author: JUSTICE BARRY

text:
    BEVERLY BANK, Trustee, et al., Plaintiffs-Appellants, v. THE BOARD OF REVIEW OF WILL COUNTY et al., Defendants-Appellees.
    Third District
    No. 3—88—0557
    Opinion filed September 7,1989.
    Modified on denial of rehearing February 15, 1990.

      Eugene J. Schiltz, Robert E. Coleman, and Kenneth Philip Ross, all of Robert F. Coleman & Associates, Robert E. Williams, of Robert S. Atkins & Associates, and Frank S. Pollack and Bryon H. Weis, both of Pollack & Weis, all of Chicago (Robert S. Atkins, of counsel), for appellants.
    Kurnik, Cipolla, Stephenson & Barasha, Ltd., of Arlington Heights (William W. Kurnik, of counsel), for appellees.
   JUSTICE BARRY

delivered the opinion of the court:

This class action was brought in 1979 on behalf of the taxpayers of Will County who had paid taxes on the basis of allegedly illegal discriminatory increases in the assessed valuation of commercial and industrial real and personal property. Defendants are the County of Will and the Board of Review of Will County. Suit was originally filed in Federal court as a civil rights action under section 1983 of the Civil Rights Act (42 U.S.C. §1983 (1976)) and later was transferred to the circuit court of Will County. In 1987 a settlement of this action was approved by the circuit court of Will County, and counsel for plaintiff filed a petition seeking $1.15 million in attorney fees and costs pursuant to section 1988 of the Civil Rights Act. The trial court substantially reduced the fees requested and awarded $433,462. Petitioners have appealed.

The findings of fact contained in the written order of the trial court set forth clearly the history of this action. Since that history is essential to a review of the fees awarded, we quote those findings of fact, as follows:

“1. Petitioners, after conducting a thorough and necessary factual and legal investigation into Will County’s 1978 property tax assessments, filed in the United States District Court for the Northern District of Illinois (No. 79 C 4718), a class action complaint on behalf of the owners of commercial, industrial and personal property located in Will County. The complaint alleged that the defendants had unlawfully increased the property tax assessments of the named class representatives and the members of the plaintiff class in violation of plaintiffs’ Fourteenth Amendment rights to due process and equal protection.
2. While the complaint was pending in federal court, Petitioners drafted and filed a motion for class certification and a supporting memorandum. On September 14, 1981, by agreement of the parties, the District Court certified a class pursuant to Rule 23 of the Federal Rules of Civil Procedure. The class included all taxpayers of Will County who paid real estate tax on industrial and/or commercial real estate and/or personal property tax for the tax levy year 1978.
3. In the federal court proceedings, defendants raised several arguments in summary judgment motions. Among others, petitioners had to research and respond to arguments that defendants were entitled to summary judgment because:
a. the Tax Injunction Act (28 U.S.C. Sec. 1341) barred this suit;
b. the doctrine of Burford abstention barred this suit;
c. the complaint did not state a cause of action.
4. In early 1982, this suit was transferred to this Court by stipulation after the United States Supreme Court’s decision in Fair Assessment in Real Estate Ass’n. vs. McNary, 454 U.S. 100 (1981).
5. Shortley [sic] thereafter, defendants moved for judgment on the pleadings. The trial court granted defendants’ motion and petitioners prosecuted plaintiffs’ appeal to the Illinois Appellate Court for the Third District. While the appeal was pending, defendants filed a motion to assess their costs and attorneys’ fees against plaintiffs for having filed a frivolous complaint. The Court denied this motion. The Appellate Court reversed the dismissal of the complaint, holding that it stated a cause of action under 42 U.S.C. Sec. 1983 for denial of plaintiffs’ right to equal protection of the laws. Beverly Bank, et al., v. Board of Review of Will County, et al., 117 Ill. App. 3d 656, 453 N.E.2d 96 (3d Dist. 1983). Petitioners then successfully opposed defendants’ Petition for Leave to Appeal to the Illinois Supreme Court and defendants’ Petition for a Writ of Certiorari to the United States Supreme Court. Board of Review of Will County, et al. v. Beverly Bank, et al, 466 U.S. 951 (1984).
6. Following the case’s remand to this Court in 1984, petitioners drafted, obtained approval of, and sent out a Notice of Pendency of Class Action to the members of the class and had a similar notice published in the Joliet Herald. Petitioners responded to numerous inquiries from class members, correlated the opt-out requests and filed with this Court a report on all of these matters.
7. In this Court, defendants raised various defenses to the complaint which could possibly have been the basis for a judgment in defendants’ favor. Among those defenses were arguments that:
a. at the time it applied its uniform formula to increase the assessments of commercial, industrial or personal property, the Board of Review also increased the assessments of a substantial block of residential parcels;
b. the Board of Review’s increases in the assessments of commercial, industrial and personal property were not intended to eliminate the effect of the 1.13 tentative multiplier imposed by the DLGA;
c. the Board of Review believed that commercial, industrial and personal property was underassessed, thus the Board had a rational basis for increasing the assessments of those properties;
d. the Board of Review and Will County are not liable for the acts of the members of the Board of Review because those acts do not constitute the ‘policy’ of either body;
e. the individual members of the Board of Review are immune from liability; and
f. as to personal property, that property was not entitled, under either state or federal law, to be accorded the same treatment for tax purposes as real property, and therefore, since all personal property entitled to be treated alike was treated alike, there was no equal protection violation.
8. Petitioners filed a motion for summary judgment supported by memoranda, which this Court ultimately denied.
9. Petitioners were in the process of preparing this case for trial when serious settlement negotiations commenced in early 1986, shortly after petitioners’ motion for summary judgment was denied.
10. The parties ultimately reached a settlement in June 1986. Petitioners drafted the Settlement Agreement, and the parties’ attorneys outlined it to this Court. Before any hearing on the settlement was held, however, defendants filed motions for leave to file additional affirmative defenses and for summary judgment on the basis of those affirmative defenses. After petitioners successfully opposed this motion, the Settlement Agreement was negotiated a second time. Some revision of the Settlement Agreement was necessary. The Settlement Agreement was ultimately executed and preliminarily approved by this Court on March 10, 1987. Defendants then filed a motion to vacate the settlement based on an alleged mutual mistake of fact as to the dates on which they were to make payments to the class and yet another round of settlement discussions ensued involving counsel and the Court. A new settlement was finally reached and preliminarily approved by this Court on August 27, 1987. The Court also approved new notices to the class, which petitioners caused to be mailed to the 9,554 class members and published in the Joliet Herald News, as outlined in petitioners’ October 27, 1987 Report to the Court.
11. On November 17, 1987, this Court gave final approval to the settlement as fair, reasonable and adequate and in the best interests of the class, and rejected as premature a local school district’s objection to paying any of the costs of the settlement.
12. The Court finds that the issues faced by petitioners in this litigation were novel and unique and that petitioners’ chances of success in this litigation were uncertain during its entire pendency, from its inception until final approval of the Settlement. Specifically, the Court finds that at the time this suit was filed, there was considerable doubt whether suit could even be brought under 42 U.S.C. Sec. 1983 to challenge state tax practices, irrespective of the merits of the substantive claim. The Court finds that, having undertaken this case on a contingent basis, petitioners at all times faced a substantial risk of not receiving any compensation at all for their services in this case.
13. The settlement agreement in this case provides that class members will be paid in cash, 85% of the amount of the taxes allegedly unconstitutionally assessed against them. The Settlement Agreement resulted in the creation of a fund of approximately $3.15 million plus any costs and attorneys’ fees which the Court assesses against defendants pursuant to 42 U.S.C. Sec. 1988.
14. The recovery by the class in this case of 85% of its total claim, exclusive of attorneys fees and expenses awarded against defendants pursuant to 42 U.S.C. Sec. 1988, is a very good result and provides a substantial benefit to the class. The success achieved by petitioners in this litigation also provided the further public benefit of acting as a deterrent to taxing officials’ illegally increasing assessments in the future.
15. Plaintiffs are prevailing parties within the meaning of 42 U.S.C. Sec. 1988, and are entitled to payment of their costs and reasonable attorneys fees by the defendants.”

The trial court stated that it must first determine a “lode star figure,” which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.

Petitioners had requested a rate of $195 per hour for Robert S. Atkins and $125 per hour for Eugene J. Schütz, the two attorneys who devoted the most time to the case. The trial court ruled that petitioners had failed to establish that the requested rates were the prevailing market rates in the community for small law firms such as theirs, and after discussing the evidence relating to rates billed by attorneys of comparable background and experience and those billed by the Atkins firm, the court determined that the rate for Atkins should be $125 per hour and the rate for Schütz should be $95 per hour. Upon a subsequent motion to reconsider, the trial court modified its order to award Atkins a rate of $150 per hour.

Petitioners requested compensation for 2,868 hours worked by 13 different attorneys and 129 hours by paralegals and law clerks. The trial court reduced the hours to about one-half of those sought, awarding compensation for 1,546 hours by attorneys and none by nonattorneys. Two of the reductions are challenged on appeal; one, the deletion of 217 hours for Robert E Coleman and Barry J. Freeman, senior partners of the firm of Freeman, Atkins & Coleman, Ltd., and the other the deletion of 325 hours for the firm of Pollack & Weis, tax experts. The court then further reduced the compensable hours by a 20% multiplier applied across the board. This reduction was made because of insufficient itemization of time records, according to the trial court, so that the court was not able to determine what conferences were about or what was involved in entries labelled “Re: Discovery” or “Re: Status.”

The trial court refused to grant petitioners a multiplier to compensate for the delay in collection of fees and instead awarded fees at the current market rates rather than the rates current at the time the work was done. The court did apply a multiplier of 2.5 to the lodestar amount “to account for the substantial contingent risk inherent in this case and to bring petitioners’ total compensation in this case within the range of compensation normally paid attorneys for handling similar cases.”

The lodestar amount to be paid by the County of Will was computed as follows:

Atkins, Gubbins, and Pollack-Weis

481.4 hours x $150 = $72,210

Schütz, Ross, Freeman & Padove

1065 hours x $95 = 101,175

Total lodestar amount $173,385

The court then awarded petitioners a multiplier amount to be paid out of the settlement fund as follows:

$173,385 x 2.5 - $173,385 = $260,077.50

On appeal petitioners seek an increase of $190,597.50 in the lodestar amount based upon allegedly erroneous reductions in both compensable hours and in the hourly rates. They do not challenge the multiplier or the allocation of the multiplier amount to be paid from the settlement fund.

I. DETERMINING HOURLY RATES

Petitioners first contend that the trial court erred as a matter of law in reducing the hourly rates requested on the ground that small firms, such as those of petitioners, charge lower hourly rates than medium or large firms. Petitioners urge that is was also error as a matter of law to rely primarily upon the rates from a small sampling of previous hourly billings to a few clients of Atkins and Schütz.

Section 1988 of the Civil Rights Act (42 U.S.C. §1988 (1976 ed.)) provides that in a Federal civil rights action “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.”

The United States Supreme Court has said that a reasonable attorney fee under this statute is determined by initially calculating the number of hours reasonably expended on the litigation times a reasonable hourly rate and then making whatever adjustments may be necessary in each particular case. (Blum v. Stenson (1984), 465 U.S. 886, 79 L. Ed. 2d 891, 104 S. Ct. 1541.) In Blum v. Stenson the attorneys seeking a fee award were salaried employees of a nonprofit organization, the Legal Aid Society of New York. The Supreme Court ruled that a cost-based standard for fee awards would not be appropriate for nonprofit legal aid attorneys but rather recognized the proper standard to be the same prevailing community rate for attorneys of like competence and experience in the same area doing similar work during the relevant period.

No cases have been cited to us in support of the trial court’s theory that attorneys from a small firm ought to be awarded fees at a lower rate than attorneys from a larger firm solely on the basis of firm size. We consider such a theory to be violative of the prevailing community rate standard, which is based upon the skill and qualifications of the individual attorney and not upon the size of the attorney’s firm. (See Strama v. Peterson (N.D. Ill. 1983), 561 F.Supp. 997, 998.) Illinois courts have also recognized the skill and qualifications of the attorneys as the first factor to be considered in awarding fees in a common fund case. E.g., Leader v. Cullerton (1976), 62 Ill. 2d 483, 343 N.E.2d 897; Board of Commissioners v. County of Will (1987), 154 Ill. App. 3d 395, 506 N.E.2d 1044.

Just as the profit or nonprofit nature of an attorney’s practice does not determine the fee award in civil rights cases, neither does the size of the law firm involved in the litigation. The appropriate standard is the market rate prevailing in the community for attorneys with the experience, skill, and qualifications of petitioners doing comparable work. Here the trial court erred in reducing petitioners’ hourly rate because of the size of their firms.

Additionally, petitioners challenge the trial court’s reliance upon nonrepresentative hourly billings of attorneys Atkins and Schütz in determining the appropriate hourly rate for the fee award. In so doing, the trial court cited the case of Laffey v. Northwest Airlines, Inc. (D.C. Cir. 1984), 746 F.2d 4, where the court used the attorney’s customary billing rate in fixing the hourly rate for a civil rights action-fee award. The Laffey decision was overruled by the same court in Save Our Cumberland Mountains, Inc. v. Hodel (D.C. Cir. 1988), 857 F.2d 1516, four months after the order entered here. In Save Our Cumberland Mountains, Inc. v. Hodel, the attorneys for the prevailing parties traditionally charged reduced hourly rates for national environmental and conservation groups. Under the Laffey rule, these attorneys would be, in effect, penalized for past public service work by virtue of a reduced fee award in a successful class action where the hourly rate for the award is based upon past billings for hourly work in the same field. The Circuit Court of Appeals held that such a result would be contrary to the Supreme Court expression in Blum v. Stenson that fees should be “adequate to attract competent counsel,” but which should not produce windfalls to attorneys. (Emphasis in original.) (857 F.2d at 1521.) In other words, it would be hard to attract competent, qualified counsel to public interest fields if reduced rate billings would be seen as a waiver of the community market rate in computing subsequent fee awards of successful class action litigation.

Contrary to Laffey, the Seventh Circuit Court of Appeals, in Lightfoot v. Walker (7th Cir. 1987), 826 F.2d 516, has ruled that the prevailing attorney in a civil rights action was not limited to his historical billing rate for work done primarily in other areas of the law and in a different locality. The Court of Appeals set forth the applicable general principles as follows:

“As the Supreme Court has stated, ‘[wjhere a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee.’ Hensley, 461 U.S. at 435, 103 S. Ct. at 1940. Congress intended for ‘plaintiffs [to] receive a reasonable fee that is “adequate to attract competent counsel,” and that “counsel for prevailing parties be paid, as is traditional with attorneys compensated by a fee-paying client, ‘for all time reasonably expended.’ ” ’ Gekas v. Attorney Registration and Disciplinary Commission, 793 F.2d 846, 853 (7th Cir. 1986).” 826 F.2d at 520.

Accord, Maldonado v. Lehman (9th Cir. 1987), 811 F.2d 1341.

In the case at bar the trial court expressly based its hourly rate determination upon the evidence of “customary” rates billed by Atkins and Schütz although the work that was billed on an hourly basis constituted a small percentage of the practice of those two attorneys. That evidence, briefly summarized, was that Atkins billed “regular clients” $125 per hour and infrequent clients $150 per hour. In addition, a witness for defendants indicated that the customary rates for small firms like his own and Atkins’ were in the range of $125 to $150. Other witnesses testified that customary rates for attorneys with the experience and expertise of Atkins would be in the range of $185 to $250 per hour. The trial court stated that this latter evidence was not appropriate to consider since it was not related to the size of the law firm. Accordingly, the trial court used a rate of $150 for Atkins.

The evidence concerning Schütz indicated that he had billed two clients at the rate of $90 per hour and two other clients at the rate of $100 per hour. On the basis of those four billings, the trial court arrived at an hourly rate of $95 for Schütz.

We conclude that the trial court erred in relying upon previous billings of a small number of clients in determining the prevailing market rate for petitioners.

Petitioners also assert as error the trial court’s refusal to consider the supplemental affidavits concerning community market rates which accompanied the motion to reconsider. The decision whether to receive additional evidence at the post trial stage of the proceeding was a matter within the court’s discretion. (Elmhurst-Chicago Stone Co. v. County of Will (1982), 109 Ill. App. 3d 1029, 441 N.E.2d 883.) We will let that ruling stand, noting, as we do so, that there is ample evidence already in the record from which a correct determination of the hourly rates can be made.

After carefully reviewing the record and disallowing any rate reduction because of the small size of the law firms involved, we hold that Atkins was entitled to compensation at the rate of $195 per hour and that Schütz was entitled to compensation at the rate of $125 per hour.

In addition, petitioners’ evidence clearly established that Pollack and Weis, each with 28 years’ experience in real estate tax law, were entitled to the “senior litigator” rate of $195 per hour; that Gubbins (a 1975 law grad) was entitled to a rate of $160 per hour; and that Ross (a 1977 law grad) was entitled to a rate of $150 per hour. Interestingly, the trial court admitted during the hearing on petitioners’ motion for reconsideration that Ross would command $150 per hour, but the court instead left his rate at $95 per hour because he was less experienced at the time he worked on this case. For the other attorneys, the trial court used current market rates in lieu of a multiplier for the delay in collection. The record discloses no basis for treating Ross differently. We accordingly hold that Pollack and Weis, Gubbins, and Ross are to be awarded fees at the rates requested.

II. DETERMINING COMPENSABLE HOURS

In reducing the number of hours to be computed in the lodestar amount, the trial court eliminated 150 hours attributed to Robert F. Coleman and 67 hours attributed to Barry J. Freeman, both senior partners of Freeman, Atkins & Coleman, on the ground that the senior litigator work of these two men could have been performed by Atkins. Petitioners dispute part of the reduction on the ground that Atkins did not become involved with this case until October of 1980. Coleman sought compensation for 63.2 hours at a rate of $195 per hour and Freeman sought compensation for 63.1 hours at a rate of $175, both for work done before Atkins’ involvement in the case. Since the original research was done and the complaint was drafted during 1979 and 1980, this was a crucial period of time. It seems clear from the record that the hours spent by Coleman and Freeman prior to October 1980 were reasonable. We reverse the trial court as to the disallowance of those hours.

The trial court also deleted 325 of the hours of the tax firm of Pollack & Weis which were attributed to work after the complaint was filed. The trial court ruled that there was no evidence that the expertise of Pollack & Weis was reasonably necessary after the complaint was filed. We find this determination to be without support in the record. The merits of this litigation, the discovery process, and the settlement proposals involved issues of real estate tax law which justified consultation with experts in that field. Given the complexity of this case and the success of petitioners, we conclude that expert consultation was reasonably necessary and compensable. We therefore increase the award by 325 hours at a rate of $195 per hour for Pollack & Weis.

The final error asserted by petitioners is the trial court’s decision to reduce all compensable hours by 20% because of vagueness in the itemization, especially for conferences between attorneys. We have reviewed the work records of petitioners and find most of the entries to be sufficiently specific to indicate the subject matter of the conferences. For example, it was not unusual for cocounsel to confer concerning response to a motion, a discovery request, or a brief and then for Schiltz to list several hours of research and drafting relating to that subject, followed a few days later by a 20-minute conference with the senior litigator and cocounsel concerning the status of the case or “discovery” or an upcoming hearing. A careful survey of the time listed by petitioners discloses a subject matter listing of nearly every hour of research and conferences and, furthermore, it is possible to determine that most of the short conferences described in general terms relate to a previous matter of considerable importance. In some instances, time is listed for each of two or more attorneys who conferred together. The first listing is more detailed than the others but obviously explains the work done by all of the attorneys involved. Certainly, the fact that short follow-up conferences are less detailed than longer meetings should not, in our judgment, be fatal to petitioners’ fee award request for compensation for those conferences.

Additionally, we consider the listing to be sufficiently detailed to permit the trial court to strike any specific hours which might be deemed unreasonable. We have previously held that the trial court must provide reasons to justify a particular cut in hours (Board of Commissioners v. County of Will (1987), 154 Ill. App. 3d 395, 506 N.E.2d 1044), and we find the reasons given here insufficient to support a flat 20% reduction in the total hours awarded. The 20% reduction was error and shall be eliminated.

In summary, we are increasing the original lodestar amount of $173,385 by $190,597.50 to a total lodestar of $363,982.50. With the addition of the 2.5 multiplier to be applied to this additional lodestar amount, petitioners are entitled to be paid $545,973.75 from the settlement fund ($285,896.25 in addition to the $260,077.50 allowed by the trial court). Thus, the total award for attorney fees is $909,956.25.

The judgment of the circuit court of Will County is reversed and remanded for entry of judgment in accordance with this opinion.

Reversed and remanded.

HEIPLE, P.J., and SCOTT, J., concur.


source: Caselaw Access Project

author: JUSTICE DUNN

license: Public Domain

text:
      In re MARRIAGE OF DIANE GRATZ, n/k/a Diane Kent, Petitioner-Appellant, and GEORGE GRATZ, Respondent-Appellee.
    Second District
    No. 2—88—1270
    Opinion filed November 29, 1989.
    Rehearing denied February 8, 1990.

      R. Peter Carey and Uve R. Jerzy, both of Mandel, Lipton & Stevenson, Ltd., of Chicago (Richard A. Lifshitz, of counsel), for appellant.
    Charles Locker, of Chicago, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Diane Gratz Kent appeals from an order of the circuit court of Lake County denying her petition to remove her minor son, Gary, from Illinois to Arizona and granting the petition of her former husband, George Gratz, for modification of custody. Diane argues on appeal that the denial of her petition to remove was against the manifest weight of the evidence, that the trial court relied upon improper factors in denying the petition, and that the trial court erred by granting George’s petition to modify custody solely because of Diane’s move to Arizona. We reverse and remand.

The marriage of Diane and George was dissolved by court order on June 4, 1981. Their son Gary was almost two years old at the time. The parties agreed that Diane would receive custody of Gary and George would be granted reasonable visitation. Diane married her current husband, David Kent, on March 20, 1983. George married his current wife, Lori, about two years and nine months prior to the hearing on Diane’s petition to remove and his petition for modification of custody, which was held from September 29 to October 6, 1988.

David Kent retired from his position as a mechanical engineer with Abbott Laboratories on July 31, 1988. At the time, David, Diane, and Gary lived in a house in Glenview. George and Lori lived in a house in Waukegan. Gary generally spent most of the week in the Kent household. George would usually pick Gary up from the Kents on Saturday I evening at about 6 p.m. Gary would then stay with the Gratzes until Monday morning, when George would drive him to the parochial school he attended in Glenview. Most of Gary’s close friends resided near the Gratzes in Waukegan. He did not have many friends at school or in the I Kents’ neighborhood in Glenview. Gary would also spend one to two| weeks per year with the Gratzes during the summer.

At the time of David’s retirement he owned 13 houses in Arizona. David had long desired to move to Arizona after retirement. Diane and David purchased a house in Glendale, Arizona, in the early part of August 1988. They took Gary out to Arizona for a vacation that month and enrolled him in a public school near the new home. On August 17, 1988, Diane filed her petition for leave to remove Gary to Arizona. On August 23, George filed a response opposing Diane’s petition and filed his petition to modify custody. During the pendency of the proceedings on these petitions, Diane and Gary temporarily resided in a motel located at the intersection of Routes 21 and 45 in Lake County.

Diane alleged at trial and alleges on appeal that the move would be in Gary’s best interests for the following reasons: (1) Gary’s health would be improved because he is allergic to ragweed and there is much less ragweed in Arizona; (2) David’s health would be improved because he suffers from sleep apnea syndrome, a condition which causes him to snore loudly, and the condition improved during his August 1988 trip to Arizona; and (3) Diane would not have to work full time in Arizona because of the reduced cost of living and reduced expenses necessary to manage David’s real estate holdings, thus enabling her to spend more time with Gary. In arguing against removal, George has relied primarily upon Gary’s expressed preference to live with him in Waukegan and the potential disruption that the move would cause in Gary’s relationship with his friends in Illinois and with George.

Dr. Lawrence Elegant, a specialist in treating allergies, testified about Gary’s allergies. Dr. Elegant first examined Gary on September 15, 1988, two weeks prior to the hearing on the parties’ petitions. Gary had an itchy, badly running nose with itching and tearing in his eyes. Dr. Elegant noticed that Gary’s throat was severely irritated as well and that there was fluid behind his left eardrum. According to Dr. Elegant, Gary had an allergic rhinitis. Gary also displayed some evidence of atrophic rhinitis, which means that certain areas of the mucous membranes had become flattened, affecting his ability to smell and taste.

Dr. Elegant conducted tests with regard to the cause of the allergies. His preliminary finding was that Gary had a marked ragweed hay fever. Dr. Elegant testified that the Great Lakes area has the highest degree of ragweed pollen production during the ragweed season in the United States. He further stated that the Phoenix area has much less ragweed than the Chicago area.

Dr. Elegant prescribed nasalcrom and an antihistimine for Gary. Nasalcrom is inhaled and contains a chemical called cromolyn sodium. The next time Dr. Elegant saw Gary, which was on September 23, he showed some improvement with regard to his nasal activity, and there was marked improvement with the fluid problem in his left eardrum. According to Dr. Elegant, Gary’s condition would likely show a marked improvement as a result of a move from the Chicago area to the Phoenix area. He also testified that the ragweed pollen count in 1988 was very high.

The evidence deposition of Dr. Daniel Wynn, a specialist in neurology who had a subspecialty in sleep disorders, was admitted at trial. Dr. Wynn saw Diane Kent on May 7, 1988, because Diane had trouble sleeping at night and would sometimes fall asleep at work in the early afternoon. One of the causes of her trouble was David’s loud snoring. David first saw Dr. Wynn on June 7, 1988. He performed a daytime sleep study on David 10 days later, which consisted of observing and monitoring David while he slept. Dr. Wynn concluded that David had obstructive sleep apnea syndrome. After David fell asleep, he would continually partially block his airway and cut off the air to his lungs, causing him to repeatedly awaken. David snored very loudly as a result. Diane testified that he snored so loudly she could not sleep in the same room.

Dr. Wynn believed that David’s condition was caused by allergies, the fact that he had previously suffered a broken nose, and by other factors. Dr. Wynn testified there was a surgical procedure that was effective for between 50% and 60% of the patients. David Kent did not wish to have this operation, however. Dr. Wynn prescribed a nasal spray for David, but it was not effective. Another possible course of treatment was to have David wear a mask called a C-PAP every night. The mask blows air into a patient’s lungs to keep the airway open and will often stop snoring and other problems associated with sleep apnea syndrome.

According to Dr. Wynn, a move to a drier climate would likely cause an improvement in David’s condition. Dr. Wynn saw David on September 23, 1988, after David had spent several weeks in Arizona. David reported that he was snoring much less and was less dependent upon nasal sprays and other medication to keep his nasal passages open. Dr. Wynn felt the reduction in snoring was very significant, but he was not yet able to determine whether the move would eliminate the need for further treatment of David’s condition.

David and Diane both testified that David’s snoring was greatly reduced when they went to Arizona in August 1988, and Diane was able to sleep with him in the same room. The Kents also testified that Gary’s allergies improved significantly during this time. Diane testified that Gary had shown allergy symptoms in 1987; George stated that he did not notice any such symptoms that year.

Diane and David also testified that because certain savings would result from the move, Diane would either not have to work at all or only have to work part time, enabling her to spend more time with Gary. The savings would result because David would no longer have to pay for air travel from Illinois to Arizona to check on his real estate holdings, and he would be able to take over most of the maintenance work for the properties.

The trial judge held a conference with Gary in chambers with only the parties’ attorneys present. During this conference, Gary informed the trial judge that he did not wish to move to Arizona and would prefer to live with his father in Waukegan. Gary also told the trial judge that most of his friends lived in Waukegan near his father.

Dr. Daniel Rybicki, a psychologist, was the court-appointed conciliator in the present case. Dr. Rybicki interviewed Gary and both of the parties several times and also spoke to the parties’ spouses. Gary expressed his preference to live in Waukegan with his father to Dr. Rybicki. In his report and his testimony, Dr. Rybicki concluded that it would be in Gary’s best interests to live in Waukegan with his father.

According to Dr. Rybicki, both the Kent and Gratz households were good places for a child to live. The Kents had done a very good job of raising Gary. In general, the Kent household was more structured than the Gratz household. Dr. Rybicki believed it would be advantageous for Gary to be in a more flexible setting with the Gratzes because as he became older, he would need more independence in order to grow from a personal standpoint. Dr. Rybicki also felt it was important to respect Gary’s wishes in this regard because ignoring them might cause Gary to feel more insecure. He also stressed the importance of Gary’s relationship with his friends in Waukegan, although he testified that Gary could probably make new friends in Arizona. According to Dr. Rybicki, Gary stated that it was time for him to spend more time with his father.

During their testimony, the Kents stated they would be willing to permit Gary to stay with his father during most of his summer vacation and to visit his father one weekend per month all other months. The Kents were willing and able to pay Gary’s air fare for all visits. George testified, however, that he did not find this agreeable because his contact with Gary would not be as regular. George stated that the reason he opposed the removal petition was that he wanted Gary to have what Gary desired.

The trial court denied the petition to remove and granted the petition to modify custody. In so doing, the trial court relied primarily upon Dr. Rybicki’s report and testimony. The trial judge stated that the petition to modify would not have been granted were it not for the move and conditioned the granting of the petition on the Kents’ adherence to the move. The court denied Diane’s motion to reconsider, and the instant appeal ensued.

Under section 609 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 609), the burden is on the petitioner to show that removal of a child from Illinois is in the child’s best interests. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 325.) While a determination of the best interests of the child must be made on a case-by-case basis and will depend to a great extent upon the circumstances of the case, the following factors should be considered by the trial court in removal cases: (1) the likelihood the proposed move will enhance the general quality of life for the child and the parent having physical custody; (2) the motives of the parent having physical custody in seeking to move; (3) the motives of the other parent in resisting removal; (4) the visitation rights of the parent lacking physical custody; and (5) whether a reasonable and realistic visitation schedule is possible if the move is approved. (Eckert, 119 Ill. 2d at 326-27; In re Marriage of Kutinac (1989), 182 Ill. App. 3d 377, 382.) The trial court’s determination of what is in the child’s best interests in the context of a removal petition should not be reversed unless it is clearly against the manifest weight of the evidence and it appears a manifest injustice has taken place. Eckert, 119 Ill. 2d at 328.

With regard to the Eckert factors, we first note that there is no evidence in the record that Diane’s motives in seeking to move were improper, which means there is no evidence the move was a ruse to frustrate George’s visitation rights. (119 Ill. 2d at 327.) Nor is there any evidence that George’s motives in resisting removal were improper; he appears to have been motivated by a genuine concern for Gary. As a result, we need only consider the other three factors. See In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184,188.

Diane presented abundant evidence that the proposed move to Arizona would enhance the general quality of life for her and Gary. Dr. Elegant, a specialist in treating allergies, testified that the move would likely cause a marked improvement in Gary’s allergies because much less ragweed is present in the Phoenix area. Although the Gratzes attempted to minimize the seriousness of Gary’s condition, Gary himself stated during his conference with the trial judge that his allergies had recently been bad.

Additionally, the evidence showed that the move was likely to benefit David’s health by ameliorating his problem with sleep apnea syndrome and lessening a source of tension in David and Diane’s marriage. According to Diane’s testimony, David’s snoring was not a problem in Arizona, and she was able to sleep with him in the same room once again.

There is also undisputed evidence that the Kents would save a substantial amount of money from moving because David could take over most of the maintenance work on his real estate holdings and would no longer have to bear the expense of flying to Arizona to check on these properties. Furthermore, the Kents had a much lower monthly mortgage payment for their Arizona home. As a result of the Kents’ reduced expenses, Diane could either work part time or possibly stop working altogether and would have more time to spend with Gary.

The visitation factors must now be examined. There is no doubt that George assiduously exercised his visitation rights since Gary stayed with him in Waukegan almost every weekend. As a practical matter, weekly visitation would be impossible if Gary moved to Arizona. The Kents, however, proposed a liberal visitation schedule which would enable Gary to see his father and friends in Waukegan once a month and to spend most of his summer in Waukegan. Under this schedule, the number of days which Gary spent with George per year would remain approximately the same. The Kents also proposed to pay Gary’s air fare for each of the visits.

The above visitation schedule appears quite reasonable, and, in light of the Kents’ financial resources, it is certainly realistic. “A reasonable visitation schedule is one that will preserve and foster the child’s relationship with the noncustodial parent.” (Eckert, 119 Ill. 2d at 327.) George objects to the proposed schedule because he could not see Gary every week. With regard to the visitation factor, this case is quite similar to In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184. In both cases, the noncustodial parent exercised visitation rights on a weekly basis. Although liberal visitation was proposed by the custodial parent at her expense, the noncustodial parent objected because of his preference for regular contact with the child instead of exclusive contact over longer periods of time.

The court gave little weight to the noncustodial parent’s objection in Zamarripa-Gesundheit, stating that it believed the liberal visitation proposed by petitioner would provide the noncustodial parent with an adequate means to foster his relationship with the child. (175 Ill. App. 3d at 190.) We believe the same to be true in the case at bar. The proposed schedule ensures that George will see Gary at least once a month and will be with him most of the summer. The amount of time George spends with Gary over the course of one year remains about the same. This schedule is more than adequate to preserve and foster George’s relationship with Gary.

Gary’s relationship with his friends in Waukegan is another factor to be considered. We believe the visitation schedule will allow him to maintain his relationship with these friends. It is noteworthy that the schedule would enable Gary to see these friends on a daily basis during most of their summer vacation instead of only on weekends during the summer. Since children of that age generally have more free time during the summer when school is not in session, the proposed visitation schedule could allow Gary to spend even more time with his Waukegan friends than he did while living in Glenview.

We realize that Gary expressed a desire to remain in Illinois because of the presence of his father and friends in Waukegan. In the context of the removal petition, however, little, if any, weight should have been given to Gary’s desires because the proposed visitation schedule ensured that Gary would have about the same amount of contact with his father and friends in Waukegan.

Gary also expressed a preference to live with his father instead of his mother. In ruling on the removal petition, the court relied largely on this expressed preference and made specific reference to Gary’s statement that it was time for him to spend more time with his father. The court also considered other evidence that George would be a better custodial parent for Gary, including Dr. Rybicki’s conclusion that Gary would be better off in the Gratz household because it was a more flexible household. The trial judge also made explicit reference to Dr. Rybicki’s belief that Waukegan was a better setting for Gary because he was well adjusted there and had friends there.

It was manifestly erroneous for the trial judge to consider the above factors with regard to the petition for removal. The evidence that Gary would be better off living with his father in Waukegan was clearly relevant with regard to George’s petition to modify custody. The Act, however, clearly distinguishes between petitions for removal and petitions to modify custody (see Ill. Rev. Stat. 1987, ch. 40, pars. 609, 610; In re Marriage of Bednar (1986), 146 Ill. App. 3d 704, 709), and a removal petition is not a custody matter. (In re Custody of Mueller (1979), 76 Ill. App. 3d 860, 862.) Evidence that George was a more suitable custodian for Gary and that Waukegan was a better place for Gary to live than Arizona was irrelevant with regard to the removal petition. The trial court erred by considering and relying upon such evidence in ruling on the removal petition.

The trial court should have focused instead on whether Gary’s best interests would be served by living with his mother, the custodial parent, in Illinois or moving with her to Arizona. Examining this question in light of the Eckert factors, as we have, the evidence clearly establishes that Gary’s best interests would be served by allowing the removal petition. The evidence shows that the move would likely directly benefit Gary by significantly improving his allergies and enabling him to spend more time with his mother. Gary would also indirectly benefit from the likely improvement in David’s health and resultant reduction in marital tensions. Gary would additionally be able to spend more time with his mother since she would not have to work full time. Since these benefits could be achieved while still allowing Gary ample opportunity to visit his friends and father in Waukegan, the removal petition should have been granted. The trial court’s denial of the petition was clearly against the manifest weight of the evidence and must be reversed.

The trial judge stated that George’s petition to modify custody would have been denied were it not for Diane’s planned move to Arizona. Since we have concluded that the trial court should have permitted Diane to take Gary to Arizona with her, the trial court’s basis for modifying custody no longer exists, and we reverse the granting of George’s petition to modify custody. The trial court correctly concluded that no other basis for modification of custody exists as the evidence shows the Kents had done a good job raising Gary.

For the reasons stated herein, the order of the circuit court of Lake County denying Diane’s removal petition and granting George’s petition to modify custody is reversed. The cause is remanded to the trial court with directions to the trial court to enter an order granting the removal petition and to award visitation rights to George in substantial conformance with the schedule proposed by Diane.

Reversed and remanded with directions.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JANIE M. TURNER, Defendant-Appellant.
    Second District
    No. 2—88—0501
    Opinion filed January 18,1990.
    G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Fred L. Foreman, State’s Attorney, of Waukegan (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Janie Turner, was charged by indictment with the offense of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1(a)(2)). The victim of the alleged offense was defendant’s 21/2-year-old niece, Tiffany Booker. Following a jury trial, defendant was found guilty of involuntary manslaughter and was sentenced to an extended term of 10 years’ imprisonment. Defendant timely appeals, contending that (1) she was not proved guilty of involuntary manslaughter beyond a reasonable doubt; and (2) defense counsel rendered ineffective assistance. We affirm.

Keith Humphries, a fire fighter paramedic, testified that at approximately 3 p.m. on June 15, 1987, he received a call from a “very calm” female voice. The caller asked the paramedics to come over and check on a baby that was not breathing. Humphries and his partner, David Biggs, responded to the call within minutes. However, when they knocked on the door of the apartment, there was no answer “for quite an extended period of time.” Finally, defendant answered the paramedics by telling them to come in. Upon entering the doorway, they were met by defendant holding a child, the deceased, in her arms. Defendant indicated that the child had fallen down some stairs and that when she found the child, the child was not breathing.

In administering aid to the child, Humphries noticed that the child had numerous facial and head bruises. Humphries testified that such bruises would be consistent with somebody who had spinal or head injuries. Humphries also noticed that the little girl’s lips were “puffy” and her two front teeth were missing. Humphries estimated that the 21/2-year-old child weighed 15 pounds. Humphries testified that he noticed a “lint-like fluff” around the baby’s neck. When he asked defendant about it, she stated that the child had become entangled in her blanket while taking a nap. It was upon removing the blanket that defendant noticed the child was not breathing and called the paramedics.

The testimony of paramedic David Biggs, Humphries’ partner, was substantially similar to that given by Humphries.

Police detective, Richard McKissick, testified that on the afternoon of June 15, 1987, he spoke with defendant at her apartment. Defendant told McKissick that she had been cooking in the kitchen while Tiffany and Doyne Burnett, another child for whom defendant was baby-sitting, were playing in the common hallway outside the apartment. Defendant stated that she heard crying coming from the south end of the hallway and, upon checking, found Tiffany lying at the bottom of the stairs crying. The stairs to which defendant referred are nine carpeted stairs leading to the basement. The basement itself has a concrete floor.

Defendant told McKissick that she picked Tiffany up and brought her and Doyne back upstairs. Tiffany had stopped crying and started playing again. Defendant stated that approximately 15 minutes later, she put Tiffany to bed for a nap. Another 20 minutes passed at which time defendant looked in on Tiffany and found the blanket wrapped around the child’s head. When defendant realized that Tiffany was not breathing she started pounding on the child’s chest. However, she could not get Tiffany to breath so she called the paramedics.

When Detective McKissick later showed defendant pictures of bruises on Tiffany’s right side of her forehead and around her neck area, defendant stated that she had never seen the bruises before. Defendant told McKissick that even though she was not Tiffany’s natural mother, she was entirely responsible for her care. Defendant stated that she was the only one who washed and bathed the child.

Dr. Larry Blum testified that on June 16, 1987, he performed an autopsy on Tiffany. During the external examination, he found, in part, the following abnormalities: a contusion on her upper chest; a scar over her left shoulder; a scar on her chest; a scar on her lower abdomen; scars on the front of both lower legs; a suture incision on her right ankle; a scar on her right arm; two needle puncture wounds in the fold of the right elbow; bruises on her right arm; a needle puncture wound in the left arm; scars on her left wrist; scars on the back of her neck and on her back, several bruises on her back, scars over her left buttocks region; scars on the back of her left leg; a bruise on the back of her left arm; bruises on her forehead, her ears, and around her eyes; a bruise on her chin; her lower lip was torn and lacerated; a scar on her nose; bruises on the left side of her face; her two front teeth were missing; and her gums were torn where her front teeth had been. Dr. Blum testified that the bruises on Tiffany’s buttocks were old; however, the facial and head injuries were “fresh.”

Dr. Blum testified that during the internal examination of Tiffany he found, in part, the following: an abnormal amount of blood in her abdominal cavity; both her lungs were collapsed; there was bruising on the lower side of her left lung; there were three fractured ribs; the liver and diaphragm were torn; the venae cava, a large vein that carries blood to the heart from the lower extremities, was also torn. Dr. Blum testified that the injuries listed above were “fresh.” In addition, there was a fracture located in her lower arm which was estimated to be about two weeks old. Dr. Blum estimated Tiffany’s weight at 17 pounds, 5 ounces, which is the “extreme lower end of normal” for her age.

In Blum’s opinion, the pattern of injuries he found when examining Tiffany were not ordinary “toddler-type” and fell nowhere near an “accidental injury pattern.” Blum stated that the cause of the liver injury was a very rapid, severe pressure over that exact area. The injuries to the ribs, venal cava, diaphragm and lungs were similarly caused. Blum opined that Tiffany’s injuries were “definitely not consistent” with a fall down carpeted stairs. Blum stated that Tiffany’s injuries would be consistent with a child of that age being punched, kicked, or struck with an object by an adult. It was not possible for the injuries to be caused by a single blow. Blum testified that the cause of death was hemmorhagic shock due to blunt trauma to the abdomen. Death would have occurred within one to two minutes of these injuries being sustained; thus, after receiving these injuries, the child could not have played for 15 minutes and then gone to bed.

Dr. Paula Kienberger Jaudes, a pediatrician specializing in child abuse and neglect, testified that in her opinion Tiffany was a victim of battered child syndrome. The cause of Tiffany’s death was that she was badly beaten, and a single blow could not have caused all the injuries. Jaudes testified that not much force is needed when performing cardiopulmonary resuscitation (CPR) on a small child. Pounding on the child’s chest might cause some anterior rib fractures, and pounding below the chest in the area of the liver and diaphragm could cause a laceration on the upper part of the liver. When asked whether CPR could have caused an avulsion of the liver as well as a laceration to the venae cava, Jaudes opined that it could not.

Defense witness Jimmie Lee Booker, defendant’s mother and Tiffany Booker’s grandmother, testified that in April 1987, two months prior to the incident herein, Tiffany was sent to live with defendant because Tiffany’s natural mother, Terry Booker, was abusing the child. Defendant’s mother stated that the relationship between Tiffany and defendant was “just like daughter and mother” and that she had never seen defendant strike Tiffany or hurt her in any way. Similar testimony was elicited from defendant’s niece, Yashona Turner, defendant’s sisters, Christine Turner and Vernita Booker, and defendant’s friend, Melvin Jackson.

Jesse Burnett, Jr., defendant’s neighbor, testified that he brought his son, Doyne, to defendant’s apartment before he left for work on June 15, 1987, at 2:30 p.m. Burnett caught a glimpse of Tiffany standing in the kitchen and did not notice anything unusual about her.

Lastly, defendant took the stand on her own behalf. Defendant testified that she had known Tiffany all of Tiffany’s life. Defendant stated that the child was like her own daughter and denied that she had ever hurt her. Tiffany began living with defendant just after Easter in April 1987.

According to defendant, on June 15, 1987, Tiffany got out of bed late, around 1 or 1:30 p.m., because she was not feeling well and had not been feeling well for about 10 days. Doyne Burnett arrived around 2 or 2:30 p.m. that day. While defendant was preparing dinner in the kitchen, she left the kitchen door open to the outside hallway so the children could play in the hall. Defendant testified that she then heard a cry and went to check on the children. At the end of the hallway she found Doyne at the top of the stairs and Tiffany lying at the side of the steps on the concrete below. Tiffany was crying.

Defendant stated that she picked Tiffany up to comfort her and Tiffany told defendant that she fell. Defendant claimed that Tiffany stopped crying, so she brought Tiffany back to the apartment and sat her on the couch. Defendant testified that the child appeared tired, so she put her to bed. About 15 to 20 minutes later, defendant checked on Tiffany and found the blanket over the child’s head. In removing the blanket, defendant noticed that Tiffany was not responding or breathing. Defendant testified that she pushed on the child’s stomach five or six times to try to get her breathing. Upon determining that her efforts were unsuccessful, defendant called the paramedics. Defendant claimed that she then opened the front door so the paramedics could come directly in when they arrived. Defendant stated that she saw them coming and met them at the door with Tiffany in her arms. After the paramedics worked on Tiffany they took her to the hospital. Defendant and Doyne went to the police station.

On cross-examination, defendant testified that she did not notice Tiffany being extremely underweight. Defendant claimed that the child was always thin but had lost a couple pounds prior to this incident because she had been ill. Defendant did not know how Tiffany had lost her front teeth, nor had defendant ever seen any cuts or bruises on Tiffany’s head, neck or back prior to handing Tiffany to the paramedics. Defendant did not notice anything unusual about Tiffany’s left lower arm, which Dr. Blum testified was fractured two weeks prior to Tiffany’s death. According to defendant, based on where Tiffany landed, she did not roll down the nine stairs; it was a straight drop.

After the defense rested and closing arguments were given, the jury retired to deliberate. A verdict of guilty to the offense of involuntary manslaughter was rendered. The court sentenced defendant to an extended term of 10 years’ imprisonment.

On appeal, defendant first contends that she was not proved guilty of involuntary manslaughter beyond a reasonable doubt. Defendant argues that no history of abuse was presented against her, nor had anyone ever seen her strike Tiffany. She steadfastly denies having ever harmed Tiffany and claims that her narration of the events that afternoon has never changed. Defendant maintains that there were inconsistencies raised by the expert witnesses and their testimony sheds no light on determining whether she committed involuntary manslaughter.

A reviewing court will only set aside a criminal conviction when the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261.) The relevant question in making such a determination is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Linscott (1986), 114 Ill. 2d 340, 348; People v. Collins, 106 Ill. 2d at 261.) Our supreme court has recently held that the reasonable doubt standard applies in reviewing the sufficiency of the evidence in all criminal cases, whether the evidence is direct or circumstantial. People v. Pintos (1989), 133 Ill. 2d 286, 291.

In applying the standard to the case at bar, we find that a rational trier of fact could have found defendant guilty beyond a reasonable doubt. While defendant claims she never abused the child, and her witnesses similarly so testified, the jury could have reasonably found to the contrary. There were many “fresh” bruises and injuries found on the child that were irreconcilable with defendant’s claim that the child had either fallen from or down the stairs. Dr. Blum testified that Tiffany’s injuries were “definitely not consistent” with a fall down carpeted stairs. Even if we were to accept defendant’s claim that Tiffany had fallen from the steps to the concrete floor below, thus possibly sustaining some of the resulting injuries, Dr. Blum testified that death would have occurred within one to two minutes, which is inconsistent with defendant’s claim that she had brought the child upstairs and set her on the couch for awhile before putting her to bed.

Dr. Jaudes testified that Tiffany was a victim of battered child syndrome, and Dr. Blum stated that the pattern of injuries found on Tiffany was nowhere near an “accidental injury pattern.” Defendant attempted to explain this by presenting testimony indicating that Tiffany’s natural mother had abused her and defendant had only taken custody of the child two months prior to her death. However, the jury could have reasonably found such a claim to be suspect given that defendant was admittedly the only person who washed and bathed the child, yet she had never seen any cuts or bruises on the child’s head, neck or back, some of which were days, weeks, or even months old. Defendant did not notice the child being extremely underweight; she could not say how Tiffany had lost her front teeth; nor was she aware of the fact that Tiffany’s arm had been fractured.

Further, while defendant claims that her narration of the events that afternoon has never changed, our reading of the record indicates to the contrary. Defendant initially told the paramedics that the child was not breathing after the fall; however, she later told them that she put the child to bed and upon checking on the child discovered that she was not breathing.

Additionally, we believe that any inconsistencies allegedly raised by the expert testimony are so insignificant that we need not even address them.

We disagree with defendant’s assertion that the circumstances presented here are remarkably similar to the facts of People v. Frost (1977), 47 Ill. App. 3d 767. In Frost, the defendant was convicted of involuntary manslaughter. The victim of the alleged offense was the defendant’s 21/2-year-old stepson. On the day of the alleged offense, both the defendant and his wife were home with the child. At approximately 3:30 p.m., the couple’s pastor stopped by for a short visit at which time he observed the child in bed and commented on his labored breathing. At approximately 3:45 p.m., the defendant rushed downstairs requesting that a neighbor assist him with the child, who was not breathing. An ambulance was called, and the child was rushed to a hospital where he was pronounced dead.

At the Frost trial, there was some evidence adduced that the child had suffered traumatic injuries prior to and after the couple’s marriage, but there was no evidence indicating who, if anyone, caused those injuries. Further, there was conflicting expert testimony. One expert testified that the child suffered from allergic purpura, a childhood condition which could explain the deceased’s injuries. There was other testimony indicating that the child died as a result of traumatic injuries sustained within 24 hours of death.

The appellate court reversed the defendant’s conviction finding a “reasonable and well founded doubt as to the accused’s guilt.” (Frost, 47 Ill. App. 3d at 771.) However, in reaching this conclusion, the court applied the “reasonable hypothesis of innocence” test which has now been expressly rejected by our supreme court. (People v. Pintos (1989), 133 Ill. 2d 286, 291.) In addition, the court observed that the only evidence presented against the defendant was “scant circumstantial evidence” (Frost, 47 Ill. App. 3d at 768), and there was expert testimony supporting the defendant’s denial of having harmed the child. In the case at bar, there was sufficient circumstantial and direct evidence presented against defendant: defendant’s narration of the events was entirely implausible with the testimony presented by the experts; the paramedics testified that defendant was “very calm” and delayed in answering the door; and there was evidence of recent injuries indicating abuse, yet defendant, being the sole caretaker, was unaware of those injuries. Thus, the holding in Frost does not compel us to find that the evidence presented here is so unsatisfactory that no rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Defendant’s second contention is that she was denied the effective assistance of counsel because her defense attorney failed to tender the proper jury instruction regarding consideration of circumstantial evidence. In order to demonstrate ineffective assistance of counsel, a defendant must show that (1) his attorney’s conduct was professionally deficient; and (2) but for the deficiency, there is a reasonable probability that the result of the trial would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064-65.) Our supreme court has adopted the Strickland standard when dealing with a claim of ineffective assistance of counsel. People v. Albanese (1984), 104 Ill. 2d 504, 526, cert. denied (1985), 471 U.S. 1044, 85 L. Ed. 2d 335, 105 S. Ct. 2061.

As it presently reads, Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) provides:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [(the) (a)] defendant. Circumstantial evidence should be considered by you to- . gether with all the other evidence in the case in arriving at your verdict.”

The instruction formerly had a second paragraph that read: “You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence.” However, our supreme court has determined that the second paragraph should no longer be given. People v. Bryant (1986), 113 Ill. 2d 497, 510-11; see also People v. Pintos (1989), 133 Ill. 2d 286, 291.

It appears from the record that defense counsel offered the entire instruction, including the second paragraph, but it was denied by the trial court. However, it does not appear that the first paragraph was ever offered alone. Defendant contends that counsel’s failure to do so constituted prejudicial error. In support, defendant cites People v. Pegram (1988), 124 Ill. 2d 166, and People v. Ogunsola (1981), 87 Ill. 2d 216. We find both cases to be distinguishable from the case at bar. In the cited cases, counsel failed to instruct the jury as to an essential element of the offense itself, whereas, in the case at bar, it was not essential for the jury to determine whether evidence was circumstantial or direct in order to find defendant guilty of involuntary manslaughter.

We do not believe it is necessary to instruct the jury as to the definition of circumstantial evidence in every case in which such evidence is presented. We need not consider whether defense counsel erred in failing to instruct the jury in this case as we find defendant has failed to meet the second prong of the Strickland standard in proving ineffective assistance of counsel. Specifically, defendant has not shown that had the circumstantial evidence instruction been given there is a reasonable probability that the jury would have found her not guilty. We do not believe that such a claim is supported by the record.

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

REINHARD and McLAREN, JJ., concur.