection with the furnishing of medical assistance, or solicits, offers or receives any rebate of any fee or charge for referring any individual to another person for the furnishing of medical assistance under this code, is guilty of a violation of this Article ***.” (Ill. Rev. Stat. 1985, ch. 23, par. 8A — -3(b).)

All statutes are presumed to be constitutional, and a party challenging a statute has the burden of establishing the alleged constitutional violation. (People v. Bales (1985), 108 Ill. 2d 182, 188, 483 N.E.2d 517, 519.) Furthermore, courts have a duty to construe the acts of the legislature so as to uphold their constitutional validity if it can be reasonably done. (Bales, 108 Ill. 2d at 188, 483 N.E.2d at 520.) In construing a statute, the court should consider not only the language of the statute but also the reason and necessity for the law, the evils to be remedied, as well as its object and purpose. (People v. Haywood (1987), 118 Ill. 2d 263, 271, 515 N.E.2d 45, 49.) Although criminal statutes are to be strictly construed in favor of the accused, they should not be subject to so rigid an interpretation so as to defeat the intent of the legislature. (Haywood, 118 Ill. 2d at 271, 515 N.E.2d at 49.) It is also well established that where a statute is challenged on the basis of vagueness, and first amendment freedoms are not at issue, the statute must be examined in light of the facts of the particular case. (People v. Jihan (1989), 127 Ill. 2d 379, 385-86, 537 N.E.2d 751, 754; Haywood, 118 Ill. 2d at 271, 515 N.E.2d at 51.) In addition, due process requires that the prohibited conduct of a penal statute be clearly defined and give sufficient warning as to the proscribed conduct when measured by common understanding and practice. Haywood, 118 Ill. 2d at 269, 515 N.E.2d at 48.

Defendant claims that the statute does not sufficiently define the term kickbacks. Although the constitutionality of this statute has not been reviewed, the language of the statute is similar to the 1977 version of the Federal statute prohibiting kickbacks. (See 42 U.S.C. §1396h(b)(l) (1972) (amended 1977).) Therefore, some guidance is provided by case law interpreting the Federal statute. In United States v. Hancock (7th Cir. 1979), 604 F.2d 999, the court defines kickbacks as “a percentage payment *** for granting assistance by one in a position to open up or control a source of income.” (Hancock, 604 F.2d at 1002, quoting Webster’s Third New International Dictionary 124, (1966).) The Federal statute survived a “vagueness” challenge because the Hancock court held that “the term kickback has a commonly understood meaning,” and the defendants received fair notice that their conduct was forbidden. (Hancock, 604 F.2d at 1002.) The definition of kickbacks established by the court in Hancock was upheld by the Seventh Circuit in United States v. Ruttenberg (7th Cir. 1980), 625 F.2d 173, 176, and by this court in Bethune Plaza, Inc. v. Department of Public Aid (1980), 90 Ill. App. 3d 1133, 1139 n.1, 414 N.E.2d 183, 188 n.1.

Defendant cites United States v. Porter (5th Cir. 1979), 591 F.2d 1048, in support of his argument that the statute is vague. Although the Porter court did not find the Federal statute unconstitutional, the court did find that the statute failed to give the defendants a clear warning that their conduct was prohibited. However, the holding in Porter has been specifically rejected by the Seventh Circuit in Ruttenberg (625 F.2d at 176), and Hancock (604 F.2d at 1002), which are both supported by Bethune Plaza, Inc. (90 Ill. App. 3d at 1139, 414 N.E.2d at 188). Defendant also argues that the fact that there was an amendment to the Federal statute in 1977 and the Illinois statute in 1987 indicates that the previous versions of the statutes were unclear. In both instances, the statutory language was amended to include the conduct prohibited as the solicitation or receipt of

“any remuneration, including any kickback, bribe, or rebate, directly or indirectly, overtly or covertly, in cash or in kind.” (Ill. Rev. Stat. 1987, ch. 23, par. 8A — 3(b).)

(See also, 42 U.S.C. §1369h(b)(l) (1977).) However, defendant’s argument is refuted by the court in United States v. Powell (1975), 423 U.S. 87, 46 L. Ed. 2d 228, 96 S. Ct. 316, which held:

“The fact that Congress might, without difficulty, have chosen ‘[clearer and more precise language’ equally capable of achieving the end sought does not mean that the statute which it in fact drafted is unconstitutionally vague.” Powell, 423 U.S. at 94, 46 L. Ed. 2d at 235, 96 S. Ct. at 321, quoting United States v. Petrillo (1947), 332 U.S. 1, 7, 91 L. Ed. 1877, 1883, 67 S. Ct. 1538, 1541.

Defendant further attempts to strengthen his vagueness claim by comparing the facts in this case to those in Jihan (127 Ill. 2d 379, 537 N.E.2d 751), which held that a former provision of the medical practice act prohibiting the unlicensed practice of midwifery was unconstitutionally vague. The basis of the court’s ruling was its determination that the provision was unclear as to whether the term midwifery encompassed the assistance at a delivery or whether it was limited to the actual performance of the delivery. The Jihan court also affirmed the principle that a party challenging the statute as vague must show that it was vague as to the conduct for which the party was prosecuted. (Jihan, 127 Ill. 2d at 385-86, 537 N.E.2d at 754.) Viewing the term kickbacks in the context of the instant case, we do not find the ambiguity in the term that was found by the Jihan court in the term midwifery. Furthermore, kickbacks, unlike midwifery, has been identified as a term which is commonly used and understood. Therefore, we also conclude that the term kickbacks as defined in Webster’s Third New International Dictionary and by the Seventh Circuit decisions has a commonly understood meaning, and the Illinois statute under which defendant was convicted was not unconstitutionally vague. See also Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376.

Defendant also contends that his conduct was not proscribed by the statute. However, we find defendant’s arguments supporting this contention to be without merit. Defendant first argues that under the definition of kickbacks advanced in Hancock and accepted by this court, his agreement with Gran-Cal regarding the referral of business to the laboratory in exchange for the payment of his receptionists’ salaries was not proscribed because the amount of the salaries remained constant although the amount of referrals fluctuated. However, the evidence established that there was a direct connection between the referral of specimens to Gran-Cal and the payment of the salaries, and that. once Gran-Cal stopped payment of the salaries, defendant no longer sent specimens to the laboratory. We find this fact dispositive of the determination that the payment of the salaries was a kickback payment for the referral of business to Gran-Cal. Defendant also claims that his conduct was not proscribed by the statute because the 1977 amendment to the Federal statute and the 1987 amendment to the Illinois statute do not prohibit

“any amount paid by an employer to an employee who has a bona fide employment relationship with such employer for employment in the provision of covered items or services.” (Ill. Rev. Stat. 1987, ch. 23, par. 8A — 3(d)(2).)

(See also 42 U.S.C. §1396h(b)(3) (1977).) However, neither defendant’s nor Gran-Cal’s relationship with the receptionists was a “bona fide employment relationship” because, while their salaries were paid by Gran-Cal, they performed work for defendant. Furthermore, the version of the statute under which defendant was convicted did not contain this exemption. The trial court’s finding that defendant’s conduct was proscribed by the statute is also supported by Fe Millare’s testimony that defendant agreed to alter his records to coincide with the falsified records of Gran-Cal, and that he accepted cash payments to order additional testing. Even though defendant denied this conduct, the credibility of the witnesses is determined by the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) Defendant also acknowledged that he continued to refer business to Gran-Cal when he knew that it was falsifying its records. We, thus, conclude that defendant’s conduct was proscribed by the statute.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and EGAN, J., concur.


author: PRESIDING JUSTICE LaPORTA

text:
    JAMES A. SZESNY, Respondent-Appellant, v. TARYN SZESNY, Petitioner-Appellee.
    First District (6th Division)
    No. 1—89—1747
    Opinion filed April 27, 1990.

      Zaborsky & Aleksy, of Chicago (Richard E. Aleksy and Davia M. Grigaitis, of counsel), for appellant.
    Richter & Dennis, of Chicago (Harold Richter, of counsel), for appellee.
   PRESIDING JUSTICE LaPORTA

delivered the opinion of the court:

Respondent appeals from a judgment of dissolution of marriage, claiming that the trial court abused its discretion in imposing almost the entire marital debt of over $82,000 upon him, and in modifying the visitation order to a more restrictive schedule. We affirm as to the distribution of marital debt and reverse and remand as to the visitation schedule.

The parties were married on November 1, 1980, in Chicago Heights, Illinois. From the time of their marriage until late in 1984, they lived with respondent’s mother, paying no rent and making no monetary contributions to the household. In 1984 the couple purchased a house, borrowing the money needed for earnest money deposit ($5,000) and for a down payment ($20,000) from the bank where respondent worked. The loans were secured by one-year lump-sum notes and liens on the cars of respondent’s mother and sister. The remaining $70,000 of the purchase price came in the form of a purchase money mortgage against the house, also held by the bank where respondent worked.

Petitioner testified that after they purchased the house, their standard of living went down; they did not go out as often and went to “cheap places.” Petitioner testified that she told respondent that their credit cards should be destroyed and she destroyed several of them herself. Respondent testified that he opened new charge accounts and took the cash advances to pay off other charge accounts. Petitioner testified that she did not sign for these credit cards although some of them bore her name.

Respondent testified that their standard of living did not abate, and in fact their living expenses increased dramatically. Their consumer debt jumped from nothing to $40,000 in 1984, with $20,000 owed on charge cards at the end of 1985, $43,000 owed at the end of 1986, and over $70,000 owed at the end of 1987. The current debt is approximately $82,000. Respondent testified that various loans were taken out in an effort to retire some of the debt. He also admitted to “playing the float” with their joint checking account, by hoping that deposits would arrive in time to cancel overdrafts.

Petitioner testified that she would attempt to “forced balance” their checking account registers at the end of each month, but that this was difficult because respondent would not record all transactions, would use counter checks instead of those provided for their account, and would not report deposits. When petitioner questioned respondent about the entries, they would argue and he would beat her. Respondent admitted that he did not always tell petitioner about a deposit but testified that he always made a notation in the check register, and that petitioner would ask him about them when reconciling the checkbook.

Respondent discussed their financial situation with petitioner, including the loans, but petitioner testified that what memory she has of these discussions is not enlightening. Respondent also claimed that the bank for which he works would reimburse him in cash for performing repossessions and for business expenses such as client lunches. Petitioner testified that she never paid attention to their tax returns, but signed them at respondent’s direction.

One child, a son, was born of the marriage, on November 1, 1985, and no children were adopted. Petitioner was granted temporary custody of the son by an agreed order in January 1988, and the trial court granted permanent custody to her in the judgment of dissolution. Respondent was granted visitation on alternate weekends, from 7 p.m. Friday until 6 p.m. Sunday. During 1988 respondent filed several emergency petitions to enforce this provision of the agreed order. Petitioner defended against the first that she had refused visitation because their son had been ill and because the son was calling respondent’s live-in girlfriend “Mother.” An agreed order was entered that visitation would be maintained and the son would be instructed not to call anybody except petitioner “Mother.” In response to the second and a third petition for violation of visitation, petitioner was ordered to adhere to the established visitation schedule. Respondent was ordered to pay petitioner accrued child support.

Respondent filed a fourth petition for rule to show cause against petitioner in September 1988, to enforce the visitation agreement. Petitioner responded and moved for modification of the visitation schedule due to respondent’s failure to pick up the son as scheduled, respondent’s physical abuse of petitioner, respondent’s having struck petitioner’s father with his car, respondent’s leaving the son on the doorstep without ringing the bell, and the son’s “upset, morose and withdrawn” state when returned to petitioner following time spent with respondent. Respondent responded to petitioner’s petition for modification with countercharges of her lack of cooperation.

The first nonparty witness called at trial on December 6, 1988, was the bank employee who had verified petitioner’s signature on a letter requesting her IRA at another bank to be closed. The bank employee testified that she was a co-worker of respondent’s and that she could not recall the details of that particular letter, although on occasion she might guarantee the signature of a bank officer’s relative at his request without verifying the signature. Respondent stated when giving testimony that he prepared the letter and that petitioner had signed it at his request. Petitioner testified that she did not sign the letter or otherwise authorize the closure of her IRA.

Upon discovering that the IRA was closed, petitioner contacted another officer of the bank, who testified in response to subpoena that she investigated the situation and was told by respondent that he had signed petitioner’s name to the letter but that petitioner had authorized it. She testified that respondent told her that the money was needed to pay marital debts and she subsequently determined that the money had been placed into the joint checking account and used to honor checks drawn by both respondent and petitioner. At this time her investigation was terminated. The trial judge noted that while the bank employee and bank officer were testifying, respondent “refused to look at them and turned his back on them.”

Respondent was called by petitioner as an adverse witness pursuant to section 2 — 1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1102). He testified about the letter requesting that petitioner’s IRA be closed and the money sent to respondent’s mother’s address; his relationship with a woman named Barbara “Lush” or “Losh,” whom he first stated he did not know but later admitted seeing frequently at his health club; and the couple’s financial situation, including the growth of their consumer debt during the period from 1984 to 1988. Petitioner then testified as to the couple’s financial situation and the problems with visitation. Petitioner also testified that respondent abused her, beat her monthly, burned her face, and threw her out of a car. Respondent testified on his own behalf that he had to file petitions to force petitioner to abide by the visitation schedule and gave further details about the couple’s financial situation and style of living and the loans retired and loans outstanding.

Judgment of dissolution was entered on June 2, 1989. The court assessed against respondent all of the marital debt except for the amounts outstanding on petitioner’s Mazda and the vanity which respondent had given her. Petitioner was granted custody of the minor child. The trial judge enumerated specific incidents in which respondent arrived with the smell of alcohol on his breath or left their son at a darkened door without ringing the bell to let petitioner know that their son was home, and ruled “that visitation should be restricted at this time.” The court established a visitation schedule of visits which was one weekend per month plus one day on each other weekend, instead of the prior agreed visitation schedule of alternate weekends. The court specifically reserved the question of extended visitation during spring, summer, and Christmas vacations pending a psychiatric evaluation. Respondent filed his appeal on July 3,1989.

Respondent’s first argument is that the trial court inequitably distributed the marital assets and debts by granting all assets to petitioner and assessing all debts against respondent. The trial judge found no appreciable marital assets, that petitioner possessed only a triply-refinanced 1984 Mazda and a vanity which had been a gift from respondent, and that respondent retained what little marital property remained. Respondent argues that this decision is arbitrary and an abuse of the trial court’s discretion.

A reviewing court will not substitute its judgment for that of the trial court unless the trial court clearly acted arbitrarily and beyond the bounds of reason. (In re Marriage of Malters (1985), 133 Ill. App. 3d 168, 180, 478 N.E.2d 1068, 1076; In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676, 680; Head v. Head (1988), 168 Ill. App. 3d 697, 702, 523 N.E.2d 17, 21.) The mere fact that reasonable men could reach different conclusions on the facts of the case is insufficient to find that the trial court abused its discretion; only if no reasonable person could find as the trial court did is there an abuse of discretion. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129; In re Marriage of Ryan (1985), 138 Ill. App. 3d 1077, 1080, 487 N.E.2d 61, 63.

Respondent relies heavily upon the holding in In re Marriage of Goforth (1984), 121 Ill. App. 3d 673, 459 N.E.2d 1374, to support his contention that assignment of all marital debt to one party is on its face an abuse of discretion. In that case, the parties had been married for 14 years and had lived considerably beyond their means. (Goforth, 121 Ill. App. 3d at 679, 459 N.E.2d at 1379.) The wife-respondent received the marital home and furnishings and her car, for a total of $81,000 in assets without any debt. (Goforth, 121 Ill. App. 3d at 677-78, 459 N.E.2d at 1378.) The husband-petitioner was given token assets while being ordered to assume all marital debt plus the wife-respondent’s attorney fees, for a total of approximately $128,000. (Goforth, 121 Ill. App. 3d at 678, 459 N.E.2d at 1378.) The husband-petitioner was also ordered to pay 40% of his net income for maintenance and child support. (Goforth, 121 Ill. App. 3d at 678, 459 N.E.2d at 1378.) The appellate court found this decision a clear abuse of discretion because both parties had created the debt and neither could begin anew. Goforth, 121 Ill. App. 3d at 680-81, 459 N.E.2d at 1379.

However, in the case here the trial court specifically found that respondent was solely responsible for the over $82,000 in debt. There was testimony that after they purchased the marital home, petitioner drastically reduced her expenditures while respondent maintained or increased his. The trial court noted that respondent would go out at night without his wife and child; that he belonged to a health club; that respondent opened charge accounts without petitioner’s knowledge or permission; that respondent spent money on clothing for him.self and at fine restaurants; that he gave money to his mother; that respondent borrowed money but did not use it to reduce the marital debt; and that he “in effect kited his account in consumer debts.” The trial court also found that petitioner spent minimal amounts on clothing, ate in fast-food restaurants, and in one year was responsible for less than one-twelfth of their total expenses.

Dissipation can occur prior to dissolution. (Partyka, 158 Ill. App. 3d at 549, 511 N.E.2d at 680.) The key is whether one spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage. (Malters, 133 Ill. App. 3d at 181-82, 478 N.E.2d at 1077.) When one party is charged with dissipation, he must prove by clear and convincing evidence that the questioned expenditures were made for a marital purpose. (In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 51, 448 N.E.2d 545, 548; In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 176, 516 N.E.2d 566, 570.) Unsupported statements that the funds were used for marital purposes are insufficient. In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210.

The trial court here noted that respondent claimed to have spent the money for family expenses but that he could produce only a few credit card statements for insignificant amounts. The court also noted that respondent opened credit card accounts without petitioner’s permission, even though her name was used, and that respondent retained total control of these accounts, having the statements sent to his mother’s house. Where one spouse has sole access to funds or incurs debt without the knowledge of the other, that spouse can be held to have dissipated marital assets and can be held responsible for the entire debt. (Ryan, 138 Ill. App. 3d at 1081, 487 N.E.2d at 64; In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 32, 500 N.E.2d 612, 618.) Here respondent had sole access to the credit cards used to incur the debt, and for that reason, the trial court properly found that he alone would be held responsible.

Respondent’s second argument is that the trial court erroneously considered his marital misconduct in making the division of marital assets and debt, claiming that admission into evidence of wife’s medical bills for plastic surgery necessitated by facial burns caused by him and the cards sent to him by a woman he met and befriended at his health club was prejudicial. However, the court merely mentioned them and respondent’s testimony regarding the woman, and the record does not reflect that the court based its decision on this conduct. The trial judge clearly relied upon respondent’s sole access to the charge cards used to incur the debt, his inability to show any family benefit from his expenditures, his questionable reports of deposits into and withdrawals from the joint checking account, and respondent’s frequent beating of petitioner when she questioned him each month when she tried to reconcile the check register with the bank statement. The record does not support respondent’s argument that the trial court’s division of the marital debts and allocation of the majority of them to respondent was based on his physical mistreatment of petitioner or possible marital infidelity.

Respondent also claims that the trial court improperly permitted testimony regarding visitation with their son to be admitted, but because visitation was an issue at trial and is an issue on this appeal, admission of such testimony was not error.

Respondent’s third argument is that petitioner was a noncredible witness. Generally, a reviewing court will not disturb the trial court’s determination of credibility because the trial court has a unique opportunity, which cannot be reproduced from the cold, inanimate record, to observe and judge the witness’ demeanor and credibility. (Kaplan, 149 Ill. App. 3d at 28, 500 N.E.2d at 616.) A reviewing court will not overturn a trial court’s determination of credibility unless it appears contrary to the manifest weight of the evidence. Westcott, 163 Ill. App. 3d at 178, 516 N.E.2d at 570; In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 155, 544 N.E.2d 1284, 1288.

In her decision, the trial judge here noted that she had carefully observed the parties both while they testified and while others testified. She specifically noted that when two of respondent’s co-employees testified under subpeona, he refused to look at them and turned his back on them when they testified. The court also commented that the respondent initially denied that he knew the woman who had sent cards to him and his son, then after some dissembling admitted that he knew the woman but denied any sexual or social involvement with her.

Based on all the evidence, the trial judge found petitioner’s testimony credible and respondent’s testimony not credible and at times incredible. There is nothing in the record which indicates that this assessment is sufficiently inaccurate to warrant reversal.

Respondent’s final argument is that the trial court abused its discretion in restricting his visitation with the couple’s now four-year-old son and in ordering a psychiatric evaluation before extended visitation would be permitted. The Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.) provides that “[a] parent not granted custody of the [son] is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would endanger seriously the [son’s] physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1987, ch. 40, par. 607(a).) While the court may, as here, modify a preexisting visitation order, “the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the [son’s] physical, mental, moral or emotional health.” (Ill. Rev. Stat. 1987, ch. 40, par. 607(c).) The determining factor in modifying a visitation order is whether the son would be harmed by continuation of the current order. (Valencia v. Valencia (1977), 46 Ill. App. 3d 741, 745, 375 N.E.2d 98, 101; In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1112, 421 N.E.2d 1308, 1311.) The burden of proving endangerment is on the custodial parent (In re Marriage of Solomon (1980), 84 Ill. App. 3d 901, 906, 405 N.E.2d 1289, 1294; Crichton v. Crichton (1979), 75 Ill. App. 3d 326, 329, 393 N.E.2d 1319, 1321) and is an onerous one. In re Marriage of Hanson (1983), 112 Ill. App. 3d 564, 568, 445 N.E.2d 912, 915; In re Marriage of Neat (1981), 101 Ill. App. 3d 1046, 1048, 428 N.E.2d 1093, 1095.

Here petitioner offered her own testimony as to the son’s state before and after visitation, and related specific incidents in which respondent’s actions were dangerous to the son. Petitioner testified that she had taken the son to see a social worker and that one or more sessions with a psychiatrist were scheduled, but that no professional evaluation took place. No written reports of psychiatric evaluations or expert testimony were offered to support a change in the visitation schedule previously in place. For these reasons, we find that absent evaluation by such an expert the evidence in the record is insufficient to support the trial judge’s change in visitation schedule.

We affirm the distribution of marital debt as ordered by the trial court.

As to the visitation schedule, we reverse and remand with directions that the original visitation schedule be restored and that the court conduct a further hearing to consider psychiatric evaluation to determine whether the welfare of the child requires a modification of the visitation schedule.

Affirmed in part; reversed and remanded in part.

McNAMARA and EGAN, JJ., concur.