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      In re MARRIAGE OF ANDREA SCHUSTER, Petitioner-Appellee and Cross-Appellant, and ALAN SCHUSTER, Respondent-Appellant and Cross-Appellee.
    Second District
    No. 2—90—1256
    Opinion filed February 4, 1992.

      llene E. Shapiro, of Chicago, for appellant.
    Timothy M. Daw, of Schiller, DuCanto & Fleck, of Chicago (Sarane C. Siewerth, of counsel), for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

Respondent, Alan Schuster (Alan), appeals from certain portions of the judgment which dissolved his marriage to petitioner, Andrea Schuster (Andrea), who cross-appeals from certain portions of that judgment.

The parties were married on July 31, 1977. Two children were bom to the marriage, namely, Charlie, bom April 19, 1982, and Aaron, bom July 3, 1986. The parties were awarded joint custody of the minor children.

Both parties are college educated. Andrea received a B.S. degree in education from the University of Wisconsin. Alan received a B.S. degree in metallurgical engineering from the University of Wisconsin. In addition, Alan received a J.D. degree from IIT/Chicago Kent law school and was licensed to practice law in 1980. Alan’s law school education was financed through joint marital earnings and a student loan. In addition, Alan’s parents gave him $5,000 which was used to make partial repayment of the student loan.

After being licensed to practice law, Alan worked for two law firms and did legal work on the side. Alan then went to work for Cozzi Iron and Metal as in-house counsel. By 1987, his salary from Cozzi had risen to $80,000 gross per year, and he earned $20,000 by practicing law on the side. By 1987, Andrea, who had begun working for Metropolitan Structure in 1981, was a senior vice-president. Her income is made up of a base salary plus commission. In 1986, she earned in excess of $168,000.

During the summer of 1987, Alan announced that he wished to begin trading commodities. According to Andrea, she was agreeable if it meant Alan would finally be happy doing this type of work. She felt he should try it for a year, which Alan thought was a reasonable amount of time. After the stock market crash in the fall of 1987, she asked Alan to defer his plan for a year, but he assured her that this was a good time to get started in commodities. From their joint funds, Alan took $60,000 which he needed for the security account he was required to keep and another $15,000 to $20,000 to start trading with. According to Andrea, after Alan started trading in January 1988, he would periodically be frustrated with that, and she would remind him that he had agreed to give trading a year’s time.

In March 1988, the parties first discussed getting a divorce. It was not discussed again until August 1988. In September 1988, Andrea initially filed a praecipe for dissolution of the parties’ marriage in Cook County. The cause was transferred to Lake County. Andrea filed a petition for dissolution of marriage in December 1988, and Alan filed a counterpetition for dissolution of marriage in September 1989. The grounds of irreconcilable differences were not contested. Custody and visitation issues were uncontested. The cause went to trial on the issue of division of marital property, spousal and child support and attorney fees. No issue is raised as to the award of attorney fees.

Each party presented an expert witness as to the value of the marital residence located at 1740 Rosemary, Highland Park, Illinois. Fred Eichmann testified on behalf of Andrea. He holds a B.S. degree in investment management, an MBA in finance from Northwestern University and an SRA (senior residential appraiser) designation, meaning that he has had the training to specialize in residential appraisals. He has been appraising real estate for over six years and has done thousands of appraisals. He appraised the property at 1740 Rosemary at $255,000 fair-market value.

Eichmann testified further that the marital residence was a 14-year-old bi-level with six rooms, including three bedrooms and two baths above grade (above ground level). The residence also had a family room on the lower level (the level just below ground level) and a subbasement lower than the family room. In arriving at the appraised valuation, Eichmann utilized three comparables. The first one was three-quarters of a mile away from the marital residence, was of a similar age and lot size and had a recreation room in the lower level. It sold for $250,000. The second comparable was one-fourth of a mile away and sold for $251,500 in July 1989. It was 20 years old and a two-story colonial, but Eichmann was of the opinion that, with the proper adjustments, it was a good indicator of the value of the marital residence. The third comparable was over a mile away from the marital residence, but Eichmann testified that he selected it because it was a tri-level style, which had similar functional utilities with the multilevel aspects. It differed from the marital residence in that it had a family room at grade level behind the garage and there was a subbasement somewhat in the style of the marital residence under the second level. The third comparable sold for $282,500.

Eichmann further testified that he calculated the gross living area of the marital residence to be 2,075 square feet above the grade. He established the first comparable to have 2,050 square feet of living space and the second comparable to have 2,300 square feet. The gross living area of the third comparable was 2,980 square feet, which he derived from information from the Society of Real Estate Appraisers.

Eichmann testified that he had reviewed the comparables relied on by William Schwandt, Alan’s appraiser. The first was located at 337 Sumac, Highland Park. It was a 1920 vintage Tudor-style home. According to Eichmann, he would not have used it as a comparable since older homes have superior construction. The second comparable was located at 1505 Ridge, Highland Park, and was a 1920 vintage center entrance colonial or Georgian style. Although the Ridge home was updated, Eichmann would not have used it as a comparable because there would be considerably more depreciation in an older home than a new one.

On cross-examination, Eichmann testified that the marital residence did not appear to have been decorated in some time and that the appliances appeared to be the originals, although the washer and dryer might be newer. He estimated that the Sumac and Ridge properties were within a mile of the marital residence. Eichmann explained that although he had deducted points in his appraisal based upon the gross living area and the number of rooms, this was not a double deduction, but rather a splitting between the square footage and how he considered the house function. He agreed that the lower level contained a fireplace, a half bath and would be considered a family room rather than a den. According to Eichmann, an MAI designation was higher than an SRA.

On redirect examination, Eichmann testified that his appraisal would not be altered if the trim of the marital residence had been painted in the beginning of 1989. According to Eichmann, the difference between the MAI and SRA designation was that an MAI was qualified to do industrial and commercial appraisals. He described the marital residence as in very average condition.

William Schwandt testified on behalf of Alan. He has been in real estate since 1946 and has an MAI designation, which he received in 1971. He valued the marital residence at $315,000.

Schwandt testified that in arriving at the value he used the aforementioned properties on Sumac and Ridge and a third property located six blocks northwest of the marital residence in Deerfield. He felt proximity was an appropriate criteria for a comparable. Although his comparables were two-story, not bi-levels, there were few bi-levels in Highland Park. He felt the Sumac and Ridge properties were com-parables to the marital residence because even though they were older, they had been updated as had the marital residence.

On cross-examination, Schwandt testified that he had not observed any paint chipping or flaking of the exterior of the marital residence. In choosing his comparables, because of the lack of bi-level-style houses in the area, he, theoretically, cut the marital residence in half and raised one half of it and, then, found comparables. Schwandt agreed that the Sumac property, which sold for $305,000, had a total of 3,364 square feet. According to Schwandt, he would make adjustments due to the variance in square footage but that the adjustments were subjective.

Linda Sizemore, a clinical psychologist, testified that she began treating Alan in September 1988. She diagnosed Alan as suffering from obsessive compulsive personality disorder and depression. Although the depression immediately stems from the dissolution proceedings, Alan has a history of depression. According to Dr. Size-more, Alan has a great deal of difficulty functioning occupationally because of his depression. He suffers from sleeplessness, fatigue, irritability and anxiety, and he has an inability to concentrate. Alan remains under her care.

On cross-examination, Dr. Sizemore testified that she did not know for how long Alan had suffered from depression, but it was present during his marriage. Other than the dissolution proceeding, Alan’s difficulty with his father also triggered periods of depression. Also, difficulties with his employment triggered depression periods.

Dr. Sizemore testified further that therapy-wise Alan is in much the same place as he was in September 1988. He has not emotionally separated from his wife and has not been able to move on. While Dr. Sizemore believed that once the dissolution process was over it would be easier for Alan to move on, he moves more slowly in his therapy than most people do.

Dr. Sizemore testified further that Alan’s depression affects his ability to function as a commodities trader since he has difficulty concentrating. Alan and she determined that he should give trading a chance when he had his full power of concentration before he determined whether it was the right occupation for him. According to Dr. Sizemore, a depressed person can continue to work.

Dr. Sizemore further testified that prior to July 1989 Alan showed small improvement in relating to his children. After July 1989, Alan showed a little improvement. She has never recommended career counseling for Alan.

Andrea testified that Alan and she were married on July 31, 1977. They then moved to Chicago, where Alan attended law school. Andrea worked as a receptionist at the Michigan Avenue Club. In 1982, she was working for Metropolitan Structures as a leasing agent. The parties’ first child, Charlie, was born in 1982, and their second child, Aaron, was born in 1986.

Andrea described her responsibilities as those of the traditional wife-mother, taking care of her children, shopping, meal preparation and cleaning the house, in addition to her job. Alan handled the family finances, did maintenance work around the house and fixed the cars, in addition to his employment.

Andrea further testified that in 1987 the parties discussed Alan’s desire to trade commodities. She indicated to Alan that, if such a move would make him happy, he should do it. She also informed him that, after a reasonable time had passed, she would take time off from work and spend it with their children. Alan began his trading, using their joint funds. When Alan became frustrated with trading, Andrea told him that he had to give it a year. Although divorce was mentioned in March 1988, it was not discussed again until August 1988. They separated permanently in July 1989.

Andrea further testified that, during their marriage, Alan controlled the finances. During the marriage, they took two vacations and did not go out to dinner except to fast-food restaurants. Prior to 1988, they had not gone out to a movie, but had rented them, at first from a video store, but then from the library because Alan did not like spending the money to rent them.

Andrea further testified that since early 1988 she has been paying all of the children’s expenses. A couple of times Alan has paid for the children’s tutor and bought them toys. She also had the marital residence painted and purchased a new stove with Alan’s approval. She also replaced the washer and dryer.

On cross-examination, Andrea testified that her current salary at Metropolitan Structures is $56,000, plus commission. She also receives medical and hospitalization benefits and a retirement plan. The company also put a telephone in her car. Her accountant projected her 1989 income to be $150,000. However, that included commission on a lease which has now fallen through. Since Alan changed careers, she has been the “breadwinner” in the family.

Andrea testified further that in their discussion in March 1988 Alan had told her he did not want to live his life “without passion” and suggested a divorce. However, when she filed for divorce in September 1988, Alan expressed surprise and indicated he wanted to save the marriage.

Andrea testified further that Alan had had problems over the years in dealing with his family, especially his father, and with being successful due to his feelings of rejection from the family business, as well as his identity. He saw Dr. Greenberg. After a few sessions, Alan told her Dr. Greenberg thought he was schizophrenic. Andrea also noted that Alan had had 8 jobs in 11 years. She admitted to being resentful of the fact that Alan had had the ability to change jobs whenever he wanted to if he was not happy with what he was doing. On the other hand, she had had no choice but to work where Alan wanted her to work.

On redirect examination, Andrea testified that she was not aware that Alan received any money from his parents to pay for his law school education. According to Andrea, since the dissolution proceedings were begun, Alan has improved and had told her that he is happier than ever.

Alan testified that, at the present time, he is a futures trader at the Board of Trade in Chicago. At the present time, his seat rental is $150 per month. He plans to rent a GIM or GIAM seat, which would allow him to trade treasury bonds. Alan made an offer of proof that such seats rent for $2,200 to $2,500 per month.

Alan testified to the jobs he held following his graduation from law school in 1980. He first worked for Simmons Refining Company, performing administrative functions, as well as buying and selling futures contracts on the Comex exchange. He then worked for two law firms, but left in 1983 because he did not like the work, and then for Cozzi Steel & Metal as in-house counsel. In the summer of 1986, Alan first mentioned to Andrea that he was interested in trading for a living. Again in fall 1986, he mentioned to Andrea that, because of difficulties at Cozzi Steel & Metal, he thought it would be a good time to make the move to trading. According to Alan, Andrea encouraged him. Following the stock market crash in fall 1987, Andrea expressed doubts as to whether, given the stock market crash, it was a good idea to go into trading. Alan explained that due to the number of traders leaving the business, he would have a better opportunity starting now. According to Alan, Andrea said, “Go for it.”

Alan testified further that he began the trading in January 1988. In March 1988, he expressed to Andrea that perhaps he should reconsider trading, to which she replied that he never committed to any one thing long enough and that he had to give it at least one year. According to Alan, Andrea encouraged him to stick with trading. In September 1988, after Andrea had filed for divorce, she closed the bank accounts and cancelled his credit cards. When he asked her how he was supposed to live, she suggested he close his trading account and live on that. When Alan told her he needed the money in the trading account for security, she told him to find “a real job.”

Alan testified further that certain of his trading losses were related to the dissolution proceedings. He lost $4,800 in August 1988 when Andrea informed him she wanted a divorce. He lost $2,500 during the first three months of 1989 while they were having custody disagreements. He lost $1,500 in September 1988 when he was moving out of and subsequently back into the marital residence. In August 1989, he lost $1,000 when he moved out of the marital residence for the second time.

Alan testified further that he studied engineering in college because his father thought it would be a good background for him in the family business. In his senior year, his father informed him that there would not be a position available for him in the family business, although after he graduated from law school, he worked for his father as a salesman for three months. He did not wish to return to practicing law because he could not handle the pressure. He did do some legal work for friends.

Alan testified further that, in 1986 when Andrea had an opportunity to change jobs, he advised her to do what she thought best but that he thought the move would be great for her. Six months later, when Andrea received another job offer, he told her the same thing.

Alan further testified that in September 1988 he purchased a new 1988 Audi. Andrea at first told him to buy a used car but then stated that he should go ahead and buy it as long as it cost less than her car. Alan also received $60,000 as of July 17, 1989, by court order as an advance against his share of the marital property. It was now down to $50,000. The money was spent for living expenses, bills and some of the children’s expenses. He received a loan of $2,500 from Schuster Metals in December 1988 after Andrea closed the joint bank account.

On cross-examination, Alan testified that the parties own a condominium which is presently rented out for $760 per month on which the monthly assessments are $280 per month. He acknowledged that in July 1989 a court order was entered requiring him to pay the rental check to Andrea and that, after the assessments were paid, the balance was to be deposited into a joint account. Alan admitted that he never gave the rent checks to Andrea and never deposited them in a joint account, as required by the court order. Alan also admitted paying $950 per month for six months for the rental of a house he never lived in.

Alan testified further that after Andrea closed the joint account he lived off funds he maintained in a separate account. However, he could not recall how much money was in the account when he started to draw down on it for living expenses and for certain of the children’s expenses. The parties did stipulate that Andrea had paid the majority of the children’s expenses. Alan also admitted that he also used the rental funds from the condominium to pay his expenses.

Alan further testified that in 1987 when he was working for Cozzi Steel & Metal he was earning $80,000 per year and paying his own expenses, as well as contributing to the family expenses. In January 1988, the parties had approximately $150,000 in savings accounts and in cash. He has made no efforts to obtain full-time employment as either an attorney or engineer since January 1988, although he does practice law on a part-time basis.

Alan testified further that his monthly expenses are $4,627, although at the present time he does not make or spend that much each month. He expected to pay the expenses from savings and working full time. He disagreed that the parties’ lifestyle was fairly modest but described it as “upper middle class yuppy-type.” According to Alan, the parties vacationed every other year in Florida, Mexico or local places. It was his impression that the $60,000 he received via the court order was for living expenses. He admitted taking vacations by himself to Club Med and a skiing vacation in 1989. The trips were paid for with his credit cards.

On redirect examination, Alan testified that he did not live in the home he rented for $950 per month because he moved back to the marital residence following his initial departure. He expected to receive rehabilitative maintenance from Andrea to cover those of his expenses that are not covered by savings or working.

Alan testified further that Andrea would deliver the condominium assessment notices and he would pay them. He has not pursued a position as an attorney because he cannot handle that type of job and it is not in his or his children’s best interests. He never liked engineering as a profession. He enjoys what he is doing now.

Both parties then rested. A hearing on attorney fees was then held.

By letter dated November 15, 1989, the trial court rendered its decision. Only those provisions relevant to the issues raised on appeal will be noted. The trial court denied Alan’s request for rehabilitative maintenance, finding that, although he has an engineering degree, as well as a law degree and a history of gainful employment, he had declined to secure a job paying a regular income. Moreover, the trial court found that, although Alan suffered periods of depression, the evidence did not support a finding that his depression or any other medical condition prevented him from maintaining employment.

The trial court divided the marital property as follows: $211,123 to Alan and $345,083 to Andrea. In addition, Andrea was ordered to pay $75,000 to Alan in order to effect the trial court’s intent to award more of the property to Alan due to his weaker financial position. The issue of child support was reserved, in view of Alan’s negative cash flow and Andrea’s current ability to meet the needs of the children. In valuing the marital residence at $255,000, the trial court found Andrea’s expert to be more persuasive. In the division of the marital property, the trial court credited Alan with the rent from the parties’ condominium, as well as the six months of rent at $950 per month, which he paid for the house he did not live in.

Prior to the entry of the judgment for dissolution of marriage, Alan filed a motion for reconsideration. The trial court ordered the judgment entered, allowed Alan to file his motion and ordered Andrea to file a response to the motion. Andrea filed a response to the motion for reconsideration and filed her own motion for reconsideration. Alan also filed a motion to vacate the judgment for dissolution of marriage alleging that Andrea had fraudulently misrepresented her earnings for 1989.

After considering all motions, the trial court amended the judgment as follows: the sum of $75,000 which Andrea was to pay to Alan was increased to $98,500 to effectuate a division of 55% of the marital estate to Alan; the rent Alan paid for the house he did not live in was not to be considered dissipation; and the net condominium rental credited to Alan was increased to $2,500 to reflect Alan’s failure to account for the condominium rental receipts from July to November 1989. The trial court found that Alan was able to support himself in the manner consistent with the standard of living enjoyed during the parties’ marriage. Certain other modifications to the judgment were made in response to Andrea’s motion for reconsideration, but they are not the subject of this appeal.

On July 24, 1990, a hearing was held on the issue of Alan’s child support obligation. Based upon his past employment history, the trial court imputed to Alan a net income of approximately $70,000 and ordered Alan to pay the sum of $1,000 per month, there being sufficient reasons to deviate from the statutory guidelines. The trial court further ordered that Andrea make an initial payment of $50,000 to Alan of the $98,500 owed to him under the judgment and, thereafter, pay the balance of $48,500 in monthly installments of $1,000 until the entire sum is paid. The child support order was subject for review in August 1995. This appeal by Alan and cross-appeal by Andrea followed.

Alan contends, first, that the trial court’s failure to award him rehabilitative maintenance was against the manifest weight of the evidence.

“A court may award maintenance only if a spouse: ‘(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and (2) is unable to support himself through appropriate employment ***, or (3) is otherwise without sufficient income.’ ” (In re Marriage of Seymour (1990), 206 Ill. App. 3d 506, 509-10.) The policy underlying maintenance awards is that a spouse who is disadvantaged through marriage be enabled to enjoy a standard of living commensurate with that during the marriage. (In re Marriage of Hackett (1986), 113 Ill. 2d 286, 294.) A spouse cannot use self-imposed poverty as a basis for claiming maintenance when he has the means of earning more income. (Seymour, 206 Ill. App. 3d at 510.) The Illinois Marriage and Dissolution of Marriage Act (Act) creates an affirmative duty on a spouse requesting maintenance to seek and accept appropriate employment. (206 Ill. App. 3d at 510.) An award of maintenance to a spouse capable of improving his income can be an abuse of discretion. 206 Ill. App. 3d at 510.

The record in this cause does not support an award of rehabilitative maintenance to Alan. At the time of these proceedings, Alan was 32 years of age. He possesses a college degree in engineering, albeit he disliked engineering as a profession. He also possesses a law degree, but he was unhappy practicing law. He does enjoy his work as a commodities trader but has not as yet been financially successful at it. We note that many of Alan’s trading losses occurred during the time of strife in the dissolution proceedings. These proceedings coming to an end should eliminate those periods of otherwise unexplained losses. We further note that, throughout the hearings in the cause, as well as his brief, Alan emphasized that he not only held full-time demanding jobs but also worked at night doing legal work on the side. Regardless of whether he enjoyed it or not, this demonstrates that he is capable of such employment as will enable him to continue to enjoy the lifestyle he had during his marriage to Andrea. Finally, Alan emphasized that he suffers from a history of severe depression and an obsessive compulsive personality disorder and that his progress in therapy was slow. Dr. Sizemore testified that Alan’s ability to concentrate and to work was affected by his condition. However, while she did not know how long Alan had been suffering from these conditions, Alan had worked continuously and made a good income until he began trading. Moreover, Dr. Sizemore testified that such conditions did not render people incapable of work.

Alan’s reliance on In re Marriage of Teauseau (1989), 185 Ill. App. 3d 22, is misplaced. In that cause, the appellate court reversed a four-year award of maintenance holding that the award of maintenance to the wife should be reviewed periodically rather than automatically terminated at the end of four years. The wife was 46 years of age and had graduated from high school and beauty school. She had not worked for 25 years and suffered from depression. Other than the fact that Alan also suffers from depression, we find no similarities between this cause and the cause at bar.

In In re Marriage of Magnuson (1987), 156 Ill. App. 3d 691, also relied on by Alan, the court stated that where the spouse seeking maintenance can in part provide for herself, the amount of the maintenance award shall be determined by subtracting from the standard of living what the spouse can contribute to her own support. In the cause at bar, the record shows that Alan is capable of supporting himself without the assistance of Andrea, unlike the wife in Magnuson.

Finally, Alan relies on In re Marriage of Seymour. In that cause, the wife, who had a college degree and a teaching certificate, was pursuing a career as a Congregational minister which would pay a lower salary. This court affirmed an award of $750 in maintenance on the basis that her degree was 18 years old, she had never been paid as a teacher and her rent was $675 plus $91 for utilities. The maintenance was ordered reviewed at the end of 30 months. In contrast, Alan has continuously practiced law, albeit part time, and has proved capable of meeting his own needs, without Andrea’s assistance.

We conclude, therefore, that the trial court correctly denied Alan’s request for rehabilitative maintenance.

Next, Alan contends that the order requiring him to pay $1,000 per month in child support was an abuse of the trial court’s discretion.

Alan argues that the trial court made its decision on child support using financial information from the dissolution proceedings rather than granting his motion to compel Andrea to produce current information on her income, asset holdings and liabilities and expenses for herself and the children. Andrea did furnish him with a current pay stub from her employment reflecting her cumulative earnings through mid-July 1990.

Section 505(a)(1) of the Act requires that the court use the statutory percentages as guidelines in determining child support. In this cause, the parties have two children, and the guideline percentage is 25%. (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(1).) Section (aX2) further provides that these guidelines should be followed unless the court, taking into consideration relevant factors, finds a reason for deviating from the guidelines. Among the factors are the financial resources of the child; the financial resources and needs of the custodial parent; the standard of living the child would have enjoyed had the marriage not been dissolved; and the financial resources and needs of the noncustodial parent.

The hearings in this cause which culminated in a judgment for dissolution of marriage ended in November 1989, and a judgment for dissolution of marriage was entered. Six months later a hearing on child support took place. At that hearing, the trial court explained that the focus of the hearing was not on Andrea’s assets, since the trial court was already familiar with the parties’ respective assets, how the marital estate was divided and how visitation with the children was arranged. The delay in settling child support was to give Alan time to improve his cash flow, and, therefore, the sole focus of the hearing was Alan’s ability to make child support payments.

We are satisfied that, given the relatively short period of time between the entry of the judgment and the hearing on child support, as well as the familiarity of the trial court with this cause and its stated purpose for the hearing, Alan was only prevented from interjecting irrelevant issues into a hearing, the focus of which was solely his ability to pay child support.

Alan also argues that the trial court improperly attributed a net income of $70,000 to him even though he had made a “good faith” career change which was not intended to evade his financial responsibility to his family.

In determining whether a change in status was made in good faith, the crucial consideration is whether the change was prompted by a desire to evade financial responsibility for supporting the children or otherwise jeopardize their interests. In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 690.

Alan relies on Hardy, In re Marriage of Webber (1989), 191 Ill. App. 3d 327, and In re Marriage of Kowski (1984), 123 Ill. App. 3d 811. In Hardy, the court found that an employment layoff and an attempt to become self-employed were not attempts to evade financial responsibilities. In Webber, the husband reduced his employment hours and returned to school in order to provide himself with greater earning potential. The reviewing court upheld the trial court’s decision not to increase child support payments as requested by the wife. In Kowski, the husband sought reduction of his maintenance payments based upon his voluntary taking of new employment which paid substantially less than his prior employment. The reasons for the change included new owners of the company for which he worked who had increased his work load without increasing his salary and that this placed his health in jeopardy. Although the trial court denied his petition to reduce, the reviewing court reversed and remanded the cause, determining that there was no evidence showing his new employment was to evade his financial responsibilities.

Alan first made the decision to become a trader in 1987 and started trading in January 1988, prior to even a discussion of a dissolution of the parties’ marriage. The parties agreed that Alan would give trading a year. By the time of the hearing on child support, Alan had been trading for over two years without any appreciable success, although he had proved himself financially successful in other employment endeavors. The trial court had given him an additional six months after the entry of the judgment to adjust his cash flow. Moreover, Alan’s explanation for not practicing law or pursuing an engineering career boiled down to the fact that he does not “like” either of those careers. Alan has not been fired from any job, been passed over for promotion or overworked to the point of his health suffering. He continues to trade because he “likes” it. Nevertheless, from the record in this cause, it is apparent that Alan’s initial decision to become a trader was agreeable to Andrea. In fact, when Alan became discouraged by his lack of success at trading, Andrea encouraged him to stick with it. The fact that he has not been financially successful at it would be significant only if there was evidence that he entered into trading with the desire to evade his financial responsibility to his family or otherwise jeopardize their interests. There is no such evidence in this cause.

Generally, the trial court is in a much better position to make findings as to whether a change in occupation was in good faith. (Hardy, 191 Ill. App. 3d at 690.) We sympathize with the trial court’s dilemma in this cause given the evidence that Alan had been financially successful in other employment endeavors. However, given the fact that Alan entered into trading with Andrea’s consent and prior to any discussion of dissolving their marriage, we must conclude that the trial court abused its discretion in finding that Alan’s career change to trading was not in good faith and in attributing a $70,000 annual net income to him.

Alan finally argues that he should have been excused from paying child support altogether based upon Andrea’s income and economic self-sufficiency. Alan relies on In re Marriage of Reed (1981), 100 Ill. App. 3d 873, and Tilmon v. Tilmon (1979), 74 Ill. App. 3d 111.

In Reed, the reviewing court upheld the trial court’s decision not to require the noncustodial mother to contribute child support for five children in view of her age, lack of training and poor income-earning potential. In Tilmon, this court upheld a trial court decision not to require the noncustodial mother to pay child support where the father’s income was in excess of $150,00 per year and the mother’s was $27,000, $12,000 of which was alimony.

The support of a child is the joint and several obligation of both the husband and the wife. (Tilmon, 74 Ill. App. 3d at 114.) We find the case of In re Marriage of Rai (1989), 189 Ill. App. 3d 559, to be instructive on this issue. In that case, the wife, a physician, earned in excess of $200,000 per year. The husband had several degrees in engineering but left that field to assist the wife in running her practice and invested in several restaurants. The reviewing court noted that the husband's income from the restaurant business was far from clear since he operated on a cash basis and his tax returns did not support his testimony. The reviewing court stated as follows:

“[Wife] also contends that the trial court erred when it failed to determine [husband’s] obligation to support the parties’ two minor children. We agree. Although we are remanding the cause in order that [wife] may receive a more favorable distri-button of the marital assets, it is apparent that [husband] will still receive an award sufficient to support himself and at the same time make a contribution to the support of his children. Moreover, [husband] is an engineer who worked in that field from 1965 to 1975. In 1975, he chose to stop working in the field where he received several degrees and had 10 years’ experience. While [husband] offered evidence that he was unemployable, he also agrees that a father must recognize his obligation to contribute to the support of his children when he has the ability to do so. [Husband] also asserts that he has worked all his life and will continue to do so. We do not believe that because children receive adequate support as a result of one parent’s efforts the other parent is excused from all obligations of support. We direct that the trial court determine the amount of child support [husband] is required to pay.” Rai, 189 Ill. App. 3d at 570-71.

At the hearing on child support, Alan testified that in a six-month period he generated $8,212 in income while incurring $26,262 in expenses resulting in a negative cash flow of $3,000 per month. Alan also testified that roughly $1,800 of his monthly expenses were for the two minor children. He arrived at this amount by dividing his expenses for such things as housing, utilities, insurance, food and clothing on a one-third/two-thirds basis. Alan further testified that he covered the monthly deficit by taking funds out of his checking account or his money market account. He acknowledged that due to the division of assets he will have access to $284,000, including his $60,000 brokerage security account. He testified that he regarded the monthly negative cash flow as “a cost of doing business in the transition associated with this divorce.”

Alan is neither unemployed nor unemployable and fully capable of contributing to the support of his children. Other than Andrea’s financial success, Alan has not demonstrated any basis to support his conclusion that he should not have to pay child support. As was the case in Rai, Alan’s award of marital assets is sufficient to support himself and, at the same time, make a contribution to the support of his children. Therefore, we remand this cause to the trial court for the purpose of conducting a hearing to determine the amount of child support Alan should pay, taking into consideration all of the relevant factors.

Next, Alan contends that the trial court abused its discretion in the division of the marital property.

Alan argues that the trial court erred in establishing a “child support trust” where there was no showing that it was necessary to set aside a portion of his marital property in trust to protect and promote the best interests of the children. Although we are remanding this cause for a new hearing on child support, our discussion of this issue may further guide the trial court in its consideration of the child support issue.

Section 503(g) of the Act permits the establishment of a separate fund or trust for the support of the minor children only if necessary to protect and promote the best interests of the children. (Ill. Rev. Stat. 1989, ch. 40, par. 503(g); see also In re Marriage of Bush (1989), 191 Ill. App. 3d 249; In re Marriage of Bates (1986), 141 Ill. App. 3d 566; In re Marriage of Atkinson (1980), 82 Ill. App. 3d 617.) However, the record in this cause does not reveal that the trial court established a “trust” for the support of the minor children.

In the judgment for dissolution of marriage, the trial court ordered as part of the division of the marital property that Andrea pay the sum of $98,500 to Alan. The payments were structured to provide that Andrea pay the first $50,000 in a lump sum to Alan and, thereafter, $1,000 per month to Alan until the balance of $48,500 was paid in full. Conversely, Alan was ordered to pay the sum of $1,000 per month in child support to Andrea. Although Alan categorizes these provisions as a “wash,” nothing in the language of the judgment relieves one party from making the required payment, even if the other party fails to make his or her required payment, nor is there any language in the judgment describing a trust for child support. Moreover, the judgment further provided that the $48,500 would bear interest at 9% per annum, and nothing prevents Andrea from paying the $48,500 or any part thereof in one lump sum to avoid the interest payment. We, therefore, conclude that contrary to Alan’s assertion the trial court did not create a child support trust.

Alan also argues that the trial court erred in refusing to include Andrea’s “undisclosed” income and EEOC settlement in the division of the marital property. He maintains that the trial court’s expressed intentions to divide the marital estate 55% to Alan and 45% to Andrea was defeated by the trial court’s treatment of certain of Andrea’s assets not disclosed at trial.

Alan argued in his motion to vacate that, during the dissolution proceedings, Andrea led the trial court to believe that her gross income for 1989 would be $150,000 when, in fact, her W-2 for 1989 showed gross income of $174,398.31. Actually, Andrea testified that her accountant had projected her 1989 income to be $150,000, and she had produced a paycheck stub which showed her earnings through September 10,1989.

We note that neither party’s income was included in the calculations of the marital property. Moreover, the trial court expressly stated that it took the points raised in Alan’s motion to vacate into consideration in reassessing the money Andrea was to pay to him. Alan has not therefore established a right to an additional sum of money based upon Andrea’s income for 1989.

Alan further argues that he is entitled to 55% of an EEOC settlement Andrea received. Alan claims he is entitled to 55% of the net settlement amount of $3,369 or $1,853.

Alan concedes that the EEOC settlement was received by Andrea in March 1989. According to Andrea, the settlement amount was deposited in a savings account and, thus, already divided by the trial court in the judgment for dissolution of marriage. The judgment in this cause was entered on December 15, 1989. The trial court disposed of the parties’ motions for reconsideration and Alan’s motion to vacate by order of April 25, 1990. On June 4, 1990, Alan filed a motion for reconsideration of the April 25, 1990, order in which, inter alia, he alleged that Andrea had not disclosed the EEOC settlement. On July 24, 1990, the trial court granted Andrea’s motion to strike Alan’s motion for reconsideration on the basis that the EEOC settlement could have been raised in Alan’s earlier motion for reconsideration.

Alan claims he was not aware that Andrea had received the EEOC settlement until April 25, 1990, when Andrea produced her 1989 tax return during the hearing on attorney fees. He further claimed that it was Andrea’s lack of candor, not his lack of diligence in conducting discovery, that prevented him from raising the issue before.

Assuming, arguendo, that Alan was not aware of the existence of the EEOC settlement until April 25, 1990, the fact that he did not receive $1,853 would not substantially affect the distribution scheme intended by the trial court, and, on that basis, we will not disturb the trial court’s ruling.

Next, Alan contends that the trial court erred in adopting the opinion of Fred Eichmann, Andrea’s expert as to the value of the marital residence.

Conflicts in testimony concerning valuation of assets in an action for dissolution of marriage are matters to be resolved by the trier of fact, and, so long as the valuation of the court was in the range testified to by the expert witness, it ordinarily will not be disturbed on appeal. In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 909-10.

Alan criticizes Eichmann’s appraisal for characterizing the lower level rooms as “basement” rooms in calculating living space and for deducting value because the house had not been painted “in a while” and had not been updated when, in fact, certain appliances had been replaced and the exterior had been painted. He also pointed to the fact that his expert, William Schwandt, had 31 years’ experience, as well as an MAI designation. He also criticizes the comparables chosen by Eichmann.

Since the MAI designation refers to the ability to appraise commercial property, it is of little distinction here where the property is residential. Although Eichmann had been doing appraisals for six years, he testified that he had done thousands of them. He characterized the lower level rooms as “below grade,” yet in calculating the total living area, he had 2,075 square feet of living area as opposed to Schwandt’s 1,947 square feet of living area. Moreover, Schwandt himself testified that, in order to value the house, he treated it as though it had been cut in half and the lower level raised to create a fictional two-story house, with no basement or a ranch-style with a basement. Although certain appliances were new and the house had been recently painted, Eichmann’s testimony was based on how the home appeared to him. Finally, the comparables used by Eichmann were chosen because of their resemblance to the marital residence, as opposed to Schwandt, whose comparables were closer in location but were older and bore no real resemblances to the marital residence.

We therefore conclude that the trial court did not err in adopting Eichmann’s appraisal of the marital residence.

Next, Alan complains that his receipt of $60,000 by order of court in July 1989 was improperly credited against his share of the marital property. He argued that since he had to spend approximately $10,000 of that money for ordinary living expenses, as well as certain of the children’s expenses, the entire $60,000 should not have been credited to him as part of the division of the marital property.

In his brief, Alan recites the language of the order, however, leaving out certain significant language. The order including the language omitted by Alan (emphasis added) in his brief reads in pertinent part as follows:

“(2) That Alan Schuster shall be provided with the sum of $60,000 from the assets of the parties for the purposes of and only for the purposes of buying a residence in the Highland Park area or for the renting of an apartment, condominium or residence. Said funds shall be an advance against any and all property which will be eventually distributed to Alan Schuster pursuant to any judgment of dissolution of marriage entered in this matter either as a result of a trial or by agreement.” (Emphasis added.)

Alan conceded that the trial court was aware at the time of the property distribution that he had utilized the money to pay living expenses.

We fail to follow Alan’s argument on this point. The language of the order is clear that the $60,000 would be credited against his share of the marital assets. The fact that he chose to utilize the money other than as divided by the court does not change the fact that he, not Andrea, had control of the money and spent it as he saw fit. Since the payment of rent or purchasing a house is a “living expense,” the fact that he used the money to pay “living expenses” does not require a different result.

Finally, Alan complains that the trial court erred in finding that he had dissipated $2,500 in rental proceeds for the parties’ Sandburg Terrace condominium.

Alan admitted that he was required by court order to turn the net proceeds over to Andrea to be deposited in a joint account. He further conceded that he did not do so, but argues that he did not because Andrea had closed the parties’ joint accounts. He asserts that he paid the monthly assessments and used the remaining rental money to pay for his personal expenses.

Dissipation of marital assets occurs when a spouse (1) uses marital property (2) for his or her own benefit for a purpose unrelated to the marriage (3) at the time when the marriage is in serious jeopardy or undergoing an irreconcilable breakdown. (In re Marriage of Getautas (1989), 189 Ill. App. 3d 148, 152.) Once it is established that one party has liquidated marital assets, the party charged with dissipation must establish by clear and specific evidence how the funds were spent. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550.) Where a party has dissipated marital assets, the court may charge the amount dissipated against his or her share of the marital property in order to compensate the other party. In re Marriage of Block (1982), 110 Ill. App. 3d 864, 870.

There is no dispute that the rental proceeds were marital property and that the marriage was in serious jeopardy at the time Alan was collecting and spending the rental proceeds. Alan sought to account for the rental funds by testifying that these funds went for the living expenses of himself and the two minor children. However, there was a stipulation that Andrea paid for the majority of the children’s expenses since before the parties’ separation. Although Alan’s check register was admitted into evidence, it primarily reflects credit card payments and payments to his attorney. Failure to explain specifically how money in exclusive control is spent requires a finding of dissipation. (In re Marriage of Los (1985), 136 Ill. App. 3d 26, 32; see also In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 677 (bare assertions by petitioner that funds from the trust account were used to pay necessary expenses during dissolution proceedings permitted a finding of dissipation).) Given that the trial court heard Alan’s rather vague testimony as to how he spent the rental proceeds and was also in a position to consider the check register, we have not been convinced to overturn the trial court’s finding of dissipation.

A property division can be disturbed only upon a showing of an abuse of discretion, which occurs only when no reasonable person would take the view adopted by the trial court. (Partyka, 158 Ill. App. 3d at 550.) The reviewing court may not substitute its discretion for that of the trial court. (Partyka, 158 Ill. App. 3d at 550.) Under these standards, we hold that the trial court did not abuse its discretion in the division of the marital property.

We now turn to the issues raised by Andrea in her cross-appeal.

Andrea contends, first, that the trial court erred in failing to hold Alan accountable for $27,500 he received during the pendency of the proceedings. According to Andrea, Alan had $23,042 in his solely titled First Chicago account when the parties separated in 1988, yet at the time of trial the account held only $1,500. In addition, Andrea argues that the trial court did not take into account the fees Alan collected from his law practice.

Andrea filed a motion to reconsider the April 25, 1990, order which increased from $75,000 to $98,500, the amount of cash Andrea was to pay to Alan. In that motion, Andrea did not raise any issue as to the funds in Alan’s First Chicago account or the sums Alan had received from his law practice. In response to Alan’s second motion for reconsideration, Andrea filed a motion to dismiss but indicated in the motion that should the trial court reopen the cause to consider the issues raised in Alan’s motion for reconsideration, then she would request the trial court to reconsider the issue of Alan’s First Chicago account and his receivables. The trial court denied Alan’s motion for reconsideration and, therefore, never considered Andrea’s dissipation argument as to the above monies.

Questions not raised in the trial court are deemed waived and may not be raised for the first time on appeal. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500.) Moreover, it is quite possible that since the trial court did not find dissipation as to these funds, unlike the condominium rental, then the trial court accepted Alan’s explanation of these expenditures from living expenses for himself and the minor children. Therefore, we will not disturb the trial court’s finding in this regard.

Andrea also argues that the trial court’s division of the marital property on a 55% to 45% basis was an abuse of discretion. After reviewing the record in this cause, and given the respective financial positions both present and potential of the parties, we cannot say that no reasonable man would arrive at the decision reached by the trial court in this cause. (Partyka, 158 Ill. App. 3d at 550.) We therefore find no abuse of discretion on the part of the trial court.

With respect to the award of child support, the decision of the circuit court is reversed, and this cause is remanded for a hearing in accordance with the views expressed in this opinion. The remaining portions of the judgment are affirmed.

Affirmed in part; reversed and remanded in part.

McLAREN and INGLIS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NICKELS

license: Public Domain

text:
    SHARON P. KEATING, Plaintiff-Appellant, v. DOMINICK’S FINER FOODS, INC., Defendant-Appellee.
    Second District
    No. 2—91—0392
    Opinion filed February 6, 1992.

      Richard J. Smith, of Sullivan, Smith, Hauser & Noonan, Ltd., of Wauke-gan, for appellant.
    Dennis M. Cusack and John W. Bell, both of Johnson, Cusack & Bell, Ltd., of Chicago, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

The circuit court granted the motion of defendant, Dominick’s Finer Foods, Inc. (the store), to bar the testimony of the expert retained by plaintiff, Sharon Keating, in this negligence action and, further, granted the store’s motion for summary judgment. Plaintiff appeals, asserting that the court: (1) abused its discretion in barring the testimony of her expert witness, whose identity, opinion and report were disclosed and whom the store deposed; and (2) erred in granting the store’s motion for summary judgment because a genuine question of material fact was presented. We reverse.

On December 5, 1985, plaintiff fractured her ankle in three places when she slipped and fell on a wet floor in the store’s facility located in Crystal Lake. Keating testified at her deposition that on the day of her fall the prior day’s accumulation of snow had completely frozen to ice due to very cold weather. After entering the east door of the grocery store, Keating browsed momentarily in the video department before approaching the shopping carts located just inside the west door. As she approached, another customer entered through the west door and walked toward the shopping carts from the opposite side. Keating noticed brackish colored water standing on the floor just inside the west door. When Keating neared the shopping carts, she fell. Keating testified that she momentarily blacked out and that when she came to her senses she was rolling on the floor in pain. An assistant manager and another customer helped her into a folding chair brought for her, at which time Keating noticed that both her coat and her hands, which she wiped on her coat, were wet. Because of the way her heel had suddenly twisted beneath her, Keating told the assistant manager that she at first thought she had something icy stuck to the heel of her boot.

Keating filed suit alleging that the store negligently failed to install flooring with a surface that did not become unusually slippery when wet and instead installed flooring that the store knew or should have known became unreasonably dangerous when wet. Keating alleged that the store increased the hazard, so created by waxing and buffing the floor and failed to warn Keating of the dangerous condition of the floor. Finally, Keating asserted that the store had breached its duty to exercise ordinary care for her safety on its premises in failing to remove moisture from the floor that the store knew or should have known made the floor unreasonably dangerous.

On December 13, 1989, almost 13 months before the eventual trial date in February 1991, Keating disclosed the name of her expert, Henry Mikolajczyk, and his curriculum vitae in response to the store’s initial Supreme Court Rule 220 interrogatories (134 Ill. 2d R. 220). One month later, the store submitted seven supplemental Rule 220 interrogatories, some of which were the basis of its motion to bar Mikolajczyk’s testimony. Those interrogatories sought Mikolajczyk’s field of knowledge and the subject matter about which he was expected to testify; the identity of all publications on which Mikolajczyk had relied or that were to be used at trial; regulations, etc., or other authority that Mikolajczyk was expected to use or rely on at trial; Mikolajczyk’s income from testifying or consulting as an expert in the preceding two years; witness referral services or publications used by Mikolajczyk; and cases in which Mikolajczyk had consulted or testified, identified by the party who had so employed him. Shortly thereafter, Mikolajczyk’s report setting forth his opinion and the bases for that opinion were provided to the store’s counsel, which satisfied Keating’s obligation to respond to some of the store’s supplemental Rule 220 interrogatories (134 Ill. 2d R. 220(c)(2)).

On July 31, 1990, the store was granted a continuance of the August 6, 1990, trial date to depose Keating’s treating physician regarding a recently diagnosed condition, which was also allegedly caused by her fall. In its motion for continuance, the store represented to the circuit court, as well as to Keating’s counsel, that its Rule 220 interrogatories had been answered and that the only unresolved discovery was a set of non-Rule 220 interrogatories.

Mikolajczyk’s scheduled deposition took place three days later on August 3, 1990. In response to questions asked by the store’s counsel, Mikolajczyk identified the regulations, authority, and publications on which he had relied and responded that he was not a member of any witness referral organization. Mikolajczyk testified that 10% of his time was devoted to consulting or testifying as an expert, with 60% devoted to work performed for plaintiffs and 40% for defendants. Mikolajczyk estimated that he had so worked in over 50 cases, the files for the last seven years of which were available at his office. The store’s counsel did not inquire into Mikolaj-czyk’s income as an expert.

On the first day of trial, the store filed a motion to bar Mikolaj-czyk from testifying for failure to respond to its January 1990 supplemental Rule 220 interrogatories regarding the expert’s prior employment as an expert and income from such employment, which the circuit court granted. The circuit court then granted the store’s motion for summary judgment.

Keating appeals asserting that the circuit court abused its discretion in barring Mikolajczyk from testifying. Because we agree, we also necessarily reverse the circuit court’s grant of summary judgment in favor of the store, which was rendered without consideration of material questions potentially raised by such expert testimony.

Supreme Court Rule 220 requires disclosure of the identity of a party’s experts and the opinions upon which they may be requested to testify (134 Ill. 2d R. 220(a)). Once disclosed, the opposing party may by interrogatory require an expert to state the subject matter of his expected testimony, his conclusions and opinions, the bases for such conclusions and opinions, and the expert’s qualifications (134 Ill. 2d Rules 220(a), (c)(1)(i), (c)(1)(iii)).

We have held that a party’s failure to comply with Rule 220 requires a court to debar an expert from testifying, unless a manifest injustice would result. (Phelps v. O’Malley (1987), 159 Ill. App. 3d 214, 224; see also Oldenburg v. Hagemann (1991), 207 Ill. App. 3d 315, 327 (“trial judge had no alternative but to bar [expert] from testifying”).) Thus, failure to respond, or to properly or sufficiently respond, to Rule 220 interrogatories seeking discovery of an expert’s qualifications will result in debarring of such expert from testifying. See Phelps, 159 Ill. App. 3d at 224; see also Huelsmann v. Berkowitz (1991), 210 Ill. App. 3d 806, 808-10 (disclosure of expert opinion that defendant’s conduct was proper insufficient answer to interrogatory seeking opinions, conclusions, and bases therefore).

An opponent is permitted to inquire on cross-examination during an expert’s testimony into the amount and proportion of income generated from testifying as an expert, as well as the frequency of such testimony and the party for which such testimony is offered. (Trower v. Jones (1988), 121 Ill. 2d 211, 218-20.) Such inquiry safeguards against errant expert testimony by probing the bias, partisanship or financial interest of an expert (Sears v. Rutishauser (1984), 102 Ill. 2d 402, 407), which allows a jury to discount the credibility of the expert’s testimony. (Trower, 121 Ill. 2d at 217.) However, the qualifications of an expert to testify, which are within the disclosure requirements of Rule 220, are distinct from matters of credibility.

An expert witness is one who possesses specialized knowledge beyond that of the average person based on the expert’s education, training or experience (134 Ill. 2d R. 220(a)(1)). The proponent of the expert’s testimony bears the burden of establishing his expert’s qualifications (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 36), which are then subject to cross-examination on voir dire by an opponent prior to a trial court’s decision whether such testimony is admissible or not. (People v. Sawhill (1921), 299 Ill. 393, 407-08; O’Brien v. Meyer (1989), 196 Ill. App. 3d 457, 461-62.) Thus, an expert’s competence to testify depends on his qualifications (Purtill v. Hess (1986), 111 Ill. 2d 229, 242-43; Weekly v. Solomon (1987), 156 Ill. App. 3d 1011, 1014), and, in the context of expert witnesses, qualifications are synonymous with competency. As such, the trial court makes a determination of whether the testimony of an expert witness will be admitted prior to allowing an expert to testify. (Schaffner, 129 Ill. 2d at 36.) In contrast, the credibility of an expert witness is within the province of the jury or trier of fact, not the trial court (In re Glenville (1990), 139 Ill. 2d 242, 251), and is judged by the same rules as that of other witnesses. (Jones v. Consolidation Coal Co. (1988), 174 Ill. App. 3d 38, 47.) Credibility goes only to the weight to be given a witness’ testimony and not to the admissibility of such evidence. See Thompson v. Abbott Laboratories (1990), 193 Ill. App. 3d 188, 199.

Thus, the store’s interrogatories seeking information relative to Mikolajczyk’s financial interest and bias, although propounded as Rule 220 interrogatories, concerned only matters of general witness credibility. As such, Keating’s failure to respond to such inquiry was subject to the general discovery provisions of Supreme Court Rule 201 (134 Ill. 2d R. 201) and within the sanctions provision of Rule 219 rather than Rule 220.

Rule 201(k) requires that every motion with respect to discovery include a statement that reasonable attempts to resolve the differences of the parties have been made prior to seeking court intervention (134 Ill. 2d R. 201(k)). The store’s motion to bar Mikolajczyk’s testimony not only failed to include such statement, but the record is void of any evidence of attempts to obtain answers to its interrogatories. In addition, Keating’s attorney asserts that failure of the store’s counsel to make any attempt to obtain the subject discovery was purposefully calculated to allow invocation of the sanctions contained in Rule 220. Thus, absent a statement indicating an attempt was made to resolve Keating’s failure to respond to the store’s interrogatories seeking information pertaining to issues of Mikolajczyk’s credibility as a witness generally, the store’s motion to bar Mikolajczyk’s expert testimony should have been denied. (See 134 Ill. 2d R. 201(k); Williams v. A.E. Staley Manufacturing Co. (1981), 83 Ill. 2d 559, 566.) In light of this holding, we must also find that the circuit court improperly granted the store’s motion for summary judgment.

Summary judgment is proper only when the pleadings, depositions, and affidavits show that no genuine issue of material fact exists and the moving party is entitled to summary judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005(c); Hagy v. McHenry County Conservation District (1989), 190 Ill. App. 3d 833, 842.) The evidence in the record must be construed strongly against the movant. (Schroth v. Norton Co. (1989), 185 Ill. App. 3d 575.) To prevent entry of summary judgment, an opponent need not prove his case at this preliminary stage, but must only present some factual basis that would arguably entitle him to a judgment under the applicable law. Fuller v. Justice (1983), 117 Ill. App. 3d 933, 939.

Because the circuit court barred Mikolajczyk’s testimony, Keating was unable to offer his affidavit to oppose the store’s motion for summary judgment (James v. Shig Yasunaga (1987), 157 Ill. App. 3d 450, 459), and the circuit court did not have the opportunity to consider whether such affidavit raised a question of material fact preventing summary judgment. Thus, the circuit court’s error in barring Mikolajczyk’s testimony tainted its decision rendering summary judgment in favor of the store as well.

The circuit court’s order barring Mikolajczyk’s testimony and granting summary judgment in favor of the store is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

DUNN and UNVERZAGT, JJ., concur.


author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TODD SCHREMS, Defendant-Appellant.
    Second District
    No. 2—90—0329
    Opinion filed February 4, 1992.

      G. Joseph Weller and Paul J. Glaser, both of State Appellate Defender’s Office, of Elgin, Kathleen T. Zellner, of Kathleen T. Zellner & Associates, of Naperville, and James P. Palermini, of Huck, Bouma, Martin, Charlton & Zellner, P.C., of Glen Ellyn, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Gregory L. Slovacek, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Defendant, Todd Schrems, was indicted in the circuit court of Du Page County on one count of unlawful possession with the intent to deliver more than 15 grams but less than 100 grams of a controlled substance containing cocaine. Following the denial of defendant’s motion to suppress, the trial court found defendant guilty at a stipulated bench trial and sentenced him to a six-year term of imprisonment.

Defendant appealed, and the sole issue he raises on appeal is whether the trial court’s denial of defendant’s motion to suppress evidence was manifestly erroneous.

The following relevant facts were adduced at the hearing on defendant’s motion to suppress evidence. The first witness to testify for defendant was Leo Seiffert. According to Mr. Seiffert, at approximately 6:55 a.m. on April 11, 1989, he was returning home in his automobile. While driving, he came upon a vehicle which had collided with a tree. He observed the driver, whom he identified as defendant, still in the vehicle and suffering from a head injury.

Mr. Seiffert remained next to the driver’s side of the vehicle for about 10 minutes until the police arrived. During that time he did not inspect the vehicle although he had the opportunity to observe the interior of the vehicle. He did not, however, notice any glassware or anything that caught his attention. He could not recall whether the glove compartment was open, nor did he observe any open compartments between the two seats in the automobile. He did not observe anything on the backseat, the front seat or the floor that attracted his attention other than a milk carton on the front floor.

Mr. Seiffert stated that the police arrived about the same time as the ambulance and he left prior to the paramedics completing their treatment of defendant. He was not present for any conversations between the police and defendant.

On cross-examination, he conceded that his attention was directed to the injured driver and he did not know one way or the other if the glove compartment was open. He also admitted that from his vantage point defendant blocked part of his view toward the middle of the vehicle and that he was gone before defendant was removed from the vehicle.

The next witness to testify was Rodney Anderson. On the morning of the accident, Mr. Anderson observed a vehicle cross his driveway and hit a tree. He exited his home, observed the driver to be bleeding, went home to call 911 and returned with a Kleenex for defendant. The driver’s door of the vehicle was open, and he reached in and handed defendant the Kleenex. He remained on the driver’s side of the vehicle but did not look through the window of the rear door on the driver’s side.

According to Mr. Anderson, he was not looking in the car although he did observe some trash and a milk carton on the floor of the vehicle. He did not observe any glassware in the vehicle and did not see any open or closed compartments therein. He was not concerned about anything in the car other than if defendant was coherent. He could not recall if the ambulance or the police arrived first.

Martin Morawski, one of the paramedics who responded to the scene, also testified for defendant. When the ambulance arrived at the scene he observed defendant’s vehicle against a tree with defendant inside. The driver’s door was open, and no one else was in the vehicle. Mr. Morawski went to defendant, assessed his injuries and proceeded to treat him. Mr. Morawski was inside the vehicle to the extent necessary to place a cervical collar on defendant. He could not recall seeing any glassware or narcotics in the vehicle.

According to Mr. Morawski, there were no conversations between defendant and the police between the time he arrived and the time defendant was placed in the ambulance. Nor were there any conversations between the police and Mr. Morawski during the time between defendant being placed in the ambulance and his being transported to the hospital. Mr. Morawski was never told at the scene that defendant was under arrest, and defendant was never told he was under arrest in Mr. Morawski’s presence. He could not recall defendant ever granting anyone permission to search his vehicle.

On cross-examination, Mr. Morawski stated that the only observations he made of the interior of defendant’s vehicle were to see if the steering wheel and windshield were intact and whether defendant was wearing a seat belt. Although he could not recall obtaining any identification from defendant, he assumed that they got defendant’s name and address from him verbally. He added that he never left defendant’s side while at the accident scene. He could not recall a police officer asking defendant for his driver’s license. He stated that police officers were present in the area of defendant’s vehicle while he was treating defendant.

Charles Faivre, another paramedic, also participated in the care and treatment of defendant at the scene. He and Mr. Morawski arrived shortly before the police. According to Mr. Faivre, he never heard defendant grant consent to search his vehicle. There were also no discussions in his presence concerning authorization by defendant to go through the car. He did not believe that at any time defendant told the police to enter his vehicle and take anything out. He could not recall seeing any glassware in the vehicle and did not remember specifically what he saw in the vehicle. He did not see any pipes within the vehicle.

During cross-examination, Mr. Faivre stated he did not really focus his attention on the items in defendant’s vehicle. He recalled clutter in the front seat area although he did not remember what it was.

Following denial of its motion for a directed finding, the State presented its evidence. The first witness to testify was Officer Ron Fuqua of the Wheaton police department. Officer Fuqua stated that upon arriving at the accident scene he observed defendant’s vehicle resting against a tree and defendant seated in the driver’s seat. Defendant was eventually removed from his vehicle by paramedics. While defendant was in the ambulance, Officer McGinley had a conversation with defendant. Officer Fuqua was outside the ambulance, and the paramedics were in the ambulance with defendant and Officer McGinley at the time of the conversation.

Following the conversation between Officer McGinley and defendant, Officer Fuqua entered defendant’s vehicle and located his wallet and driver’s license between the seats. While recovering defendant’s wallet, he observed a console in the dashboard with its door ajar. He observed within the console what looked to him to be a “glass smoking pipe.” While retrieving the glass pipe, he also observed a brown, glass vial containing a white, powdery substance inside the compartment.

Officer Fuqua then checked around the interior of the vehicle and discovered a folded bundle of cash under the driver’s seat with a rubber band around it. He next observed a clear, cellophane bag in an open console between the seats. That bag contained several small pills, a partially burned, hand-rolled cigarette and a small amount of a green, leafy plant substance. He stated that he had training in the area of narcotics paraphernalia and that, based on his prior training and experience, he believed that everything except the cash was paraphernalia for the ingestion of narcotics. After recovering these items, he then searched the entire vehicle. He recovered certain other items which he did not identify.

Subsequent to recovery of these various items from defendant’s vehicle, Officer Fuqua arranged to have the vehicle towed. He stated that the Wheaton police department tows inoperable vehicles. He testified that the Wheaton police department has a policy that requires an officer to check the interior of a vehicle to secure items of value.

On cross-examination, Officer Fuqua conceded that defendant was not under arrest at the time he was placed in the ambulance or at the time the ambulance left. He also admitted that he did not have written consent from defendant to enter the vehicle. He also did not have a warrant when he searched defendant’s vehicle.

Officer Fuqua also stated that he had no verbal or written consent to open any compartments within the vehicle. He reiterated that the console was open to the extent he could observe a glass smoking pipe through the opening although he could not state to what extent the console was open. The initial purpose of his entry into the vehicle was not for towing or inventorying it but rather for obtaining a license. Finally, Officer Fuqua testified that it was his custom and practice to look at the interior of a vehicle whenever it is in an accident.

The other witness for the State was Officer James McGinley of the Wheaton police department. He testified that he had a conversation with defendant in the rear of the ambulance wherein he asked defendant where his driver’s license was. According to Officer McGin-ley, defendant responded that his driver’s license was between the seats of his vehicle, and he asked Officer McGinley to go get it. At that time, Officer Fuqua approached the rear of the ambulance, and Officer McGinley told him where the driver’s license was. Officer McGinley also stated that there were two paramedics in the rear of the ambulance when he discussed with defendant the whereabouts of his driver’s license.

During cross-examination, he admitted that defendant was not yet under arrest when he was in the ambulance. He also had no suspicions at that time that the vehicle contained any contraband. He denied telling Officer Fuqua to search the vehicle.

Following Officer McGinley’s testimony, the defendant moved for a directed finding. After hearing arguments, the court denied the motion to suppress. Defense counsel then pointed out that he had moved for a directed finding and had not yet offered any evidence in rebuttal. The court then denied the motion for a directed finding and allowed defendant to proceed with rebuttal.

The defendant testified on his own behalf in rebuttal. The defendant denied that there were any open compartments on his dashboard following the accident. He had glassware in his glove compartment, but the glove compartment was closed before and after the accident.

The defendant could not recall Officer McGinley entering the ambulance, nor did he recall having any conversation with him regarding whether he had his driver’s license with him. He did not remember Officer McGinley asking him to enter his vehicle or asking him for his driver’s license. He denied ever telling either Officer Fuqua or Officer McGinley to go in his vehicle and get his driver’s license. Furthermore, he never gave them consent to enter his vehicle and never directed them to get his driver’s license. On cross-examination, he described the center console between the two seats as not being a closed compartment. According to defendant, he looked for damage to the interior of his vehicle following the accident, and he specifically remembered inspecting the compartment that Officer Fuqua stated was ajar and that the compartment was closed. The defendant did remember giving the officers his name and address but reiterated not remembering being asked for his driver’s license. The court denied defendant’s motion to suppress.

The court eventually conducted a stipulated bench trial wherein defendant and the State stipulated that the officers, following Officer Fuqua’s observation of the glass smoking pipe, searched the rest of the interior of the vehicle. During that search, the officers discovered a bag containing a substance believed to be cannabis, a razor blade, a box of plastic baggies, and a vinyl tote bag with a large quantity of a white, powdery substance and a scale inside. The parties further stipulated that the white, powdery substance weighed 32.78 grams and tested positive for the presence of cocaine.

The court found defendant guilty and sentenced him to a six-year term of imprisonment. Defense counsel then made an oral, post-trial motion objecting to the denial of defendant’s motion to suppress. The State objected to the motion being oral. The trial court denied the post-trial motion, and defendant filed a timely notice of appeal.

The State initially suggests that defendant has waived consideration of the trial court’s denial of his motion to suppress evidence by only raising the issue in an oral post-trial motion. Defendant responds that the filing of a written, post-trial motion is unnecessary following a bench trial if the error was brought to the attention of the trial court.

Our supreme court, in People v. Enoch (1988), 122 Ill. 2d 176, clarified the necessity of raising alleged errors in a written, post-trial motion. The court held that both a trial objection and a written, post-trial motion raising the issue are required for alleged errors that could have been raised during trial, whether the trial was a bench trial or a jury trial. (Enoch, 122 Ill. 2d at 186-88.) Furthermore, the court held that when a defendant fails to comply with the requirement of filing a written, post-trial motion, the reviewing court is limited to consideration of constitutional issues properly raised at trial and which can be raised later in a post-conviction hearing petition, issues regarding sufficiency of the evidence and plain error. (Enoch, 122 Ill. 2d at 190.) The Enoch court went on to consider the denial of the defendant’s motion to suppress statements made by him after his arrest even though he did not raise the propriety of that denial in a written, post-trial motion. Enoch, 122 Ill. 2d at 192.

In the present case, the defendant raised the issue in an oral, post-trial motion. While an oral, post-trial motion may be sufficient to preserve an issue for review where the State does not object to the oral motion (Enoch, 122 Ill. 2d at 188), here the State objected to the motion being made orally. Therefore, we cannot consider the issue under that exception to the requirement of a written, post-trial motion.

However, we can consider the issue under the constitutional issue exception to the waiver rule. The denial of a defendant’s motion to quash an arrest and suppress evidence is reviewable under Enoch even though a defendant failed to allege the error with specificity in his post-trial motion. (People v. Follins (1990), 196 Ill. App. 3d 680, 691-92.) Consequently, as the question of the denial of defendant’s motion to suppress in this case is of a constitutional magnitude, we will consider it even though it should have been raised in a written, post-trial motion.

We turn then to the issue of whether the trial court properly denied defendant’s motion to suppress evidence. In that regard, defendant argues that the search in this case cannot be justified as an automobile exception under the fourth amendment because the vehicle lacked mobility due to its being not drivable and the owner being unable to drive it. The defendant also maintains that the search is not justifiable under the plain view doctrine because there is conflicting evidence as to whether the police had a right to be in defendant’s vehicle and because the discovery of the evidence was not inadvertent but rather the product of the police custom of looking through vehicles involved in accidents. Additionally, defendant asserts that the search was not a proper inventory search because the police were without authority to take custody and control of his vehicle. Finally, defendant argues that the fruits of any inventory search should be suppressed because an inventory search was a pretext for the police searching his vehicle.

The State responds that the search of defendant’s vehicle was proper because Officer Fuqua’s observation of the glass smoking pipe in defendant’s glove compartment was justified under the plain view doctrine.

We begin our analysis by explaining what is not at issue in this case. This is not a “plain view” case as that term is used in fourth amendment jurisprudence. The plain view doctrine permits the war-rantless seizure of evidence under certain circumstances. (Arizona v. Hicks (1987), 480 U.S. 321, 326, 94 L. Ed. 2d 347, 354, 107 S. Ct. 1149, 1153.) Additionally, if a seizure of an item is justified under the plain view doctrine so is a “search” of that item. (Hicks, 480 U.S. at 326-28, 94 L. Ed. 2d at 354-56, 107 S. Ct. at 1153-54.) In this case, defendant was convicted of unlawful possession of cocaine with the intent to deliver. He was not charged with nor convicted of unlawful possession of the glass smoking pipe seized from his glove compartment. While the plain view doctrine might justify the seizure of the pipe, or an inspection of it, it would not justify, standing alone, any subsequent search of defendant’s vehicle.

We are also careful to emphasize that a search of defendant’s vehicle occurred following the observation of the glass smoking pipe. Defendant and the State stipulated at the bench trial that the officers searched the interior of defendant’s vehicle and discovered a white, powdery substance, a razor blade, plastic baggies and a scale. Furthermore, once Officer Fuqua concluded that the glass smoking pipe constituted paraphernalia used for ingesting narcotics, any observation of additional contraband would be difficult to characterize as “inadvertent” for purposes of a plain view analysis.

We must consider then whether the warrantless search of defendant’s vehicle, following Officer Fuqua’s observation of the glass smoking pipe, was justified under the fourth amendment. A warrantless search of a vehicle is reasonable under the fourth amendment where the police have probable cause to believe the vehicle contains contraband. (United States v. Ross (1982), 456 U.S. 798, 805, 72 L. Ed. 2d 572, 581, 102 S. Ct. 2157, 2162.) Furthermore, the scope of such a warrantless search encompasses every part of the vehicle and its contents that may conceal the object of the search. (Ross, 456 U.S. at 825, 72 L. Ed. 2d at 594, 102 S. Ct. at 2173.) Thus, we must necessarily determine whether Officer Fuqua had probable cause to believe defendant’s vehicle contained contraband. To answer that inquiry, we must first decide the more narrow question of whether Officer Fuqua was lawfully within defendant’s vehicle when he made those observations which did or did not give rise to the probable cause necessary to search defendant’s vehicle. This is so because there is no evidence that Officer Fuqua had probable cause that the vehicle contained contraband prior to his entering it.

We turn then to the question of whether Officer Fuqua lawfully entered defendant’s vehicle in the first instance. In that regard, Officer McGinley testified that he asked defendant where his driver’s license was and defendant responded that it was between the seats of his vehicle and asked Officer McGinley to retrieve it. Officer McGinley in turn advised Officer Fuqua regarding the location of defendant’s driver’s license. Officer Fuqua then entered defendant’s vehicle to obtain the license. Defendant denied telling Officer McGinley where his driver’s license was or requesting him to retrieve it. Additionally, one of the paramedics testified that he did not recall a police officer asking defendant for his driver’s license. The other paramedic stated that there were no discussions in his presence regarding defendant giving anyone permission to go through his vehicle, and he did not believe that at any time defendant told the police to enter his vehicle and remove anything.

The trial court chose to discredit defendant and his witnesses and accept the officers’ version regarding defendant’s driver’s license. At a hearing on a motion to suppress, the trial court’s function is to weigh the credibility of the witnesses and to resolve any conflicts in their testimony. (People v. Lucas (1986), 140 Ill. App. 3d 1, 11.) We will not disturb the trial court’s findings in that regard unless they are against the manifest weight of the evidence. (Lucas, 140 Ill. App. 3d at 11.) Having observed the witnesses, their demeanor, candor and sincerity, the trial court is in a far better position than we are to weigh their testimony. (Lucas, 140 Ill. App. 3d at 11.) There is no basis in the record before us to conclude that the trial court’s decision to believe the officers and disregard defendant’s version of the facts was against the manifest weight of the evidence.

Relying on the fact that defendant told Officer McGinley that his driver’s license was between the seats of his vehicle and that he asked him to get it, we conclude that Officer Fuqua was authorized to be inside of defendant’s vehicle for the purpose of obtaining defendant’s driver’s license from between the seats. Once lawfully inside the vehicle, the officer could develop probable cause based on his observations therein. (See People v. Clark (1989), 185 Ill. App. 3d 231, 239.) We are careful to note that defendant’s authorization of the officers to enter his vehicle to retrieve his driver’s license from between the seats would not justify the police in searching defendant’s vehicle beyond the extent reasonably necessary to locate defendant’s driver’s license. On the other hand, Officer Fuqua was not required to ignore his observations of items which he could readily view from a place he was authorized to be. Again, there is no basis in the record to interfere with the trial court’s conclusion that the glove compartment door was ajar and that Officer Fuqua could view the pipe without opening the door further.

We next address the issue of whether Officer Fuqua’s observation of the glass smoking pipe constituted probable cause to believe the vehicle contained contraband. In that regard, Officer Fuqua testified that he had training in the area of narcotics paraphernalia and that he believed, based on his training and experience, that the glass smoking pipe, among other things, was paraphernalia used for ingesting narcotics.

Our research indicates no Illinois case directly addressing the issue of whether the observation by a police officer of a glass smoking pipe associated with narcotic ingestion is sufficient to give rise to probable cause. There are several cases where the appellate court has held that the presence of drug paraphernalia, along with a substance appearing to be an illicit drug, constitutes probable cause. (See People v. Hill (1988), 169 Ill. App. 3d 901 (probable cause to search based on observation of white powder, scale and numerous small packets); People v. Ledwa (1980), 81 Ill. App. 3d 276 (probable cause to search where officers viewed substance believed to be LSD plus marijuana paraphernalia); People v. Hester (1974), 22 Ill. App. 3d 118 (probable cause to search premised on officers’ observations of hash pipes and marijuana).) Moreover, one appellate opinion has held that a police officer had probable cause to seize and open a tin foil packet which he believed contained narcotics based on his training and experience in the detection of narcotics. People v. Zozak (1981), 101 Ill. App. 3d 590, 592-94.

In People v. Stout (1985), 106 Ill. 2d 77, our supreme court has stated that probable cause for searches and seizures must be determined from the standpoint of the arresting officer, with his skill and knowledge, rather than from the standpoint of the average citizen under similar circumstances. (106 Ill. 2d at 86; see also Texas v. Brown (1983), 460 U.S. 730, 742, 75 L. Ed. 2d 502, 514, 103 S. Ct. 1535, 1543 (trained eye of police officer critical to probable cause determination).) Furthermore, police officers must often act upon a quick appraisal of the data before them, and the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and apprehend criminals. Stout, 106 Ill. 2d at 86-87.

In the present case, Officer Fuqua testified that he observed a glass smoking pipe in the glove compartment of defendant’s vehicle. While such an observation, standing alone, may be insufficient to establish probable cause, it becomes sufficient when combined with Officer Fuqua’s testimony that he had been trained regarding narcotics paraphernalia and that based on his training and experience he believed the pipe constituted paraphernalia used for ingesting narcotics. See Stout, 106 Ill. 2d at 87; see also People v. Wright (1980), 80 Ill. App. 3d 927, 931 (mere observation of hand-rolled cigarette, without evidence of officer’s expertise or ability to identify marijuana cigarette by sight, does not provide probable cause).

Once Officer Fuqua had probable cause to believe the vehicle contained contraband related to narcotics use, he was authorized to search every part of the vehicle and its contents that could have concealed narcotics. (See Ross, 456 U.S. at 825, 72 L. Ed. 2d at 594, 102 S. Ct. at 2173.) Thus, the remaining items discovered by Officer Fu-qua, including the cocaine, were admissible as the fruits of a valid search. Because the search of defendant’s vehicle was based on probable cause to believe it contained contraband, we need not address the issue of whether the search was a proper inventory search.

At this point, we must mention defendant’s argument that the search of his vehicle could not be justified under the automobile exception to the warrant requirement because it was not mobile and he was incapable of driving it at the time of the search. While suggesting an interesting fourth amendment issue, such an argument must fail as the record here does not support defendant’s necessary contention that the vehicle lacked inherent mobility. There is simply no evidence which establishes that defendant’s vehicle was incapable of being driven. The mere fact that it struck a tree does not prove it was incapacitated. Nor does the fact that the police towed the vehicle establish that it was inoperable. The police may have had the vehicle towed for other reasons, such as a desire to remove it from private property or to secure it. Likewise, the mere fact that defendant was removed from the scene in an ambulance does not preclude the possibility that someone else such as a member of defendant’s family or a friend of defendant might have removed the vehicle. Absent evidence that defendant’s vehicle was in fact incapable of being moved, we are in no position to reach the issue of what significance, if any, such immobility has on the automobile exception to the warrant requirement.

For the foregoing reasons, we conclude the order of the circuit court of Du Page County denying defendant’s motion to suppress evidence was not manifestly erroneous and accordingly affirm the judgment of the trial court.

Affirmed.

NICKELS and INGLIS, JJ., concur.