author: JUSTICE STEIGMANN PRESIDING JUSTICE GREEN,

text:
    DOUGLAS MUCK et al., Plaintiffs-Appellants, v. LESTER VAN BIBBER III et al., Defendants-Appellees.
    Fourth District
    No. 4 — 90—0826
    Opinion filed January 16, 1992.
    GREEN, P.J., dissenting.
    Allison & Kelly, of Bloomington (Timothy W. Kelly, of counsel), for appellants.
    Westervelt, Johnson, Nicoll & Keller, of Peoria (Arthur G. Greenberg and Steven L. Pierson, of counsel), for appellees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Plaintiffs, Douglas and Laurie Muck, appeal the dismissal of their amended complaint, in which they alleged they were defamed by defendants, Lester Van Bibber III, Janet Van Bibber, Tena Olmstead, John Olmstead, and Citizens for Justice, Inc. In their complaint, plaintiffs alleged that defendants wrote a letter containing damaging, false statements about them and sent it to the circuit judges of the Eleventh Judicial Circuit when plaintiffs were applicants for the office of associate judge in that circuit. We vacate and remand.

I. Background

In November 1988, defendant Lester Van Bibber III, a spokesman for Citizens for Justice, an Illinois not-for-profit public interest group located in Bloomington, Illinois, and the three other named defendants, sent a letter to all of the circuit judges in the Eleventh Circuit. At that time, both plaintiffs were applicants for an associate judgeship vacancy that the circuit judges in the Eleventh Circuit were going to fill. The letter in question contained the following statement:

“Because we have received so many phone calls regarding alleged unethical improprieties conducted by Douglas and Laurie Muck, Citizens for Justice, Inc. would like to go on record as being vehemently opposed to the acceptance of either Douglas or Laurie Muck for any judicial position in this or any Judicial Circuit.”

In November 1989, plaintiffs filed this defamation action, alleging that defendants defamed them by falsely reporting that they had engaged in unethical conduct. In their complaint, plaintiffs alleged that they resided in Logan County, that Citizens for Justice was a not-for-profit organization registered in Illinois, that plaintiffs publicly applied for the available judgeship, that the circuit judges of the Eleventh Circuit collectively made the appointment, and that defendants sent all of the circuit judges the letter with the above-quoted language. The complaint further alleged the following:

“8. Defendants [sic] allegation was false, known to be false, was made with reckless disregard for it’s [sic] truth or falsity and was motivated by malice calculated to destroy Plaintiffs’] reputation, livelihood, and good standing in the legal community in which [they] practiced law.
9. Plaintiffs] did not receive the appointment to the position of Associate Judge.
10. As a result of Defendant’s [sic] false statement Plaintiffs’] reputation and standing within the legal community has been damaged.”

In January 1990, defendants filed a motion to dismiss under section 2 — 612 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 612 (insufficient pleadings)). Although defendants styled their motion to dismiss plaintiffs’ amended complaint as a section 2 — 612 motion, their motion was in all respects a motion pursuant to section 2 — 615 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615), and it was treated as such by the trial court. Because on appeal the parties do not raise the issue of the mischaracterization of defendants’ motion to dismiss, we will treat that motion as if it had been made pursuant to section 2 — 615 of the Code.

In their motion to dismiss, defendants presented the following 10 arguments as independent grounds to justify the trial court’s dismissal of plaintiffs’ complaint:

(A) privilege;
(B) implied consent;
(C) opinion and fair comment;
(D) political debate;
(E) plaintiffs’ failure to allege facts that show malice;
(F) plaintiff’s failure “to plead with particularity every single item of monetary loss caused by the alleged defamatory language or any loss whatsoever”;
(G) “the communication of which the Plaintiffs complain is non-actionable *** under the guarantees of the 1st and 14th Amendments to the United States Constitution”;
(H) “the communication of which the Plaintiffs complain is non-actionable *** under the guarantees of *** Section 4 of Article I of the Constitution of the State of Illinois”;
(I) “the Complaint is insufficient both in substance and in form contrary to the Illinois Code of Civil Procedure”; and
(J) “the Complaint does not inform the opposite parties of the nature of the claim which they are called upon to meet contrary to the Illinois Code of Civil Procedure.” (Emphasis in original.) (We note parenthetically that we have not unduly edited defendants’ assertions in grounds A through D; the nine words that constitute those four grounds in the above list comprise the full extent of the explanation and analysis defendants provided in their motion to dismiss.)

After a hearing on this motion, the trial court stated its views in the following letter to the parties, a copy of which it placed in the court file:

“I am of the opinion that the Motion to Dismiss should be allowed with prejudice. I do not believe that it is possible for the Plaintiffs to state a good cause of action on the facts alleged in the complaint. I thought that I would write you this in order to tell you my thinking before I enter any docket entry or order in this case. If the Plaintiffs wish to amend, I would be happy to allow them to do so. I would suggest you gentlemen consult with each other and if need be, set up a conference call with me and we can discuss the matter further.” (Emphasis added.)

Thereafter, on August 27, 1990, plaintiffs filed an amended complaint, which did not materially differ from the original complaint except that it included a paragraph alleging that Lester Van Bibber III had filed many groundless reports of unethical conduct against plaintiffs with the Illinois Attorney Registration and Disciplinary Commission. On August 30, 1990, defendants filed a motion to dismiss the amended complaint, which repeated verbatim the arguments defendants had previously asserted in January 1990 as grounds to dismiss plaintiffs’ initial complaint. On November 1, 1990, the trial court made a docket entry that reads, in pertinent part, as follows:

“Matter comes on for hearing on Defendant’s [sic] Motion to Dismiss with prejudice. Defendant’s [sic] Motion to Dismiss with prejudice allowed. Cause continued for written order.”

On November 15, 1990, the trial court then entered the following written order:

“NOW COMES the parties hereto by their Attorneys on the Defendant’s [sic] Motion to Dismiss the Amended Complaint. The Court hearing arguments of counsel and being advised in the premises hereby grants said Motion, and the Amended Complaint is hereby DISMISSED with prejudice for failure to state a cause of action.”

We include these three quotes from the trial court (the letter, the docket entry, and the written order) because they provide us with the only explanation as to why the trial court granted defendants’ motion to dismiss: the trial court “[did] not believe that it is possible for the Plaintiffs to state a good cause of action on the facts alleged in the complaint.” The trial court nowhere indicates what the nature of this deficiency might be. Accordingly, we will address our attention to the complaint to determine if it appears to state a cause of action.

II. Analysis

The supreme court, in Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 504-05, 565 N.E.2d 654, 657, recently wrote the following regarding the sufficiency of pleadings:

“A trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proven which will entitle a plaintiff to recover. [Citations.] When the legal sufficiency of all or part of a complaint is challenged by a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the attacked portions of the complaint are to be taken as true [citation] and a reviewing court must determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted.”

Defamation is the publication of anything injurious to the good name or reputation of another, or which tends to bring him into disrepute. (Van Duyn v. Smith (1988), 173 Ill. App. 3d 523, 535, 527 N.E.2d 1005, 1012.) A statement is defamatory if it impeaches a person’s integrity, virtue, human decency, or reputation and thereby lowers that person in the estimation of the community or deters third parties from dealing with that person. Van Duyn, 173 Ill. App. 3d at 535, 527 N.E.2d at 1012.

Illinois still abides by the distinction between per se and per quod defamation. (See Rosner v. Field Enterprises, Inc. (1990), 205 Ill. App. 3d 769, 789-90, 564 N.E.2d 131, 143.) Per se defamation exists where the statements so obviously injure the plaintiff’s good name or reputation that the plaintiff need prove neither injury nor damages. (Rosner, 205 Ill. App. 3d at 789-90, 564 N.E.2d at 143.) The four categories of statements which constitute per se defamation are the following: (1) those imputing the commission of a criminal offense; (2) those imputing infection with a communicable disease of any kind which, if true, would tend to exclude one from society; (3) those imputing inability to perform or want of integrity in the discharge of duties of office or employment; and (4) those prejudicing a party in his or her profession or trade. Costello v. Capital Cities Communications, Inc. (1988), 125 Ill. 2d 402, 414, 532 N.E.2d 790, 795.

We have analyzed plaintiffs’ complaint in the present case in accordance with the foregoing legal principles, and we are unable to perceive the defect the trial court found in plaintiffs’ complaint so as to support the trial court’s conclusion that the plaintiffs failed to state a sufficient cause of action. We note that defendants in their brief before this court do not even attempt to justify the trial court’s dismissal of plaintiffs’ complaint on the ground of any pleading deficiency, except for defendants’ argument that plaintiffs did not sufficiently plead malice or damages.

The posture in which this case comes before us on appeal is the following:

(1) plaintiffs have pled at least a colorably sufficient complaint for defamation;
(2) defendants’ motion to dismiss plaintiffs’ complaint presented 10 separate arguments as independent grounds for the trial court’s dismissal of plaintiffs’ complaint; and
(3) the trial court dismissed that complaint without providing any explanation as to why.

In their brief to this court, plaintiffs note this posture and indicate that they “are forced to assume that each and every basis for dismissal raised in Defendants’ Motion to Dismiss the Amended Complaint was granted[,] and [they] will now address each issue.” Defendants likewise address each issue in their brief.

We are aware that “a reviewing court may sustain the decision of the trial court on any grounds called for by the record, regardless of whether the trial court made its decision on the proper ground.” (See Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502, 520 N.E.2d 37, 39; see also Frye v. O’Neill (1988), 166 Ill. App. 3d 963, 973, 520 N.E.2d 1233, 1239.) However, this court is not required to search the record to see if we can find some basis to affirm. For the reasons which we explain hereafter, we decline to do so; instead, we believe our more appropriate course of action is to vacate the trial court’s order of November 15, 1990, granting defendants’ motion to dismiss plaintiffs’ amended complaint, and to remand for further proceedings.

We will assume that the trial court had a reason for dismissing plaintiffs’ amended complaint. However, because the trial court nowhere revealed that reason, this court, in order to review the correctness of the trial court’s action, would have to address each of defendants’ 10 independent grounds until we found one upon which we could base our decision to affirm the order of dismissal. If, as we reviewed this record, we found the first nine argued grounds insufficient but the tenth sufficient, we could then render our decision by discussing only the tenth ground. In this hypothetical situation, our review (along with that of the parties) of the other nine grounds would have been a mere waste of everyone’s time.

On the other hand, were we to conclude that none of the 10 argued grounds was appropriate as a basis for dismissing plaintiffs’ complaint, then we would have to discuss all 10 grounds and why each was not an appropriate basis for dismissal before reversing the order of dismissal and remanding for further proceedings. Yet, for all we know, eight or nine of the grounds discussed in our decision may have had no role in the trial court’s decision to dismiss in the first place.

To clarify our concerns, we mention again that defendants argued 10 grounds — A through J — as separate bases for dismissing plaintiffs’ complaint. Assume that the trial court agreed with defendants’ argument regarding grounds C and E and dismissed the complaint based thereon. Assume further that on appeal, this court concluded that the trial court erred in dismissing the complaint on grounds C and E, and reversed and remanded for further proceedings. In this scenario, we are confident that lawyers and judges would find our behavior most strange if, in addition to taking the aforesaid action, we also wrote the following: “Had the trial court granted defendants’ motion to dismiss based upon grounds A, B, D, and F through J (grounds never discussed by the trial court), that action would have been equally erroneous, and we would be reversing those orders as well.”

However strange our action in the above scenario might seem, it is the position this court is placed in by the trial court’s failure to state a basis for its granting defendants’ motion to dismiss plaintiffs’ amended complaint. Returning to our hypothetical, assume that the trial court in the present case granted defendants’ motion to dismiss on the grounds that the allegedly defamatory statements are opinion (ground C) and that they fail to plead malice (ground E). If we were to disagree with the trial court’s determination regarding the appropriateness of those two grounds as a basis to dismiss, then this court will be called upon to address each of the eight other grounds that could have been (for all we know) the basis for the trial court’s order granting defendants’ motion to dismiss, but in fact (if the trial court had only let us know) were not the basis at all. Under these circumstances, our decision regarding these other grounds essentially becomes a series of advisory opinions. In view of the dynamic nature of the law of defamation and the attention given to that area of the law by recent decisions of the United States Supreme Court and the Illinois Supreme Court (see Milkovich v. Lorain Journal Co. (1990), 497 U.S. 1, 111 L. Ed. 2d 1, 110 S. Ct. 2695; Costello, 125 Ill. 2d 402, 532 N.E.2d 790; Mittelman v. Witous (1989), 135 Ill. 2d 220, 552 N.E.2d 973), we should particularly avoid advisory opinions in this area of the law.

Given the present posture of this case on appeal, we conclude that trying to review this case on its merits would be unwise, unwarranted, and wasteful of limited judicial resources. The trial court gave no explanation for its ruling when presented with 10 possible grounds. We decline to review each one of those 10 grounds to see which, if any, might explain the trial court’s action. The trial court could have, and should have, done so itself.

We do not expect our decision in this case to set a precedent that would unduly burden trial courts. Indeed, most trial courts, when ruling on issues of law, not only provide a statement of the grounds for their ruling, but also frequently provide some analysis regarding why they thought those grounds to be applicable.

III. Conclusion

For the reasons stated, we vacate the order entered November 15, 1990, granting defendants’ motion to dismiss plaintiffs’ amended complaint. On remand the trial court is directed to reconsider its decision to allow the motion to dismiss, and, if the court still rules to grant that motion, to state which of the grounds set forth in the motion the court is relying upon. The court may, in its discretion, hear further arguments.

Vacated and remanded with directions.

KNECHT, J., concurs.

PRESIDING JUSTICE GREEN,

dissenting:

I dissent from the decision to vacate the judgment of the circuit court and to remand for the circuit court to articulate the legal reasons for its ruling. I conclude we should decide the question of the sufficiency of the complaint upon the basis of the grounds for dismissal (1) set forth in defendants’ motion to dismiss, and (2) preserved by defendants’ brief as appellees.

When passing upon the propriety of a circuit court order dismissing a complaint where only legal questions are involved, existing precedent places more significance on the issues raised in the circuit court than the general rule permitting their consideration set forth in Estate of Johnson and Frye, cited by the majority.

In Doner v. Phoenix Joint Stock Land Bank (1942), 381 Ill. 106, 45 N.E.2d 20, the circuit court struck a complaint in chancery and eventually dismissed the suit with prejudice. On direct appeal to the supreme court, that court noted that the dismissal order was a general order not setting forth reasons for the ruling. Then, the court stated “[ejvery issue raised by the motion to strike is, therefore, before this court insofar as the same is argued.” (Doner, 381 Ill. at 112, 45 N.E.2d at 23.) The supreme court then went on to consider all those issues and concluded the complaint should not have been dismissed. The supreme court did not directly state that it was required to consider all issues concerning the sufficiency of the complaint which had been properly preserved by the appellees but by stating that those issues were “before” it, that court implied such consideration was required. In any event, this court held that consideration of all such preserved issues was required in Powell v. Village of Mt. Zion (1980), 88 Ill. App. 3d 406, 410 N.E.2d 525.

In Powell, as here, this court faced the question of the scope of review of a circuit court order dismissing a complaint without stating which of the grounds in the motion to dismiss that court was relying on. This court severely criticized the trial court for not so specifying but also stated: “The trial court’s order was general, not specifying any grounds for the decision. Thus we must review every issue raised in the motions and argued on appeal.” (Emphasis added.) (Powell, 88 Ill. App. 3d at 407, 410 N.E.2d at 527.) Doner and Mid-Town Petroleum, Inc. v. Dine (1979), 72 Ill. App. 3d 296, 390 N.E.2d 428, were cited. In Mid-Town Petroleum, the First District Appellate Court, facing the same type of review as in Doner and Powell, stated that, under those circumstances, “we must first consider whether the amended complaint *** was sufficient to state a cause of action under” the statutory provisions relied upon in the motion to dismiss. (Emphasis added.) (Mid-Town Petroleum, 72 Ill. App. 3d at 299, 390 N.E.2d at 430.) In Macie v. Clark Equipment Co. (1972), 8 Ill. App. 3d 613, 615, 290 N.E.2d 912, 913, under similar circumstances, the First District Appellate Court made similar comments and considered issues raised in the motion to dismiss and affirmed the dismissal.

I fully agree with the majority as to the desirability of a circuit judge articulating his reasons for his ruling in dismissing a complaint. The reasoning is an aid to us. The reasoning is also an aid to the pleader, who may be able to replead in such a manner as to avoid the imperfection found by the trial court. However, I do not agree that we would be giving advisory opinions by following the precedent of Powell and the First District Appellate Court decisions I have cited. If we uphold the decision of the circuit court, our decision will dispose of the case. If we reverse, the case can then proceed. The precedent of those cases sets forth specifically the issues which are properly preserved for our review and we do not have to search very far to find them.

While the legal reasons for the rulings by the trial court are helpful to us, we give no deference to them. We have an independent responsibility in deciding questions of law. Those questions are shaped by the complaint which has been dismissed and the grounds for dismissal stated in the motion to dismiss and preserved by the appellees. That will not be changed by an articulation by the circuit court. Economical use of judicial resources requires that we proceed to consider those questions now.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    NANCY A. PERKINS, f/k/a Nancy A. Nelson, for the benefit of Scott Nelson et al., et al., Plaintiffs-Appellants, v. BRENDA STUEMKE et al., Defendants-Appellees.
    Fourth District
    No. 4 — 91—0348
    Opinion filed January 16, 1992.

      G. William Horsley, of Springfield, for appellants.
    Patrick J. Sheehan, of Sheehan & Sheehan, Lawyers, P.C., of Springfield, for appellee Brenda Stuemke.
    Donald M. Craven, of Donald M. Craven, P.C., of Springfield, for other appellees.
   JUSTICE STEIGMANN

delivered the opinion of the court:

This case presents the issue of whether a divorce decree, requiring the former husband to retain his former wife as the beneficiary of his life insurance policy for the benefit of their children, gives rise to a constructive trust on the proceeds of a second, subsequently executed life insurance policy when the former husband allows the first insurance policy to lapse and names a different beneficiary to the second policy. We hold that it does and reverse the trial court’s decision to the contrary.

I. Facts

Terry and Nancy A. Nelson married in 1962. Three children were born to them: Scott in 1965, Nancy L. in 1968, and Teresa in 1970. In 1973, the Nelsons divorced. To obtain the divorce, Terry and Nancy retained the same attorney, who drafted a proposed divorce decree. After a hearing, the court adopted this decree, which contained the following provision:

“[Pjlaintiff [Nancy L. Nelson] shall remain the beneficiary of defendant’s [Terry Nelson’s] John Hancock insurance policy in the amount of $10,000.00, for the benefit of the children.”

The 1973 decree also provided that Terry must pay child support and maintain health insurance for the children. It also expressly barred both parties from ever claiming alimony.

In 1986, Terry Nelson allowed the John Hancock life insurance policy to lapse by failing to pay the premiums. In October 1988, Nancy (now Nancy Perkins) filed a motion for a rule to show cause against Terry for, among other things, his failure to pay child support from 1984 to 1988 and his failure to maintain the John Hancock life insurance policy. In November 1988, the court ordered Terry to pay the past-due child support, but made no order regarding the life insurance.

Meanwhile, in July 1988, the Village of Chatham hired Terry as an electric lineman. As a part of his compensation, Terry received a life insurance policy for $10,000 from the Dearborn Life Insurance Company, with a $10,000 accidental death bonus. Terry, who had remarried, named his second wife’s child, Brenda Stuemke, the beneficiary of this policy. On February 28, 1989, Terry suffered an accidental death, and, on April 24, 1989, Brenda received $20,000 under the Dearborn life and accidental death policy.

On July 24, 1989, plaintiffs filed this action, claiming an equitable interest in the entire $20,000 life insurance proceeds based upon the 1973 divorce decree. Defendants claim to have spent all of the money by purchasing land, paying for the wedding of Brenda’s sister, and paying off debts. After a hearing, the trial court found for the defendants without giving any explanation.

II. A Constructive Trust Arising On Life Insurance Proceeds As A Result Of A Divorce Decree

In general, people may change the beneficiary on their life insurance policies on their own whim if they reserve the right to do so. (Home Insurance Co. v. Hortega (1990), 193 Ill. App. 3d 941, 943, 550 N.E.2d 688, 690; Brunnenmeyer v. Massachusetts Mutual Life Insurance Co. (1978), 66 Ill. App. 3d 315, 318, 384 N.E.2d 446, 448.) A beneficiary’s right to the proceeds of a life insurance policy normally does not vest until the insured dies. (Principal Mutual Life Insurance Co. v. Juntunen (1989), 189 Ill. App. 3d 224, 227, 545 N.E.2d 224, 225.) However, when the beneficiary’s rights vest before the insured changes the beneficiary, courts will impose a constructive trust on the proceeds to ensure the beneficiary’s equitable, vested right to them. (See IDS Life Insurance Co. v. Sellarás (1988), 173 Ill. App. 3d 174, 177- 79, 527 N.E.2d 426, 428-29.) Imposing a constructive trust requires any other party who receives the insurance proceeds, but who has an inferior equitable right to them, to hold the proceeds solely for the vested beneficiary.

Many cases have dealt with situations similar to the present one, wherein a deceased party to a divorce permitted a life insurance policy to lapse by failing to pay the premiums, or changed the beneficiary to the policy, contrary to the requirements of a marital settlement agreement. (See IDS Life Insurance Co., 173 Ill. App. 3d at 179-80, 527 N.E.2d at 429-30; Koenings v. First National Bank & Trust Co. (1986), 145 Ill. App. 3d 14, 17-18, 495 N.E.2d 671, 673-74; In re Schwass (1984), 126 Ill. App. 3d 512, 514-18, 467 N.E.2d 957, 959-61; Appelman v. Appelman (1980), 87 Ill. App. 3d 749, 753-56, 410 N.E.2d 199, 202-04; Brunnenmeyer, 66 Ill. App. 3d at 318-19, 384 N.E.2d at 448-49.) In such cases, the agreement requiring the insured to maintain a particular beneficiary on a policy gives that beneficiary vested rights in the proceeds of that policy. Accordingly, courts have imposed constructive trusts on the proceeds of the deceased’s life insurance because the marital settlement agreement gives the former spouse or children named as beneficiaries in the binding agreement a superior equitable interest in the life insurance proceeds over later named beneficiaries. See IDS Life Insurance Co., 173 Ill. App. 3d at 178-80, 527 N.E.2d at 429-30.

In Appelman, the court faced a situation very similar to the one before us. There, the decedent allowed the original policy to which the marital settlement agreement referred to lapse and obtained a new life insurance policy 16 months after the divorce, naming a different beneficiary to the new policy. (Appelman, 87 Ill. App. 3d at 752, 410 N.E.2d at 201.) As in the present case, the second policy in Appelman arose merely as a fringe benefit of employment, and, as here, the second beneficiary in Appelman did not know of the obligation to maintain the former wife as beneficiary. The court held that none of these facts made the second beneficiary’s equitable interest superior to the equitable interest of the former wife. Appelman, 87 Ill. App. 3d at 754, 410 N.E.2d at 203.

In Schwass, the policy to which the marital settlement agreement referred had lapsed and the decedent had established a new policy with a new beneficiary before the insured’s death. Schwass expressly approved of the result in Appelman, and held that “[t]he fact that the [original] policy in effect at the time of the divorce was not in effect at the time of [the insured’s] death is insignificant.” (Schwass, 126 Ill. App. 3d at 516, 467 N.E.2d at 960.) It was equally insignificant that the dollar amount of life insurance proceeds differed between the two policies. Schwass, 126 Ill. App. 3d at 516, 467 N.E.2d at 960.

Schwass further held that the use of the term “minor children” as opposed to merely “children” limited the insured’s obligation to maintain the children as beneficiaries. (Schwass, 126 Ill. App. 3d at 515, 467 N.E.2d at 960.) In Schwass, the divorce decree required that “the said minor children be named as co-equal irrevocable beneficiaries” of the former husband’s life insurance policies. (Emphasis added.) (Schwass, 126 Ill. App. 3d at 513, 467 N.E.2d at 958.) The court refused to impose a constructive trust for the benefit of one child who had attained majority prior to the insured’s death, but did impose a constructive trust for the benefit of the second child who had not attained majority prior to the insured’s death. Schwass, 126 Ill. App. 3d at 516, 467 N.E.2d at 960.

Accordingly, following the holding in Schwass, if the clause at issue in the present case had read, “Terry shall maintain Nancy as beneficiary for the benefit of the minor children,” or, “for the benefit of the children during their minority,” then Terry’s obligation to maintain life insurance would have ended when the children attained majority. However, because the decree referred to the children without mentioning their age, the decree required Terry to maintain the life insurance policy until, if ever, a court expressly modified the 1973 decree.

We agree with the results of the cases discussed earlier as they bear on the present case. First, the fact that plaintiffs request a constructive trust on a different life insurance policy than the policy named in the divorce decree does not diminish their equitable right to the proceeds of the life insurance policy which listed Brenda as beneficiary. Second, it does not matter that Terry obtained the second policy as a fringe benefit of his employment. Third, it also does not matter that Brenda bears no blame for and had no knowledge that Terry allowed the first policy to lapse. Such a result does not punish Brenda for Terry’s wrongdoing; it merely acknowledges that she holds an inferior equitable interest in the proceeds because of the divorce decree. Finally, the age of the Nelson children does not matter because the divorce decree did not create a limitation based on age when imposing the obligation to maintain Nancy as beneficiary for their benefit.

This case presents two factual twists not present in the previous cases. First, the obligation to maintain the former wife as beneficiary for the children arose as a part of a divorce decree and not a marital settlement agreement. Second, the clause in question states that the former husband shall maintain the former wife as beneficiary, but it does not specifically state that the former husband must maintain the policy. We hold that neither of these factual differences affects the analysis or the result.

With respect to the first difference, both Brunnenmeyer and Appelman stated the following:

“A beneficiary may *** acquire a vested interest in the proceeds of [a] life insurance policy if he gives valuable consideration in return for the promise of the insured that the insured will name him beneficiary. [Citations.] The beneficiary named as a result of such an agreement has an equitable right which will be enforced as against any other named beneficiary except one who has a superior equitable right.” (Emphasis added.) (Brunnenmeyer, 66 Ill. App. 3d at 318, 384 N.E.2d at 448, quoted in Appelman, 87 Ill. App. 3d at 753, 410 N.E.2d at 202.)

Defendants point out that both Appelman and Brunnenmeyer, as well as all other cases on point, involved a marital settlement agreement in which the beneficiary supplied consideration as a part of the marital settlement agreement for the promise of the insured to maintain the beneficiary on the policy. Accordingly, defendants argue that because this case involves a divorce decree and not an agreement, plaintiffs have not supplied the requisite consideration under an agreement to enforce the promise to maintain Nancy as beneficiary for the benefit of the parties’ children.

Although plaintiffs point out that Nancy’s giving up any right to alimony constitutes sufficient consideration, they need not do so. Providing consideration as a part of an agreement constitutes a suffi dent way to vest the beneficiary’s rights, but it is not a necessary condition to vesting those rights. Consideration is only necessary when private parties legally bind each other by contract. When a court imposes an obligation upon a party, no such contractual formalities are necessary or even helpful to make the court’s decree binding; the decree binds the parties to its terms by virtue of the court’s authority. Accordingly, the fact that the obligation came out of a divorce decree and not a marital settlement agreement does not affect the result. The divorce decree created enforceable rights between Terry and Nancy that are just as enforceable as the rights that arise out of marital settlement agreements.

With respect to the second difference this case presents, defendants argue that “the obligation of paying premiums is distinct from the obligation to retain a beneficiary designation.” As such, defendants argue that, although Terry could not change the beneficiary, he could terminate the policy, obtain a new policy, and name a new beneficiary. Of course, the decree could have been more clearly drafted to expressly set forth Terry’s obligation to maintain the policy, as well as his obligation to maintain Nancy as the beneficiary. (We note that the clauses at issue in every other case on point do state both obligations clearly, either by expressly stating that the former husband shall maintain the life insurance (Koenings, 145 Ill. App. 3d at 15-16, 495 N.E.2d at 672; Appelman, 87 Ill. App. 3d at 751-52, 410 N.E.2d at 201; Brunnenmeyer, 66 Ill. App. 3d at 316-17, 384 N.E.2d at 653), or by naming the beneficiaries as “irrevocable beneficiaries” (IDS Life Insurance Co., 173 Ill. App. 3d at 176, 527 N.E.2d at 427; Schwass, 126 Ill. App. 3d at 513, 467 N.E.2d at 958)). However, the obligation to maintain a person as a beneficiary clearly entails the obligation to maintain the policy. Any other construction would render illusory the obligation to maintain a beneficiary. We conclude that the 1973 divorce decree obliged Terry to maintain life insurance for his children’s benefit until and unless a court modified the decree.

III. Equitable Defenses

Defendants also argue that we should not impose an equitable trust on the proceeds because (1) Nancy failed to pursue her claim against Terry in 1988 to maintain her as the beneficiary of the life insurance proceeds, and (2) the doctrine of laches prohibits Nancy from bringing this suit five months after Terry’s death and three months after Brenda received the proceeds of the life insurance policy.

With respect to the first argument, the court’s failure to address some of the relief Nancy requested in her 1988 motion does not deprive her of the right to that relief. We note that the court never expressly denied her motion regarding the life insurance; it simply ruled on the issue of child support and continued the matter for further proceedings. Four months later, Terry died. The court’s failure in the 1988 proceedings to order Terry to maintain life insurance did not lift or modify Terry’s obligation, imposed by the divorce decree, to maintain life insurance. (See Oscar George Electric Co. v. Metropolitan Fair & Exposition Authority (1982), 104 Ill. App. 3d 957, 962, 433 N.E.2d 958, 962 (trial court’s failure to rule on motion is not equivalent to denying it); see also Veterans Travel Club of Western Illinois University v. Illinois Commerce Comm’n (1973), 15 Ill. App. 3d 116, 119, 303 N.E.2d 142, 145.) The court’s inaction in this case does not amount to an affirmative result for either party. Not surprisingly, the primary concern of Nancy’s 1988 motion was to obtain the unpaid child support. Having obtained that relief from the court, the fact that Nancy did not pursue the other relief requested with the same vigor does not bar her claim.

Defendants also argue that Nancy is guilty of laches because she did not aggressively bring this action either in February 1989, when Terry died, or in April 1989, when Brenda received the proceeds, but instead waited until July 1989. We disagree. The delay between the insured’s death and the suit in Brunnenmeyer was two months (March 29 to June 2, 1977), and the delay in Appelman was three months (August 21 to November 22, 1978). No other cases discuss the time interval between the insured’s death and the date of the suit. However, we find nothing unreasonable about the five-month delay between Terry’s death and Nancy’s filing the present suit.

IV. The Amount Of The Constructive Trust

As a final matter, we note that plaintiffs have requested that the court impose a constructive trust on the full $20,000, representing the proceeds from both the $10,000 life insurance policy and the additional $10,000 accidental death provision. However, pursuant to the 1973 divorce decree, plaintiffs hold an equitable interest to $10,000, not the full $20,000 Brenda received.

The Schwass court held that an increase in benefits that occurs after the divorce belonged to the original beneficiary named in the marital settlement agreement because the marital settlement agreement referred to life insurance generally and did not mention any specific dollar amount. (Schwass, 126 Ill. App. 3d at 517, 467 N.E.2d at 961.) However, in the present case, the clause at issue specifically refers to only $10,000 of life insurance. In addition, the original John Hancock life insurance policy did not contain an accidental death provision. The $10,000 accidental death benefit provided $10,000 of the $20,000 that Brenda received. As such, Nancy holds an equitable interest in only $10,000 of the $20,000 that Brenda received under the Dearborn life insurance policy, and she should receive a constructive trust for only that amount.

V. Conclusion

For the reasons stated, we reverse the trial court and remand for further proceedings consistent with this opinion.

Reversed and remanded.

GREEN, P.J., and LUND, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LORI L. RASCHER, Defendant-Appellant.
    Fourth District
    No. 4 — 91—0405
    Opinion filed January 16, 1992.

      George W. May and Richard B. Opsahl, both of Rantoul, for appellant.
    Tony Lee, State’s Attorney, of Paxton (Kenneth R. Boyle, Robert J. Biderman, and Leslie Hairston, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

On December 25, 1990, defendant Lori Rascher was ticketed for the offense of possession of open liquor by a passenger in a motor vehicle. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 502(b).) After a jury trial in Ford County circuit court February 21, 1991, she was found guilty of the offense and fined $100 and court costs. Defendant appeals. She argues the State did not prove beyond a reasonable doubt that she possessed the open liquor found in the vehicle in which she was a passenger. Defendant also argues the court erred by reserving ruling on her motion for a directed verdict at the close of the State’s case. We agree and reverse.

At defendant’s trial, the State presented testimony by Donald Buckley, the Illinois State Police trooper who issued the ticket to defendant. Trooper Buckley was the State’s only witness. He testified that on December 25, 1990, he was sent to a vehicular accident on Illinois Route 9, east of the Village of Elliot. He arrived about a half-hour later and saw two vehicles which had been involved in the accident. One vehicle was completely burned. The other, the one in which the open liquor was found, was a 1983, four-door Oldsmobile Regency. Defendant’s father-in-law owned the Oldsmobile. When Trooper Buckley arrived at the scene, only one person who was involved in the accident was at the scene. Defendant was not present.

According to Trooper Buckley, at least eight emergency vehicles were at the scene when he arrived. He also stated two other individuals who were at the scene had' been following the vehicle in which defendant was a passenger. Also present at the scene were numerous firefighters, who were hosing down the cars involved in the accident. Approximately a half-hour after arriving at the scene, a fireman told Trooper Buckley he had seen a bottle of beer in the Oldsmobile. Trooper Buckley then removed an open, partially full bottle of beer from under the right front passenger seat of the Oldsmobile. He tried to remove a second open bottle of beer from under the driver’s seat, but could not because the bottle was frozen to the floorboard. Trooper Buckley observed that the smell of alcohol permeated the vehicle.

He interviewed defendant several days after the accident. Defendant admitted she was the front-seat passenger in the Oldsmobile the night of the accident. She stated she knew nothing about the bottles of beer. Trooper Buckley conceded there was no evidence defendant drank from either bottle. He explained, however, he issued the ticket to defendant because two open bottles of beer were found in the car and only two individuals were present in the car when the accident occurred.

He agreed the bottle he removed from under the passenger seat would have been difficult for the passenger to reach. However, he also explained, because of the sudden impact of the accident it was impossible to know whether the bottles were located where the bottles had been before the impact.

At the close of the State’s case, defendant sought a directed verdict. The court reserved ruling on the motion. The judge reasoned “[tjhere are a lot of things we don’t know *** based on this evidence.” Defendant presented no evidence or testimony. After discussion about jury instructions, defendant again requested a ruling on her motion for a directed verdict. The judge reserved ruling on the motion until after the jury returned its verdict.

The jury found defendant guilty of illegal possession of alcohol by a passenger in a motor vehicle. (Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 502(b).) The court denied defendant’s renewed request for a directed verdict and fined defendant $100 and court costs. On May 7, 1991, the court denied defendant’s post-trial motion for judgment n.o.v. or, in the alternative, a new trial.

In addressing the culpability of a passenger when open liquor is found in a vehicle, the statute under which defendant was convicted states, with certain exceptions not relevant to this case, as follows: “[N]o passenger may carry, possess or have any alcoholic liquor within any passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.” Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 502(b).

Defendant first argues the State did not prove beyond a reasonable doubt that she possessed the open liquor found in the vehicle. Trooper Buckley testified defendant was not at the scene when he arrived. He did not see defendant in possession of the bottle of beer. The parties disagree about whether defendant had constructive possession of the open liquor.

Defendant argues that to prove constructive possession, the State must show she had the power and intention to possess the open liquor. She notes the following jury instruction read to the jury in her case was submitted by the State:

“A person has constructive possession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing either directly or through another person.”

Defendant argues the State did not meet the threshold set out in its own tendered jury instruction. She contends because, as Trooper Buckley testified, she told him she did not know about the open liquor in the vehicle, she lacked the power and intent necessary to exercise control over the alcohol.

The State contends the statute under which defendant was convicted requires only that the passenger carry, possess, or have open alcohol and does not focus on whether the passenger intends to exercise control over the open liquor. It argues it did not have to show defendant knew alcohol was present. It contends the evidence showed defendant was the only passenger in the front seat. Only two people were present in the vehicle and two open bottles of beer were found in the vehicle. The jury could reasonably have concluded defendant, as the only passenger in the car, possessed one of the two open bottles of beer, i.e., the one under her seat.

Defendant relies on People v. DeVoss (1986), 150 Ill. App. 3d 38, 501 N.E.2d 840, for her contention that section 11 — 502(b) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1989, ch. 951/2, par. 11— 502(b)) does not impose strict liability as to passengers. Rather, absent evidence supporting defendant’s knowledge about the open liquor, she could not be convicted for this offense.

The State correctly contends the facts in DeVoss are distinct from those in this case because in DeVoss, defendant was a front-seat passenger and there were two additional passengers in the backseat. Two open liquor bottles were found in the backseat. (DeVoss, 150 Ill. App. 3d at 39, 501 N.E.2d at 841.) Unlike DeVoss, where there were three passengers and only two open bottles of liquor, in this case there were only two individuals in the car and two open bottles of liquor. According to the State, there is no doubt defendant in this case possessed the liquor as possession is contemplated by the statute.

The DeVoss court ruled that to convict a passenger in a vehicle of possession of open liquor, the State must prove the passenger knew or should have known about the open liquor. There, the Third District Appellate Court explicitly refused to follow a previous ruling made by this district in People v. Graven (1984), 124 Ill. App. 3d 990, 464 N.E.2d 1132, in which we concluded section 11 — 502 of the Code (see Ill. Rev. Stat. 1981, ch. 951/2, par. 11 — 502) called for strict liability when a driver is charged with transporting open liquor. DeVoss, 150 Ill. App. 3d at 39-40, 501 N.E.2d at 841-42.

In addressing the culpability of a driver when open liquor is found in a vehicle, section 11 — 502(a) of the Code states with certain exceptions not relevant to this case:

“[N]o driver may transport, carry, possess or have any alcoholic liquor within the passenger area of any motor vehicle upon a highway in this State except in the original container and with the seal unbroken.” Ill. Rev. Stat. 1989, ch. 951/2, par. 11 — 502(a).

Section 11 — 502 of the Code does not provide the applicable penalty for its violation. (Ill. Rev. Stat. 1989, ch. 95%, par. 11— 502.) In Graven, we reasoned that when traffic laws provide no penalty, the offense is a petty offense which can only be punished by a fine. We further reasoned where a statute does not specify a mental state, section 4 — 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 4 — 9) provides for a conviction without showing defendant had a specific mental state. We concluded section 11 — 502 of the Code was this type of statutory scheme. A driver could be guilty without knowing open liquor was being transported in the driver’s car. (Graven, 124 Ill. App. 3d at 996-97, 464 N.E.2d at 1137.) The Second District Appellate Court has joined us in this reasoning and ruling. People v. Angell (1989), 184 Ill. App. 3d 712, 716-17, 540 N.E.2d 1106, 1108 (the State is not required to prove that defendant, driver of vehicle, had knowledge of open liquor).

Graven and Angelí involved drivers charged with illegally transporting alcohol. The question here is whether we should construe 11 — 502 of the Code differently because a passenger, and not a driver, is charged with possession of open liquor in a moving vehicle. The language used by the legislature in section 11 — 502(a) of the Code, which addresses a driver’s liability, and the language used in section 11 — 502(b) of the Code, which addresses the liability of a passenger, differs only by deleting the liability of a passenger for the transporting of open liquor. It is possible to argue that because the language of the sections is comparable both drivers and passengers should be treated the same. We reject that argument because we believe there is a difference between drivers and passengers.

While the Third District Appellate Court in DeVoss disagreed with the reasoning in Graven, we believe the decisions in Graven and DeVoss are compatible. The combination of driving and alcohol is so dangerous that it reflects a legitimate legislative and social purpose to impose strict liability on a driver, as in Graven, but to require proof of knowledge as to a passenger, as in DeVoss. The passenger who does not know open alcohol is being transported or who does not know there is a flask of liquor under the seat or in the map pocket of a vehicle within easy reach is simply not someone who threatens the public safety or who should be ensnared in the wide net of strict liability. As in DeVoss, we conclude that whether a passenger knew or should have known of the existence of open liquor may be proven by circumstantial evidence and the inferences from that evidence. We believe the statute requires the State to show defendant knew about or intended to possess the open liquor.

The jury instruction submitted by the State defined constructive possession by reference to the power and intention to exercise control over a thing on the part of the defendant. The mental state of intention in this case requires that defendant knew the open liquor was in the car before she could have the intention to exercise control over it.

Defendant cites People v. Upmann (1978), 57 Ill. App. 3d 953, 373 N.E.2d 782, as support for her contention that the State has not established the open liquor was in defendant’s exclusive control because the Oldsmobile was unoccupied at the accident site for over an hour after the accident and before Trooper Buckley found the beer. The Upmann court reasoned the State did not show the liquor was in defendant’s exclusive control because the vehicle was abandoned in an open field for about 21/2 hours before it and the open liquor were discovered. (Upmann, 57 Ill. App. 3d at 954, 373 N.E.2d at 783.) Defendant notes Trooper Buckley testified there were numerous individuals at the site when he arrived. Trooper Buckley also stated he did not know where the liquor bottles may have been located before the impact.

When Trooper Buckley arrived over a half-hour after the accident occurred, firefighters were already hosing down the vehicles, and a number of individuals were at the scene. While the vehicle in this case was not abandoned for a significant period, as in Upmann, it was outside defendant's control and subject to the activities of drivers and occupants of eight emergency vehicles and several citizens from another car. Defendant also notes the driver could have controlled what was placed under the passenger’s front seat.

Defendant’s argument the State failed to prove her guilty beyond a reasonable doubt could only succeed on review if, when considering the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. People v. Nitz (1991), 143 Ill. 2d 82, 95-96, 572 N.E.2d 895, 901; People v. James (1990), 200 Ill. App. 3d 380, 395, 558 N.E.2d 732, 742.

As noted, the jury was instructed the evidence must show she intended to possess the open liquor. The facts do not support the jury’s conclusion the evidence established intent or knowledge on the part of defendant beyond a reasonable doubt. Two open bottles of beer were found in the vehicle in which defendant was a passenger. One bottle was found on the driver’s seat and the other bottle was found under the passenger’s seat, where defendant had been seated. That is simply not enough to prove defendant guilty beyond a reasonable doubt. The accident clearly caused a sudden impact which may have scattered items in the car. The location of the bottle and the smell of an alcoholic beverage permeating the vehicle were sufficient to give the officer probable cause for the issuance of the citation, but without more, they were not enough to convict the passenger.

Defendant finally argues the trial court erred by reserving its ruling on defendant’s request for a directed verdict at the close of the State’s evidence. The State contends it is within the court’s discretion to determine whether to reserve its ruling, and the defendant has the burden of showing how this reserved ruling prejudiced the outcome of the case.

Defendant argues because the judge commented about his personal doubts about whether the evidence established she was guilty, the judge should have granted her motion for directed verdict at the close of the State’s case. She notes the judge stated, “There’s a lot of stuff we don’t know based on this evidence.” She argues the court compromised her right against self-incrimination by reserving ruling on her motion for directed verdict. She cites People v. Trump (1978), 62 Ill. App. 3d 747, 379 N.E.2d 370, for her argument that she should not have had to introduce evidence to prove her innocence without knowing whether the State’s evidence was sufficient to establish her guilt.

The State argues there is no per se rule prohibiting a judge from reserving ruling on a motion for directed verdict at the close of the State’s case. (People v. Faulkner (1978), 64 Ill. App. 3d 453, 457, 381 N.E.2d 321, 324; see also People v. Watkins (1990), 206 Ill. App. 3d 228, 243, 563 N.E.2d 806, 814.) In addition, the State suggests that to show the court erred in reserving its ruling on the motion, defendant must show how the reserved ruling prejudiced her. (Watkins, 206 Ill. App. 3d at 243, 563 N.E.2d at 814.) Here we have concluded the evidence was not sufficient to support the jury’s verdict, and the trial court’s comments suggest it too found the evidence lacking.

A court is compelled to direct a verdict in favor of defendant at the close of the State’s case if, in viewing all evidence in favor of the State, the evidence overwhelmingly favored defendant such that the jury could not have concluded otherwise. (Condon v. American Telephone & Telegraph Co. (1990), 136 Ill. 2d 95, 100, 554 N.E.2d 206, 208; People v. Withers (1981), 87 Ill. 2d 224, 230, 429 N.E.2d 853, 856.) The evidence in this case would have justified a directed verdict, but just as important, the defendant was entitled to a ruling on the motion rather than having to guess as to whether the State had proved its case.

A trial judge should not be allowed to circumvent rules of law by postponing a decision on a proper motion (see In re Dominique F. (1991), 145 Ill. 2d 311). Under section 115 — 4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115— 4(k)), the trial court is obligated to rule on the defendant’s motion for a directed verdict. Here, the trial judge did not rule on the motion at the close of the State’s evidence or at the close of all the evidence, but instead waited until after the jury verdict to deny the motion. To postpone the ruling makes the trial a guessing game for the defendant. The defendant should not have to guess as to whether the State’s evidence was sufficient nor as to whether the trial court expects the defendant to testify. A trial court should not reserve ruling on a motion for directed verdict at the close of the State’s evidence. The practice could be reversible error in some cases.

The State’s evidence was not sufficient to prove the elements of the offense beyond a reasonable doubt.

Reversed.

STEIGMANN and McCULLOUGH, JJ., concur.


author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF HOWARD R. MARTIN, Petitioner-Appellee, and LINDA H. MARTIN, Respondent-Appellant.
    Fourth District
    No. 4 — 91—0400
    Opinion filed January 16, 1992.

      Arnold F. Blockman and Jerome P. Lyke, both of Hatch, Blockman, McPheters, Fehrenbacher & Lyke, of Champaign, for appellant.
    Gary R. Lietz, of Flynn, Palmer, Tague & Lietz, of Champaign, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On February 18, 1987, the circuit court of Champaign County entered an order dissolving the marriage of Howard and Linda Martin. In January 1989, the court awarded Linda $2,000 a month in maintenance for 24 months, subject to review at the end of that time. At the review hearing, the court denied Linda’s petition to extend the maintenance award. Linda appeals, contending the court abused its discretion by placing improper emphasis on the short duration of the marriage. We reverse.

Howard and Linda Martin were married on September 20, 1982. Prior to their marriage, they entered into an antenuptial agreement which specified division of all marital property in the event of a divorce. Linda filed a motion to set aside the antenuptial agreement and a hearing on that motion was held in March 1988. In September 1988, the court made the following findings of fact: Linda and Howard dated for three years prior to the marriage and the signing of the antenuptial agreement; while they were dating, Howard told Linda he had a net worth of approximately $3 million; before entering into the antenuptial agreement, Linda knew Howard was the principal owner of a successful automobile dealership on which a restaurant and grocery store were located, was a director of and owned stock in a bank, and owned a house in Champaign, Illinois, condominiums in Boca Raton, Florida, and Palm Springs, California; Howard’s attorney explained the terms of the agreement to both parties, invited questions about the terms, told Linda she should have the agreement reviewed by another attorney, and directed inquiries to her to confirm the signatures and acknowledgements; and Linda also received Howard’s financial statement.

Based on these findings, the trial court concluded the provisions of the agreement in which Linda waived her right to claim any interest in Howard’s property were enforceable. The court found Linda voluntarily entered into the agreement and she was sufficiently advised as to Howard’s financial affairs such that she could make a knowing election in regard to the property waiver. However, the court noted premarital agreements in which one party waives the right to seek spousal support are disfavored under Illinois law and will not be enforced unless waiver is given in exchange for significant financial consideration. Since at the time the parties entered into the antenuptial agreement Linda received no financial settlement and gave up her right to receive substantial alimony payments from her previous husband, the court granted that part of Linda’s motion which sought a declaration that the provision in which she waived her right to claim maintenance was unenforceable. The court also found Linda’s current earnings did not allow her to maintain a lifestyle consistent with that which she enjoyed during the marriage.

In January 1989, a hearing was held on Linda’s motion for maintenance. Linda was 48 years old, had one son from her first marriage and worked as a sales associate at Robeson’s Department Store. She earned $3.55 an hour and worked only 20 hours per week because of back problems. Linda had a high-school diploma and had taken one college course. She had worked as a stenographer from 1958 to 1960 and as a retail salesperson for approximately eight months in 1982. She had not taken any other courses nor looked for any other jobs since 1982. She received $1,250 a month in unallocated maintenance and support from her first husband until her marriage to Howard.

Linda testified that the parties had traveled extensively between Howard’s three residences, especially during the winter months, as well as taking various other trips. They went out twice a week during the marriage and entertained in their home once every week or two. Linda did not work during the marriage, at Howard’s request, so she would be available to travel with him on business and pleasure vacations. Howard gave her $2,000 a month for expenses during their marriage. During the separation, Linda lived on her salary from Robeson’s and money she had in money market and mutual fund accounts.

On cross-examination, Linda testified Howard made voluntary payments to her totalling approximately $95,000 between 1984 and 1988. Howard also provided her with a car and paid for the gas until 1988. Prior to the entry of the dissolution, he paid for a new roof on an apartment building owned by Linda, paid her real estate taxes and mortgage on property she owned and gave her $10,000 to furnish her own condominium. However, Howard took tax deductions for these items since the parties filed joint tax returns.

Based on this testimony, the court concluded Linda was without sufficient income to provide for herself and was entitled to maintenance. The court found Linda gave up her right to maintenance from her first husband upon her marriage to Howard. The court noted the standard of living during the marriage was lavish, with condominiums in Florida and California, country club memberships and expensive cars. The court found Howard had the ability to pay maintenance and that Linda made no effort to seek additional training or education to be anything other than a salesperson. The court then awarded maintenance in the amount of $2,000 a month, effective January 1, 1989, for a period of 24 months, the award to be reviewed by the court at the end of that time. The court also made the following statement: “I would indicate that there’s every reason to believe that that 24 months may well be the total duration of the maintenance award.” Neither party appealed that judgment.

On March 19, 1991, a hearing was held regarding Linda’s motion to review and extend the maintenance award. Linda testified that since the last court hearing, she had reduced her living expenses from $3,600 to $2,000 a month. She testified that one week after the January 1989 court hearing, she had enrolled in and completed the last three weeks of a five-week real estate course and had become licensed to sell real estate. She took a job with Miller & Miller, Ltd., realtors, as a salesperson in the spring of 1989. In February 1990, Linda left Miller & Miller and acquired a similar position with Prudential Landmark Real Estate Company. She testified she worked at least 40 hours per week, plus showed houses on the weekends. Linda stated she attends seminars and subscribes to publications to keep current in the field. She earned $100 in 1989, $3,700 in 1990, and had not yet earned any money in 1991. At the time of the hearing, however, she had sold one house, which would provide her -with some income after the closing, set for April. Linda stated she received no fringe benefits from her employer and worked strictly on a commission basis. She withdrew $4,000 from her savings to support herself in January and February 1991. Linda had paid her rent for March but had no funds to pay her other monthly bills. Linda’s car was owned by her son-in-law, who made the car payment. Howard’s financial affidavit was stipulated to by the parties and listed his net worth at $4.5 million.

The court concluded Howard’s ability to pay was not an issue. The court noted the duration of the marriage was approximately two years during which time Linda accompanied Howard on trips back and forth across the country for business and pleasure purposes. The court stated Howard voluntarily paid Linda at least $70,000 during the time between the filing of the petition for dissolution of marriage and the granting of that petition. The fact that Linda gave up maintenance from her first husband upon marriage to Howard was acknowledged and the court stated it took that into account when awarding the $2,000-a-month temporary maintenance. Finally, the court concluded Linda made a poor career choice when attempting to enter the real estate business. The court stated:

“I think a fair assessment, for someone who was in then her mid-forties and choosing a career, was that real estate was not a very viable proposition. Even if it was, taking a two-week, basically, training course to prepare oneself for what was going to or potentially might have to be your only source of income doesn’t seem to me to be the sort of attention to career enhancement that is required by the [In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229,] case, among others, in regard to what is and isn’t maintenance. And one of the things that has definitely been indicated is that maintenance is not some sort of annuity, that the person has an obligation to try to better themselves, and Ms. Martin isn’t bettering herself — in fact, she’s going backwards, as far as any sort of income ability. I don’t think the Court can ignore things that are generally known in the community. She could make more working down at McDonalds than she is from her so-called real estate career. ***
She’s not under any handicap. She’s sought no training to advance herself. The career she chose is one that was demonstrably not the sort of career that was going to enhance her ability — and, even in pursuing that, apparently she had one listing for a year. And I say this not to be facetious, but it’s almost like the TV commercial where the Sam’s rug — where the fellow only has one rug to sell and he doesn’t want to advertise because somebody might buy his rug. One house to sell in a year, and apparently two or three the next year, in my opinion, simply is not in keeping with the affirmative obligation of Mrs. Martin to better herself.”

The court noted Howard made the temporary maintenance payments on time and — adding that sum to the money already paid— concluded, “I believe Mr. Martin is paid up for this marriage.” The court denied Linda’s request that the maintenance be extended and she now appeals that order.

An award of maintenance is warranted when the court finds the spouse seeking maintenance lacks sufficient property, including marital property, to provide for her reasonable needs and is unable to support herself. The spouse need not be reduced to poverty before maintenance is appropriate. Further, a spouse is not required to sell off his or her assets or capital in order to maintain the standard of living established by the marriage. (In re Marriage of Kerber (1991), 215 Ill. App. 3d 248, 574 N.E.2d 830.) The recipient of the maintenance award is under an affirmative obligation to seek appropriate training and skills to become financially independent in the future. The failure to make good-faith efforts to achieve this goal, following a reasonable time frame during which the objective should be accomplished, might form the basis for a petition for modification pursuant to section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)). (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229.) An award of maintenance is within the sound discretion of the trial court and will not be reversed on appeal unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 851, 551 N.E.2d 737, 744.

Linda first contends Howard owes her $6,000, representing three maintenance payments for January through March 1991.

The trial court’s order of January 4, 1989, provided, in pertinent part, “I will order [Howard] to pay, effective January 1, 1989, the sum of $2,000 per month, payable on the first day of the month, and to continue for a period of 24 months, to be reviewed by the Court at the end of that time.” On December 12, 1990, Linda filed a petition to review the maintenance award and a hearing on that petition was scheduled for December 31, 1990. However, the docket entry for that date indicates Linda moved for a continuance as her attorney was unable to make the hearing due to inclement weather. The court granted Linda’s motion, over objection by Howard, and continued the cause for March 19, 1991, on which date the petition was denied.

Linda cites this court’s opinion in Kerber (215 Ill. App. 3d 248, 574 N.E.2d 830), and that in In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 512 N.E.2d 30, for the proposition that time-limited maintenance does not terminate at the end of the stated time period but is subject to review at that time. In Kerber, we held the circuit court abused its discretion in failing to make the wife’s maintenance award permanent. We stated:

“[I]t is apparent the court abused its discretion in awarding [the wife] maintenance for a period of one year, even though at that time the court would review the award, and not necessarily terminate it.” (Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.)

In support, we cited Albiani with the parenthetical notation “time-limited maintenance with review does not terminate at the end of the stated time period.” (Kerber, 215 Ill. App. 3d at 253, 574 N.E.2d at 833.) In Albiani, the court, in concluding the amount and duration of the maintenance award was not an abuse of discretion, stated:

“We must consider, too, that at the end of the two-year period, maintenance will not automatically be terminated, but rather will be subject to review at that time.” (Emphasis added.) Albiani, 159 Ill. App. 3d at 525, 512 N.E.2d at 34.

Neither Kerber nor Albiani addressed the issue of whether the right to receive maintenance extends beyond the time period stated in the court’s order. Rather, these cases establish the power of a court to award temporary maintenance for a specific period of time, to review the award at the end of that period, and to determine whether the maintenance award should be extended. We, therefore, reject Linda’s contention that she is entitled to $6,000 representing maintenance payments for January, February, and March 1991.

Linda also contends the court abused its discretion in denying her petition to extend the maintenance award by placing improper emphasis on the duration of the marriage. She further contends the court, by virtue of its comments on January 4, 1989, had already determined that maintenance would not be extended past the 24-month period and that she satisfied her affirmative obligation to find appropriate employment.

Section 504(b) of the Act sets forth seven relevant factors for the trial court to consider when making a determination of the amount and duration of a maintenance award. These factors are (1) the financial resources of the party seeking maintenance, including his or her marital property; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the standard of living established during the marriage; (4) the duration of the marriage; (5) the age and physical and emotional condition of both parties; (6) the ability of the spouse paying maintenance to meet his or her needs while meeting those of the spouse seeking maintenance; and (7) the tax consequences of the property division of the parties. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) No one factor is determinative of the issue concerning the propriety of the maintenance award once it has been determined that an award is appropriate. (In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119.) The factors to be considered in making an award of maintenance are applicable to modification proceedings. In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147.

In looking at the factors set forth in section 504(b) of the Act, at least six of those factors weigh in favor of Linda. First, the evidence established Linda did not have enough resources to meet her financial obligations. She had some funds in money market and mutual fund accounts from which she had been drawing to sustain herself but she is not required to deplete her capital in order to survive. Next, the standard of living during the marriage was extremely lavish and, as Linda testified, quite different than her present situation. Third, Linda was in her early 40’s when she married Howard and late 40’s when they were divorced. She had worked only two years and eight months of her life when she married Howard. Linda also testified she had back problems and there was evidence of emotional problems as well. There is no dispute Howard had the ability to pay maintenance. At the hearing on March 19, 1991, Howard’s net worth was over $4.5 million. Moreover, there is no evidence he will incur any detrimental tax consequences by the maintenance award.

The only factor that seems clearly in Howard’s favor is the duration of the marriage. Howard contends they were married for only two years. In fact, they were married in September 1982 and the dissolution was granted in February 1987, evidencing a 41/2-year marriage. However, even so, this is a marriage of short duration, which is a factor to consider in awarding maintenance. Howard contends the factor relating to the time necessary for Linda to acquire sufficient education and training to find appropriate employment also weighs in his favor. He argues Linda knew, from the time of his filing the petition for dissolution, she needed to seek appropriate employment to become financially independent. Howard refers to the court’s comments regarding Linda’s career choice and success rate in that particular field as evidence she has not made an effort to attain financial independence.

We disagree. The record established Linda, within a short period of time after the hearing awarding her temporary maintenance, enrolled in and completed the last three weeks of a five-week real estate class and passed an examination to become licensed to sell real estate. We note Linda’s limited success in her endeavors, but we disagree with the court’s assessment of her career choice. Linda may not have begun her efforts toward financial independence as soon as she might have; however, given the other factors which weigh in her favor, this delay does not weigh against her.

We note Linda gave up $l,250-a-month maintenance from her first husband upon marriage to Howard. In In re Marriage of Carney (1984), 122 Ill. App. 3d 705, 462 N.E.2d 596, the court considered the fact the wife gave up permanent maintenance upon marriage to the husband as a factor in holding the trial court abused its discretion in awarding her limited maintenance. Although not a statutory factor set forth in section 504(b), such evidence can be considered in determining maintenance. In awarding maintenance, courts have wide latitude in considering what factors should be used in determining reasonable needs, and the trial court is not limited to the factors listed in the governing statute. In re Marriage of Krupp (1990), 207 Ill. App. 3d 779, 566 N.E.2d 429.

After careful consideration of the seven factors set forth in section 504(b) of the Act, and the additional factor of Linda foregoing her right to maintenance from her first husband, we find the circuit court abused its discretion in denying Linda’s petition to review and extend the temporary maintenance award. The circuit court’s decision is reversed and remanded for further determination as to amount and duration of rehabilitative maintenance.

Reversed and remanded.

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