author: JUSTICE LEWIS

text:
      In re MARRIAGE OF LINDA S. DALL, Petitioner-Appellee, and GERALD H. DALL, Respondent-Appellant (Richard W. Sterling, Appellant).
    Fifth District
    No. 5—89—0777
    Opinion filed March 28, 1991.

      David R List, Eugene A. Schoon, and John M. Breen, all of Sidley & Austin, of Chicago, for appellant Richard Sterling.
    Michael J. Costello, of Immel, Zelle, Ogren, McClain & Costello, of Springfield, for appellant Gerald Dali.
    Eric M. Rhein and Edward J. Blake, Jr., P.C., of Belleville, for appellee.
   JUSTICE LEWIS

delivered the opinion of the court:

This appeal arises out of an action for the dissolution of the marriage of the petitioner, Linda S. Dali, and the respondent, Gerald H. Dali. During the pendency of an earlier appeal in this cause (In re Marriage of Dall (1989), 191 Ill. App. 3d 652, 548 N.E.2d 109), the trial court entered an order on October 17, 1989, finding the respondent in willful, indirect, civil contempt of court for failure to comply with its order of child support from and after May 15, 1989. In the order of October 17, 1989, the trial court, inter alia, denied the respondent’s motion to modify child support filed on May 16, 1989, and provided for payment of arrearage of child support from June 1, 1989, through October 15, 1989. The respondent appeals from this judgment, presenting two issues for review: (1) whether the failure to reduce child support based on respondent’s change of circumstances was an abuse of discretion and (2) whether the determination that respondent was guilty of contempt for failure to pay child support was an abuse of discretion or against the manifest weight of the evidence.

In an earlier order entered on March 3, 1989, the trial court held, inter alia, “[t]hat the [respondent’s] attorney, Richard W. Sterling, be, and the same is hereby, publicly censured for engaging in conduct involving misrepresentation and engaging in conduct that is prejudicial to the administration of justice.” In its order entered on October 17, 1989, the trial court denied the motion of attorney Sterling to reconsider and to vacate that part of its order of March 3, 1989, in which he was censured. Mr. Sterling appeals, raising three issues for review: (1) whether the trial court had jurisdiction to discipline him or whether the supreme court of Illinois alone has jurisdiction to discipline attorneys licensed to practice law in Illinois; (2) whether the evidence is clear and convincing that Mr. Sterling deliberately misled the trial court or whether the trial court erroneously construed what Mr. Sterling said; and (3) whether the advice given by Mr. Sterling to his client “that a timely post[-]trial. motion filed pursuant to Ill. Rev. Stat.[,] ch. 110, par. 2 — 1203 stays the execution of a child custody award” was erroneous and, if so, whether it was so erroneous as to warrant public censure.

We turn first to the issue presented for our review by the respondent’s attorney, Mr. Sterling, pertaining to the trial court’s jurisdiction to censure him. The censure of Mr. Sterling by the trial court arose in the context of a hearing conducted on February 23, 1989, on another petition of the petitioner for contempt. The respondent had refused to deliver custody of the parties’ minor child to the petitioner on November 20, 1987, as ordered by the trial court, fearing, he testified, for the child’s safety in the presence of the petitioner’s adult sons from a prior marriage. On November 20, 1987, he had filed a post-trial motion requesting the court to set aside its order granting custody of the minor child to petitioner, in part because of this alleged treatment of the minor. The respondent indicated that he had retained physical custody of the child in reliance upon the advice of counsel. The respondent made tape recordings of statements of the minor child concerning his treatment by the petitioner’s adult sons. Information pertaining to the date of the making of the tape recordings by the respondent was central to the trial court’s imposition of censure upon Mr. Sterling.

In its order of March 3, 1989, the trial court found in relevant part as follows:

“The [respondent’s] argument that he relied on his attorney’s advice is specious. The attorney’s position that the Tost[-]Trial Motion’ filed 11 — 20—87 created an automatic stay of the custody award under 111. Rev. Stat., [c]h. 110, para. 2 — 1203(b) is so grossly in error that no competent attorney could seriously rely on such a position. The attorney is the agent of the party and an attorney’s acts taken within the scope of his employment, as here, bind the party. This Court expresses no opinion as to whether the [respondent] has a cause of action over against attorney Sterling for legal malpractice. Nor does this court elect to discipline attorney Sterling pursuant to 111. Rev. Stat., [c]h. 110A, para. 63[(]B[)](3) [Supreme Court Rule 63(B)(3)] and Rule 1— 102 [Rule 1 — 102 of the Code of Professional Responsibility] for this misconduct and his misconduct in misrepresenting the date upon which he heard the tapes (Mother’s Exhibit No. 1 of 2— 23 — 87) except to find here, publicly, that both acts individually constituted a violation of 111. Rev. Stat., [c]h. 110A, Rule 1— 102(4) and (5) for which attorney Sterling is hereby censured.”

At the hearing conducted on September 21, 1989, concerning, among other matters, Mr. Sterling’s motion to reconsider that part of the order of March 3, 1989, censuring him, the trial court stated as follows:

“I do have one matter I want to make of record at this time in response to the arguments submitted, particularly where both counsel have stated their view that in the event that the Court was correct in the finding as to Mr. Sterling that the sanction was not severe. That was done in view of the fact that these two parties have engaged in one of the more hotly contested domestic relation matters that I have had the opportunity to hear, due further to the fact that Mr. Sterling and Mr. Rhein have found it difficult to deal with each other in this matter as members of the bar, and due to the rather extreme pressures that were on Mr. Dali and Mr. Sterling in the face of a contempt proceeding that contained the potential, at least, for the most serious of sanctions as to the father’s position.
I would like to note that I did not order a report of that proceeding be prepared and forwarded to the Attorneys [s-ic] Registration and Disciplinary Commission, which some authorities have determined under the Code of Judicial Conduct is the primary obligation where a court finds misconduct occurring. I adopted the minority view that a court may engage in some discipline less than that when I entered the sanction that I did. I want the record to be clear in that regard, in the face of those arguments.”

In its order of October 17, 1989, the trial court expressly found that in its earlier order “attorney Sterling was found to be in violation of the attorney disciplinary rules of the Illinois Supreme Court.”

In part B of article VII, pertaining to registration and discipline of attorneys, of the Illinois Supreme Court Rules, Supreme Court Rule 771 (107 Ill. 2d R. 771) provided, at the time relevant herein, as follows concerning “Types of Discipline”:

“Conduct of attorneys which violates the Code of Professional Responsibility contained in article VIII of these rules or which tends to defeat the administration of justice or to bring the courts or the legal profession into disrepute shall be grounds for discipline by the court. Discipline of attorneys may be:
(a) disbarment;
(b) disbarment on consent;
(c) suspension for a specified period and until further order of court;
(d) suspension for a specified period of time;
(e) suspension until further order of the court;
(f) suspension for a specified period of time or until further order of the court with probation; or
(g) censure.” (Emphasis added.)

Disciplinary Rule 1 — 102 of the Code of Professional Responsibility (107 Ill. 2d R. 1—102, repealed eff. Aug. 1, 1990; now see Illinois Rules of Professional Conduct, 134 Ill. 2d R. 1.1 et seq.), contained in article VIII of the Illinois Supreme Court Rules, stated in pertinent part:

“(a) A lawyer shall not
***
(4) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; or,
(5) engage in conduct that is prejudicial to the administration of justice.”

Supreme Court Rule 63(B)(3) (107 Ill. 2d R. 63(B)(3)) provides that “[a] judge having knowledge of a violation of these canons on the part of a judge or a violation of Rule 1 — 102 of the Code of Professional Responsibility on the part of a lawyer shall take or initiate appropriate disciplinary measures.”

The power to prescribe rules governing attorney conduct and to discipline attorneys for violating those rules rests solely in the supreme court of Illinois. (People ex rel. Brazen v. Finley (1988), 119 Ill. 2d 485, 519 N.E.2d 898; Kilpatrick v. First Church of the Nazarene (1989), 182 Ill. App. 3d 461, 538 N.E.2d 136.) Consistent with, this exclusive power, the supreme court, as it stated in Brazen,

“has adopted a Code of Professional Responsibility (107 Ill. 2d R. 1—101 et seq.), and appointed an Attorney Registration and Disciplinary Commission (ARDC) (107 Ill. 2d R. 751), along with an Administrator (107 Ill. 2d R. 752) to supervise ‘[t]he registration of, and disciplinary proceedings affecting, members of the Illinois bar’ (107 Ill. 2d R. 751). The court has further created a procedural scheme to enhance the ARDC in performing its duties, including inquiry, hearing and review boards. (107 Ill. 2d R. 753.) The court has also provided by rule for. the kind of discipline which it may implement for violation of provisions of the Code of Professional Responsibility. (107 Ill. 2d R. 771.) This court, through the use of its exclusive judicial power to prescribe rules governing attorney conduct, and to discipline attorneys for violating those rules, has created a comprehensive program to regulate attorneys and punish their misconduct.” 119 Ill. 2d at 494, 519 N.E.2d at 902.

The court in Ettinger v. Rolewick (1986), 140 Ill. App. 3d 295, 488 N.E.2d 598, noted that the supreme court has never deviated from the rule that it has original and inherent jurisdiction to regulate the practice of law. As was stated in Reed Yates Farms, Inc. v. Yates (1988), 172 Ill. App. 3d 519, 526 N.E.2d 1115, the supreme court has exclusive and plenary jurisdiction over attorney disciplinary matters, and courts other than the supreme court may adjudicate matters touching on attorney discipline only when acting, as agents of the supreme court upon direct order of that court. Attorney disciplinary proceedings, as the court in Yates said, are conducted by the Attorney Registration and Disciplinary Commission completely separate and apart from the judicial proceedings in which the alleged attorney’s misconduct occurred. The disciplining of attorneys is in the nature of an original proceeding in which the Attorney Registration and Disciplinary Commission and its various officers, as well as the inquiry board, the hearing panel, and the review board, serve as agents of the supreme court in administering the disciplinary functions that have been delegated to them. (Schnack v. Crumley (1982), 103 Ill. App. 3d 1000, 431 N.E.2d 1364.) Any sanctions based on alleged professional misconduct must be addressed to the Attorney Registration and Disciplinary Commission, which is vested with the authority to consider such matters and is the proper forum for such actions. Schnack, 103 Ill. App. 3d 1000, 431 N.E.2d 1364; see Richard/Allen/Winter, Ltd. v. Waldorf (1987), 156 Ill. App. 3d 717, 509 N.E.2d 1078; Britt v. Federal Land Bank Association (1987), 153 Ill. App. 3d 605, 505 N.E.2d 387.

Recently, in Freeman v. Myers (1989), 191 Ill. App. 3d 223, 547 N.E.2d 586, the trial court had ordered a mistrial, citing the breach by counsel of an order pertaining to a motion in limine, and had assessed attorney fees against counsel, citing Supreme Court Rule 63 (107 Ill. 2d R. 63) and Rule 1 — 102 of the Code of Professional Responsibility (107 Ill. 2d R. 1—102) in support of its decision. Upon review the court reversed the judgment of the trial court, observing that

“[t]he trial court here cited portions of Supreme Court Rule 63 and Rule 1 — 102 of the Code of Professional Responsibility as supporting its action of imposing attorney fees. However, these provisions do not grant the trial court such authority. Rule 63 addresses judicial duties and provides a judge should maintain order and decorum in proceedings before him. Rule 1 — 102 pertains to attorney misconduct and provides a lawyer shall not engage in conduct prejudicial to the administration of justice. These provisions provide for disciplinary measures to be taken by the Attorney Registration and Disciplinary Commission and do not provide for the trial court to order its own independent sanctions.” 191 111. App. 3d at 227, 547 N.E.2d at 589.

Similarly, in the instant case, the trial court “elect[ed] to discipline attorney Sterling pursuant to” Supreme Court Rule 63(BX3) and Rule 1 — 102 of the Code of Professional Responsibility. For his “misconduct” the trial court “censured” Mr. Sterling. The trial court may not do so, censure being a form of discipline set forth in Supreme Court Rule 771 for an attorney’s conduct in violation of the Code of Professional Responsibility. The power to discipline an attorney for such a violation rests solely in the supreme court. There is, of course, no suggestion that the trial court was acting as an agent of the supreme court upon direct order of that court. Accordingly, we reverse that part of the judgment of the trial court denying Mr. Sterling’s motion to reconsider, and we vacate that part of the trial court’s order of March 3, 1989, censuring him. We note that the trial court made no finding of contempt with respect to Mr. Sterling. In light of our disposition with regard to this issue, we need not address either of the other two issues Mr. Sterling presents for review.

We address the first issue raised by the respondent, whether the trial court abused its discretion in denying his motion to modify child support. Respondent stated in his motion to modify child support payments filed on May 16, 1989, that he sought to modify the order of the trial court of August 25, 1988, requiring support payments of $130 on the first and fifteenth of each month. He sought modification because at the time the order for support was entered he was the duly elected sheriff of Clinton County receiving an annual income of $37,500 but had resigned from that office on April 17, 1989, effective that day; as a consequence, he stated, he was unemployed, without income, ineligible to receive unemployment compensation, and unable to make the child support payments as ordered by the trial court. Respondent sought suspension of the provisions for child support payments to be made by him “until he again becomes employed and a reconsideration of his then earnings are made and a different amount for child support established.”

At a hearing conducted on September 21, 1989, concerning this motion, the respondent testified that following his resignation he had no source of income other than retirement income. At the time he resigned, criminal charges were pending against him in Sangamon County, and as a consequence, he said, he had been unable to perform his duties as sheriff. He testified further that the office had not been functioning properly while he was in office with such charges pending against him. He had sought employment with the State of Illinois and the Village of Aviston without success because of the pending criminal charges, which had been pending for “[j]ust a little over a year” at the time of the hearing. On cross-examination he admitted that he had known when he resigned that because of his legal problems he would have “an awful time” obtaining a job in law enforcement. He testified further that he had not been forced to resign and that “[n]o one ever asked me to resign” but that he had done so “for the betterment of the community and the Sheriff’s Department.” He said that there had “[n]ot really” been pressure on him to resign from the time of his arrest on September 19, 1988, and that the president of the County Board had been “talking” but not to respondent “about how he wanted [respondent] out.” The respondent denied having taken a paid leave of absence during the time in question.

In its order entered on October 17, 1989, the trial court found the respondent’s obligation of child support current through May 15, 1989, and that he had paid no support since that date. The trial court found further

“[t]hat the term of all sheriffs in Illinois runs through 11-30-90. Further, that the father for his own personal reasons voluntarily resigned as Sheriff 4-27-89. He has made no significant attempt to seek other employment either before or since that resignation. He has, however, been in receipt of some $7500.00 in loan proceeds, sale proceeds and other receipts in that interim.”

The trial court found as well that

“as a matter of law the father was not entitled to voluntarily resign as Sheriff with no prospects of alternative employment and no significant attempts at securing alternative employment. The father had had some differences with members of the County Board over his continued service as Sheriff, but he could not be impeached or otherwise removed from that office except upon a conviction for Official Misconduct. (Ill. Rev. Stat., [c]h. 38, para. 33—3.) And although he faced felony charges in Sangamon County, Illinois (still pending), the evidence here does not show that that case even alleges any charge of Official Misconduct. The Clinton County Sheriff’s Office had for months been operating with the Sheriff on a de facto paid leave of absence and no evidence has been submitted adequate to establish that this situation could not have continued through the current term, if necessary. On the other hand, the father’s conduct throughout these proceedings is rife with examples of an absence of good faith in complying with the property award, custody awards, and child support awards of this Court. This Court finds that the father’s voluntary resignation of his employment was not made in good faith but was made to evade his financial obligations to his ex-wife. Finally, in this regard, there is no evidence that the child’s financial resources and needs, nor the custodial mother’s, have changed since the entry of the Judgment of Dissolution of Marriage on 8-23-89.”

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)) provides in pertinent part that “the provisions of any judgment respecting maintenance or support may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” Economic reversals resulting from changes in employment or bad investments may constitute a material change in circumstances sufficient to warrant a modification of a child support order, if made in good faith. (In re Marriage of Eisenstein (1988), 172 Ill. App. 3d 264, 526 N.E.2d 496.) While substantial economic reverses resulting from employment or investment are proper circumstances in considering whether support obligations should be reduced or terminated, such changes in economic circumstances must be fortuitous in nature and not the result of deliberate action by the party seeking the reduction. (In re Marriage of Stephenson (1983), 121 Ill. App. 3d 698, 460 N.E.2d 1.) Unless good faith is shown, a voluntary termination of employment by a supporting spouse is not considered a material change in circumstances sufficient to warrant abatement or modification of support obligations. In re Marriage of Ebert (1980), 81 Ill. App. 3d 44, 400 N.E.2d 995.

In his brief the respondent asserts that he “voluntarily resigned in order to promote law enforcement and the orderly administration of the Office of Sheriff because of his pending criminal charges. It was an involuntary resignation because to continue to serve would cripple law enforcement.” The adjudication of a modification of child support rests within the sound discretion of the trial court, whose decisions in these matters will not be reversed in the absence of an abuse of discretion. (In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 483 N.E.2d 692.) In the instant case, our review of the record reveals that the findings of the trial court concerning respondent’s motion to modify child support payments may not be said to be against the manifest weight of the evidence. The trial court expressly found that the respondent’s voluntary resignation of his employment was not made in good faith. Thus, the change in his economic circumstances was not fortuitous and did not constitute a material change sufficient to warrant modification of the order of child support. Contrary to the respondent’s contentions, the trial court did not abuse its discretion indenying his motion to modify child support payments. Hence, that part of the trial court’s order entered on October 17, 1989, denying the respondent’s motion to modify child support is affirmed.

Concerning the other issue respondent raises for our review, whether the trial court’s determination that he was guilty of contempt for failure to pay child support was an abuse of discretion or against the manifest weight of the evidence, he maintains that his acknowledged failure to pay child support “was not done in contempt, but rather for other reasons, namely, lack of income.” In its order of October 17,1989, the trial court noted that

“the father unilaterally terminated his child support payments upon voluntarily resigning his employment. He did not make any significant attempt to obtain other employment either before or since that resignation. Nor did he apply any of the some $7500.00 he received between his retirement and this hearing toward this obligation:
‘Furthermore, a party may not unilaterally terminate child support payments. ([Citations omitted.) The modification of such payments is a judicial function; the court’s decision to modify the payment of child support is discretionary in nature and only takes effect prospectively. ([Citations omitted.)’ (In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 914, 483 N.E.2d 692.)
The father has failed to meet his burden of proof on these facts that his unilateral termination of the payment of child support upon voluntarily resigning his employment while, in fact, in receipt of thousands of dollars was not in willful, indirect civil contempt of court:
‘Evidence of noncompliance with a court order of child support payments makes out a prima facie case for indirect, civil contempt. ([Citations omitted.) The burden then rests on the alleged contemnor to show that his noncompliance was not wilful. ([Cjitation omitted.) Whether noncompliance is wilful or with a valid excuse is a question of fact for the trial court.n (In re Marriage of Harvey (1985), 136 Ill. App. 3d 116,117-118, 483 N.E.2d 397.)
This finding of indirect, civil contempt of court includes, but is not limited to, a finding that the father’s failure to comply with the child support order was without cause or justification.”
Respondent asserts, in his brief that
“[t]he Court indicated that [respondent] received thousands of dollars during the period of alleged contempt, and did not pay child support. It is noted that he borrowed $4,000.00 and sold property to pay IMFR [sic] [Illinois Municipal Retirement Fund]. He borrowed monies to live. He had no income. Surely, this was not willful or contemptuous.”

Whether a party is guilty of contempt is a question of fact for the trial court, and a reviewing court will not disturb the finding unless it is against the manifest weight of the evidence or the record reflects an abuse of discretion. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 469 N.E.2d 167.) The noncompliance with an order to pay maintenance constitutes prima facie evidence of contempt. (Logston, 103 Ill. 2d 266, 469 N.E.2d 167.) Therefore, once the prima facie showing is made, the burden shifts to the defendant, who may then defend by showing that he is unable to pay. (Logston, 103 Ill. 2d 266, 469 N.E.2d 167.) To prove this defense, a defendant must show that he neither has money now with which he can pay nor has disposed wrongfully of money or assets with which he might have paid. (Logston, 103 Ill. 2d 266, 469 N.E.2d 167.) A clear defense to contempt exists where the failure of a person to obey an order to pay is due to poverty, insolvency, or other misfortune, unless that inability to pay is the result of a wrongful or illegal act. (In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 507 N.E.2d 912.) However, the defense of poverty and misfortune as a valid excuse for nonpayment has been found applicable only in the most extreme cases, notably where a defendant had no money and no way of getting money to meet his support obligations (Betts, 155 Ill. App. 3d 85, 507 N.E.2d 912). Further, financial inability to comply with an order must be shown by definite and explicit evidence (In re Marriage of Chenoweth (1985), 134 Ill. App. 3d 1015, 481 N.E.2d 765). That burden is not met by testimony of a general nature with regard to financial status. Chenoweth, 134 Ill. App. 3d 1015, 481 N.E.2d 765.

The respondent concedes that he failed to pay child support as ordered by the trial court but maintains that his failure was caused by a “lack of income.” However, he failed to show his financial inability to comply with the order by the requisite definite and explicit evidence. The question whether respondent was guilty of contempt was one of fact for the trial court. Our review of the record makes plain that the trial court’s finding of willful contempt of court was neither against the manifest weight of the evidence nor an abuse of discretion. Therefore, that part of the trial court’s order entered on October 17, 1989, granting the petitioner’s petition for contempt, filed on June 14, 1989, and amended on August 3, 1989, is affirmed.

In summary our disposition is as follows: that part of the trial court’s order of March 3, 1989, censuring attorney Sterling is vacated; that part of the trial court’s order entered on October 17, 1989, denying attorney Sterling’s motion to reconsider and to vacate that part of the order of March 3, 1989, censuring him is reversed; that part of the trial court’s order entered on October 17, 1989, denying the respondent’s motion to modify child support is affirmed; that part of the trial court’s order entered on October 17, 1989, granting the petitioner’s petition for contempt, filed on June 14, 1989, and amended on August 3, 1989, is affirmed.

Affirmed in part; reversed in part and vacated in part.

WELCH and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RARICK

license: Public Domain

text:
      In re MARRIAGE OF M. LOUISE PITTMAN, Petitioner-Appellee, and PAUL C. PITTMAN, Respondent-Appellant.
    Fifth District
    No. 5—89—0655
    Opinion filed April 3, 1991.

      Patrick Callahan, of Callahan & Moran, of Trenton, for appellant.
    Melissa A. Chapman Rheinecker, -of Morris B. Chapman & Associates, Ltd., of Granite City, for appellee.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Husband, Paul C. Pittman, appeals from the judgment of the circuit court of Madison County pertaining to the distribution of the parties’ property in the second half of their bifurcated dissolution of marriage proceedings.

Paul and M. Louise Pittman were married in August of 1980. Husband was then 62 and wife 54. He worked for the United States Department of Agriculture, while she worked at Granite City Steel. Wife, however, gave up her job of 30 years shortly after the parties’ marriage. During 1983 and 1984, the parties separated for some six months, but later reconciled and resumed their marriage for a period of another two years. After a second period of separation, the parties decided to dissolve their marriage. A judgment of dissolution of marriage ultimately was entered July 22, 1987, on the issue of grounds only with the property distribution occurring in 1989. In the second half of the proceedings, the trial court awarded each party his or her nonmarital property and then ordered husband to pay wife one-half of the amounts he transferred from marital funds to his children as well as one-half of the funds in husband’s First National Bank of Vandalia accounts. Wife was also awarded a 1982 Chrysler automobile and one-half of the ratio of husband’s monthly service pension earned during the marriage. Neither party was awarded maintenance, and each was held responsible for his or her own attorney fees and costs.

Husband raises five issues on appeal: the trial court erred in (1) awarding wife $5,000 as reimbursement for her efforts involved in renovating husband’s nonmarital property; (2) not awarding husband one-half of the money wife removed from the parties’ joint account during their first separation; (3) ordering husband to pay wife one-half of the money loaned to his son during the marriage; (4) requiring husband pay wife one-half of the money in the First National Bank accounts; and (5) finding husband dissipated wife’s car while at the same time not awarding him one-half of the marital funds wife used during the marriage to purchase a new car titled in her name alone. We affirm in part and reverse and remand in part.

We initially note that in all dissolution cases, the trial court’s decisions pertaining to property division will not be disturbed on review in the absence of an abuse of the court’s discretion. (E.g., In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 414, 464 N.E.2d 795, 802-03.) In determining whether the court has abused its discretion, the question is not whether we agree with the division, but whether the court acted arbitrarily without employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial prejudice resulted. (In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 326, 491 N.E.2d 894, 898.) In other words, a court’s discretion will be considered abused only when no reasonable man would agree with the decision reached by the trial court. Hilkovitch, 124 Ill. App. 3d at 414, 464 N.E.2d at 803.

Turning to the first issue, husband contends the court erred in awarding wife $5,000 as reimbursement for her personal efforts involved in renovating the nonmarital property of husband, specifically, a house which the parties used as their marital residence during the first part of their marriage. At the time when the parties married, husband was working out of Carrollton, Illinois. Both husband and wife had residences in other parts of the State, neither of which was particularly close to Carrollton. Husband therefore decided to purchase a residence in Carrollton. Wife chose not to participate in the transaction; consequently, husband purchased the house in his name with his own funds. Shortly after the parties moved in, however, wife began redecorating the house. Wife testified that over a six-month period she wallpapered four rooms and a stairwell, painted nine rooms, put in carpeting for two rooms, installed wainscoting in one room and along the stairway, re-caulked and painted 15 windows, hand-sewed curtains for seven rooms, installed shades for 22 windows and put in a garden. She estimated her labor to be worth some $7,000. Husband concedes wife did make some contributions to the refurbishing of the house, but asserts such contributions were not as significant as wife claims nor did they contribute substantially to the appreciation of the property. The trial court, in awarding wife $5,000 as reimbursement for her contributions, necessarily found such contributions to be significant. We cannot say the court’s award reveals any abuse of discretion in this instance. There was ample evidence for the trial court’s finding. More importantly, it is for the trier of fact to determine the parties’ credibility. (See In re Marriage of Hofstetter (1981), 102 Ill. App. 3d 392, 396, 430 N.E.2d 79, 82.) We therefore find no error with regard to this contention. See In re Marriage of Thornton (1985), 138 Ill. App. 3d 906, 918, 486 N.E.2d 1288, 1296. Cf. In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 853-54, 493 N.E.2d 1088, 1091-92.

For his second point on appeal, husband contends the court erred in failing to award him one-half of. the money removed by wife from their joint accounts upon the parties’ first separation. According to husband, wife withdrew some $1,500 from these accounts for moving expenses. While this may be true, the parties reconciled a short time later and cohabited for another two years. Under such circumstances, the trial court did not err in not requiring any repayment, a point which husband conceded in oral argument before this court.

Husband next argues the trial court erroneously ordered him to pay wife one-half of a $5,000 loan to his son. Husband claims the money was either loaned before the marriage or, if during the marriage, came from his nonmarital funds. Other evidence, however, revealed the loan was made during the marriage. And, no evidence established the source from which the money was drawn. Again, we are faced with a credibility issue which the trial court resolved in wife’s favor. And once again, we cannot say the court erred in reaching this resolution. Even uncontradicted testimony, if inherently unreasonable or improbable, need not be believed. Hilkovitch, 124 Ill. App. 3d at 415, 464 N.E.2d at 803.

Up to this point, we have ruled against husband. But, with respect to issues four and five, we find that husband’s contentions not only have merit but also require reversal and reconsideration by the trial court.

In point four on appeal, husband asserts the trial court erred in directing him to pay wife one-half of the sum of monies (specifically $6,774.35) from his accounts at First National Bank of Vandalia. We have no quarrel with wife’s assertions that these accounts now held in the names of husband and his son originally were marital property. Nor do we have any quarrel with requiring husband to pay wife one-half of the sum of the monies in the accounts. The problem lies in the amount to be divided. In making its division, the trial court used a July-August 1988 statement to value the accounts. The parties’ marriage, however, was dissolved a year earlier. It is well established that the date of valuing marital assets is the date the judgment of dissolution was entered. (E.g., In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 217, 543 N.E.2d 119, 127; In re Marriage of Frazier (1984), 125 Ill. App. 3d 473, 476, 466 N.E.2d 290, 293.) The trial court therefore erred in using the value as of July-August 1988 in apportioning these assets. Wife argues husband presented this evidence of value himself at trial and therefore cannot complain on appeal. The truth of the matter is that husband was asked at trial how much money he had in the accounts at the present. No matter what the amount was, the answer was irrelevant to the issue of dividing marital assets. No evidence whatsoever was presented by either party as to the balance in the accounts at the time of the dissolution of their marriage. It would be just as easy to assert wife cannot be heard to complain on appeal for presenting no evidence as to the value of an asset in which she believes she is entitled to share. There simply is no evidentiary basis for awarding wife the figure of $6,774.35, representing one-half of the parties’ marital accounts. While we recognize that generally it is the parties’ obligation to present the trial court with sufficient evidence of the value of property (see In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54, 448 N.E.2d 545, 550), in this instance when no evidence whatsoever has been presented, we choose not to allow this portion of the judgment to stand. We therefore remand this issue to the trial court for further consideration.

We also remand for further consideration husband’s final point on appeal. Husband contends the trial court erroneously awarded wife “her” car purchased during the marriage out of marital funds without requiring any reimbursement to husband based on the finding husband had dissipated wife’s nonmarital car. We find absolutely no evidence of dissipation in this instance, no matter which party is believed as to how much mileage was put on wife’s nonmarital car during the marriage prior to being traded in. Dissipation generally is defined as the use of marital property for the sole benefit of one spouse for a purpose unrelated to the marriage while the marriage is in the process of breaking down. (See In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99; And, 142 Ill. App. 3d at 331, 491 N.E.2d at 901.) Section 503(d)(l) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(l)) by implication adds nonmarital property to this definition as well. While it is true the dissipating party need not derive personal benefit from the dissipation in order to be held accountable (see Jones, 187 Ill. App. 3d at 233, 543 N.E.2d at 137; In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210), here wife’s car was used to further the purpose of the marriage itself. Husband used the car either to drive to work, a use which provided support for both parties, or to visit their respective properties, another joint purpose. We simply cannot find any evidence in the record of dissipation under these circumstances. This does not mean to say the trial court in the distribution of property cannot award the car purchased during the marriage to wife without any corresponding setoff to husband. What we are holding simply is that the basis stated in the trial court’s order for doing so is in error. We therefore believe the trial court should reconsider its award without factoring in husband’s alleged dissipation of wife’s nonmarital vehicle.

For the aforementioned reasons, we affirm in part the judgment of the trial court of Madison County with respect to the issues of reimbursing wife for her contributions to husband’s nonmarital property, refusing to award husband one-half of the money wife used for moving expenses during the parties’ first separation, and ordering husband to pay wife one-half of the money loaned to his son during the marriage. With respect to the issues of husband’s dissipation of wife’s car and the valuation of the First National Bank accounts, we reverse and remand for further proceedings consistent with this opinion.

Affirmed in part; reversed and remanded in part.

LEWIS and GOLDENHERSH, JJ., concur.


author: JUSTICE WELCH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE BANKS, JR., Defendant-Appellant.
    Fifth District
    No. 5—89—0570
    Opinion filed April 10, 1991.
    Daniel M. Kirwan and Lawrence J. O’Neill, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    William R. Haine, State’s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Kendra S. Mitchell, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE WELCH

delivered the opinion of the court:

Defendant, Willie Banks, Jr., appeals from his sentence to natural life imprisonment as a habitual criminal following his conviction in the circuit court of Madison County for the offense of armed robbery. Defendant had been previously convicted of three armed robberies (committed in a single course of conduct) in 1973 and a fourth armed robbery in 1978.

Defendant was convicted of the instant armed robberies (two counts) on January 26, 1989, following a bench trial before the circuit court of Madison County. On April 11, 1989, the State filed a notice of former convictions under section 33B—2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33B—2) seeking adjudication and sentencing of defendant as a habitual criminal. On April 25, 1989, a hearing was held to determine whether the defendant qualified as a habitual criminal. On August 15, 1989, the court issued written findings that the requirements of the habitual criminal statute had been satisfied. Defendant was adjudged a habitual criminal and sentencing was set for August 22, 1989. At the sentencing hearing, defendant was sentenced to a term of imprisonment of natural life as required by section 33B—1(e) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 33B—1(e)).

On appeal, defendant concedes that, on the face of the record, he apparently qualifies as a habitual criminal. However, he argues that such an adjudication is not appropriate in the instant case because, at the time of his first convictions for armed robbery, he was only 15 years of age. Although still a juvenile at that time, he was tried and sentenced as an adult. Defendant argues that to use a conviction obtained while he was a juvenile to adjudicate him a habitual criminal and impose a life sentence is contrary to the legislative intent of the habitual criminal statute because it constitutes a doubly enhanced penalty. He argues that he received an enhanced penalty for the 1973 armed robberies because he was tried and sentenced as an adult. To now use that enhanced criminal conviction to enhance his sentence for the instant armed robbery to a life term under the habitual criminal statute is, he argues, a prohibited double enhancement. (See People v. Haron (1981), 85 Ill. 2d 261, 422 N.E.2d 627.) He further argues that it is not reasonable to suppose that the legislature intended to include offenses committed as a juvenile to qualify one for habitual criminal sentencing and that if that was the legislature’s intent, it would be more clearly expressed. Finally, he asks that his adjudication and sentence as a habitual criminal be vacated and that this matter be remanded for resentencing.

The precise issue presented by defendant is not addressed in the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801—1 et seq.), the Criminal Code of 1961 or the case law to date. However, a very similar issue was addressed in Fitzsimmons v. Norgle (1984), 104 Ill. 2d 369, 472 N.E.2d 802. Fitzsimmons involved an argument identical to that presented in the instant case but pertaining to section 5— 5 — 3(c)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005—5—3(c)(2)). That section provides that one convicted of a Class 2 or greater felony is not eligible for probation if he has formerly been convicted of a Class 2 or greater felony within 10 years. In such a situation, no less than the minimum term of imprisonment for the particular felony is mandatory. The defendant in Fitzsimmons had committed a Class 2 felony when he was only 14 years old, but had been tried and sentenced as an adult. Upon his subsequent conviction for a Class 2 felony, the trial court sentenced the defendant to probation despite the State’s protestation that he was not eligible under section 5—5—3(c)(2). The trial court held that, because the first conviction occurred while defendant was a juvenile, the first conviction was not the type that the statute contemplated as foreclosing probation. The State filed a petition for mandamus to require the trial court to impose a sentence of imprisonment.

The supreme court held that the prior conviction required to bring section 5—5—3(c)(2) into play encompassed a conviction under the criminal code while the offender was a juvenile. It held that no distinction is drawn between convictions rendered while the defendant was a juvenile and those which occur after the defendant is no longer subject to the authority of the juvenile court.

Defendant argued that to apply section 5—5—3(c)(2) to him would constitute a double enhancement of a penalty because the section of the Juvenile Court Act allowing trial as an adult (Ill. Rev. Stat. 1981, ch. 37, par. 702—7(3), now Ill. Rev. Stat. 1989, ch. 37, par. 805—4) is an enhancing statute, as is section 5—5—3(c)(2). Defendant argued that the legislature could not have intended such a double enhancement. The supreme court held that, while double enhancement of a penalty is not permitted without a clear indication of a legislative intent to accomplish that result, and that the slightest ambiguity in a statute calling for double enhancement prohibits double enhancement, in the case before the court, the statute’s meaning was clear and unambiguous. Thus, the fact that the penalty imposed might be the result of a double enhancement had no bearing on the construction of the plain meaning of the statute.

We think the instant case is remarkably similar to Fitzsimmons. Indeed, the supreme court in Fitzsimmons distinguished the same cases relied upon by defendant in the case at bar. Section 33B — 2 is unambiguous and clear in its meaning. Any conviction may be used as a former conviction under the habitual criminal statute. No exception is made for convictions obtained while the defendant was a juvenile. We see no indication in the Juvenile Court Act or the Criminal Code of 1961 that criminal convictions obtained while the defendant is a minor should be treated any differently than criminal convictions of an adult. It seems to us that a conviction is a conviction. So the supreme court held in Fitzsimmons.

Defendant argues that the instant case is distinguishable from Fitzsimmons because in the instant case the penalty for being adjudged a habitual criminal is very severe, while the penalty in Fitzsimmons merely involved the denial of probation. Defendant argues that the legislature could not have intended that a crime committed while a defendant was a juvenile might one day result in sentencing to a term of life imprisonment. We reiterate that we find no ambiguity in the language of section 33B — 2. It seems clear to us that the legislature intended that any conviction would serve to qualify a defendant as a habitual criminal.

There is another reason we do not believe that defendant’s sentence as a habitual criminal constitutes impermissible double enhancement, a reason not addressed by the supreme court in Fitzsimmons. In Fitzsimmons, the supreme court assumed for the sake of argument, but did not hold as a matter of law, that the predecessor of section 5 — 4 of the Juvenile Court Act, which allows certain minors to be tried as adults, was an enhancement provision. (Ill. Rev. Stat. 1989, ch. 37, par. 805—4.) We do not believe that section 5 — 4 of the Juvenile Court Act constitutes an enhancement provision.

In the typical enhancement provision, the classification of an offense, or the penalty to be imposed therefore, is increased by virtue of some element of, or fact inherent in or related to, the offense. For example, battery, a misdemeanor, may be enhanced to aggravated battery, a felony, by virtue of commission of the offense while armed with a dangerous weapon, or the infliction of great bodily harm. (Ill. Rev. Stat. 1989, ch. 38, pars. 12—3, 12—4.) The offense of armed violence may be increased from a Class 2 felony to a Class 1 felony if it is a second or subsequent violation. (Ill. Rev. Stat. 1989, ch. 38, par. 33A—3.) Misdemeanor theft may be increased to a felony by virtue of a prior conviction or theft of property having a value greater than $300. Ill. Rev. Stat. 1989, ch. 38, par. 16—1.

However, under section 5 — 4 of the Juvenile Court Act, neither the penalty for, nor the classification of, the offense committed is increased. Section 5 — 4 merely allows transfer of the case from one court system to another. Furthermore, allowance of this transfer is not based on any fact or element inherent in or necessarily related to the offense itself. Section 5 — 4 grants a juvenile court judge discretion to permit prosecution of a minor over the age of 13 years under the criminal laws upon consideration of the following matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the juvenile court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority. (Ill. Rev. Stat. 1989, ch. 37, par. 805—4(3)(b).) Once the determination is made to transfer the case from the juvenile court to the criminal court, the offender is treated in every way as an adult. However, we do not believe that this constitutes an enhancement of either the offense or the penalty therefor. Accordingly, we do not believe that allowing a criminal conviction, obtained against a minor who has been transferred to criminal court under section 5 — 4 of the Juvenile Court Act, to be used as a basis to adjudicate that defendant a habitual criminal under section 33B — 2 of the Criminal Code of 1961 constitutes a double enhancement.

For the foregoing reasons, the judgment of the circuit court of Madison County is affirmed.

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: PRESIDING JUSTICE LUND

text:
    NATIONAL ENVIRONMENTAL SERVICES CORPORATION, Petitioner, v. THE POLLUTION CONTROL BOARD et al., Respondents.
    Fourth District
    No. 4—90—0702
    Opinion filed April 23, 1991.
    Rehearing denied May 22, 1991.

      Clifton A. Lake and Mark J. Steger, both of McBride, Baker & Coles, of Chicago, for petitioner.
    Roland Burris, Attorney General, of Springfield (Christine Zeman and John J. Kim, Assistant Attorneys General, of counsel), for respondents.
   PRESIDING JUSTICE LUND

delivered the opinion of the court:

Petitioner National Environmental Services Corporation (NESC) seeks judicial review under section 41 of the Illinois Environmental Protection Act (Act) (Ill. Rev. Stat. 1989, ch. 111½, par. 1041) of an order of the Illinois Pollution Control Board (Board). (National Environmental Services Corp. v. Illinois Environmental Protection Agency (July 19, 1990),_Ill. PCB_, Op. 89—129.) The Board’s order affirmed the Illinois Environmental Protection Agency’s (Agency) determination that the hospital waste incinerated at NESC’s facility is subject to the hazardous-waste fee pursuant to section 22.2 of the Act (Ill. Rev. Stat. 1989, ch. lll½, par. 1022.2).

NESC operates an incinerator at Clinton, Illinois, which burns medical waste from hospitals and other health-care facilities. The medical waste arrives at the facility in sealed containers, and the entire container is then incinerated by NESC without ever being opened.

NESC applied for a permit enabling it to treat “hazardous (infectious) hospital waste” as defined in the Illinois Administrative Code (Code) (35 Ill. Adm. Code §809.901 (1985)). The Agency granted NESC a development permit and a supplemental permit with a “generic waste stream permit attachment.” The development permit authorized the construction, start-up, and shakedown of the incinerator. The development permit contained two conditions relevant to this appeal. Condition No. 2 prohibited NESC’s facility from receiving any “RCRA hazardous waste, radioactive waste, mixed waste, asbestos waste, or wastes which held or are contaminated with chemotherapy drugs listed in 45 IAC 721.133 ([see 35 Ill. Adm. Code §721.133 (1987 Supp.)].” “RCRA” refers to the Federal Resource Conservation and Recovery Act of 1976 regulating hazardous waste (42 U.S.C §6921 (1988)). Condition No. 24 of the development permit required NESC to comply with section 22.2(b) of the Act (Ill. Rev. Stat. 1989, ch. Ill½, par. 1022.2(b)), and regulations set forth in the Code (35 Ill. Adm. Code §§855.101 through 855.212 (1985)), both of which refer to the hazardous-waste fee system.

The supplemental permit authorized NESC to accept “hazardous (infectious) hospital waste.” It indicated that the hazardous hospital waste NESC accepted for incineration was subject to the hazardous-waste fee. This classification imposes on NESC a fee pursuant to section 22.2 of the Act.

NESC filed a petition for review with the Board, contesting the condition in the supplemental permit imposing the hazardous-waste fee. After a hearing on NESC’s petition, the Board affirmed the Agency’s decision in an opinion and order on July 19, 1990. In its opinion, the Board held that hazardous hospital waste was intended to be subject to the hazardous waste fee under section 22.2 of the Act because (1) the statutory language, including the definitions of hazardous waste (Ill. Rev. Stat. 1989, ch. Ill½, par. 1003.15), hazardous hospital waste (Ill. Rev. Stat. 1989, ch. lll½, par. 1003.13), and industrial process waste (Ill. Rev. Stat. 1989, ch. Ill½, par. 1003.17), indicates that this is what the legislature intended; (2) prior Agency regulations implementing the fee system indicate hazardous hospital waste is subject to the fee (4 Ill. Reg. 125, 133 (eff. Aug. 27, 1980)); (3) present Agency regulations implementing the fee system at title 35, section 855.102, of the Code include the definition of hazardous hospital waste (35 Ill. Adm. Code §855.102 (1985)), and title 35, section 855.203, requires hospitals to keep records of hazardous hospital waste (35 Ill. Adm. Code §855.203 (1985)); (4) the definition of hazardous waste is not limited to what is defined as hazardous waste under Federal law because when section 22.2 was originally enacted there was no Federal law defining hazardous waste; and (5) Board opinions dating from December 1980 indicate that hazardous hospital waste is subject to the fee imposed by section 22.2 of the Act. NESC filed a motion for reconsideration, which the Board denied on September 13, 1990. NESC filed a petition for review with this court, challenging the Agency’s imposition of the hazardous-waste fee in the supplemental permit issued to NESC, as affirmed by the Board.

We hold that the infectious hospital waste NESC accepts was properly classified as “hazardous waste,” and affirm the Agency’s imposition of the hazardous-waste fee pursuant to section 22.2 of the Act, as affirmed by the Board.

Initially, the parties disagree over the standard of review this court should apply; NESC argues the Board’s decision should be reviewed de novo, while the Agency claims the Board’s decision may only be reversed if it is against the manifest weight of the evidence. Both are in error. This case involves' solely a question of law, the proper interpretation of section 22.2 of the Act, and the facts are undisputed. In such a case, the reviewing court generally accords some deference to the agency’s interpretation of a statute it is charged with administering, but its interpretation is not binding on the court and will not be upheld if erroneous. (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222.) The Agency and the Board are both charged with administering the Act, and their interpretation that hazardous hospital waste is hazardous waste subject to fee should be given some deference, but it is clearly not controlling.

Section 22.2 of the Act imposes a fee on owners or operators of hazardous waste sites for hazardous waste they accept at that site for treatment. Section 22.2 states in part:

“(a) There are hereby created within the State Treasury two special funds to be known respectively as the ‘Hazardous Waste Fund’ and the ‘Hazardous Waste Research Fund,’ constituted from the fees collected pursuant to this Section.
(b)(1) On and after January 1, 1989, the Agency shall collect from the owner or operator of each of the following sites a fee in the amount of:
* * *
(D) 2 cents per gallon or $4.04 per cubic yard for 1989, 2.5 cents per gallon or $5.05 per cubic yard for 1990, and 3 cents per gallon or $6.06 per cubic yard thereafter of hazardous waste received for treatment at a hazardous waste treatment site, if the hazardous waste treatment site is located off the site where such waste was produced and if such hazardous waste treatment site is owned, controlled and operated by a person other than the generator of such waste.” (Ill. Rev. Stat. 1989, ch. 111½, pars. 1022.2 (a), (b)(1)(D).)

There is no doubt that if the medical waste NESC accepts is hazardous waste, it should be subject to the hazardous-waste fee.

The sole issue in this case is whether infectious medical hazardous waste constitutes “hazardous waste” under section 22.2, and is thus subject to a fee. “Hazardous waste” is defined in section 3.15 of the Act:

“ ‘Hazardous waste’ means a waste, or combination of wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may cause or significantly contribute to an increase in mortality or an increase in serious, irreversible, or incapacitating reversible, illness; or pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed, and which has been identified, by characteristics or listing, as hazardous pursuant to Section 3001 of the Resource Conservation and Recovery Act of 1976, P.L. 94—580, or pursuant to Board regulations.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 111½, par. 1003.15.

Section 3.13 of the Act defines “hazardous hospital waste” as “waste generated in connection with patient care that is contaminated with or may be contaminated with an infectious agent that has the potential of inducing an infection and has not been rendered innocuous by sterilization or incineration.” (Ill. Rev. Stat. 1989, ch. 111½, par. 1003.13.) The Code definition of “hazardous (infectious) hospital waste” repeats this statutory definition verbatim. (35 Ill. Adm. Code §809.901 (1985).) In its opinion, the Board seems to equate the terms “hazardous hospital waste” with “hazardous (infectious) hospital waste.” Because of the similarity in the definitions, we also find the terms interchangeable.

The language of section 3.15 of the Act, defining hazardous waste, indicates the legislature’s intent that hazardous hospital waste fall within the definition of hazardous waste, and is subject to the fee under section 22.2. Section 3.15 is a one-sentence definition, but it provides three ways in which a waste may be classified as “hazardous.” The first part of section 3.15 defines a hazardous waste as one “which because of its *** infectious characteristics may cause or significantly contribute to” an increase in mortality or serious illness. (Ill. Rev. Stat. 1989, ch. 111½, par. 1003.15.) The hazardous (infectious) hospital medical waste NESC accepts, because of its infectious characteristics, meets this definition.

The second part of the definition provides two additional ways to identify waste as hazardous. Waste is “hazardous” which “poses a threat to humans or the environment” when improperly handled and which has been identified as a hazardous waste pursuant to (1) RCRA or (2) Board regulations. This second part is separated from the first part of the definition by a semicolon, and followed by “or,” signifying the legislature’s intent that the second part provides methods of defining hazardous waste in addition to the method contained in the first part.

NESC argues that the Act indicates the hazardous hospital waste it seeks to treat is not subject to the hazardous-waste fee. By its reading, NESC maintains the only way waste may be classified as a hazardous waste is via the second part of section 3.15, i.e., the substance must pose a threat to human health or the environment and be identified as a hazardous waste by either RCRA or Board regulations. Since neither RCRA nor Board regulations have identified hospital hazardous waste as a hazardous waste, NESC argues the hazardous hospital waste it accepts falls outside the hazardous-waste fee system. NESC contends the first part of the definition of hazardous waste in section 3.15 merely identifies general characteristics of hazardous waste, and that the legislature intended to require in addition that either Federal regulations under RCRA or the Board identify the substances falling within this category of hazardous waste. However, this argument ignores the plain language of the first part of section 3.15, which provides that a waste may be classified as hazardous based on its infectious characteristics. Because the waste NESC accepts meets the first part of the definition of hazardous waste, it was properly classified as hazardous waste subject to fee.

We find the statutory language indicates the legislature intended to include hazardous hospital waste in its definition of hazardous waste in section 3.15 of the Act. We reject NESC’s argument that the only way a waste may be defined as hazardous is to be so classified pursuant to RCRA or Board regulations. Accordingly, we affirm the decision of the Illinois Pollution Control Board.

Affirmed.

GREEN and STEIGMANN, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE VILLAGE OF ISLAND LAKE, Plaintiff-Appellee, v. PARKWAY BANK AND TRUST COMPANY, as Trustee, et al., Defendants-Appellants.
    Second District
    No. 2—90—0709
    Opinion filed April 9, 1991.

      Frank M. Howard, of Chicago, for appellants.
    Diamond, LeSueur & Roth, Associates, of McHenry, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendants, Parkway Bank and Trust Company, as trustee under trust No. 6474 (trustee), K-Koncrete, Inc., and Ronald and Patricia Laverdure, appeal from the order of the circuit court of McHenry County which denied their “motion to modify” a fine imposed based on the violation of the zoning ordinance of plaintiff, the Village of Island Lake (Village). Defendants have raised two issues on appeal: (1) whether the trial court abused its discretion in denying defendants’ motion to vacate the judgment and subsequent motion to modify where defendants set forth a meritorious defense and acted with due diligence; and (2) whether the trial court abused its discretion in assessing the maximum fines against defendants where defendants were unable to defend or offer factors in mitigation.

The Village alleged in its complaint that the trustee was the titleholder of real estate consisting of approximately 12 acres located within the corporate limits of the Village. The complaint also alleged that Ronald Laverdure was the holder of the entire beneficial interest in the real estate. The Village further alleged in the complaint that the named defendants had violated the Village’s zoning ordinance by using the property for the storage of “semi-trucks,” trailer beds and other construction vehicles and equipment; by using the property for the storage and dumping of rubbish and refuse; and by burning lumber, roofing materials and automobile tires on the property.

Defendants filed an answer to the complaint and an affirmative defense which alleged that defendants were uncertain as to whether their property was located in the Village or in unincorporated McHenry County and that there had been acts of “fly dumping” (presumably the dumping of rubbish and refuse by unknown persons) on the property without the defendants’ knowledge or consent.

The Village filed a reply to the affirmative defense and subsequently filed an amended complaint naming K-Koncrete, Inc., and Patricia Laverdure as additional defendants.

On April 5, 1989, defendants’ attorney filed a motion to withdraw, claiming that defendants “refused to listen and cooperate with counsel in preparing for their cause.” An order was entered the same day which granted the motion and stated that the cause was set for status on April 28, 1989, “at which time the Defendant [sic] and their attorney must appear in court.” Defendants’ former attorney sent a letter to defendant Ronald Laverdure at K-Koncrete, Inc., which stated that a copy of the court order was enclosed. The letter also advised Laverdure that the order was entered in accordance with Supreme Court Rule 13, which allowed him 21 days in which to seek new counsel. The letter further informed him that he or his new attorney were required to appear on the status date.

Defendants failed to appear on the April 28, 1989, status date. An order was entered which stated that the cause was set for trial on June 9,1989, “without further notice.”

Defendants did not appear on the trial date, and the Village presented the testimony of John Ryan, the Village’s building commissioner. Photographs showing the condition of the property were admitted. Following the trial, the trial court found defendants in violation of the ordinance. An order was entered June 15, 1989, which stated that defendants were permanently restrained and enjoined from storing construction equipment, construction materials and rubbish and refuse on the property. The order further stated that defendants were in violation of the ordinance for a total of 162 days. A fine of $81,000 plus court costs was imposed based on a fine of $500, the maximum permitted by the ordinance, for each day of the violation. An additional fine of $2,900 plus court costs was imposed based on the finding that defendants allowed open burning on their property for 15 days.

The Village filed a petition for rule to show cause on August 29, 1989, alleging that the defendants had failed to comply with the court order and that construction equipment and materials continued to be located on the property. The petition stated that a copy of the court order was mailed to the trustee on July 28,1989.

On September 19, 1989, defendants filed a motion to vacate the judgment pursuant to section 2 — 1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401). The motion alleged that “[d]ue to Defendants’ prior counsel’s recent withdrawal, neither Defendants nor their new attorney were aware of said court date and failed to appear for the trial call” and that “Defendants have acted diligently in filing their motion to vacate and have a meritorious defense to said cause of action.” The affidavit of Ronald Laverdure was attached to the motion and stated, in pertinent part, that he first received notice on August 1, 1989, that trial had taken place on June 9, 1989. The affidavit also stated that he had recently discharged his attorney, was seeking new counsel and was unrepresented by counsel at the time the judgment was entered.

The trial court denied the motion on March 14, 1990. On April 11, 1990, defendants filed a motion to reconsider, arguing in the motion that the fines imposed should be reconsidered “in that they are not fair and commensurate.” This motion was denied on May 1, 1990. The order stated that the denial was without prejudice and that defendants were given leave to file, within 10 days, a motion for revocation and/or modification of fines.

Defendants then filed a “motion to modify” on May 23, 1990. The motion stated that it was brought pursuant to section 5 — 9—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—2). Defendants again alleged in this motion that they were not aware of the June 9, 1989, trial date. Defendants also alleged that KKoncrete, Inc., had filed bankruptcy on April 3, 1990, and that the Laverdures “may have to file individual bankruptcy in the near future.”

This motion was denied on May 29, 1990. Defendants filed a notice of appeal from the May 29, 1990, order on June 29, 1990. After the Village filed, in the trial court, a motion to vacate the notice of appeal, based on the fact that the notice was filed on the 31st day after the entry of the order, defendants filed a motion for leave to file a late notice of appeal with this court. We granted the motion on August 14, 1990. The late notice of appeal also states that the order appealed from is the May 29, 1990, order. No report of proceedings or bystanders’ report regarding the hearings on any of the motions filed by defendants after the entry of judgment has been included in the record.

Defendants argue that the trial court abused its discretion by denying their motion to vacate the judgment and by imposing the maximum fines. The Village first contends that the appellate court does not have jurisdiction to review the trial court’s rulings regarding defendants’ motion to vacate the judgment and motion to reconsider because the notice of appeal only refers to the May 29, 1990, order which denied defendants’ “motion to modify.” We find, however, that we do not have jurisdiction over this appeal and dismiss the appeal.

We have a duty to consider our jurisdiction and to dismiss an appeal if jurisdiction is wanting. (Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440; Brown v. K.J.S. Co. (1989), 189 Ill. App. 3d 768, 770.) We must therefore carefully review the procedural posture of this case.

A final judgment was entered, after a trial, on June 15, 1989. A trial court loses jurisdiction over a matter once 30 days have passed after the entry of a final and appealable order. (Northern Illinois Gas Co. v. Midwest Mole, Inc. (1990), 199 Ill. App. 3d 109, 115.) However, section 2—1401 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401) provides a procedure for attacking a judgment by filing a petition more than 30 days after its entry, where the petition is filed not later than two years after the entry of the judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2—1401(c)), and where the party filing the petition can show: (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim to the circuit court in the original action; and (3) due diligence in filing the section 2 — 1401 petition (In re Petition of Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 544; Northern Illinois Gas Co., 199 Ill. App. 3d at 116).

Defendants filed a “motion to vacate” the June 15, 1989, judgment pursuant to section 2 — 1401, which we therefore construe as a section 2 — 1401 petition. (See Northern Illinois Gas Co., 199 Ill. App. 3d at 115.) A section 2 — 1401 petition, although filed in the same proceeding, is the commencement of a new cause of action and is not a continuation of the proceeding in which the prior judgment was entered. (Burnicka v. Marquette National Bank (1982), 88 Ill. 2d 527, 530; Northern Illinois Gas Co., 199 Ill. App. 3d at 119.) Supreme Court Rule 304(b) (134 Ill. 2d R. 304(b)) provides that a “judgment or order granting or denying any of the relief prayed in a petition under section 2 — 1401” is final and appealable. Burnicka, 88 Ill. 2d at 531; Allstates Tool Corp. v. Arachnid, Inc. (1988), 177 Ill. App. 3d 573, 579.

However, the supreme court in Burnicka held that a party may, within 30 days, file a post-judgment motion within the meaning of Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)) after a ruling has been made regarding a section 2 — 1401 petition. (Burnicka, 88 Ill. 2d at 530-31.) This motion extends the time for filing a notice of appeal until 30 days after the order disposing of the post-judgment motion is entered. (134 Ill. 2d R. 303(a); Burnicka, 88 Ill. 2d at 531.) An appellate court therefore has jurisdiction to review a trial court’s denial of a section 2 — 1401 petition if notice of appeal is filed within 30 days of the trial court’s ruling on a timely filed motion to reconsider the judgment denying the petition. Northern Illinois Gas Co., 199 Ill. App. 3d at 118.

The court in Burnicka specifically stated that successive post-judgment motions filed after a section 2 — 1401 petition will not be recognized because, under Sears v. Sears (1981), 85 Ill. 2d 253, a second post-judgment motion is unauthorized and does not extend the time within which to appeal. (Burnicka, 88 Ill. 2d at 531.) “To vest the appellate court with jurisdiction a party must file a notice of appeal within 30 days after entry of the judgment appealed from, or within 30 days after entry of an order disposing of a timely post-trial motion.” Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 538; see also Granite City Lodge No. 272 v. City of Granite City (1990), 141 Ill. 2d 122, 127.

Defendants’ “motion to modify” can only be considered an impermissible second post-judgment motion. The motion states that it was brought pursuant to section 5 — 9—2 of the Unified Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005—9—2). However, a “prosecution for violation of a municipal ordinance, while quasi-criminal in nature, is civil in form and is tried and reviewed as a civil proceed.ing.” (City of Elgin v. Hawthorne (1990), 204 Ill. App. 3d 807, 811.) Section 5—9—2, which permits a court to revoke or modify a fine “upon good cause shown” refers only to a penal fine imposed under the Unified Code of Corrections, a criminal statute. (People v. Bennett (1986), 144 Ill. App. 3d 184, 186.) This statute was therefore not applicable to the fine imposed on defendants and could not afford defendants any relief. Section 2 — 1401 was defendants’ only means of obtaining relief from the judgment.

This is also not a situation where defendants were granted leave to file an amended section 2 — 1401 petition (cf. Sullivan v. Bach (1981), 100 Ill. App. 3d 1135, 1138-39) or were allowed to supplement or amend their post-trial motion (cf. City of Chicago v. Greene (1970), 47 Ill. 2d 30, 33; In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 212-14).

Defendants’ post-judgment motion, their motion to reconsider, was denied on May 1, 1990. As defendants’ section 2 — 1401 petition was denied and their one, authorized post-judgment motion was denied, the trial court lost jurisdiction and, for this appeal to be timely, notice of appeal had to be filed within 30 days of the order denying the motion to reconsider. (See Sears, 85 Ill. 2d at 259-60.) The fact that the May 1, 1990, order stated that the motion to reconsider was denied “without prejudice” and that defendants were given leave to file a “motion for revocation and/or modification of fines” within 10 days does not change this conclusion. Rule 303(a) specifically states that notice of appeal must be filed within 30 days of the order “disposing of” the post-trial motion. (134 Ill. 2d R. 303(a).) It cannot be disputed that the order in which the motion to reconsider was “denied” disposed of the motion.

As defendants could not extend the time for filing a notice of appeal by filing another post-judgment motion (Sears, 85 Ill. 2d at 259-60), that portion of the trial court’s order giving them leave to file such a motion was equally ineffective to extend.the time for appeal.

We find the Sears case dispositive on the issue of our jurisdiction. In a case decided in Sears, one count of a complaint was dismissed on October 12, 1978, and the court made a Rule 304(a) (134 Ill. 2d R. 304(a)) finding, rendering the dismissal enforceable and appealable. A timely filed motion to set aside this dismissal was denied on November 15, 1978. A second motion was filed on December 11, 1978. The same day, the trial court continued the motion, stayed the judgment and the post-judgment order, and ordered that the time for appeal should not run. The Sears court recognized that Deckard v. Joiner (1970), 44 Ill. 2d 412, “held that a second post-judgment motion, filed more than 30 days after judgment but within 30 days of the denial of the first motion, that only repeats what was in the first motion or raises points that could have been raised the first time does not extend the time for appeal.” (Sears, 85 Ill. 2d at 258.) The Sears court also noted that Deckard stated that the circuit court could not allow that type of motion. Sears, 85 Ill. 2d at 258.

The Sears court further stated:

“There is no provision in the Civil Practice Act [now the Illinois Code of Civil Procedure] or the supreme court rules which permits a losing litigant to return to the trial court indefinitely, hoping for a change of heart or a more sympathetic judge. Permitting successive post-judgment motions would tend to prolong the life of a lawsuit — at a time when the efficient administration of justice demands a reduction in the number of cases pending in trial courts — and would lend itself to harassment. There must be finality, a time when the case in the trial court is really over and the loser must appeal or give up. Successive post-judgment motions interfere with that policy.” Sears, 85 Ill. 2d at 259.

The court then found that the appellate court correctly determined that it had no jurisdiction over the appeal, despite the fact that the trial court’s order stated that the time for appeal would not run. The court noted that the circuit court “did not have authority to extend the time for appeal by ordering so.” Sears, 85 Ill. 2d at 260.

The same principles must apply here. The fact that the post-judgment motions involved here are motions after the denial of a section 2 — 1401 petition does not change the applicable rules. (See Burnicka, 88 Ill. 2d at 531.) Even though the trial court entered an order which stated that the denial of the motion to reconsider was “without prejudice” and that defendants were granted leave to file another motion, the trial court did not have the authority to allow a motion not authorized by the Illinois Code of Civil Procedure. Once the motion to reconsider was denied, the notice of appeal had to be filed within 30 days of that order. Also, the fact that the parties apparently participated in argument on the “motion to modify” did not “revest” the trial court with jurisdiction. As in Sears, the underlying judgment was never touched, and nothing in the proceeding was inconsistent with the judgment. Sears, 85 Ill. 2d at 260.

Even if we were to consider the “motion to modify” to be a second section 2 — 1401 petition, which we do not, it was ineffective to extend the time for appeal. A party may not avoid or extend the time for appeal of a final order by filing successive and repetitious motions pursuant to section 2 — 1401. (People ex rel. McGraw v. Mogilles (1985), 136 Ill. App. 3d 67, 71-72; Peoples Gas Light & Coke Co. v. Rubin (1980), 89 Ill. App. 3d 244, 246-47; see also Ogrentz v. Edgar (1990), 199 Ill. App. 3d 424, 427.) The motion did not raise any relevant new matter which could not have been raised in the original petition. The only new matter alleged was that K-Koncrete, Inc., had filed bankruptcy on April 3, 1990, and that the Laverdures may file personal bankruptcy. These allegations have no relevance to a determination of whether the judgment entered June 15, 1989, should be vacated pursuant to section 2 — 1401. See Mogilles, 136 Ill. App. 3d at 73 (the “purpose of a petition under section 2 — 1401 is to present to the trial court matters of fact not appearing of record which, if known to the court when the judgment was rendered, would have prevented its rendition”).

Therefore, this appeal is not timely. Although defendants were granted leave to file a late notice of appeal, the motion requesting such leave referred only to the order of May 29, 1990, which denied their “motion to modify.” The motion stated only that notice of appeal was filed on the 31st day after the May 29, 1990, order due to a “clerical error.” We have already determined that the “motion to modify” could only be a second post-judgment motion and, as such, a nullity. As defendants did not appeal the order disposing of their motion to reconsider within 30 days, as required by Supreme Court Rule 303(a), and were not granted leave to file a late notice of appeal from that order, we lack jurisdiction.

For the . foregoing reasons we are without jurisdiction ■ to review the order appealed from, and the appeal must be dismissed.

Appeal dismissed.

WOODWARD and INGLIS, JJ., concur.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF BARBARA M. BLITSTEIN, Petitioner-Appellee, and BERLE R. BLITSTEIN, Respondent-Appellant.
    Second District
    No. 2—90—0828
    Opinion filed April 9, 1991.

      Michael W. Kalcheim and Michael J. Berger, both of Kalcheim, Schatz & Berger, of Chicago, and Roger A. White, of Roger A. White & Associates, Ltd., of Lake Bluff (Andrew D. Eichner, of counsel), for appellant.
    Howard H. Rosenfeld, of Rosenfeld, Rotenberg, Schwartzman, Hafron & Shapiro, of Chicago (Stephen H. Katz, of counsel), for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Respondent, Berle Blitstein (Berle), appeals from a protective order entered by the circuit court of Lake County pursuant to the Illinois Domestic Violence Act of 1986 (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 2311—1 et seq.). The order gave petitioner, Barbara Blitstein (Barbara), and her children exclusive possession of the marital residence and directed Berle not to abuse or harass them. Berle argues that the findings of the trial court concerning his conduct did not justify the entry of a protective order. Barbara argues that this appeal should be dismissed because the order in question is interlocutory and not appealable at this stage of the dissolution of marriage proceedings. We affirm.

Barbara and Berle resided in a 15-room house in Highland Park with their two children and Barbara’s child from a prior marriage. In January 1990, Barbara filed two petitions for dissolution of marriage in the circuit court of Cook County. The initial petition was dismissed; the other case was transferred to the circuit court of Lake County, which was the proper venue.

On March 30, 1990, Barbara filed a petition for an order of protection in the circuit court of Lake County, which was assigned case No. 90 — F—457. She alleged in the petition that Berle should be prohibited from remaining at the marital home because of an incident that took place on March 29, 1990, in which he allegedly harassed and physically abused her. The trial court entered an ex parte order of protection against Berle on March 30 which expired on April 12. On the latter date, the court entered an agreed order which stated that Berle would remain outside the marital home until a hearing was held on the petition. After Barbara’s second dissolution filing was transferred to Lake County, that case was consolidated with case No. 90 — F— 457.

The hearing on Barbara’s petition for an order of protection commenced on July 12, 1990. Barbara testified that Berle had physically abused her three times prior to the March 29, 1990, incident. She stated that one day in the summer months of 1988, Berle punched her in the shoulder while they were arguing in their bedroom. According to Barbara, Berle pushed her against the bedroom wall during an argument in July 1989. She further testified that during an October 1989 argument, Berle grabbed her and threw her into some kitchen cabinets, injuring her shoulder. During his testimony, Berle denied physically abusing Barbara on any of these three occasions.

With regard to the events of March 29, 1990, Barbara testified that she and Berle were in bed watching television. Barbara asked Berle to turn off the television so she could go to sleep. When Berle refused, Barbara got up and turned the set off. She then started walking down the hall. Berle grabbed her, made some remarks, and then slapped her in the face.

According to Barbara, she then told Berle he would never hit her again and ran to the bedroom telephone, which was on a glass table at the side of the bed. She intended to call the police. Berle grabbed the phone out of Barbara’s hand, pushed her onto the bed, and yanked the phone out of the wall. In so doing, he knocked over the glass table and broke some of the glass.

Barbara stated that she then ran to an adjoining sitting room and again attempted to call the police. Berle grabbed the receiver out of her hand, pushed her onto a couch, and yanked that phone out of the wall. Barbara tried to exit the room, but Berle closed the door léading to the hall when she tried to open it, and he blocked the exit for a few minutes. Barbara asked Berle to let her out, but he initially refused to do so, and he called her a bitch. Barbara then yelled for the couple’s 12-year-old son, David, who started yelling, “[mjommy, mommy.” Berle then opened the door, and Barbara ran to the laundry room.

Barbara testified that she picked up the laundry room phone and tried to call the police again. Berle grabbed the phone out of her hands and pulled the cord from the wall. Barbara then ran into the maid’s room, and David went in with her. She called the police from a phone in the maid’s room. Two police officers arrived at the home shortly thereafter. Barbara and David left the house after this incident and temporarily stayed with one of Barbara’s friends. Barbara further testified that she had not been employed during the 15 years she had been married to Berle.

With regard to the events of March 29, 1990, Berle testified that he was watching television while in bed with Barbara late that evening. Barbara asked him to turn the set off at about 11:20, and he stated he wished to keep it on-another 10 minutes. Barbara then got up and turned the set off. Berle testified that he then went into the adjoining sitting room to watch the television in there. While he was walking toward the sitting room, Barbara pushed him into the wall. She then hit Berle in the arms several times and screamed at him, telling him to go ahead and hit her. Barbara then picked up a bowl and threw it at him.

According to Berle, Barbara continued screaming at him, telling him to hit her so she could call the police and have him thrown out of the house. She then ran to the bedroom and said she was going to call the police. When she started to call, Berle pulled the cord from the phone box out of the wall. While doing so, he fell backwards into the nightstand but did not break any glass on it.

Barbara ran to the sitting room and tried to call the police again. Berle testified that he removed the phone jack from the wall outlet. Barbara and Berle both went to the sitting room door; Berle got there first and stood in front of it. Barbara was screaming, “David, David, daddy is beating me.” Berle then heard- David saying, “[m]ommy, mommy” from down the hall. Berle then opened the door, and Barbara ran down the hall. Berle tried to comfort David by telling him his parents loved him and everything would be all right. Barbara ran to the maid’s room and called the police.

Berle stated that he did not slap or push Barbara at any time during the above incident. Berle also testified that Barbara appeared to be calm and calculated while the incident was taking place. Berle stated that his gross income was $360,000 per year.

Highland Park police officer Michael Gilbert testified that he arrived at the Blitstein home at about 11:40 on the evening of March 29, 1990. Barbara claimed that Berle had slapped her, but she did not state that he had physically assaulted her in any other manner. Officer Gilbert saw that the nightstand in the bedroom had been overturned. He did not see any broken glass, but it did appear there had been an altercation near the nightstand. Officer Gilbert noticed that phone cords in the bedroom, sitting room, and laundry room had been pulled from the wall; Berle admitted that he had done this. Officer Gilbert did not make an arrest because, based upon his observations, no assault or battery had taken place.

The trial judge found that Berle had not physically abused Barbara but also found that he had harassed her by pulling out the phone cords which caused her to suffer emotional distress. The judge also found that a risk of future abuse existed, noting that Berle came close to abusing Barbara physically when he blocked the doors in the sitting room and would not allow her to leave. Determining that, because of his income, it would be much easier for Berle to find a new residence than it would be for Barbara, the trial judge entered a protective order directing him to remain away from the marital home and prohibiting him from abusing or harassing Barbara or the children. The protective order will terminate when a final judgment is entered in the marital dissolution proceedings. Berle now appeals.

Barbara has filed a motion to dismiss the appeal which we have ordered taken with the case. Barbara argues that the protective order issued by the trial court is interlocutory and is not appealable at this time under the applicable supreme court rules. Berle argues that the order is tantamount to an injunction and is therefore immediately appealable under Supreme Court Rule 307(a)(l) (134 Ill. 2d R. 307(a)(l)). In support of this argument, he cites In re Marriage of Lombaer (1990), 200 Ill. App. 3d 712, in which the Appellate Court for the First District held that a protective order under the Act which prohibited a party from entering the marital residence was appealable under Rule 307(a)(1).

In arguing that the protective order is not appealable at this point, Barbara relies upon cases in which it has been held that the questions of child custody, child support, property division, and whether the marriage should be dissolved are not separate claims but instead are ancillary parts of a single claim for dissolution; therefore, an order resolving one of these issues is not appealable until all issues in the case have been resolved. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119-20; In re Marriage of Ryan (1989), 188 Ill. App. 3d 679, 681.) The court noted in Leopando that a close interrelationship exists among the above issues in a dissolution proceedings. Leopando, 96 Ill. 2d at 119.

Two of the above matters are inherent issues in any marital dissolution proceedings; the other two are present in any such proceeding involving children. A request for an order of protection pursuant to the Act is not an inherent part of a marital dissolution proceeding, however, nor is it a matter which arises exclusively in such a proceeding. Under section 202(a) of the Act (Ill. Rev. Stat 1989, ch. 40, par. 2312—2(a)), petitions for orders of protection may also be filed in con-' junction with other civil proceedings, in connection with criminal proceedings, or independently, as Barbara originally did in this case. Thus, it is apparent that a petition for a protective order in a marital dissolution case is a separate claim and is not an ancillary part of the claim for dissolution. Leopando and Ryan are therefore inapposite.

A reviewing court will examine the substance of an order rather than its form to determine if it constitutes an appealable injunction. (In re a Minor (1989), 127 Ill. 2d 247, 260.) One definition of the word “injunction” is a “ ‘judicial process operating in personam and requiring [a] person to whom it is directed to do or refrain from doing a particular thing.’ ” (In re a Minor, 127 Ill. 2d at 261, quoting Black’s Law Dictionary 705 (5th ed. 1983).) Since the order from which Berle appeals directs him to refrain from entering the Highland Park residence, it fits within the above definition.

Even if an order fits within the above definition, however, it will not be considered appealable under Rule 307(a)(1) if it is an administrative order which operates solely to regulate the procedural details of litigation before the court. (127 Ill. 2d at 262.) Thus, discovery orders are not immediately appealable interlocutory orders. (People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167, 171.) Orders such as these are distinguishable from traditional forms of injunctive relief because they do not affect the relations of the parties in their daily activities outside the litigation. In re a Minor, 127 Ill. 2d at 260.

The order in question clearly affects the parties in their everyday activities apart from the lawsuit since it prevents Berle from entering a residence in which he has an ownership interest and provides Barbara with exclusive possession of the residence. The order is therefore an injunction within the meaning of Rule 307(a)(1) and is immediately appealable. Barbara’s motion to dismiss the appeal is denied.

We now turn to the merits. Berle argues that, in light of the trial court’s finding that he did not physically abuse Barbara, it was error for the court to issue an order of protection excluding him from the marital residence in Highland Park. Under section 214(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2312—14(a)), if the trial court finds that the petitioner has been abused, neglected, or exploited, the court must enter an order of protection prohibiting such abuse, neglect, or exploitation. The term “abuse” is defined to include harassment. (Ill. Rev. Stat. 1989, ch. 40, par. 2311—3(1).) The term “harassment” is defined as “knowing conduct which is not necessary to accomplish a purpose that is reasonable under the circumstances; would cause a reasonable person emotional distress; and does cause emotional distress to the petitioner.” (Ill. Rev. Stat. 1989, ch. 40, par. 2311—3(6).) Harassment is the result of intentional acts which cause another person to be worried, anxious, or uncomfortable. (People v. Zarebski (1989), 186 Ill. App. 3d 285, 294 (appeal from conviction of violation of order of protection issued pursuant to Act).) Harassment can therefore occur even if there is no overt act of violence. Zarebski, 186 Ill. App. 3d at 294.

The trial judge found that Berle harassed Barbara, relying primarily upon the fact that he pulled three telephone cords from the walls while Barbara tried to call the police. Since, according to the Act, abuse includes harassment, this means the court found that Berle abused her. The trial court has broad discretion in considering whether abuse occurred under the Act; the court should assess the credibility of the witnesses, the conduct described, and the tension between or among household members. (In re Marriage of Hagaman (1984), 123 Ill. App. 3d 549, 554.) The trial court did not abuse that discretion in the case at bar.

Although Berle testified that he only removed two telephone cords from the wall, Barbara testified that he removed three, and Officer Gilbert stated that Berle had admitted removing three. The evidence reveals that Berle pulled the bedroom cord out so violently that he either knocked over the nightstand or caused himself to fall into the nightstand and knock it over. Such conduct would clearly cause emotional distress to one attempting to use the phones. Berle’s testimony that Barbara remained calm throughout the March 29 incident is belied by his own further testimony that she was screaming at him and running throughout the house.

Berle argues that he removed the phone cords for a proper purpose, to prevent the police from coming over and disturbing the couple’s son, David. The trial court could reasonably have determined, however, that attempting to prevent a party to a domestic dispute from calling the police over to calm the dispute is not a proper purpose. According to the evidence, Berle also physically prevented Barbara from leaving the sitting room for a few minutes by blocking the door. The trial court mentioned this in determining a risk of future abuse existed. Berle had no right to stop Barbara from telephoning the police if she desired to do so, and the extreme measures he took in an effort to stop her from doing this were not justified by his alleged desire to prevent his son from waking up and being disturbed, which occurred anyway. The trial court’s finding that Berle harassed Barbara was not an abuse of discretion.

Under section 214(bX2) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 2312—14(b)(2)), the petitioner may be granted exclusive possession of the residence if petitioner has a right to occupancy. If respondent also has the right to occupancy, there must also be a risk of future abuse which interferes with petitioner’s safe and peaceful occupancy and the balance of hardships favors petitioner’s possession. The balance of hardships favors petitioner’s possession unless the hardships to respondent and any dependent in respndent’s care substantially outweigh the hardships to petitioner and any dependent in petitioner’s care from continued risk of abuse if petitioner remains or loss of possession should petitioner leave to avoid potential further abuse. Ill. Rev. Stat. 1989, ch. 40, par. 2312—14(b)(2).

The trial court’s finding that a risk of future abuse existed was not an abuse of discretion. Although the trial judge found that no physical abuse had taken place, Berle’s actions were still violent and could easily have led to physical violence between the couple. The Act is to be construed liberally to protect victims of domestic violence, help them avoid further abuse, and to expand the remedies for victims of domestic violence including, when necessary, physical separation of the parties. See Ill. Rev. Stat. 1989, ch. 40, pars. 2311—2(4), (6).

Although Berle argues that a lesser remedy, such as ordering him to sleep in a separate bedroom, should have been used, the trial judge could have reasonably determined in light of the tension between the parties and Berle’s violent conduct on March 29 that one of them would have to leave the home to prevent potential future violence. In a case of this nature, the trial judge is clearly in the best position to determine the appropriate remedy since the trial judge is present when the witnesses, including the parties, testify and is therefore in a superior position to assess not only the credibility of the parties but the degree of animosity existing between them. Therefore, the trial judge has broad discretion in determining the appropriate remedy under the Act, and there was no abuse of that discretion here. It is obvious from the evidence concerning financial circumstances that Berle was in a much better position to leave and find a new residence than Barbara was. The trial court’s order was entirely consistent with the Act’s purpose of preventing future abuse.

Accordingly, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

REINHARD, P.J., and BOWMAN, J., concur.