author: JUSTICE WOODWARD

text:
    MARY J. BANES, as Guardian of the Estate of Susan F. Faciano, a Disabled Person, Plaintiff-Appellee, v. WESTERN STATES INSURANCE COMPANY, Defendant-Appellant.
    Second District
    No. 2—92—0718
    Opinion filed July 15, 1993.

      ■ Ian M. Sherman and Rebecca O. Carlins, both of Rooks, Pitts & Poust, of Chicago, for appellant.
    James S. Cowlin, of Truekenbrod & Cowlin, of McHenry, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Western States Insurance Company, appeals the order of the circuit court entering summary judgment in favor of plaintiff, Mary J. Banes, as guardian of the estate of Susan Faciano, in her declaratory judgment action. The issue for review is whether an insurer is entitled to reduce the amount payable to its insured by the amount paid by an underinsured tort-feasor when the insured’s damages exceed the limits of both policies.

Plaintiff sought a declaratory judgment against defendant based on an accident caused by Jennifer King, who injured the insured, Susan Faciano. Plaintiff’s insurance policy included an underinsured motorist coverage with a bodily injury limit of $100,000. King’s insurance policy had a bodily injury liability limit of $50,000. Faciano’s damages exceeded $300,000. King’s insurer proposed to settle with plaintiff for the policy limit of $50,000. Plaintiff then sought $100,000 from defendant under the underinsured motorist coverage. Defendant claimed that it was liable for only $50,000 because it was entitled to deduct the $50,000 to be paid on behalf of King. Plaintiff sought a declaration that she is entitled to the full $100,000 in underinsured motorist coverage from defendant.

Defendant answered the complaint and attached a copy of the insurance policy to its answer. The limit of liability section of the under-insured motorist coverage provision provided, in relevant part, that “the limit of liability shall be reduced by all sums paid because of the ‘bodily injury’ by or on behalf of persons or organizations who may be legally responsible.” Based on the insurance policy and on section 143a — 2 of the Illinois Insurance Code (Insurance Code) (215 ILCS 5/ 143a — 2 (West 1992)), defendant moved for summary judgment. Defendant asserted that under the policy it was entitled to a reduction by the amount paid on behalf of the underinsured driver. Plaintiff filed a cross-motion for summary judgment, arguing that, under Hoglund v. State Farm Mutual Automobile Insurance Co. (1992), 148 Ill. 2d 272, since plaintiff’s damages exceed the amounts of both insurance policies, defendant was not entitled to a setoff.

The court entered summary judgment in favor of plaintiff and denied defendant’s motion for summary judgment based on its interpretation of Hoglund. The court stated that it would be a violation of public policy to allow a setoff when there is no double recovery by the plaintiff. The court therefore ruled that plaintiff was entitled to the policy limit of $100,000. Defendant timely appealed.

Defendant contends that the trial court erred in entering summary judgment for plaintiff and against defendant. Summary judgment is appropriate where, as here, there are no factual issues, and the court entered judgment as a matter of law. (Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102, 106; 735 ILCS 5/2 — 1005(c) (West 1992).) The construction of the terms of an insurance policy and the effect of the statutory requirements are questions of law appropriate for a summary judgment disposition. (Librizzi v. State Farm Fire & Casualty Co. (1992), 236 Ill. App. 3d 582, 587.) In such a situation, the reviewing court must determine whether judgment was entered correctly for the moving party as a matter of law. (University of Illinois v. Continental Casualty Co. (1992), 234 Ill. App. 3d 340, 343.) We review the entry of summary judgment de novo. Outboard Marine Corp. v. Liberty Mutual Insurance Co. (1992), 154 Ill. 2d 90,102.

When the language of an insurance policy is clear and unambiguous, the court will give effect to those terms. (Grevas v. United States Fidelity & Guaranty Co. (1992), 152 Ill. 2d 407, 410.) As noted above, the insurance policy at issue provides that defendant’s liability shall be reduced by the amount paid on behalf of the underinsured driver. This language is clear and unambiguous. “Parties to a contract may agree to any terms they choose unless their agreement is contrary to public policy.” (Sulser v. Country Mutual Insurance Co. (1992), 147 Ill. 2d 548, 559.) Section 143a — 2(4) of the Insurance Code provides that “[t]he limits of liability for an insurer providing underinsured motorist coverage shall be the limits of such coverage, less those amounts actually recovered under the applicable bodily injury insurance policies, bonds or other security maintained on the underinsured motor vehicle.” (215 ILCS 5/143a — 2(4) (West 1992).) The public policy embodied in this statute is to “fill the gap” between the amount recovered from the underinsured driver’s insurance and the amount of coverage provided in the insured’s policy. (Sulser, 147 Ill. 2d at 556.) The underinsured motorist provision here does not conflict with the policy embodied in the statute.

Defendant argues that the court improperly relied on Hoglund to find that defendant was not allowed a reduction. In each consolidated case in Hoglund, the insured was injured by both an insured tortfeasor and an uninsured tort-feasor. The insurer attempted to set off the amount of uninsured motorist coverage by the amount paid on behalf of the insured tort-feasor, so that the insured party would receive nothing from the uninsured motorist coverage. The supreme court rejected the insurer’s interpretation of the policy and the Insurance Code. The court noted the insurer’s argument would frustrate the purpose of uninsured motorist coverage, which is to place the insured in substantially the same position as if the uninsured driver had been insured. (Hoglund, 148 Ill. 2d at 279-80.) The court held that the insurer was entitled to a setoff only to the extent necessary to prevent a double recovery. 148 Ill. 2d at 280-81.

While we agree with plaintiff that the Hoglund rationale is not limited to uninsured motorist cases, Hoglund nevertheless is distinguishable from the present cause. The concern for double recovery arises only in the context of more than one tort-feasor, as the amount paid by one tort-feasor acts to reduce the recoverable damages from the remaining tort-feasors. (See Greenawalt v. State Farm Insurance Co. (1991), 210 Ill. App. 3d 543, 547, affd sub nom. Hoglund v. State Farm Mutual Automobile Insurance Co. (1992), 148 Ill. 2d 272.) In that situation, if the plaintiff’s damages did not amount to the full liability limits of both tort-feasors, the plaintiff could not recover the full amount from both insurance policies. It is only when the plaintiff’s damages exceed both tort-feasors’ policy limits and his or her own uninsured or underinsured motorist coverage limits that the plaintiff is entitled to recover the full amount from all policies. Here there was only one tortious driver.

This cause is more like the situation in Obenland v. Economy Fire & Casualty Co. (1992), 234 Ill. App. 3d 99. In Obenland, the plaintiffs were injured by an underinsured driver. The plaintiffs had four insurance policies, each with underinsured motorist coverage limits of $300,000 per person/$300,000 per incident, and the underinsured motorist’s insurer paid $200,000. Based on Hoglund, the plaintiffs sought to stack their insurance policies to their limits, provided they did not recover more than their actual damages. The court found that Hoglund was distinguishable because there was only one tort-feasor in Obenland, and the application of the policy provisions did not result in the plaintiffs being in a worse position than they would have been in had the underinsured motorist been insured adequately. Obenland, 234 Ill. App. 3d at 110-11.

We agree with defendant that the Hoglund rationale does not apply here. As in Obenland, there is only one tort-feasor here, and allowing defendant to reduce the amount of its liability of underinsured motorist coverage by the amount paid on King’s behalf will not result in plaintiff being in a worse position than if King had $100,000 in insurance.

Plaintiff points out that the court in Hoglund noted that the setoff provisions in the statute and in the insurance policy were intended to prevent a double recovery by the insured and, where there is no double recovery, the insurer is not entitled to a setoff. (Hoglund, 148 Ill. 2d at 276-77.) Plaintiff reasons that, since she incurred damages in excess of $100,000, there could be no double recovery if the reduction is not allowed. However, plaintiff’s reliance on Hoglund is misplaced.

Hoglund concerned a setoff provision in an uninsured motorist coverage provision and under the provisions of the uninsured motorist coverage statute (215 ILCS 5/143a (West 1992)) when there were two tort-feasors. The supreme court in Hoglund found that, because there were two tort-feasors, one insured, one uninsured, the setoff provision in the insurance policy was rendered ambiguous. The court construed the provision in favor of the insured to conclude that the setoff provision was to prevent a double recovery. (Hoglund, 148 Ill. 2d at 280-81.) Under section 143a(4) of the Insurance Code, the insurer is entitled to subrogation for any amount paid to the plaintiff on behalf of the uninsured driver after the insurer has paid the full amount of coverage. (215 ILCS 5/143a(4) (West 1992).) The subrogor must pay its insured in full before it is entitled to subrogation (Johnson v. State Farm Fire & Casualty Co. (1987), 151 Ill. App. 3d 672, 674-75), and the right of subrogation may be waived (see Hardware Dealers Mutual Fire Insurance Co. v. Ross (1970), 129 Ill. App. 2d 217, 225-26). “Subrogation is allowed to prevent injustice and unjust enrichment but will not be allowed where it would be inequitable to do so.” Dix Mutual Insurance Co. v. LaFramboise (1992), 149 Ill. 2d 314, 319.

Here, however, defendant seeks to reduce the amount it owes plaintiff pursuant to an under'msmed motorist coverage provision by the amount paid by a sole tort-feasor. (Adolphson v. Country Mutual Insurance Co. (1989), 187 Ill. App. 3d 718, 722; see also Sulser, 147 Ill. 2d at 557.) Since there is only one tort-feasor here, there is no latent ambiguity in the policy. The Insurance Code provides that the insurer pays less than the limit of coverage based on the amount paid by the underinsured driver. (215 ILCS 5/143a — 2(4) (West 1992).) This reduction in the amount of underinsured motorist coverage is distinct from the right of subrogation. (See Monsalud v. State Farm Mutual Automobile Insurance Co. (1991), 210 Ill. App. 3d 102, 109.) Thus, the setoff or reduction provision in the underinsured motorist statute and in the policy is not designed to prevent a double recovery of the insured’s tort damages, but to “fill the gap” between the amount recovered from the underinsured driver’s insurance and the amount of coverage provided in the insured’s policy. Sulser, 147 Ill. 2d at 556.

Moreover, the setoff or reduction provision of the insurance policy must be read in conjunction with the public policy behind the statute and the coverage intended by the insurance policy. (Hoglund, 148 Ill. 2d at 279.) The policy provision in Hoglund violated public policy because it would have resulted in the insured being in a worse position than if the uninsured driver had been insured. (148 Ill. 2d at 279-80.) Plaintiff’s interpretation would violate the purpose of underinsured motorist coverage and the plain language of the statutory provision. (See 215 ILCS 5/143a — 2(4) (West 1992).) Underinsured motorist coverage is “not intended to allow the insured to recover amounts from the insurer over and above the coverage provided by the underinsured motorist policy.” (Sulser, 147 Ill. 2d at 556.) The limit of an insurer’s liability in the underinsured motorist context “refers to the highest amount which the insurer providing underinsured motorist coverage must pay. The statute does not set a minimum, or floor, but rather a maximum, or ceiling.” (Adolphson, 187 Ill. App. 3d at 721.) A plaintiff may receive the full amount of coverage and still not be made whole in tort damages. (See Fuoss v. Auto Owners (Mutual) Insurance Co. (1987), 118 Ill. 2d 430, 434-35.) To allow plaintiff to recover the full amount of underinsured motorist coverage without a reduction by the $50,000 paid by King’s insurer would result in plaintiff receiving $150,000, as compared with the $100,000 she would have received had King been insured for the full amount that Faciano had contracted for in her insurance policy. This is not merely filling the gap in coverage. “When the insured opts for $100,000 in coverage against either uninsured or underinsured motorist risks, he is assured of receiving no more than that amount.” Sulser, 147 Ill. 2d at 557.

Our law is clear that an insurer is liable for underinsured motorist coverage only for the difference between the amount recovered from the tortious driver and the stated limit for underinsured motorist coverage. (Rutter v. Horace Mann Insurance Co. (1989), 190 Ill. App. 3d 467, 481-82; 215 ILCS 5/143a — 2(4) (West 1992).) In the present situation, the total amount of the insured’s tort damages is irrelevant to the question of the amount of the reduction. The relevant factor is the amount the plaintiff actually recovered from the tortious driver or drivers and/or workers’ compensation. See Sulser, 147 Ill. 2d at 557-58.

Plaintiff contracted for $100,000 in underinsured motorist coverage. Under Sulser, plaintiff is entitled to a total recovery of $100,000. Plaintiff received $50,000 from King’s insurer. Plaintiff therefore needs $50,000 to “fill the gap” in the coverage. Reducing defendant’s payment to $50,000 would “fill the gap” and ensure that plaintiff receives what she would have recovered had King been insured adequately. Thus, the court erred in granting summary judgment for plaintiff and against defendant. We therefore reverse the entry of summary judgment for plaintiff and enter summary judgment in favor of defendant as a matter of law.

The judgment of the circuit court is reversed.

Reversed.

UNVERZAGT and COLWELL, JJ., concur.


source: Caselaw Access Project

author:
PRESIDING JUSTICE McCUSKEY
      JUSTICE STOUDER,

license: Public Domain

text:
      In re MARRIAGE OF ERIKA B. BREYLEY, Petitioner-Appellant, and JAMES K. BREYLEY, Respondent-Appellee.
    Third District
    Nos. 3—92—0907, 3—92—0916 cons.
    Opinion filed July 19, 1993.

      STOUDER, J., dissenting.
    Joan M. Sherwin, of Macomb, for appellant.
    Gerald L. Timmerwilke, of Lewis, Blickhan, Longlett & Timmerwilke, of Quincy, for appellee.
   PRESIDING JUSTICE McCUSKEY

delivered the opinion of the court:

The petitioner, Erika B. Breyley (Erika), appeals from an order of the trial court which vacated the child custody and child support provisions of a judgment of dissolution of marriage. The judgment dissolved her marriage to the respondent, James K. Breyley (James). Erika also appeals from an order which determined that the issue of child custody would be decided in Illinois. We granted Erika’s petition for leave to appeal pursuant to Supreme Court Rule 306 (134 Ill. 2d R. 306).

Erika raises three issues on appeal: (1) whether the trial court abused its discretion in granting James’ petition to vacate portions of the judgment of dissolution pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401); (2) whether the circuit court of Illinois has jurisdiction to decide the custody issue; and (3) whether the trial court abused its discretion in declining to transfer the cause to Texas based upon forum non conveniens. We affirm.

The parties were married in Arizona in December 1989. They moved to New Jersey in April 1990. The only child of the parties, James K. Breyley IV, was born in New Jersey on November 26, 1990. Erika and the child moved to Illinois in February 1991. James moved to Illinois in March or April 1991 following his discharge from the military service. The parties then purchased a home in Macomb, Illinois.

Erika filed her petition for dissolution of marriage on December 18, 1991. A judgment of dissolution, which incorporated a written marital settlement agreement, was entered on December 30, 1991. The agreement provided that the parties would have joint custody of the child pursuant to a joint parenting agreement. The joint parenting agreement stated Erika would have actual physical custody and James would have reasonable visitation. The agreement also provided that James would pay 15% of his net take-home pay as child support. According to a document filed with the court the same day, Erika was represented by an attorney, while James was not represented by counsel.

Subsequent to the entry of the judgment, James retained counsel. Through his counsel, James filed a petition pursuant to section 2— 1401 of the Code (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401) on March 12, 1992. He sought to vacate those portions of the judgment of dissolution related to child custody and child support. In his supporting affidavit, James stated that he and Erika met with an attorney in December 1991 regarding a simple and inexpensive dissolution of marriage. He and Erika told the attorney they wanted joint custody of the child and agreed that each party would have the child approximately one-half of the time. James stated that the attorney did not advise him regarding the legal consequences of a written judgment stating that Erika had physical custody of the child. In fact, the attorney told them that either of them could go into court and change the custody arrangement if they were not satisfied. The attorney did not explain the burden of proof which must be met to change a custody order within two years of the original judgment.

James also stated that, after the judgment was entered, he had physical custody of the child until January 20, 1992. At that time, he delivered the child to Erika’s mother in Texas where Erika was attending school. Erika thereafter refused to allow him visitation with the child. James additionally stated the parties had agreed that his obligation to pay child support would be deferred until he completed his college education.

Erika, through new counsel, filed a motion to dismiss James’ petition. Later, on June 8, 1992, she filed a petition for leave to remove the child from the State. She stated in the petition that she moved to Texas immediately after the entry of the judgment and desired to make a permanent home in Texas. James’ response to this petition stated that he took the child to Texas in January pursuant to an agreement with Erika. The agreement was that Erika would be in Texas only until March 1992 when she would finish an emergency medical technician (EMT) training program.

On June 26, 1992, Erika filed her response to James’ section 2— 1401 petition. She attached an “opposing affidavit.” She denied agreeing to allow James to have physical custody of their child approximately one-half of the time. However, she also admitted:

“[The attorney] explained to [Erika] and [James] the joint custody arrangement and the consequences of [Erika] having physical custody of the child and although he said that if [Erika] and [James] failed to agree, they could go to court to have their differences resolved, he never discussed the requirement of showing endangerment of the child in order to modify the custody order within the first two years.”

In an additional verified pleading, Erika admitted she agreed to a deferment of child support while James completed college. She stated, however, that she was later informed that such an agreement was against public policy and therefore unenforceable.

A hearing was held on July 1, 1992. Following argument by counsel for both parties, the trial court denied Erika’s motion to dismiss James’ section 2 — 1401 petition. The court then granted James’ petition. The court found that an evidentiary hearing was not necessary because of the admissions made by Erika.

A formal written order was subsequently entered on July 14, 1992. The order stated that those portions of the judgment related to child custody and child support were vacated pursuant to James’ motion. The trial court’s order also stated that, by agreement of the parties and without prejudice to either party, Erika was to have temporary custody of the child in Texas. James was granted visitation with the child in Illinois. Trial on the issues of custody and child support was set for October 1992.

On August 12, 1992, Erika filed a motion seeking a determination of the trial court’s jurisdiction to decide the custody issue and, in the alternative, a forum non conveniens motion seeking transfer of the cause to Texas. The trial court denied the motions in a written order dated October 28, 1992. The court found that the child custody determination should be made in Illinois. The order specifically noted that permitting Erika to transfer the cause to Texas would be contrary to one of the purposes of the Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2101 et seq.), since the child was taken to Texas without the permission of the Hlinois court.

On appeal, Erika first argues that the trial court erred in granting James’ section 2 — 1401 petition. She initially contends the petition was inadequate to meet the requirements of section 2 — 1401. We disagree.

Section 2—1401 of the Code provides a comprehensive statutory procedure by which final orders and judgments may be vacated more than 30 days after their entry. (Ill. Rev. Stat. 1991, ch. 110, par. 2—1401; Smith v. Airoom, Inc. (1986), 114 Ill. 2d 209, 220, 499 N.E.2d 1381, 1386.) The purpose of a section 2 — 1401 petition “is to bring before the court matters of fact which were unknown at the time the judgment was entered, and if known, would have affected or altered the judgment.” (In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 282, 580 N.E.2d 1186, 1192-93.) A petition pursuant to section 2— 1401 invokes the equitable powers of the court as justice and fairness require. (In re Marriage of Johnson (1992), 237 Ill. App. 3d 381, 390, 604 N.E.2d 378, 385.) To be entitled to relief under section 2 — 1401, a petitioner must affirmatively set forth specific factual allegations supporting: (1) the existence of a meritorious claim or defense; (2) due diligence in presenting this claim or defense to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition for relief. (Airoom, 114 Ill. 2d at 220-21, 499 N.E.2d at 1386.) A section 2 — 1401 petition may be dismissed if it fails to state sufficient facts to warrant relief. In re Marriage of Lindjord (1992), 234 Ill. App. 3d 319, 326, 600 N.E.2d 431, 436.

We conclude that the facts alleged in James’ petition were sufficient to warrant relief pursuant to section 2 — 1401. James’ petition alleged sufficient facts to show that: (1) the written marital settlement agreement did not reflect the actual agreement of the parties; and (2) the parties were misinformed about the binding legal effect of the written agreement.

“A mutual mistake of fact which was unknown to the court at the time of judgment and which would have prevented the entry of such judgment is a proper ground for relief under section 2 — 1401.” (Galligan v. Washington (1987), 163 Ill. App. 3d 701, 708, 516 N.E.2d 894, 898.) A mutual mistake of fact exists when the contract has been written in terms which violate the understanding of both parties. (In re Marriage of Osborn (1990), 206 Ill. App. 3d 588, 598, 564 N.E.2d 1325, 1331; see also Johnson, 237 Ill. App. 3d at 394, 604 N.E.2d at 388.) Relief is therefore available under section 2 — 1401 if a judgment of dissolution incorporating a written agreement fails to express the real intention of the parties because of a mutual mistake. See Johnson, 237 Ill. App. 3d at 394, 604 N.E.2d at 387-88; In re Marriage of Shelton (1984), 127 Ill. App. 3d 775, 781, 469 N.E.2d 618, 623.

Here, we find James’ petition alleged sufficient facts to show that the written marital settlement agreement did not reflect the actual agreement of the parties regarding child support and child custody because of a mutual mistake. The petition further alleged sufficient facts to show that James’ failure to exercise due diligence at the time the judgment was entered was excused because of the misinformation he received from the attorney. In addition, the petition was adequate to support the existence of due diligence in the filing of the petition since it was filed less than three months following the entry of the judgment. (See, e.g., Chastain v. Chastain (1986), 149 Ill. App. 3d 579, 582, 500 N.E.2d 998, 1000.) We conclude that the petition was sufficient to warrant relief based upon the requirements of Airoom. Therefore, the trial court properly denied Erika’s motion to dismiss the petition.

Erika also argues that the trial court erred in granting James’ petition without an evidentiary hearing. Again, we disagree.

The determination whether “a section 2 — 1401 petition should be granted lies within the sound discretion of the circuit court, depending upon the facts and equities presented.” (Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386.) Therefore, the trial court’s decision will not be disturbed on appeal absent an abuse of the trial court’s sound legal discretion. (Airoom, 114 Ill. 2d at 221, 499 N.E.2d at 1386; Burchett v. Goncher (1991), 235 Ill. App. 3d 1091, 1100, 603 N.E.2d 1, 7.) Where the facts sufficient to support a grant of relief under section 2 — 1401 are challenged by the opposing party, a full and fair evidentiary hearing must be held. (Airoom, 114 Ill. 2d at 223, 499 N.E.2d at 1387.) However, a section 2 — 1401 petition may be granted solely on the basis of affidavits where the affidavits supporting and opposing the petition do not controvert one another. Ostendorf v. International Harvester Co. (1982), 89 Ill. 2d 273, 285-86, 433 N.E.2d 253, 259; see also Klein v. La Salle National Bank (1993), 155 Ill. 2d 201, 205.

In this case, Erika admitted in a verified pleading that she agreed to a deferment of James’ child support obligation while he attended college. However, in contrast, the written marital settlement agreement included a provision for the immediate payment of child support. Also, the affidavits and pleadings filed by both parties clearly show that Erika left for Texas immediately following the entry of the judgment. Furthermore, there was an agreement of the parties that the child would go to Texas, at least temporarily. However, again in contrast, the parties’ written agreement did not include even a mention of the removal of the child to Texas. We conclude the undisputed facts were sufficient to show that the written agreement violated the understanding of both parties.

In addition, Erika admitted the attorney did not discuss with them the actual burden of proof for a change of custody and told them “if they failed to agree [about the joint custody arrangement], they could go to court to have their differences resolved.” These undisputed facts were sufficient to clearly establish that the parties were misinformed about the legal effect of the written judgment. Because these facts were not controverted, we conclude the trial court did not abuse its discretion in granting the section 2 — 1401 petition without an evidentiary hearing.

We also note that reformation of the written marital settlement agreement to reflect the parties’ actual agreement would not have been appropriate in this case. Where a written agreement fails to reflect the actual agreement of the parties because of a mutual mistake, the agreement “may be reformed to reflect the intention of the parties and the agreement between them.” (Suburban Bank v. Bousis (1991), 144 Ill. 2d 51, 58, 578 N.E.2d 935, 939; see also Johnson, 237 Ill. App. 3d at 394-95, 604 N.E.2d at 388.) Here, however, the actual agreement of the parties regarding child support would not be enforceable because it was against public policy. (See In re Marriage of Michael (1992), 226 Ill. App. 3d 1088, 1090, 590 N.E.2d 998, 1000.) Also, while it is clear that the parties’ written agreement did not express their actual agreement regarding child custody, their affidavits show that the terms of the actual agreement are in dispute. We determine that in the absence of an agreement regarding child custody, a hearing by the court is necessary, as well as a complete opportunity for evidence to be presented by both sides. (In re Marriage of Staszak (1991), 223 Ill. App. 3d 335, 341, 584 N.E.2d 926, 930.) Based upon these unique circumstances, we conclude the trial court properly decided to hold a hearing to determine the best interests of the child regarding the issues of child custody and child support.

Erika next argues that Illinois does not have jurisdiction to make an initial custody determination. However, at oral argument her counsel conceded that the trial court could properly find Illinois has jurisdiction to determine custody. We agree. Based on the record, we conclude that Illinois has jurisdiction under the Uniform Child Custody Jurisdiction Act. Illinois had jurisdiction when Erika commenced the proceedings on December 18, 1991, because it was the home State of the child. (Ill. Rev. Stat. 1991, ch. 40, pars. 2104(a)(1), 2103.04.) Also, since James continues to reside here, we find that Illinois retains jurisdiction to determine custody of the child. Ill. Rev. Stat. 1991, ch. 40, par. 2104(b); In re Marriage of Hilliard (1989), 178 Ill. App. 3d 620, 624, 533 N.E.2d 543, 545.

Erika next contends, however, that the trial court abused its discretion when it declined to transfer the cause to Texas on the basis of forum non conveniens. Erika strenuously argues that Texas is the most appropriate forum. She points out that the child has resided in Texas since January 20, 1992. She also presented evidence that her family and friends reside in Texas and have knowledge concerning the child and her relationship with the child.

Section 8 of the Act allows á court to decline to exercise jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” (Ill. Rev. Stat. 1991, ch. 40, par. 2108(a); In re Marriage of Elblkasy (1993), 241 Ill. App. 3d 662, 664, 610 N.E.2d 139, 140.) “The child’s home State, the location of necessary evidence of the child’s well-being, and the significant relationships of the child or parties to the competing States are considerations to be weighed in determining whether Illinois is an inconvenient forum.” (In re Marriage of Rizza (1992), 237 Ill. App. 3d 83, 88, 603 N.E.2d 134, 139.) The trial court’s primary objective is to determine which court can most capably act in the best interests of the child. (Elblkasy, 241 Ill. App. 3d at 665, 610 N.E.2d at 141.) A trial court’s decision not to decline jurisdiction will be affirmed on appeal absent an abuse of the trial court’s discretion. In re Marriage of Doehner (1991), 215 Ill. App. 3d 570, 572, 574 N.E.2d 1380, 1381-82.

Here, the child of the parties is residing in Texas pursuant to an agreed order granting Erika temporary custody. Also, a number of witnesses are located in Texas. However, James is present in Illinois and he has had visitation with the child in this State. Also, James testified that he has family and friends in Illinois who will be called as witnesses. In addition, Dr. Sue Moriearty is located in Illinois. We note that by agreement of the parties, Dr. Moriearty is conducting an evaluation of the parties and the child. Based upon all these circumstances, we conclude that the child has retained a significant connection with this State. See In re Marriage of Kehres (1987), 164 Ill. App. 3d 148, 154, 517 N.E.2d 617, 622.

Additionally, we note the record clearly shows that the child was removed from Illinois to Texas without the trial court’s knowledge or consent. We agree with the trial court’s reasoning that to transfer the cause to Texas under these circumstances would condone behavior which is contrary to the purposes of the Act. One of the Act’s stated purposes is to deter unilateral removals of children. (Ill. Rev. Stat. 1991, ch. 40, par. 2102(a)(5); In re Marriage of Godwin (1982), 104 Ill. App. 3d 790, 792, 433 N.E.2d 310, 312; see also Gainey v. Gainey (1992), 237 Ill. App. 3d 868, 871, 604 N.E .2d 950, 952.) Based upon our review of the record, we find no abuse of discretion in the trial court’s decision not to transfer the cause to Texas.

For the reasons indicated, the orders of the circuit court of Mc-Donough County are affirmed.

Affirmed.

BARRY, J., concurs.

JUSTICE STOUDER,

dissenting:

Because I find the trial court abused its discretion in this case, I dissent. I disagree that the facts alleged by James, and allegedly conceded to by Erika, were a sufficient basis for granting James’ section 2—1401 petition.

According to the parties; the trial court granted James relief because the undisputed facts showed (1) that Erika and her attorney, Dean Stone, “misrepresented” the burden of proof required to modify or change the custody arrangement reflected in the joint parenting agreement, and (2) that Erika and Stone misrepresented to James that child support obligations would be postponed until he finished school. James asserts the first “misrepresentation” resulted in a unilateral mistake on his part. James does not appear to be arguing these alleged misrepresentations were intentionally made at the time the agreement was signed and the judgment entered. The trial court held it did not need to hold an evidentiary hearing, in that the court could base its decision on the facts agreed to by the parties. Therefore, our review is limited to whether these “agreed-to facts” support the trial court’s decision.

The majority finds that the trial court did not abuse its discretion in granting the petition because (1) the parties were misinformed about the legal effect of the written judgment, i.e., the burden of proof required to be satisfied for a change of custody, and (2) the written agreement violated the understanding of both parties in regard to the removal of the child to Texas and the abatement of child support payments.

The purpose of a petition under section 2 — 1401 is to bring before a court matters of fact which were unknown at the time the judgment was entered, and if known, would have affected or altered the judgment that was entered. (In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 580 N.E.2d 1186.) To be entitled to relief under section 2— 1401, the party seeking relief must show by a preponderance of the evidence that: (1) a meritorious claim or defense exists; (2) the petitioner exercised due diligence in discovering the defense or claim in the original action; (3) despite such diligence and through no fault on the part of the petitioner, the error of fact or valid claim or defense was not made apparent to the trial court at the time of the original action; and (4) the petitioner exercised due diligence in pursuing section 2—1401 relief. In re Marriage of Hoppe (1991), 220 Ill. App. 3d 271, 580 N.E.2d 1186.

I do not believe the alleged “misrepresentation” concerning the burden of proof is a misrepresentation of fact sufficient to grant a petition brought under section 2 — 1401. (I find this is more appropriately termed an omission rather than a misrepresentation. There was apparently no discussion of burdens of proof.) Dean Stone was representing Erika. James chose to proceed pro se. Stone explained to the parties the written agreement’s custody provisions. Stone apparently made reference to the fact the parties could go to court if any disagreements developed on the issue of custody. This of course is true. Stone did not discuss the burden of proof if a subsequent change was sought in court. But why would he? No litigation on this issue was contemplated at that time. Besides, Stone was representing Erika, not James. I don’t believe there was any obligation on the part of Stone to advise a party he is not representing of what the burden of proof might be if that party chose to pursue some theoretical litigation at some theoretical time in the future. (See Pelham v. Griesheimer (1982), 92 Ill. 2d 13, 440 N.E.2d 96 (as a general rule the obligation of an attorney is to his client and not a third party); Gold v. Vasileff (1987), 160 Ill. App. 3d 125, 513 N.E.2d 446 (attorney had no fiduciary duty to nonclient).) In addition, which burden of proof should Stone have discussed, i.e., that which applied in the first two years after judgment, or the burden thereafter?

Secondly, what does the burden of proof in possible future litigation have to do with what the parties agreed to concerning custody of their child? Stone apparently reviewed the written agreement and its terms with Erika and James. Erika has not conceded to any fact alleged by James showing the judgment entered did not reflect the agreement of the parties on the issue of custody as of the day the judgment was entered. The parties may have disagreed subsequently as to their rights and obligations under the agreement. However, this, in and of itself, does not demonstrate grounds for relief under section 2—1401. Section 2—1401 is available for relief based on matters which antedate the rendition of the judgment and not those which arise subsequent to its rendition. See Gimroth v. Ray (1981), 98 Ill. App. 3d 633, 424 N.E.2d 934.

In any event, these facts do not demonstrate a mutual mistake on the part of the parties vis-a-vis the terms of the joint parenting agreement. These facts do not show the parties were misinformed about the legal effect of the written judgment. In sum, I find the fact that Stone did not advise James on what the burden of proof would be if he chose to pursue a theoretical action at some future date is an insufficient ground for granting the section 2 — 1401 petition and vacating the joint parenting agreement.

All other factual assertions raised by James in support of his request to vacate the joint parenting agreement portion of the judgment were controverted by Erika. Therefore, an evidentiary hearing would have to be held to determine if any of these factual assertions demonstrated grounds for relief from the custody portion of the judgment.

The majority relies on the fact that the joint parenting agreement does not mention removal of the child to Texas as demonstrating the written agreement did not reflect the understanding of the parties. The trial court did not make a finding to this effect. James does not argue this was a basis for granting his petition. Again, there was no evidentiary hearing on any controverted fact. In addition, this is a fact which developed subsequent to the entry of judgment and therefore cannot serve as the basis for relief. Gimroth v. Ray (1981), 98 Ill. App. 3d 633, 424 N.E.2d 934.

On the issue of abatement of child support payments, it appears Erika only attempted to enforce the written provisions of the agreement after James filed his section 2 — 1401 action. This is not evidence that Erika and her attorney attempted to mislead James at the time the judgment was entered into.

Secondly, at the time the judgment was entered, James did not raise the fact that the written documents were at variance with the alleged verbal understanding of the parties. There is a real question of whether James was diligent in raising this issue in the original proceedings. Why did he not require the abatement agreement be included in the written agreement? If he knew such an abatement was unenforceable and therefore went along with leaving it out of the written agreement, how can he now raise this fact as a basis for relief? In any event, this issue involves only the child support provisions of the judgment and cannot support vacating the portion of the judgment concerning custody.


author: JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM REINBOLD, Defendant-Appellant.
    Third District
    No. 3—91—0119
    Opinion filed July 20, 1993.
    Rehearing denied August 16, 1993.
    Stephen Omolecki, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell III, State’s Attorney, of Galesburg (John X. Breslin and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE STOUDER

delivered the opinion of the court:

The defendant, William Reinbold, was convicted of first degree murder (720 ILCS 5/9 — 1(a)(1) (West 1992)) and was sentenced to natural-life imprisonment. He appeals.

The issues on appeal do not necessitate our setting forth most of the facts contained in the voluminous record of this case. However, a brief overview of some of the facts is appropriate.

The record reveals that sometime between 5 and 6 p.m. on December 26, 1988, Mary Clarke was attacked in the only laundromat in Farmington, Illinois. A trail of blood leading outside made it appear that Clarke’s body had been dragged outside and placed in a vehicle which was subsequently driven away.

On December 27, 1988, at approximately 1:45 a.m., police located Clarke’s body near a roadway three miles north of Farmington. The cause of death was determined to be brain injury caused by blunt trauma to the head.

On December 28, 1988, after hearing about the murder, Dixie Sulteen, a neighbor of the defendant, told police that on the day of the murder, she was talking with the defendant’s wife on the telephone. She overheard the defendant say that he was going to the Farmington laundromat. A short while later, just before dark, she saw the defendant get in his car and drive away. Another witness observed the defendant driving towards Farmington between 4:30 and 4:45 p.m. on the day of the murder.

Subsequent to hearing from Sulteen, police talked to the defendant, his wife, and his son. They told police inconsistent stories about what happened and where the defendant went on the night of the murder.

On December 30, 1988, police observed the defendant at a car wash where he was about to clean the interior of his car. Police stopped him and talked with him. A subsequent search of the car revealed blood and hair in the trunk which was consistent with that of the victim. More blood consistent with that of the victim was found inside the car on the driver’s seat belt buckle.

Police also searched a bus where the defendant sometimes stayed. There, a pry bar was found among the defendant’s tools. The pry bar had bloodstains consistent with the blood of the victim. The forensic pathologist who performed the autopsy on the victim opined that the pry bar could have caused her injuries.

Following a jury trial, the defendant was found guilty of first degree murder. He was subsequently sentenced to life imprisonment. The defendant appeals.

The defendant’s first contention on appeal is that the trial court erred in denying his motion to suppress evidence found in his car. The defendant argues that the complaint for the search warrant was not adequate since it failed to establish probable cause. See People v. Dace (1987), 153 Ill. App. 3d 891, 506 N.E.2d 332.

While it is not necessary to restate the entire text of the detailed complaint, we do note that it indicated that sometime between 4 and 7 p.m. on Monday, December 26, 1988, Mary Clarke was attacked in the Brite Clean Laundromat in Farmington, Illinois. Police later located her jacket alongside a road about three miles north of Farmington. Shortly thereafter, they found her bloody body approximately 800 feet away from her jacket.

The complaint further alleged that on December 28, 1988, after hearing about the murder, the defendant’s neighbor, Dixie Sulteen, went to the Farmington police department. She told police that on the day of the murder, shortly before dark, she heard the defendant say that he was going to the laundromat in Farmington. She then saw the defendant drive away.

Police also talked with the defendant’s wife, who told them that she had a poor memory and whatever her husband said his activities were would be correct because he had a better memory than she did. She then stated that to her knowledge, her husband did not go to Farmington on the day of the murder.

The defendant’s son, Billy, told police that on the day of the murder his father had gathered two baskets of laundry. Billy put the laundry in the back seat of the family car. His father then left and did not return until approximately 8:30 p.m. When he returned, Billy was told not to go downstairs. Because of that command, he did not see his father that evening.

On December 30, 1988, at approximately 1 p.m., police interviewed the defendant at his place of work in Fort Madison, Iowa. The defendant denied going to Farmington on the day of the murder. He also told police that he had Illinois license plates on his car for about one month. This statement was inconsistent with police observations that on December 27, 1988, the defendant’s car had no license plates on it.

Lastly, the complaint alleged that on December 30, 1988, at 3:42 p.m., police observed the defendant attempting to clean the interior of his car at a car wash in Fort Madison. Police then approached him, told him he was not under arrest, and indicated that they wanted to talk to him about the murder. At that point, the defendant told police that “Monday was a bad day.”

We begin our analysis of whether the complaint was adequate by noting that the test for probable cause is whether the facts and circumstances were sufficient to warrant a person of reasonable caution to believe that the defendant committed an offense and that evidence of the offense was possessed by the defendant. (People v. Stewart (1984), 104 Ill. 2d 463, 473 N.E.2d 1227.) A complaint for a search warrant need not make a prima facie showing of criminal activity. (People v. Gacy (1984), 103 Ill. 2d 1, 468 N.E.2d 1171.) Rather, the complaint will be sufficient if, as a whole, it adequately establishes that there was a fair probability that evidence of a crime would be found in a particular place. (People v. Gacy (1984), 103 Ill. 2d 1, 468 N.E.2d 1171.) On review, the ruling of the trial judge on a defendant’s motion to suppress should not be set aside unless it is manifestly erroneous. People v. Stout (1985), 106 Ill. 2d 77, 477 N.E.2d 498.

Based upon the statements of the defendant’s neighbor and his son, we find that the complaint adequately set forth the probability that the defendant went to the laundromat on the day of the murder at around the time of the murder. The credibility of the defendant was weakened by the inconsistency between his statements and police observations regarding the license plates on his car. Thus, his denial of being at the laundromat on the day in question was dubious.

Additionally, the defendant’s son indicated that on the day of the murder he was told not to come downstairs after his father returned home. Standing alone, this would merely arouse suspicion and not be enough to establish probable cause. (See People v. Dace (1987), 153 Ill. App. 3d 891, 506 N.E.2d 332.) However, in this case his statement augmented the other evidence and increased the probability that the defendant was somehow involved in the crime.

Finally, the complaint made it clear that the victim’s bloody body had been transported three miles away from the laundromat. Thus, after the defendant’s probable involvement in the crime was shown, it became probable that blood, hair, fingerprints, or other evidence of the crime would be found in his car.

It is our conclusion that the complaint, when considered in its entirety, adequately established that there was a fair probability that evidence of the crime would be found in the defendant’s car. Accordingly, we cannot say that the trial court’s decision denying the defendant’s motion to suppress was manifestly erroneous.

The defendant’s second contention on appeal is that the trial court abused its discretion by denying the defendant’s challenges for cause of several veniremembers. The defendant argues that he was forced to exercise peremptory challenges on five veniremembers who should have been dismissed for cause. Additionally, he argues that two other veniremembers, who eventually sat on the jury because the defendant ran out of peremptory challenges, should have been dismissed for cause.

We begin by noting that as long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the sixth amendment was violated. (Ross v. Oklahoma (1988), 487 U.S. 81, 101 L. Ed. 2d 80, 108 S. Ct. 2273.) Accordingly, reversible error results, not from the defendant’s exhaustion of his peremptory challenges, but rather from the end result of an unfair jury. (People v. Gleash (1991), 209 Ill. App. 3d 598, 568 N.E.2d 348.) Thus, our concern is with the impartiality of the two jurors who actually sat in judgment of the defendant, rather than that of the five veniremembers who were excused by peremptory challenges. See People v. Johnson (1987), 162 Ill. App. 3d 952, 516 N.E.2d 343; People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020; People v. Harris (1992), 231 Ill. App. 3d 876, 596 N.E.2d 1363; but see People v. Johnson (1991), 215 Ill. App. 3d 713, 575 N.E.2d 1247.

The defendant in the instant case unsuccessfully challenged the two jurors in question for cause after he had previously used all seven of his peremptory challenges. Additionally, his two requests for additional peremptory challenges were both denied. Thus, the defendant was compelled to accept the two jurors in question and any error in denying the challenges for cause was not waived. (See People v. Washington (1982), 104 Ill. App. 3d 386, 432 N.E.2d 1020; People v. Amos (1985), 140 Ill. App. 3d 14, 488 N.E.2d 290.) Accordingly, we turn our attention to the merits of the defendant’s claim.

In so doing, we recognize that the right to trial by an impartial panel of jurors is one of the most priceless safeguards of individual liberty. (Irvin v. Dowd (1961), 366 U.S. 717, 6 L. Ed. 2d 751, 81 S. Ct. 1639.) A violation of that right requires a reversal. People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.

A person is not competent to sit as a juror if his mental attitude is such that a defendant will not receive a fair and impartial trial with him or her as a member of the jury. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The determination of whether or not a prospective juror possesses the state of mind which will give an accused a fair trial rests on the sound discretion of the trial court. (People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.) The trial court’s determination will not be set aside unless it is against the manifest weight of the evidence. People v. Cole (1973), 54 Ill. 2d 401, 298 N.E.2d 705.

Of the two jurors in question, the defendant initially expresses “concerns” over the impaneling of Christine Hoosen. Apparently these concerns arise out of the fact that Ms. Hoosen’s father was a State Police officer. Since the defendant’s brief raises these concerns in a single sentence without citation, our discussion of Ms. Hoosen will be likewise brief.

A veniremember need not be excused merely because he or she is related to a police officer who was not involved in the case the veniremember is to hear. (People v. Johnson (1992), 149 Ill. 2d 118, 594 N.E.2d 253.) Accordingly, absent more, we cannot say that Ms. Hoosen should have been stricken from the jury.

We now turn our attention to the second juror that the defendant challenges on appeal, Maxine Thomas. The defendant claims that Ms. Thomas was not a fair and impartial juror because she thought that the defendant should prove his innocence and that he would be hiding something if he failed to testify.

In order to make the defendant’s objection to Ms. Thomas more clear, we note that the following exchange took place during voir dire:

“MR. STATHAM [Defense Counsel]: Do you have any preconceived notion or feelings as to his guilt or innocence as he sits here?
JUROR THOMAS: No, I don’t think I do.
MR. STATHAM: And, will you hold the prosecution to their burden of proving to you beyond a reasonable doubt that the crime of murder has been committed here?
JUROR THOMAS: Yes.
MR. STATHAM: Do you want Bill to prove his innocence to you?
JUROR THOMAS: Yes.
MR. STATHAM: Do you understand the Judge instructed you he does not need to present any evidence at all?
JUROR THOMAS: I know.
MR. STATHAM: But, do you feel comfortable with that?
JUROR THOMAS: Well, I would kinda like to hear his explanation.
MR. STATHAM: If he fails to sit up here and testify, will you feel he has something to hide?
JUROR THOMAS: Probably.
MR. STATHAM: Will you hold that against him?
JUROR THOMAS: I might not hold it against him, but I would still say he had something to hide.
MR. STATHAM: Will that enter into your thought process as you sit in the jury room and try to decide guilt or innocence?
JUROR THOMAS: No, I don’t think so.
MR. STATHAM: But, you still would like him to prove his innocence somehow?
JUROR THOMAS: Yes.”

Later, Ms. Thomas again indicated that she felt the defendant should come forward with proof of his innocence:

“MR. STATHAM: Okay. Ms. Thomas, a similar concern with just one answer that you gave. And, I thought it was, as well, just like I talked in the beginning with Ms. Warner about it, that you desired, demanded, I’m not sure what, but there was something about the proof by the defendant of his own innocence. I say, when that kind of stuff comes up, I just go haywire, because he has no such burden. The only people with the burden here are the State.
JUROR THOMAS: That’s why I would feel better if he tried to tell us he’s innocent. I mean, if he had some kind of proof — .
THE COURT: Okay. If you were running the defense, then you would be thinking that that would be something that you would want to do?
JUROR THOMAS: Right.”

These are only excerpts of the entire voir dire and we recognize that a court should not single out certain statements made during voir dire but should consider the examination of a juror as a whole to determine that individual’s state of mind. (People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263.) Having scrutinized the voir dire as a whole, we are aware that the trial court did eventually manage to rehabilitate Ms. Thomas to some extent by drawing out some evidence of impartiality. However, a great proportion of the voir dire shows that her presence on the jury denied the defendant a fair trial because she expected the defendant to prove that he was innocent. (See People v. Stone (1978), 61 Ill. App. 3d 654, 378 N.E.2d 263.) Because the trial court’s determination of Ms. Thomas’ ability to be fair and impartial in the instant case was against the manifest weight of the evidence, we must reverse and remand for a new trial.

We note that in cases such as the instant one, where there is extensive pretrial publicity, the trial court should be cognizant of the possibility that veniremembers will have predetermined a defendant’s guilt or innocence. In such circumstances, the trial court should err on the side of caution and either grant adequate peremptory challenges or take greater care before denying challenges for cause when jurors indicate that they expect the defendant to prove his innocence. Because the trial court failed to do so here, we have no choice but to reverse and remand for a new trial.

The judgment of the circuit court of Knox County is reversed and this cause is remanded for a new trial.

Reversed and remanded.

BARRY and LYTTON, JJ., concur.


author: JUSTICE BARRY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LEE, Defendant-Appellant.
    Third District
    No. 3—91—0936
    Opinion filed July 20, 1993.

      Mark D. Fisher, of State Appellate Defender’s Office, of Ottawa, for appellant.
    Raymond Kimbell III, State’s Attorneys, of Galesburg (John X. Breslin and Terry A. Mertel, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BARRY

delivered the opinion of the court:

Defendant Michael Lee was charged with attempted first degree murder (Class X), armed violence (Class X), unlawful use of weapons (Class 3) and mob action (Class 4). He was tried by the court and found guilty of attempted first degree murder, armed violence and unlawful use of weapons. The court sentenced defendant to serve concurrent terms of 18 years for the two Class X felonies and a concurrent term of five years for unlawful use of weapons. Defendant’s post-trial motion was denied, and he appeals from his convictions and his sentence.

The issues on appeal are: (1) whether the State’s evidence was sufficient to prove defendant guilty of the three offenses beyond a reasonable doubt; (2) whether one of the Class X convictions must be reversed because both offenses were based on the same physical act; and (3) whether defendant’s sentences are excessive.

At trial, the State established that on May 2, 1991, Theresa Jape lived in an apartment in a housing project in Galesburg with her son, Anthony Powell, Jr., and the child’s father, Anthony Powell. Shortly after Powell came home around 3 a.m., Jape heard a rap on the door. At Powell’s request, Jape asked who it was. She did not recognize the man she saw through the peephole or the name he supplied, “T.” Jape returned to the bedroom, and Powell engaged the visitor in a heated conversation which erupted with a shotgun blast that shattered the glass storm door and sent glass and pellets flying into the living room. Powell then called the police and told them to be on the lookout for a small blue car occupied by four black males.

Just before daylight, the police stopped a blue Plymouth Colt hatchback on State Route 150 outside of Coal Valley. Defendant was at the wheel with two passengers — his brother, Terry Lee, and Terry’s friend, Ulisher Slaughter. The officers’ search of the car yielded a Winchester .12-gauge, sawed-off pump shotgun and two live shells.

State Trooper Thomas Matykiewicz testified that he later spoke with defendant at the Rock Island County jail. After waiving his Miranda rights, defendant told the officer that he had driven his brother from Chicago to Rock Island on the evening of May 1, 1991, because Terry did not have a driver’s license. Terry was looking for his friend, Ulisher Slaughter, in connection with a cocaine transaction. According to Matykiewicz, defendant explained that Terry and Slaughter would buy cocaine in Chicago and then drive to Galesburg and sell it to people at the McKnight housing project. Then they would go to the Arsenal Courts housing project in Rock Island to party with “girls” until the money ran out. Defendant did not, however, admit that he sold drugs.

Matykiewicz further testified that defendant had told him that on the evening of May 1, when Slaughter was not found in Rock Island, he and Terry drove on to Galesburg. There, they found Slaughter in an apartment in the McKnight housing project. According to the officer, defendant said that he stayed at the apartment while his brother, Slaughter and another friend, “Anky,” went out to sell drugs. When the three returned a couple of hours later, they complained of having been ripped off for $100 worth of cocaine. They intended to get the money. Defendant then drove the three to another apartment in the housing projects and waited in the car while they proceeded to confront the occupant. Defendant heard a shotgun blast, started up the car, drove to the corner and waited until they all returned. They then drove Anky back to the McKnight apartment, and defendant, his brother and Slaughter headed north on Route 150 until their arrest. The officer testified that defendant had admitted to having been the driver all night, except for when he stayed at the apartment, and he was in fact the driver at the time of the arrest. Matykiewiez also stated that defendant initially gave his name as “Cary Lee,” which the officer later learned was defendant’s father’s name.

Forensic testimony established that the shotgun recovered from the car had been used to fire the pellets that damaged Jape’s apartment door. Other testimony established that over $300 worth of damage had been done to Jape’s door and apartment as a result of the shotgun blast.

In his defense, defendant presented the testimony of Avery Mat-chem. Matchem testified that he was awakened early in the morning of May 2, 1991, by Terry Lee, who said he needed Matchem to drive him to Anthony “Anky” Powell’s home. Accompanying Terry were Slaughter and defendant, whom Matchem had never previously met. Matchem complied by driving the three to Powell’s apartment. According to Matchem, Terry was the only one who got out and went up to the apartment. Matchem testified that a short while after Terry gained entrance, he came flying back out, tripped slightly, and then came back to the car, removed what appeared to be a shotgun covered with a blanket from behind the back seat of the car, and told Matchem to wait. Terry went back to Powell’s apartment and yelled “Anky.” Then Matchem heard the shotgun blast. Terry returned to the car, and Matchem drove back to his neighborhood, got out and ran home. Defendant and the others drove off.

Defendant also testified on his own behalf. According to defendant, Terry drove the car from Chicago to Rock Island on the evening of May 1, 1991, and defendant went along for the ride. Terry was looking for Ulisher “Lish” Slaughter, who owed him money. Terry learned that Lish was in Galesburg. They got lost in Rock Island and were short on gas, so defendant paid for $3 worth of gas and they proceeded to Galesburg, arriving around 1 a.m. They found Slaughter, and Terry and Slaughter took off with some other people while defendant stayed at the apartment with a girl. After a while, Slaughter returned. Then Terry returned. Terry had a private conversation with Matchem, and then Terry handed the car keys to Matchem and Matchem said, “Let’s go.” The four got into the car — Matchem behind the wheel, defendant in the front passenger seat, and Lish and Terry in the back. First, they went to the wrong apartment. When they found the right one, Terry went up to it alone and announced that he was “T.” A few seconds after entering the apartment, the door opened and Terry fell out. He got up and returned to the car as Mat-chem was backing it up. Defendant saw Terry take something wrapped in a blanket from the rear of the car. The next thing he heard was a big “boom,” and Terry came running back to the car. Matchem drove them to the intersection, stopped, said he’d see Terry tomorrow, and left on foot. Terry then got into the driver’s seat and headed back toward Rock Island. However, when they got out of Galesburg Terry complained that his eyes were burning and asked defendant to drive.

Defendant testified that he knew nothing about the shotgun before Terry fired it at Powell’s apartment. He denied having told Matykiewicz that he had been driving Terry’s car all night. And he denied telling the officer that Terry and Slaughter were selling drugs or had been ripped off for $100 of cocaine. He said he knew nothing of any drug deal until after Terry found Slaughter that night. He said that Slaughter owed Terry money and Terry owed defendant and that was the reason they were looking for Slaughter. Defendant said that he didn’t know Powell and had no clue as to why they went to his apartment. Defendant also said he was not familiar with Galesburg.

The State prosecuted defendant on an accountability theory. By statute, accountability exists when, “[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, [defendant] solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” (Ill. Rev. Stat. 1991, ch. 38, par. 5—2.) It is also the rule in Illinois that a defendant who joins a criminal enterprise is guilty of all crimes committed in furtherance of the enterprise. Guilt of an offense by accountability may be established even though the defendant’s intended participation in the “common design” is to aid the principal in only one offense and he does not have the intent to commit other crimes in fact committed by the principal in furtherance of the planned or intended act. A common design may be inferred from the circumstances surrounding the commission of unlawful conduct. (People v. Banks (1985), 138 Ill. App. 3d 994, 486 N.E.2d 953.) Once a defendant is accountable, he remains so until he detaches himself from the criminal enterprise. (People v. Ruiz (1982), 94 Ill. 2d 245, 447 N.E.2d 148.) Accordingly, the driver of a get-away car may be found accountable for all the crimes committed by the principal. People v. Gomez (1984), 127 Ill. App. 3d 551, 469 N.E.2d 329, citing People v. Baynes (1980), 87 Ill. App. 3d 1000, 410 N.E.2d 894; People v. Jones (1980), 86 Ill. App. 3d 278, 407 N.E.2d 1121.

Applying these rules to the evidence in this case, viewed in the light most favorable to the prosecution (Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267), we cannot say that no rational trier of fact could have found the elements of attempted murder, armed violence and unlawful use of a weapon beyond a reasonable doubt. The evidence overwhelmingly proved that the offenses were committed by Terry Lee and that defendant was associated with his brother before, during and after they were committed.

Officer Matykiewicz’ testimony relating defendant’s statement on the date of the offenses established that defendant knew when he left Chicago that he was heading for Rock Island and Galesburg in furtherance of a cocaine-dealing operation with Terry and Ulisher Slaughter. The evidence, together with reasonable inferences, proved that part of the deal that night went bad, and a separate “collection” visit was planned. Although defendant said he had not participated in any drug sales, there was testimony that he continued his participation in the enterprise as the driver of the get-away car. Defendant admitted that “something wrapped in a blanket” was taken from the interior of the car he had been in, whether as a driver or a passenger, at various times throughout the night. After Terry fired the shotgun at the apartment, defendant made no attempt to disassociate himself from the enterprise, but drove away from the crime scene with his gun-wielding brother and Slaughter and gave a false name upon his eventual arrest.

In our opinion, the State’s evidence and reasonable inferences from the evidence adequately established that defendant was an integral part of a common design involving the illegal distribution of cocaine and an enforcement mission in furtherance of the enterprise. As such, defendant was legally responsible as an accomplice for all offenses committed at Theresa Jape’s apartment, notwithstanding defendant’s assertion that he knew nothing of the weapon before hearing the blast and had had no intention to participate in violence.

Defendant next contends that one of his Class X convictions should be reversed under the principle of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, i.e., a criminal defendant may not be convicted of more than one offense carved from a single physical act. It is not disputed that a single firing of the shotgun by Terry Lee was the only act upon which the attempted murder and armed violence charges were brought. The State claims, however, that this issue was waived for failure to object in the trial court.

Given the seriousness of the offenses and the fact that defendant was not a principal in their commission, we choose not to apply the waiver rule. Accordingly, we reverse defendant’s conviction for armed violence and vacate defendant’s 18-year sentence for that offense. Further, because it cannot be determined from the record on appeal whether and to what degree the sentencing court may have been influenced by the armed violence conviction, we deem it appropriate to remand this cause for resentencing on the attempted murder conviction.

Lastly, we have considered defendant’s challenge to his concurrent 18-year sentences for the Class X offenses. Defendant requests that this court exercise its authority under Supreme Court Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) to reduce the sentence as unduly harsh. We recognize defendant’s lesser participation in the serious offenses for which he stands convicted; however, we have reviewed as well the presentence report upon which the trial court based its sentencing decision. As did the trial court, we find it noteworthy that defendant had been paroled on another offense just a few days before the events giving rise to the instant convictions. Suffice it to say, defendant has a significant criminal history that justifies a greater-than-minimum prison sentence for his attempted murder conviction. Accordingly, we decline the invitation to reduce defendant’s 18-year sentence on appeal, and we commend defendant’s arguments to the trial court for consideration on remand.

For the reasons stated, we affirm defendant’s convictions for attempted murder and unlawful use of weapons, and we reverse his conviction for armed violence. We vacate defendant’s sentence for armed violence, and we remand for resentencing on attempted murder.

Affirmed in part; reversed in part and remanded.

STOUDER and LYTTON, JJ., concur.


text:
      In re R.K. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Martha Kennedy, a/k/a Martha Williams, Respondent-Appellant).
    Third District
    No. 3—92—0848
    Opinion filed July 23, 1993.

      Elaine Greek, of Peoria, for appellant.
    Kevin W. Lyons, State’s Attorney, of Peoria (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Susan K. Lucas, of Peoria, guardian ad litem.

   JUSTICE BARRY

delivered the opinion of the court:

Martha Kennedy, also known as Martha Williams (hereafter, Martha), appeals from an order of the circuit court of Peoria County terminating her parental rights as to four of five minor children on grounds of depravity.

In September of 1991 a second amended supplemental petition for the termination of parental rights was filed in this cause. Count I alleged that Martha is an unfit person as defined in section 1 of the Adoption Act (Ill. Rev. Stat. 1981, ch. 40, par. 1501(D)(i); 750 ILCS 50/l(D)(i) (West 1992)), in that she is depraved, having been convicted of 20 crimes: nine convictions for prostitution, eight for retail theft, one for felony theft, one for battery and one for forgery, all between April of 1980 and June of 1990. Count III of the petition alleged that Martha is an unfit person under section l(D)(m) of the Adoption Act in that she has failed to make reasonable progress toward return of her minor children within 12 months of adjudications of unfitness entered in 1984 and 1986.

At the hearing on the termination petition, Martha’s criminal record was introduced. She had been sentenced to the Department of Corrections in October of 1980, January of 1982, July of 1984, October of 1985, March of 1987, and June of 1990, in most cases with multiple sentences. In 1987, she committed felony retail theft while on mandatory supervised release, and in 1990 she committed felony retail theft and forgery while on probation for two prostitution convictions. She was in prison at the time of the termination on January 8, 1992.

R.K., then seven years old, and V.W., then six months old, were adjudicated dependent, and the Department of Children and Family Services (DCFS) was named guardian on September 4, 1984. J.W., Jr., was adjudicated dependent and DCFS named guardian on February 5, 1986, when he was one year old. All three were made wards of the court. R.K. and an older son not involved here were returned to Martha on November 26, 1986, but they were again removed from her custody on December 19, 1986, when she was arrested and jailed for felony retail theft. J.W. was born in 1986 while she was in the Department of Corrections and was given by Martha to her mother to care for. S.K. was born in 1988 while Martha was in the Peoria County jail and was placed by the mother with a woman she had met in jail who was about to be discharged. Shortly after the petition for termination was filed and while Martha was in prison, DCFS filed a petition to have J.W. and S.K. declared neglected, and they were adjudicated to be dependent on October 9, 1991, and placed in the temporary custody of DCFS. However, they had not been made wards of the court prior to the termination hearing.

A caseworker with DCFS testified that prior to Martha’s latest incarceration she was offered weekly visits with her children, that she missed about 90% of those visits, and although she was supposed to call when she was going to miss, she did so only about 50% of the time. During the first 18 months of her latest incarceration at Logan Correctional Center, Martha did not contact DCFS to arrange visits with the children. However, shortly after the original termination petition was filed, she did call and monthly visits were arranged for the seven months preceding the hearing. According to the caseworker, Martha always greeted the children warmly but did not interact with any of them except R.K. The younger children would play together while she visited with R.K.

Martha’s testimony was that her criminal history was related to drug addiction, that she has now received counseling, attends therapy group meetings, has completed a 12-week substance abuse course, and has completed eight weeks of a 10-week motivation class. She stated that she made numerous attempts to get in touch with the DCFS caseworker after she entered the Logan Correctional Center but that the counselor who made the calls had trouble connecting with her caseworker. She also testified to various informal visits that she had with J.W. and S.K. while they were being cared for by others. She indicated that her goals are to get her GED, not to participate in any more criminal activities, to get her life straight, and to be reunited with her children when she is released from prison.

After hearing the evidence, the trial court entered its order declaring Martha to be an unfit person. A subsequent hearing was then held to determine the best interests of the minor children at which additional testimony was heard. At the close of the hearing, the trial court denied the request that Martha’s parental rights be terminated, saying that he believed she had “turned the corner.” However, upon the guardian ad litem’s, motion to reconsider, the court determined that it had wrongly focused on the mother rather than the best interest of the children and then entered the order terminating Martha’s parental rights as to her four youngest children, all of whom are currently residing with foster parents who wish to adopt them. The fifth child named in the petition, 15-year-old R.K., is considered to be not adoptable, and upon recommendation of his caseworker and his guardian ad litem, Martha’s parental rights were not terminated as to him and are not involved in this appeal.

Before this court Martha contends that, as to J.W. and S.K., the court lacked jurisdiction because they had never been made wards of the court and that the termination petition did not state a cause of action, and that, as to all four children, she was not proved unfit by clear and convincing evidence. We affirm the orders of the trial court.

Martha’s first contention is that the trial court lacked jurisdiction to terminate her parental rights as to J.W. and S.K. because they were not wards of the court. Section 2 — 29 of the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1991, ch. 37, par. 802-29 (now 705 ILCS 405/ 2—29 (West 1992))) provides:

“Adoption; appointment of guardian with power to consent. (1) A ward of the court under this Act, with the consent of the court, may be the subject of a petition for adoption under [the Adoption Act] ***.
(2) If the petition prays and the court finds that it is in the best interest of the minor that a guardian of the person be appointed and authorized to consent to the adoption of the minor, the court with the consent of the parents, if living, or after finding, based upon clear and convincing evidence, that a non-consenting parent is an unfit person as defined in Section 1 [of the Adoption Act], may empower the guardian of the person of the minor, in the order appointing him or her as such guardian, to appear in court where any proceedings for the adoption of the minor may at any time be pending and to consent to the adoption. *** An order so empowering thé guardian to consent to adoption terminates parental rights ***.”

The petition to terminate parental rights in this cause set forth grounds for determining that Martha is an unfit person under section 1 of the Adoption Act and then concluded with a prayer for an order terminating her parental rights and appointing a guardian of the minors with the power to consent to their adoption.

Martha argues that the circuit court, sitting in a juvenile proceeding, lacked subject matter jurisdiction to consider the petition as to S.K. and J.W. since they were not already wards of the court. She cites section 2 — 21 of the Juvenile Court Act, which requires that the trial court find a minor to be either abused or neglected or dependent before proceeding to determine whether it is in the best interests of the minor and the public that he be made a ward of the court. A finding of abuse or neglect or dependency has been held to be jurisdictional and without it the trial court cannot proceed to an adjudication of wardship. (In re Shawn B. (1991), 218 Ill. App. 3d 374, 578 N.E.2d 269.) The court also stated, “No other step under the Juvenile Court Act is jurisdictional.” (218 Ill. App. 3d at 380, 578 N.E.2d at 273.) Martha argues that a determination of wardship is similarly jurisdictional for termination of parental rights, but she cites no authority so holding. Although section 2 — 29 provides for a ward of the court to be subject to a petition for adoption, it does not preclude such petitions on behalf of children who are not wards, and the statute has never been so construed.

The adjudication of wardship took place here as a part of the termination proceeding, and we can see no reason to require a separate petition. Both S.K. and J.W. had been found to be dependent by court order dated October 9, 1991, and thus the jurisdictional requirement for the determination of wardship had been satisfied.

In the case of In re E.P. (1988), 167 Ill. App. 3d 534, 539-40, 521 N.E.2d 603, the court said:

“Moreover, the termination order itself was not defective for the court’s failure to make the minors wards of the court or to specifically find it in the minors’ best interests to appoint a guardian. Section 5 — 9 of the Juvenile Court Act (Ill. Rev. Stat. 1985, ch. 37, par. 705 — 9) does not state that a minor must be declared a ward of the court prior to the appointment of a guardian. In addition, the supreme court of Illinois has said the finding that a minor is in need of a guardian is tantamount to a finding of wardship. In re Jennings (1977), 68 Ill. 2d 125, 132-33, 368 N.E.2d 864, 868.
The court here expressly found respondent to be an unfit person and then found it was in the minors’ best interests to terminate respondent’s parental rights. The court’s finding of unfitness, termination of parental rights and appointment of a guardian were sufficient to satisfy the requirement of adjudication of wardship.”

We conclude that the circuit court here had subject matter jurisdiction of the termination petition.

Martha next contends that the termination petition failed to state a cause of action as to S.K. and J.W. because it did not allege facts sufficient to bring them within the definition of neglected, abused, or dependent minors in sections 2 — 3 and 2 — 4 of the Juvenile Court Act. (Ill. Rev. Stat. 1991, ch. 37, pars. 802—3, 802—4 (now 705 ILCS 405/2—3, 405/2—4 (West 1992)).) Those sections set forth the requirements for a finding of neglect, abuse, or dependency. Since S.K. and J.W. were previously found dependent by the trial court and temporary custody given to DCFS, there would be no reason to require a new determination to be made in the termination proceeding. The petition here alleged that Martha was unfit and set forth the specific grounds which were the basis for that assertion. Thus the essential elements of the cause of action for termination were pleaded. See In re B.K. (1984), 121 Ill. App. 3d 662, 460 N.E.2d 43; In re Rauch (1977), 45 Ill. App. 3d 784, 359 N.E.2d 894.

The next assertion of error is that Martha’s unfitness was not proved by clear and convincing evidence as required by section 2 — 29 of the Juvenile Court Act. She argues that her criminal record is only one factor to be considered and that there must be some allowance for an individual to become rehabilitated. (See In re Sanders (1979), 77 Ill. App. 3d 78, 395 N.E.2d 1228.) Her recent efforts at rehabilitation are described by her as evidence that she has made substantial progress, and the court’s finding, later retracted upon rehearing, that she had “turned the comer” is said to indicate that the evidence was close rather than “clear and convincing.”

A finding of unfitness as the basis for termination of parental rights must be supported by clear and convincing evidence but will not be reversed unless against the manifest weight of the evidence. (In re A.H. (1991), 215 Ill. App. 3d 522, 575 N.E.2d 261.) “Depravity” within the meaning of section l(D)(i) of the Adoption Act (Ill. Rev. Stat. 1991, ch. 40, par. 1501(D)(i) (now, as amended, 750 ILCS 50/l(D)(i)) (West 1992)) has been held to be “an inherent deficiency of moral sense and rectitude.” (In re Abdullah (1981), 85 Ill. 2d 300, 305, 423 N.E.2d 915, 917.) The evidence before the court here consisted of the 20 convictions previously described. This lengthy series of offenses demonstrated by clear and convincing evidence that Martha has been unable to cope with the norms of society in a lawful manner and that she is either unable or unwilling to conform to accepted morality. (See In re Buttram (1978), 56 Ill. App. 3d 950, 372 N.E.2d 1135.) Furthermore, Martha has had a number of opportunities to “turn her life around,” yet each time she has been released from prison, she has resumed the same sort of criminal activity in which she previously engaged. Her continuing course of criminal conduct during the entire lifetimes of the four children at issue here is more than sufficient to establish depravity within the meaning of the Adoption Act. Clearly the finding of unfitness by reason of depravity was not contrary to the manifest weight of the evidence.

Martha also contends that the finding that she failed to make reasonable progress toward the return of the minors was not established by clear and convincing evidence. Having held that the finding of unfitness by reason of depravity was supported by adequate evidence, we need not discuss this issue. In re Buttram, 56 Ill. App. 3d 950, 372 N.E.2d 1135.

The judgment of the circuit court of Peoria County is affirmed.

Affirmed.

McCUSKEY, P.J., and STOUDER, J., concur.