text:
      In re MARRIAGE OF BARBARA ANN ALLTOP, Petitioner-Appellee, v. CHARLES DELBERT ALLTOP, Respondent-Appellant.
    Fourth District
    No. 4 — 90—0186
    Opinion filed September 28, 1990.

      Patrick D. Welch, of Peru, for appellant.
    Alice F. Smalley, of Bloomington, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This appeal arises from the dissolution of marriage between petitioner, Barbara Ann Alltop, and respondent, Charles Delbert Alltop. In a post-judgment proceeding to enforce the trial court’s order of property distribution, the trial court found Charles to be in indirect criminal contempt of court and sentenced him to periodic imprisonment. In a second post-judgment proceeding, Charles sought termination of educational support to Michael Alltop, the adult son of Barbara and Charles. The court denied Charles’ petition to modify this support. On appeal, Charles challenges these two rulings.

I. Facts

In June 1987, Barbara filed suit against Charles for dissolution of marriage. In September 1988, the dissolution was granted, and the trial court entered an order dissolving the marriage and allocating Charles’ and Barbara’s property. In its order, the trial court awarded custody of the parties’ two minor children to Barbara and directed Charles to pay $194.30 per week in child support — $151.80 directly to Barbara for the parties’ two minor children and $42.50 to Michael for educational expenses.

The court further stated in its order that the parties’ marital debts far outweighed their assets and acknowledged that Charles had made substantial payments to protect his credit. The court then found that at the time of its order, Charles was entitled to a. workers’ compensation award of an undetermined amount. The court determined that this asset was marital property and ordered it be used to retire the marital debt as follows:

“1) Pay Addie Meints [petitioner’s mother] (loan without interest) $2,000

2) Pay Petitioner and Respondent $1,000 each $2,000

3) Pay Bank of Chenoa truck loan

4) Pay the balance, if any, to the Respondent to reimburse him for marital obligations retired.”

In November 1988, Barbara filed a motion to reconsider and a petition to modify the dissolution order. Charles filed a motion to strike Barbara’s motion to reconsider. He also filed a response to the petition to modify. In January 1989, Charles filed a petition for a rule to show cause why Barbara should not be held in contempt of court for failure to comply with the court’s orders pertaining to visitation and debt-repayment provisions.

All pending matters were heard on January 23, 1989. After discussions with counsel, the parties reached agreement on a number of issues and agreed to withdraw their cross-petitions for rules to show cause. While Barbara’s motion to reconsider was denied, her petition to modify visitation was taken under advisement. On April 27, 1989, the trial court entered an order granting that petition in part.

Also on April 27, 1989, Barbara filed a petition for a rule to show cause why Charles should not be held in contempt of court for failing to distribute his workers’ compensation award pursuant to the dissolution order. The matter was originally set for hearing on May 9, 1989, but was continued because Charles’ attorney had a conflict on that date.

On August 11, 1989, the court, sua sponte, wrote a letter to Barbara's counsel, noting that no action had been taken to bring the April 27, 1989, petition for rule to show cause before the court for a hearing, and stating that unless something appeared of record prior to August 25, 1989, showing that Barbara intended to proceed with the rule, the court would dismiss that rule without prejudice.

On August 21, 1989, Barbara filed notice that the petition for rule to show cause would be called for hearing on November 13, 1989. On that date, Barbara’s counsel appeared and advised the court that Charles was filing a petition for bankruptcy. Counsel requested that pending matters be continued generally until re-noticed. No further notice was given concerning this petition.

On December 1, 1989, Barbara filed another petition to modify child support and maintenance, alleging, inter alia, that on February 13, 1989, Charles received his workers’ compensation settlement in the amount of $5,698.75, failed to pay the Bank of Chenoa truck loan, and filed for relief in bankruptcy court. Under these changed circumstances, Barbara claimed that the responsibility for the truck loan fell upon her. Barbara also filed another petition for rule to show cause based upon Charles’ failure- to pay Michael $42.50 per week for educational expenses.

On January 2, 1990, the hearing date allotted on these petitions, counsel stipulated to continue the hearing until January 31, 1990. On January 30, 1990, Charles filed a cross-petition to modify, alleging that Michael had not attended school since June 1989. Charles requested relief from his support obligations to Michael.

On January 31, 1990, pursuant to notice, both parties appeared for a hearing on Barbara’s petition for rule to show cause and on both parties’ petitions to modify. At that hearing, Barbara’s counsel explained to the court that the order entered on April 27, 1989, had been resolved to the extent that Charles had filed a petition in bankruptcy and that part of the relief Barbara had sought in that order was now being sought under a new petition.

At the January 31 hearing, Charles testified as an adverse witness that he had complied with the court’s order by distributing the first $3,000 of his workers’ compensation settlement check to Addie Meints and Barbara. He did not, however, pay the Bank of Chenoa the remainder of his settlement. He stated his reason for not paying the bank was that the balance of the note was far greater than the amount left over from the settlement. (In January 1990, the balance due on the truck loan was around $25,000.) According to Charles, he had been trying to negotiate a deal with the bank to get the amount of the loan down to where he could pay it off. Notwithstanding these efforts, Charles had been sued by the bank, and he had filed a petition in bankruptcy, scheduling the Bank of Chenoa as a creditor for the truck loan.

Charles’ lawyer stipulated that the settlement check had been received on March 10, 1989, and was in the amount of $5,671.75. Charles had paid $1,000 of the workers’ compensation check to his attorney for fees and listed the balance of $1,671.75 as an exempt asset in his petition for bankruptcy because workers’ compensation benefits are exempt from the bankrupt’s estate under the United States Bankruptcy Act (Bankruptcy Act) (11 U.S.C. §522(d)(10)(C) (1988)). (Such benefits may be deemed to qualify for an exemption. See, e.g., In re Lambert (W.D. Mich. 1981), 9 Bankr. 799; In re La-Belle (D. Me. 1982), 18 Bankr. 169.)

Charles also testified that he made payments of $42.50, as ordered by the court, to Michael until October 27, 1989. He stopped making, these payments, however, after learning that Michael did not go back to school after finishing at Parkland College. Charles explained that he discussed this matter with Barbara, and she told him that it was okay for him to stop making the payments to Michael if it was a hardship on him. It was only after this conversation that Charles stopped giving Michael the $42.50 per week.

Barbara testified that she and her mother had signed the note at the Bank of Chenoa for the truck loan and that they had both been sued upon default of that note. With respect to Michael’s educational expenses, Barbara testified that Michael had received payments from Charles until the end of October 1989. She stated that Michael deposited these payments into a savings account in his own name. Barbara further testified that Michael had attended Parkland College until June 1989 and was now living at home with her and her two other children. Barbara explained that she had told Charles that it would be all right if he suspended payments to Michael because Michael was no longer in school. She understood that Charles would make it up later.

Michael testified that he had not attended school since June 1989. He stated that he wanted to attend a recording technician college in Florida. Michael, however, had not yet sent in his application. He testified that after June 1989, he deposited half of the money he received from his father into a savings account and the other half into a checking account. Michael further testified that he works between 35 to 40 hours per week and earns between $130 and $150. He stated that he was paying for a car and not contributing toward his living expenses at his mother’s home.

At the close of all the evidence, Barbara’s counsel argued to the court that among the matters before the court was Barbara’s petition for rule to show cause why Charles should not be held in contempt of court for failure to pay the Bank of Chenoa with the money he received in settlement of his workers’ compensation claim. Counsel requested the court to find Charles in wilful contempt of court and order Charles to pay off the loan or pay Barbara’s attorney fees.

With respect to Barbara’s petition to modify, Barbara’s counsel argued that Michael had only temporarily interrupted his education. Further, counsel argued Michael had demonstrated that the money he received from his father, pursuant to the dissolution order, had been saved for his future education.

Last, Barbara’s counsel addressed Barbara’s petition for modification of child support, arguing that if responsibility for the truck loan default fell on Barbara because of Charles’ petition for bankruptcy, then Barbara should be entitled to an increase in maintenance to meet additional financial obligations.

Charles’ counsel argued that Michael was an employed adult with no concrete plans to further his education. He urged that child support for Michael be terminated as of the date that Michael last attended Parkland. With respect to the truck loan default, counsel pointed out that the amount of the workers’ compensation award, after paying off the first three debts pursuant to court order, was insufficient to pay off the bank loan debt. Counsel stated that Charles had attempted to negotiate with the bank to bring the debt within a reasonable range for Charles to handle. The bank did not cooperate and filed suit. Charles resorted to bankruptcy to seek discharge from the debt. Because there had been no final order from the bankruptcy court, counsel suggested that any request for an increase in maintenance was premature.

After further discussion with counsel, the court orally announced its finding:

“Well, with reference to the modification request in regards to educational expense, the Court is going to deny the petition to modify an order that the payments be made and order that the payments be caught up and continue to be made. The Court, however, will require that those, the total amount of those, be deposited in a segregated account by the minor and in the event that the minor has not enrolled in a full-time educational institution prior to the 1st of October of 1990, then the payments will automatically terminate; and if he is so enrolled, then it will be necessary to furnish the suitable evidence of that and the expenditures that he has. The Court recognizes that he is living at home and he is not contributing at home at this point, but I also recognize the fact that the amount being paid is not unreasonable and should be continued to be built up. I think it’s a legitimate purpose to continue to build up the amount to enable him to do so.
In the event that he should not return to school, then the segregated amount, we’ll come back to court and determine what should be done with that.
As far as the matter of his failure to make payment as ordered by the Court with respect to the workmen’s comp., the Court is going to find that Mr. Alltop is in willful contempt of this Court for failure to do so. The Court is going to order that he be imprisoned for that failure. *** That the Court is imposing this as punishment, not — and the Court is not imposing an obligation that he be imprisoned or make payment, because the purpose of this imprisonment is to punish him for not — willfully not making the payment for a period of six months when he had the ability to do so and he determined that he was going to take the chance to do that.”

On February 5, 1990, Charles filed a petition for a rehearing, a petition to stay the order, a petition to quash the order, and a petition to expedite hearing on the petition for a rehearing. The court denied these motions.

On March 12, 1990, the court entered a written order regarding the payments to Michael, which stated in part:

“[T]hat the Respondent is in arrears on the payments of $42.50 since 10/27/89; that Respondent should be ordered to make all payments from that date forward; that the adult child shall escrow in a bank account all payments received until such time as he shall became a full-time student in a recognized educational institution whereupon he may expend the deposited funds for his educational support; and in the event he has not so enrolled prior to October 1, 1990, payments may be terminated by the Respondent. In that event if the parties are unable to reach a written agreement as to what should be done with the escrow amount the Court will make a determination as to what will be done with the es-crowed funds.”

Charles appeals from the court’s orders finding him in contempt and ordering him to make the payments regarding Michael’s educational expenses.

II. Indirect Criminal Contempt

In appealing the court’s orders finding him to be in indirect criminal contempt, Charles first argues that proceedings on the April 27, 1989, petition for rule to show cause should have been stayed because of his pending petition for bankruptcy. Charles claims that the trial court had no authority to find him in indirect criminal contempt of court on that petition. Barbara asserts that bankruptcy proceedings do not stay criminal contempt proceedings. We will address Charles’ argument on this point before addressing his other arguments regarding the contempt finding.

A. The Effect of the Filing of a Bankruptcy Petition Upon Criminal Contempt Proceedings

As a general rule, the commencement or continuation of a judicial proceeding to obtain or enforce a judgment against a debtor who has filed a bankruptcy petition violates the Bankruptcy Act. (In re Marriage of Lueck (1986), 140 Ill. App. 3d 836, 838, 489 N.E.2d 443, 444.) However, where contempt is invoked to uphold the dignity of the court and to punish the contemnor for his contumacious behavior, the proceedings are not subject to the automatic stay. (Lueck, 140 Ill. App. 3d at 838, 489 N.E.2d at 445.) The difference between these two types of proceedings is the same as the difference between indirect civil contempt and indirect criminal contempt, as this court recently discussed in In re Marriage of Betts (1990), 200 Ill . App. 3d 26, 43:

“The primary determinant of whether contempt proceedings are civil or criminal in nature is the purpose for which contempt sanctions are imposed. If contempt sanctions are imposed for coercive purposes — to compel the contemnor to perform a particular act — the contempt is civil in nature. On the other hand, criminal contempt sanctions are imposed for the purpose of punishing past misconduct.”

Accordingly, we hold that indirect civil contempt proceedings designed to compel an alleged contemnor to make a payment (other than for child support or maintenance) are barred by the contemnor’s filing of a bankruptcy petition. We also hold that indirect criminal contempt proceedings are not barred by the filing of a bankruptcy petition.

Because the trial court’s remarks in the present case make clear that Charles was found to be in indirect criminal contempt, the proceedings leading to that finding were not barred by Charles’ filing of a bankruptcy petition.

B. Procedural Requirements of Indirect Criminal Contempt

Charles next argues that procedural deficiencies were present in the proceedings which led to his being found in indirect criminal contempt of court. We agree and reverse the finding of indirect criminal contempt.

“Indirect criminal contempt proceedings must generally conform to the same constitutionally mandated procedural requirements as other criminal proceedings. One charged with indirect criminal contempt is entitled to ‘ “*** know the nature of the charge against him, to have it definitely and specifically set forth by citation or rule to show cause, and *** [have] an opportunity to answer ***.” ’ [Citations.] Also applicable to a respondent in an indirect criminal contempt proceeding are the privilege against self-incrimination, the presumption of innocence, and the right to be proved guilty beyond a reasonable doubt. ***
Because a respondent in an indirect criminal contempt proceeding enjoys the privilege against self-incrimination, he may not be called by the petitioner to testify. Accordingly, a petition initiating indirect criminal contempt proceedings ought not have the title ‘Petition for Rule To Show Cause,’ the designation commonly (and appropriately) used for a petition initiating an indirect civil contempt proceeding; instead, a petition initiating an indirect criminal contempt proceeding ought to have the title ‘Petition for Adjudication of Criminal Contempt.’ By definition, if a respondent has a right not to testify, he cannot be required to ‘show cause’ why he should not be held in indirect criminal contempt. Instead, the burden is on the petitioner to prove the charges in the petition beyond a reasonable doubt. An ancillary benefit of using such a title would be to force court and counsel into a recognition that such petitions differ from routine petitions for rules to show cause and require different procedural steps.” (Emphasis in original.) Betts, 200 Ill. App. 3d at 58-59.

The present case demonstrates the need for both court and counsel to keep in mind the distinctions between indirect civil and indirect criminal contempt. The record shows that the court’s decision to find Charles in indirect criminal contempt came as a surprise not only to Charles’ counsel, but also to Barbara’s counsel. No doubt Charles was rather surprised as well.

That neither counsel viewed the January 31, 1990, hearing on Barbara’s petition for rule to show cause as one in which Charles faced criminal contempt sanctions is best shown by the fact that the first witness Barbara’s counsel called at that hearing was Charles. He testified as an adverse witness. Charles’ counsel made no objection, nor did the court indicate any surprise at this turn of events. However, as earlier stated, indirect criminal contempt proceedings must conform to the same constitutionally mandated procedural requirements as other criminal proceedings, including the privilege against self-incrimination. Had the January 31 hearing been a bench trial on a misdemeanor criminal charge against Charles, surely the court and Charles’ counsel would have expressed surprise when the prosecutor called Charles as the State’s first witness. Yet, that is essentially what occurred in the present case.

Another procedural deficiency in the present case concerns the findings made by the trial court (or rather the lack of findings). “When an individual is found guilty of indirect criminal contempt, the court must recite at either the contempt hearing or in its sentencing order that the defendant was found guilty beyond a reasonable doubt.” (Betts, 200 Ill. App. 3d at 61.) Here, the trial court failed to do so.

As previously noted, the pleading which brought Charles before the court for the January 31 hearing at which he was found in indirect criminal contempt was entitled “petition for rule to show cause.” Before this court, Charles questions the sufficiency of his notice that criminal sanctions were being sought and might be imposed. Accordingly, this appeal provides us with the opportunity to revisit the issue of notice due to an alleged criminal contemnor that this court discussed in a 1989 Betts case (sometimes known as Betts IV), namely, In re Marriage of Betts (1989), 190 Ill. App. 3d 961, 547 N.E.2d 686.

The contemnor in Betts IV similarly questioned the sufficiency of his notice in the petition for rule to show cause that criminal sanctions were being sought and might be imposed, and this court stated the following:

“We are unable to find a rule of law which requires a trial court to specify in advance the nature of the contempt proceedings, where the contumacious conduct existing at the time of the filing of the petition involved violation of a court order. Nevertheless, we believe such a practice is preferred.” (Betts IV, 190 Ill. App. 3d at 966, 547 N.E.2d at 690.)

Upon further reflection, we now hold that such practice is required, not merely preferred. In other words, to avoid the surprise and confusion shown by the record in this case, we hold that due process requires that before criminal sanctions may be imposed upon a respondent as a result of indirect criminal contempt proceedings, notice must be provided to the alleged contemnor that such sanctions are being sought and might be imposed. This requirement can be met by entitling the initial pleading, “petition for adjudication of criminal contempt.”

We hold that a pleading entitled “petition for rule to show cause” is not sufficient to provide the due process to which an alleged criminal contemnor is entitled.

In order to avoid the risk of subjecting Charles to double jeopardy on remand of this cause, we are required to review the sufficiency of the evidence. (People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375.) Having done so, we find the evidence presented at the January 31, 1990, hearing sufficient to permit the court to find Charles in indirect criminal contempt for refusing to pay any part of his workers’ compensation settlement to the Bank of Chenoa before he filed his petition for Federal bankruptcy relief. Charles could have paid the $1,671.75 balance over to the bank after he received the check in March 1989, but he chose not to do so. This finding, however, is in no way binding upon the trial court in the event of a retrial. Taylor, 76 Ill. 2d at 310, 391 N.E.2d at 375.

III. The Order For Educational Support

Charles also argues that the trial court abused its discretion in ordering him to pay arrearages and continued educational support to Michael, his adult son, who was working and who had not attended school for six months prior to the January 31, 1990, hearing on Charles’ motion to modify child support payments.

The trial court’s discretionary award of educational expenses to an adult child is authorized by section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 513), which provides as follows:

“The Court *** may make such provision for the education and maintenance of the child or children, whether of minor or majority age, out of the property and income of either or both of its parents as equity may require, whether application is made therefor before or after such child has, or children have, attained majority age. The authority under this Section to make provision for education and maintenance extends not only to periods of college education or professional or other training after graduation from high school but also to any period during which a child of the parties is still attending high school, even though he or she attained the age of 18. In making such awards, the court shall consider all relevant factors which shall appear reasonable and necessary, including:
(a) The financial resources of both parents.
(b) The standard of living the child would have enjoyed had the marriage not been dissolved.
(c) The financial resources of the child.”

In addition to these enumerated factors, the court may consider other factors which are reasonably related to its decision before ordering a noncustodial parent to pay for a child’s educational expenses. (See Gibb v. Triezenberg (1989), 188 Ill. App. 3d 695, 700-01, 544 N.E.2d 444, 448.) The purpose of this statute is to guarantee that funds will be available if the need arises. (In re Marriage of Harsy (1990), 193 Ill. App. 3d 415, 423, 549 N.E.2d 995, 1000.) If the child has no need or a lesser need for educational expenses when the child decides to go to college, a modification of the court’s payment order can be sought by either parent. (Harsy, 193 Ill. App. 3d at 423-24, 549 N.E.2d at 1000.) Additionally, pursuant to section 503(g) of the Act, the trial court has the discretion to impose a separate fund or trust for educational expenses if the court finds such an account necessary to protect and promote the interests of the children. (Harsy, 193 Ill. App. 3d at 419, 549 N.E.2d at 997.) Such a fund may be established when a parent obligated to pay support is unwilling or unable to make direct payments. Harsy, 193 Ill. App. 3d at 422, 549 N.E.2d at 999.

We find that the trial court did not abuse its discretion in ordering Charles to pay arrearages and continued educational support to Michael. Michael did not abandon his education — he merely suspended it. Michael testified that he planned to resume his education at a college in Florida in the near future. In keeping with this intention, Michael saved money he was earning, along with other money paid to him by his father. The court also considered the incomes of all the parties and concluded that Charles had the ability to pay Michael’s educational expenses. The court then noted that Barbara also contributed to Michael’s education by supporting Michael while he lived with her. Furthermore, the court properly ordered the money to be put in a separate account. This protected Michael’s best interests and ensured that the money would be used for an appropriate purpose, as determined by the court.

For the reasons stated, the circuit court’s order denying Charles’ petition for modification of educational support to Michael is affirmed. We reverse the circuit court’s order finding Charles to be in indirect criminal contempt of court and remand for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed and remanded in part.

KNECHT, P.J., and GREEN, J., concur.


source: Caselaw Access Project

author: JUSTICE GREEN JUSTICE LUND,

license: Public Domain

text:
    CHARLESTON COMMUNITY UNIT SCHOOL DISTRICT NO. 1, Petitioner, v. ILLINOIS EDUCATIONAL LABOR RELATIONS BOARD et al., Respondents.
    Fourth District
    No. 4-89-0884
    Opinion filed September 25, 1990.

      Brian A. Braun, S. Jeff Funk, and Megan Paisley, all of Miller, Tracy, Braun & Wilson, Ltd., of Monticello, for petitioner.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for respondent Illinois Educational Labor Relations Board.
    Gregory J. Malovan ce and Steven E. Mitchel, both of Winston & Strawn, of Chicago, for respondent Charleston Education Association.
   JUSTICE GREEN

delivered the opinion of the court:

At all times pertinent here, section 14(a)(8) of the Illinois Educational Labor Relations Act (Act) has made the refusal of an educational employer “to comply with the provisions of a binding arbitration award” an unfair labor practice (Ill. Rev. Stat. 1989, ch. 48, par. 1714(a)(8)). At all such times, section 15 of the Act has provided “[n]o order [by the Hlinois Educational Labor Relations Board (IELRB)] shall be issued upon an unfair practice occurring more than 6 months before the filing of the charge alleging the unfair labor practice.” (Ill. Rev. Stat. 1989, ch. 48, par. 1715.) This case raises the question of what, if any, circumstances permit the filing of unfair labor practice charges with the IELRB more than six months after the commission of an unfair labor practice.

Near the conclusion of the 1983-84 school year, Charleston Community Unit School District No. 1 (District) refused to rehire Jeffrey Earle Compton, a certified first-year teacher whose bargaining representative was Charleston Education Association, IEA/NEA (hereinafter CEA). Compton instituted a grievance, which resulted in an arbitration award issued September 22, 1984, finding the District had violated the terms of the collective-bargaining agreement it had with CEA by failing to follow procedures set forth in that agreement. The District was ordered to reinstate Compton for a second probational year and to reimburse him for back pay. Under circumstances we later explain, the District never complied with that award, and CEA and Compton did not file a charge with IELRB alleging an unfair labor practice against the District until November 14,1987, more than three years after the award.

On October 18, 1989, the IELRB issued an opinion and order finding the District had violated section 14(a)(8) of the Act by refusing to comply with the arbitration award. (Charleston Community Unit School District 1, 5 Pub. Employee Rep. (Ill.) par. 1140, No. 88 — CA—0015—S (Hlinois Educational Labor Relations Board, Oct. 18, 1989).) The order also found the District guilty of violation of section 14(aXl) of the Act, which prohibits an educational employer from “[interfering, restraining or coercing employees in the exercise of the rights guaranteed under [the] Act” (Ill. Rev. Stat. 1989, ch. 48, par. 1714(aXl)). This violation derived from the refusal to comply with the arbitration award. The District has taken judicial review to this court. Ill. Rev. Stat. 1989, ch. 48, par. 1716(a).

In addition to contending the unfair labor practice charge was untimely, the District also maintains the arbitration award was beyond the power of the arbitrator. We need not examine the latter issue, because we agree with the District that the charge was untimely. Both CEA and the IELRB, in its opinion, agree the charge was not filed within six months of the refusal to obey the arbitrator’s award, but contend the extenuating circumstances involved created an equitable tolling of the six-month period. Much of the dispute over whether the filing period was or should be tolled centers upon the question of whether the requirement for filing within six months is a precondition of the IELRB jurisdiction or merely a limitation period for the filing of an action. If the requirement is jurisdictional, tolling seldom occurs. If the six-month requirement is merely a statute of limitations, tolling may occur when equity so requires.

Before analyzing the applicable law, further explanation of the circumstances upon which the IELRB and CEA rely as grounds for equitable tolling is desirable. Shortly after issuance of the arbitrator’s award, on October 22, 1984, the District filed suit in the circuit court of Coles County seeking to set the award aside. On September 10, 1985, the circuit court granted summary judgment to the District. Then, on October 7, 1985, CEA and Compton moved to reconsider the summary judgment, maintaining for the first time that the IELRB, and not the circuit court, had jurisdiction to review the arbitrator’s award. As we later explain, this date is significant. Reconsideration was denied, and appeal was taken to this court. In a split decision, this court agreed with CEA and Compton and reversed. In a comprehensive opinion, this court set forth the doctrine that the studied scheme of the Act intended labor disputes, including those concerning arbitration awards, to be decided by the IELRB through the unfair labor practice procedure. (Board of Education of Community School District No. 1 v. Compton (1987), 157 Ill. App. 3d 439, 510 N.E.2d 508.) The opinion was issued on June 25, 1987. The supreme court affirmed. Board of Education of Community School District No. 1 v. Compton (1988), 123 Ill. 2d 216, 526 N.E.2d 149.

The unfair labor charge giving rise to the order on judicial review was filed with the IELRB on November 14, 1987. This was well within a six-month period measured from issuance of the opinion of this court in Compton on June 25, 1987, but nearly three years after the District refused to abide by the arbitration award in the fall of 1984. Both the IELRB and CEA correctly point out that before the decision of this court in Compton, no direct precedent existed prohibiting testing the validity of the awards of labor arbitration by the limited circuit court review recognized under the common law. The Compton decision was based upon the philosophy and overall scheme of the Act rather than any fully expressed procedure set forth in the Act. Thus, CEA maintains it had no assurance that a charge of unfair labor practice would have been recognized while the judicial challenge to the award pended. However, consistent with the position CEA took in the circuit court proceeding, CEA could have attempted to proceed before the IELRB while the court proceeding was pending.

fllinois precedent indicates that time limitations upon bringing actions before administrative agencies are matters of jurisdiction which cannot be tolled. In Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 486 N.E.2d 893, the court held that the 35-day filing provision of section 3 — 103 of the Administrative Review Law (Ill. Rev. Stat. 1983, ch. 110, par. 3 — 103) was a jurisdictional requirement which could not be waived. The court distinguished this provision from a statute of limitations on the basis that if the right being asserted is one unknown to the common law, the time limitation is an inherent element of the right and of the power of the tribunal to hear the matter. On the other hand, the court concluded that if the right upon which the request for relief is based is a common law right, the time limitation is merely a procedural matter not affecting the jurisdiction of the tribunal and is subject to waiver. Fredman, 109 Ill. 2d at 209-10, 486 N.E.2d at 895-96.

In Board of Education of Jacksonville, School District No. 117 v. Illinois Educational Labor Relations Board (1989), 183 Ill. App. 3d 972, 539 N.E.2d 882, this court applied the same rule as in Fredman to a failure to file for administrative review within the statutory 35-day period even though the school district seeking review had refrained from filing on the assumption a petition for reconsideration tolled the 35-day period. See also People v. Ross (1989), 191 Ill. App. 3d 1046, 548 N.E.2d 527.

Whatever common law powers courts had to enforce arbitration awards (see Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 427 N.E.2d 1199) were clearly not as strong nor as comprehensive as the powers of the IELRB under the unfair labor practice procedure of section 15 of the Act. Thus, a right unknown to the common law is involved, and the time for exercising the right would condition the jurisdiction of IELRB to proceed. In Larrance v. Human Rights Comm’n (1988), 166 Ill. App. 3d 224, 519 N.E.2d 1203, cert, denied (1989), 489 U.S. 1054, 103 L. Ed. 2d 585, 109 S. Ct. 1316, and Board of Governors v. Rothbardt (1981), 98 Ill. App. 3d 423, 424 N.E.2d 742, this court has deemed statutory time limits for filing charges under acts creating administrative redress for discriminatory practices were jurisdictional and not subject to tolling. See Lockett v. Chicago Police Board (1990), 133 Ill. 2d 349, 549 N.E.2d 1266; Burns v. Edgar (1989), 178 Ill. App. 3d 708, 533 N.E.2d 570; Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 746.

In Larrance, we recognized the precedent of Logan v. Zimmer man Brush Co. (1982), 455 U.S. 422, 71 L. Ed. 2d 265, 102 S. Ct. 1148, which requires that when life, liberty, or property are involved, and an administrative agency is responsible for the failure of a claimant to timely file, due process requires that the administrative tribunal proceed to hear the matter. In Phelps v. Human Rights Comm’n (1989), 185 Ill. App. 3d 96, 540 N.E.2d 1147, this court held where a claim was required to be verified, an administrative agency had jurisdiction to proceed when an unverified claim was timely filed and the failure to verify appeared to result from confusing instructions given by the agency. Neither case is applicable here, where the administrative agency supported CEA’s circuit court contention that the proper procedure was to proceed before the agency, claiming an unfair labor practice resulted from the District’s refusal to abide by the arbitration award. Although CEA’s waiting until the decision in this court in Compton before filing a charge with the IELRB may be understandable, the gross unfairness which would have arisen in Logan and Phelps if filing had not been permitted is not present here.

Both the IELRB and CEA stress the unusual context of the language of section 15 of the Act which prohibits the issuance of an order “upon an unfair practice occurring more than 6 months before the filing of the charge” (Ill. Rev. Stat. 1989, ch. 48, par. 1715). They note the language prohibits issuance of the order rather than the filing. They also distinguish that language from section 3 — 102 of the Administrative Review Law which states “[ujnless review is sought of an administrative decision within the time and in the manner herein provided, the parties *** shall be barred from obtaining judicial review” (HI. Rev. Stat. 1989, ch. 110, par. 3 — 102). They claim the language of section 15 of the Act, being in different context than that of other time limitations, should be construed to have a different meaning, and that meaning should be that timely filing is not an inherent element of the right involved. However, interpreting the placing of the time limitation as a restriction against granting relief rather than filing, can, just as logically, be taken as a more emphatic indication of lack of jurisdiction. The jurisdiction of a tribunal is not exercised when a document is filed. It is exercised when the tribunal acts. We reject the contention the context of the language used is significant.

Of more significance are the decisions of the Federal circuit courts of appeals in regard to section 10(b) of the Labor Management Relations Act, 1947 (LMRA) which states “[t]hat no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge” (29 U.S.C. § 160(b), at 1000 (1988)). They hold section 10(b) is merely a statute of limitations, subject to tolling. (Hospital & Service Employees Union, Local 399 v. NLRB (9th Cir. 1986), 798 F.2d 1245; NLRB v. Local 264, Laborers’ International Union (8th Cir. 1976), 529 F.2d 778.) Similarly, in Zipes v. Trans World Airlines, Inc. (1982), 455 U.S. 385, 71 L. Ed. 2d 234, 102 S. Ct. 1127, the United States Supreme Court held that the 90-day time limit for charges for unlawful employment practices under Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e-5(d) (1988)) should be treated as a statute of limitations and not as a jurisdictional requirement. In footnote 11, that Court indicated the LMRA was the model for that time-limitation period. Zipes, 455 U.S. at 395 n.ll, 71 L. Ed. 2d at 244 n.ll, 102 S. Ct. at 1133 n.ll.

As CEA states, we have deemed decisions of the Federal courts interpreting provisions of the LMRA similar to those of the Act to have persuasive value. (Hardin County Education Association v. Illinois Educational Labor Relations Board (1988), 174 Ill. App. 3d 168, 528 N.E.2d 737.) However, these decisions are not subject to the strong Illinois precedent holding time limitations for bringing administrative actions involving new rights are jurisdictional. We are also aware that the IELRB has held the six-month limitation is merely a statute of limitations, and we also give deference to its expertise on labor relations (Decatur Board of Education, District No. 61 v. Illinois Educational Labor Relations Board (1989), 180 Ill. App. 3d 770, 536 N.E.2d 743), but a broad policy of a uniform approach to administrative procedure is involved here. It involves matters not necessarily related to employee-employer relations. As we have indicated, we do not find the wording of section 15 of the Act in regard to the six-month period for filing charges indicates a different legislative intent to differentiate the time limitation here from those in other legislation concerning proceedings for administrative action.

For the reasons stated, we hold the IELRB had no jurisdiction to proceed on the tardily filed unfair labor practice charge. Accordingly, we reverse the order finding the District guilty of an unfair labor practice.

Reversed.

STEIGMANN, J., concurs.

JUSTICE LUND,

specially concurring:

I concur with the result of Justice Green’s well-reasoned opinion, except I would not give deference to the expertise of the IELRB as to the issue of jurisdiction versus the statute of limitations. One of the purposes of the Act is to bring a timely end to disputes. The six-month filing provision may well lead to early determination of disputes. We need not set forth the large number of cases relating to tolling of limitations. Needless to say, they represent long delays at the trial level and the appellate level. The delay caused by presenting the tolling issue to the IELRB and then to the appellate courts will result in the sore continuing to fester. There comes a time when teachers and school administrators must feel free of the possibility of litigation resulting from a past incident.


author: PRESIDING JUSTICE BARRY

text:
    JAMES M. KELLY, Appellant, v. THE INDUSTRIAL COMMISSION et al. (City of Urbana, Appellee).
    Fourth District (Industrial Commission Division)
    No. 4 — 89—0754WC
    Opinion filed September 25, 1990.

      Paul C. Hendren, of Miller & Hendren, of Champaign, for appellant.
    Rasa E. Norusis, of Cohn, Lambert, Ryan, Schneider & Harman, Ltd., of Chicago (Michael R. Schneider, of counsel), for appellee.
   PRESIDING JUSTICE BARRY

delivered the opinion of the court:

The petitioner, James M. Kelly, appeals from the circuit court’s order granting the respondent’s motion to quash his workers’ compensation judicial review as being untimely filed.

The petitioner filed an application for adjustment of claim under the Workers’ Compensation Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 138.1 et seq.), alleging that he had suffered an injury on November 1, 1982, while working for the respondent, the City of Urbana. On February 26, 1985, an arbitrator awarded him temporary total disability benefits pursuant to section 8(b) of the Act (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(b)). In addition, the arbitrator found that he was permanently partially disabled to the extent of 12% (Ill. Rev. Stat. 1981, ch. 48, par. 138.8(d)(2)).

On review, the Industrial Commission (Commission) issued a predecision memorandum dated June 25, 1987, reversing the arbitrator and finding that the petitioner had failed to prove an accident and a causal connection. On December 4, 1987, the Commission issued a full written decision finding that the petitioner had failed to prove he sustained accidental injuries arising out of and in the course of his employment on November 1, 1982. The decision did not address the predecision memorandum finding of no causal connection. On December 10, 1987, the respondent filed a motion to recall the Commission’s decision for failure to include findings of fact and conclusions of law regarding the causal connection issue.

On December 23, 1987, while the motion to recall was still pending before the Commission, the petitioner filed for judicial review in the circuit court. On September 16, 1988, the Commission issued an order denying the respondent’s motion to recall. Thereafter, the petitioner did not refile for judicial review. On December 6, 1988, the respondent filed a motion to quash the petitioner’s summons contending that it had not been timely filed pursuant to section 19(f) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f)), as interpreted in International Harvester v. Industrial Comm’n (1978), 71 Ill. 2d 180, 374 N.E.2d 182. The circuit court agreed and dismissed the petitioner’s appeal for lack of subject matter jurisdiction.

The respondent had also filed a second motion to quash based on the petitioner’s alleged failure to name the City of Urbana as a party in his written request for summons. The circuit court never ruled on this second motion.

The petitioner first argues on appeal that the circuit court erred when it dismissed his appeal. He criticizes the rationale of the majority of the divided International Harvester court as being contrary to the plain meaning of section 19(f) and urges this court not to follow that reasoning.

Section 19(f) of the Act reads:

“The decision of the Commission acting within its powers, according to the provisions of paragraph (e) of this Section shall, in the absence of fraud, be conclusive unless reviewed as in this paragraph hereinafter provided. However, the Arbitrator or the Commission may on his or its own motion, or on the motion of either party, correct any clerical error or errors in computation within 15 days after the date of receipt of any award by such Arbitrator or any decision on review of the Commission and shall have the power to recall the original award on arbitration or decision on review, and issue in lieu thereof such corrected award or decision. Where such correction is made the time for review herein specified shall begin to run from the date of the receipt of the corrected award or decision.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(f).

In International Harvester, the employer filed a section 19(f) motion with the Commission, requesting a correction in the Commission’s original decision to reflect that money had been paid to the claimant through the claimant’s nonoccupational group insurance plan. While the motion was still pending, the employer filed a petition for writ of certiorari in the circuit court. The Commission subsequently entered an order denying the motion, after which the employer failed to file another petition for a writ of certiorari. In holding that the circuit court should have dismissed the petition for lack of jurisdiction, the supreme court stated that upon the timely submission of a section 19(f) motion, the Commission retains jurisdiction over the cause until the motion is finally resolved and any petition for a writ of certiorari filed prior to the resolution of a section 19(f) motion to correct is premature, in that it is based on a decision which is not final and appealable.

The petitioner places much emphasis on the dissenting opinions in International Harvester, which construed the statute as providing that the time during which certiorari may be sought begins to run from the date of the original decision where no correction is made by the Commission. Furthermore, he claims that the majority’s holding has been criticized in subsequent cases. He cites PPG Industries, Inc. v. Industrial Comm’n (1982), 91 Ill. 2d 438, 438 N.E.2d 173, and Menozzi v. Industrial Comm’n (1983), 96 Ill. 2d 468, 451 N.E.2d 853, for that proposition.

We note that the above-mentioned cases cited by the petitioner do not criticize the majority’s holding in International Harvester, but rather follow it approvingly. The PPG and Menozzi courts discussed the rationale of the dissenters only in response to the appellants’ arguments relying on those dissents. In both cases, the courts disposed of the appellants’ arguments merely by noting that the facts that were of concern to the dissenters were not present. In light of the fact that the holding in International Harvester has not been overruled or eroded in any way, this court must follow it.

The petitioner next attempts to distinguish the instant case from International Harvester. He points out that in International Harvester it was the employer, not the employee, who was effectively deprived of judicial review. He also notes that in International Harvester the same party petitioned for a correction and sought judicial review. In that regard, he suggests that the refiling requirement invites abuse. According to the petitioner, the respondent could have filed a petition to correct, then dismissed it 21 days after the original decision, thereby depriving him of review if he had not filed a petition for judicial review within 20 days of the original decision.

We initially note that the petitioner’s employer-employee distinction is faulty. Section 19(f) does not differentiate between parties. Moreover, the International Harvester decision did not rest on any such distinction between employer and employee nor did it rest on the condition that the same party petitioning for a correction must also file for judicial review.

Regarding the petitioner’s potential abuse argument, we note that the same argument was rejected in American Can Co. v. Industrial Comm’n (1986), 149 Ill. App. 3d 83, 500 N.E.2d 544. The American Can Co. court stated that the Commission’s decision is not final and appealable until the Commission decides whether it will correct any alleged errors. A motion to correct stays the 20-day period to appeal, even if the moving party later dismisses the motion. In such a case, the 20-day period to appeal begins running upon the opponent’s receipt of the notice of dismissal. Accordingly, we find that the circuit court properly concluded that the petitioner’s attempts to distinguish the instant case from International Harvester were too strained.

Next, the petitioner argues that the respondent’s motion to recall did not allege a clerical error and therefore that motion was a nullity. He relies on Wilson-Raymond Constructors Co. v. Industrial Comm’n (1980), 79 Ill. 2d 45, 402 N.E.2d 584, in support of his position.

We find that the petitioner’s reliance on Wilson-Raymond Constructors Co. is misplaced. In that case, the petition to correct requested reconsideration of the merits and presentation of further evidence. In contrast, in the instant case, the petition to correct drew attention to the inconsistency between the predecision memo and the actual decision and requested that the Commission resolve that inconsistency.

As such, the instant case was similar to Menozzi v. Industrial Comm’n (1983), 96 111. 2d 468, 451 N.E.2d 853, and International Harvester v. Industrial Comm’n (1978), 71 Ill. 2d 180, 374 N.E.2d 182, in which the courts found that section 19(f) of the Act was applicable regardless of whether the error was technically characterized as “clerical” or “substantive.” In International Harvester, the error urged for correction was the failure to credit an earlier payment of nonoccupational benefits against an award of workers’ compensation benefits. In Menozzi, the petition to correct alleged that the amount of bond bore no relationship to the amount of the award. The Menozzi court found that a party who is convinced that an order of the Commission contains a substantial error or inconsistency should be allowed to request a correction, as the statute plainly allows him to do. We find that the Menozzi rationale is controlling here.

Lastly, the petitioner contends that he substantially complied with the requirements of section 19(f) and therefore his appeal should not have been dismissed.

The cases relied upon by the petitioner, characterized by Sprinkman & Sons Corp. v. Industrial Comm’n (1987), 160 Ill. App. 3d 599, 513 N.E.2d 1188, are distinguishable. In Sprinkman, the Commission issued a predecision memorandum affirming the arbitrator’s ruling. However, before the Commission issued its actual decision affirming the arbitrator, the petitioner filed for judicial review. Finding that the petitioner’s writ of certiorari was timely, albeit prematurely, filed, the court distinguished International Harvester on the grounds that there a petition to correct was pending whereas in Sprinkman no petition was filed. Accordingly, we conclude that International Harvester controls the outcome here and therefore the circuit court properly dismissed the petitioner’s appeal for lack of jurisdiction.

The judgment of the circuit court of Champaign County dismissing the petitioner’s appeal for lack of jurisdiction is affirmed.

Affirmed.

McNAMARA, WOODWARD, McCULLOUGH and LEWIS, 33., concur.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF ROMA WALKER, Petitioner-Appellee, and JACK F. WALKER, Respondent-Appellant.
    Fourth District
    No. 4 — 90—0162
    Opinion filed September 28, 1990.
    William B. McNamara, of Groppi, McNamara & Underhill, of Danville, for appellant.
    Arthur M. Lerner, of Lerner & Kirchner, of Champaign, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

This case concerns the question of whether 235 shares of stock of a closely held corporation are marital or nonmarital property under the provisions of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503). Both a father and his son worked for the corporation during the son’s marriage, and the stock was sold by the father to the son at a price which constituted a very substantial bargain. In a dissolution proceeding between the son and his wife, the circuit court ruled the foregoing shares were marital property. We agree and affirm the judgment on appeal.

On June 27, 1988, petitioner Roma Walker filed a petition in the circuit court of Vermilion County for the dissolution of her marriage to respondent Jack Walker. A judgment of dissolution was entered August 19, 1988, and on December 22, 1989, a judgment was entered on certain ancillary matters including the distribution of property. The court determined that the marital assets should be divided equally and awarded marital property valued at approximately $360,500 to each party. The 235 shares of stock in the previously described family-held close corporation which were ruled to be marital property were awarded to respondent, and petitioner was awarded other marital property to effectuate the even distribution of marital property. Respondent has appealed, contesting only the classification of those shares of stock.

The undisputed evidence presented at the hearing indicated: (1) at the time of the dissolution, the parties had been married 35 years; (2) respondent was an employee of the General Appliance Company for 30 years; (3) the company was incorporated in 1973; (4) respondent’s father contributed the entire capitalization for the corporation, which issued 500 shares of stock; (5) the father gave respondent 100 shares of stock at that time and retained 400 shares; (6) on February 1, 1985, the respondent’s father transferred the 235 shares of stock in question from himself to respondent, and respondent paid the father $47,000; (7) no gift-tax return was filed in regard to this transfer; and (8) prior to the 1985 transfer of 235 shares, respondent purchased additional shares of stock from his sisters, in December 1975 and December 1977, at $200 per share.

Attorney William Kesler testified that (1) he has been the attorney for the General Appliance Company since it was incorporated in 1973; (2) at the time of the transfer of the 235 shares to respondent, he advised respondent and his father that, because the stock’s fair market value was more than $47,000, the transfer would constitute a taxable gift; (3) he estimated the book value of the stock was $500 per share, and therefore, the transaction resulted in a gift of approximately $300 per share; (4) he indicated that another way of looking at the transaction was that it was a purchase of 94 shares at the $500 per share, and a gift of the remaining shares; and (5) he informed respondent’s father that he was obligated to file a gift-tax return, but because the amount of the gift tax would be less than the exclusion allowed, no gift tax would be due.

Section 503 of the Act creates a rebuttable presumption that all property acquired during the marriage is marital. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 216, 446 N.E.2d 499, 502.) The party seeking to rebut the presumption has the burden of presenting evidence to show that the property was acquired by an excepted method enumerated in section 503(a), such as a gift.

Respondent argues, however, that a presumption exists that a transfer from a parent to a child constitutes a gift and may be overcome only by clear and convincing evidence to the contrary. (In re Marriage of Agazim (1986), 147 Ill. App. 3d 646, 648, 498 N.E.2d 742, 744.) Respondent maintains that if no money had changed hands, the transfer of the stock would be presumed to be a gift, and would be considered nonmarital property. He argues that at least a portion of the 235 shares of stock he acquired in 1985 should be treated as nonmarital property, because since he paid less than the fair market value of the stock, it was a gift from his father. He notes the property transferred had a value of $117,500, and he paid $47,000. He concludes, therefore, that the court should have found a gift of $70,500, and that amount should be treated as nonmarital property.

Here, as in Agazim, the transaction was subject to the two conflicting presumptions. Thus, “the presumptions effectively cancelled each other and left the trial court free to resolve the issue of whether the property acquired by the transaction was nonmarital or marital on the facts.” Agazim, 147 Ill. App. 3d at 648, 498 N.E.2d at 744; In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 772, 467 N.E.2d 962, 966.

The trial court rejected respondent’s argument that the transfer was intended as a gift. The court noted the father did not file a gift-tax return, and although that fact, in itself, is not conclusive (Agazim, 147 Ill. App. 3d at 651, 498 N.E.2d at 746), it supports the theory the transfer was not intended as a gift. The court also noted that a contract for the sale of stock was signed between respondent and his father, and that the evidence indicated the father wished his son to have the stock for the price stated in the contract. The court indicated that the contract stood as representative of the intent of the parties as a sale, and, if the parties had intended a portion of that transaction to be a gift, they could have so stated and filed a gift-tax return. The court concluded the transfer was a sale for less than adequate consideration and could be characterized as a “bargain.” The court noted that the parties had undoubtedly acquired other “bargains” during their marriage, but that fact did not necessarily transform the other transactions into gifts.

The trial court could properly have concluded, and its comments indicate it did conclude, respondent and his father did not follow attorney William Kesler’s suggestion they treat the transaction concerning the transfer of the 235 shares as a sale of 94 shares for full value and a gift of the remainder of the shares. Had they done so, we would agree that the 94 shares would likely be marital property and the other shares nonmarital property. However, the evidence gives no indication the transaction was treated in this manner. Rather, the record indicates the transfer of each of the 235 shares was to be treated in the same manner. If that is so, then the sale of each was at a bargain price. Respondent would have us treat each share as partially representing a sale to the extent of $200 of the total sales price, with the balance of the value of that share constituting a gift.

Respondent’s theory of the transfer of each share constituting partly an arm’s length sale and partly a gift runs afoul of the “unitary property” principle (111. Ann. Stat., ch. 40, par. 503(a), Supplement to Historical and Practice Notes, at 60 (Smith-Hurd Supp. 1990)) arising from Bentley v. Bentley (1981), 84 Ill. 2d 97, 417 N.E.2d 1309, and In re Marriage of Komnick (1981), 84 Ill. 2d 89, 417 N.E.2d 1305. In those cases, the supreme court held the appreciation in the value of nonmarital property occurring during the marriage of the parties was not marital property. The court concluded the legislature did not intend for property to be partly marital and partly nonmarital. Subsequently, in the cases of In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, and In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635, the supreme court held nonmarital property commingled with marital property became marital property. Again, the court concluded that property could not be marital in part and nonmarital in part.

The effect of Smith and Rogers was modified by the General Assembly by amendment to section 503(c) of the Act (Pub. Act 83— 129, eff. Aug. 19, 1983 (1983 Ill. Laws 1526, 1528)) to provide that when property of one classification is commingled with that of another so that its identity is lost, the property becomes marital property, but the estate making the contribution will be reimbursed for the value of the contribution if that can be ascertained. (Ill. Rev. Stat. 1983, ch. 40, par. 503(c).) This legislation is the only modification of the unitary property principle we have previously described. Here, the 235 shares of stock came from neither a marital nor a nonmarital estate but from a third party. The shares were paid for by marital funds, although at a bargain price. They had to be either marital or nonmarital property. The payment of the purchase price from marital funds prevented the property from being nonmarital. We do not deem the fact that the price set by the seller gave the respondent a substantial bargain constitutes a contribution by the nonmarital estate of the respondent entitling that estate to reimbursement from the marital estate pursuant to the present provisions of section 503(c) of the Act.

Accordingly, we hold the circuit court’s decision to classify the 235 shares of stock as marital property was supported by the record. We affirm the decree from which appeal was taken.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE LUND

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DELMAR LEE TAYLOR, Defendant-Appellant.
    Fourth District
    No. 4 — 90—0017
    Opinion filed September 28, 1990.

      Daniel D. Yuhas and John Anthony Palombi, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Defendant Delmar Lee Taylor entered a guilty plea to the offense of aggravated criminal sexual abuse and was sentenced to five years’ imprisonment. This conviction, together with prior convictions, qualified defendant as an habitual child sex offender as defined by the Habitual Child Sex Offender Registration Act (Act) (111. Rev. Stat. 1989, ch. 38, pars. 221 through 230). Section 2(A) of the Act provides:

“ ‘Habitual child sex offender’ includes any person who, after July 1, 1986, is convicted a second or subsequent time for any of the sex offenses or attempts to commit any of the offenses set forth in subsection (B) of this Section. Upon such conviction the court shall certify that the person is a[n] ‘habitual child sex offender’ and shall include the certification in the order of commitment” Ill. Rev. Stat. 1989, ch. 38, par. 222(A).

The trial court failed to certify defendant under the Act at the time of sentencing, but did provide defendant with notice of hearing and entered an order of certification under the Act several months after the sentencing. Defendant contends that the certification is void because the trial court lost jurisdiction 30 days after the sentencing disposition.

The defendant also argues that the certification violates section 5 — 8—1(c) of the Unified Code of Corrections. (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—1(c).) In addition, he contends his plea was involuntary because he was not admonished prior to pleading guilty that he could be certified under the Act.

The Act became effective on August 15, 1986. Little case law lends assistance in our query. The Second District Appellate Court struggled with the effect of late certification in People v. Adams (1990), 198 Ill. App. 3d 74, 555 N.E.2d 761. With a different fact situation than that confronting us, that court held the late certification was a correction of the record following an oversight or inaccuracy. The trial judge in Adams had mentioned the Act at the time of sentencing. No mention of the Act was indicated in the present case until well after 30 days following judgment.

Our analysis of the Act leads to the conclusion that it is not penal in nature, thus not a part of the sentencing procedure. It is an Act for the protection of the general public from those prone to sex offenses against children. Any limitation of the rights of an offender proscribed by the Act is made insignificant when weighed against the protection to the public.

We note the provisions of the Act define or establish the habitual child sex offender status without reference to, and not conditioned on, the certification. We conclude that the certification charged to the court is ministerial in nature and is provided for in order to assure that officials of penal institutions, as well as defendants, are made aware of a defendant’s status under the Act. Section 4 of the Act (Ill. Rev. Stat. 1989, ch. 38, par. 224) charges penal authorities with giving notice when an offender is released. Sections 3, 5, 6, and 8 of the Act also spell out notification and registration requirements. (Ill. Rev. Stat. 1989, ch. 38, pars. 223, 225, 226, 228.) The registration information is not available for public inspection. Ill. Rev. Stat. 1989, ch. 38, par. 229.

The Act is separate and distinct from the sentencing procedure. Nothing in the Act purports to be a part of a defendant’s punishment or sentence. Therefore, we conclude that a court which fails to do its administrative duty under the Act at the time of sentencing does not lose jurisdiction to perform the function in the future.

Affirmed.

SPITZ and GREEN, JJ., concur.