author: JUSTICE STOUDER PRESIDING JUSTICE HEIPLE,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MARTIN RODRIGUEZ, Defendant-Appellee.
    Third District
    Nos. 3—89—0581, 3—89—0582 cons.
    Opinion filed September 12, 1990.

      HEIPLE, P.J., dissenting.
    Edward Burmila, State’s Attorney, of Joliet (John X. Breslin and Nancy Rink Carter, both of State’s Attorneys Appellate Prosecutor.'s Office, of counsel), for the People.
    Royal F. Berg and Kenneth Y. Geman, both of Chicago, for appellee.
    Javier H. Rubinstein, of Mayer, Brown & Platt, and Roslyn C. Lieb, both of Chicago, for amici curiae.

   JUSTICE STOUDER

delivered the opinion of the court:

On August 10, 1988, the defendant, Martin Rodriguez, pled guilty to committing two counts of burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19—1). He was sentenced to 60 days in the county jail, four years’ probation and ordered to pay a fine and costs totaling $300. The defendant subsequently filed a petition for post-conviction relief pursuant to the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122—1 et seq.). On August 18, 1989, the trial court granted the defendant’s petition, and following a hearing, vacated defendant’s burglary convictions. The trial court found the defendant had received ineffective assistance of counsel and been prejudiced thereby. The State appeals. We affirm.

The defendant was born in Mexico in 1970. He and his family came to the United States in 1975. In 1987, the defendant and his family applied for legal immigration status. They were granted temporary residence, the first step toward permanent residence. The defendant was arrested on December 23, 1987. Following plea negotiations, the State- dropped two residential burglary charges and filed a new information charging the defendant with two counts of burglary, a Class 2 felony. The defendant entered a plea of guilty to the charges.

Before accepting the plea, the trial court admonished the defendant on the consequences of pleading guilty. The court determined that the defendant had a full understanding of the charges against him, and that the plea agreement was not obtained by force, threat, improper conduct or any promise outside the plea agreement. The court found that the pleas of guilty were knowingly, understandingly and voluntarily made. The parties agree that no reference to the defendant’s immigrant status was raised. The defendant’s attorney did not inquire into the citizenship of his client, and the defendant was not informed that as a consequence of pleading guilty to a felony, he could be denied permanent residence in the United State and would be subject to deportation. In his post-conviction petition, the defendant contends he would not have entered a plea of guilty had he known that as a result he would lose his chance for permanent residency in the United States.

On appeal, the State contends the trial court erred in vacating the defendant’s convictions. However, we find the recent case People v. Huante (1990), 194 Ill. App. 3d 159, 550 N.E.2d 1155 (petition for leave to appeal pending), dispositive on the issue presented.

In Huante, Huante’s alien status was never discussed prior to the entry of Huante’s guilty plea. Huante never revealed his status to his attorney and the attorney never inquired. The record showed that Huante was born in Mexico and had lived in the United States for 13 years at the time he pled guilty. At the post-conviction hearing it was stated that Huante spoke “fairly good English.” However, Huante’s sister stood by at the hearing in case she was need to interpret for him.

The Huante court stated that the potential deportation consequences of guilty pleas in criminal proceedings brought against alien defendants is material to critical phases in such proceedings, and the determination of whether the failure to investigate those consequences constitutes ineffective assistance of counsel turns to a significant degree upon whether the attorney had sufficient information to form a reasonable belief that the client was in fact an alien. (People v. Huante (1990), 194 Ill. App. 3d 159, 164, 550 N.E.2d 1155, 1159.) The court held that given the facts known to counsel, counsel’s failure to ascertain the status of his client in order to determine what indirect consequences the guilty plea might trigger fell below an objective standard of reasonableness and that this affected the outcome of the plea process.

In the instant case, the Will County jail docket sheet generated at the time of the defendant’s arrest states that the defendant was born in Mexico. Certainly counsel would have reviewed this document in becoming familiar with the case and in preparing to advise his client. We find the State’s attempt to distinguish the instant case from Huante unpersuasive. Given the facts known to the defendant’s attorney, or which he should have known, counsel’s representation in the instant case fell below an objective standard of reasonableness which affected the outcome of the proceedings.

Therefore, the judgment of the circuit count of Will County is affirmed.

Affirmed.

GORMAN, J., concurs.

PRESIDING JUSTICE HEIPLE,

dissenting:

The State appeals the trial court decision to vacate defendant’s burglary conviction. The trial court based that decision on its finding that defendant had received ineffective assistance of counsel and had been prejudiced thereby. The majority affirms the trial court holding. I dissent.

Defendant, Martin Rodriguez, was charged with two counts of residential burglary in 1988. Following plea negotiations, defendant pleaded guilty to the Class 2 felony of burglary and the State recommended defendant be placed on four years’ probation, serve 60 days in county jail and pay fines and costs totaling $300. The trial judge thoroughly questioned and admonished defendant regarding the plea, and after assuring himself that defendant was competently and voluntarily entering the plea, accepted defendant’s guilty plea and sentenced him pursuant to the plea agreement.

Defendant filed a petition for post-conviction relief on July 21, 1989. The petition alleged that the 18-year-old defendant was brought to the United States from Mexico at the age of four and had continuously resided with his family in Joliet since that time. Defendant and his family sought and received temporary residency pursuant to the amnesty provisions of the Immigration Reform Control Act of 1986, but defendant’s application for permanent residence status was denied because the Act precludes convicted felons from obtaining permanent residence through the amnesty program. Defendant alleged that his guilty plea and subsequent conviction were the sole reason for denial of his amnesty application.

Defendant’s petition further alleged that defendant was never advised by his attorney that his conviction would preclude him from obtaining permanent residence in the United States. Defendant claims his attorney’s failure to advise him regarding the immigration concerns and potential deportation was ineffective assistance of counsel, and that he would not have pleaded guilty had he been aware of the consequences. A subsequent affidavit was filed by defendant’s counsel on behalf of defendant, wherein counsel stated that he could not recall if he ever discussed possible immigration concerns with defendant, or if he even knew defendant was an illegal alien. Defendant requested that the trial judge permit him to withdraw his guilty plea. Basing its decision on the cases of People v. Padilla (1986), 151 Ill. App. 3d 297, and People v. Miranda (1989), 184 Ill. App. 3d 718, the trial court found that defendant had received ineffective assistance of counsel and granted his petition. The majority affirms, relying on the recent decision in People v. Huante (1990), 194 Ill. App. 3d 159.

The reasoning of the trial court and the majority is flawed. Reliance on Padilla, Miranda, and Huante is misplaced. Padilla and Miranda can be readily distinguished from the instant case on the basis that attorneys in those cases were aware that their clients were aliens. This matter involves an attorney who was not informed, nor did he suspect, that his client had temporary resident alien status. It is not difficult to appreciate the difference between a lawyer who has knowledge of a special status influencing his client’s case yet fails to apprise the client of the ramifications of his actions, and the attorney who is unaware of any potential complications resulting from his client’s citizenry. The latter practitioner has no duty of which I am aware to inquire into the alien status of each and every client seeking defense of criminal prosecution.

Regarding Huate, I am not inclined to agree with the reasoning in the case, nor do I believe, in any event, that the holding is applicable to the instant matter. Although Huante seems to impose upon counsel the duty to investigate a client’s alien status, I reiterate my objection to such a burdensome requirement. Pleading guilty to a felony can have an impact on numerous phases of one’s life, yet an attorney cannot be expected to review each and every potential ramification of a felony conviction. Conviction of a felony, for instance, is grounds for divorce in Illinois. (Ill. Rev. Stat. 1989, ch. 40, par. 401(a)(1).) Is it, then, ineffective assistance of counsel if an attorney fails to disclose that a guilty plea would make it possible for his or her spouse to get a divorce? The alien status, like the marital status, of a client is wholly collateral and irrelevant to the preparation of a criminal defense.

Finally, regardless of the viability of the holding in Huante, it is not, as the majority states, dispositive of the instant case. In Huante, the defendant spoke “fairly good English,” but frequently used an interpreter when communicating with his attorney and the court. This led the court to conclude that the defendant’s attorney should have recognized him as a possible alien. Defendant in this matter speaks fluent English and admittedly knows very little Spanish. The majority points out that, as in Huante, defendant’s birthplace was noted as “Mexico” on court documents, and counsel should have been alerted to the possibility of alien status. It is unreasonable to expect attorneys to assume every foreign-born client is an alien. The mere appearance of a foreign birthplace on a docket sheet does not make the facts of this case parallel to Huante.

The defendant in the instant case has resided in the United States nearly all of his life, speaks fluent English and did not give his attorney any indication of his alien status. The failure of counsel to interrogate defendant regarding his status or recite to him a list of immigration concerns associated with pleading guilty to a felony is not indicative of ineffective assistance. Preparation of an effective defensive strategy does not require same. There is no evidence that counsel’s conduct fell below objective standards of reasonable competence demanded of attorneys in criminal cases. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) I would reverse the decision of the trial court. Accordingly, I dissent.


source: Caselaw Access Project

author: PRESIDING JUSTICE HEIPLE JUSTICE STOUDER,

license: Public Domain

text:
      In re MARRIAGE OF BERNADINE L. FRUS, Petitioner-Appellee, and RONALD D. FRUS, Respondent-Appellant.
    Third District
    No. 3—89—0695
    Opinion filed September 11, 1990.
    Rehearing denied October 19, 1990.

      STOUDER, J., dissenting.
    Donovan S. Robertson, of Donovan S. Robertson, EC., of Rock Island, for appellant.
    Thomas J. Patrnak, of Heninger & Heninger, P.C., of Davenport, Iowa, for appellee.
   PRESIDING JUSTICE HEIPLE

delivered the opinion of the court:

The respondent, Ronald D. Frus, appeals from the trial court’s denial of his petition to terminate maintenance payments to the petitioner, Bernadine L. Frus. We reverse.

The record shows that the parties were married on April 16, 1966. On April 10, 1975, the trial court dissolved the marriage. Pursuant to that order, the court granted custody of the parties’ three minor children to Bernadine. The court ordered Ronald to pay Bernadine $7,200 per year in maintenance and $4,800 per year in child support. It further provided that Ronald’s maintenance obligation would increase to $9,000 per year if his annual income reached $60,000. In the event his maintenance payments reached $9,000 per year, further increases would be limited to a cost of living multiplier contained in the order.

On October 20, 1987, Ronald filed a petition to terminate his obligation to pay maintenance. At the hearing on the petition, the evidence showed that Bernadine was 45 years old and in good health. She had obtained a master’s degree in clinical psychology in 1980 and was presently employed as a psychotherapist, earning $2,427 per month. She also received $1,033 per month in maintenance and $375 per month in support for the parties’ only unemancipated child. Ronald’s income at the time of the dissolution had been about $50,000 per year. He was now earning approximately $28,500 per month. The trial court denied Ronald’s petition, finding that the change in Bernadine’s circumstances had been contemplated in the original maintenance order and was not substantial enough to warrant modification.

Ronald argues on appeal that the trial court erred in not terminating maintenance. He contends that a substantial change in Bernadine’s circumstances has occurred and that she has been rehabilitated.

It is axiomatic that a trial court may modify a maintenance judgment only if there has been a substantial change in circumstances. (Ill. Rev. Stat. 1987, ch. 40, par. 510; In re Marriage of Christianson (1980), 89 Ill. App. 3d 167, 411 N.E.2d 519.) The factors to be considered in determining whether a maintenance judgment should be modified include the property awarded to the party seeking maintenance, the standard of living established during the marriage, the duration of the marriage, the ability of the spouse seeking maintenance to meet her needs independently, the ability of the other spouse to pay. (Faris v. Faris (1986), 142 Ill. App. 3d 987, 492 N.E.2d 645.) At the same time, when the statutory goal of rehabilitative maintenance has been achieved, a petition for termination should be granted. (See In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147.) A trial court’s decision regarding the modification of maintenance will not be disturbed on review unless the record shows an abuse of discretion. In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147.

In the instant case, the record shows that in the 14 years since the parties’ divorce, Bernadine has earned a master’s degree in clinical psychology and become employed full time, earning nearly $30,000 per year. Regardless of the parties’ relative incomes, we find that the statutory goal of rehabilitative maintenance has been achieved. As such, there is no longer any justification for maintenance. We therefore conclude that the trial court abused its discretion and should have granted Ronald’s petition to terminate maintenance.

The judgment of the circuit court of Rock Island County is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

GORMAN, J., concurs.

JUSTICE STOUDER,

dissenting:

I have no difficulty in affirming the trial court’s decision to continue maintenance payments of $12,396 a year to the wife, when the wife’s annual income is $29,124 and the husband’s annual income is $342,000. I disagree with the majority’s narrow interpretation of the meaning of rehabilitative maintenance especially when at the time of dissolution large increases in income are expected in the future. Rehabilitative maintenance does not mean mere survival. In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147, relied on by the majority, is readily distinguishable from the instant case. In Henzler, the property distribution specifically contemplated a change in circumstances allowing for reconsideration of the maintenance award. In the instant case, the property settlement mandated increases in the amount of maintenance as the husband’s income increased to $60,000 and applied a cost of living multiplier thereafter. The property settlement contemplated increases in the husband’s income and provided for concurrent increases in the maintenance award. Because I find the trial court did not abuse its discretion in the instant case, I dissent.


author: JUSTICE McCULLOUGH

text:
    PETER J. COURI, Plaintiff and Counterdefendant, v. THOMAS KORN, Defendant and Counterplaintiff (Martha LaHood, as Independent Ex’x of the Estate of Anthony T. LaHood, et al., Defendants; Martha LaHood, as Independent Ex’x of the Estate of Anthony T. LaHood, Movant-Appellant; Peter J. Couri et al., Respondents-Appellees).
    Third District
    No. 3—90—0007
    Opinion filed September 5, 1990.

      Kevin D. Schneider, of Westervelt, Johnson, Nicoll & Keller, of Peoria, for appellant.
    Fred G. Hoffman, of Thomas & Hinshaw, Culbertson, of Peoria, and Valerie M. Umholtz, of Moehle, Swearingen & Associates, of Pekin, for appellees.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

This appeal concerns a motion for attorney fees filed by defendant, Martha LaHood. Defendant’s motion was based on section 2— 611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2—611). Acting on a motion filed by plaintiff, Peter Couri (Couri), to strike defendant’s request for attorney fees pursuant to section 2 — 611, the trial court amended defendant’s motion for fees by interlineation to change the basis for the motion to Supreme Court Rule 137 (134 Ill. 2d R. 137). Subsequently, the trial court denied defendant’s request for fees, finding the conduct of Couri and Couri’s counsel, Valerie M. Umholtz, did not violate Rule 137. Defendant raises the following issues for our consideration: (1) whether the trial court erred in finding Rule 137 and not section 2— 611 applied in this case; and (2) whether the trial court erred in finding Couri’s and Umholtz’s conduct was not sanctionable under Rule 137. For the reasons that follow, we affirm.

The dispute between Couri, Anthony LaHood (LaHood), Thomas Korn, and South Side Trust & Savings Bank of Peoria (South Side) centers around LaHood’s and Korn’s alleged oral promises to Couri in 1982 in connection with the organization of Morton Trust and Savings Bank (Morton Bank). Inasmuch as Korn and South Side are not parties to this appeal, only those facts relating to defendant LaHood will be recited. Further, in light of the issues raised by defendant Martha LaHood, a full recitation of the procedural history of this case is in order.

In his original complaint against LaHood and South Side, filed on November 30, 1987, Couri alleged LaHood orally solicited him to be one of the organizers and original shareholders of Morton Bank. Couri agreed in March 1982 to subscribe to 6,400 shares of common stock of Morton Bank at $25 per share. After Couri advised LaHood he could not pay for his stock subscription, LaHood negotiated a $150,000 loan from South Side to pay for Couri’s subscription. On March 25, 1982, LaHood and Couri signed a promissory note to South Side for $150,000. According to Couri, South Side knew, at the time the note was signed, that the purpose of the loan was to pay for Couri’s subscription to stock. At South Side’s request, on May 24, 1982, Couri gave South Side a first mortgage on some real estate he owned individually in Tazewell County as security for the $150,000 loan.

According to Couri, LaHood orally promised him in March 1982 that because Couri could not pay for the stock subscription, LaHood would sell Couri’s shares in Morton Bank before selling any other shares held for sale to the public. Further, LaHood orally promised that if Couri’s shares were not sold when the note to South Side came due, LaHood would pay the South Side note and take Couri’s 6,000 shares. Couri alone paid the interest on the South Side note until May 17, 1983, when LaHood represented to Couri he would pay the note in full, including interest, and have Couri’s mortgage released by South Side. Thereafter, LaHood paid only the principal amount of the note ($150,000), had the note marked “paid” and delivered to him, but did not pay any interest which had accrued on the note and did not obtain a release of Couri’s mortgage from South Side.

On September 24, 1983, Couri and LaHood signed another promissory note to South Side for $12,645.21, which represented the amount of interest still owing on the $150,000 note. On September 24, 1984, LaHood paid the $12,645.21 note in full and received an assignment from South Side of the interest note and of Couri’s first mortgage to South Side. In his complaint, Couri demanded $150,000 in compensatory damages and $500,000 in punitive damages. The complaint was signed only by Couri.

On January 8, 1988, LaHood filed a motion to dismiss Couri’s complaint or, in the alternative, to strike the complaint because it was not signed by an attorney as required by section 2 — 611. LaHood also requested that attorney fees be assessed against Couri pursuant to section 2 — 611. In response, Couri, on March 22, 1988, requested leave to file an amended complaint to correct inadequacies in the original complaint and to add an additional claim. The trial court granted Couri’s motion on July 14, 1988.

On July 26, 1988, Couri filed a seven-count verified amended complaint against LaHood, Korn, and South Side. Counts III, IV, and VII concerned LaHood. Count III alleged breach of an oral contract. Couri alleged LaHood told Couri he would assist him in obtaining a loan to buy the stock and would purchase the stock from Couri when the note came due. Couri alleged the South Side note in the amount of $150,000 was to pay for the 6,000 shares of Morton Bank stock. The original note, signed by Couri and LaHood on March 25, 1982, was due on May 24, 1982. On May 24, 1982, the note was renewed to May 24, 1983. Couri repeated his allegations that he gave the first mortgage to South Side as security for the $150,000 note and that he paid the interest on the renewal note at various times between May 1982 and May 1983. During this time, Couri alleged he made repeated demands on LaHood to purchase his 6,000 shares in Morton Bank. Couri alleged LaHood orally offered, in May 1983, to purchase Couri’s 6,000 shares for $160,000. Couri orally accepted LaHood’s offer and delivered, on May 17, 1983, the certificates for 6,000 shares to LaHood. Thereafter, LaHood paid only $150,000 to South Side, received the note marked “paid” but did not obtain a release of Couri’s mortgage.

In count IV, Couri alleged LaHood engaged in a scheme to defraud Couri. Couri asked for $150,000 in compensatory damages and $500,000 in punitive damages. The amended complaint was signed by Couri’s attorney, Umholtz, and by Couri. Count VII set forth a quiet title claim wherein Couri requested a declaratory judgment that La-Hood did not hold a valid lien on Couri’s Tazewell County property by virtue of the invalid assignment of the mortgage from South Side to LaHood.

On August 8, 1988, LaHood filed a motion to dismiss counts III and IV of the amended complaint pursuant to section 2—615 of the Code for failure to state a cause of action. (Ill. Rev. Stat. 1987, ch. 110, par. 2— 615.) Also on August 8, attorneys representing LaHood filed a motion suggesting the death of LaHood on July 26, 1988. On October 21, 1988, Couri’s motion to substitute Martha LaHood (Martha), executor of the estate of Anthony LaHood, was granted. On November 23, 1988, the motion to dismiss counts III and IV was denied and Martha was directed to file an answer to Couri’s amended complaint on or before December 30,1988.

On December 30, 1988, Martha requested an extension of time to file a responsive pleading to Couri’s complaint. She argued Couri’s deposition testimony required further inquiry of Couri before a responsive pleading could be filed. Martha was given until February 15, 1989, to file a responsive pleading, without objection from Couri.

On January 13, 1989, Martha filed a request for admission of facts pursuant to Supreme Court Rule 216. (107 Ill. 2d R. 216.) In response, Couri, on February 8, 1989, admitted that (1) count III of the amended complaint was premised on an oral contract; (2) the alleged May 1983 oral offer from LaHood was made in a conversation between Couri and LaHood; and (3) there were no other persons who witnessed or heard the alleged oral offer made in May 1983 by La-Hood.

On February 16, 1989, Martha filed a motion for summary judgment pursuant to section 2—1005 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) as to counts III, IV and VII of Couri’s amended complaint. Martha alleged section 8—201 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 8—201), the Dead Man’s Act, barred the introduction of any evidence as to the alleged oral contract between LaHood and Couri. Also, on February 16, Martha filed a motion to dismiss counts III, IV, and VII of Couri’s amended complaint pursuant to section 2—619 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 2—619.) Martha alleged Couri’s actions in counts III, IV, and VII were barred by the five-year statute of limitations set forth in section 13—205 of the Code. (Ill. Rev. Stat. 1987, ch. 110, par. 13— 205.) In response to the motion for summary judgment, Couri filed, on February 27, 1989, a motion to continue the summary judgment motion, arguing he was attempting to obtain evidence regarding La-Hood’s possible conversations and correspondence with third parties regarding his conversations with Couri in April and May 1983. Further, Couri alleged that until Martha filed an answer to Couri’s amended complaint, it was still possible admissible evidence or admissions of defendant would obviate Couri’s problems with the Dead Man’s Act.

On June 6, 1989, the trial court denied Martha LaHood’s motion to dismiss and denied Couri’s motion to continue Martha’s summary judgment motion. On June 23, 1989, Martha was directed to file an answer to Couri’s amended complaint. The answer was filed on July 5, 1989. On August 7, 1989, the trial court granted Martha’s motion for summary judgment on counts III, IV, and VII of the amended complaint.

On September 6, 1989, Martha filed a motion for attorney fees and costs pursuant to section 2 — 611. Martha alleged Couri utilized the litigation to conduct a fishing expedition in an attempt to find competent evidence to support his claims instead of conducting a prepleading and reasonable inquiry as required by section 2 — 611. More specifically, Martha alleged Couri (1) in filing and signing the amended complaint, included false allegations regarding the number of shares LaHood agreed to buy from Couri and persisted in these allegations after the true facts were adduced during discovery; (2) failed to have the original complaint signed by an attorney; (3) failed to conduct a reasonable inquiry on July 26, 1988, to determine the death of LaHood, which inquiry would have revealed that Couri thereafter had no competent evidence to support his claims in the amended complaint because of the Dead Man’s Act; and (4) Couri unreasonably continued this litigation after it became apparent there was no competent evidence to support his claims. Martha alleged all of the aforementioned actions of Couri violated section 2 — 611 of the Code and, therefore, subjected Couri to sanctions. Martha asked that the court assess Couri with $14,995.54 in attorney fees and costs incurred by defendant as a result of Couri’s actions.

On December 30, 1989, Couri filed a motion to strike defendant’s motion for attorney fees or, in the alternative, to deny the motion. Couri alleged Supreme Court Rule 137 governed the request for sanctions, not section 2 — 611 of the Code. On November 3, 1989, the trial court granted Couri’s motion to strike defendant’s motion for fees pursuant to section 2 — 611 and amended defendant’s motion by interlineation to substitute the basis for relief to Rule 137. The trial court stated it did not have to decide whether Rule 137 could be applied retroactively because the motion for fees was filed after the effective date of Rule 137.

On December 1, 1989, the trial court found Couri’s allegations in his complaint and conduct did not fall below acceptable conduct so as to violate Rule 137 and, further, that counsel for Couri did not violate Rule 137 by her conduct in this case. The trial court entered findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)).

Martha appeals from the orders on November 3, 1989, and December 1, 1989. We first consider whether the trial court properly determined Couri’s and Couri’s counsel’s conduct was not sanction-able under Rule 137. It is readily apparent, and the parties agree, that Rule 137 does not impose any obligations or duties on litigants and attorneys not included in the latest version of section 2 — 611 of the Code. We address the conduct of each and Martha’s allegations with respect to each in turn.

Martha argues Couri should be sanctioned for pleadings which were determined to be false following discovery. Specifically, defendant points to paragraph 13 of the amended complaint, which states:

“In May 1983, Anthony T. LaHood orally offered to buy 6,000 shares of Plaintiff’s stock in Morton Trust for $160,000.”

At his deposition on August 20, 1987, Couri testified each organizer of Morton Bank agreed in March 1982 to put up $160,000 for the organization of the Morton Bank. Couri learned later he could not get the money from his pension plan to pay for the stock. After Couri told LaHood and Korn about his financial problem, both told Couri they would borrow the money for Couri. Further, LaHood said he would purchase Couri’s stock from him. Couri obtained $10,000 from his pension plan to buy 400 shares of Morton Bank stock. According to Couri, the $150,000 loan LaHood obtained from South Side was to pay for the remaining 6,000 shares Couri pledged to buy. Couri stated LaHood told him in May 1983 when the loan was due that he would pay South Side $160,000. At that time, there was no mention of the 400 shares of Morton Bank stock in Couri’s pension plan.

In a second deposition on September 8, 1988, Couri stated that in May 1983, LaHood represented he was in a position to pay South Side $160,000 for the loan there but there was no mention of the number of shares of Morton Bank stock LaHood was paying for. Couri stated that at the time the amount due on the loan to South Side was $161,062, including interest. Couri delivered 6,000 shares of Morton Bank stock to an officer of South Side on May 17, 1983, for delivery to LaHood. Couri further stated that the number of shares LaHood was paying for was never mentioned in any conversation between the two. There was no testimony as to LaHood’s knowledge of the 400 shares Couri paid for with $10,000 from his pension plan.

Rule 137, which closely parallels section 2 — 611 of the Code and Federal Rule of Civil Procedure 11 (28 U.S.C. app. Rule II, Rules of Civil Procedure, at 575 (1988)), provides for the imposition of sanctions for pleadings not well grounded in fact. Rule 137 dictates, as did section 2—611, that litigants and attorneys have an affirmative duty to conduct an inquiry of the facts and law prior to filing an action, pleading, or other paper. The standard for evaluating conduct is one of reasonableness under the circumstances existing at the time of filing. (Washington v. Allstate Insurance Co. (1988), 175 Ill. App. 3d 574, 580, 529 N.E.2d 1086, 1090.) As with a motion pursuant to section 2—611, a party requesting attorney fees under Rule 137 must show that the opposing party pleaded untrue pleadings of fact without reasonable cause. (Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 366, 383 N.E.2d 185, 196.) The decision whether to award fees and expenses rests within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. In re Estate of Wernick (1989), 127 Ill. 2d 61, 77-78, 535 N.E.2d 876, 883.

Couri’s deposition testimony established that (1) the number of shares of Morton Bank stock was never discussed between Couri and LaHood; and (2) LaHood promised to buy Couri’s shares the first chance he had and not when the South Side note came due. Regarding the latter allegation, we note Martha did not raise this allegation to support her motion for sanctions in the trial court and first raised this issue in this court in her reply brief. We find Martha waived consideration of this issue as grounds for sanctions under Rule 137. (Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 1005-06, 431 N.E.2d 1364, 1368.) Further, we find Martha has not established the allegations set forth in paragraph 13 were made without reasonable cause. As Couri testified, while the number of shares was never discussed, he believed the promise LaHood made to him to pay the South Side loan concerned 6,000 shares, not 6,400 shares. Additionally, the record indicates Couri delivered the 6,000 shares to the bank for the benefit of LaHood and LaHood paid the $150,000 note.

Rule 137 is, like its predecessor, section 2 — 611 of the Code, penal in nature and must be invoked only in those cases falling strictly within its terms. (Wernick, 127 Ill. 2d at 77, 535 N.E.2d at 883.) A motion for attorney fees will not be granted where the movant has only shown that the facts are ultimately adverse to the pleadings as set forth in the trial court. (Schnack, 103 Ill. App. 3d at 1005, 431 N.E.2d at 1367.) We find no abuse of discretion in denying defendant’s motion for attorney fees from Couri.

Martha also contends the trial court erred in not imposing sanctions against Couri’s attorney. Martha argues Couri’s attorney should be sanctioned for (1) failing to sign the original complaint; (2) signing the amended complaint which included a false allegation in paragraph 13; (3) filing the amended complaint without inquiring as to whether LaHood was alive; and (4) continuing the litigation, knowing there was no competent evidence to support Couri’s claims, knowing the complaint was not well grounded in fact or warranted in existing law, after it was unreasonable to do so.

Attorneys are subject to sanctions under Rule 137 when a pleading is signed in violation of the rule’s certificate that, after reasonable inquiry, it is well grounded in fact. (134 Ill. 2d R. 137.) The rule dictates some prefiling inquiries are required to fulfill the affirmative duty imposed. The standard for judging an attorney’s conduct is one of reasonableness under the circumstances existing at the time the pleading is signed. (Washington, 175 Ill. App. 3d 574, 529 N.E.2d 1086.) An attorney may not be liable for sanctions for filing a false pleading of fact if it was reasonable for the attorney to rely on his client to inform him of the facts underlying the pleading. Washington, 175 Ill. App. 3d at 580, 529 N.E.2d at 1090, citing 28 U.S.C.A. R. 11, Notes of the Advisory Committee on Rules, at 391-92 (West Supp. 1988).

Regarding the allegations in paragraph 13, we find it was reasonable for Couri’s attorney to have relied upon Couri’s recitation of facts supporting Couri’s claim that LaHood breached his oral agreement with Couri. Because this case involves an oral agreement between Couri and LaHood, with no apparent witnesses, Couri was the only person who knew the facts. Accordingly, Couri’s attorney did not breach her duty under Rule 137.

We find no merit to Martha’s other allegations of attorney misconduct. The original complaint was superseded by the filing of the amended complaint, which was complete in itself and contained no references to the original complaint. (People v. Cross (1986), 144 Ill. App. 3d 409, 494 N.E.2d 703.) The original complaint is no longer part of the record, having been in effect abandoned or withdrawn. Robins v. Lasky (1984), 123 Ill. App. 3d 194, 462 N.E.2d 774.

Martha also alleges Couri’s attorney’s failure to investigate whether LaHood was alive at the moment the amended complaint was filed is sanctionable under Rule 137. Martha does not allege Couri’s attorney knew of LaHood’s death or that his death was imminent at the time the complaint was filed. Additionally, Martha argues Couri’s attorney unreasonably delayed the resolution of this litigation after it became readily apparent LaHood’s death caused evidentiary problems for Couri’s case because of the Dead Man’s Act. Specifically, Martha argues Couri’s motion to continue in response to defendant’s motions for summary judgment and dismissal of counts III, IV, and YII of the complaint, filed in February 1989, was not warranted by existing law because it is clear then that the Dead Man’s Act barred the only alleged evidence of Couri’s claims.

We fail to discern how the sudden and unknown death of the defendant- in this action rendered Couri’s cause of action totally meritless and not warranted in existing law when the amended complaint was filed. Rule 137 does not require that attorneys anticipate defenses to a plaintiff’s claim or withdraw an action at the instant a defense is interposed to avoid the imposition of sanctions. (See Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 621-22, 532 N.E.2d 595, 599.) One purpose of Rule 137 is to prevent the filing of frivolous lawsuits, not to penalize litigants and their attorneys simply because they were not successful in litigation. (Prevendar v. Thonn (1988), 166 Ill. App. 3d 30, 41, 518 N.E.2d 1374, 1382.) The record establishes plaintiff’s attorney pursued the litigation on plaintiff’s behalf, and continued to advise the court of her intentions to find any possible third party with knowledge of the oral contract between Couri and LaHood. Only after these efforts failed did the litigation come to an end. Accordingly, we affirm the trial court’s denial of defendant’s request for sanctions. The issues, whether section 2 — 611 or Supreme Court Rule 137 applies and whether Supreme Court Rule 137 may be applied retroactively, are rendered moot by our decision.

For the foregoing reasons, the orders of the trial court are affirmed.

Affirmed.

KNECHT, P.J., and SPITZ, J., concur.


author: JUSTICE REINHARD

text:
    THE VILLAGE OF SPRING GROVE, Plaintiff-Appellant, v. JOHN DOSS, Defendant-Appellee.
    Second District
    No. 2—89—1161
    Opinion filed September 12, 1990.
    Rehearing denied October 25, 1990.

      Camille A. Goodwin, of Diamond, LeSueur & Roth, Associates, of McHenry, for appellant.
    Joseph A. Ricely, Jr., of Glen Ellyn, for appellee.
   JUSTICE REINHARD

delivered the opinion of the court:

After a bench trial, defendant, John Doss, was found not guilty of violating a Village of Spring Grove (Village) ordinance which restricted the use of roads for vehicles over certain weights (Village of Spring Grove, Ill., Ordinance No. 82 (June 2, 1987)). The Village has appealed the trial court’s judgment.

The Village raises one issue on appeal: whether the trial court erred in finding that the defendant fell within an exception in the ordinance. If we conclude that the trial court did err, then we are requested to address two other issues raised by defendant: (1) whether defendant can be fined more than $500; and (2) whether a mandatory fine of $5,250 would be excessive and unreasonable.

On April 5, 1989, defendant exited Scot Forge Corporation located in the Village on Winn Road, south of Main Street. Defendant headed north on Winn Road toward the intersection of Winn and Main. On Winn Road, north of Scot Forge, there was a sign which stated, “Warning Weight Limit Ahead.” At the intersection of Winn and Main, signs stating “Weight Limit 2 Tons Per Axle Ten Ton Gross” were visible to traffic facing north on Winn Road. Defendant proceeded through the intersection and headed north on Winn Road. A Village police officer observed defendant heading north on Winn Road and, after determining that the truck appeared to be overweight and was on a weight restricted road north of Main Street, pulled over defendant. The officer had defendant follow him to the State weight scale in Richmond, Illinois. The officer weighed each axle and then determined that defendant’s vehicle was 31,160 pounds overweight.

The Village ordinance at issue states-, in pertinent part, the following:

“AN ORDINANCE AMENDING THE WEIGHT AND LOAD LIMIT IN THE VILLAGE OF SPRING GROVE
WHEREAS, the Board of Trustees of the Village of Spring Grove deems it necessary and proper to regulate the weight and load limits of vehicles operating on Village roads; and
WHEREAS, the President and Board of Trustees deem that the regulation of weight and load limits of vehicles on Village roads is necessary to promote the general welfare of the residents of the Village of Spring Grove and to protect the public safety for said residents, and
WHEREAS, the Village deems the regulation of weight and load limits of vehicles using Village roads necessary to preserve and reduce deterioration of Village roads and to minimize traffic hazards.
WHEREAS, it is the express intent of the President and Village Board of the Village of Spring Grove that this Ordinance be interpreted to prohibit at any time any vehicle from traveling on a posted Village street unless said vehicle is using the posted street to arrive at or depart from a residence located on said posted street, and in no event is it the purpose of this Ordinance to allow travel on any other posted Village street unless a delivery, or departure from, is being made to a residence or business on said posted street.
(a) Purpose:
To promote the safety of the general public and to preserve the roads and streets under the jurisdiction of the Village of Spring Grove for the use of the general public, it is hereby declared that the following rules and regulations as to maximum weight and load shall apply to all vehicles using public roads and streets under the jurisdiction of the Village of Spring Grove, pursuant to chapter 95V2, section 15 — 316. [Citation.]
(b) Maximum per vehicle:
It shall be unlawful to operate any vehicle (including any tractor, trailer and accompanying load) on any street within the Village of Spring Grove, McHenry County, Illinois, except on Route 12, when
(1) The weight per axle of such vehicle exceeds two tons; or
(2) The gross weight of such vehicle exceeds the number of axles times two tons; or
(3) The gross weight of such vehicle exceeds ten tons. (c) Exceptions:
(2) Delivery/pick-up vehicles with destination points located on Village streets with posted weight restrictions.
(f) Posting of signs.
Any agent of the Village is directed to erect and maintain signs designating the limitations contained in this ordinance at each and every roadway of the Village.
SECTION 3: This ordinance shall be in full force and effect from and after its passage as required by law and shall not be effective unless and until signs designating weight limitations are erected and maintained pursuant to the provisions of this ordinance.” Village of Spring Grove, 111., Ordinance No. 82 (June 2, 1987).

After hearing arguments of counsel as to whether an exception to the ordinance was applicable, the trial judge found defendant not guilty. The parties agree that the court found the exception to the ordinance to be applicable.

As to the first issue, the Village contends that the trial court’s interpretation of the ordinance contravened the intent of the ordinance. The Village contends that defendant did not fall within the delivery/ pickup exception to the ordinance. Conversely, defendant contends that the trial court was correct in its interpretation of the ordinance. Defendant contends that under the ordinance all roads except Route 12 are weight restricted roads; thus, when defendant made the pickup at Scot Forge, he was already on a weight restricted road and was within the delivery/pickup exception.

The rules which govern the construction and interpretation of statutes are used in construing municipal ordinances. (City of East St. Louis v. Union Electric Co. (1967), 37 Ill. 2d 537, 542, 229 N.E.2d 522.) Courts should first look to the statutory language as the best indication of the intent of the drafters. (County of DuPage v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076.) As the facts are undisputed and the decision turns on the proper interpretation of the statute, we review the trial court’s ruling as a matter of law. People v. 1916 Buick, VIN 31123520 (1989), 127 Ill. 2d 374, 378, 537 N.E.2d 748; In re Marriage of Adams (1989), 183 Ill. App. 3d 296, 301, 538 N.E.2d 1286:

In this case, we believe it is clear from the language of the entire ordinance that the intent of the ordinance was to prevent overweight trucks from using posted weight restricted streets unless making a pickup or delivery on that posted street. While the ordinance makes all streets within the Village, except Route 12, subject to the weight and load limits of the ordinance, the ordinance further requires the posting of signs designating the weight limitations in order for the limitations contained in the ordinance to be effective against a vehicle traveling on such a street. Further, the preamble to the ordinance expresses the intent that the ordinance applies to vehicles traveling on a posted street. Winn Road, north of Main Street, is a posted street. However, south of Main Street, where defendant had made his pickup, Winn Road was not a posted weight restricted road. Defendant made a pickup on a road without posted weight restrictions and then proceeded to continue on the road past the posted weight restrictions. The exception simply does not apply to defendant. Therefore, the trial court misinterpreted the ordinance by finding that defendant fell within the exception in the ordinance.

Because we have found that the trial court misinterpreted the ordinance, defendant asserts, alternatively, that we should address a second issue: whether he can be fined more than $500. As the issue was raised and argued below, but not decided, we choose to address it at this time as it will arise again on remand and is a question of law which has been briefed by the parties. See Bell v. Louisville & Nashville R.R. Co. (1985), 106 Ill. 2d 135, 142, 478 N.E.2d 384.

Defendant attempts to have this court invalidate the Village ordinance imposing fines pursuant to a schedule that is identical to section 15—113 of the Illinois Vehicle Code (Vehicle Code) (Ill. Rev. Stat. 1989, ch. 95½, par. 15—113). Defendant contends that the maximum fine which the Village can levy is $500, pursuant to section 1—2—1 of the Illinois Municipal Code (Ill. Rev. Stat. 1989, ch. 24, par. 1—2—1). This latter statute states the following:

“The corporate authorities of each municipality may pass all ordinances and make all rules and regulations proper or necessary, to carry into effect the powers granted to municipalities, with such fines or penalties as may be deemed proper. No fine or penalty, however, except civil penalties provided for failure to make returns or to pay any taxes levied by the municipality shall exceed $500 and no imprisonment authorized in Section 1—2—9 for failure to pay any fine, penalty or cost shall exceed 6 months for one offense.” Ill. Rev. Stat. 1989, ch. 24, par. 1—2—1.

An ordinance is presumed valid, and the burden of establishing invalidity rests upon those asserting it. (Mulligan v. Dunne (1975), 61 Ill. 2d 544, 558, 338 N.E.2d 6.) Municipalities derive their power from the legislature and may exercise only those powers which are expressly granted or those implied or incident to those express powers. Village of Mundelein v. Hartnett (1983), 117 Ill. App. 3d 1011, 1015, 454 N.E.2d 29.

Under section 11—208(a)(7) of the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 11—208(a)(7)), local authorities may exercise their police power by restricting the use of highways as authorized under chapter 15 of the Vehicle Code. Pursuant to chapter 15 of the Vehicle Code, local authorities may prohibit the operation of trucks or other vehicles or may impose weight restrictions on designated highways with appropriate postings. (Ill. Rev. Stat. 1989, ch. 95½, par. 15—316(c).) The Attorney General has written that section 15—316(c) provides for greater protections for local highways than the protection afforded by State law. (1977 Ill. Att’y Gen. Op. 203, 206.) The weight and load provisions contained in section 15—100 et seq. (Ill. Rev. Stat. 1989, ch. 95½, par. 15—100 et seq.) provide a formula for determining allowable loads (Ill. Rev. Stat. 1989, ch. 95½, par. 15—111(g)) and mandatory fines according to a schedule (Ill. Rev. Stat. 1989, ch. 95½, par. 15—113). See People v. Ullrich (1990), 135 Ill. 2d 477, 486-88, 553 N.E.2d 356.

In this case, the Village has explicitly derived its power to regulate the weight of vehicles over Village roads pursuant to the Vehicle Code (Ill. Rev. Stat. 1989, ch. 95½, par. 15—316(c)). Defendant argues, however, that the Village’s power to fine him is limited to $500 under the Municipal Code. Ill. Rev. Stat. 1989, ch. 24, par. 1—2—1.

Section 15—113 of the Vehicle Code sets forth the mandatory penalties for overweight violations of section 15—111. (Ill. Rev. Stat. 1989, ch. 95½, par. 15 —113.) A fundamental principle of statutory construction is that the more specific statute takes precedence over the more general when two statutes concern the same subject matter. (People v. Gindorf (1987), 159 Ill. App. 3d 647, 666, 512 N.E.2d 770.) In this case, the Municipal Code is the broader statute and discusses ordinances and municipal power in general, whereas the Vehicle Code is more specific and applies precisely to the mandatory penalties for overweight vehicles. Section 15—113 of the Vehicle Code does not grant a municipality any authority to enact ordinances which would alter the penalty provisions of this section. Thus, chapter 15 of the Vehicle Code applies in this case and the Village has the power to impose the mandatory fines as enumerated in section 15 — 113 of the Vehicle Code and is not limited by section 1 — 2—1 of the Municipal Code.

Any other construction would disrupt the regulatory scheme established by the legislature in section 15 of the Vehicle Code and result in the absurd situation of permitting lower fines for overweight vehicles on highways under local authority and higher mandatory fines for overweight vehicles on highways under State authority. It cannot be presumed that the legislature, in passing legislation, intended absurdity, inconvenience or injustice. (Ullrich, 135 Ill. 2d at 486, 553 N.E.2d at 360.) Therefore, the ordinance is valid.

Finally, the defendant contends that a mandatory fine of $5,250 would be excessive and unreasonable for a single violation of the ordinance. The defendant’s argument fails for two reasons. First, the only case cited as authority by the defendant is inapposite, and, secondly, the Illinois Supreme Court has upheld this type of fine for violating a weight restriction (People v. Ullrich (1990), 135 Ill. 2d 477, 553 N.E.2d 356). The defendant cites Metropolitan Sanitary District v. On-Cor Frozen Foods, Inc. (1976), 36 Ill. App. 3d 239, 343 N.E.2d 577, for the proposition that the fine is excessive. However, in Metropolitan, the penalty of over $9,000 was upheld and the court stated, “[t]he penalties imposed for violation of the ordinance are harsh, but, we believe, they are no more than others enacted by our legislature and upheld by our Supreme Court.” (Metropolitan, 36 Ill. App. 3d at 246, 343 N.E.2d at 582.) Secondly, the Illinois Supreme Court in People v. Ullrich (1990), 135 Ill. 2d 477, 553 N.E.2d 356, upheld fines imposed pursuant to section 15—113 of the Vehicle Code. In Ullrich, the Court upheld a fine of $6,385 pursuant to this statute and stated that such fines based on the fixed schedule were mandatory. 135 Ill. 2d at 486-88, 553 N.E.2d at 360-61.

In conclusion, because the trial court misinterpreted the ordinance in this case, the trial court’s judgment is reversed, and the cause is remanded for further disposition consistent with this opinion.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

WOODWARD and DUNN, JJ., concur.


author: PRESIDING JUSTICE KNECHT

text:
      In re MARRIAGE OF JOEL L. SECHREST, Petitioner-Appellee, and VICKI L. SECHREST, Respondent-Appellant (Jeffrey Kennedy et al., Third-Party Respondents-Appellees).
    Fourth District
    No. 4—89—0654
    Opinion filed September 26, 1990.
    Rehearing denied October 29, 1990.

      Denise L. Church, of Prairie State Legal Services, Inc., of Bloomington, and Bernard H. Shapiro, of Prairie State Legal Services, Inc., of Rockford, for appellant.
    Curtis W. Myers, of Law Offices of Curtis W. Myers, of Pontiac, for appellees.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Vicki Sechrest appeals from an order of the circuit court of Livingston County awarding permanent custody of her Ufe-year-old daughter, A.M.S., to her sister-in-law Doris Kennedy. Vicki and her husband Joel Sechrest were still married when he requested Doris take A.M.S. and care for her. Vicki never consented to this arrangement. Doris and her husband, Jeff, were permitted to intervene in Vicki and Joel’s dissolution of marriage action to seek temporary custody of A.M.S. Three years later the circuit court awarded permanent custody of A.M.S. to Doris. The issues on appeal are whether Doris and Jeff had standing, under section 601 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601), to intervene in the dissolution proceedings to seek custody of A.M.S., whether Vicki waived the standing issue by failing to raise it prior to her post-trial motion, and whether the circuit court abused its discretion when it awarded permanent custody to Doris Kennedy.

Vicki and Joel Sechrest were married April 27, 1985. Their only child, A.M.S., was born on November 19, 1985. She is now 4x/2 years old. Vicki and Joel separated in May of 1986. Joel left the marital residence on a Friday. The following day Vicki took A.M.S. to a babysitter, where she remained overnight, while Vicki visited her out-of-town boyfriend. Vicki returned for a few hours on Sunday afternoon but left Sunday evening, again leaving A.M.S. with the baby-sitter. Although Vicki intended to return for A.M.S. on Monday, her boyfriend had car trouble and she did not return until Wednesday. Vicki did notify the baby-sitter she could not return Monday evening.

Monday evening Joel learned of Vicki’s absence and took A.M.S. from the baby-sitter to his girlfriend’s house. On Wednesday he contacted his sister Doris and asked her to take A.M.S. He also requested she and her husband consider taking custody of the child. Believing Joel and Vicki were each incapable of adequately caring for A.M.S., Doris and Jeff filed a petition to adopt her.

Joel filed a petition for dissolution of marriage on August 12, 1986. His petition specifically requested the Kennedys be awarded temporary custody of A.M.S.

A temporary custody hearing was held on November 6 and 7, 1986. The Kennedys voluntarily dismissed their adoption petition and were allowed to intervene in the dissolution proceeding and seek custody of A.M.S. Vicki’s attorney made no objection to their intervention. The Kennedys filed a petition for custody on December 2, 1986. The circuit court entered an order awarding them temporary custody on December 3, 1986, with provisions for visitation by Vicki. A judgment of dissolution of marriage was entered September 24, 1987.

The circuit court held permanent custody hearings on May 24, May 31, June 1, and June 5, 1989. The court entered an order awarding permanent custody to Doris on June 7, 1989. Judge Frobish declined to award Vicki permanent custody, stating:

“The instability in VICKIE’S [sic] life, which resulted in temporary custody of [A.M.S.] being awarded to the KENNEDYS in November 1986, continues. Although VICKIE [sic] is not an unfit mother and has demonstrated love for her daughter, she continues to show poor judgment in her lifestyle and in her choice of relationships. She has not shown a strong family support system as has been shown by the KENNEDYS. Finances continue to be a problem.
The Court further FINDS that it is in the best interest of [A.M.S.] that custody be awarded to DORIS KENNEDY.”

Vicki filed a post-trial motion on June 27, 1989, and a hearing was held on the motion on July 18, 1989. The motion included an assertion the Kennedys did not have standing to petition the circuit court for custody of A.M.S. because, when they removed the child from the baby-sitter, she was still in Vicki’s custody and Vicki never relinquished control of her to the Kennedys. The court entered an order denying the relief sought in the post-trial motion on August 7, 1989, and Vicki filed her notice of appeal on August 21,1989.

Section 601(b)(2) of the Act states, in part:

“A child custody proceeding is commenced in the court:
* * *
(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.” (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).)

On appeal Vicki contends the Kennedys lacked standing to petition for custody of A.M.S. The Kennedys bear the burden of proving standing. In re Custody of Butler (1989), 192 Ill. App. 3d 135, 137, 548 N.E.2d 582, 584.

A nonparent seeking custody of a child pursuant to section 601 must have standing.

“In 1986, the Illinois Supreme Court held that nonparents proceeding under section 601(b)(2) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 601(b)(2)) must first satisfy a standing requirement before the court may consider them for the legal custody of a child. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 52, 491 N.E.2d 1150, 1152.) The meaning of the term ‘standing’ as used in Peterson is distinct from the definition familiar to most students of the law. Generally standing connotes whether a litigant has a justiciable interest in a controversy, and the standing of the litigants before the court is one of the components of the court’s subject matter jurisdiction. The term ‘standing’ as used in Peterson involves a threshold issue of whether a parent has custody of a child for purposes of satisfying the requirements of section 601(b)(2) of the Act.” In re Custody of McCuan, 176 Ill. App. 3d 421, 425, 531 N.E.2d 102, 105.

The nonparent must show the child is not in the physical custody of one of her parents. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2); In re Custody of Peterson (1986), 112 Ill. 2d 48, 53, 491 N.E.2d 1150, 1152; In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 1047, 544 N.E.2d 1293, 1297; Butler, 192 Ill. App. 3d at 136, 548 N.E.2d at 583; In re Marriage of Nicholas (1988), 170 Ill. App. 3d 171, 175, 524 N.E.2d 728, 731.) Once the nonparent has made such a showing and established standing, the court determines custody using the “best interest of the child” standard. In re Custody ofMenconi (1983), 117 Ill. App. 3d 394, 396, 453 N.E.2d 835, 837; Carey, 188 Ill. App. 3d at 1046, 544 N.E.2d at 1297; Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152.

A nonparent who fails to establish standing under section 601 must seek custody under either the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.) or the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.). Under these statutes, the' nonparent must prove the natural parents unfit, a much higher standard of proof. Peterson, 112 Ill. 2d at 52, 491 N.E.2d at 1152; In re Marriage of Gustafson (1989), 181 Ill. App. 3d at 472, 475, 536 N.E.2d at 1359, 1360; In re Custody of O’Rourke (1987), 160 Ill. App. 3d 584, 587, 514 N.E.2d 6, 7-8; Menconi, 117 Ill. App. 3d at 396, 453 N.E.2d at 837-38.

The key to the standing issue is whether A.M.S. was in the physical custody of one of her parents when Doris and Jeff intervened in the dissolution proceedings.

“A determination of when a child is ‘not in the physical custody of one of his parents’ so as to create standing in a non-parent seeking custody under the Dissolution Act is not subject to any clear litmus test or dependent upon any single fact such as who is in actual physical possession of the child at the time the petition for custody modification is filed.” Carey, 188 Ill. App. 3d at 1047, 544 N.E.2d at 1297.

Peterson makes clear the standing requirement does not turn on who is in physical possession of the child when the custody petition is filed. “To hold differently would be to encourage abductions of minors in order to satisfy the literal terms of the standing requirement and would, in reality, defeat the statutory intendment.” (Peterson, 112 Ill. 2d at 54, 491 N.E.2d at 1152-53.) The determination of whether a child is in a person’s physical custody has included factors such as how the child came to be in the nonparent’s physical possession and the duration of the possession. In re Marriage of Santa Cruz (1988), 172 Ill. App. 3d 775, 783, 527 N.E.2d 131, 136.

The second district affirmed the circuit court’s finding the non-parent had standing in In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 544 N.E.2d 1293. The 12-year-old child in that case lived with his natural mother and father until he was six. His parents divorced, and his father obtained legal and physical custody and subsequently remarried. Six years later his father died. The child’s stepmother petitioned for custody as did the natural mother. The circuit court determined the stepmother had standing to petition for custody and the appellate court affirmed. The court based its decision in part on the mother/son relationship established between the stepmother and child. Additionally, the court noted the natural mother had voluntarily relinquished custody of the child six years earlier.

The first district also affirmed a circuit court decision finding a nonparent had standing under section 601. (Menconi, 117 Ill. App. 3d 394, 453 N.E.2d 835.) In that case the child’s natural mother died shortly after the child’s birth. The natural father asked his parents to care for the child, and she remained with them for seven years. The natural father forcibly removed the child from her grandparents’ home and refused to return her. The grandparents petitioned for custody under section 601, and the circuit court awarded them permanent custody. The appellate court affirmed, agreeing the grandparents had standing. “We find the voluntary nature of the initial transfer of the child, coupled with the lengthy period of care by the grandparents and the corresponding integration of the child into the home of her grandparents, sufficient to divest the father of physical custody of the child.” Menconi, 117 Ill. App. 3d at 398, 453 N.E.2d at 389.

This case is distinguishable from Carey and Menconi. In those cases the natural parent seeking custody had voluntarily relinquished custody to the third party years before. The children had been with the third parties for six or seven years prior to the custody disputes and had become integrated into the homes of the third parties. Here, Vicki never relinquished custody of A.M.S. When the Kennedys intervened in the dissolution proceedings in November of 1986, they had had A.M.S. for only six months.

Other cases have held nonparents lacked standing to seek custody under section 601. The Illinois Supreme Court reversed an appellate court decision which found the nonparent had standing in In re Custody of Peterson (1986), 112 Ill. 2d 48, 491 N.E.2d 1150. There, the natural mother received legal and physical custody of the child in dissolution proceedings. She and the child moved in with her parents. The natural mother died two years later, and both the grandparents and natural father sought custody of the child. The court upheld a ruling by the circuit court finding the grandparents lacked standing although they had actual physical custody of the child. The natural mother never transferred or lost custody of the child. When the mother died, the court considered the child in the custody of her father. The court also stated the care given by the grandparents to the mother and child did not constitute physical custody of the child.

The second district denied standing to a nonparent in In re Marriage of Santa Cruz (1988), 171 Ill. App. 3d 775, 527 N.E.2d 131. The natural mother and father divorced four months before the child’s birth. After the child was born, the natural mother and child went to live with the child’s maternal grandmother. One year later, the grandmother and her daughter had an argument and the daughter left home, leaving the child behind. The grandmother received temporary emergency custody of the child. The daughter returned a week later and sought to remove the child from the home. The grandmother refused and both subsequently filed petitions for custody. The appellate court affirmed the circuit court decision dismissing the grandmother’s petition for lack of standing. There was no voluntary relinquishment of the child to the grandmother. Custody was with the natural mother and was never transferred to the grandmother.

In In re Custody of McCuan (1988), 176 Ill. App. 3d 421, 531 N.E.2d 102, the fifth district found the grandparents lacked standing to petition for custody of the child. The natural mother filed a petition for dissolution of marriage 11 months after her husband was convicted and sentenced to prison. The husband asked that the grandparents receive custody, and they filed a custody petition. They alleged the natural mother engaged in an adulterous relationship in the child’s presence, abused alcohol and narcotics, had a dirty house, and failed to provide proper clothing and medical care for the child. The grandparents refused to return the child to her mother following a weekend visit. The circuit court found the grandparents had standing to seek custody because the child was with them when they filed their custody petition, but the appellate court reversed. The grandparents could not use their refusal to return the child after a weekend visit as a means of satisfying the standing requirement of section 601.

Vicki did not voluntarily relinquish custody of A.M.S. when she left the child with the baby-sitter for five days.

“Overnight contact with third parties fails to fulfill the statutory provision that the child not be in the physical custody of one of her parents. *** We do not accept petitioner’s theory that physical custody may be relinquished by default if a parent performs the task of parenting in a less than adequate manner.” In re Custody of Barokas (1982), 109 Ill. App. 3d 536, 544, 440 N.E.2d 1036, 1042.

A.M.S. was still in Vicki’s physical custody while she was gone. Vicki never voluntarily relinquished custody to anyone. The Kennedys lacked standing to seek custody of A.M.S. as she was in the physical custody of one of her parents at the time they intervened in the custody portion of the dissolution proceeding. The circuit court was therefore without authority to award temporary custody to Doris and Jeff and permanent custody to Doris.

The fact Joel and Vicki were married, when he took A.M.S. from the baby-sitter and asked Doris to care for and seek custody of her, distinguishes this case from others arising under section 601. However, we decline to find Joel’s unilateral decision to relinquish custody to Doris and Jeff conferred standing on them. A decision otherwise might encourage a vindictive spouse to give custody of his child to a third party solely to prevent his spouse from obtaining custody. He could then file a dissolution petition requesting the third party receive custody of the child. Under such a decision, the third party would then have section 601 standing. Public policy considerations preclude such a result.

The Kennedys argue Vicki has waived the issue of standing by failing to raise it at the temporary custody hearing in November 1986 and throughout the subsequent three-year permanent custody proceeding. We agree. Lack of standing, under section 601 of the Act, is an affirmative defense which is waived unless raised during the time for pleading. (In re Custody of McCarthy (1987), 157 Ill. App. 3d 377, 510 N.E.2d 555.) In McCarthy, the natural mother received custody of the children in a dissolution proceeding. The mother died shortly thereafter and the circuit court awarded temporary custody to an aunt. Permanent custody proceedings spanned one year, and more than 30 witnesses testified. Just before the respondent natural father completed his case in chief, he moved to dismiss the aunt’s custody petition alleging she lacked standing under section 601. The circuit court granted the motion and transferred custody to the father.

On appeal the aunt contended the natural father waived his right to object to standing by failing to make a timely motion to dismiss. The court held lack of standing is an affirmative defense and therefore subject to section 2—619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2— 619(a)(9)), which requires motions to dismiss be brought within the time for pleading. The respondent’s motion was not made within that time.

“Nevertheless, the trial court has the discretion to allow the withdrawal of an answer and the subsequent filing of a tardy motion to dismiss based on a defense not raised in the answer. (Midwest Bank & Trust Co. v. Village of Lakewood (1983), 113 Ill. App. 3d 962.) Unless it can be demonstrated that the opposing party was prejudiced by the late filing of the motion to dismiss, the trial court does not abuse its discretion by allowing tardy pleadings. Illinois Housing Development Authority v. Sjostrom & Sons, Inc. (1982), 105 Ill. App. 3d 247, 253.” McCarthy, 157 Ill. App. 3d at 380-81, 510 N.E.2d at 557.

The court found extreme prejudice in the circuit court’s allowance of the motion to dismiss. The petitioner incurred significant legal fees, went through a time-consuming and difficult custody hearing, and experienced significant emotional stresses. Further, the children had become accustomed to living with the petitioner during the year-long hearing. The court reversed the decision of the circuit court and remanded for further hearings on permanent custody.

In this case, three years passed with A.M.S. in the custody of the Kennedys before Vicki raised any question regarding the Kennedys’ standing. The issue was raised for the first time in a post-trial motion after several days of hearings, 24 witnesses, and more than 1,000 pages of transcript. As in McCarthy, extreme prejudice would result if we concluded Vicki had not waived the standing issue. Vicki has waived the issue of standing, and the circuit court’s order awarding permanent custody to Doris Kennedy is affirmed.

We seek to make clear under the Act the Kennedys, as third parties, did not have standing to petition for custody of A.M.S. To prevent such situations in the future, trial courts must carefully examine the pleadings and may, suet sponte if necessary, raise the issue of a nonparent’s standing or lack of standing.

The second issue Vicki raises on appeal is whether the circuit court’s award of custody to Doris Kennedy was against the manifest weight of the evidence and an abuse of discretion. Specifically, Vicki argues Doris failed to overcome the presumption favoring custody awards to natural parents.

It is an accepted presumption the right of a natural parent to custody of a child is superior to that of a third party. (In re Custody of Townsend (1981), 86 Ill. 2d 502, 508, 427 N.E.2d 1231, 1234; Peterson, 112 Ill. 2d at 51, 491 N.E.2d at 1151.) The law also presumes it is in the child’s best interest to be raised by the natural parent. (In re Custody of Krause (1982), 111 Ill. App. 3d 604, 609, 444 N.E.2d 644, 648.) These presumptions are not absolute and serve only as factors for consideration in determining where the best interests of the child lie. (Townsend, 86 Ill. 2d at 508, 427 N.E.2d at 1234; see also Peterson, 112 Ill. 2d at 51-52, 491 N.E.2d at 1151.) The right of the natural parent to her child must yield to the best interest of the child. (Krause, 111 Ill. App. 3d at 606, 444 N.E.2d at 646.) “A court need not find that the natural parent is unfit or has forfeited his custodial rights before awarding custody to another person if the best interests of the child will be served.” Townsend, 86 Ill. 2d at 508, 427 N.E.2d at 1234; Soldner v. Soldner (1979), 69 Ill. App. 3d 97, 101-02, 386 N.E.2d 1153, 1157.

“It is obvious that in a custody dispute a court should give weight to the claim of a third person who has had actual or legal custody of the child for a substantial period of time, especially if the evidence shows that the child has become an integral member of a true family unit. [Citations.] But however important this factor may be in a given case, it does not rise to the level of a presumption so as to ‘neutralize’ the superior-right doctrine or transpose the superior right from the natural parent to the third person. It remains simply a factor to consider in ascertaining what will best serve the interests of the child.” Townsend, 86 Ill. 2d at 515, 427 N.E.2d at 1237-38.

See also Krause, 111 Ill. App. 3d at 609, 444 N.E.2d at 648.

The court must consider the particular facts and circumstances of each case in determining the best interests of the child. (Krause, 111 Ill. App. 3d at 607, 444 N.E.2d at 646.) Section 602 of the Act requires the court to consider all relevant factors and lists six of them. Ill. Rev. Stat. 1987, ch. 40, pars. 602(a)(1) through (a)(6).

Subsection (1) makes the wishes of the natural parents relevant. Joel wants Doris and Jeff to have custody of A.M.S. Testimony indicates Joel is probably incapable of caring for the child himself as he is disabled. Vicki clearly wants custody of her daughter.

Subsection (2) is inapplicable as A.M.S. is too young to decide where she wants to live.

Subsection (3) is the interaction and interrelationship of the child with her parents and others who may significantly affect her best interests. The record indicates A.M.S. calls Vicki and Doris “Mommy” but that A.M.S. and Doris are strongly bonded. In February 1988, A.M.S. told Vicki that Jeff had touched her “privates,” but the child later denied he had done this. She displays no fear of Jeff and sometimes calls him “Daddy.”

Subsection (4) considers the child’s adjustment to her home, school, and community. Evidence shows A.M.S. looks forward to visitation with Vicki and sometimes cries when she leaves Vicki to return to the Kennedys.

Subsection (5) is the mental and physical health of all individuals involved. Doris, Jeff, and A.M.S. are in good health. Vicki has epilepsy, but testified the epilepsy has not and will not affect her ability to care for A.M.S.

Subsection (6) contemplates the physical violence or threat of physical violence by the child’s potential custodian. A.M.S. told Vicki that Jeff touched her between her legs. Vicki contacted the police; the Department of Children and Family Services (DCFS) immediately launched an investigation. There was extensive testimony about this investigation and A.M.S.’s claim. The circuit court concluded there was insufficient evidence to show Jeff sexually abused A.M.S.

Other relevant testimony, from one of A.M.S.’s baby-sitters, indicates the child, while in Vicki’s care, frequently arrived at the babysitter in the morning wearing the same diaper she had on when she left the baby-sitter the night before. Vicki took bottles of formula to the baby-sitter and the formula was almost always spoiled. A baby-sitter also testified Vicki herself used prescription medication intended for A.M.S. to control the infant’s asthma. Doris testified A.M.S. was often dirty and wearing dirty clothes when she returned from visitation with Vicki.

The circuit court was correct in concluding Doris produced sufficient evidence to show it is in A.M.S.’s best interests for Doris to have custody rather than Vicki, the natural parent.

“In custody cases the trial court is vested with great discretion because it has the superior opportunity to observe the witnesses, evaluate the evidence, and determine the best interests of the child. [Citation.] The trial court’s determination of custody will not be reversed unless it has clearly abused its discretion or the decision was contrary to the manifest weight of the evidence.” (Krause, 111 Ill. App. 3d at 608, 444 N.E.2d at 647-48.)

(See also McCuan, 176 Ill. App. 3d at 427, 531 N.E.2d at 106.) The trial court’s determination in this case was not against the manifest weight of the evidence nor an abuse of discretion.

Vicki next argues the circuit court abused its discretion when it found Jeff Kennedy did not sexually abuse A.M.S. Doris testified A.M.S. began wetting her pants and refusing to play with other children in late January 1989. A.M.S. told other children in the house not to touch her privates. Several days later, in early February, while at the home of baby-sitter Tammy Murphy, A.M.S. experienced difficulty urinating. Tammy asked A.M.S. whether anyone had touched her “down there” and A.M.S. told her Jeff had touched her between her legs. Tammy informed Vicki and they telephoned the police. Tammy and Vicki testified A.M.S.’s vaginal area was red and irritated. A.M.S. stated she told Jeff to stop but he would not. She also claimed to have told Doris but said Doris did not believe her. Doris denied A.M.S. told her of the touching.

Examination by a physician revealed A.M.S. had an infection of the bladder and urinary tract. There was no evidence of abuse or neglect. DCFS employee Theresa Kelly did not find sufficient credible evidence to believe Jeff abused A.M.S. DCFS caseworker Maggie Wright found A.M.S. credible and believed the child had been abused. Robert Kinas, director of the Incestuous Sexual Abuse Treatment Program at the Institute for Human Resources, met with A.M.S. 10 times from February through May 1989. His opinion was that A.M.S. had been abused and on cross-examination he stated he believed Jeff was the perpetrator.

Several days after the initial interview with A.M.S., Theresa Kelly spoke with the child again and A.M.S. denied Jeff or anyone else had touched her. Jeff denied touching or abusing A.M.S. He testified he never took her to the bathroom or changed her diapers. He willingly left the home for several days after the allegations of sexual abuse were made and agreed to take a polygraph test, though the test was never administered. Doris testified she awoke one night late in January 1989 and heard Jeff in the family room telling A.M.S. to go back to bed. She assumed the child had been to the bathroom.

Vicki denied coaching A.M.S. to make the sex abuse charges. She testified she did not remember Prairie State Legal Services telling her in 1986 they would not take a custody case unless there were allegations of sexual abuse involved.

Finally, Doris testified A.M.S. sometimes talks about things that have not happened.

Based on all the evidence in the record the circuit court could reasonably conclude Jeff did not abuse A.M.S. The court did not abuse its discretion in making such a finding.

In summary, Vicki has waived the issue of the Kennedys’ standing to petition for custody of A.M.S. The circuit court did not abuse its discretion in awarding permanent custody of A.M.S. to Doris Kennedy. The circuit court of Livingston County is affirmed.

Affirmed.

GREEN and STEIGMANN, JJ., concur.