text:
      In re C.R. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Gayle Richardson, Respondent-Appellant). — In re C.R. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Gland Ray Belcher, Respondent-Appellant).
    Fourth District
    Nos. 4 — 91—0075, 4 — 91—0113 cons.
    Opinion filed November 14, 1991.

      Lynne R. Feldman, of Pavia & Marsh, of Urbana, for appellant Gayle Richardson.
    Michael B. McClellan, of Dodd & McClellan, P.C., of Champaign, for appellant Gland Belcher.
    Thomas J. Difanis, State’s Attorney, of Urbana (Kenneth R. Boyle, Robert J. Biderman, and Elliott Turpin, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On January 8, 1991, the parental rights of respondents Gayle Richardson (Gayle) and Oland Ray Belcher (Ray) to three female respondent minors, C.R. (born July 29, 1979), J.R. (born August 7, 1983) and M.R. (born March 28, 1986), were terminated. Ray is the natural father to J.R. and M.R. only. In No. 4 — 91—0075, respondent Gayle appeals, contending (1) the petition to terminate her parental rights does not state a cause of action because the trial court did not enter a written order adjudicating the minors neglected, (2) the finding of unfitness pursuant to section 1(D) of the Adoption Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)) was against the manifest weight of the evidence, and (3) the termination of her parental rights as to J.R. was not in the best interests of J.R. In No. 4 — 91—0113, respondent Ray appeals, contending the termination of his parental rights to the three minors was against the manifest weight of the evidence and not in the best interests of the children. We disagree with both respondents and affirm the trial court.

On July 19, 1988, the Department of Children and Family Services (DCFS) received a report which alleged that C.R., eight years old, had severe bruises on her buttocks from a beating by John Richardson, Gayle’s brother. C.R. received this beating for accusing Ray of sexually molesting her. Ray pleaded guilty to this offense and, in January 1989, was sentenced to five years’ imprisonment.

On August 19, 1988, an adjudicatory hearing was held and both Ray and Gayle stipulated to count I of the shelter-care petition, which alleged the children were neglected because of an environment injurious to their welfare. At the dispositional hearing on September 27, 1988, the court adjudged C.R., J.R. and M.R. to be neglected minors, made them wards of the court and appointed the DCFS Guardianship Administrator as guardian of the respondent minors.

Five review hearings were held between August 19, 1988, and July 12, 1990. At each of these five review hearings, evidence was presented regarding Gayle and Ray’s progress and achievement toward the stated goals of DCFS. Neither Gayle nor Ray satisfied these goals. A supplemental petition seeking a finding of unfitness and the termination of parental rights was filed by the State on July 12, 1990. The petition alleged Gayle and Ray failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children from them, failed to make reasonable progress toward the return of the children within 12 months of the adjudication of neglect (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m)) and failed to protect the children from conditions in their environment that were injurious to their welfare (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(g)). Adjudicatory hearings were held on this petition on October 22, 1990, and November 7, 1990. On November 13, 1990, the court found Gayle unfit under sections l(D)(m), (D)(g), and (D)(b) of the Act, and found Ray unfit pursuant to section l(D)(m) of the Act (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(m), (D)(g), (D)(b)). On January 8, 1991, the parental rights of Gayle Richardson and Oland Ray Belcher were terminated.

Gayle contends the trial court erred in failing to enter a written order finding the minors neglected at the adjudication hearing. She further contends the trial court erred in not noting in the docket entry for the adjudicatory hearing whether the neglect was the result of physical abuse to the minor inflicted by a parent, guardian, or legal custodian. Therefore, Gayle concludes the supplemental petition to terminate her parental rights fails to state a cause of action because no written order was entered and, thus, the 12-month period for purposes of section l(D)(m) of the Act never began to run.

Section 2 — 21(1) of the Juvenile Court Act of 1987 (Juvenile Court Act) (Ill. Rev. Stat. 1989, ch. 37, par. 802 — 21(1)) requires the court, upon finding the minor neglected, abused or dependent, to “make and note in the minutes of the proceeding a finding of whether or not the minor is abused, neglected or dependent.”

In the present case, the adjudicatory hearing was held on August 19, 1988. Gayle and Ray stipulated to count I of the shelter-care petition, which alleged the minors were neglected because of an environment injurious to their welfare. At the adjudicatory hearing, the trial court stated its intention to find the minors were neglected and such neglect was the result of physical abuse by the parent. Both Gayle and Ray agreed there was physical conduct of an improper nature by a relative (Gayle’s brother) against C.R. The trial court did make note, “Court finds that the respondent minors are neglected minors for the reasons as set forth in Count I of the petition.” On September 27, 1988, at the dispositional hearing, the court made a finding of physical abuse inflicted by custodians, namely Ray and John Richardson (Gayle’s brother). A written order was filed on October 22, 1988, to the same effect and contained language specifying the court’s intention for the written order to take effect on the verbal pronouncement of September 27, 1988. This order satisfies the requirements of section 2 — 21(2) of the Juvenile Court Act, that the order find whether the neglect “is the result of physical abuse to the minor inflicted by a parent *** and such finding shall appear in the order of the court.” Ill. Rev. Stat. 1989, ch. 37, par. 802 — 21(2).

We need not decide the issue of whether, for purposes of triggering the 12-month period of section l(D)(m) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m)), the docket entry of August 19, 1988, or the written order filed October 22, 1988, is the starting point for that period. Twenty-three months elapsed between the August 19 docket entry and the filing of the supplemental petition and 21 months elapsed between the written order of October 22 and the filing of the supplemental petition. Either way, Gayle was given well over 12 months to make reasonable progress or reasonable efforts to regain custody of her children. She participated in all the court proceedings during this time period, attended numerous counseling sessions and attempted to meet the goals of the client service plans established by DCFS. Gayle cannot contend she was unaware the 12-month period had started to run, regardless of whether it began on August 19, September 27, or October 22.

The fifth district recently held that, for purposes of the 12-month period under section l(D)(m) of the Act, the adjudication order is entered as of the date of the docket entry. (In re T.B. (1990), 195 Ill. App. 3d 919, 924-25, 552 N.E.2d 1107, 1111.) In that case, the docket entry was made 13 months before the petition to terminate the parental rights was filed, while the written order thereon was entered nine months before the petition to terminate the parental rights was filed. Thus, it was necessary for the court to decide whether the docket entry or the written order of adjudication was the benchmark to start the 12-month period running. However, as noted above, we need not decide that issue since given either date, Gayle had the requisite time to make reasonable progress or reasonable efforts necessary to regain custody of her children.

Both Gayle and Ray contend the trial court’s finding of unfitness was against the manifest weight of the evidence. Because the parties are aware of the evidence, it will be referred to only as necessary.

The trial court concluded Ray was an unfit parent because he failed to make reasonable efforts to correct the conditions which were the basis for the removal of the children from him and that he failed to make reasonable progress toward the return of the children within 12 months after an adjudication of neglect. (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m).) The trial court also concluded Gayle had failed to protect the children from conditions within their environment which were injurious to their welfare, and failed to demonstrate a reasonable degree of interest and concern for the minors. (Ill. Rev. Stat. 1989, ch. 40, pars. 1501(D)(g), (D)(b).) Both Ray and Gayle appeal those findings.

The Juvenile Court Act (Ill. Rev. Stat. 1989, ch. 37, par. 801 — 1 et seq.) and the Act (Ill. Rev. Stat. 1989, ch. 40, par. 1501 et seq.) govern the termination of parental rights. A finding of parental unfitness may be based on evidence sufficient to support any one statutory ground, even if the evidence is not sufficient to support other grounds alleged. (See, e.g., In re Edmonds (1980), 85 Ill. App. 3d 229, 232-33, 406 N.E .2d 231, 234-35.) Section l(D)(m) of the Act defines an “unfit person” as “any person whom the court shall find to be unfit to have a child” because of the “failure by a parent to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication of neglected minor, abused minor or dependent minor under the *** Juvenile Court Act of 1987.” (Ill. Rev. Stat. 1989, ch. 40, par. 1501(D)(m); In re K.S. (1990), 203 Ill. App. 3d 586, 589, 560 N.E.2d 1380, 1381-82.) A finding of unfitness may lead to the termination of parental rights and a court may take such action after finding it to be in the best interests of the minor. In re W.U. (1990), 199 Ill. App. 3d 320, 556 N.E.2d 887.

On appeal, a court will not reverse a finding of unfitness unless it is against the manifest weight of the evidence. The trial court’s opportunity to view and evaluate the parties and their testimony is far superior to that of the reviewing court. Accordingly, the trial court’s findings should be given great deference. In re A.T. (1990), 197 Ill. App. 3d 821, 829-30, 555 N.E.2d 402, 408.

“ ‘Whether a parent’s efforts to correct the conditions which were the basis for removing her children are reasonable involves a subjective judgment based upon the amount of effort which is reasonable for a particular person. [Citations.] In contrast, whether a parent’s progress toward [the] return of the children within 12 months of being adjudicated neglected is reasonable involves an objective judgment based upon the amount of progress measured from the conditions existing at the time custody was taken from the parent. [Citations.] At a minimum, reasonable progress requires measurable or demonstrable movement toward the goal of reunification.’ ” (Emphasis in original.) In re L.L.S. (1991), 218 Ill. App. 3d 444, 459, 577 N.E.2d 1375, 1385, quoting In re Allen (1988), 172 Ill. App. 3d 950, 956, 527 N.E.2d 647, 651-52.

Ray contends he made reasonable efforts to correct the conditions which led to the removal of the children. Ray argues he admitted to Dr. Cozubal that he had a substance-abuse problem and he attended AA meetings; he maintains this demonstrates a reasonable effort to correct the poor conditions in his home.

While Ray’s contentions may be true, he has made no reasonable efforts to correct the conditions which led to the removal of the children from his home. The three minors were removed from the home because of an environment injurious to their welfare. At the shelter-care hearing, evidence was presented that Ray had sexually abused C.R. and C.R. had been beaten by her uncle for accusing Ray of such conduct. Thus, the basis for the removal of the children was the sexual abuse of C.R. and not Ray’s substance-abuse problems.

The issue then becomes whether Ray has made reasonable efforts to address this issue. We conclude, as did the trial court, he has not. Ray suggests, given his circumstances of incarceration and the resources available to him, he has made reasonable efforts. Ray met with Dr. Cozubal at least six times and at each meeting maintained he had not sexually abused C.R. At their final meeting, Ray refused to discuss the issue of sexual abuse. On March 15, 1990, Ray still maintained his innocence and on June 26, 1990, refused to discuss the issue at all. Even in his testimony at the hearing on the present supplemental petition, Ray maintained his version of the events, which depicted C.R. as the perpetrator and himself as the victim. Ray believed his fault was only in not stopping C.R.’s “curiosity.” We do not believe Ray’s admission of improper conduct but rejection of the term “molestation” qualifies as assuming responsibility for the conduct. (See In re S.D. (1991), 213 Ill. App. 3d 284, 571 N.E.2d 1162.) Testimony was presented that the first step toward dealing with sexual abuse was for the abuser to assume responsibility for such abuse. Since Ray has failed to make this first step, the trial court’s finding of Ray as an unfit parent for failing to make reasonable efforts to correct the conditions which led to the removal of the children was not against the manifest weight of the evidence.

Ray also alleges the trial court’s finding that he failed to make reasonable progress toward the return of the children within 12 months of the adjudication of neglect was against the manifest weight of the evidence. We disagree. As this court stated in In re L.L.S.:

“ ‘Reasonable progress’ is an objective standard which exists when the court, based on the evidence before it, can conclude that the progress being made by a parent to comply with directives given for the return of the child is sufficiently demonstrable and of such a quality that the court, in the near future, will be able to order the child returned to parental custody. The court will be able to order the child returned to parental custody in the near future because, at that point, the parent will have fully complied with the directives previously given to the parent in order to regain custody of the child.” (Emphasis in original.) (In re L.L.S., 218 Ill. App. 3d at 461, 577 N.E.2d at 1387.)

Ray suggests, given the circumstances of his incarceration, he has made reasonable progress. Without repeating the previous discussion, we reject Ray’s contention. Ray was uncooperative in counseling with Dr. Cozubal, sporadically attended AA meetings and has failed to acknowledge responsibility for the sexual abuse. This cannot be characterized as reasonable progress sufficient to determine the trial court’s order was against the manifest weight of the evidence.

Likewise, Gayle maintains the trial court’s findings of her unfitness under section l(D)(b) and (D)(m) of the Act were against the manifest weight of the evidence. Gayle has not challenged the finding of unfitness under section l(D)(g) of the Act, and since a finding on any one statutory ground would suffice to support the judgment (Edmonds, 85 Ill. App. 3d at 232-33, 406 N.E.2d at 234-35), we need not address the sufficiency of the evidence to support the other findings. In the exercise of our discretion, however, we elect to do so. Gayle contends her regular attendance at the counseling sessions, the well-planned visits with the children and regular employment constitute reasonable efforts. Gayle suggests further evidence of these efforts exists in the fact that she was granted unsupervised visits in 1989 and received a recommendation from DCFS to allow for unsupervised, overnight visits.

Gayle may have made some efforts or progress throughout the course of this case. However, a significant decline in this progress occurred after January 1990. The time frame in which the parent has to make reasonable progress is not limited to the 12 months after the adjudication of neglect. Rather, the court may consider the parent’s conduct during the entire post-adjudication period. See In re A.T., 197 Ill. App. 3d 821, 555 N.E.2d 402.

Looking at this entire period, Gayle has not made reasonable efforts or reasonable progress. She constantly vacillated between believing C.R. and believing that somebody other than Ray sexually abused C.R. Gayle never totally believed or supported C.R. Gayle may have attended counseling sessions but missed some with J.R. in order to see Ray in prison. Gayle indicated that if forced to choose between her children and Ray, she would choose her children; however, her actions belie this choice. After Ray’s arrest and even up to the filing of the supplemental petition, Gayle still maintained a relationship with him. The only requirements Gayle had to allow Ray to return to the home were for him to quit abusing drugs and alcohol and to maintain regular employment. She was unable to state what she could or would do to protect the children from Ray. Gayle was uncooperative in her counseling, had a hostile attitude, and often was sullen and uncommunicative during the sessions.

We conclude Gayle’s failure to believe C.R. and accept the fact that Ray abused C.R., her vacillation between believing C.R. and believing Ray, and her indication of maintaining a relationship with Ray do not constitute reasonable efforts to correct the conditions which were the basis for the removal of the children from her, and certainly do not constitute reasonable progress toward the return of her children. The trial court’s finding of unfitness as to Gayle was not against the manifest weight of the evidence.

Finally, Ray contends the trial court’s decision to terminate his parental rights was not in the minors’ best interest. Gayle contends the termination of her parental rights as to J.R. was not in J.R.’s best interest.

Once a finding of unfitness is made, all considerations must yield to the best interests of the child. (In re M.C. (1990), 197 Ill. App. 3d 802, 555 N.E.2d 111.) The appropriate standard of review is whether the court’s determination is against the manifest weight of the evidence. (In re I.D. (1990), 205 Ill. App. 3d 543, 563 N.E.2d 1200.) We find it was in the best interests of all three minors to terminate the parental rights of Gayle and Ray.

Ray has yet to unequivocally accept responsibility for the sexual abuse. He also has not fully addressed his substance-abuse problems. To place the children back into an environment where they would be exposed to these unresolved problems is not in their best interests. Ray argues the possibility exists that he could overcome these problems and be reunited with the minors. Ray has had almost two years to address these problems. He has chosen not to do so and any possibility that he would now do so is highly unlikely.

The evidence established C.R. was placed with her maternal grandparents and was doing very well both academically and behaviorally. M.R. had adjusted well to her foster home and had a good relationship with her foster parents. She also was doing well in school and socially. J.R. had some behavioral problems but was making progress due to the counseling and the consistency and stability provided by her foster parents. Given Ray’s unresolved problems, Gayle’s constantly changing position toward the sexual abuse and her inability to specify how she would protect the minors from further sexual abuse by Ray, we conclude it was in the best interests of the minors to terminate the parental rights of Gayle and Ray.

Therefore, we conclude the trial court’s termination of the parental rights of Gayle Richardson and Oland Ray Belcher was not against the manifest weight of the evidence. The trial court’s judgment as to each is affirmed.

Affirmed.

LUND, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
      In re SCOTT McMAHON (The People of the State of Illinois, Petitioner-Appellee, v. Scott McMahon, Respondent-Appellant).
    Fourth District
    No. 4 — 91—0256
    Opinion filed November 14, 1991.

      Robert E. Mclntire, Public Defender, of Danville (William T. Donahue, Assistant Public Defender, of counsel), for appellant.
    Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and Dale M. Wood, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Respondent Scott McMahon was found to be a person subject to involuntary commitment on March 21, 1991, following a bench trial in Vermilion County. Respondent was ordered to be hospitalized with the Veterans Administration (VA) for a period of 60 days. Respondent now appeals, contending (1) the failure to appoint counsel at the time the matter was set for hearing constitutes reversible error, and (2) the failure to follow statutory requirements of service of the petition and order constitutes reversible error. We disagree and affirm.

A petition seeking respondent’s involuntary commitment was filed on March 20, 1991. This petition was accompanied by two certificates, a treatment plan and a dispositional report. No notice of hearing appears in the record. However, the transcript indicates a hearing was held on March 21, 1991. At that hearing, the trial court stated it had appointed the assistant public defender to represent respondent. Respondent’s counsel indicated he had conferred with respondent regarding the petition and further indicated respondent’s desire to proceed with a bench trial that day.

Respondent was called as an adverse witness by the State. When asked whether he had recently told anyone he wished to harm himself, respondent replied, “I’m very skeptical about what the looking glass has to show for it in the future.” Respondent indicated he had medical problems with the YA because it would not give him any money and had performed four vasectomies on him. Finally, respondent testified he had gone to Florida but came back after he lost his money. He testified he lived on the streets and ate lettuce, milk shakes, and doughnuts.

On examination by his attorneys, respondent testified he did not believe he suffered from a mental illness and that he wished to be released. Respondent acknowledged he spent his money quickly but was sure he could manage his money effectively. The last time respondent was released from the hospital, he bought some items, including a guitar, with the money he had been given upon his release. Respondent spent the night in a hotel playing his guitar. He testified he returned to the YA hospital the following day because he was out of money. Respondent indicated he had not taken his medication in three or four months.

Respondent’s mother testified respondent would telephone her at work and ask her to kill people for him or provide him with a gun to kill people. She also stated respondent indicated his desire to kill himself. Respondent’s mother testified respondent did go to Florida but lived on the streets with' nothing to eat. She bought him a bus ticket to return to Illinois.

Dr. Noel Johnson, a psychiatrist at the YA hospital in Danville, testified and diagnosed respondent as suffering from schizo-affective disorder, depressed type. Dr. Johnson testified respondent attempted suicide several times. Dr. Johnson believed respondent could not cope with the stresses of living outside a hospital. However, Dr. Johnson indicated the possibility that respondent could live outside a hospital with the proper medication. But, because of respondent’s lack of belief that he had a mental illness and reluctance to take any medication, that possibility was unlikely.

The trial court found respondent was a person who was mentally ill and that because of this illness would reasonably be expected to inflict serious harm upon himself or others. The trial court also found respondent was unable to provide for his basic physical needs so as to guard himself from serious harm. The trial court ordered respondent committed to the YA hospital in Danville for a period of 60 days.

Respondent now contends the failure to appoint counsel at the time the cause was set for hearing constitutes reversible error. Section 3 — 805 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 805) requires counsel to be appointed at the time the matter is set for hearing. The record is unclear as to when this matter was set for hearing; however, since the petition was filed on March 20, 1991, and the hearing was held on March 21, 1991, a presumption exists that the hearing was set on March 20.

Since respondent appeared with counsel on March 21, an inference can be drawn that counsel was appointed on March 20 when the matter was set for hearing. However, even assuming counsel was not appointed until March 21, we conclude respondent suffered no prejudice as a result of this late appointment. Counsel indicated he had discussed the petition and options with respondent and respondent wished to proceed with the bench trial that day. Counsel also adequately cross-examined Dr. Johnson, which indicates he had some time to interview him prior to his testimony. Although counsel should be appointed when the matter is set for hearing (In re Elkow (1988), 167 Ill. App. 3d 187, 521 N.E.2d 290), which would better serve respondents whose liberty interests are at stake (In re Biggs (1991), 219 Ill. App. 3d 361), we do not believe respondent suffered any prejudice requiring reversal.

Respondent next contends reversible error occurred because the record does not formally show he was served with notice of the date, time, and place of the hearing. Section 3 — 706 of the Code requires the court to set a hearing within five days of receipt of the second certificate, and further requires the court to direct notice of the time and place of the hearing to be served upon respondent, his attorney, and guardian, and also (if applicable) on the director of the facility in which respondent is committed. Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 706.

In In re Splett (1991), 143 Ill. 2d 225, 572 N.E.2d 883, the respondent and his counsel appeared before the circuit judge for a hearing on a petition for involuntary admission to a mental health facility. After evidence was presented, the respondent was found to be a person subject to involuntary admission pursuant to the Code. The appellate court reversed that order, finding the State failed to comply with the requirements of section 3 — 706 of the Code. (In re Splett (1990), 194 Ill. App. 3d 391, 551 N.E.2d 433.) The supreme court affirmed that decision but on grounds different than those of the appellate court.

In addressing the notice issue, the court acknowledged the importance of the statutory notice provisions and the part those provisions play in society’s obligation to protect and care for those unable to do so for themselves. The court then stated:

“At the same time, however, we do not believe that an involuntary admission order must automatically be deemed invalid if the record fails to contain affirmative proof that respondent received formal notice of the proceedings. When it is evident that a respondent received actual notice of the proceeding against him, then a commitment order, based upon clear and convincing evidence and issued by a circuit court after a hearing on the merits, may be deemed proper in an appropriate case even though the record does not demonstrate that respondent received formal notice as well.” Splett, 143 Ill. 2d at 230-31, 572 N.E.2d at 885-86.

The court concluded the purposes of section 3 — 706 were satisfied by the respondent’s actual knowledge of the proceeding. The court stated:

“[W]e do not construe the statute as requiring the performance of an empty formality when the legislative intent has been otherwise achieved.” Splett, 143 Ill. 2d at 232, 572 N.E.2d at 886.

Since respondent and his counsel were present at the hearing, participated in the proceedings and failed to raise any challenge to the notice of the proceeding, “we do not believe that the absence in the record of an affirmative indication that respondent received formal notice of the proceeding compels reversal of the admission order.” (Splett, 143 Ill. 2d at 232, 572 N.E.2d at 886.) Where the purposes of the notice provision were fulfilled, the absence of an affirmative indication in the record that respondent was properly served with formal notice of the time and place of the proceeding must be considered harmless. Splett, 143 Ill. 2d at 232, 572 N.E.2d at 886.

Respondent next contends reversible error occurred since he did not receive a copy of the involuntary commitment order. Section 3 — 816(a) of the Code requires that a copy of the commitment order be given either to the respondent or his attorney. (Ill. Rev. Stat. 1989, ch. 911/2, par. 3 — 816(a).) The record on appeal does not indicate whether respondent or his attorney received a copy of this order but a written order does appear in the record.

In accordance with the above discussion regarding actual notice of the time and place of the hearing, we believe those principles are equally applicable to receipt of the order of commitment. While respondent or his attorney may not have physically received a copy of the order of commitment, both had actual notice of such order.

Providing respondent or his attorney with a copy of the order of commitment serves an important function, namely insuring that respondent is aware of the basis of the court’s findings and conclusions and aware of time limitations for appeal purposes. At the conclusion of the hearing, the trial court made oral findings of respondent’s mental illness, the reasonable expectation that he would harm himself or others and of his inability to provide for his basic physical needs so as to guard himself from serious harm. The trial court further indicated this was a final judgment of the court and an appealable order. Respondent was instructed on the steps necessary to perfect such an appeal. The requirements of section 3 — 816(a) are clear, and its provisions should be complied with; however, the failure to provide respondent with a copy of the written order in this case did not prejudice respondent and does not constitute reversible error.

Respondent’s final argument is that reversible error occurred because the judge who signed the written order was not the judge who heard the evidence and made the oral finding of commitment. The record on appeal indicates Judge Rita B. Garman presided over the March 21, 1991, hearing on the petition for involuntary admission. The written order in the common law record which corresponds in time to that hearing was signed by Judge Thomas Fahey. The written order was file stamped by the Vermilion County circuit court clerk’s office on March 22, 1991, and was signed and dated by Judge Fahey on March 23, 1991. No explanation appears in the record as to why Judge Garman did not execute the written order. However, we do not believe this inconsistency constitutes reversible error.

In In re Marriage of Ayers (1980), 82 Ill. App. 3d 164, 402 N.E.2d 401, the court held the trial judge properly entered an order dissolving a marriage based upon his predecessor’s findings of fact. In that case, a petition for dissolution of marriage was filed and, after a hearing, the trial judge found grounds existed for the dissolution of that marriage. However, no order was entered. Four months later, at the hearing regarding child support and property distribution, which was heard by a different judge, that judge realized no order had been entered for dissolution of the marriage, although findings to that effect had been made. Therefore, the second judge entered an order regarding custody, child support and maintenance. Approximately one month later, the petitioner was granted leave to submit an amended judgment order. The second judge entered an order dissolving the marriage, to be effective as of the date of entry. The respondent appealed from that order, contending that a successor judge may not enter an order for the dissolution of marriage based upon the findings of a different judge.

The court noted that jurisdictions are divided on the question of whether a successor judge may issue an order based upon the factual findings of his predecessor. Because an order is not final until actually entered, a judge is free to change his mind as to his intended disposition. Therefore, some jurisdictions conclude it is improper for a successor judge to assume that the factual findings of his predecessor were final and binding. Since the successor judge did not hear the evidence, he might be reluctant to reconsider the findings, whereas the first judge might yet have reconsidered them.

However, the appellate court in Ayers found that argument unpersuasive. At no time did any of the parties ever contest that grounds for dissolution did not exist. Any post-trial motions did not challenge that finding and no evidence or argument was presented to indicate the first judge would be motivated to change his mind. The court stated:

“Although Illinois courts have not ruled directly on this point, such precedents as exist seem to indicate that it is proper in this State for a successor judge to issue an order based upon his predecessor’s findings of fact. [Citations.] *** [W]e see nothing improper in the entry of an order dissolving the marriage, by the successor judge, based upon the factual findings of his predecessor.” Ayers, 82 Ill. App. 3d at 167-68, 402 N.E.2d at 404.

See also People v. Easley (1988), 119 Ill. 2d 535, 519 N.E.2d 914 (where the supreme court allowed a judge other than the judge who presided over the trial to impose sentence on the defendant).

The function of signing orders generally ought not be undertaken by a judge who did not preside at the hearing in the absence of death, retirement, or other reason showing unavailability of the hearing judge. However, we conclude it was not error in this case for Judge Fahey to sign the written order of commitment pursuant to the factual findings of Judge Carman. Respondent, on appeal, does not contest any of the factual findings made by Judge Carman. There is nothing in the record to indicate Judge Carman would have entered an order different from her factual findings orally pronounced at the hearing. No arguments have been presented by either party to suggest those factual findings were against the manifest weight of the evidence. At the time the written order was actually signed, respondent already had been informed of the basis for his commitment. The written order merely reduced those findings to writing and in no way affected respondent’s position. We hold it is proper for a successor judge to issue an order based on his predecessor’s findings of fact where there is no indication that the factual findings were against the manifest weight of the evidence and no argument or evidence was presented that the order was not consistent with the findings made by the predecessor judge.

For the foregoing reasons, the decision of the trial court committing defendant to the YA hospital for a period of 60 days is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE STEIGMANN

text:
    WILBUR HANY et al., on Behalf of Themselves and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. GENERAL ELECTRIC COMPANY, Defendant-Appellee.
    Fourth District
    No. 4 — 91—0165
    Opinion filed November 14, 1991.

      George E Galland, Jr., and Charles Barnhill, Jr., both of Davis, Miner, Barnhill & Galland, P.C., of Chicago, and Davis, Miner, Barnhill & Galland, P.C., of Madison, Wisconsin, for appellants.
    Roy G. Davis, Janet L. Jannusch, and Linda L. Laugges, all of Keck, Mahin & Cate, of Peoria, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, salaried employees at General Electric’s Bloomington, Illinois, facility, sued General Electric (GE) for failing to compensate them for vast amounts of overtime worked since 1982. After trial, the jury returned a general verdict for GE. Plaintiffs appeal, arguing that they proved GE had formed and breached a valid employment contract to pay overtime to its salaried employees under Duldulao v. Saint Mary of Nazareth Hospital Center (1987), 115 Ill. 2d 482, 505 N.E.2d 314. Plaintiffs specifically argue that the trial court erred by (1) submitting GE’s “modification defense” to the jury; (2) improperly instructing the jury on how an employer must disseminate a written policy in order to form or modify a Duldulao contract; and (3) denying them judgment n.o.v.

We affirm.

I. Facts

GE established a policy designed to uniformly compensate its salaried employees for overtime, which was announced in a memo entitled “General Purpose Control Department Instruction No. 0-1; Subject: Overtime Payment to Exempt Salaried Employees” (Instruction 0-1). Instruction 0-1 distinguishes “casual overtime” from “payable” overtime. Casual overtime is defined as “intermittent, occasional overtime *** necessary to accomplish the requirements and responsibilities of [a salaried employee’s] position.” After listing examples of casual overtime, Instruction 0-1 then defines payable overtime as time worked when management would require employees to work in order to respond to the “unusual demands of the business which require that an individual’s work be scheduled beyond his normal hours of work. Payable overtime is usually worked under a predetermined and definitely planned overtime work schedule approved in advance.”

GE first distributed Instruction 0-1 to its Bloomington plant in 1976 and reissued it in 1983. Although GE never distributed Instruction 0-1 to its nonmanagement employees, the substance of that policy had spread by both word of mouth and a 1981 memo sent by D.A. Hall, the payroll manager, to salaried employees. That memo referred all employees to Instruction 0-1 for a definition of payable overtime. In addition, GE allowed employees to read Instruction 0-1 if they so requested, although GE claims it did not allow them to copy Instruction 0-1 or take it with them from a manager’s office.

In 1982, a new general manager, Jesse Lawrence, took over the Bloomington facility, which apparently had undergone some economic troubles. Although GE redistributed a new version of Instruction 0-1 to its management after Lawrence’s arrival, Lawrence held monthly meetings at which he consistently stated that the salaried employees needed to work longer hours for which they would not receive overtime pay. Many employees testified that they understood as a result of these meetings that they would not receive compensation for these extra hours of work. While a few employees who did not receive advance approval submitted unsuccessful applications for payable overtime to “test the waters” on how Lawrence viewed payable overtime, every employee who received advance approval for payable overtime received overtime pay. However, Lawrence essentially stopped approving requests for payable overtime.

In 1986, four years after Lawrence arrived at the Bloomington plant, plaintiffs filed this class action lawsuit against GE for breaching its promise to pay overtime demanded of them by management. The trial court certified the class as GE’s nonmanagement, salaried employees at the Bloomington plant. At the end of the trial, plaintiffs submitted but then withdrew special verdict forms. Defendant then submitted a general verdict form with special interrogatories for the jury, to which plaintiffs strenuously objected. The trial court agreed with plaintiffs and gave the jury only a general verdict form, which the jury returned in favor of defendant.

II. The Duldulao Employment Contract

In Duldulao, the Illinois Supreme Court held that when an employer makes a clear policy statement to its employees, an enforceable contract right may arise between the employer and its employees. (Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.) The court set forth the following elements a plaintiff must prove to establish such a contract:

“First, the language of the policy statement must contain a promise clear enough that an employee would reasonably believe that an offer has been made. Second, the statement must be disseminated to the employee in such a manner that the employee is aware of its contents and reasonably believes it to be an offer. Third, the employee must accept the offer by commencing or continuing to work after learning of the policy statement.” Duldulao, 115 Ill. 2d at 490, 505 N.E.2d at 318.

Though Duldulao and most of its progeny involved a contract that limited an employer’s ability to fire or discipline an employee (Duldulao, 115 Ill. 2d at 484, 505 N.E.2d at 315; see also Daymon v. Hardin County General Hospital (1991), 210 Ill. App. 3d 927, 929, 569 N.E.2d 316, 317; Anders v. Mobil Chemical Co. (1990), 201 Ill. App. 3d 1088, 1090, 559 N.E.2d 1119, 1119-20), a Duldulao contract can create other employee rights under a clearly worded, sufficiently disseminated policy that creates expectations in a reasonable employee. We conclude that such a contract could create a right to receive overtime pay.

A. The Requirement of Dissemination

Duldulao requires that an employer must disseminate the policy statement in question to its employees in order for that policy statement to constitute an offer to the employees. At least one court has held that an “employer’s handbook” that sets out guidelines for supervisors and managers, distributed only to supervisors, does not meet this first condition. (See Koch v. Illinois Power Co. (1988), 175 Ill. App. 3d 248, 256-57, 529 N.E.2d 281, 287.) However, while not all the employees in Koch could view the guidelines, in the present case GE not only allowed employees to view Instruction 0-1, it also informed its employees that they could do so. Thus, a factual issue arose at trial as to whether GE had disseminated the policy to a sufficient degree among its employees so as to constitute an offer.

At trial, GE admitted that it did distribute other information manuals to its salaried employees, such as insurance booklets and a salaried employee handbook, but the manuals neither contained nor referred to Instruction 0-1, and GE never gave nonmanagement employees a copy of Instruction 0-1. Plaintiffs argued at trial that GE did disseminate Instruction 0-1 because, although GE did not give each employee a copy of Instruction 0-1, GE did allow them to view and copy it, and many employees did, in fact, have a copy. GE replied that the employees, without authorization, received their copies from plaintiff Ronald Monkham, a nonmanagement, salaried employee. Monkham testified that he knew GE did not want the salaried employees to receive a copy of Instruction 0-1, so he obtained a copy from a friend of his, a manager in another department, instead of going to his own supervisor for a copy. He then copied Instruction 0-1 and distributed it to other salaried employees.

We find the jury could reasonably have concluded that GE did not disseminate the policy. As such, sufficient grounds exist to affirm the jury’s general verdict. See Moore v. Jewel Tea Co. (1970), 46 Ill. 2d 288, 294, 263 N.E.2d 103, 106 (holding that any one ground out of many submitted to jury for a general verdict will sustain the verdict), cited with approval in Peterson v. Henning (1983), 116 Ill. App. 3d 305, 309-10, 452 N.E.2d 135, 138-39.

B. Modification of the Employer’s Policy Statement

Plaintiffs argue that the trial court erred in submitting defendant’s “modification defense” to the jury because no material fact existed as to whether GE modified the contract.

1. Under Duldulao, An Employer Policy Creates

A Continuing Offer, Not An Interminable Contract

Plaintiffs essentially argue that GE and its employees formed a contract because GE distributed Instruction 0-1 to its management, the employees learned of that policy through reading it or through word of mouth at the plant, and the employees worked extended schedules after learning of the contract. Because Instruction 0-1 never changed, plaintiffs argue that GE never modified the Duldulao contract Instruction 0-1 created. GE argues in response that if a contract was entered into, Lawrence modified it by telling the employees they would not receive overtime pay for the extra hours worked.

Assuming arguendo that GE did, in fact, sufficiently disseminate Instruction 0-1 in the first place so as to create a Duldulao contract, plaintiffs misconstrue the nature of the contract created. On this record, an employer distributing a policy statement like Instruction 0-1 does not make a contract, but rather makes a continuing offer to employees who work overtime. As with any offer, the employer may rescind or modify its offer before an employee accepts by working overtime. See Condon v. American Telephone & Telegraph Co. (1991), 210 Ill. App. 3d 701, 705, 569 N.E.2d 518, 520 (“We believe an employer may unilaterally alter existing policies to disclaim those policies in order to prevent contractual obligations from arising under Duldulao”); Ohlemeier v. Community Consolidated School District No. 90 (1985), 151 Ill. App. 3d 710, 717, 502 N.E.2d 1312, 1317 (employer can modify a Duldulao contract with at-will employees at any time).

In Garber v. Harris Trust & Savings Bank (1982), 104 Ill. App. 3d 675, 678-80, 432 N.E.2d 1309, 1311-12, the court held that a credit card issuer and holder do not hold a single, interminable, and unmodifiable contract under which the issuer agrees to extend credit to the holder. Instead, the credit card issuer makes a continuing offer to extend credit to the holder that the holder accepts each time he uses the card. As such, the parties enter into many individual contracts as the issuer allows the holder to use the card and the holder does, in fact, use it. Accordingly, Garber held that an issuer may modify the terms of the credit arrangement at any time, which would affect the terms of the subsequent contracts that arise when the holder thereafter uses the card.

Similarly, an employer who issues a policy statement like Instruction 0-1, under which it agrees to pay overtime in certain circumstances, may terminate or modify the offer contained in that policy statement at any time. Although modification presumably would not affect any rights which accrued prior thereto, it would alter the terms under which the employees thereafter accepted the modified offer by working overtime. Accordingly, an employer may prove that it modified the offer contained within a sufficiently disseminated policy statement by disseminating that modification to the same or greater extent that it disseminated the original policy statement.

2. Submitting Defendant’s “Modification Defense” to the Jury and Denying Plaintiff’s Motion for Judgment n.o.v.

Plaintiffs argue that the trial court erred in allowing defendant to argue that it had modified the Duldulao contract. They point out that at no time did GE rescind Instruction 0-1 and that Lawrence’s oral modifications did not suffice to modify a written policy statement. As such, plaintiffs argue that the trial court ought not have allowed the jury to consider modification because no factual dispute existed that a contract to pay for overtime arose between GE and its employees.

Initially, we disagree with plaintiffs’ argument that the trial judge, not the jury, should have determined whether a contract existed. Though courts have unqualifiedly held that “[t]he question of the existence of a contract is a matter of law for determination by the court” (Bennett v. Evanston Hospital (1989), 184 Ill. App. 3d 1030, 1033, 540 N.E.2d 979, 981, citing Bank of Benton v. Cogdill (1983), 118 Ill. App. 3d 280, 454 N.E.2d 1120; see also Robinson v. Christopher Greater Area Rural Health Planning Corp. (1991), 207 Ill. App. 3d 1030, 1037, 566 N.E.2d 768, 772), this rule applies only when no factual dispute exists. (Bank of Benton, 118 Ill. App. 3d at 288, 454 N.E.2d at 1125.) When a factual dispute is present, the question of whether a contract exists is for the jury to decide. (Commonwealth Edison Co. v. Industrial Comm’n (1988), 167 Ill. App. 3d 229, 233, 521 N.E.2d 159, 162 (“The existence of a contract is a question reserved for the trier of fact, and this question becomes a question of law only if the facts are undisputed and reasonable men would agree as to the inferences drawn from them”).

In the present case, two clear factual issues are present on the question of whether a contract existed: (1) did GE sufficiently disseminate Instruction 0-1 to its employees through their general awareness, as well as through GE’s referring to that policy in memos to its employees, even though it never distributed a copy to the employees; and (2) if GE did sufficiently disseminate this policy, did GE, through Lawrence’s statements at the monthly meetings, modify its continuing offer to pay overtime.

Plaintiffs’ own evidence established that Lawrence contradicted the employees’ expectations under Instruction 0-1 by making it clear at the monthly meetings that he would not approve overtime pay for the extra hours required of salaried employees. Therefore, because these two factual issues remained unresolved, the trial court could not have ruled that a contract existed as a matter of law. Accordingly, the trial court did not err in submitting both questions to the jury, nor in denying plaintiffs’ motion for judgment n.o.v. once the jury found for GE.

Had GE distributed Instruction 0-1 to employees in an employee handbook, then plaintiffs’ argument — that a plant manager’s attempt to curb the written policy by oral statements at employee meetings is not sufficient to modify the contract — would be much stronger. However, GE distributed Instruction 0-1 to the plant management, not its employees. Thus, if a Duldulao contract was created, it was only by the oral tradition that spread the essence of Instruction 0-1 to the employees and by the 1981 Hall memo that merely referred employees to Instruction 0-1. To the extent that such a policy creates a Duldulao contract, GE need not have distributed a written memo or new policy statement to rescind a written policy that the employees never received. Rather, it could modify that policy in the same way it created it: by countering that oral tradition with clear statements to employees that they would not receive overtime pay for expanded scheduled work. Because the jury heard sufficient evidence that Lawrence repeatedly conveyed that message to GE employees, we find the general verdict in favor of defendant was not contrary to the manifest weight of the evidence.

C. Instructing the Jury on Dissemination

Plaintiffs also argue that the trial court erred in the manner it instructed the jury on dissemination. Both parties originally submitted instructions on the definition of “dissemination,” but the trial court declined to use any of those instructions. During its deliberations, the jury sent a note to the judge requesting a definition of dissemination. The trial court then gave the jury, over plaintiffs’ counsel’s objections, a dictionary definition of the word “disseminate”: “The word ‘disseminate’ means to broadcast widely; to spread, scatter, or disperse.” We find no error in the trial court’s action.

The trial court has the discretion to determine what instructions to give the jury and we will not disturb the exercise of its discretion unless it has been clearly abused. (Villa v. Crown Cork & Seal Co. (1990), 202 Ill. App. 3d 1082, 1087, 560 N.E.2d 969, 972.) Though the trial court need not define words of common usage and understanding (De Rosa v. Albert F. Amling Co. (1980), 84 Ill. App. 3d 64, 75, 404 N.E.2d 564, 572), it should respond, when appropriate, to an explicit question by the jury on a point of law relevant to the deliberation. Kingston v. Turner (1985), 133 Ill. App. 3d 677, 681, 479 N.E.2d 410, 412.

Upon receiving a note from the jury that it did not know what “disseminate” meant, the court provided an ordinary, neutral, non-argumentative definition. By doing so, the court appropriately answered the jury’s question.

Plaintiffs cited Ohlemeier to the trial court in support of their requested jury instruction defining “dissemination.” While a trial court should inform a jury of judicial or legal interpretations of an ordinary term (Kingston, 133 Ill. App. 3d at 681, 479 N.E.2d at 412), no such judicial interpretation of the word “dissemination” exists to support plaintiffs’ proposed instruction. Ohlemeier hardly discussed dissemination and contains no such legal interpretation.

The court also properly rejected plaintiffs’ request that it give the following instruction: “It is not necessary to find that GE individually gave all exempt employees a copy of *** Instruction [0-1] itself.” That jury instruction would have overemphasized the fact that GE need not distribute the manual to all employees in order to disseminate it. See Villa, 202 Ill. App. 3d at 1088, 560 N.E.2d at 972 (a court should take care to not give instructions that overemphasize any particular matter).

On appeal, plaintiffs cite Arneson v. Board of Trustees (1991), 210 Ill. App. 3d 844, 569 N.E.2d 252, for the proposition that an employer can disseminate a policy statement by giving employees a document that refers to the policy statement. They argue that Arneson means that an employer need not give each employee a copy of the policy statement. However, Arneson involved an employment contract that incorporated the employer’s policy statement and not, as here, a single 1981 memo from the payroll manager to employees that casually referred employees to Instruction 0-1. Instead of merely referring to a source in which the policy statement may be found, the Arneson employment contract incorporated the policy statement. (Arneson, 210 Ill. App. 3d at 851, 569 N.E.2d at 257.) Because no clear judicial gloss exists on the definition of dissemination, and because the supreme court apparently used this common term in its ordinary sense in Duldulao, the trial court did not err by refusing plaintiffs’ instruction.

D. Other Issues

We need not address the other issues plaintiffs raise on appeal challenging the jury’s verdict because we find sufficient evidence to sustain the verdict in favor of GE on the basis of either insufficient dissemination of Instruction 0-1 or sufficient modification of that policy by GE. When a jury considers many alternative grounds for a general verdict, a reviewing court can sustain the general verdict, without speculating as to which ground the jury found persuasive, if any one of those grounds support the general verdict. (Moore, 46 Ill. 2d at 294, 263 N.E.2d at 106 (holding that a single ground out of many submitted to jury for a general verdict will sustain the verdict); Peterson, 116 Ill. App. 3d at 309-10, 452 N.E.2d at 138-39.) To the extent that plaintiffs think this procedure inadequate because the jury might have actually rejected the insufficient dissemination or sufficient modification theories and accepted the other theories advanced by GE to defeat plaintiffs’ claims, plaintiffs (1) should not have withdrawn their own special verdict forms, (2) should not have objected to defendant’s special interrogatories, (3) should have suggested modifications to defendant’s interrogatories, or (4) submitted special interrogatories that the court would have accepted.

IV. Conclusion

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

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


author: JUSTICE KNECHT

text:
      In re MARRIAGE OF LESLIE JOERGER, Petitioner-Appellee, and BEVERLY JOERGER, Respondent-Appellant.
    Fourth District
    No. 4 — 91—0417
    Opinion filed November 21, 1991.

      Patrick James Smith, of Delano Law Offices, P.C., of Springfield, for appellant.
    Michael B. Metnick and Diana Cherry, both of Metnick, Barewin & Wise, of Springfield, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

On January 30, 1991, petitioner, Leslie Joerger, Sr., filed for a dissolution of his marriage to respondent, Beverly Joerger. Petitioner also sought a temporary restraining order (TRO) and a preliminary injunction against respondent’s participation in the operation of the family-owned business, the Horseshoe Lounge. The Sangamon County circuit court issued the TRO on the same date. A hearing on the preliminary injunction took place February 7 and 8, 1991. On February 8, 1991, the court granted the preliminary injunction against respondent. Respondent appeals. She argues the circuit court abused its discretion by enjoining her from participating in the tavern’s operation. We disagree and affirm.

Prior to filing this action, petitioner and respondent were married for nearly 10 years. Throughout their marriage they operated the Horseshoe Lounge. Petitioner is 49 years old and presently works at and manages the tavern. He previously worked a night shift at Central States Coca-Cola Bottling Company for 15 years. His position was, however, terminated in January 1991. Respondent is 52 years old. She has been employed as a bartender or waitress over the past 25 years. Throughout her marriage, respondent worked at the family-owned tavern until the court issued the TRO on January 30, 1991. As of February 8, 1991, the date of the hearing on the preliminary injunction, respondent had no source of income.

Petitioner testified that when he learned he would lose his job at Coca-Cola, he began to look for a building to buy for the tavern’s operation. He planned to work at the tavern full time. The tavern relocated to its present location, 4136 Peoria Road, Springfield, Illinois, in the summer of 1990. Prior to that time, it operated out of leased space at 1914 North Dirksen Parkway, Springfield, Illinois. Petitioner testified he performed all tasks related to the purchase of the building for the tavern. He contacted realtors, located the building, negotiated the terms of the purchase and borrowed $10,000 from his mother for the down payment. He signed an agreement with his mother in order to borrow the money. Petitioner also testified he made all decisions regarding renovating the building to enable the tavern to open at its new location. In addition, he contributed approximately $2,000 of his $4,700 severance pay from Coca-Cola to the renovation costs. He does not dispute that the building in which the tavern is operating is marital property.

Respondent testified that when she was not working beyond 5 p.m. she accompanied petitioner in their search for a new location for the tavern. She stated she located the property which was purchased for the tavern’s operation. Respondent also contended she, too, met with the realtor and she and petitioner discussed the contract for purchase of the building. She contended petitioner discussed with her how to finance the purchase of the building and agreed he would ask his mother for a loan. Both parties signed the contract for deed to the property.

Respondent also countered petitioner’s testimony regarding remodeling of the tavern. She testified decisions related to remodeling were mutually made, she assisted in the selection and acquisition of necessary materials, and performed substantial cleaning tasks during the renovation stage.

Petitioner testified after completing his eight-hour shift at Coca-Cola, he went to the tavern to purchase and stock supplies, and to work on repair or remodeling tasks. He arrived at the tavern between 8:30 a.m. and 11 a.m. daily to accomplish these tasks. Three patrons of the tavern testified petitioner was present during respondent’s shift, which was 8 a.m. to 5 p.m. Petitioner stated he took care of all bookkeeping related to the tavern, hired and regularly met with the accountant, obtained the requisite licenses, prepared tax forms, and handled all legal matters.

Respondent agreed petitioner performed these tasks, but testified money matters related to the tavern were a shared responsibility. However, according to her own testimony, her role in the operation of the business included tending bar, collecting the receipts generated during her 8 a.m. to 5 p.m. shift, accepting orders, and cooking. Respondent’s testimony, and testimony of a bartender at the tavern, established these tasks are routinely performed by the tavern’s bartenders. Two bartenders of the tavern testified respondent also hired and supervised employees of the tavern. Respondent also arranged for the tavern to carry microwaveable foods.

Debra Gay Leckrone, a bartender at the Horseshoe Lounge for seven years, called as a witness by respondent, conceded in her testimony that although respondent’s role in the tavern’s operation was more than a bartender, petitioner was the overall manager.

The parties agreed they were unable to operate the tavern together because of their inability to communicate. However, respondent thought they could each participate in its operation if each was at the tavern at different times. The petitioner viewed this arrangement as impractical because of their inability to communicate. Petitioner further testified tavern patrons noticed the animosity between the parties, and that if both parties continued to operate the tavern, its profits would suffer.

Petitioner’s testimony suggested respondent began taking money from the tavern’s cash drawer in November 1990. He conceded on cross-examination, however, even when the tavern was operating at its leased location, his earnings from Coca-Cola subsidized the tavern’s expenses. This subsidization continued after the tavern relocated. In addition, records prepared by the tavern’s accountant showed losses each month from June 1990 through November 1990 were relatively the same. The only month which showed a profit was July 1990, and petitioner stated that was the only month the tavern made a profit. Petitioner did not provide records for December 1990 or January 1991, which were the two months during which he suggested respondent took money from the cash drawer.

Respondent testified money was always short since they began operating the tavern and bills were not always timely paid. In addition, respondent’s attorney established during cross-examination of petitioner that there was no procedure for recording when cash was removed from the tavern’s cash box for expenses unrelated to the tavern. Petitioner conceded it was common practice for both parties to remove cash for other purposes without replacing it with a receipt.

At the close of the hearing, the Sangamon County circuit court issued a preliminary injunction against respondent. The court restrained respondent from participating in the tavern’s operation while the dissolution proceedings were pending. In addition, it ordered petitioner to provide to respondent weekly accountings of the business expenses and receipts. Because the injunction deprived respondent of her sole source of income, the court promised her prompt hearing if she filed for temporary support.

The circuit court found preliminary injunctive relief proper because the business would be irreparably injured if both parties continued to participate in its operation and this would diminish its value as a marital asset. Although it characterized the question about which party should continue to operate the tavern as “close,” the court reasoned the evidence established petitioner managed the tavern and concluded he should remain in control of its operation.

Petitioner is correct that the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.) grants the circuit court authority to enter temporary relief in dissolution proceedings. Section 501(a)(2) of the Act allows either party to request a preliminary injunction. (Ill. Rev. Stat. 1989, ch. 40, par. 501(a)(2).) The circuit court’s authority here comes from section 501(a)(2)(iv), which states:

“(a) Either party may move for:
* * *
(2) a temporary restraining order or preliminary injunction, accompanied by affidavit showing a factual basis for any of the following relief:
* * *
(iv) providing other injunctive relief proper in the circumstances ***.’’ Ill. Rev. Stat. 1989, ch. 40, par. 501(a)(2)(iv).

Generally, injunctive relief is proper if the petitioner establishes by a preponderance of the evidence: (1) a protectable right is threatened; (2) petitioner would otherwise be irreparably injured; (3) there is no adequate legal remedy, and (4) the petitioner will likely prevail on the merits. (Buzz Barton & Associates, Inc. v. Giannone (1985), 108 Ill. 2d 373, 387, 483 N.E.2d 1271, 1278; Ron Smith Trucking, Inc. v. Jackson (1990), 196 Ill. App. 3d 59, 63, 552 N.E.2d 1271, 1275.) The court must also conclude the advantages of granting the injunction outweigh the detriment to the respondent if injunctive relief were denied. Ron Smith Trucking, Inc., 196 Ill. App. 3d at 63, 552 N.E.2d at 1275; see also Buzz Barton & Associates, 108 Ill. 2d at 387, 483 N.E.2d at 1277-78 (discussing balancing of several factors, including a comparison of the relative hardships imposed on the parties).

The decision to grant or deny injunctive relief rests within the discretion of the circuit court. The reviewing court ensures that the circuit court did not transgress its broad discretionary powers, but will only disturb the circuit court’s decision if its findings were contrary to the manifest weight of the evidence. Ron Smith Trucking, Inc., 196 Ill. App. 3d at 63, 552 N.E.2d at 1275; Lee/O’Keefe Insurance Agency, Inc. v. Ferega (1987), 163 Ill. App. 3d 997, 1003, 516 N.E.2d 1313, 1317.

Respondent contends the circuit court abused its discretion in issuing the preliminary injunction because petitioner did not establish the four criteria required for injunctive relief and because she was greatly disadvantaged by the injunction. However, petitioner showed the following by a preponderance of the evidence: he had a protectable interest in the tavern, there was no adequate legal remedy, and absent injunctive relief he would suffer irreparable harm. Because the injunctive order preserved the status quo necessary to protect the tavern’s value as a marital asset, petitioner did not have to show he would likely prevail on the merits after full hearing. In addition, injunctive relief was proper because the financial detriment which the injunctive order posed for respondent could be remedied if she sought temporary maintenance as the court recommended.

Respondent argues both parties have the same protectable interest because they are co-owners of the Horseshoe Lounge. She provides no authority for the principle that injunctive relief is improper where the parties share a property interest which is affected by the injunction.

For injunctive relief to be proper, the petitioner must establish a clearly identifiable right which needs protection. (Tamalunis v. City of Georgetown (1989), 185 Ill. App. 3d 173, 189, 542 N.E.2d 402, 413.) Petitioner’s ownership interest in the family-owned tavern is clearly identifiable. Both parties signed the contract for deed in the purchase of the property. As petitioner argues, a threatened business interest is an identifiable right which may be protected by injunctive relief. Eagle Books, Inc. v. Jones (1985), 130 Ill. App. 3d 407, 411, 474 N.E.2d 444, 447; In re Marriage of Weber (1989), 182 Ill. App. 3d 212, 219, 537 N.E.2d 1024, 1028.

Petitioner testified the tavern would lose customers if respondent began tending bar there again. His testimony also suggested respondent was taking money from the tavern. The circuit court could reasonably believe these factors represented a risk to the profitability of the tavern and therefore threatened petitioner’s business interest.

Petitioner was not required to prove his interest was greater than the respondent’s interest because a preliminary injunction does not determine the merits of the case. (Lonergan v. Crucible Steel Co. (1967), 37 Ill. 2d 599, 611, 229 N.E.2d 536, 542; Bryant v. Village of Sherman (1990), 204 Ill. App. 3d 583, 588, 561 N.E.2d 1320, 1323.) The petitioner must only establish “ ‘a fair question’ ” about whether his right deserves protection. Buzz Barton & Associates, 108 Ill. 2d at 386, 483 N.E.2d at 1277; see also Bryant, 204 Ill. App. 3d at 588, 561 N.E.2d at 1323.

Uncontested testimony established petitioner handled all legal matters, prepared tax forms, obtained required licenses, and worked with the accountant on monthly records. Petitioner signed an agreement to reimburse his mother the $10,000 which she loaned him for the purchase of the tavern. Respondent did not sign the agreement. Two thousand dollars of petitioner’s severance pay from Coca-Cola was also contributed to the down payment. In addition, the court found petitioner managed the tavern. As petitioner contends, these factors are sufficient to establish a protectable interest. If the business failed, petitioner’s financial loss would be substantial.

Respondent next contends the petitioner’s pleadings and testimony adduced at the hearing do not establish that a legal remedy was inadequate. She asserts the only evidence presented on this matter was testimony by petitioner that the tavern’s bills were recently unpaid, and this evidence was contradicted by evidence that the business had not made a profit in six months. Because respondent provides no analysis of this evidence, we cannot ascertain how she proposes this contradiction represents an adequate legal remedy.

Respondent does not discuss other evidence relevant to the determination of the adequacy of a legal remedy. A legal remedy is inadequate where damages are difficult to calculate at the time of hearing. (Eagle Books, 130 Ill. App. 3d at 411, 474 N.E.2d at 448; Weber, 182 Ill. App. 3d at 220, 537 N.E.2d at 1029.) Petitioner argues testimony that respondent was removing money from the cash drawer supports the court’s conclusion a legal remedy was inadequate because it would be difficult, if not impossible, to establish future revenues. The accountant’s monthly records could possibly establish previous revenue which could provide a basis for calculating future damages.

However, for a legal remedy to preclude injunctive relief, the remedy must be, “clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy.” (Borrowman v. Howland (1983), 119 Ill. App. 3d 493, 501, 457 N.E.2d 103, 108; see also Tamalunis, 185 Ill. App. 3d at 189-90, 542 N.E.2d at 413.) Allowing both parties to continue to operate the tavern and requiring petitioner to seek damages after the tavern’s value plummeted due to loss of customers was simply not the most practical and efficient remedy here. Testimony showed the customers would not patronize the tavern if both parties continued to operate it. Potential loss of future profits and of customers made injunctive relief proper. Eagle Books, 130 Ill. App. 3d at 411, 474 N.E.2d at 448.

The court’s remedy was also adequate, prompt and complete. It required petitioner to provide accountings to respondent, and guaranteed respondent a prompt hearing on temporary maintenance because the injunction deprived her of her sole source of income.

Respondent’s third contention is that petitioner did not show he would suffer irreparable harm absent injunctive relief. However, the injury a party fears need not be irreparable or incapable of compensation, but must merely “denote[ ] transgressions of a continuing nature.” (Tamalunis, 185 Ill. App. 3d at 190, 542 N.E.2d at 413.) Omitted from respondent’s discussion is petitioner’s testimony that respondent was taking money from the tavern’s cash drawer during the last three months she tended bar. Although this testimony was contradicted by respondent, the court could reasonably have viewed the loss of profits as a continual transgression which would cause irreparable injury to petitioner’s interest and to the marital estate.

The parties agreed because of hostilities between them and their inability to communicate, neither could operate the tavern while the other was present. Testimony suggested petitioner’s management tasks were necessarily carried out during the hours which respondent worked at the tavern. Petitioner’s testimony that patrons noted the tension between the parties suggests if both were present, the atmosphere at the tavern would not be conducive to a profitable business.

In addition, as petitioner maintains, his testimony that respondent was removing money from the tavern’s cash drawer may have established the potential for irreparable harm to the tavern’s profits and, therefore, also to marital assets if respondent was not enjoined from operating the tavern. Petitioner need not prove respondent was dissipating tavern assets. The mere threat of dissipation can be considered by the court in determining the risk of irreparable harm. Weber, 182 Ill. App. 3d at 220, 537 N.E.2d at 1029.

Respondent next argues petitioner has not established the fourth criterion for injunctive relief. She contends he has not shown he is likely to prevail after full hearing on the merits. An exception to the necessity of establishing this prong occurs when the property at issue may be destroyed or the petitioner is seeking to maintain the status quo. Blue Cross Association v. 666 North Lake Shore Drive Associates (1981), 100 Ill. App. 3d 647, 650-51, 427 N.E.2d 270, 272; Alexander v. Standard Oil Co. (1977), 53 Ill. App. 3d 690, 698, 368 N.E.2d 1010, 1015.

Respondent concedes where the injunction is issued to maintain the status quo, a party need not establish this prong of the test. However, she contends because the injunctive relief changed the status quo, petitioner had to show he was likely to succeed on the merits. Respondent concludes that because petitioner did not establish this, injunctive relief was improper. Generally, a preliminary injunction is a temporary remedy granted to preserve the status quo. “Status quo” is characterized by numerous courts as the “last, peaceable uncontested status which preceded the litigation.” See, e.g., Lee/O’Keefe Insurance Agency, Inc., 163 Ill. App. 3d at 1002, 516 N.E.2d at 1317; see also In re Marriage of Schwartz (1985), 131 Ill. App. 3d 351, 354, 475 N.E.2d 1077, 1079-80.

Respondent contends the status quo existed when both parties operated the tavern. She argues the injunction altered the status quo by enjoining her from operating the tavern as she had for the past 10 years. Respondent further contends there was no reason to alter the status because the tavern could have continued to operate as it had during the parties’ marriage. This contention ignores uncontroverted testimony by both parties that neither could operate the tavern while the other was present.

Petitioner argues Weber (182 Ill. App. 3d 212, 537 N.E.2d 1024) supports his view that he need not establish the likelihood he will succeed on the merits because the injunctive relief is requested in conjunction with a dissolution proceeding. Weber characterized the dissolution proceeding as a “no win” situation and concluded that determining the likelihood of success on the merits before issuing injunctive relief is not helpful. Weber, 182 Ill. App. 3d at 220-21, 537 N.E.2d at 1029.

However, the injunction issued in Weber restrained respondent from interfering with his wife’s participation in the operation and management of a family-owned business while dissolution proceedings were pending. (Weber, 182 Ill. App. 3d at 217, 537 N.E.2d at 1027.) This is distinct from our case. The Weber court did not need to determine the likelihood of the petitioner’s success on the merits because the injunctive relief preserved the status quo. Prior to the filing of the dissolution petition, the wife participated in the management and operation of the business. The injunction preserved this status. Weber, 182 Ill. App. 3d at 215-17, 537 N.E.2d at 1026-27.

Respondent also relies on Weber, which she argues shows that the circuit court abused its discretion. She contends the cases are factually identical because, in each, the issue was whether injunctive relief is proper when dissolution proceedings are pending and one spouse is attempting to enjoin the other from participating in the operation of a family-owned business.

Respondent ignores the essential difference between Weber and the instant case. The Weber court specifically found the party who sought the preliminary injunction — the wife moved to restrain her husband from terminating her interest in a business they founded— played an active role in the management of the business. (Weber, 182 Ill. App. 3d at 219, 537 N.E.2d at 1028-29.) The circuit court in the instant case reasonably concluded the management duties were performed by petitioner, not by respondent nor shared by the parties. The only evidence that respondent performed management tasks was testimony she hired and supervised other bartenders and she ordered microwaveable foods. She did not deny petitioner handled the books, all legal matters and licensing. Although she testified the parties shared financial responsibilities, she did not explain her role in these matters.

We need not rely on Weber to find that the trial court amply exercised its discretion in issuing the preliminary injunction. Contrary to respondent’s argument, the court did not alter the status quo. Because it did not alter the status quo, petitioner was not required to show he would likely prevail on the merits after full hearing. Blue Cross Association, 100 Ill. App. 3d at 650-51, 427 N.E.2d at 272; Alexander, 53 Ill. App. 3d at 698, 368 N.E.2d at 1015.

Another interpretation of the “status quo” to be preserved by a preliminary injunction is the status quo necessary to prevent dissipation or destruction of the property in question. (Gannett Outdoor v. Baise (1987), 163 Ill. App. 3d 717, 721, 516 N.E.2d 915, 918; Keeshin v. Schultz (1970), 128 Ill. App. 2d 460, 469, 262 N.E.2d 753, 757-58.) The court made clear in its findings and order, its primary concern was to protect the value of the tavern as a marital asset from dissipating. The court did not abuse its discretion in determining the status quo most appropriate to protect the marital estate was to allow petitioner to continue to manage the tavern, and to restrain respondent from participating in its operation.

Respondent’s final argument is injunctive relief was improper because it deprived her of employment. Somehow, according to respondent, this makes her loss greater than petitioner’s. In weighing the benefit and detriment to the parties, respondent could obtain employment as a bartender elsewhere. The court also encouraged her to seek temporary maintenance because it recognized the injunction denied her income. The court amply addressed respondent’s financial detriment. In addition, the court’s primary impetus for the injunctive order was to protect against the dissipation of the tavern’s value as a marital asset. Viewed in this light, the court’s order benefits both parties by preserving a marital asset from which both will benefit when the marital property is distributed. The advantages of the preliminary injunction outweigh the disadvantages which the injunction poses for respondent.

Although the court found the question of which party to enjoin a “close” question, its decision to allow petitioner to continue to manage the tavern, and to enjoin respondent from participating in its operation, is well within the realm of the court’s broad discretionary powers.

We affirm the circuit court’s ruling.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.