author: JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GEORGE DOUGLAS, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0418
    Opinion filed January 9, 1991.

      Randolph N. Stone, Public Defender, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago, for the People.
   JUSTICE FREEMAN

delivered the opinion of the court:

Defendant, George Douglas, was indicted for the armed robbery and murder of Robert Burrell on November 29, 1984. After a jury trial in the circuit court of Cook County, defendant was convicted of both offenses. The trial court sentenced defendant to consecutive sentences of 40 and 20 years’ imprisonment for the murder and armed robbery, respectively. Defendant appeals the murder conviction and consecutive sentences.

The testimony of the State’s occurrence witnesses, Robert King and LaTanya Livingston, revealed that, on November 29, 1984, defendant discussed with them a plan to rob a taxicab driver. Pursuant to the plan, later that day, Livingston took a cab driven by Robert Burrell to a specified address while defendant and King proceeded to the address separately. Defendant and King arrived at the address after the taxicab. Once there, defendant entered the cab through the rear passenger door, put a gun in Burrell’s back and announced a robbery. King, for his part, reached through the driver’s window, turned off the ignition and put a screwdriver to Burrell’s throat. When the pair asked Burrell for his money, he told them he did not have any. Burrell then forced his way out of the cab past King and started running away. Defendant shot Burrell in the back as he ran down the street.

Defendant presented no witnesses of his own. However, through cross-examination of the State’s witnesses, he did counter the State’s evidence that he had shot Burrell with evidence that it was King who had shot Burrell.

In his closing argument, defense counsel asked the jury to exercise its powers of lenity and find defendant guilty only of armed robbery. Defense counsel based this request on the evidence that King, rather than defendant, actually shot Burrell and on the unfairness to defendant of convicting him of murder while the State allowed King to plead guilty only to armed robbery and to receive only a sentence of 15 years.

After the jury began its deliberations, it sent a total of six notes to the trial court. The first note asked the court whether defendant’s conviction was dependent upon the facts presented or the law presented and its definition of murder. The second note asked the court whether it was able to respond to the first. In response to these two notes, the trial court reiterated to the jury the third paragraph of Illinois Pattern Jury Instructions, Criminal, No. 1.01 (2d ed. 1981) (IPI Criminal 2d No. 1.01), which instructs the jury that its duty is to determine the facts only from evidence and that it is to decide the case by applying the law to the facts.

The third note informed the court that the jury was unable to reach a verdict on one of the charges and asked the court what it should do “at this point.” In light of the fact that the jury had deliberated less than five hours, the trial court decided that the appropriate response would be to instruct the jury to continue its deliberations. The jury’s fourth note asked the trial court whether, if it reached a decision on the offense of murder, it would be “saying” that defendant was the person who actually pulled the trigger. The court determined that the proper response to the note would be to instruct the jury to read the instructions. The fifth note informed the court that the jury had reached a deadlock. The trial court determined that the appropriate response to this note was to require the jury to deliberate further. Due to the late hour, the trial court decided to send the jury to a hotel and have it continue deliberating the following day.

Upon reconvening the jury at that time, the trial court asked whether it was deadlocked. The jury, apparently in unison, informed the court that it was. Immediately thereafter, one juror informed the court that the jury was confused by the instructions. Based thereon, the trial court instructed the jury to submit a question to it regarding its confusion about the instructions, which the court would endeavor to answer. Pursuant to this instruction, the jury sent out its last note to the trial court. The note asked whether, if the jury found defendant guilty of the murder charge, it would be saying that the evidence showed that defendant actually pulled the trigger. The trial court answered that such a verdict, if the jury was satisfied beyond a reasonable doubt of the proof of the necessary elements, would state no conclusion on the issue whether defendant actually pulled the trigger. The jury rendered its verdict after receiving this answer.

Opinion

On appeal, defendant first contends that the trial court negated the jury’s power of lenity and denied him the effective assistance of counsel by reiterating the third paragraph of IPI Criminal 2d No. 1.01 in response to the jury’s first two notes.

With respect to the lenity argument, defendant asserts that in view of the trial court’s reiteration of IPI Criminal 2d No. 1.01, the jury “had to” find defendant guilty of murder no matter how inequitable they thought that verdict if they found that the facts established the elements of murder. Attempting to circumvent the case law holding that defendants do not have the right to instructions informing a jury of its power of lenity (see, e.g., United States v. Anderson (7th Cir. 1983), 716 F.2d 446; United States v. Dellinger (7th Cir. 1972), 472 F.2d 340, cert. denied (1973), 410 U.S. 970, 35 L. Ed. 2d 706, 93 S. Ct. 1443; United States v. Dougherty (D.C. Cir. 1972), 473 F.2d 1113), defendant argues that where, as here, there is both a sound legal basis for conviction and an equally sound equitable basis for acquittal, juries should be made aware of the options available to them so that they can make an informed decision. As such, defendant concludes that the trial court’s responses to the jury’s questions regarding its power of lenity improperly negated that power.

We disagree. We find United States v. Dougherty (D.C. Cir. 1972), 473 F.2d 1113, dispositive of this issue. Therein, the defendants argued that the trial court had erred in refusing to instruct the jury of its right to acquit the defendants without regard to the law and the evidence and in barring defendants from arguing that issue to the jury. As the parties note, the Court of Appeals rejected this argument. However, it is another aspect of Dougherty, which the parties have overlooked, which we find dispositive of defendant’s instant contention, particularly in view of defendant’s failure to cite any case law in support of his argument.

In Dougherty, the trial court instructed the jury, insofar as relevant here, “If you find that the Government has proven beyond a reasonable doubt that one or more of the defendants committed each of the elements comprising the crimes [charged], then I must instruct you further that the law does not recognize as a defense to *** these charges that the defendants were motivated to commit their acts by sincere political, religious or moral convictions or in obedience to some higher law.” (Dougherty, 473 F.2d at 1138 n.54.) The Dougherty defendants argued, similarly to defendant here, that this instruction was coercive, tantamount to a directed verdict of guilty and outside the proper scope of judicial instruction. In rejecting this argument, the court stated:

“ [Defendants’ real complaint seems to be that the court stated the law applicable to the facts. There is no contention— apart from the jury nullification claim, which we have rejected — that the charge was inaccurate as a statement of the applicable law. If a judge is to instruct the jury on the ultimate facts that are material under the law, he may properly advise the jury of what matters brought forward by defendants are not material under the applicable rule of law — as surely as he may charge that voluntary intoxication is no defense to a charge of second degree murder. Since it is the essence of the judicial function to declare the applicable law, *** the mere declaration of the law cannot be held outside the judicial function. This is tautological, but it is often the part of wisdom to be able to recognize which propositions are true tautologies. The jury were not told that they must bring in a guilty verdict nor was there the kind of language or conduct, going beyond a declaration of the applicable law, that has in other cases been held coercive, and an improper departure from the role of the judge.” Dougherty, 473 F.2d at 1138.

Similarly to the Dougherty court, we find that, in view of the fact that a defendant is not entitled, as a matter of right, to an instruction advising the jury of its power of lenity or nullification, the mere reiteration, in response to a query from the jury implicating that power, of an instruction declaring that it is to decide the case by applying the law to the facts as determined from the evidence is not outside the proper scope of the judicial function. In other words, given the absence of a right to have a jury instructed on its power of lenity or nullification, a mere - declaration of the law which is applicable to, and according to which a jury must decide, a case is not reversible error.

Likewise, we do not believe that the trial court’s response to the jury’s first two inquiries denied defendant the effective assistance of counsel. The only case cited by defendant in support, People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290, is clearly distinguishable from this case. In fact, it is so different from this case that we find defendant’s reliance thereon, as support for the proposition that the trial court’s actions denied him his sixth amendment rights, somewhat perplexing. In Chandler, the supreme court found that a defendant’s counsel was ineffective because he did not understand the law of accountability or felony murder, as revealed by his argument to the jury that the defendant should not be convicted of murder, although he had broken into the victim’s home, because he had not inflicted the fatal wounds upon the victim. In addition, the court also relied, as revealing counsel’s ineffectiveness, upon his failure to cross-examine several key prosecution witnesses, upon his cursory cross-examination of other prosecution witnesses and upon his failure to call any defense witnesses, including the defendant, although he had told the jury in opening statement that the defendant would testify. The court concluded that defense counsel had thus not subjected the State’s case to meaningful adversarial testing and that defendant was denied a fair trial. Chandler, 129 Ill. 2d at 246-49.

Chandler is of no assistance to defendant here. In that case there was no allegation of any action by the trial court which denied the assistance of counsel, as in this case. We simply cannot see how Chandler supports a conclusion that the trial court here denied defendant . the effective assistance of counsel by reiterating IPI Criminal 2d No. 1.01 in response to the first two inquiries from the jury. That, in fact, may have been the case. However, to convince us of that fact, defendant is required to cite some case law or other authority on point in support.

Defendant next contends that if we find his trial counsel’s lenity argument improper, we must then find his counsel’s performance ineffective because the record fails to reflect that defendant consented to his counsel’s concession of guilt in closing argument to the jury. We cannot agree.

In support of the instant argument, defendant relies principally upon People v. Hattery (1985), 109 Ill. 2d 449, 488 N.E.2d 513, cert. denied (1986), 478 U.S. 1013, 92 L. Ed. 2d 727, 106 S. Ct. 3314. In Hattery, the supreme court found the defendant’s counsel ineffective where he conceded the defendant’s guilt of the murder charged and his eligibility for the death penalty; presented no evidence or theory of defense; made no closing argument; made no attempt to hold the State to its burden of proof; and merely attempted to show that the defendant acted out of compulsion, which is a mitigating factor sufficient to preclude imposition of the death penalty. In holding such assistance ineffective, the court relied on case law where ineffectiveness was presumed because defense counsel’s theory contradicted the defendant’s position at trial. One of the court’s goals in relying upon those cases was to prevent counsel from undermining the defense preferred by the client by conceding guilt. To promote that goal, the court strongly condemned the practice of conceding guilt after the entry of a not-guilty plea unless the defendant’s consent to that concession appeared on the record. Hattery, 109 Ill. 2d at 462-65.

Contrary to defendant’s implication, Hattery did not establish a per se rule of ineffectiveness of counsel whenever counsel concedes a defendant’s guilt and the record fails to reveal the defendant’s consent, if there is overwhelming evidence of guilt. (People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290; People v. Johnson (1989), 128 Ill. 2d 253, 538 N.E.2d 1118.) Rather, in such cases, “ineffectiveness may be established; however, the defendant faces a high burden” before he can avoid the two-part test of ineffectiveness established in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. (Johnson, 128 Ill. 2d at 269-70.) That two-part test is: (1) whether counsel made errors so serious and whether his performance was so deficient that he was not functioning as the counsel guaranteed by the sixth amendment; and (2) whether those deficiencies so prejudiced the defendant that he was deprived of a fair trial, a trial whose result is reliable. Johnson, 128 Ill. 2d at 265-66.

Like the Johnson court, we do not believe that defendant’s counsel here entirely failed to subject the State’s case to meaningful adversarial testing such that this case falls within the facts of Hattery or such that the standard of United States v. Cronic (1984), 466 U.S. 648, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (for avoiding the two-part Strickland test), is met here. To reach this conclusion, we need look no further than defendant’s arguments in support of his contention that the trial court’s answers to the jury’s first two questions denied him effective assistance of counsel. In so contending, defendant conceded that “[i]n the instant case, trial counsel was an astute and zealous advocate for his client. He vigorously cross-examined all of the State’s witnesses and demonstrated a thorough understanding of the law of accountability. *** [He] did everything that the Chandler majority required. He subjected the State’s case to adversarial testing and presented the jury with arguments sufficient to justify acquittal.”

In view of these concessions on appeal by defendant, the fact that the record fails to reveal his consent to trial counsel’s concession of guilt in closing argument to the jury is, alone, insufficient to justify a reversal of his conviction on the basis of Hattery. In this regard, we note, like the Johnson court, that this case does not fall within any of the holdings of the cases relied upon in Hattery, in which the theory of defense counsel was contradicted by the defendant’s actions. Johnson, 128 Ill. 2d at 270-71.

Defendant next contends that the trial court’s responses to the six notes sent it by the jury had the cumulative effect of coercing the jury into finding defendant guilty of murder. Specifically, defendant asserts that the trial court further erred by failing to instruct the jury pursuant to People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731, after the jury informed the court that it had reached a deadlock. We cannot agree.

Contrary to defendant’s implication, Prim did not establish a per se rule that a trial court is to give a jury the instruction approved therein immediately upon being informed by the jury that it is deadlocked. Rather, the time when a supplemental instruction should be given is for the trial court to decide. It is primarily the function of the trial court to determine, on the basis of such factors as the length of time already spent in deliberation and the complexity of the issues, when a supplemental instruction is appropriate. The court has discretion to have the jury continue its deliberation even though it has reported that it is deadlocked and unable to reach a verdict. People v. Cowan (1985), 105 Ill. 2d 324, 328, 473 N.E.2d 1307.

In Cowan, the jury informed the court that it was deadlocked about four hours after it began deliberating, again three hours later, after the trial court simply allowed it to continue deliberating, and again 45 minutes after it began deliberating the next morning. The court found no abuse of discretion in allowing the jury to deliberate for eight hours before intervening to give the Prim instruction. In so holding, the court noted that there had been a five-day trial of nine charges; the jury had to weigh the testimony of 11 witnesses, including the defendant, who placed his credibility in issue by directly contradicting the testimony of the State’s main witness; a note sent out by the jury indicated that, although unlikely, there was some hope of agreement; the jury was sequestered for the night, and after deliberating for 45 minutes, sent its third note to the trial court indicating deadlock. Cowan, 105 Ill. 2d at 328-29.

Comparably to Cowan, the jury here first reported that it was deadlocked after less than five hours of deliberation, again reported that it was deadlocked after deliberating for approximately four more hours, or a total of nine hours, and was then sequestered until the next day. Upon reconvening then, the trial court inquired of the jury whether it was deadlocked. After the jury, apparently in unison, informed the court that it was, one juror informed the court that the jury was confused by the instructions. Based thereon, the trial court instructed the jury to submit a question to it regarding its confusion. After the court answered the question, the jury returned with a verdict of guilty of murder. The record does not reveal the length of time it took the jury to return with a guilty verdict after the court answered this question.

Given the facts of this case, we find, similarly to the finding in Cowan, that the trial court did not abuse its discretion in declining to give the Prim instruction after either five or nine hours of jury deliberations. As in Cowan, a Prim instruction might have been appropriate after the jury informed the court on the second day of deliberation that it was still deadlocked. However, in view of the jury’s expression of confusion regarding the instructions, we do not believe the trial court abused its discretion in choosing, instead, to attempt to eliminate that confusion by the use of a different instruction. Similarly to the second note sent out to the court in Cowan, the jury’s indication here that it might simply be confused about the instructions gave the court reason to believe that there was some possibility of agreement if that confusion were eliminated.

With regard to the jury’s last question, regarding the law of accountability, defendant contends that the trial court coerced the jury to convict him of murder by directly answering that question but refusing to answer the first question, regarding the jury’s power of lenity and failing to give the Prim instruction. We cannot agree.

The trial court’s answer to the jury’s last question was a correct statement of the law and thus entirely proper. In view of the fact that defendant was not entitled to an instruction to the jury concerning its power of lenity and that the failure to give a Prim instruction was not an abuse of discretion, the trial court’s response to the last inquiry posed by the jury did not, alone, coerce the jury to convict defendant of murder and thus deny him a fair trial.

Lastly, defendant contends that the trial court abused its discretion in sentencing him to consecutive sentences on the murder and armed robbery convictions totalling 60 years. Specifically, he asserts that his sentences were excessive in light of the evidence revealing that he and Robert King were similarly situated in terms of their criminal histories and responsibility for the armed robbery and murder of Robert Burrell. In addition, he asserts that the facts did not reveal, nor did the trial court find, that consecutive sentences were necessary to protect the public.

Preliminarily, we note that defendant has waived this issue by failing to raise it below. (People v. Hicks (1984), 101 Ill. 2d 366, 374, 462 N.E.2d 473.) Even were that not the case, we would find no error in the imposition of consecutive sentences.

Even assuming that defendant and Robert King were similarly situated in terms of their criminal histories and responsibility for the death of Robert Burrell, defendant’s argument that his sentences, when compared to King’s, are excessive ignores the significant fact that, unlike King, he was convicted of murder and armed robbery. That being the case, we simply fail to see how defendant’s sentences for both convictions can be compared to King’s single sentence for conviction of the lesser offense supported by the facts. To hold that defendant’s sentences for both the offenses of armed robbery and murder should be reduced to an approximation of the sentence imposed upon King for the lesser offense of armed robbery would simply and improperly ignore defendant’s additional conviction for murder. Defendant’s argument, carried to its extreme, would allow a defendant convicted of a crime committed with another person, who escaped arrest, to argue that no sentence should be imposed upon him for that reason. The illogic of such an argument is manifest.

Likewise, we do not find the imposition of consecutive sentences upon defendant assailable either because the facts did not reveal that such sentences were necessary to protect the public or because the trial court did not so explicitly find, as provided for under the Unified Code of Corrections. Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(b).

As defendant intimates, the imposition of consecutive sentences does not, in and of itself, imply that the sentencing court believed that such sentences were necessary to protect the public. On the other hand, notwithstanding the legislature’s use of the word “shall” in section 5 — 8—4, a trial court is not required to recite the language of the statute in determining sentence. “ ‘What is required is that the record show that the sentencing court is of the opinion that a consecutive term is necessary for the protection of the public.’ ” Hieles, 101 Ill. 2d at 374-75, quoting People v. Pittman (1982), 93 Ill. 2d 169, 178.

In imposing sentence, the trial court, as defendant asserts, failed to explicitly find that consecutive sentences were necessary to protect the public. That failure notwithstanding, we find that the record adequately reveals that the trial court believed that such sentences were necessary to protect the public.

In sentencing defendant, the trial court stated:

“It seems to me that the facts here, and the circumstances, and Mr. Douglas’s background clearly distinguish him from his accomplices, indeed it is because of his background alone, and the gravity of this offense that a sentence of more than fifteen years *** for the offense of Armed Robbery is appropriate. It seems to me that a maximum sentence for the offense of murder is the appropriate sentence in this case, with a consecutive sentence for the offense of Armed Robbery.”

The foregoing reasons of the trial court for the length of sentences imposed and their consecutiveness met the requirements of section 5 — 8—4. Specifically, we find that, in referring to the “facts” and “circumstances” and the “gravity” of the offense, the court clearly considered the “nature and circumstances of the offense” as required under section 5 — 8—4. Additionally, we find that, in referring to defendant’s “background,” the court was clearly referring to his prior criminal history, which included convictions for auto theft, armed robbery, robbery, unlawful use of a weapon and bail jumping. The court thus considered the “history and character” of defendant, as it was also required to do under section 5 — 8—4. While the court mentioned the facts and circumstances and gravity of the offense and defendant’s background in justifying a sentence for the armed robbery conviction of more than 15 years, we believe it would be illogical to conclude that the court did not consider those factors in also imposing consecutive sentences. We are sufficiently convinced that it did.

Finally, we do not believe that the consecutive sentences are assailable for the additional reason, offered by defendant, that the facts of the case do not support such sentences. In so concluding, we note that it is the facts and circumstances of a case and a defendant’s history and character which a court is required to consider in determining to impose consecutive sentences. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4.) As such, that the facts, alone, may not warrant such sentences is unavailing to defendant.

For all of the foregoing reasons, we affirm defendant’s conviction and sentences.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.

       Justice Freeman authored this opinion prior to his election to the Illinois Supreme Court.

       King and Livingston pled guilty to armed robbery and agreed to testify at defendant’s trial.

       This conclusion also disposes of defendant’s further contention that the trial court erred by not informing the jury, in response to the first two notes, that it could ignore the law and the legal definition of murder and, instead, focus on the evidence regarding defendant’s disparate treatment vis-a-vis Robert King.

       As defendant offers no argument in an attempt to satisfy the two-part Strickland test, we need not pass on whether that test is satisfied here and is thus a separate ground upon which to reverse his conviction.

       We have already found the first argument related to this contention without merit. See note 1.

       The instruction approved in Prim for deadlocked juries reads:
      “The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
      It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.
      You are not partisans. You are judges — judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.” Prim, 53 Ill. 2d at 75-76.

       Section 5 — 8—4(b) of the Unified Code of Corrections prohibits a trial court from imposing consecutive sentences “unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court shall set forth in the record.” Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(b).


source: Caselaw Access Project

license: Public Domain

text:
      In re MARRIAGE OF LINDA B. FAHY, Petitioner-Appellee, and MICHAEL J. FAHY, Respondent-Appellant.
    First District (3rd Division)
    No. 1—88—3039
    Opinion filed January 9, 1991.

      Michael J. Fahy, of Chicago, appellant pro se.

    No brief filed for appellee.
   JUSTICE FREEMAN

delivered the opinion of the court:

On September 6, 1985, petitioner, Linda B. Fahy, filed a petition for dissolution of her marriage to respondent, Michael J. Fahy, a licensed attorney, on the grounds of mental cruelty. On June 13, 1988, the trial court entered a judgment dissolving the parties’ marriage and, inter alia, awarding custody of their four minor children to petitioner and requiring respondent to pay child support. Respondent appeals from: (1) the judgment of dissolution; (2) the award of attorney fees to petitioner under the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (Ill. Rev. Stat. 1987, ch. 40, par. 508); (3) the award of partial attorney fees to petitioner as a sanction against respondent under section 2 — 611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611); and (4) the denial of his post-trial motions including a motion for sanctions under section 2 — 611. Petitioner has failed to file a brief in this court. Nonetheless, we must pass upon the merits of respondent’s appeal before disposing of it one way or another. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

Given the many points of error raised by respondent, we will discuss the facts of this case only as they are relevant to a disposition of those issues.

I

Respondent first contends that the trial court erred in holding him “in default” with respect to petitioner’s post-trial petitions for attorney fees under the Dissolution Act and for sanctions under section 2 — 611 and, as a result thereof, in entering in petitioner’s favor a “judgment on the pleadings” with respect to the former petition and a general judgment with respect to the latter petition. We agree.

On July 26, 1988, the trial court held a hearing on those petitions. During the hearing, the following colloquy occurred with respect to respondent’s written responses to the petitions, which the record reflects respondent filed on the day of the hearing, in violation of the June 13, 1988, order:

“THE COURT: [To petitioner’s attorney:] Did you receive a copy of [respondent’s] answer?
[PETITIONER’S ATTORNEY:] Yes.
THE COURT: *** Do you want to respond? We don’t have an issue here. There is a petition for attorneys fees 2 — 611 [sic] and you haven’t filed an answer to it.
[PETITIONER’S ATTORNEY:] I have received a copy of his response. I don’t think he has ever filed. He entitled it ‘Objection to motion for attorneys fees’.
THE COURT: I have a copy of it. Now, where is the issue? You haven’t filed any answer here at all. What kind of a pleading is this? This is an answer?
[RESPONDENT:] It is a response to her motion, to be her motion [sic].
THE COURT: *** Now you are not at issue here and this objection is not — what kind of motion is it? You aren’t at issue at all on this.
[RESPONDENT:] It is her motion, not mine. I object to it and ask it be denied.
THE COURT: What kind of motion is this?
[RESPONDENT:] It is an objection to a motion. Response. Objection.
THE COURT: Okay. A.nd you are going to stand on that?
[RESPONDENT:] Oh, yes, sir.
THE COURT: [To petitioner’s attorney:] Do you have a motion ***?
[PETITIONER’S ATTORNEY] Yes. I am asking for judgment on the pleading.
THE COURT: There will be a judgment on the pleading under [section] 508 [of the Dissolution Act].
[RESPONDENT:] Can I respond to that? ***
* * *
THE COURT: How do we get at issue? You are an attorney. You tell me how we get at issue. There are two petitions filed here. Under the rules what is required of you, sir?
[RESPONDENT:] Sir, nothing, I am not required to file any-written response to that, but I have done so.
THE COURT: Okay. In view of the fact that these motions were in writing and you have had an adequate time to file since June 13th and since June 13th on both of them respectively you have filed no written response. Under the rules of civil procedure and under the Supreme Court Rules you are in default. I will take these as true. So there will be a judgment for attorneys fees under [section 508 of the Dissolution Act], $10,188.50.”

The foregoing colloquy between the court, petitioner’s attorney and respondent clearly reveals that, notwithstanding that respondent filed written objections to the petitions, albeit he did so in an untimely manner, the trial court held respondent “in default” on both petitions because it considered his responses insufficient at law and thus tantamount to no responses at all. In so doing, we believe the court erred manifestly.

Our research has revealed no authority allowing a trial court to find a party in default and to enter a judgment against him based on such default for the simple failure to file a response to a motion or petition seeking some relief from the court where the party appears before the court on the date set for hearing the motion or petition. Specifically, notwithstanding the court’s references to the Code of Civil Procedure and supreme court rules, we find nothing in either allowing the court to do what it did in this case.

The only authority which we have found on the subject, Rule 2.1(d) of the Circuit Court of Cook County, while relating to motion practice in the law division of the county department thereof, strongly suggests that trial courts generally do not have authority to enter default judgments or judgments on the pleadings or comparable summary relief simply due to a failure to file a written response to a petition or motion. That rule, after, inter alia, allowing 28 days for the filing of an answering memorandum, provides that the “[failure to file a supporting or answering memorandum shall not be deemed to be a waiver of the motion, or a withdrawal of opposition thereto, but shall be deemed to be a waiver of the right to file the respective memorandum.” Thus, under this rule, the failure to file a written response to a motion within the time allowed therefor does not waive the right to contest the merits of the motion but merely the right to file a response thereafter. As such, it does not allow the entry of a default judgment on the motion due to such a failure. While this rule applies in the law division of the circuit court, we can imagine no reason why it should not also apply in the other divisions of the court, including the domestic relations division.

As such, we hold that the trial court erred in finding respondent in default for failure to file responses to petitioner’s petitions and, based thereon, in entering a judgment on the pleadings on the petition for attorney fees under the Dissolution Act.

In addition to asserting error in the trial court’s finding him “in default” on both petitions, respondent asserts that the trial court erred in granting the petition for sanctions under section 2 — 611 because, having granted the petition for fees under the Dissolution Act, the grant of the former petition constituted an improper dual penalty. We agree.

In Boltz v. Estate of Bryant (1988), 175 Ill. App. 3d 1056, 530 N.E.2d 985, the petitioner sought damages under section 11 — 110 of the Code of Civil Procedure for the wrongful issuance of injunctive relief against him and attorney fees under section 2 — 611 for the making of false statements and the raising of spurious defenses. After concluding that the petitioner had been entitled to damages under section 11 — 110, the trial court declined to decide whether he was also entitled to a sanctions award under section 2 — 611 given that damages under the former section include attorney fees and that the petitioner would not be entitled to double damages. Moreover, the court found it insignificant that the scope of the attorney fee awards under the two sections could differ since the recoveries under each would be substantially the same. The court so reasoned because the wrongful issuance of the injunction and the subsequent attempts to dissolve it occasioned much of the petitioner’s attorney fees. See also Niemoth v. Kohls (1988), 171 Ill. App. 3d 54, 524 N.E.2d 1085 (award of attorney fees under section 2 — 611 after attorney fees were awarded as a fine for contempt of court would be, in effect, a dual penalty).

We find the reasoning of Boltz dispositive here. Particularly, it cannot be denied, given the trial court’s statement that it was “going to arbitrarily assess against [respondent] $3,000 in fees under [section] 2 — 611” (emphasis added) that, by so ruling, the trial court duplicated, at least partially, the award of fees under the. Dissolution Act. Moreover, it is clear from the arguments of petitioner’s attorney in support of both petitions that the basis of both was that, similarly to Boltz, petitioner’s attorney fees were occasioned by respondent's alleged misconduct in contesting the petition for dissolution. This fact also reveals the duplication in the award of attorney fees under the Dissolution Act and the award of fees under section 2 — 611. The latter award was in error for this reason as well.

II

Respondent next contends the trial court erred in applying the new section 2 — 611 (Pub. Act 84 — 1431, eff. Nov. 26, 1986 (amending Ill. Rev. Stat. 1985, ch. 110, par. 2 — 611)) retroactively to the answer to the petition for dissolution, which respondent filed in November 1985, by striking the pleading and holding respondent in default thereafter and by requiring respondent’s attorneys, retained successively, to either sign the answer filed by respondent or withdraw from the case. We agree.

The new section 2 — 611, inter alia, requires an attorney or a party proceeding pro se to sign all pleadings, motions and other papers filed with a court. The signature constitutes a certification that the signer has read the paper, that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact, is warranted by existing law or a good-faith argument for the extension, modification or reversal of existing law and that it is not interposed for an improper purpose. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611.) Contrary to the belief of the trial court, the new section 2— 611 is not retroactively applicable for the reason that it does not merely effect a change in procedure but, rather, imposes new obligations which did not exist under the former section 2 — 611. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 525 N.E.2d 995.) Also contrary to the trial court’s and petitioner’s attorney’s belief, section 2 — 611 does not require an attorney or party to certify a pleading filed with the court pursuant to the language of the section. Rather, the signature of the party, alone, constitutes the certification provided for in section 2 — 611.

Given the foregoing, it is clear the trial court erred in requiring respondent’s original counsel to sign and certify, under section 2— 611, the answer to the petition for dissolution which respondent filed in 1985. It is also clear for the foregoing reasons and an additional reason that the trial court also erred in subsequently requiring respondent’s newly retained attorney to sign and certify, under section 2 — 611, the answer to the petition for dissolution which respondent refiled in 1987,. after the trial court had struck the original answer due to the noncompliance with section 2 — 611. The additional reason for the invalidity of the second ruling is that respondent had filed an appearance in the case in 1985 and never withdrew that appearance. ■ As such, when he refiled his answer to the petition for dissolution in 1987, just as when he had originally filed it in 1985, respondent was properly acting pro se. Therefore, by having signed and placed his address on the answer refiled in 1987, respondent fully complied with the procedural requirements of section 2 — 611. As such, it was error for the trial court to thereafter also require his new counsel to sign the pleading “in accordance” with section 2 — 611 and to require respondent after his second counsel’s withdrawal to certify the pleading in the language of section 2 — 611.

III

Given the foregoing, we further agree with respondent that the trial court denied him due process of law when, after his second counsel was allowed to withdraw in lieu of signing the refiled answer, the court denied respondent’s motion for a continuance to obtain new counsel and compelled respondent to represent himself at trial instanter. As Justice McCullough stated in Illinois Educational Labor Relations Board v. Homer Community Consolidated School District No. 208 (1987), 160 Ill. App. 3d 730, 745, 514 N.E.2d 465 (McCullough, J., dissenting), aff’d (1989), 132 Ill. 2d 29, 547 N.E.2d 182:

“The right of a litigant to be represented by counsel is fundamental. This right exists in civil as well as in criminal cases and is a part of the process of law guaranteed by the constitution. [Citation.] This right is a valuable one, the unwarranted denial of which is held to be a fundamental error.”

IV

Respondent next contends that the trial court erred in prohibiting him from authenticating, through a handwriting expert’s analysis of checks written by petitioner, a letter which she allegedly had written to a woman with whom she was allegedly romantically involved. Respondent asserts that the letter, evidencing petitioner’s alleged lesbianism, would have been extremely probative of her unfitness as the custodian of the parties’ four male minor children. Specifically, respondent asserts that the trial court erred at least to the extent that it misapplied the best evidence rule to bar him from introducing petitioner’s checks into evidence. Assuming, without deciding, that petitioner’s involvement, whether before or at the time of trial, in a lesbian relationship bore some relevance to the issue of custody of the parties’ children, as opposed to her per se unfitness as a custodian, we agree with respondent.

At trial, respondent sought to prove, through the testimony of a handwriting expert, that petitioner had written a letter to Pamela Spence which indicated their romantic involvement. To do so, respondent attempted to question the expert with respect to checks written by petitioner. However, petitioner objected to the use of copies of the checks and the trial court sustained the objection on the grounds of the best evidence rule. In so doing, the trial court erred.

As respondent notes, the best evidence rule is applicable only when the contents or terms of a writing are in issue and must be established (People v. Pelc (1988), 177 Ill. App. 3d 737, 532 N.E.2d 552), i.e., when the truth of the contents or terms is sought to be proved. Here, respondent was not attempting to establish the truth of the contents or terms of the checks which he wished to submit to his handwriting expert for analysis. Rather, he merely intended to have the expert compare the signature of petitioner appearing thereon to the handwriting in the letter which respondent claimed petitioner had written to Spence. The trial court itself recognized this fact when, in sustaining petitioner’s best evidence objection, it stated that the checks would not be admitted “for the purpose of identifying signatures.” As such, the best evidence rule was not a sufficient ground upon which to deny respondent the opportunity to establish that fact.

With respect to his attempt to authenticate the letter, respondent further argues that the trial court erred in denying his discovery request for handwriting exemplars from petitioner. Again assuming the relevance of the facts evidenced in the letter to the issue of custody, we agree. “The broad scope of discovery permitted *** takes on particular significance in child custody disputes. As the welfare of the children is at stake, and best interest of these children [is] the paramount concern [citation], the broadest possible latitude should be accorded to a reasonable discovery request.” Burgel v. Burgel (1988), 141 A.D.2d 215, 216, 533 N.Y.S. 2d 735, 736.

Respondent also asserts that the trial court erred in failing to deem admitted the fact that petitioner wrote the letter at issue. Respondent predicates this assertion upon petitioner’s failure to conform her answer to respondent’s request to admit the genuineness of the letter to the requisites of Supreme Court Rule 216(c) (107 Ill. 2d R. 216(c)). We disagree.

In asserting that petitioner did not, inter alia, specifically deny the genuineness of the letter, respondent ignores the following from her answer to the request to admit, “[Petitioner] denies that whatever said document may be *** it was never written by the Petitioner and she previously stated same when a similarly tendered document, i.e., a photocopy, was tendered to her on the date her deposition was taken[.]” Prior to so stating, petitioner did state that she neither admitted nor denied that the letter was genuine. However, petitioner’s immediately following denial that she wrote the letter sufficiently complied with the requirement of Supreme Court Rule 216(c). As such, the trial court did not abuse its discretion in failing to deem admitted the genuineness of the letter.

As indicated above, in concluding that the trial court erred with respect to the authentication of the letter, we have assumed that petitioner’s alleged past or present involvement in a lesbian relationship bears some relevance to the custody issue. Notwithstanding that assumption, upon remand, we instruct the trial court to determine what, if any, relevance such involvement actually has on that issue and to rule with respect to the letter at issue accordingly.

V

Respondent next asserts the trial court erred in failing to bifurcate the trial of the issues of cause for dissolution and custody of the parties’ children.

We find that, even if the trial court erred in failing to bifurcate the trial of this cause, such error was not prejudicial to respondent. We so conclude in view of our rejection below of respondent’s additional contention that the trial court erred in awarding custody of the parties’ four minor children to petitioner because it considered respondent’s marital misconduct and financial circumstances in so doing.

VI

Respondent next contends the trial court erred in ruling that his law license was a marital asset and in retaining jurisdiction thereover for “future determination as to distribution or apportionment.” We agree.

In In re Marriage of Weinstein (1984), 128 Ill. App. 3d 234, 470 N.E.2d 551, the court addressed the issue whether a medical degree and license to practice surgery earned during a marriage were marital property subject to distribution under the Dissolution Act. In so doing, the court noted that, regardless whether they had concluded that a professional degree or license was or was not marital property, the States that had considered the issue nevertheless agreed that the contributing spouse should be entitled to some form of compensation for the financial support provided the student spouse. Weinstein, 128 Ill. App. 3d at 241.

The court further noted that the majority of States, which had decided the issue in the negative, used three alternative methods to award such compensation: (1) considering the supporting spouse’s past contributions and the student spouse’s resulting increased earning capacity in the distribution of marital assets and liabilities; (2) awarding some form of maintenance or alimony; or (3) allowing a separate monetary award based on unjust enrichment or some other equitable principle. Weinstein, 128 Ill. App. 3d at 242-43.

The court then held that a professional degree and license are not marital property in Illinois and approved the three alternative approaches of the States also so holding. Specifically, the court stated that a spouse’s professional degree or license, earned while married through the financial support of the other spouse, as well as each spouse’s individual contributions to the marital unit, were relevant factors in the distribution of the couple’s marital assets and liabilities. In addition, those contributions, as well as the duration of the marriage and the parties’ relative future earning capacities, were to be taken into account in granting maintenance awards, where such awards were appropriate. Finally, a trial court could, in the exercise of its inherent equitable authority, grant relief pursuant to a claim for unjust enrichment presented in conjunction with a dissolution petition. Weinstein, 128 Ill. App. 3d at 244-45.

Contrary to the trial court’s apparent belief, the Weinstein court did not say that there was a way to get around the fact that a professional license or degree was not marital property or that not setting a monetary value on the license or degree was that way. More importantly, even if the three methods approved in Weinstein for taking such license or degree into consideration in awarding relief in dissolution proceedings could be construed as “ways” of getting around the holding that it is not marital property, the trial court failed to employ any of those three methods in dealing with respondent’s law degree or license. In holding, instead, that respondent’s law license was a marital asset and in retaining jurisdiction thereover for “future determination as to distribution or apportionment,” the trial court unabashedly failed to follow the governing law established by Weinstein. This was reversible error.

VII

Respondent next contends that, contrary to the trial court’s finding in entering the judgment of dissolution, he did not waive all of his right in and to any of the marital personal property, i.e., furniture and furnishings. As we are reversing the judgment of dissolution for the various errors of law enumerated herein, we need not address this factual issue.

VIII

Respondent next contends that the trial court erred in reserving the question of petitioner’s right to maintenance because she did not satisfy the statutory criteria for such an award. We disagree that the trial court’s reservation of the issue of maintenance to petitioner was error. However, our disagreement with respondent’s contention is not based on a finding that, contrary to his assertion, petitioner did satisfy the statutory prerequisites for maintenance. Rather, it is based on our conclusions: (a) that petitioner’s satisfaction of the statutory criteria for a maintenance award was not decided by the trial court and (b) that the statutory prerequisites for reservation of the question of maintenance were met in this case.

The beginning point of our analysis is section 504 of the Dissolution Act, providing that a trial court may award a spouse maintenance only if it finds that she lacks sufficient property to provide for her reasonable needs or is unable to support herself through employment or is awarded custody of a child whose condition or circumstances justify not requiring the custodian to seek employment outside the home or is otherwise without sufficient income. (Ill. Rev. Stat. 1987, ch. 40, par. 504.) Notwithstanding the findings required under section 504 for a maintenance award, section 401(b) of the Act allows a trial court to enter a judgment of dissolution while reserving, inter alia, the question of maintenance for either spouse upon (i) agreement of the parties, or (ii) motion of either party and a finding that appropriate circumstances exist therefor. Ill. Rev. Stat. 1987, ch. 40, par. 401(b); In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151.

In view of the foregoing provisions, we believe it is manifest that, in having reserved the issue of maintenance to the petitioner as allowed under section 401, the trial court did not reach or make the determinations required under section 504 for a maintenance award. As such, the trial court’s reservation of that issue is not assailable on the ground that petitioner did not meet the statutory prerequisites to justify such an award.

Moreover, we believe the trial court properly reserved the issue of maintenance. As noted above, section 401 provides that an issue such as maintenance may be reserved either upon agreement of the parties or a motion by either party and a finding that appropriate circumstances exist therefor. However, -with respect to the latter means by which an issue may be reserved, we do not believe that the record must reflect a formal motion by a party to reserve the issue and a formal finding by the trial court that appropriate circumstances for reservation exist. It is well established that, despite the plain language of section 504 that a court may award maintenance “only if it finds” that any of the prerequisites therefor have been satisfied, a trial court is not required to make express findings consistent with section 504. Rather, section 504 is satisfied if the record reveals a basis for the award. (In re Support of McGrew (1980), 90 Ill. App. 3d 27, 412 N.E.2d 641; In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 486 N.E.2d 267.) It is well established that statutory provisions in pari materia should be construed harmoniously where possible. (Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 527 N.E.2d 680.) Similarly, we believe it reasonable to construe the language of section 401 of the Dissolution Act that an issue such as maintenance may be reserved upon a motion of either party and a finding by the trial court that appropriate circumstances exist therefor to the same effect as the language of section 504.

That is, we believe that, notwithstanding the plain language of section 401, a party is not required to make a formal motion to reserve an issue and a trial court is not required to make an express finding that appropriate circumstances exist therefor. Rather, section 401, similarly to section 504, is satisfied if the record reveals: (a) that one of parties requested reservation of an issue; and (b) that appropriate circumstances existed therefor. See In re Marriage of Cohn (1982), 93 Ill. 2d 190, 443 N.E.2d 541 (stating that there was nothing in the record to reveal that the trial court gave any consideration to question whether there was a need to reserve issue, inter alia, of maintenance and that, inasmuch as the record was completely devoid of any appropriate circumstances when the trial court reserved issues, entry of judgment of dissolution was improper).

The record does not reveal that petitioner ever formally moved to reserve the issue of maintenance. However, it does reveal that her trial counsel did inform the court at the conclusion of her direct testimony that “we are reserving maintenance based on the premise that she earns insufficient income to care for herself and her children and * * * is entitled to reserve this [issue] until such time as she can either become more income-productive or has less expenses in terms of child-care.” As such, we conclude that the record reveals that the requirements of section 401 were met in this case.

In informing the court that she was reserving the issue of maintenance, we believe that petitioner substantially complied with the requirement under section 401 of a motion to do so. Moreover, we find that the record establishes appropriate circumstances for reserving the issue of maintenance. As we have noted, petitioner gave as her reasons for reserving maintenance that she had insufficient income to care for herself and the parties’ children and wished to do so until she either earned more or had fewer child-care expenses. In addition, respondent was not working at the time of the entry of judgment of dissolution. These were appropriate circumstances for reserving the maintenance issue. (See In re Marriage of Smith (1985), 132 Ill. App. 3d 694, 479 N.E.2d 929 (trial court did not err in reserving maintenance to allow wife time to become self-supporting where husband, on salary at time of dissolution, would have been unable to pay wife more of his income and meet his own needs).) In accord with Smith, we find no error in the reservation of maintenance in this case.

IX

Respondent next contends the trial court erred in awarding custody of the parties’ minor children to petitioner solely on the basis of its perception of respondent’s marital misconduct and the relative financial circumstances of the parties. We disagree.

Section 602 of the Dissolution Act provides that custody is to be determined in accordance with the best interests of the child. It then requires a court to consider all relevant factors including six specified therein. Finally it provides, essentially, that conduct of a parent that does not affect his relationship to the parties' children shall not be considered. Ill. Rev. Stat. 1987, ch. 40, par. 602.

The repeated acts of mental cruelty of which petitioner accused respondent and which constituted the marital misconduct upon which she based her dissolution action fell, broadly, into two categories. First there were those which were part and parcel of his refusal to work at any gainful employment and to contribute any income therefrom for family expenses for approximately 10 years prior to the filing of the petition for dissolution. Secondly, there were those acts of mental cruelty which were part and parcel of his refusal to assist the petitioner in maintaining a livable family habitat and in performing the routine chores inherent in family life.

As respondent implies, the trial court considered the conduct of respondent which constituted the marital misconduct upon which petitioner based her dissolution action in determining the issue of custody. Specifically, the trial court considered whether respondent was a good role model for the parties’ four minor male children in light of his failures to work for 10 years and to assist the petitioner in main-taming a livable family environment during that time. However, we find no error in the trial court’s so doing.

We so conclude because we believe the trial court correctly reasoned, albeit implicitly, that respondent’s conduct directly affected his relationship to the parties’ children and was a relevant, if not the dispositive, factor in determining to which party it would be in the best interests of the children to award their custody. The factors that are relevant to a custody determination include, in addition to those enumerated in section 602, the sufficiency and stability of the respective parties’ homes and surroundings, the interaction and relationship of the child to his parent and the child’s adjustment to his home. (Montgomery v. Roudez (1987), 156 Ill. App. 3d 262, 509 N.E.2d 499.) In view of these factors and those enumerated in section 602, we do not find the award of custody of the parties’ four minor children to petitioner contrary to the manifest weight of the evidence. Montgomery, 156 Ill. App. 3d 262, 509 N.E.2d 499.

We also reject respondent’s contention that the trial court erred in considering the relative financial circumstances of the parties in deciding the custody issue. Mere financial disparity is insufficient to deprive a natural parent of the custody of his child. However, the right of a parent to care for his child is associated with concomitant responsibilities, e.g., to support the child, at least in part. As such, the relative economic positions of the parties are a factor that must be considered in determining the best interests of the child, especially where, as here, one of the parties had no visible means of support at the time of the custody award. (Montgomery, 156 Ill. App. 3d at 268.) Given that respondent was not working at the time of the custody award to petitioner and had not worked for 10 years preceding and thus could not make any monetary contributions to the support of the children, the trial court did not err in considering the parties’ financial circumstances. In re Marriage of Theeke (1982), 105 Ill. App. 3d 119, 433 N.E.2d 1311, cited by defendant, does not compel a contrary conclusion. Theeke merely holds that it was within the discretion of the trial court therein to decline to hear evidence of the parties’ financial circumstances before deciding the issue of custody. It does not hold, as respondent contends, that it is an abuse of discretion to hear such evidence and we decline to construe it as so holding.

X

Respondent next contends the trial court erred in awarding child support to petitioner: (1) not stated in a specific dollar amount; (2) exceeding the guidelines established in section 505 of the Dissolution Act (Ill. Rev. Stat. 1987, ch. 40, par. 505) without considering all the relevant factors; (3) not lower than the guidelines since respondent earned a substantial income; and (4) based solely upon prospects of respondent’s future income.

Before addressing the propriety of the trial court’s child support determination, we must take note of the manner in which the trial court made its support determinations. In orally entering the child support award in this case, the trial court first stated that respondent would be required to pay $600 or 40% of his net income, whichever was greater, as child support for the parties’ four minor children and 60% of their eldest child's college expenses. Upon being advised that the parties had five children (and apparently in the mistaken beliefs that it had not allotted for support of the fifth child and that that child was a minor), the trial court revised its support determination to $700 or 50% of respondent’s net income. Ultimately, the court lowered the percentage figure to 45 without lowering the dollar amount respondent would be required to pay. Although the trial court manifested a misapprehension of the number of minor children in its oral ruling, its written judgment of dissolution ordered respondent to pay $700 or 45% of his net income as support for the parties four minor children and 60% of the eldest child’s educational expenses.

In reaching its child support determinations, the trial court did not expressly indicate that it was applying the minimum percentage guidelines therefor established in section 505 of the Act. However, we find it manifest that it did so from its determinations in rendering its oral ruling that respondent should pay, first, 40% of his net income, if greater than $700, as support for the parties’ four minor children and, then, 45% percent of his net income, if greater than $700, for the parties’ five children. The trial court’s utilization of the section 508 percentage guidelines is manifest from the foregoing because section 508 provides a minimum guideline of 40% of net income as support for four children and 45% thereof as support for five children.

With respect to the first error in the support determination asserted by respondent, a trial court does err in failing to state the child support obligation in a specific dollar amount and, instead, stating it as a percentage of the obligor spouse’s net income. (In re Marriage of Wassom (1988), 165 Ill. App. 3d 1076, 519 N.E.2d 1147.) However, that is not the case here. Here, the trial court ordered respondent to pay $700 or 45% of his net income, whichever would be greater, as and for child support. We believe that the trial court’s judgment may be affirmed to the extent that it stated respondent’s support obligation in a specific dollar amount if we find that determination otherwise valid. It is well established that where parts of a decree are clearly separable, only that part which is in excess of the court’s authority is void and the remainder is valid. (Green v. International Business Machines Corp. (1976), 37 Ill. App. 3d 124, 345 N.E.2d 807; Filosa v. Pecora (1974), 18 Ill. App. 3d 123, 309 N.E.2d 356; Chapman, Mazza, Aiello, Inc. v. Ace Lumber & Construction Co. (1967), 83 Ill. App. 2d 320, 227 N.E.2d 562.) The trial court’s erroneous provision for child support in the amount of 45% of respondent’s net income, if greater than $700, is sufficiently separable from the provision for support in the latter amount as to not, alone, invalidate that provision.

However, we find that two errors by the trial court in setting respondent’s support obligation (only one of which he asserts) also invalidate the child support award in the amount of $700 and obviate the need to address respondent’s remaining allegations of error in the award.

Firstly, in ultimately equating $700 to 45% of respondent’s net income, the trial court erred in ordering respondent to pay that amount as child support for the reason that the guidelines established in section 505 are not applicable to a party, such as respondent, who has no income at the time such an order is entered. Where, as in respondent’s case, net income cannot be determined at the time a support order is entered, section 505 provides that a trial court “shall order support in an amount considered reasonable in the particular case.” (Ill. Rev. Stat. 1987, ch. 40, par. 505(h)(5).) There is no indication in the record before us that the trial court considered the reasonableness of ordering respondent to pay either $700 or 45% of his net income, whichever was greater, as monthly support but merely applied the 45% for five children guideline of section 505 in a pro forma fashion (and equated it to $700 per month).

Secondly, in first equating $700 to 45% of respondent’s net income and then ordering him to pay such an amount as child support for the parties’ four minor children, it is manifest that the trial court exceeded the minimum support guidelines established in section 505 of the Act. However, as respondent asserts, there is also no indication in the record before us that before doing so, the trial court considered all relevant factors, including petitioner’s and respondent’s financial resources and needs, as it was required to under section 505(a)(2). (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).) In this regard, we note that a trial court is not required to enter specific findings of fact regarding the factors the court considered in making its support determination. Nonetheless, there must be some indication in the record that the trial court considered the factors listed. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308.) There is no indication in the record before us that the trial court considered petitioner’s financial resources, which consisted of her employment income, or respondent’s needs. As such, the court’s award of child support for the four minor children cannot stand.

XI

Respondent next contends the trial court erred in requiring him to pay 60% of the college expenses of the parties’ eldest child. We agree.

Section 513 of the Dissolution Act, after providing for support for educational expenses, provides that in making such awards, trial courts are to consider the financial resources of both parties and the child involved and the standard of living of the child had the marriage not been dissolved. (Ill. Rev. Stat. 1987, ch. 40, par. 513.) A court should not order a party to pay more for educational expenses than he can afford. Moreover, the trial court must evaluate the party’s ability to pay with regard to his resources at the time of the order. In re Support of Pearson (1986), 111 Ill. 2d 545, 490 N.E.2d 1274.

It does not appear from the record before us that the trial court evaluated respondent’s ability to pay 60% of the parties eldest child’s college expenses with regard to his resources at the time of the order. Given the total lack of any evidence of any substantial assets on respondent’s part, we cannot conclude that he was not ordered to pay more of his daughter’s educational expenses than he could reasonably afford. The trial court also erred in this regard.

XII

Respondent next contends that petitioner’s pretrial memorandum (which he characterizes as an ex parte communication with the trial court because he was not served with a copy) improperly influenced the judgment of the trial court. As we are reversing the trial court’s judgment due to the various errors we have found therein, we need not address this issue.

XIII

Respondent next contends that the trial court erred in allowing a Cook County Department of Supportive Services caseworker to give an expert opinion as to who should be awarded custody. The caseworker was assigned, pursuant to the trial court’s order, to submit a report to the court relating to the custody of the parties’ children. We agree that allowing this testimony was error.

Even assuming that the caseworker was an expert, a foundation must first be laid to demonstrate that the trial court, as the trier of fact, needed the assistance of an expert opinion, as contrasted with mere evidentiary facts, in order to decide the custody issue. (In re Marriage of Hazard (1988), 167 Ill. App. 3d 61, 520 N.E.2d 1121; In re Marriage of Theis (1984), 121 Ill. App. 3d 1092, 460 N.E.2d 912.) However, as in Hazard and Theis, such foundation is lacking in the record before us. As such, the admission of the caseworker’s opinion on the issue of custody was error.

XIV

Respondent lastly contends that the trial court erred in denying his motion for sanctions under section 2 — 611 of the Civil Practice Law. Specifically, respondent asserts that petitioner’s petitions for attorney fees under the Act and for sanctions under section 2— 611 were unwarranted by Illinois law and signed in violation of section 2 — 611. He further asserts that petitioner’s responses to his request to admit, which responses totalled 26 pages, were interposed for the improper purpose of avoiding substantial compliance with the rules of discovery. Finally, respondent asserts that petitioner’s motion to dismiss with prejudice his post-trial motions for: modification of judgment; retrial; sanctions under section 2 — 611; vacatur of the judgment in petitioner’s favor for attorney fees and sanctions under section 2 — 611 was frivolous, without factual support and: interposed to cause needless increases in the cost of litigation.

In asserting error in the denial of his motion for sanctions on the basis of petitioner’s petitions for attorney fees under the Act and for sanctions under section 2 — 611, respondent has ignored that he did not base that motion upon those petitions in the trial court. Having failed to seek relief in the trial court for petitioner’s alleged violation of section 2 — 611 in filing those petitions, respondent cannot seek such relief on appeal.

Respondent did base his motion for sanctions, in part, upon petitioner’s responses to his requests to admit the genuineness of the letter purportedly written by her to Pamela Spence. However, after reviewing the record, we cannot conclude that the trial court abused its discretion in denying respondent’s motion to the extent that it was based on petitioner’s answers to his requests to admit. Malatesta v. Leichter (1989), 186 Ill. App. 3d 602, 542 N.E.2d 768.

Respondent also did base his motion for sanctions, in part, upon petitioner’s motion to dismiss with prejudice his post-trial motions. To the extent that was the case, we conclude that the trial court abused its discretion in denying respondent’s motion for sanctions. Petitioner’s motion was based entirely upon respondent’s alleged failure to have filed his post-trial motions within 30 days of the entry of judgment in this case, as required under sections 2 — 1203 and 2 — 1301 of the Civil Practice Law. (Ill. Rev. Stat. 1987, ch. 110, pars. 2 — 1203, 2 — 1301.) The record reveals that the judgment of dissolution in this case was entered on June 13, 1988, and that respondent filed his post-trial motions on July 13, 1988. July 13 is the 30th day after June 13. Respondent’s motions were thus clearly and unmistakably filed “within” 30 days of the judgments appealed from. As such, petitioner’s motion to dismiss could not have been well grounded in fact after reasonable inquiry, as required under section 2 — 611. Upon remand the trial court is to conduct a hearing to determine the appropriate sanction for the violation of section 2 — 611 by petitioner’s attorney, who certified the motion to dismiss.

For all of the reasons stated herein, we reverse: (1) the judgment of dissolution; (2) the judgments awarding petitioner attorney fees under the Dissolution Act and section 2 — 611 of the Civil Practice Law; (3) the denial of respondent’s motion for section 2 — 611 sanctions. The cause is remanded for further proceedings consistent with the views expressed herein.

Reversed and remanded.

CERDA, P.J., and WHITE, J., concur.

       Justice Freeman authored this opinion prior to his election to the Illinois Supreme Court.

       Five children were born of the parties’ marriage. The fifth and oldest reached majority before entry of the judgment of dissolution.

       As with his other points of error, respondent asserts multiple grounds for the invalidity of the awards of fees and sanctions. However, on all the points of error raised, including those awards, we will address the minimum grounds warranting a reversal of the trial court’s rulings.

       On June 13, 1988, the trial court had given petitioner leave to file these petitions and had given respondent 28 days, or until July 11, to respond thereto.

       We so conclude given that to “reserve” means, inter alia, to “defer the discussion or determination of.” (Webster’s Third New International Dictionary 1930 (1986).) We believe that this is the meaning the legislature intended to give the term “reserve” as used in section 401.

       The fact that Montgomery involved a custody dispute between a natural parent and a distant relative of her child does not make it inapplicable here.

       This motion was eventually denied by the trial court and petitioner was given leave to file a new response to respondent’s post-trial motions.