text:
    THE PEOPLE ex rel. SHARON WILLIAMS, Plaintiff-Appellee, v. CHARLES R. WILLIAMS, Defendant-Appellant.
    Fourth District
    No. 4—89—0247
    Opinion filed November 30, 1989.
    Ronda D. Taylor Glenn, of Jennings, Novick, Eggan & Ostling, of Bloomington, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jan E. Hughes, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Is the trial court statutorily barred from imposing a retroactive child support obligation upon a respondent in an ongoing child support proceeding who, contrary to the court’s specific directive, failed to inform the court of his having resumed employment? We hold that the court is not.

In May 1984, petitioner, Sharon Williams (Sharon), obtained a judgment of dissolution of marriage from respondent, Charles Williams (Charles). In December 1984, pursuant to a marital settlement agreement, the court granted custody of the couple’s two minor children to Sharon. At that time, Charles was completely disabled and receiving $564 per month in social security benefits. The court’s supplemental order of December 1984 noted that the children were entitled to receive $282 per month from the Social Security Administration due to Charles’ disability and that this allowance was to be paid to Sharon for the benefit of the children. The question of further child support was reserved pending a substantial change in the financial circumstances or needs of Charles, Sharon, or the children.

In February 1985, Sharon filed a petition to modify child support,, alleging that Charles was employed and earning an income in addition to the social security disability payment. Evidence presented on Sharon’s petition revealed that Charles earned approximately $4,000 from December 30, 1984, to April 20, 1985. In May 1985, Charles was ordered to pay as support, in addition to the social security benefits to be received by his children, the sum of $200 per month for a two-month period. Thereafter, support payments were once again to revert to social security benefits to be paid to the children until such time as Charles resumed employment.

In January 1987, Sharon filed a second petition to modify and also a petition for rule to show cause. Sharon alleged that Charles had again resumed employment but had not notified the court. At the same time, the Illinois Department of Public Aid (the Department) filed a petition to intervene and modify the court’s order. At the hearing held in February 1987 on these petitions, Charles testified that he had done some part-time work in 1985, and had worked full time from July 1 to October 14, 1985. Charles admitted he failed to notify anyone that he had returned to work. The trial court granted the Department’s petition to intervene and also granted the Department’s request that Charles be directed to make payments for the 4V2 months in question in 1985. He was directed to make seven $100 monthly payments, with the first payment to be on March 11, 1987, and a $100 payment to be made on the 11th day of each month until the entire $700 was paid. In rendering judgment, the trial court also stated the following:

“Defendant [Charles] is specifically directed to notify the court within 7 days of resuming any full-time employment. In other words if you go to any sort of full-time employment that you have you have to notify the court about that within 7 days of that taking place. Do you understand that Mr. Williams?
MR. WILLIAMS: Yes.”

At the February 1987 hearing, Charles was questioned by counsel for the Department as follows:

“Q. Mr. Williams, you were present in court back in May, 1985, in this case, is that correct?
A. Yes.
Q. Do you recall the court order that you notify the court when you resumed your employment?
A. Oh yeah.
Q. Do you recall the court indicating that the child support would once again be initiated aside from Social Security payments, once you did inform them?
A. (unintelligible).
Q. Self-support from May 15, 1985, at any point past that date were you fully employed?
A. I’ve been unemployed on a part-time basis (unintelligible) July 1 (unintelligible).
Q. That is 1985, is that correct?
A. Yes.
Q. Did you notify anyone of that resumption of employment then?
A. No I didn’t.
Q. Is there any reason why you didn’t do that?
A. (unintelligible).”

In April 1988, Sharon notified the court by letter that she had been informed by Social Security that Charles had resumed work and that the children’s social security benefits had been terminated, effective November 1987. In her letter, Sharon stated that she had notified the Department in December 1987 of these events, but she had not as of that time received any information regarding a court date. She asked the court to review her case and to establish a support obligation as of the date Charles resumed employment. Sharon also requested that the child support obligation be made retroactive to the date when Charles began employment.

In response to her letter, the trial court scheduled a hearing for June 1, 1988, and directed the circuit clerk to notify both parties. On April 25, 1988, Charles responded to this notice with a letter, requesting that Sharon’s request for a hearing be denied and that all future hearings be heard by another judge. Those requests were denied by a docket entry dated April 28, 1988.

On June 14, 1988, an assistant Attorney General representing the Department filed a petition to intervene and to set support on behalf of Sharon. In October 1988, the court granted that request and conducted a hearing on the Department’s petition to set support. At the hearing, Charles claimed that he had contacted the court on August 11 to inform it that he had resumed work, but he had received no response. In response to this testimony, the trial court entered a specific finding that it did not believe that Charles had contacted the court as he had been ordered to when he resumed employment. The trial court further found that Charles had attempted to avoid Sharon’s demand for child support.

The evidence also showed that Charles resumed full-time employment in August 1987 and began making child support payments of $200 per month in January 1988. The parties agreed that current child support should be set at $234.39 per month based upon 25% of Charles’ net income. The Department, however, argued Charles owed an additional $1,993.71 in child support based on 25% of his net income for the period between August 1, 1987, and September 30, 1988. The trial court agreed with the Department’s argument. The court found that 25% of Charles’ net income between those dates was $3,192.71 and that after Charles was given credit for $1,200 paid for “partial child support” between those dates, the sum of $1,992.71 still remained. The court accordingly entered judgment in favor of Sharon and against Charles in the sum of $1,992.71 and deemed it a judgment representing “the unpaid child support for the period of August 1, 1987, and September 30, 1988.”

Charles argued before the trial court (as he does on appeal) that he cannot be held responsible for any child support payments allegedly accruing prior to October 12, 1988, because no court prior to that date had specifically ordered him to pay any amount of child support. Charles argued that imposing a retroactive child support obligation upon him would be in violation of section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)), which specifically prohibits retroactive modification of orders of support. In support of his argument, Charles cites Ottwell v. Ottwell (1988), 167 Ill. App. 3d 901, 522 N.E.2d 328, Conner v. Watkins (1987), 158 Ill. App. 3d 759, 511 N.E.2d 200, In re Marriage of Jobe (1987), 151 Ill. App. 3d 998, 503 N.E.2d 1146, and Rodgers v. Rodgers (1983), 118 Ill. App. 3d 334, 454 N.E.2d 1153. We believe each of these cases is factually distinguishable from the present one.

In Ottwell, a modification of child support payments was ordered in a hearing conducted solely on the question of whether the respondent was in the indirect civil contempt of court for not complying with the child support order. The salient feature of Ottwell is that at the time the modification was ordered, there was no petition before the court to modify the support payments. Ottwell, 167 Ill. App. 3d at 908-09, 522 N.E.2d at 332-33.

In the instant case, a petition to modify the order for child support, specifically requesting the court to direct respondent to make support payments, was filed in January 1987. Because Charles did not have full-time employment at the time of the February 1987 hearing on that petition, the court did not enter any child support order at the February hearing in response to the petition to modify the order for child support; instead, the court directed Charles to notify the court within seven days of his resuming full-time employment. Because the record is otherwise silent concerning the court’s response to the petition to modify the order for child support, we believe that implicit in the court’s order directing Charles to notify the court within seven days of his resuming employment is the court’s reserving its ruling on that petition. While the better practice would have been for the court to explicitly reserve its ruling, on this record we think the court’s intention is sufficiently clear. As so viewed, the record in this case shows compliance with the requirement of Ottwell that “it is necessary that a petition for modification of a divorce decree regarding child support be filed to invoke subject matter jurisdiction.” Ottwell, 167 Ill. App. 3d at 908, 522 N.E.2d at 332.

In Conner, the parties were divorced in October 1972, and the question of the custody of their children was reserved due to the children’s involvement in proceedings under the juvenile court act. No reference was made in the divorce decree to the issue of child support. In December 1973, the children’s mother obtained custody of the children and moved out of State with them and her new husband. In April 1986, she petitioned the circuit court for an award of current child support and also for reimbursement of support she and her present husband provided to the children while they were in her custody. The trial court denied her request for reimbursement, and this court affirmed on appeal, citing section 510(a) of the Act (Ill. Rev. Stat. 1985, ch. 40, par. 510(a)). Conner, 158 Ill. App. 3d at 760-61, 511 N.E.2d at 201.

We note that in the present case there was a petition for modification that was pending at all pertinent times. While it is true that a modified support order pursuant to that petition was not entered, the failure of the court to enter such an order was due to the wilful violation by Charles of the court’s order requiring him to inform the court when he obtained full-time employment.

In Jobe, the trial court in May 1986 retroactively reduced respondent’s child support obligation by terminating child support for an eight-month period (September 1984 to April 1985) in which the respondent had been disabled. No petition had been filed in 1984 seeking modification of respondent’s child support payments. Citing section 510(a) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 510(a)), this court reversed the trial court and held that “past due child-support payments are a vested right, and reduction relating to a period of time prior to the filing of the petition or motion for modification is error.” Jobe, 151 Ill. App. 3d at 999, 503 N.E.2d at 1147.

In the instant case, however, we are not dealing with any “vested right” of Charles not to have a child support obligation imposed. As a further distinguishing factor, a petition to modify child support and to impose a child support obligation upon Charles had been heard by the court and reserved, pending notification by Charles of his having obtained full-time employment.

In Rodgers, the respondent’s child support obligation was suspended in May 1977 because of personal injuries he suffered in an automobile accident, resulting in the loss of his job. The order suspending child support payments required respondent to notify the court and plaintiff’s counsel when respondent returned to work. In a letter dated September 13, 1977, and filed in the circuit court on September 27, 1977, respondent’s attorney notified the court that respondent was returning to work. A copy of the letter was addressed to plaintiff’s counsel. Despite this notification, for about five years plaintiff did not file a petition seeking the reimposition of a child support order. Even though plaintiff failed to take the necessary steps to modify the support order by having it reinstated, plaintiff sought to have the circuit court award retroactive child support on equitable grounds. The circuit court did so, but on appeal the appellate court vacated that judgment, finding no compliance with section 511 of the Act (Ill. Rev. Stat. 1981, ch. 40, par. 511). Rodgers, 118 Ill. App. 3d at 335-36, 454 N.E.2d at 1153-54.

In the present case, however, Charles directly disregarded the trial court’s order to inform the court of Charles’ having resumed full-time employment.

For purposes of the issue before us, we define the phrase “an ongoing child support proceeding” as a situation in which a court, having jurisdiction of the parties, (1) has before it a petition to either set or modify child support payments; (2) no specific child support order is entered because the respondent, for whatever reason, is viewed by the court as being temporarily without funds to make child support payments; and (3) the court reserves the issue and directs the respondent to notify the court when respondent is able to obtain employment. This definition also includes a situation in which (1) a respondent against whom a child support order has been entered (2) has the order suspended at his request because of a change in his employment circumstances, and (3) the court directs respondent to inform the court when respondent has obtained employment. As so defined, we hold that a circuit court is not statutorily barred from imposing a retroactive child support obligation upon a respondent in an ongoing child support proceeding who, contrary to the court’s directive, has failed to inform the court of his having resumed employment.

We believe this holding to be consistent with the requirements of section 510 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510) as well as section 102 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 102), which directs that the Act shall be liberally construed and applied to promote its underlying purposes. Two of these stated purposes are to “make reasonable provision for spouses and minor children during and after litigation” and to “secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.” (Ill. Rev. Stat. 1987, ch. 40, pars. 102(5), (7).) We think it absurd to believe the legislature intended to permit someone such as Charles to disregard direct court orders and thereby to escape his familial obligations.

If Charles’ position on appeal were correct, then the only remedy available to the trial court to ensure that Charles not disregard his child support obligation would be to require Charles to appear in court on some regular basis, such as weekly, to report on his progress in obtaining employment. While we believe a trial court in its discretion may appropriately take that action, we are not prepared to require every circuit court to do so. The expense, the inconvenience, and the waste of judicial resources which would result from our imposing such a requirement are unacceptable. Given today’s crowded court dockets, the imposition of such a requirement might literally bring efforts to enforce child support obligations to a complete halt. An entirely appropriate alternative is what the trial court utilized in this case: placing a direct affirmative duty upon the respondent to notify the court in whatever fashion the court directs that respondent has obtained employment.

Accordingly, we affirm the judgment of the circuit court.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    JOHN R. ONION, Plaintiff-Appellee, v. CHICAGO AND ILLINOIS MIDLAND RAILWAY COMPANY, Defendant-Appellant.
    Fourth District
    No. 4—89—0275
    Opinion filed November 30, 1989.

      Graham & Graham, of Springfield (Charles E. Holt, of counsel), for appellant.
    William H. Knuppel, of Boggs & Knuppel, P.C., of Havana, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court:

Defendant, Chicago and Illinois Midland Railway Company, appeals (1) the trial court’s decision to give a jury instruction on pain and suffering, and (2) the trial court's refusal of an instruction on the nontaxability of the jury award.

Plaintiff, John R. Onion, a railroad employee, brought a personal injury action against his employer, the defendant, pursuant to the Federal Employers’ Liability Act (FELA) (45 U.S.C. §51 et seq. (1982)). Over defendant’s objection the trial court decided not to instruct the jury that any damages awarded to plaintiff would not be subject to income tax. Defendant similarly objected to the court’s decision to instruct the jury that it may consider plaintiff’s future pain and suffering. Defendant claims that no evidence of plaintiff’s pain and suffering was presented at trial.

The trial court’s decision to give or to refuse a jury instruction must be affirmed if the court’s decision was correct on any ground. A correct decision must be affirmed even if based on an incorrect reason. Kingston v. Turner (1987), 115 Ill. 2d 445, 455-56, 505 N.E.2d 320, 324; Pioneer Hi-Bred Corn Co. v. Northern Illinois Gas Co. (1975), 61 Ill. 2d 6,14, 329 N.E.2d 228, 231.

The United States Supreme Court dealt with the issue of whether it was error to refuse to instruct a jury on the nontaxability of the jury’s award in Norfolk & Western Ry. Co. v. Liepelt (1980), 444 U.S. 490, 62 L. Ed. 2d 689, 100 S. Ct. 755. Specifically, the Court stated:

“Although the law is perfectly clear, it is entirely possible that the members of the jury may assume that a plaintiff’s recovery in a case of this kind will be subject to federal taxation, and that the award should be increased substantially in order to be sure that the injured party is fully compensated. The Missouri Supreme Court expressed the opinion that ‘it is reasonable to assume the average juror would believe [that its verdict will] be subject to such taxes.’ Dempsey v. Thompson, 363 Mo. 339, 346, 251 S.W.2d 42, 45 (1952).” Liepelt, 444 U.S. at 496-97, 62 L. Ed. 2d at 695, 100 S. Ct. at 759.

The Court further held:

“[I]t was error to refuse the requested instruction in this case. That instruction was brief and could be easily understood. It would not complicate the trial by making additional qualifying or supplemental instructions necessary. It would not be prejudicial to either party, but would merely eliminate an area of doubt or speculation that might have an improper impact on the computation of the amount of damages.” Liepelt, 444 U.S. at 498, 62 L. Ed. 2d at 696, 100 S. Ct. at 759-60.

Liepelt was brought pursuant to the FELA and concerned a wrongful death claim. However, Liepelt is not limited to wrongful death cases. See Oltersdorf v. Chesapeake & Ohio R.R. Co. (1980), 83 Ill. App. 3d 457, 404 N.E.2d 320, where the holding in Liepelt was applied to an FELA personal injury action. Both Liepelt and Oltersdorf held that the trial court’s failure to give this instruction warranted reversal. Oltersdorf, 83 Ill. App. 3d at 464, 404 N.E.2d at 325.

Although FELA actions may be brought in either State or Federal court, Federal law controls as to instructions on damages. (Liepelt, 444 U.S. at 493, 62 L. Ed. 2d at 693, 100 S. Ct. at 757.) However, cases based solely on Illinois law are not entitled to a Liepelt instruction. Klawonn v. Mitchell (1985), 105 Ill. 2d 450, 456, 475 N.E.2d 857, 860.

Since the instant case is based on Federal law, the Liepelt instruction should have been given to the jury. The trial court’s failure to do so was reversible error.

The second issue on appeal concerns the trial court’s decision to instruct the jury as to the plaintiff’s future pain and suffering. “Some evidence” on this point from either an expert or a layperson warrants the giving of a jury instruction. (Harvey v. Norfolk & Western Ry. Co. (1979), 73 Ill. App. 3d 74, 81, 390 N.E.2d 1384, 1388;

McNealy v. Illinois Central R.R. Co. (1963), 43 Ill. App. 2d 460, 475, 193 N.E.2d 879, 888.) The testimony regarding plaintiff’s future pain and suffering is as follows:

“Q. Now from January fourth to the time you returned to work, how many of those days would you say you experienced pain as compared to days you didn’t experience pain?
A. Every one of them.
Q. And how would you describe the severity of the pain you experienced?
A. It slowly kept getting worse.
Q. And where did you have the pain?
A. In the back of my neck, my shoulders and in my left arm.
Q. Is there anything about the accident you sustained on January 4,1987, that still [a]ffects you here today?
A. Yes, it does.
Q. In what way?
A. Well one when I sit. My arm, my fingers, the back of my arm, right in through here, most of this finger, and back side of this will start getting numb.
Q. What else, if anything]?]
A. After sitting for a while I get burning in the back of my neck.
Q. Where about exactly?

A. Right toward the base of my neck and in my shoulder.” Plaintiff later testified to the following:

“Q. Mr. Onion do you use your back, neck and left arm the same as you did prior to January 4,1987?
A. No, I don’t. I take it a lot easier now than what I use to.
Q. Why is that?
A. Any heavy lifting now or anything that I do that [is] strenuous causes a pain in my neck, causes numbness [to] start in my left arm and in my two fingers.”

In addition, defendant’s expert, John Meyer, M.D., testified as follows:

“Q. Doctor there are many back and neck injuries that manifest themselves for months and months and even years in some people, isn’t that correct?
A. That is possible.
Q. And in between the times that they show up, people appear to be in pretty good shape, don’t they?
A. That is conceivable. I would imagine. Usually by the
time they get well for any period of time it is usually another injury.
Q. It is easy to reinjure yourself after you have [been] hurt.
A. It is possible.
Q. In fact he has had back and neck injuries in the past.
A. He did.
Q. It wouldn’t be hard to believe Mr. Onion’s back and neck would be subject to reinjury?
A. That is possible.”

Illinois case law provides very little guidance as to the degree of proof that constitutes “some evidence” required for a pain and suffering instruction. In two decisions, expert testimony as to the permanence of the pain caused by the accident was held to meet this standard. Harvey, 73 Ill. App. 3d at 81, 390 N.E.2d at 1388; McNealy, 43 Ill. App. 2d at 475,193 N.E.2d at 888.

The only expert testimony which clearly addresses the permanence of plaintiff’s injury is Dr. Meyer’s testimony that reinjury of plaintiff’s back and neck was possible. Nonexpert testimony concerning plaintiff’s future pain and suffering was elicited from plaintiff himself. Illinois law does not require that the evidence supporting a jury instruction on future pain and suffering be only in the form of expert testimony, and we see no reason to change this rule of law. Jurors are capable of properly evaluating a plaintiff’s testimony as to pain and suffering, and they will no doubt take into account a plaintiff’s interest in the outcome of the lawsuit as well as a plaintiff’s lack of technical expertise on what his or her future physical condition, and related pain, may be.

Therefore, we hold that based on both plaintiff’s and Dr. Meyer’s testimony, “some evidence” of plaintiff’s future pain and suffering was presented at trial. The trial court’s decision to give the jury this instruction was not an abuse of discretion.

Accordingly, the judgment in favor of plaintiff and against respondent is affirmed, the award of damages is reversed, and this cause, in accordance with the views expressed in this opinion, is remanded for retrial solely on the issue of damages.

Affirmed in part; reversed in part and remanded with directions.

McCULLOUGH, P. J., and KNECHT, J., concur.


author: PRESIDING JUSTICE KNECHT

text:
    SUSAN LAWBER, Special Adm’r of the Estate of Kristen L. Bradley, Deceased, Plaintiff-Appellant, v. RITA L. DOIL et al., Defendants (Susan Lawber, Indiv., Plaintiff; Carl L. Lawber, Jr., Defendant-Appellee).
    Fourth District
    No. 4—89—0219
    Opinion filed December 5, 1989.

      G. Keith Phoenix and Eric M. Trelz, both of Shepherd, Sandberg & Phoenix, P.C., of St. Louis, Missouri, for appellant.
    Loos, Schnack & Siebers, of Quincy (Kent R. Schnack, of counsel), for appellee.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

On July 2, 1987, the plaintiff Susan Lawber filed a complaint in the circuit court of Pike County on behalf of herself and the estate of her deceased daughter Kristen Bradley. The complaint alleged her daughter’s death was due to the negligence of the defendants in the operation of motor vehicles. The decedent was killed when the motorcycle on which she was riding, driven by her stepfather, defendant Carl Lawber, collided with an automobile.

On September 15, 1987, defendant Carl Lawber filed a motion to dismiss counts VII, VIII, and IX of the plaintiff’s complaint, arguing these counts were barred by the doctrine of parental immunity. On February 24, 1988, the circuit court granted the defendant’s motion and entered an order dismissing both counts VII ánd VIII on the grounds that the defendant stood in loco parentis to the deceased and was protected from liability by the parental tort immunity doctrine. On March 24, 1988, the plaintiff filed for an interlocutory appeal under Supreme Court Rule 308. (107 Ill. 2d R. 308.) The motion was then taken under advisement pending the decision of the Illinois Supreme Court in the case of Stallman v. Youngquist (1988), 125 Ill. 2d 267, 531 N.E.2d 355. On February 24, 1989, the circuit court granted the plaintiff’s motion for interlocutory appeal based on the Stallman decision. On February 28, 1989, the circuit court certified the question “whether this court erred in dismissing counts VII and VIII of plaintiff’s complaint for the reason that these counts are barred by the parental immunity doctrine.” On March 14, 1989, an application for leave to appeal was filed with this court which we granted on March 29,1989.

Before proceeding to the merits of this appeal, we briefly consider the defendant’s objection to this court’s jurisdiction based on Supreme Court Rule 308. (107 Ill. 2d R. 308.) Contrary to the defendant’s contention, we find the question presented here is one of law, which has been properly certified by the trial court under Rule 308. We therefore proceed to consider the certified question.

The circuit court here dismissed two counts of the plaintiff’s complaint against her husband on the grounds these counts were barred by the doctrine of parent-child tort immunity. The affidavits presented at the motion hearing showed the defendant was not the decedent’s natural father, nor did he have legal custody of the decedent, which lay with the plaintiff. They showed the plaintiff, defendant, decedent, and the plaintiff and defendant’s natural child formed a family unit and carried out the normal functions of family life together. The defendant stated he treated the decedent as his own child. He disciplined, advised, cared for, and gave affection to the decedent. These affidavits were unopposed. The evidence also showed the defendant was engaged in starting his own business. As a result of his low income and desire to reinvest all aváilable money into the growth of his business, he essentially received no income and made no contribution to the support of the family.

The doctrine of parental tort immunity is one of long standing in Illinois. This immunity applies not only to the natural parents of the child, but also to those who stand in loco parentis. (Busillo v. Hetzel (1978), 58 Ill. App. 3d 682, 374 N.E.2d 1090.) In that case, the court held a person who merely exercised the parental attributes of affection, generosity, and care without assuming the usual financial burdens of parenthood does not stand in loco parentis to a child. In this case, plaintiff maintains the defendant made no financial contributions to the support of his stepchild and cannot stand in loco parentis. However, the court in Busillo did not write only of making any financial contribution for the upkeep of a child, but rather, of the assumption of the usual financial burdens of parenthood. The question before us is not whether the defendant made a financial contribution, but whether he had assumed the financial burdens of parenthood.

In People v. Parris (1971), 130 Ill. App. 2d 933, 267 N.E.2d 39, the appellate court was called upon to determine whether a stepfather stood in loco parentis for the purposes of a child protective statute. There, the court noted the defendant was not always capable of providing support to his family and the family was frequently on public aid. However, it also found the entire family lived under the same roof and ate at the same table from a common source of support. On this basis, the trial court found the jury’s decision to find the defendant was a foster parent for the purposes of the statute and stood in loco parentis was not against the manifest weight of the evidence. Similar reasoning was followed in People v. Warner (1981), 98 Ill. App. 3d 433, 424 N.E.2d 747. Once again, in a criminal case the court considered a situation where the defendant acted as a stepfather or foster parent to a child. Again, as in Parris, the father did not provide steady financial support to the family or to the individual child. The court upheld a jury’s finding the defendant stood in loco parentis to the child as not being against the manifest weight of the evidence.

The doctrine of parental tort immunity is a judicially created doctrine recognized in order to promote family harmony and unity, to discourage collusion, perjury, and fraud between family members, and to prevent the undermining of parental authority. (Chamness v. Fairtrace (1987), 158 Ill. App. 3d 325, 511 N.E.2d 839.) The ongoing validity of this doctrine has recently been confirmed by the Illinois Supreme Court in Stallman. In Chamness the court upheld the dismissal of several counts in a complaint filed by the father of an unborn fetus against the mother for negligence in a wrongful death action. The court held the cause of action stated in the dismissed counts was barred by the parental immunity doctrine. It reasoned the actual beneficiary of the tort action was not the injured party, i.e., the decedent, but the parents. This undermined the rationale used to support an exception to the immunity doctrine, the need to provide protection to the victims of tortious acts. It particularly noted the likelihood the tortfeasor parent could benefit from his or her own malfeasance through the marital relationship. This diminishes any deterrent effect which a tort action might have and would encourage the type of collusion which the doctrine was intended to eliminate.

It is in keeping with the public policy represented by the Chamness decision to affirm the trial court here. The evidence presented showed the plaintiff, defendant, and decedent, along with the couple’s natural child, formed a family. Defendant here was not a casual acquaintance of the family, nor a temporary guardian of the child. He was the husband of the child’s natural mother and behaved in all ways as a father to the child. To hold the defendant in this case did not stand in loco parentis only on the grounds of lack of support for the individual child would mean jeopardizing the unity of the family on the basis of the employment or economic status of one of the heads of household.

We find it is in keeping with the State’s policy of promoting family unity and harmony to hold, as did the trial court, that where there is a viable family unit, parental tort immunity should be upheld. The trial court did not err in dismissing counts VII and VIII of plaintiff’s complaint. These counts are barred by the parental immunity doctrine.

Affirmed.

McCULLOUGH and STEIGMANN, JJ., concur.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF THERESA MARIE WEBBER, Petitioner-Appellant, and BRYAN DOUGLAS WEBBER, Respondent-Appellee.
    Fourth District
    No. 4—89—0248
    Opinion filed December 5, 1989.

      Gregory A. Scott, of Scott, Beeman & Scott, P.C., of Springfield, for appellant.
    Diana N. Cherry, of Metnick & Barewin, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

Petitioner Theresa Marie Webber appeals from an order of the circuit court of Sangamon County entered December 21, 1988, in which the court denied both her petition for rule to show cause why respondent Bryan Douglas Webber should not be held in contempt for his failure to pay arrearages in child support and her petition to modify his monthly child support obligation. In its order, the court granted respondent’s petition to reduce his child support obligation by ordering a decrease in the monthly amount he had been required to pay.

On appeal, petitioner contends the court erred in ordering that decrease and, conversely, in failing to increase respondent’s monthly support obligation. She further maintains the court erred in concluding no arrearages existed by finding the parties had agreed to abate the child support due from respondent for a period of time. For the reasons stated in this opinion, we affirm the order of the trial court in full.

The record in this cause reveals the parties married in 1976 at a young age. Petitioner testified she was still in high school at the time, and respondent had just graduated from high school. Respondent indicated that, during their marriage, he and petitioner made plans for both parties to further their education beyond high school. He said petitioner planned to work upon her graduation from high school while respondent pursued a two-year degree. They hoped respondent’s associate’s degree would allow him to obtain better employment to support petitioner while she pursued a four-year degree. Respondent stated the parties then planned for him to return to school to obtain a four-year degree in engineering once petitioner received her bachelor’s degree.

The record shows respondent did, in fact, receive an associate’s degree in electronics, which allowed him to obtain a job repairing office machines and allowed petitioner to pursue her degree. The parties were unable to complete their educational goals during their marriage, however, for the parties dissolved their marriage in May 1982. Petitioner did obtain her associate’s degree shortly following the dissolution and then continued attending college several more years and received a bachelor’s degree.

Unlike petitioner, respondent did not pursue additional education for himself immediately following the dissolution. Instead, he continued to work at his job full time. However, respondent testified that, in August 1988, he voluntarily decided to return to school and reduce his hours of employment. He said he had obtained only a $2-an-hour increase in his pay over the years he had worked at his present job, and no opportunities existed for upward mobility. He maintained an engineering degree would provide him with a greater earning potential. He further added he thought it was a “good time” to further his education because petitioner had obtained full-time employment, he no longer had custody of their son and his girlfriend was willing to assist him financially.

Respondent petitioned the court to modify the judgment of dissolution to reduce his child support obligation. He stated that enrolling full time in college and reducing his hours of employment to 14 hours per week would result in a substantial change in circumstances, and he would no longer be able to afford the $150 per month in child support he had been required to pay for his two children. In its order, the court agreed a substantial change in circumstances had occurred and found the decrease in respondent’s income had been made in good faith. It reduced respondent’s child support payments to $125 per month.

Petitioner now maintains the evidence before the court did not support a finding that respondent’s decision to return to school and reduce his hours of employment was made in good faith. She emphasizes his decision to enroll in college was made only after she had filed a petition seeking an increase in support. She further states that, at the time of his decision, he was aware of his support obligation and the increasing needs of their children but still chose to enroll in daytime classes as a full-time student and to use his savings whenever necessary.

A good-faith, voluntary change in employment which results in reduced financial ability can constitute a substantial change in circumstances justifying a reduction in a child support obligation by the court. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.) The test for determining if a decision was made in good faith is whether the change was prompted by a desire to evade financial responsibility for supporting the children or to otherwise jeopardize their interests. (Graham v. Graham (1974), 21 Ill. App. 3d 1032, 316 N.E.2d 143.) Because the decision to modify child support payments rests within the sound discretion of the trial court, an order modifying such payments will not be overturned by this court on appeal absent an abuse of discretion.

Based on the foregoing evidence, we conclude the record supports a determination respondent’s decision to return to college and reduce the hours'of his employment was made in good faith and not out of a desire to evade his financial responsibilities. Hence, the court did not abuse its discretion in ordering a reduction in his child support payments. For this reason, the court conversely did not err in refusing to increase the amount of child support as requested by petitioner.

Petitioner also maintains the court erred in finding no arrearages in child support payments existed. The parties apparently agree respondent did not pay child support from either October or November 1986 until April 1988, but contest whether they had agreed that child support payments would cease during that period of time.

The record indicates the parties’ son lived with respondent during the period in question because petitioner was experiencing problems in disciplining him. Petitioner testified respondent took custody of the child but informed her he would not pay child support during the time the child lived with him. She said she let their son go with respondent but never agreed to waive his child support obligation. Respondent, on the other hand, testified he and petitioner agreed he would not have to pay child support during that time, as their son would live with him and their daughter, with petitioner.

We conclude the trial court could have believed the testimony of the respondent and determined the parties had agreed to waive his child support obligation during the period in question. Petitioner urges the evidence does not support such a determination because, on a previous occasion, the parties notified the court when they agreed to a waiver of support, and no similar notification was sent on this occasion. However, respondent testified he did not notify the court on this occasion because petitioner told him she would inform the court of their agreement, which testimony could also have been believed by the court.

While we conclude the trial court could have properly found an agreement existed between the parties, we note the supreme court has recently decided that agreements between former spouses to modify child support obligations are not enforceable absent judicial approval. (Blisset v. Blisset (1988), 123 Ill. 2d 161, 526 N.E.2d 125.) Thus, unless the doctrine of equitable estoppel applies here, petitioner is entitled to collect the delinquent child support payments from respondent. A claim of equitable estoppel exists where a person, by his or her statements or conduct, induces a second person to rely, to his or her detriment, on the statements or conduct of the first person. Dill v. Widman (1952), 413 Ill. 448, 455-56,109 N.E.2d 765, 769.

In Blisset, the former wife agreed not to pursue her claim to collect past-due support payments and to waive all future support in exchange for the former husband’s agreement to relinquish his visitation rights with the children. The supreme court reasoned, however, that, because the former husband knew his visitation rights could not be forfeited, his reliance on his former wife’s agreement was unreasonable. It also determined relinquishing visitation rights and failing to anticipate unpaid support payments were insufficient to constitute the detriment necessary to support a claim of equitable estoppel. Therefore, that doctrine was inapplicable under the facts presented there.

The facts of the instant case are distinguishable from those in Blisset. Here, respondent took custody of his son with the understanding he would not have to continue to pay child support so long as the son remained with him. In becoming the custodial parent of his son and providing for his son’s needs while he lived with him, respondent suffered a detriment. His reliance on that agreement was not unreasonable, either, for he and petitioner had entered into similar agreements in the past without incident. For these reasons, we conclude the trial court’s determination to deny petitioner support arrearages is supported on a theory of equitable estoppel.

We affirm the decision of the circuit court of Sangamon County.

Affirmed.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE McCULLOUGH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. CHARLES P. CUNNINGHAM, Defendant-Appellee.
    Fourth District
    No. 4—89—0010
    Opinion filed December 5, 1989.

      Craig H. DeArmond, State’s Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Daniel D. Yuhas and Timothy M. Gabrielsen, both of State Appellate Defender’s Office, of Springfield, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a bench trial, defendant was convicted of two counts of aggravated criminal sexual assault and one count of criminal sexual assault. This court affirmed the convictions and sentence on direct appeal. (People v. Ramsey (1986), 147 Ill. App. 3d 1084, 496 N.E.2d 1054.) Defendant filed a post-conviction petition alleging ineffective assistance of trial counsel. The post-conviction court found trial counsel was ineffective and granted the petition. The State appeals, arguing the post-conviction court’s determination was contrary to the manifest weight of the evidence.

We reverse.

Defendant’s post-conviction petition alleged he received ineffective assistance of counsel and, as a result, his right to a jury trial was compromised. Kenneth Elan, defendant’s trial counsel, attached an affidavit to the petition. Elan stated defendant’s decisions to waive a jury trial and refrain from testifying were based upon erroneous advice of counsel.

The facts relevant to the underlying offense are set forth in detail in People v. Ramsey (1986), 147 Ill. App. 3d 1084, 496 N.E.2d 1054. They will, therefore, be repeated here only as necessary to an understanding of our disposition.

Complainant testified Dwayne Ramsey and defendant forced her into defendant’s vehicle, which was parked on a street near her home. She had previously dated Ramsey. Kim Poke was also in the car. During the journey, which lasted 10 to 15 minutes, she was lying face-down on the back seat of the vehicle. Defendant drove the car. Complainant did not know precisely where the vehicle stopped. After the vehicle stopped, Ramsey and defendant had sexual intercourse with her against her will. Poke was unable to penetrate her vagina due to her struggles. Ramsey threatened to kill her.

Complainant was lying down during the return trip. They let her out of the car on Johnson Street in Danville. The assistant State’s Attorney asked complainant whether all of the events happened in Vermilion County. Each defense counsel objected to the question. The court sustained the objection. Complainant stated it took 10 minutes for them to return to Johnson Street after the rape. After she was initially put in the car, they went up an alley to the right side of the car. They stopped in a field where she could see lights from the back window.

Complainant testified that the car traveled on Bowman Street and turned onto Johnson Street during the return trip. She was not sure which street the car was on before it turned onto Bowman Street. The prosecutor argued that he should be allowed to continue questioning complainant about the location of the offense through leading questions. He maintained the prosecution was surprised by the trial testimony since previously complainant had indicated that the offense occurred in Vermilion County. He acknowledged that complainant was not certain of the precise location of the offense. Each defense counsel indicated that no surprise existed because the police reports indicated complainant was uncertain about the location of the offense. The court allowed further questioning. Complainant stated streets and directions of travel. The State then presented several other witnesses.

After the State rested, defendant, Ramsey, and Poke each made a motion for directed verdict of acquittal. Blan adopted the codefendants’ argument. The other attorneys argued the State failed to establish the location of the offense beyond a reasonable doubt. They noted the victim could not identify the location of the offense, repeatedly said she did not see where they drove, and only in response to leading questions stated streets. They also argued that if her initial description of the route and the time of travel were correct, the offense could have occurred outside Vermilion County. Poke’s attorney noted a case on point. The trial court took judicial notice of the State and county boundaries and stated that venue had been established with sufficient certainty to withstand the motion.

Defendant, Ramsey, and Poke did not present any evidence. The trial court found they were guilty and specifically noted that it found complainant’s testimony clear, convincing, and corroborated. On October 18, 1985, defendant, Ramsey, and Poke argued their post-trial motions, concentrating on the venue issue. Blan argued the motion for all of the trial defendants. The motion raised the location of the offense as an issue. Blan first noted complainant stated she did not know where the vehicle stopped. Blan argued the court should take judicial notice that a 10- to 15-minute drive could take the vehicle out of the State and out of the county. He then argued a higher standard of proof is necessary to establish venue, referring to People v. Biella (1940), 374 Ill. 87, 28 N.E.2d Ill. Elan also referred the court to several cases and argued that in those cases the location of the offense had been established because of specific reference points. Elan also distinguished People v. Frank (1981), 98 Ill. App. 3d 388, 424 N.E.2d 799, because it involved the death of a victim which occurred in the county of the trial.

Finally, Elan argued People v. Barksdale (1974), 24 Ill. App. 3d 489, 321 N.E.2d 489, and People v. Taylor (1970), 121 Ill. App. 2d 403, 257 N.E.2d 524, rev’d on other grounds (1971), 48 Ill. 2d 91, 268 N.E.2d 865, were distinguishable. Elan noted Barksdale involved an allegation of aggravated kidnapping, an offense which occurred in Chicago. He also argued the court could have believed that the time necessary to travel outside of Cook County from the City of Chicago was greater than the time of travel stated by the complainants in those cases. He noted no other jurisdiction had followed the reasoning presented in those cases. Elan also argued the court should follow the rationale of People v. McClain (1978), 60 Ill. App. 3d 320, 376 N.E.2d 774, which he believed required more specific proof of venue. On November 25, 1985, the trial court denied the post-trial motions, stating it believed venue had been proved beyond a reasonable doubt. The court relied upon Taylor and Barksdale.

At the post-conviction hearing, defendant testified he hired Elan and put his faith in him. He and Elan discussed defendant’s case, and defendant learned Elan was an experienced and well-qualified attorney. Defendant discussed a bench trial with Elan once or twice at Elan’s office. They talked about the disadvantage of a jury trial in a situation where three men were accused of assaulting one woman. Elan and he talked about the trial court’s experience in trying sexual assault cases. Defendant stated he could not remember discussing any other reason a jury trial might not be best.

Defendant stated that although he waived a jury trial after being advised by the court, it was actually Elan’s decision. Defendant and Elan talked about defendant’s alibi, but defendant did not think Elan told him it was not a good idea to exercise his right to a jury trial because of it. Defendant remembered discussing the fact that the State would have difficulty proving venue. Before the jury waiver, Elan told him it would be extremely hard for the State to prove where the offense had occurred. Defendant did not remember discussing the effect of this factor. However, Elan told him venue had to be proved beyond a reasonable doubt. Defendant further testified that none of the discussions played any part in his decision to waive a jury trial. He just trusted Blan so it was Elan’s decision, not his. Defendant admitted Blan mentioned that the experience of the judge, nature of the offense, and difficulty in proving the location of the offense all made it a good idea to take a bench trial.

Defendant testified further that Blan decided defendant should not testify. As soon as the State closed its case, Blan told him there was no need for him to testify as the State did not establish the location of the offense and the evidence was extremely weak. Defendant and Blan had not previously discussed his testifying. Defendant told Blan that the sexual conduct had occurred in Vermilion County. He also told Blan complainant had suggested engaging in sexual intercourse with him, Ramsey, and Poke. She consented to all of the activity. Defendant believed she was using drugs. He and Ramsey had a prior sexual relationship with complainant in 1983. Defendant was not dating her in 1985.

The post-conviction court took judicial notice of defendant’s initial statement to the police. Defendant had told officers that he was home all day and that Herb Pettway would confirm this. Defendant stated Ramsey had borrowed his car at 4 p.m. and returned it. Ramsey borrowed the car again at 7 or 7:30 p.m. and returned it. Defendant stated he had not seen Poke on April 2, 1985. The police reports also indicate that Pettway could not confirm defendant’s presence in the house after 3 p.m. on April 2, 1985.

On cross-examination, defendant testified that he and Blan talked twice prior to the jury waiver. They discussed his version of the incident, defenses he could raise, and the choice of a jury or bench trial. Defendant agreed that he told the trial court the decision to waive a jury trial was his. Blan told defendant he had a right to testify. Defendant knew he could take the stand and tell his side.

Blan stated he had been licensed to practice law in 1972. Seventy-five to eighty percent of his practice involved litigation. Approximately 10% of the litigation involved criminal defense. He had worked as an assistant public defender and had defended criminal sexual assault cases in jury and bench settings. Blan discussed defendant’s case with him prior to, during, and after trial. Blan could not remember specific points of defendant’s statements to him. He thought the statements were generally consistent with defendant’s post-conviction testimony.

Blan stated he and defendant discussed the difficulty presented by defendant’s alibi and the fact the police had discovered it was false. Prior to trial, he and the other attorneys developed a strategy which focused on the difficulty of proving the location of the offense. Blan felt the victim’s statements were insufficient to establish the scene of the occurrence. He also believed the State could not reconstruct the travel route based upon complainant’s perception of the movement of the vehicle. Blan discussed the location of the offense with defendant before the jury waiver. He and the other defense attorneys believed the assistant State’s Attorney did not realize a venue problem existed. Blan felt it would be easier during a bench trial for the judge to dismiss on a technical matter. He also believed he could conduct a more vigorous examination of the victim without a jury. Defendant never voiced any disagreement "with Elan’s recommendation that he waive a jury trial.

Blan further testified that defendant’s testimony at trial was an open issue. If defendant testified, he would have compromised the effective use of the venue defense. Blan stated it was clear to him that defendant should not testify in his own behalf. However, he thought a bench trial was a good idea, because defendant’s prior false statement to the police would be less important to a trial judge than a jury, should defendant testify. He recommended defendant not testify because he believed the location of the offense had not been proved, and defendant followed the recommendation. Blan told defendant he had a right to a jury trial and a right to testify in his own behalf.

The post-conviction court found the defense counsel’s advice was erroneous and based upon a misapprehension of the law. It concluded the evidence established actual incompetence of trial counsel and substantial prejudice to defendant.

In Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, the Court stated the purpose of the constitutional requirement of effective assistance of counsel is to ensure a fair trial. The benchmark for assessing ineffective assistance claims is whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. The Strickland Court stated a two-part test for determining ineffective assistance of counsel. First, defendant must show counsel’s performance was actually deficient; and second, defendant must show the deficiency prejudiced the defense. 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064; People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.

A defendant is entitled to competent, not perfect, representation. The determination of whether counsel’s assistance was ineffective must be made in light of all of the circumstances of the case. The Strickland Court noted that every effort should be made to eliminate the distorting effect of hind-sight. (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.) The Strickland Court also stated a strong presumption exists that counsel’s conduct, if it involves strategy, falls within reasonable professional judgment. Thus, a review of counsel’s competency usually does not extend to the exercise of his judgment, discretion, or trial tactics. People v. Spicer (1987), 158 Ill. App. 3d 699, 511 N.E.2d 235; People v. Chitwood (1986), 148 Ill. App. 3d 730, 499 N.E.2d 992.

The fact that one defense counsel may have pursued the defense of the cause under a different theory does not automatically render trial counsel’s performance ineffective. (Spicer, 158 Ill. App. 3d 699, 511 N.E.2d 235; People v. Jennings (1986), 142 Ill. App. 3d 1014, 492 N.E.2d 600; People v. Elder (1979), 73 Ill. App. 3d 192, 391 N.E.2d 403.) However, where counsel’s choice of trial strategy is based upon a misapprehension of the law, the claim is reviewable and his performance may in fact be ineffective. People v. Wright (1986), 111 Ill. 2d 18, 488 N.E.2d 973; People v. Lee (1989), 185 Ill. App. 3d 420, 541 N.E.2d 747.

If the issue of ineffective assistance of counsel can be resolved on the basis of lack of prejudice, it should be. (Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S. Ct. at 2069; People v. Colley (1988), 173 Ill. App. 3d 798, 528 N.E.2d 223.) A trial court’s determination in post-conviction matters should only be reversed when it is contrary to the manifest weight of the evidence. Wright, 111 Ill. 2d 18, 488 N.E.2d 973.

The State argues Elan’s advice was reasonable as based upon many strategic factors. The State also argues trial counsel’s reliance on a failure to prove venue as a defense strategy was not unreasonable or evidence of a misapprehension of the law. Finally, the State argues defendant has not established prejudice. Defendant responds that trial counsel’s advice was based upon counsel’s misunderstanding of settled venue concepts and argues this court’s approval of the trial court’s reliance upon Barksdale and Taylor indicates Elan’s misapplication of settled law. Defendant agrees that the application of the in-transit venue statute to the instant situation was unsettled at the time of trial.

Here, both defendant and Elan testified the decision to waive a jury trial was based in part upon the experience of the trial judge, the nature of the case, the ease of vigorously attacking complainant’s credibility in a nonjury setting, the increased likelihood the trial judge in a bench trial would dismiss on a technical matter, and the probability that the defendant would not testify due to the effect of his false alibi. Similarly, defendant’s decision to refrain from testifying was based in part upon the likelihood of impeachment and trial counsel’s belief that venue had not been proved. These factors are all strategic matters which may properly be considered by counsel in formulating his advice to defendant. Because the advice was based upon several strategic factors, it would not ordinarily be considered indicia of ineffective assistance of counsel.

However, Blan admitted that the trial strategy focused on his belief that the complainant could not testify to the location of the offense with sufficient certainty to establish venue beyond a reasonable doubt. He noted that his belief that the testimony was insufficient to establish the location of the offense was the primary reason he advised defendant not to testify. Therefore, if this advice was based on a misapprehension of the law, defendant should arguably be entitled to a new hearing. Wright, 111 Ill. 2d 18, 488 N.E.2d 973.

Contrary to defendant’s assertion on appeal, the trial record supports a conclusion that Blan knew the location of the offense had to be proved beyond a reasonable doubt. He and the other attorneys vigorously argued that Barksdale and Taylor did not apply to an offense which occurred in a small town on a State border. Barksdale and Taylor involved kidnappings and sexual assaults where the victims were picked up in Chicago and driven to an area outside town. After the assaults they were returned to the city. (People v. Barksdale (1974), 24 Ill. App. 3d 489, 321 N.E.2d 489; People v. Taylor (1970), 121 Ill. App. 2d 403, 257 N.E.2d 524, rev’d on other grounds (1971), 48 Ill. 2d 91, 268 N.E.2d 865.) Those courts found venue sufficiently proved but provided no reasoning for the result.

Blan argued some specific proof of location by direction or marker testimony was needed, relying upon People v. McClain (1978), 60 Ill. App. 3d 320, 376 N.E.2d 774. In McClain, the victim of a sexual assault was abducted and blindfolded in Macon County. She was raped soon after the assailant stopped at the end of a dead-end, curved road. An officer testified the defendant stated the rape occurred close to Decatur. The officer then stated complainant’s description matched roads around Lake Decatur. Blan also referred the court to People v. Hayn (1976), 34 Ill. App. 3d 1029, 341 N.E.2d 182. In Hayn, defendant was abducted and raped. However, both she and a codefendant provided specific descriptions of the direction of travel and the types of roads taken. Blan also argued the in-transit venue provisions were inapplicable because the journey had stopped at the time of the assault and no kidnapping or continuous offense charge had been made.

Thus, the record supports a finding that Blan knew the status of the applicable law. The post-conviction court’s finding of a misapprehension of the law is contrary to the weight of the evidence. Elan’s error was in assessing the quantum of evidence necessary to establish venue. However, this type of error does not support a finding of ineffective assistance of counsel.

For the above reasons, we reverse the post-conviction court.

Reversed.

SPITZ and GREEN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL W. HONNOLD, Defendant-Appellant.
    Fourth District
    No. 4—89—0207
    Opinion filed December 5, 1989.

      Edward Q. Costa, of Samuels, Miller, Schroeder, Jackson & Sly, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On January 5, 1989, the circuit court of Macon County found defendant Daniel W. Honnold guilty of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, par. 11—501(a)(2)) and driving at a speed greater than that which is reasonable and proper (Ill. Rev. Stat. 1987, ch. 95½, par. 11—601(a)). The court subsequently placed him on court supervision for a period of one year and imposed a $550 fine.

On appeal, defendant contends he was denied his right to a speedy trial on the theory Supreme Court Rule 505 (113 Ill. 2d R. 505) granted him a right to trial within 49 days of his initial court appearance. We disagree with this interpretation of Supreme Court Rule 505 and affirm.

At all times pertinent, Supreme Court Rule 504 provided that, in traffic and conservation violation cases, “whenever practicable,” an arresting officer “shall” set a date for an accused’s appearance in court at not less than 14 days but within 49 days after the date of his arrest. (113 Ill. 2d R. 504.) At all times pertinent, Supreme Court Rule 505 provided that, if an accused intended to plead not guilty, the accused was required to notify the clerk of the court in which he was charged of that intent within five days of the set appearance date, upon receipt of which “the clerk [was directed to] set a new appearance date not less than 7 days nor more than k9 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance.” (Emphasis added.) 113 Ill. 2d R. 505.

Here, the arresting officer charged defendant by citation with the previously mentioned offenses on August 21, 1988. The officer then scheduled defendant’s first court appearance for September 27, 1988. On September 9, 1988, defendant, by and through his attorney, entered his appearance in the cause, demanded a bench trial, and pleaded “not guilty” to the charges.

Defendant and his attorney appeared in court on September 27, 1988, the date previously set by the arresting officer. At that time, the court allotted the cause for bench trial on December 15, 1988. No transcript was made of that hearing, and the docket sheet does not indicate whether defendant objected at that time to the December trial date set by the court.

On November 23, 1988, defendant moved to dismiss the charges pending against him. He claimed more than 49 days would have elapsed from the original appearance date until the date of trial, and, thus, pursuant to Supreme Court Rule 505, the charges had to be dismissed. At the hearing held on that motion, the State argued in part the 49-day time limit did not have to be met under the circumstances because: (1) the actual scheduling of cases on the court’s docket was beyond the control of the prosecutor; and (2) defendant had failed to object to the trial date at the time it was set and did not demand an earlier setting.

The court subsequently denied defendant’s motion. In doing so, it reasoned defendant had “ ‘implicitly’ agreed to continuing the matter beyond the statutory forty-nine [day] trial time limit” by appearing personally and with counsel on September 27, 1988, and failing to object to the December 15, 1988, trial date. The matter proceeded to bench trial, and defendant received the aforementioned convictions and sentences.

The defendant has maintained throughout that, under the holdings in People v. McCarrey (1984), 122 Ill. App. 3d 61, 460 N.E.2d 781, People v. Mears (1980), 84 Ill. App. 3d 265, 405 N.E.2d 443, and People v. Nelson (1974), 18 Ill. App. 3d 628, 310 N.E.2d 174, Supreme Court Rule 505 gives a defendant an absolute right to a bench trial within 49 days after the first appearance date as established by Supreme Court Rule 504. Originally, the State did not contest the foregoing rule as a general proposition but contended here the special circumstance of the failure of defendant to object to the court order setting the trial at a later date and the situation created by a heavy docket which prevented the court from giving an earlier setting justified a setting beyond the 49-day period.

This court became concerned with whether the statement in Supreme Court Rule 505 that the “clerk” of the court set a subsequent appearance date within 49 days of the first appearance date created a right of the defendant to a trial within that period of time. We requested further briefing of the parties. Defendant stands by his original position, but the State now contends the directions to the clerk do not bind the court to holding a bench trial within the 49-day period.

Consideration of the lengthy, full provisions of Supreme Court Rule 505 as in force at times pertinent here is desirable at this stage of our discussion. It stated:

“When issuing a Uniform Citation and Complaint, a conservation complaint or a Notice to Appear in lieu of either, in counties other than Cook, the officer shall also issue a written notice to the accused in substantially the following form:
AVOID MULTIPLE COURT APPEARANCES
If you intend to plead ‘not guilty’ to this charge, or if, in addition, you intend to demand a trial by jury, so notify the clerk of the court at least 5 days (excluding Saturdays, Sundays or holidays) before the day set for your appearance. A new appearance date will be set, and arrangements will be made to have the arresting officer present on that new date. Failure to notify the clerk of either your intention to plead ‘not guilty’ or your intention to demand a jury trial may result in your having to return to court, if you plead ‘not guilty’ on the date originally set for your court appearance.
Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within 120 days of arrest. The proper prosecuting attorney shall be served with any separate written demand for speedy trial under section 103—5 of the Code of Criminal Procedure of 1963, as amended (Ill. Rev. Stat. 1985, ch. 38, par. 103—5). If the accused fails to notify the clerk as provided above, the arresting officer’s failure to appear on the date originally set for appearance may, in counties other than Cook, be considered good cause for a continuance. Any State agency or any unit of local government desiring to be exempt from the requirements of this Rule 505 may apply to the Conference of Chief Circuit Judges for an exemption.” 113 Ill. 2d R. 505.

The decision of the court in McCarrey concerned the operation of the portion of Rule 505 regarding a defendant who has requested a jury trial. At that time, Rule 505 stated:

“If the accused demands a trial by jury, the trial shall be scheduled within the time prescribed by section 103—5 of the Code of Criminal Procedure of 1963 as amended (Ill. Rev. Stat. 1979, ch. 38, par. 103—5).” (87 Ill. 2d R. 505.)

There, the defendant was charged by citation with the offense of driving under the influence of alcohol and demanded a jury trial. He was not tried within the 160-day period of section 103—5 of the Code of Criminal Procedure and, for that reason, this court reversed his conviction. This court deemed the wording of Rule 505 made the demand for a jury trial sufficient to trigger the running of the time period of section 103—5 without the need for a separate demand for a speedy trial usually necessary to start that period. By way of dictum this court did state:

“A defendant who is charged with an offense by means of a traffic ticket is generally entitled to a jury or a bench trial within the time limits prescribed by Supreme Court Rule 505 (see [Mears]), provided that there are no factors beyond the immediate control of the prosecutor and the arresting officer which result in a delay in bringing the defendant to trial. (People v. Davis (1982), 104 Ill. App. 3d 120, 432 N.E.2d 947.)” (Emphasis added.) McCarrey, 122 Ill. App. 3d at 64, 460 N.E.2d at 782.

In Mears, an accused had also been charged by citation with a traffic offense concerning intoxicating liquor. He appeared, pro se, on the first appearance date set by Rule 504, March 7, 1978, and pleaded not guilty. On that date he was told he would be informed of a hearing date. Subsequently, the defendant appeared at a pretrial hearing, but his case was not set for trial. On November 14, 1978, defendant filed a motion to dismiss for failure to hold a trial within the period set forth in Supreme Court Rule 505. The circuit court allowed the motion, and the State appealed. The Appellate Court for the Fifth District affirmed. That court reasoned: (1) the purpose of Rules 504 and 505 was to provide early disposition on the merits of traffic cases; and (2) the provision of Rule 505 not requiring the State to proceed to trial within the 49-day period when a jury trial was demanded implied that, when no jury trial was demanded, the State was required to proceed within that 49-day time frame.

In Nelson, defendants charged with a traffic offense appeared on the second appearance day when their trials were continued for two weeks. On that date the State’s witnesses did not appear, and the trial court dismissed the charges. The trial court later allowed the State to refile the charges, and the defendants were convicted. On appeal, the Appellate Court for the Third District reversed, holding that the earlier order of dismissal was a judgment on the merits preventing proper refiling of the charges.

In People v. Herbert (1984), 122 Ill. App. 3d 43, 460 N.E.2d 86, this court reversed a traffic offense conviction after an accused was charged by a traffic ticket, demanded jury trial, and had not been tried within the 160-day period of section 103—5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 103—5). In the process of describing the right of an accused to a speedy trial under those circumstances, this court stated that, under Supreme Court Rule 505, a defendant demanding a jury trial “is entitled to a speedy trial as defined by statute, and a defendant who instead waives a jury and wants a bench trial is entitled to an even speedier trial as provided by supreme court rule.” Herbert, 122 Ill. App. 3d at 44-45, 460 N.E.2d at 87.

Despite the authority of Mears and the foregoing dictum in other cases, we are not satisfied that the direction of Supreme Court Rule 505 to “set a new appearance date” between 7 and 49 days in the future is intended to create a right to a bench trial within that time frame. We note that Mears is the only cited case directly in point. In Village of Park Forest v. Fagan (1976), 64 Ill. 2d 264, 356 N.E.2d 59, the only case called to our attention in which the supreme court has passed upon the operation of Rule 504 or 505, that court held the requirement of then Rule 504 (58 Ill. 2d R. 504) that the arresting officer “shall” set the original appearance date within certain time frames was merely directory. Accordingly, that court reversed the judgment of the trial court which had dismissed the traffic charge because the original appearance date was not set within those time frames. Supreme Court Rules 504 and 505 operate together to counter delay in traffic proceedings. The interpretation given by the supreme court to the requirement that the arresting officer “shall” set the first appearance date within certain times gives some indication the supreme court did not intend the requirement of Supreme Court Rule 505 that the clerk “shall” set the second appearance date in nonjury cases within a particular period to negate the discretion of the court to set an ultimate trial date within a time permissible under statutory speedy-trial provisions.

Effective August 1, 1989, Supreme Court Rule 505 was amended in pertinent part as follows:

“Upon timely receipt of notice that the accused intends to plead ‘not guilty,’ the clerk shall set a new appearance date not less than 7 days nor more than 49 days after the original appearance date set by the arresting officer, and notify all parties of the new date and the time for appearance. If the accused demands a trial by jury, the trial shall be scheduled within a reasonable period. In order to invoke the right to a speedy trial, the accused if not in custody must file an appropriate, separate demand, as provided in section 103 — 5 of the Code of Criminal Procedure of 1963, as amended. (Ill. Rev. Stat. 1987, ch. 38, par. 103—5).” (Emphasis added.) ((June 19, 1989), Official Reports Advance Sheet No. 13 (eff. Aug. 1, 1989).)

This statement of Rule 505 seems to indicate the only way one accused of a traffic offense has a right to a trial at a particular time is by invoking the provision of the Code of Criminal Procedure of 1963 providing for speedy trials — for those in custody, without demand, and, for those not in custody, upon proper demand.

If the language of Rule 505 existing at the times in question here is deemed to be at least ambiguous as to whether the statement directing the clerk to set an appearance date within the 49-day period provides a right for trial within that period, the subsequent amendment to the rule negating the existence of that right is significant in determining the meaning of Rule 505 at the times involved here. O’Connor v. A & P Enterprises (1980), 81 Ill. 2d 260, 269-70, 408 N.E.2d 204, 208-09.

We note that section 103—5 of the Code of Criminal Procedure of 1963, which was in force at all times Rule 505 was in existence, sets forth in some detail the circumstances excusing the State from not proceeding within the stated time for trial. Rule 505 states no exception to the setting of an appearance date within the 49-day period. If that' time frame was intended to limit the time in which bench trials could be held, the supreme court would likely have enumerated some exceptions to cover exigent circumstances. Moreover, we deem the fact that Rule 505 directs the clerk, rather than a judge, to set the appearance date is significant. We recognize that an order entered by the court clerk is an order of the court if the clerk has authority to enter the order. However, if the end of the 49-day period was intended to be the last time the trial could start, the supreme court would likely have provided for some judicial discretion to have been exercised as to settings within the 49-day period.

We conclude the provisions of Supreme Court Rule 505 directing the clerk to set a second appearance date within a prescribed period is merely the direction for the performance of a ministerial task intended to speed up the proceedings, but not intended to set an absolute deadline for trial. The trial court here did not err in allowing the case to go to trial at a time past the end of the 49-day period of Rule 505. Accordingly, we affirm the conviction and sentence.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE KNECHT JUSTICE LUND,

text:
    MODERN MAILING SYSTEMS, INC., Plaintiff-Appellee, v. LeROY McDANIELS et al., Defendants-Appellees (William Ted Lewis, Third-Party Defendant-Appellant).
    Fourth District
    No. 4—89—0171
    Opinion filed December 5, 1989.

      LUND, J., dissenting.
    William Ted Lewis, of Springfield, appellant pro se.

    John L. Swartz, of Giffin, Winning, Cohen & Bodewes, P.C., of Springfield, for appellee Modern Mailing Systems, Inc.
    Donald M. Craven, P.C., of Springfield, for appellees LeRoy McDaniels and Merrill McDaniels.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Attorney William Ted Lewis initially represented defendants LeRoy and Merrill McDaniels, defending against an action seeking unpaid rent. The cause was set for trial on July 26, 1988, at which time attorney Lewis appeared before the court and orally moved for a continuance, stating his clients were out of the country and unavailable. Evidence was later introduced indicating Lewis had not notified his clients of the hearing date until the morning of July 25 and, at that time, he told his clients not to appear. In fact, after Lewis’ motion for continuance, defendants did appear on July 26 with new counsel and indicated the deceptive nature of Lewis’ motion for continuance. The cause was then continued because of the need for additional time by new counsel.

Plaintiff, in the action for rent, petitioned for sanctions under the provisions of section 2—611 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). Section 2—611 of that act is now covered by the provisions of Supreme Court Rule 137 (134 Ill. 2d R. 137).

Before the hearing on the petition for relief under section 2 — 611, Lewis filed a motion alleging the trial judge was prejudiced and asked the trial judge to recuse himself from hearing the request for sanctions. After an evidentiary hearing, a hearing notable because of Lewis’ failure to appear, the recusal was denied. Lewis, during oral arguments before our court, acknowledged he had notice of the hearing before it occurred but contends the notice was not timely.

After a hearing on the section 2—611 motion, the trial court ordered sanctions against Lewis for plaintiff’s attorney fees in the amount of $1,250, and for attorney fees for defendants’ new attorney in the amount of $900. Lewis appeals from this order, presenting various arguments, most of which do not merit a response. These include the contention the trial judge should have recused himself. The motion for recusal appears to be nothing more than an attempt to cover for Lewis’ falsehood made to the trial court at the time of the request for the continuance.

A single argument by Lewis presents an issue for our consideration. While the record supports a finding the oral motion for continuance contained false representations, and was made to cause unnecessary delay, we must determine whether the fee-assessment provisions of section 2—611 can be triggered by a blatantly false oral motion for a continuance.

Awards of attorney fees and costs, absent a contractual agreement, must rely upon statutory provisions. The power to prescribe rules governing attorney conduct, and to discipline attorneys for violating those rules, rests solely with the Illinois Supreme Court. (Kilpatrick v. First Church of the Nazarene (1989), 182 Ill. App. 3d 461, 465-66, 538 N.E.2d 136, 139.) During 1988, section 2—611 stated, in pertinent part, as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. A party who is not represented by an attorney shall sign his pleading, motion, or other' paper and state his address. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. If a pleading, motion, or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant. If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.” Ill. Rev. Stat. 1987, ch. 110, par. 2—611.

The history of section 2—611 is set forth in the historical and practice notes, and the supplements thereto, in Smith-Hurd annotated statutes, the bound volume and the pocket parts (Ill. Ann. Stat., ch. 110, par. 2—611, Historical and Practice Notes, at 265-70 (Smith-Hurd 1983)). The section has been subject to many amendments, but has long addressed sanctions for untrue statements in pleadings. Section 2—611 was formerly section 41 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 41). In reversing an award of attorney fees under section 41, Justice Stamos made the following statement:

“Plaintiff has failed to allege that untrue statements were pleaded by defendant, as required to invoke the sanctions of section 41. Section 41 is penal in nature and thus may be invoked only in those cases falling strictly within its terms. Each of its requirements, i.e., ‘allegations and denials made without reasonable cause and found to be untrue,’ must be proved. (See Johnson v. La Grange State Bank (1978), 73 Ill. 2d 342, 366, 383 N.E.2d 185[, 196].) Our supreme court in Johnson v. La Grange State Bank indicated that the expected use of section 41 would be where untrue pleadings were filed by one of the parties.” (Dulin, Thienpont, Potthast & Snyder, Ltd. v. Packaging Personified, Inc. (1980), 89 Ill. App. 3d 647, 651, 411 N.E.2d 1173, 1176.)

Section 41 appeared to apply to allegations and denials made without reasonable cause and found to be untrue pleadings. “Motion and other paper” has been added by the 1986 amendment, but the emphasis appears to be on signatures and papers. The purpose of the section is not to provide a sanction against all violations of court rules and for all professional misconduct of an attorney. Tabor & Co. v. Gorenz (1976), 43 Ill. App. 3d 124, 132, 356 N.E.2d 1150, 1156.

A strict construction of the statute could result in the conclusion that section 2—611 applies only to writings. (International Amphitheatre Co. v. Vanguard Underwriters Insurance Co. (1988), 177 Ill. App. 3d 555, 573, 532 N.E.2d 493, 504, appeal denied (1989), 125 Ill. 2d 565, 537 N.E.2d 809.) However, an oral motion to continue seeks relief from the court just as surely as a signed, written motion. Attorney Lewis, in orally addressing the court, was certifying his representations were based on reasonable inquiry and well grounded in fact. The oral representations of an officer of the court, when in the form of a motion, should have the same effect as a signed, written motion within the context of section 2—611.

In this case, an officer of the court stood before a judge at the time of trial and sought to obtain a continuance by oral motion. ' His oral motion was a lie. He was foiled in his chicanery by the arrival of his clients with a new attorney. A contempt proceeding would have been appropriate. Instead, the plaintiff sought relief under section 2—611. We find such relief appropriate.

We do not strain for this result simply to punish deceit. Courts, particularly volume courts, often deal with oral motions and honor those well taken. An attorney who makes an oral motion ought be held to the same standard as if the motion had been on paper.

The order imposing sanctions under section 2—611 is affirmed.

Affirmed.

STEIGMANN, J., concurs.

JUSTICE LUND,

dissenting:

I respectfully and regrettably dissent. The majority opinion correctly states the facts and is well written. There is strong argument for including oral motions under the punitive provisions of section 2—611. However, the section is penal in nature and thus must be strictly construed. (Ignarski v. Heublein (1988), 171 Ill. App. 3d 830, 833, 525 N.E.2d 995, 997.) Because of history of the section applying first to pleadings and then to pleadings and writings, I feel compelled to hold that the section, which is now a supreme court rule, does not apply to oral motions. I wholeheartedly agree that attorney Lewis’ conduct called for sanctions of some type.


text:
      In re TYRONE JAMES, a Person Found Subject to Involuntary Admission (The People of the State of Illinois, Petitioner-Appellee, v. Tyrone James, Respondent-Appellant).
    Fourth District
    No. 4—89—0118
    Opinion filed December 5, 1989.

      William D. Reid, of Elmore & Reid, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

After a hearing in the circuit court of Sangamon County, the trial court ordered respondent involuntarily admitted to a mental health facility. The court found respondent was mentally ill, and because of his illness, likely to inflict serious physical harm upon another. (Ill. Rev. Stat. 1987, ch. 91½, par. 1—119(1).) Respondent appeals arguing the trial court’s findings were not supported by clear and convincing evidence; and the trial court erred in ordering his involuntary admission prior to considering a report, as required by section 3—810 of the Mental Health and Developmental Disabilities Code (Code) (Ill. Rev. Stat. 1987, ch. 91½, par. 3—810).

We reverse and remand.

On January 10, 1989, Patricia Brown, a mental health specialist, filed a petition asserting respondent was a person subject to involuntary admission. The petition alleged respondent was mentally ill and reasonably expected to inflict harm upon himself or another in the near future. The petition further asserted immediate admission was necessary to prevent such harm. The petition asserted respondent was paranoid, exhibited flight of ideas, a flat affect, had not taken his medication since December 28, 1988, and had threatened to beat or kill his mother.

A hearing was held on January 13, 1989. Dr. Carey Killian, a psychiatrist, testified that he had known respondent since January 10, 1989. He was respondent’s attending physician. In his opinion, respondent was suffering from schizophrenia. Killian based his opinion upon examination of respondent, consideration of his medical records, and prior diagnosis of schizophrenia. Respondent displayed several indicia of schizophrenia, including (1) loss of level of functioning over time; (2) formal thought disorder, shown by his wandering from topic to topic; (3) delusional ideas, which included the beliefs that (a) his biological mother is not his mother, (b) dead people walk around with the living and he can .tell who is actually alive, and (c) people are giving him bad foods; and (4) a constriction of amount of facial expression when respondent is interacting with other people.

Killian stated that respondent had threatened to harm his mother again because she hospitalized him. Respondent made similar statements to several mental health professionals. Killian believed a significant risk existed that respondent would inflict serious physical harm upon his mother because of his mental illness. Killian further stated that the treatment plan for respondent is to use antipsychotic medication. Respondent had received similar medication in the past and responded well. Killian further testified there were no forms of treatment less restrictive than hospitalization. Killian admitted the medications could be taken on an outpatient basis. Respondent had not been violent while hospitalized.

Respondent testified in his own behalf. He stated that he would take his medication, except one type, on an outpatient basis. Respondent believed his mother lied to force him into the hospital, bothered him, and sent the police to arrest him. His former psychiatrist’s nurse tried to give him an overdose of medication. Respondent stated he would only harm someone in self-defense.

Section 1—119(1) of the Code (Ill. Rev. Stat. 1987, ch. 91½, par. 1—119(1)) provides a person is subject to involuntary admission if he is mentally ill and, because of his mental illness, is reasonably expected to inflict serious harm upon himself or another. In a proceeding .on a petition for involuntary admission, the State is required to prove the necessary allegations of the petition by clear and convincing evidence. (In re Stephenson (1977), 67 Ill. 2d 544, 367 N.E.2d 1273.) The factual basis for the medical opinion upon which the decision to commit is based must be judged by a similar standard. (People v. Sansone (1974), 18 Ill. App. 3d 315, 309 N.E.2d 733.) The State must present explicit medical testimony that respondent, because of his illness, poses a serious danger to himself or another. (In re Orr (1988), 176 Ill. App. 3d 498, 531 N.E.2d 64.) Mental illness alone does not justify involuntary commitment. However, prediction of future dangerousness is inexact. A commitment will be upheld where there is a reasonable expectation that respondent will engage in dangerous conduct within the meaning of the Code. Orr, 176 Ill. App. 3d 498, 531 N.E.2d 64; In re Rogers (1985), 133 Ill. App. 3d 524, 478 N.E.2d 1198; In re Powell (1980), 85 Ill. App. 3d 877, 407 N.E.2d 658.

In the instant case, Killian’s diagnosis was supported by explicit testimony concerning his observations of respondent. Respondent had expressed several delusional beliefs. Additionally, he threatened to seriously harm his mother if released. The trial court’s determination is supported by clear and convincing evidence.

Respondent next argues the trial court erred in ordering his involuntary admission absent consideration of a report before disposition as required by section 3 — 810 of the Code. (Ill. Rev. Stat. 1987, ch. 91½, par. 3—810.) The State concedes the record does not establish such a report was compiled or considered by the trial court before disposition. However, the State argues respondent waived any objection to the lack of a report. Second, the State argues any error was harmless.

Section 3—810 of the Code states:

“Before disposition is determined, the facility director or such other person as the court may direct shall prepare a report including information on the appropriateness and availability of alternative treatment settings, a social investigation of the respondent, a preliminary treatment plan, and any other information which the court may order. The treatment plan shall describe the respondent’s problems and needs, the treatment goals, the proposed treatment methods, and a projected timetable for their attainment. If the respondent is found subject to involuntary admission, the court shall consider the report in determining an appropriate disposition.” Ill. Rev. Stat. 1987, ch. 91½, par. 3-810.

In In re Collins (1981), 102 Ill. App. 3d 138, 429 N.E.2d 531, this court reversed an order finding Collins was subject to involuntary admission. The appellate court found the trial court erroneously failed to suppress the testimony of examining physicians who failed to advise Collins of his right not to talk to the examiner. (Ill. Rev. Stat. 1987, ch. 91½, par. 3—208.) The court addressed the agency’s failure to comply with section 3—810 of the Code, though the absence of a report was not raised by the parties as an issue. The court stated:

“The aforementioned statute requires that the trial court consider this report prior to any disposition. Nowhere in the record is there any evidence that such a report was ever prepared or considered by the trial court. Though this issue is not raised by respondent, and is not necessary to the disposition of this case, it is but one further indication that certain staff within the Department of Mental Health are performing their duties with either callous or blithe disregard for the rules. Such a situation cannot be condoned.” Collins, 102 Ill. App. 3d at 145, 429 N.E.2d at 537.

Involuntary commitment procedures represent the balance between an individual’s liberty interests and society’s dual interests in protecting itself from potentially dangerous individuals while protecting and caring for those who are unable to care for themselves. (Stephenson, 67 Ill. 2d 544, 367 N.E.2d 1273.) Thus, the procedures set forth in the Code are a legislative recognition that civil commitment is a deprivation of personal liberty. The purpose of the procedures is to provide adequate safeguards against unreasonable commitment. (Sansone, 18 Ill. App. 3d at 322, 309 N.E.2d at 738.) Inherent in the civil commitment process is the State’s promise that the individual subject to admission will receive treatment. (See generally Collins, 102 Ill. App. 3d 138, 429 N.E.2d 531; Sansone, 18 Ill. App. 3d 315, 309 N.E.2d 733.) We agree with the Collins court’s conclusion that a total failure to comply with the section evidences a disregard for the legislatively established procedures. It is contrary to the balancing of interests established by the Code and should not be condoned.

Section 3—810 of the Code requires the facility director or other court-appointed person to prepare a report. The preliminary report must include information on the appropriateness and availability of alternative treatment facilities, a social investigation of the respondent, and a preliminary treatment plan. The section states as well that the treatment plan shall describe respondent’s problems and needs, goals, the treatment method, and a projected timetable. The State concedes no evidence of a report exists here.

The State relies on In re Meek (1985), 131 Ill. App. 3d 742, 476 N.E.2d 65. In Meek, respondent argued that the decision to commit him was made with insufficient information because of a lack of detail in the preliminary report. On appeal, the court found respondent waived his objections to the report by failure to object below. In so finding, the court noted the statute does not require a detailed report. Our holding today in no way detracts from Meek. Here, a total failure to comply with the statute exists. Involuntary commitment proceedings affect important liberty interests. Thus, the need for strict compliance with the statutes is essential. (In re Stone (1989), 178 Ill. App. 3d 1084, 534 N.E.2d 213.) Even when such an error is not brought to the attention of the trial court, it may be considered under a doctrine analogous to plain error. Stone, 178 Ill. App. 3d 1084, 534 N.E.2d 213; In re Satterlee (1986), 148 Ill. App. 3d 84, 499 N.E.2d 101.

The State also contends any error was harmless since Killian testified medication was the treatment plan and hospitalization was the least restrictive setting. Section 3 — 810 requires more than the formulation of a treatment plan and statement of least restrictive setting. It also requires a timetable and consideration of other factors. Additionally, on this record, we do not know whether Killian is a person authorized to compile a preliminary report pursuant to section 3—810 of the Code. Strict compliance with the statutes is essential in involuntary commitment proceedings. (Stone, 178 Ill. App. 3d 1084, 534 N.E.2d 213.) We cannot say error in discarding the statute’s requirements was harmless.

For the above reasons, we reverse the trial court and remand for a new hearing wherein the court will consider a report as required by section 3—810 of the Code.

Reversed and remanded.

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