author: JUSTICE McCULLOUGH

text:
      In re MARRIAGE OF JUDIE RIECH, Petitioner-Appellant and Cross-Appellee, and ELMER RIECH, Respondent-Appellee and Cross-Appellant.
    Fourth District
    No. 4—90—0310
    Opinion filed January 29, 1991.

      Michael B. Metnick, of Metnick, Barewin & Wise, of Springfield, for appellant.
    Brown, Hay & Stephens, of Springfield (William E Trapp and Beth A. Wilke, of counsel), for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Judie Riech appeals the division of property in the dissolution of marriage proceedings between her and respondent Elmer Riech. Petitioner argues deferral of her interest in the marital home for an indefinite time is contrary to the intent of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.). Respondent cross-appeals (1) the order directing respondent to reimburse petitioner in the amount of $3,750 for marital funds used to purchase nonmarital property; and (2) the award of attorney fees to petitioner. For the reasons that follow, we affirm in part, reverse in part, and remand.

Petitioner, now age 47, and respondent, now age 49, were married on October 13, 1962. Four sons were born to the marriage and all are now over 18 years old. One son, Robert, now age 26, was severely injured in a diving accident in 1986 and is a quadriplegic. Since the accident, Robert has lived in a specially designed section of the parties’ marital home.

Until her youngest child was in kindergarten, petitioner was a full-time mother and homemaker. At that time, petitioner began working one-half day a week for the Catholic Diocese in Springfield and increased to three full days a week when her youngest child entered grammar school. In 1975, petitioner began working for the diocese full time at minimum wage, while maintaining responsibility for all household chores. All petitioner’s earnings were spent on the children. After a radical mastectomy in 1985, petitioner underwent radiation and chemotherapy treatments which cause her to suffer from arthritis in the cervical spine and chronic bronchitis. During the pendency of the court proceedings in this matter, petitioner began employment as a secretary at the Southern Illinois University School of Medicine. Petitioner brings home a salary of $730.80 net per month.

Respondent has been employed at the State Journal Register (Register) for over 30 years. Respondent began working in the composing room for the Register but transferred to the maintenance department in 1978. Respondent’s monthly net income at the time of trial was $1,556.

The parties’ marital home was remodeled to accommodate their son, Robert. In November 1986, petitioner personally took out a home improvement loan in the amount of $8,500 to pay for the remodeling. Petitioner also purchased special carpeting and flooring needed for Robert’s wheelchair. Robert’s quarters in the marital home were made wheelchair accessible and a nurse’s station, new doors, and wiring were installed to accommodate Robert’s needs and the life-support system he required.

Petitioner and respondent testified the best place for Robert to live is in the marital home. Petitioner stated an institutional environment would be damaging to Robert and not allowed by the rehabilitation program where Robert has been accepted for treatment. Robert requires care and attention around the clock. When Robert first came home from the Craig Rehabilitation Center in Denver in November 1986, petitioner stated she took care of all of Robert’s personal needs. Petitioner filed the dissolution petition in February 1987. Petitioner testified she moved out of the marital home in June 1988.due to the hostility and discord which existed in the household between her and respondent. Petitioner testified she moved out to reduce the stress on Robert. Petitioner testified Robert told her he wanted his father to stay with him at the marital home and not her. Petitioner testified she moved into a house her mother purchased for her and was living there rent-free with two of her sons. Petitioner testified she does pay for the utility expenses incurred in her current home. Petitioner stated she plans to reimburse her mother for the $45,000 her mother paid for the house after the dissolution proceedings are final.

At the time of trial and currently, respondent is living in the marital home with Robert, caring for his son’s physical needs, and paying for some of his care. In September 1988, the medical insurance benefits for Robert’s nursing services were reduced to $1,000 per month. Robert’s care requires nursing services in the amount of $6,300 per month. The Illinois Department of Rehabilitation contributes $4,080 per month for Robert’s care, which leaves a balance due each month for nursing services of $1,220. Initially, in 1988, respondent borrowed $17,000 from his mother and over $10,000 from his credit union to make the payments for Robert’s care. By December 1989, respondent’s loan from his mother for Robert’s medical care amounted to $39,900. To reduce the cost of Robert’s medical care, respondent performs nursing services for Robert two to three times during the week. Petitioner volunteered to work several eight-hour nursing shifts to further reduce costs but has been unable to do so because of the hostility between her and respondent. Also, Robert refused his mother’s offer to work several nursing shifts. Petitioner has not contributed financially to Robert’s care since she moved out of the marital home in June 1988. A personal injury action was filed on Robert’s behalf to recover for his injuries but no settlement or recovery was received at the time of trial.

The parties’ marital property totals $100,259.26, the most significant asset being the marital home valued at $68,500. Other marital property includes:

Copley Press 401(K) Plan $ 6,906.25
1978 Buick Skylark 800.00
1984 Dodge Van 6,000.00
IRA (Prudential) 3,519.01
Insurance
Illinois Mutual 1,850.00
Prudential 1,671.00
Slovac 792.00
Copley Press Pension 9,221.00
Fishing Boat 1,000.00
$31,759.26

Respondent’s nonmarital property includes real estate valued at $11,500. The parties’ marital debts total $34,626.18 and are itemized as follows:

Security Federal Savings & Loan $ 4,000.00
Printers Unions (Elmer’s credit union) 10,259.00
Debt to Elmer’s mother 13,000.00
Dr. Seiko 90.00
Dr. Hawe 100.00
Watts Pharmacy 73.00
Vision Care Assoc. 150.00
Sears 277.00
Sacred Heart Credit Union 6,186.18
Huffman Finance 491.00

Judgment of dissolution was entered on June 16, 1989. Respondent was awarded physical custody of Robert and ordered to be solely responsible for the support and the unreimbursed medical care for Robert. Petitioner was ordered to support Robert by working one nursing shift during the week and one every Saturday. The trial court found that due to the disparity of income between the parties, petitioner’s physical condition, her contribution to the marriage and the duration of the marriage, petitioner was entitled to maintenance. However, because of respondent’s obligation of support for Robert, he was unable to pay maintenance. Thus, the trial judge awarded petitioner, in lieu of maintenance, $34,250, representing a one-half interest in the marital home, as well as the 401K plan, the Slovac insurance policy, and the Buick, or a total of $42,748.25 in marital assets. Respondent received the marital home, the van, the Prudential IRA, the two insurance policies, the pension plan, and the boat for a total of $57,511.01 in marital assets. In lieu of child support for Robert, petitioner was ordered to pay $6,677.18 of marital debts. Respondent was ordered to pay the remaining marital debts in the amount of $27,949. Respondent received his nonmarital property but was ordered to pay petitioner, on or before May 26, 1990, $3,750 as reimbursement for the marital funds used to purchase the nonmarital property. Petitioner was ordered to pay one-half of her attorney fees. Respondent was ordered to pay $3,701.17 to petitioner’s attorney, representing one-half of petitioner’s attorney fees and to pay his own attorney fees. Respondent was directed to pay petitioner the $34,250 within six months of May 26, 1989. Judgment was entered for petitioner in the amount of $44,906.25. This figure includes her interest in the marital residence, the 40IK plan, and the reimbursement to the marital estate.

On June 16, 1989, respondent filed a motion for reconsideration of the judgment. Respondent contended, inter alia, (1) the disposition of marital property and debts was inequitable, including the requirement that he pay petitioner her interest in the marital residence within six months; (2) the nonmarital property was purchased with nonmarital funds; therefore, petitioner was not entitled to any reimbursement; (3) the requirement that petitioner provide nursing care for Robert was against Robert’s wishes and not in his best interests; (4) petitioner should be equally responsible for Robert’s future medical expenses; and (5) the order that he pay one-half of petitioner’s attorney fees was contrary to the law.

On April 6, 1990, a modified judgment was entered. The trial court found a settlement had been reached in Robert’s personal injury suit which allowed Robert to remain self-sufficient under his then current circumstances and to retain a lump sum of money. The modified judgment provided (1) petitioner was relieved of her obligation to provide nursing services for Robert, based upon the parties’ and Robert’s belief that such services would not be in his best interests; (2) petitioner was not obligated to financially contribute toward Robert’s medical expenses “at this time”; (3) respondent was to pay petitioner one-half of her interest in the marital home, or $17,125, on or before June 17, 1990; and (4) the remaining one-half or $17,125, with interest at the statutory rate from April 5, 1990, was to be paid (a) within six months of the date Robert no longer resides in the marital home, or (b) at the time of sale of the marital home prior to Robert’s departure.

Petitioner argues the disposition of the marital home by delaying the payment of $17,125 until Robert no longer resides in the home amounts to an illusory property interest because of the indefiniteness of when and the uncertainty of if the payment will ever be made. Petitioner contends Robert will always need to live in the marital home and will likely outlive her and respondent. Further, since respondent has possession of the home, he has control over when it is sold while Robert still resides in the home while she does not. Petitioner urges an indefinite payment time is contrary to the intent of the Act which seeks to end the animosity and discord which led to the dissolution of a marriage. Petitioner does not ask that the marital home be sold. Petitioner maintains respondent could take out another mortgage on the marital home, which is currently encumbered by a $4,000 first mortgage. Petitioner argues respondent’s income is sufficient to pay a second mortgage on the marital home. Alternatively, petitioner argues respondent could mortgage the nonmarital property he owns free and clear.

Respondent contends he is unable, due to his obligation to support Robert, to incur any more debt. Further, given the equities of this situation, petitioner should not have received the equivalent of 50% interest in the marital home. Respondent rejects petitioner’s illusory property interest argument by pointing out that the Illinois courts have approved the deferral for a set period of time of unascertained property interests. Respondent suggests this court could reduce petitioner’s equity interest in the marital home to 25% or $17,125 and thereby avoid the necessity of deciding petitioner’s issue.

In her reply brief, petitioner points out the trial court rejected respondent’s invitation to reduce her share of marital property and stated the property distribution would not be altered “because the parties and Robert will not cooperate with each other in Robert’s care.” Petitioner argues respondent’s reliance on cases where an unascertained amount of money was deferred for a set period of time is misplaced because the issue here is the indefiniteness of when, if ever, petitioner will receive her payment, not the amount of that payment.

Section 503(d) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)) allows the trial court discretion to divide marital property into “just proportions,” taking into consideration all of the factors listed as well as any others deemed relevant to the case. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238, 241.) The touchstone of proper apportionment is whether it is equitable in nature, with each case resting on its own facts. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 847, 551 N.E.2d 737, 741.) The division need not be equal to be equitable. (Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.) The trial court’s discretion in these matters will not be disturbed absent clear abuse. (In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 790, 560 N.E.2d 374, 378.) Discretion has been abused where no reasonable man could adopt the trial court’s position. Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.

The courts have upheld the award of a family home to a custodial parent of minor children until such children reach majority. (In re Marriage of De Bat (1984), 127 Ill. App. 3d 463, 468 N.E.2d 1348; In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 434 N.E.2d 811; In re Marriage of Woolsey (1980), 85 Ill. App. 3d 636, 406 N.E.2d 1142.) There are no Illinois cases involving the award of the marital home to a parent with custody of an adult disabled child.

In our view, the trial court erred in considering Robert’s situation and needs when dividing the property between petitioner and respondent. Section 513 of the Act directs the court may award child support for any nonminor physically disabled children of a marriage, but this provision does not extend to Robert who, all the parties agree, was emancipated at the time of his accident. (Ill. Rev. Stat. 1987, ch. 40, par. 513.) Section 503 provides marital property is to be divided into just proportions and, in so dividing, the court may consider, inter alia, the liabilities of each of the parties. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(7).) The parties’ desire to care for Robert, particularly the respondent, is understandable under the circumstances. Nonetheless, any feeling of obligation is morally and not legally cognizable. This court does not dismiss lightly the situation this family is in. The fact remains the parties have no remaining legal obligation to support Robert. Accordingly, we find the division of the marital home in terms of Robert’s needs and any court-ordered child support for Robert is reversible error.

In further support for our conclusion, we note the Illinois courts have criticized the division of marital property where the disposition may result in a party never receiving a possessory interest during his lifetime (McArdle v. McArdle (1977), 55 Ill. App. 3d 829, 370 N.E.2d 1309), where the time for payment is not definite (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087), and where the parties are forced to continue associating with one another as tenants in common of property. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) In McArdle, the ex-wife was given a life estate in the marital home with the remainder interest passing to the ex-husband. The court noted the ex-husband’s interest would possibly never take effect during his lifetime. Thus, the court reversed the division of the marital home as life tenant and remainderman. In Hellwig, the ex-husband was directed to pay his ex-wife a sum of money but no specified time was set. The court remanded the judgment of dissolution for the other reasons but stated that, on remand, the trial court must devise a feasible method of paying the ex-wife her interest within a reasonable time of the judgment.

The trial judge noted in the modified judgment that the settlement left Robert self-sufficient under his then current circumstances. Further consideration should have been given to other alternatives to providing petitioner with her interest in the marital property and to the fact that Robert’s settlement provides him the financial means to support himself. On remand, the trial court should consider other alternatives, including a reasonable and definite schedule of payments for petitioner’s interest in the home.

In his cross-appeal, respondent first argues the trial court erred in ordering him to reimburse petitioner for marital funds used to purchase the nonmarital real estate in St. Elmo. The trial court found real estate in St. Elmo to be respondent's nonmarital property. The trial court found it was unclear whether marital funds were used to purchase a partial interest in the St. Elmo property and resolved the ambiguity in favor of finding the funds used to purchase a partial interest in the nonmarital property were marital funds.

Respondent testified as an adverse witness for petitioner that the St. Elmo property was previously owned by his father, who died in 1983. At that time, respondent’s father was involved in divorce proceedings with his second wife, Wilma Riech. The father’s will bequeathed all his property to his three children, including respondent. Wilma claimed a statutory share of the estate as surviving spouse. To settle the claim, respondent paid Wilma $11,000, of which $7,500 was for the St. Elmo property and $3,500 was to release other claims Wilma had against the estate. Respondent then acquired title to the St. Elmo property in his own name. Respondent testified he borrowed the $11,000 from his mother to pay for the St. Elmo property by taking money out of his mother’s savings account at Security Federal.

Petitioner testified respondent withdrew the money to pay for the St. Elmo property from a savings account at Security Federal. Petitioner stated respondent told her in 1987 that the money in the savings account came from his mother, who gave respondent her railroad pension check each month to be deposited into this account. Petitioner testified respondent deposited the check into this account, which was in respondent’s name with her (petitioner) “as trustee or beneficiary.” Petitioner further stated she first found out about this account in 1987 when she was preparing the 1986 Federal tax return which she and respondent filed jointly. Petitioner testified she received a tax statement from Security Federal in 1987 which reflected she and respondent earned $585 on this savings account “jointly.” According to petitioner, respondent’s mother wanted him to have the money to buy the St. Elmo property for himself.

The evidence established that respondent’s mother gave him the money which was deposited into a bank account in some form of coownership with petitioner. Section 503(b) of the Act provides that all property acquired by either spouse after the marriage is presumed marital property. However, this presumption is overcome by showing that the property was acquired by a method listed in section 503(a) of the Act. (Ill. Rev. Stat. 1987, ch. 40, pars. 503(b),(a).) Section 503(a)(1) states that property acquired by gift after marriage is nonmarital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(1).) As we stated in In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 560 N.E.2d 374, property designated as nonmarital pursuant to the exceptions in section 503(a) may still be presumptively transmuted into marital property by the affirmative act of the contributing spouse. The transmutation doctrine is based on the presumption that the contributing spouse intended to make a gift of the property to the marital estate. (In re Marriage of Olson (1983), 96 Ill. 2d 432, 439, 451 N.E.2d 825, 828.) The placement of non-marital property in joint tenancy or some form of coownership raises the presumption that a gift was made to the marital estate. The presumption of a gift transforming the property into marital property may be rebutted by clear and convincing evidence that no gift was intended. In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 280, 518 N.E.2d 1316, 1319.

By its decision, the trial court found the presumption of gift to the marital estate was not rebutted. The evidence regarding the form of coownership for the bank account was conflicting but nonetheless it established the account was held in a form of coownership. Respondent did not present any evidence that he did not intend a gift to the marital estate. Thus, the trial court’s finding that marital funds were used to purchase St. Elmo is supported by the evidence.

Respondent next argues the trial court erred in ordering him to pay one-half of petitioner’s attorney fees in addition to his own attorney fees since the evidence failed to show that petitioner was unable to pay these fees or that he was able to pay them. Petitioner argues the trial court was correct in ordering respondent to pay a portion of her fees since he has the superior earning power. In his reply brief, respondent contends the court should have looked at the larger context and not focused solely on the disparity in income levels.

The allowance of attorney fees and the proportion to be paid by each party are within the trial court’s discretion and will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299, 483 N.E.2d 1229, 1235; In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 400, 561 N.E.2d 402, 411.) The party seeking fees must show an inability to pay the fees and an ability of the other spouse to pay the fees. Bussey, 108 Ill. 2d at 299-300, 483 N.E.2d at 1235.

The trial court’s order directs the payment of attorney fees by petitioner and respondent but fails to include any findings regarding the factors considered in the apportionment of attorney fees. The evidence established respondent earns more than twice what petitioner earns per month. Respondent’s monthly expenses, excluding the shortfall in medical expenses for Robert ($1,596.24), exceed his monthly income, established at trial to be $1,556, by less than $50. Petitioner’s monthly expenses are approximately $560 per month and do not exceed her monthly net income of $730.80. Respondent has superior earning power but significantly more debt. The record fails to establish petitioner is unable to pay her attorney fees and respondent is able to. The order regarding attorney fees is reversed.

In light of our determination the trial court erred in the disposition of the marital home, this cause is reversed and remanded for reconsideration of the property division and award of attorney fees. The order directing respondent to reimburse petitioner in the amount of $3,750 is affirmed.

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

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


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JOHN P. KELK, Defendant-Appellee.
    Fourth District
    No. 4—90—0383
    Opinion filed January 29, 1991.

      John Turner, State’s Attorney, of Lincoln (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    Adam N. Stillo, Jr., of Stillo & Pechter, Ltd., of Oak Lawn, and Thomas J. Skryd & Associates, of Cicero, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On December 28, 1989, the defendant, John P. Kelk, was charged with possession of between 30 and 500 grams of cannabis in violation of section 4(d) of the Cannabis Control Act (Act) (Ill. Rev. Stat. 1989, ch. 56½, par. 704(d)) and possession with the intent to deliver between 30 and 500 grams of cannabis in violation of section 5(d) of the Act (Ill. Rev. Stat. 1989, ch. 56½, par. 705(d)). Defendant filed a motion to quash the arrest and suppress evidence, and a hearing on the motion to suppress was held March 22, 1990. On March 23, 1990, the trial court allowed the defendant’s motion to suppress, and the prosecutor’s motion to reconsider was denied on May 16, 1990. The issue on appeal is whether the defendant’s consent to look in the car extended to a search of a duffel bag in the passenger compartment. We affirm.

The trial court in its March 23, 1990, ruling stated in part:

“Based on the totality of the circumstances presented here, the Court cannot conclude that a reasonable person would believe contraband was present. Also, the search clearly appeared to have gone beyond the consent to look in the car.”

At the hearing on the motion to reconsider, the trial court stated:

“[T]he specific language used, i.e. ‘look in the car,’ is subject to interpretation and bears on the issue of voluntariness of consent and, especially, the scope of that consent. Once again, from its review of the totality of the circumstances and facts raised in this case, the Court concludes that the search here went beyond the consent given ‘to look in the car.’ ”

Two witnesses were presented by the defendant at the motion to suppress, the defendant and the arresting officer. The actions taken by the officer which are subject of the motion are that he opened the passenger side of the vehicle and began to look in the defendant’s duffel bag, finding cannabis.

Asked whether any tickets were issued after he was stopped by Officer Becker, defendant stated: “He issued me a warning for the loud muffler and improper lane usage.” Defendant was then asked, “[did] you have a conversation with him?” The defendant responded, “He asked if he could — would—if I would — if I cared if he looked at my car.” The defendant responded, “I told him no.” The defendant was then asked whether the officer asked permission to search the duffel bag or the defendant’s personal belongings and the defendant responded, “No.” On further response to the question, “Did you give him permission to search your duffle bag or your suitcase?” the defendant answered, “No.” The defendant was allowed to answer why the defendant told the officer he could look in the vehicle, the defendant’s response being, “I didn’t realize that he was going to search my suitcase.” On cross-examination, the defendant once again admitted that he gave the officer permission to “look in the vehicle.”

State Trooper Becker was then called as a witness, and he was asked the question, “Did you have any reason to believe that the car was used in the commission of a crime?” to which the officer responded, “No, I did not.” He was then asked, “Did you have any reason to believe that the car contained any evidence of a crime?” and the officer answered, “No, I did not.” He was asked, “Now, when you asked him to look into the car, you never used the word search. Is that right?” to which the officer answered, “No, I didn’t.” Further question, “You just asked him if he cared if you looked in the car.” Answer, “Correct.” The officer was then asked, “Did you ever ask him permission to search any of his personal belongings in the car?” and the officer answered, “No, I didn’t.” He was then asked, “Did you ever ask him if you could search the duffle bag or the suitcase that he had in his car?” and the officer answered, “No, I didn’t.”

Both the defendant and the arresting officer testified that the officer did ask the defendant “if there were any drugs or weapons on the vehicle.” The defendant responded, “No.” The officer testified that he did not believe that he patted the defendant down before he looked into the car.

People v. Corral (1986), 147 Ill. App. 3d 668, 498 N.E.2d 287, and People v. Woolery (1990), 193 Ill. App. 3d 892, 550 N.E.2d 616, are argued by the parties in support of their positions on appeal and were the cases used by the trial court in making its ruling to grant the motion to suppress. In Corral, as here, the trial court granted the defendant’s motion to suppress. We stated, “Consent to a search must be voluntary, and the State has the burden of establishing voluntariness. [Citation.] Moreover, consent to a search ‘waives the warrant requirement only to the extent granted by defendant in his consent.’ [Citation.]” (Corral, 147 Ill. App. 3d at 674, 498 N.E.2d at 291.) In Corral, the trial court concluded that the defendant “consented only to an inspection of the truck’s agricultural cargo.” Corral, 147 Ill. App. 3d at 671, 498 N.E.2d at 290.

Also in Corral:

“Police must obtain a search warrant prior to searching a motor vehicle, unless the circumstances fall within an exception to the warrant requirement. A search warrant need not be obtained if: (1) police have probable cause to believe that the vehicle was used in or contains evidence of a crime; (2) police obtain valid consent to the search; (3) police search the vehicle incident to a lawful arrest; or (4) the vehicle is lawfully impounded and an inventory search results.” (Corral, 147 Ill. App. 3d at 672, 498 N.E.2d at 290.)

In Woolery, the defendant as in this case was asked if there was any alcohol or drugs in the auto and, after he replied no, the officer asked if he could search the vehicle. The defendant allegedly said, “Yeah, go ahead.” (Woolery, 193 Ill. App. 3d at 893, 550 N.E.2d at 617.) The officer searched the passenger compartment of the automobile and found no alcohol or drugs but did find some plastic baggies in a shaving kit. The officer then took the keys from the ignition, searched the trunk of the auto, and picked up a jacket from the trunk. At this time, the defendant exited the squad car and told the officer that he had given consent to search inside the vehicle and not the trunk. In Woolery, the trial court denied the motion to suppress. We found that the trial court could conclude “the initial consent could properly be interpreted by the officer as a consent to search the entire vehicle.” Woolery, 193 Ill. App. 3d at 895, 550 N.E.2d at 618.

In Woolery, there was a conflict in the testimony and the trial court questioned the defendant’s credibility and believed the officer’s testimony. As we stated in Woolery:

“ ‘The rule for determining the voluntariness of a consent to a search is set forth in Schneckloth v. Bustamonte (1973), 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 875, 93 S. Ct. 2041, 2059:
“*** [W]hen the subject of a search is not in custody and the State attempts to justify a search on the basis of his consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.”
The trial court’s determination of the voluntariness of a consent is to be accepted on review unless its findings are clearly unreasonable. People v. DeMorrow (1974), 59 Ill. 2d 352, 358, 320 N.E.2d 1, 5.’ People v. Sommer (1977), 45 Ill. App. 3d 459, 460-61, 359 N.E.2d 1190, 1191.” Woolery, 193 Ill. App. 3d at 895, 550 N.E.2d at 617-18.

In the case before us, both the defendant and the officer testified that the question asked the defendant was whether the officer could “look into the vehicle.” The prosecutor argues the officer’s two questions provided the scope of the consent to search: (1) are there any drugs or weapons in the car? and (2) do you care if I look inside the car? The trial court found that the defendant’s consent to look into the vehicle did not include an authorization to the officer to inspect and open the duffel bag.

The words “look into” and “search” do not necessarily set the same parameters of a consent. In People v. Shelton (1982), 110 Ill. App. 3d 625, 628, 442 N.E.2d 928, 931, this court stated, “The question of the subject matter of the consent itself is a factual one (People v. Cole (1977), 53 Ill. App. 3d 711, 368 N.E.2d 1308) and will not be disturbed unless the conclusion below is against the manifest weight of the evidence.” Here, it was a trial court call and the evidence presented does not require reversal.

Giving the required deference to the trial court’s determination, we point out that in Corral, this court affirmed the trial court’s determination to grant the motion to suppress; and in Woolery, this court affirmed the trial court’s determination that the motion to suppress should be denied. Here, the trial court determined that the search exceeded the consent granted by the defendant. Upon review of the record, the determination of the trial court was not against the manifest weight of the evidence.

The circuit court of Logan County is affirmed.

Affirmed.

LUND, P.J., and STEIGMANN, J., concur.


author: PRESIDING JUSTICE RARICK JUSTICE HOWERTON,

text:
    IVAN R. BARR, Plaintiff-Appellant, v. ROBERT GROLL et al., Defendants-Appellees.
    Fifth District
    No. 5—89—0520
    Opinion filed January 24, 1991.
    Rehearing denied March 7, 1991.

      HOWERTON, J., dissenting.
    Johnson, Frank, Frederick & Walsh, of Urbana, and Law Offices of Richard J. Schmitz, of Pana, for appellant.
    Edward T. Graham, Jr., and Ronald W. Periard, both of Hershey, Beavers, Periard & Graham, of Taylorville, for appellees.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Plaintiff, Ivan Barr, brought this action in the circuit court of Christian County seeking to recover for injuries he sustained when his motorcycle struck a dog belonging to defendants. The action was brought pursuant to the Animal Control Act (Ill. Rev. Stat. 1983, ch. 8, par. 351 et seq.).

Prior to trial, Barr filed a motion for summary judgment on the issue of liability, and attached to the motion the depositions of the parties and affidavits of the police officers who responded and of the sole occurrence eyewitness, Don Rakers. The trial court granted the motion. Approximately one year later, the Grolls filed a motion for reconsideration and included the discovery deposition of Don Rakers. After a hearing, the court granted the defendants’ motion and the case proceeded to trial on both liability and damages.

At trial, only one occurrence eyewitness, Don Rakers, testified. Barr himself could not remember anything about the occurrence because the injury he sustained affected his memory. Rakers testified that on June 19, 1983, Barr was riding east in the right lane when defendants’ dog appeared at the edge of the road. When Barr was 60 to 90 feet away, the dog started to cross. As the dog crossed his path, Barr attempted to avoid him. Barr first veered left, but the dog “speeded up.” Barr then turned right, but struck the dog and flipped over. While still at the scene, Barr complained of head pains and vomited.

Barr was taken to a hospital where he was treated by Dr. Fabi, who found swelling and a tenderness in the right occipital region of Barr’s skull. Dr. Fabi diagnosed a skull fracture and cerebral concussion. Dr. Fabi then referred Barr to Dr. Pearson, a board-certified neurosurgeon. Dr. Pearson also diagnosed a skull fracture and concussion. While with Dr. Pearson, Barr complained of hearing problems, headaches, and dizziness.

Several months after the accident, Barr was referred to Dr. Thomas Griffith, a board-certified ear, nose, head and neck surgeon. Dr. Griffith found permanent damage to the inner ear, tinnitus, and a hearing loss in the right ear. Barr was also continuing to suffer from headaches and dizziness, and Dr. Griffith indicated that this dizziness would affect Barr’s job as a construction laborer.

Barr returned to Dr. Pearson in July of 1985, after experiencing a continuing problem with loss of smell and taste sensations. Pearson diagnosed this condition as being caused by the severing of Barr’s olfactory nerve as a result of the collision. Barr continued to experience problems, and Dr. Fabi eventually referred him to Dr. Edward Trudeau, a specialist in rehabilitation medicine. After performing his own tests, Trudeau referred Barr to Dr. Johnathan Hess, a neuropsychologist and registered psychologist. Dr. Hess first saw Barr in 1985. After extensive testing, Dr. Hess diagnosed traumatic brain injury or post-concussion syndrome, which was caused by the 1983 collision. Dr. Hess confirmed these findings when he reevaluated Barr in 1988, and, based on the results of a newly developed test, added anoxic encephalopathy, a condition relating to the lack of oxygen being transmitted to the brain, to his diagnosis.

As a result of his condition, Barr suffered obvious memory problems, including a condition known as “perseveration” where there is an inappropriate carryover from a prior attention focus to the future. Hess also found that Barr did not have a significant IQ loss, but such would not be expected from the type of injury Barr suffered.

Hess referred Barr to Dr. Greenwald for marriage counseling, and Greenwald in turn referred Barr to Dr. Couch, a board-certified neurologist and headache specialist, for treatment of Barr’s persistent headaches. Dr. Couch arrived at the same diagnosis that Hess did, post-concussion syndrome. Dr. Couch indicated that this caused drastic changes in mentation, personality, ability to learn, and ability to work. As a result of his injury, Barr was depressed, moody, and unable to work.

At trial, Hess, Couch, and Pearson all opined that Barr’s injury prevented him from working any type of competitive employment and that such condition was permanent. Two vocational specialists testified and corroborated those opinions, indicating that Barr’s only chance for employment was in a sheltered workshop. They also stated that he was unable to follow directions or work without constant supervision.

Testimony indicated that Barr’s medical expenses were $13,394.84. Barr had been unable to work since the accident. He had been forced to turn down several jobs because of medical reasons. Barr’s average annual wages for the five-year period preceding the accident were $2,900, but no less than $640 in any one year. Testimony indicated that while the construction labor market was extremely depressed during that period, it had improved markedly since 1983 in terms of job opportunities and wages, and many construction workers were now earning in excess of $20,000 annually. Further testimony indicated Barr had a work-life expectancy of 24.7 years.

The jury returned a verdict in favor of Barr and awarded him $10,000: $4,550 for past medical expenses; $2,225 for past pain and suffering, $3,225 for past lost wages, and nothing for future medical expenses, pain and suffering, lost earnings or disability. Barr appeals.

Barr first argues that the jury’s assessment of monetary damages is against the manifest weight of the evidence. Barr maintains that the jury failed to make any awards for certain proven elements of damage and awarded wholly inadequate amounts for others.

Generally, a jury verdict will be upheld on appeal unless it is clearly contrary to the manifest weight of the evidence. (Voss v. Tune (1984), 121 Ill. App. 3d 692, 693, 460 N.E.2d 51, 52.) A verdict will be found to be against the manifest weight of the evidence if it is clearly erroneous and unreasonable based upon the facts and evidence. (Gilman v. Kessler (1989), 192 Ill. App. 3d 630, 548 N.E.2d 1371; Nunley v. Village of Cahokia (1983), 115 Ill. App. 3d 208, 450 N.E.2d 363.) A verdict may be found contrary to the manifest weight of the evidence where the size of the award is the result of passion or prejudice, where the amount is palpably inadequate, or where the jury disregarded proven elements of damages. Collins v. Straka (1987), 164 Ill. App. 3d 355, 517 N.E.2d 1147; Lee v. Chastang (1979), 79 Ill. App. 3d 622, 398 N.E.2d 1250.

We are mindful that in cases such as this, where the verdict turns primarily upon the credibility of the witnesses, a reviewing court should be particularly deferential to the determination of the jury. The jury has the better opportunity to hear the witnesses and observe their demeanor, and so is in a better position than a reviewing court to determine the witnesses’ credibility. Jury verdicts are not sacrosanct, however, and where clearly erroneous or unjust, must be set aside. Based upon a review of the record, we conclude that such is the case here.

Seven health care professionals testified without contradiction that Barr suffered permanent injuries as a result of the collision and the defendants offered no medical evidence in rebuttal, yet the jury awarded no damages for disability arising from Barr’s permanent injuries, despite substantial uncontradicted evidence of such disability. The jury also declined to award any damages for future lost wages. All seven medical experts testified that Barr could not return to work as a construction laborer and several testified that he could never return to any type of competitive employment because of his inability to follow instructions and need for constant supervision, both of which resulted from his brain injury.

The jury failed to award any damages for future pain and suffering, even though numerous medical witnesses testified that Barr would continue to suffer pain in the future. Finally, the jury failed to award damages for future medical expenses, despite evidence that Barr would need continued treatment. The Grolls argue and we recognize that the credibility of the various medical experts is for the jury to determine and that a damage award is not reversible merely because it is less than the plaintiff sought, but here the jury simply failed to make any award for several elements of damages despite clear evidence demonstrating their existence. Consequently, the verdict must be set aside and the cause remanded.

We must next determine whether the cause need be remanded for a new trial on the issue of damages alone, or on the issue of liability as well. The standard for making such a determination is well settled:

“ ‘A new trial on the question of damages only is appropriately granted “where (1) the jury’s verdict on the question of liability is amply supported by the evidence; (2) the questions of damages and liability are so separate and distinct that a trial limited to the question of damages is not unfair to the defendant; and (3) the record suggests neither that the jury reached a compromise verdict, nor that, in some other identifiable manner, the error which resulted in the jury’s awarding inadequate damages also affected its verdict on the question of liability.” ’ ” Hollis v. R. Latoria Construction, Inc. (1985), 108 Ill. 2d 401, 408, 485 N.E.2d 4, 7, quoting Balestri v. Terminal Freight Cooperative Association (1979), 76 Ill. 2d 451, 456, 394 N.E.2d 391, 393.

To prove liability under section 16 of the Animal Control Act, a plaintiff must show:

1. The defendant’s dog, without provocation, attacked or injured plaintiff;
2. The defendant owned the dog;
3. The plaintiff’s conduct was peaceable;
4. The plaintiff was injured in a place where he had a legal right to be.

Ill. Rev. Stat. 1983, ch. 8, par. 366; Nelson v. Lewis (1976), 36 Ill. App. 3d 130, 344 N.E.2d 268.

The sole occurrence eyewitness, Don Rakers, testified that Barr was riding on the highway when the Grolls’ dog started to cross. Barr attempted to avoid the dog, but struck it anyway. Clearly, Barr was in a place where he had a right to be, and the Grolls admitted owning the dog. Further, there is sufficient evidence to support the jury’s determination that Barr did not provoke the dog and was peaceably conducting himself. We also find the issues of liability and damages to be sufficiently separate and distinct such that a new trial on the issue of damages alone would not be unfair to the Grolls. Finally, nothing in the record suggests a compromise verdict. The Grolls argue that based on the evidence, the jury could have believed that Barr caused his own injury, that he “provoked” the dog or that he was not engaged in “peaceable conduct” and was trying to strike the dog and reduced the amount of the award accordingly. Any such finding, however, would have precluded a finding of liability altogether.

Barr next argues that the introduction of his school records, including his IQ scores, was improper because the Grolls failed to lay an adequate foundation. Supreme Court Rule 236(a), which governs the admissibility of business records, provides as follows:

“Any writing or record, whether in the form of any entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event, shall be admissible as evidence of the act, transaction, occurrence, or event, if made in the regular course of any business, and if it was the regular course of the business to make such a memorandum or record at the time of such an act, transaction, occurrence, or event or within a reasonable time thereafter. All other circumstances of the making of the writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but shall not affect its admissibility. The term ‘business,’ as used in this rule, includes business, profession, occupation, and calling of every kind.” 107 Ill. 2d R. 236(a).

Barr argues that Mr. Heaton, the superintendent of Barr’s school district at the time of trial and the witness proffered to supply the foundation for Barr’s school records, was not the custodian of those records, never stated the records were made in the regular course of business, never testified that they were made at or near the time of the occurrence in question, and provided no testimony that the record was made by a person with knowledge of the occurrence in question. A review of the testimony demonstrates that, contrary to Barr’s assertions, Heaton’s testimony does demonstrate that the records in question were made in the ordinary course of business and that they were made at or near the time of the occurrence in question. As to Barr’s other two complaints, that Heaton was not the custodian of the school records and did not testify that they were made by a person with knowledge of the events in question, these circumstances affect the weight of the record, but not its admissibility. (107 Ill. 2d R. 236(a).) Anyone familiar with the records sought to be admitted and acquainted with the business and procedures may testify as to the records. Thomas v. Police Board (1980), 90 Ill. App. 3d 1101, 414 N.E.2d 11.

Barr also contends that his school records were irrelevant. We find that because one of Barr's elements of damage was based upon his impaired mental abilities, evidence of his level of mental ability prior to the accident was relevant. The court did not err in allowing the jury to examine these records during deliberations. Whether and which records are to be provided to the jury rests with the sound discretion of the trial court, and we find no abuse of discretion.

Barr raises a number of other issues on appeal, but as none bear on the question of damages, we need not address them.

The decision of the circuit court of Christian County is affirmed in part and reversed and remanded in part for a new trial on the issue of damages alone.

Affirmed in part; reversed and remanded in part.

HARRISON, J., concurs.

JUSTICE HOWERTON,

dissenting:

I dissent. I would affirm.


author: JUSTICE HARRISON

text:
      In re MARRIAGE OF MARTINA MARIE VEST, Petitioner-Appellee, and REX IRVIN VEST, Respondent-Appellant.
    Fifth District
    No. 5—89—0467
    Opinion filed February 8, 1991.

      Steven E. Katzman, of Belleville, for appellant.
    Robert E. Wells, Jr., of Pessin, Baird, Belsein & Wells, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

Respondent, Rex Irvin Vest, appeals the trial court’s allowing petitioner Martina Marie Vest’s petition for disposition of property, which sought a portion of respondent’s military pension pursuant to section 510.1 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 510.1). In orders entered on December 30, 1988, and June 14, 1989, the court awarded petitioner, inter alia, one-half of respondent’s pension and $1,000 toward her attorney fees. Subsequent to the filing of respondent’s notice of appeal from these orders, petitioner filed a petition for attorney fees on appeal. On October 25, 1989, the trial court ordered respondent to pay $2,500 toward petitioner’s attorney fees on appeal. Respondent has also appealed this award of fees, and both appeals have been consolidated.

Respondent and petitioner were married on December 6, 1953. Respondent joined the armed forces in January 1954 and retired in January 1974. On April 15, 1982, the trial court entered its judgment of dissolution and approved a written separation agreement providing for the settlement of matters relating to custody, support and education of the couple’s remaining minor child, support and maintenance of the parties, and property and marital rights.

On October 26, 1987, petitioner filed a petition for dissolution of property alleging an interest in respondent’s military retirement benefits and requesting division thereof under section 510.1 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 510.1). On March 28, 1988, respondent filed an affirmative defense alleging that the original disposition of military retirement benefits was appropriate.

At the time of the entry of the judgment of dissolution, the Supreme Court case of McCarty v. McCarty (1981), 453 U.S. 210, 69 L. Ed. 2d 589, 101 S. Ct. 2728, was effective law. It held that Federal law precluded State courts from dividing military pensions in dissolution-of-marriage proceedings. But, on February 1, 1983, Congress enacted the Uniform Services Former Spouses’ Protection Act (10 U.S.C. § 1408(c)(1) (1983)), which abrogated the application of the McCarty decision to all dissolutions of marriage retroactive to the issuance of McCarty. In re Marriage of Bingham (1989), 181 Ill. App. 3d 966, 968-69, 537 N.E.2d 1158, 1159-60.

The State of Illinois thereafter enacted section 510.1 of the Act, which provides, in pertinent part:

“Section 510.1. Division of military retirement benefits, (a) Agreements, judgments or orders that became final on or after June 26, 1981, and before February 1, 1983, may be modified to include a division of military retirement benefits payable on or after February 1, 1983, in a manner consistent with federal law and the law of this State as it existed before June 26, 1981, and as it has existed since February 1, 1983.
* * *
(c) An opponent of a modification requested under this Section may raise affirmatively that the original disposition of military retirement benefits was appropriate when all factors under Section 503 of this Act are considered.” (Ill. Rev. Stat. 1987, ch. 40, pars. 510.1(a), (c).)

Section 510.1 was repealed by its own terms on January 1, 1989. Ill. Rev. Stat. 1987, ch. 40, par. 510.1(e).

Respondent contends for the first time on appeal that section 510.1 is unconstitutional. The rule that issues not raised or preserved for review in the trial court are waived applies to constitutional and nonconstitutional issues. (In re Marriage of Savas (1985), 139 Ill. App. 3d 68, 74, 486 N.E.2d 1318, 1323; see also In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 1038, 455 N.E.2d 887, 890.) In civil proceedings, the acts of the parties to the litigation which by fair inference acknowledge the validity of a statute or rule are binding and preclude an attack thereon as unconstitutional. (Savas, 139 Ill. App. 3d at 74, 486 N.E.2d at 1323.) We therefore will not consider the issue here, except to note that in Barnes v. Barnes (1987), 43 Cal. 3d 1371, 743 P.2d 915, 240 Cal. Rptr. 855, the California Supreme Court upheld the constitutionality of a California statute almost identical to section 510.1.

Respondent next argues that the trial court erred in finding that he had failed to prove the affirmative defense set forth in section 510.1(c), i.e., “that the original disposition of military retirement benefits was appropriate.” (Ill. Rev. Stat. 1987, ch. 40, par. 510.1(c).) Modification of a divorce decree rests in the sound discretion of the trial court, and courts of review will not disturb its findings unless the evidence clearly so requires. (In re Marriage of Riedy (1985), 130 Ill. App. 3d 311, 313, 474 N.E.2d 28, 30.) We believe the evidence in this case does so require. Although no division of respondent’s military retirement pension was made in the settlement agreement and the judgment of dissolution, because such was prevented at the time by the McCarty case, it is nonetheless evident that the parties and the trial court gave full recognition to the payments generated by that pension in making the division of the marital property in this case.

The record reveals that petitioner received two of the parties’ three cars, a 1969 Ford station wagon and a 1974 Mercury wagon, the vast majority of the household furnishings, 60% of respondent’s IRA, one-half of the cash value of respondent’s life insurance policies, $50 per week in maintenance for a period of four years, and $100 per week in child support for as long as the couple’s remaining minor child remained a full-time student. Respondent assumed all marital debts, with the exception of a debt owed to petitioner’s parents and daughter in the amount of $4,000, of which respondent paid half. Respondent received his clothes, a clothes hamper, his tools and an automobile, a 1977 Ford LTD upon which some $2,000 was owed, and the remainder of his IRA and life insurance policies. Respondent received his military retirement pension as “his non-marital property.”

According to section 510.1(c), the trial court, in determining whether respondent had established that the original disposition of military retirement benefits was appropriate, was to consider the factors enumerated in section 503. (Ill. Rev. Stat. 1987, ch. 40, par. 510.1(c).) Thosé factors listed in section 503 which are particularly relevant to this cause are: the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and nonmarital property, including the contribution of a spouse as a homemaker or to the family unit; the value of the property set apart to each spouse; the duration of the marriage; the relevant economic circumstances of each spouse when the division of property is to become effective; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; and the reasonable opportunity of each spouse for future acquisition of capital assets and income. Ill. Rev. Stat. 1987, ch. 40, pars. 503(d)(1) through (d)(4), (d)(7) through (d)(10).

As petitioner correctly notes, she had made a substantial contribution to the couple’s near 30-year marriage as a homemaker and mother to the couple’s six children. Additionally, at the time of the original proceeding, petitioner lacked the vocational skills and employability possessed by respondent. However, petitioner received the bulk of the marital assets, was relieved of a majority of the marital indebtedness, and received maintenance and child support so that she and the couple’s 17-year-old daughter might seek the education or training they might need to become employable and self-sufficient. Further, as respondent suggests, petitioner effectively received a portion of the pension in the original disposition. Without resorting to the income received from his pension, respondent clearly could not have paid $150 per week in combined child support and maintenance on only the net amount of $215.09 per week received from his employment as a mechanic.

Additionally, respondent’s former attorney, Terry Brown, testified that petitioner’s attorney had threatened to appeal the issue of the pension unless respondent accepted petitioner’s settlement proposal. Brown further testified that he told respondent that he would not recommend j;he settlement because he believed the trial court would order substantially less amounts of support and maintenance if the matter were to be tried. Brown stated that respondent “indicated that he wished to take [the] settlement to avoid any problems with an appeal concerning the pension benefits.”

Thus, the evidence reveals that the original disposition of military retirement benefits was part of a carefully derived plan that, when considering the relevant section 503 factors, was fair to both parties. We therefore find that the trial court erred in rejecting respondent’s affirmative defense. As respondent so aptly stated in his brief on appeal, “[i]t would be totally unjust to allow ¡petitioner] to reap the benefits of an advantageous marital settlement agreement in exchange for the pension, and then allow her to have half the pension as well.”

Where the original disposition of military retirement benefits was appropriate, the trial court’s orders granting petitioner’s petition for disposition of property must be reversed. In view of this determination, we need not address respondent’s additional contentions that the trial court erred in making a retroactive award of benefits and in ordering respondent to pay one-half the cost of the survivor benefit plan to petitioner.

Respondent’s final contention is that the trial court erred in ordering him to pay petitioner’s attorney fees. Respondent was ordered to pay $1,000 toward petitioner’s attorney fees incurred at the trial court level and another $2,500 toward her fees on appeal. Ordinarily, the party for whom legal services were rendered is responsible for those fees. However, section 508 of the Act provides that a court may order a former spouse to pay a reasonable amount for attorney fees necessarily incurred by the other spouse in connection with the enforcement or modification of any order or judgment and the defense of an appeal of any order or judgment under the Act, including the defense of appeals of post-judgment orders. Ill. Rev. Stat. 1987, ch. 40, pars. 508(a)(2), (a)(3).

A party seeking an award of attorney fees must show a financial inability to pay the fees and a corresponding ability of the ex-spouse to do so. Financial inability to pay does not require a showing of destitution. (In re Marriage of Stadheim (1988), 170 Ill. App. 3d 19, 25, 523 N.E.2d 1284, 1288.) Furthermore, the party seeking fees should not be required to liquidate his assets to pay his own fees before there can be a finding of inability. (In re Marriage of Piccione (1987), 158 Ill. App. 3d 955, 964, 511 N.E.2d 1157, 1163.) The allowance of attorney fees and the amount awarded are matters within the sound discretion of the trial court. Absent an abuse of the court’s discretion, a fee award will not be reversed on appeal. Stadheim, 170 Ill. App. 3d at 25, 523 N.E.2d at 1288.

Here, the trial court determined that petitioner was financially unable to pay her fees while respondent had the ability to do so. The record reveals that at the time the fee awards were made, respondent was gainfully employed and had a gross income of more than $20,000 per year from his employment. Additionally, respondent received in excess of $11,000 annually as distribution from pensions and annuities. Petitioner, a licensed day care provider, had some $6,000 per year in income.

Each party maintains savings in an IRA and each argues on appeal that he or she should not be required to resort to this source in order to pay attorney fees. However, at the time of the October 25, 1989, hearing, respondent was current in his attorney fees, while petitioner had an outstanding bill in excess of $5,000, which sum did not include her attorney fees on appeal. We conclude that based on the financial information before the trial court, the court was within its discretion in requiring respondent to pay petitioner’s attorney fees in the amount awarded.

Given that our decision here will assure respondent’s continued receipt of his entire pension, his payment of petitioner’s attorney fees will not likely work any undue hardship. Nor does our disposition of the pension issue require reversal of the fee award. There is no prohibition against awarding attorney fees to an unsuccessful litigant. (In re Marriage of McCaskey (1988), 167 Ill. App. 3d 860, 866, 522 N.E.2d 300, 304.) Petitioner proceeded in good faith in. an action to modify the judgment of dissolution under a statutory section provided precisely for that purpose.

Accordingly, we affirm those portions of the trial court’s orders of December 30, 1988, June 14, 1989, and October 25, 1989, regarding attorney fees, but reverse the remaining portions of the trial court’s orders of December 30,1988, and June 14,1989.

Affirmed in part; reversed in part.

HOWERTON and CHAPMAN, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM P. LEGER, Defendant-Appellant.
    Fifth District
    No. 5—89—0405
    Opinion filed February 21, 1991.

      Daniel M. Kirwan and Michelle A. Zalisko, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Tom Foster, State’s Attorney, of Shawneetown (Kenneth R. Boyle, Stephen E. Norris, and Scott A. Manuel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE HARRISON

delivered the opinion of the court:

The defendant, William P. Leger, was charged by a Gallatin County information with murder in the first degree and armed violence in connection with the death of Mary Sue Leger. (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), 33A — 2.) Following a partially stipulated bench trial, defendant was found guilty of second-degree murder. (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2(a)(1).) The trial court sentenced defendant to a 30-year term of imprisonment, to run consecutively to a sentence of death previously imposed in Saline County.

Defendant presents the following arguments on appeal: (1) that the State failed to prove that he had the requisite intent to commit the offense, given his defense of voluntary intoxication; (2) that the trial court erred in ordering his sentence to run consecutively to his Saline County death sentence; and (3) that the trial court erred in imposing an extended-term sentence where the statutory aggravating factors applied were improper or unconstitutional.

At defendant’s bench trial, the State presented stipulated evidence, inter alia, that Mary Sue Leger, defendant’s estranged wife, died of gunshot wounds received at her home in Ridgeway, Illinois, between 10:30 and 11 p.m. on September 4, 1987. At approximately 11 p.m. on the same evening, defendant entered the Eldorado, Illinois, home of his ex-wife, Susan Newman, and her husband, Monte Newman, and shot each three times. Susan Newman died from the gunshot wounds. As defendant fired the third shot at Mr. Newman, he stated, “As for you m— f—

Defendant arrived at his parents’ residence in Eldorado about 11 p.m. on September 4, and asked for some pain pills. Dorothy Leger, defendant’s mother, noticed some dark stains on defendant’s shirt and asked if he had been fighting. Defendant went outside, brought in a .38-caliber revolver, emptied six spent shell casings from the gun and said, “I’ve killed those two whores and that man.” Defendant’s father, William P. Leger, Sr., said to defendant, “You’re crazy; you’re drinking.” Defendant replied, “No, I’m not crazy; I did it.” Defendant then told his father, “Don't never [sic] do to my mom what I’ve done.” As defendant left the Legers’ residence, he warned his parents, “Don’t touch that gun; the police will be down to get it.”

Sometime before midnight, defendant purchased gas at the Kerr-McGee station in Galatia, Illinois. A station employee observed that defendant was staggering and unsteady on his feet while putting the gas into his car. At approximately 12 midnight, Galatia police officer Joe Akins came upon defendant’s car. Defendant proceeded to pull off the highway without Akins turning on his siren or overhead lights. After confirming defendant’s identity, Officer Akins arrested defendant, who stated to Akins, “Be sure they know you’re the one I let catch me, because it might help you out later.”

At the time of defendant’s arrest, Officer Akins noticed a strong odor of alcohol on defendant’s breath and believed him to be intoxicated. However, Illinois State Police Trooper Ron Towery and Special Agent Larry Huggins, who helped process defendant at the Eldorado police department between 1 and 2 a.m. on September 5, 1987, smelled no alcohol about defendant and did not believe defendant to be intoxicated. Defendant was able to remove his clothing unassisted and had no trouble understanding the officers’ instructions and questions, nor in giving detailed personal history information.

The projectiles recovered at the scene and from Mary Sue Leger’s body were fired from the .38-caliber revolver recovered from defendant’s parents. Other tests showed that when Ms. Leger was shot, the muzzle of the gun was in close proximity to her body and that the black sooty areas on a pair of pink slacks found at the scene were consistent with draping the slacks over the muzzle and cylinder of the gun in an attempt to muffle and hide the noise of the shots. Finally, it was stipulated that any evidence of the murder of Susan Newman and attempted murder of Monte Newman should be considered only for the limited purpose of determining whether or not defendant was intoxicated and/or in a drugged condition to the extent that he was incapable of acting knowingly or with intent.

Defendant presented stipulated evidence, inter alia, that he was “intoxicated, wild, and crazy” when he arrived at his parents’ home about 11 p.m., and that he ingested an unknown quantity of pills at that time. Officer Akins would have testified that he told defendant at the time of his arrest that he was “blitzed and didn’t know what was going on.” Bartenders at the American Legion Post and Knights of Columbus Hall in Ridgeway, Illinois, would have testified that defendant consumed several beers at each of their establishments on the evening of September 4, 1987. Additionally, an employee of the Egyptian Mental Health Department, who interviewed defendant at the Saline County jail on the afternoon of September 5, 1987, would have testified that defendant appeared to be confused and not completely aware of what was going on around him.

Myra Moore, an alcoholism and addictions counselor and psychiatric nurse, would have testified that alcoholic blackouts do occur in some individuals, allowing them to act normally and perform ordinary tasks while later having no recollection or memory of what took place. Ms. Moore had had professional contacts with defendant prior to September 4, 1987, wherein defendant told her that he had suffered incidents of alcoholic blackouts. However, the State stipulated that on cross-examination, Ms. Moore would have testified that, generally, persons suffering from alcohol- and/or drug-induced amnesia do not commit crimes or violent acts but rather perform only simple everyday tasks.

Several witnesses would have testified regarding the various prescription medications that defendant was taking and the enhanced effect achieved by combining those drugs with alcohol. A physician would have testified that the drugs taken by defendant, when combined with alcohol, could have prevented him from forming the requisite intent to kill. Another professional would have testified that in February 1987, defendant was suffering from depression and emotional problems arising from his previous and impending divorces. Additionally, five witnesses would have testified to defendant’s reputation for nonviolence.

Defendant testified at the partially stipulated bench trial that he had previously been married to Susan Newman and was in the process of divorcing Mary Sue Leger when she died. Defendant described injuries that he had received working as a coal miner and stated that on September 4, 1987, he had taken four types of prescribed pain medications. Defendant gave a detailed account of his activities on September 4, 1987, which included several visits to the American Legion Post and Knights of Columbus Hall. Defendant last remembered drinking at the Knights of Columbus Hall around 6 p.m. He did not recall shooting Mary Sue Leger or Monte and Susan Newman, and stated that his next memory was of the Saline County jail. Defendant recalled drinking five beers and one double whiskey during a five- to six-hour period on September 4, but admitted that he had drunk an equal amount in one day during the month previous to September 4 and indeed that he drank practically every day.

As part of the stipulated evidence, the parties agreed that the evidence was sufficient to support the finding that defendant acted with an unreasonable belief in self-defense or that he was acting under a sudden and intense passion resulting from serious provocation by Mary Sue Leger. The trial court found defendant guilty of second-degree murder based upon the presence of the mitigating factor of an unreasonable belief in self-defense.

It is clear that when the defense of intoxication to the crime of murder is raised, the issue is not whether the defendant was intoxicated on the date in question, but whether the defendant had the requisite mental state for murder. (People v. Zynda (1977), 53 Ill. App. 3d 794, 809, 368 N.E.2d 1079, 1090.) Voluntary intoxication is an affirmative defense to second-degree murder only if the condition is so extreme as to suspend the power of reason and render the defendant incapable of forming the specific intent to kill or do great bodily harm. Ill. Rev. Stat. 1987, ch. 38, pars. 6 — 3(a), 9 — 1(a)(1), 9— 2(a); see also People v. Baczkowski (1989), 180 Ill. App. 3d 17, 21, 535 N.E.2d 484, 487.

It is the function of the trier of fact to determine the existence of the requisite intent, and that determination will not be disturbed on review unless it clearly appears that there exists a reasonable doubt as to defendant’s guilt. (People v. Migliore (1988), 170 Ill. App. 3d 581, 586, 525 N.E.2d 182, 186.) Based upon the record before us, we reject defendant’s contention that the State failed to prove beyond a reasonable doubt that he was capable of forming the proper mental state for murder.

The intent to kill may be inferred from the character of the assault, the use of a deadly weapon, the issuance of threats, and the circumstances surrounding the incident. (People v. Anderson (1982), 108 Ill. App. 3d 563, 566, 439 N.E.2d 65, 68; see generally People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112 (finding that defendants’ voluntary intoxication was not so extreme as to prevent them from forming requisite intent to commit burglary was sufficiently supported by evidence that one or both defendants had worn gloves to avoid leaving fingerprints).) Here, the stipulated evidence showed that during the time defendant claimed to be suffering an “alcoholic blackout,” he shot his estranged wife three times at close range, using a pair of slacks draped over the muzzle of the gun in an attempt to muffle the noise. Defendant then drove his car from Ridgeway to Eldorado and proceeded to shoot the Newmans, making a threatening statement to Monte Newman as he fired the final shot. We agree with the State that while this statement was made during a separate incident, its occurrence, along with the circumstances of Ms. Leger’s death, show defendant was capable of acting with intent during his alleged blackout.

Defendant’s conversations with his parents and police, immediately following his commission of the crimes, also demonstrate an ability to function that belies his affirmative defense. Defendant drove to his parents’ house, admitted the crimes, and told his father to never do what he had done. He then warned his parents not to touch the gun he had just emptied because “the police will be down to get it.” Officer Akins arrested defendant after he voluntarily pulled over and told Akins to “[b]e sure they know you were the one I let catch me.” These responses by defendant evince a knowledge of his actions and the fact that they were criminal.

Before, during, and after commission of the offense, defendant acted with purpose and with an understanding of the consequences of his actions, in other words, knowingly and intentionally in committing the crime. Thus, there was sufficient evidence to justify the trial court in finding that defendant’s level of intoxication did not negate his capacity to form the requisite intent. We therefore conclude that defendant was proven guilty of the crime of second-degree murder beyond a reasonable doubt.

The State argues that the remaining issues raised by defendant are waived by his failure to file a post-trial motion. However, the issues challenged by the State as not being preserved for review concern requests that this court reconsider defendant’s sentence. In People v. Thomas (1990), 193 Ill. App. 3d 525, 527, 550 N.E.2d 29, 31, the appellate court held that a defendant’s failure to move the trial court to reduce his sentence does not result in the waiver of the issue of the sentence’s severity on appeal. We find the Thomas holding to control here, as our review of the case law does not suggest that defendant’s failure to file a post-trial motion containing sentencing issues should have a contrary result.

Defendant argues that the trial court erred in ordering his sentence in this case to run consecutively to the sentence of death he received for the murder of Susan Newman. First, defendant claims that the trial court failed to make a finding that a consecutive sentence was necessary to protect the public.

Section 5 — 8—4(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(b)) states that the trial court shall not impose a consecutive sentence unless it is of the opinion, the basis for which the court shall set forth in the record, that such a term is required to protect the public from further criminal conduct by the defendant. However, in People v. Pena (1988), 175 Ill. App. 3d 263, 529 N.E.2d 627, it was specifically held that, because the language of this section is permissive rather than mandatory, a defendant’s failure to request from the trial court a statement of reasons for a particular sentence waives the issue for review. Thus, where the record reveals no such request by defendant, the matter was not properly presented to the trial court and is waived.

Defendant also alleges that a consecutive sentence may not follow a death sentence. However, the pertinent statutory section states:

“(a) When multiple sentences of imprisonment are imposed on a defendant at the same time, or when a term of imprisonment is imposed on a defendant who is already subject to sentence in this State ***, the sentences shall run concurrently or consecutively as determined by the court.” (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(a).)

As defendant was indeed “already subject to sentence” — the death sentence — it is clear that a term of imprisonment may be imposed consecutively to that death sentence.

Defendant additionally argues that no useful purpose will be served by the imposition of a consecutive sentence; since defendant will be incarcerated until executed by the State, the public will already be protected from further criminal conduct by him. In People v. Hines (1988), 165 Ill. App. 3d 289, 518 N.E.2d 1362, cert. denied (1988), 488 U.S. 895, 102 L. Ed. 2d 226, 109 S. Ct. 236, the defendant similarly argued that no useful purpose is served by sentencing a defendant to an extended term consecutive to a sentence of natural life without possibility of release. In rejecting this argument, the court noted that, where otherwise proper, “consecutive sentencing may well be beneficial even under these circumstances should defendant’s life sentence be subsequently modified, commuted or reduced.” (Hines, 165 Ill. App. 3d at 307, 518 N.E.2d at 1373.) The trial court’s sentence, in the case at bar may serve a similar purpose should defendant’s death sentence be modified, commuted, or reduced. We find that the trial court’s imposition of a 30-year term of imprisonment consecutive to defendant’s existing death sentence was not error.

Defendant next contends that the trial court erred in imposing an extended-term sentence upon him where neither of the statutory aggravating factors given by the court applies. The trial court found that defendant had been convicted of the same or greater class felony within the last 10 years, thus justifying an extended-term sentence under section 5 — 5—3.2(b)(1) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1)). That section requires that the previous charges were brought and tried separately and arose out of a different series of acts. (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1).) Defendant does not dispute that the Saline County charges were separately brought and tried, but argues that they did not arise from a different series of acts.

At trial, the stipulated evidence showed that defendant shot and killed Mary Sue Leger and Susan Newman, and wounded Monte Newman, between the hours of 10 and 11 p.m. on September 4, 1987. The trial court found that the Leger and Newman shootings were separate courses of conduct for purposes of imposing a consecutive sentence. Defendant accepts this finding, arguing that “[wjhile the shooting here may not have arisen during the same course of conduct as the Newman shootings, *** both shootings arose out of the same series of acts and with the same purpose — to rid [defendant] of all the women who were causing him to suffer emotional problems.” However, the term “conduct” refers to an act or series of acts and the accompanying mental state. (People v. Willis (1990), 204 Ill. App. 3d 590, 595, 561 N.E.2d 1376, 1380.) Thus, defendant’s concession to the court’s finding that the Leger shooting was a separate course of conduct is also a concession that it was a separate act.

Notwithstanding defendant’s concession, the fact that both murder victims had been married to defendant and were “disposed of” by him in a single evening does not mean that the two shootings were part of the same series of acts. Ms. Leger was shot in Ridgeway, Gallatin County, Illinois. Defendant was then required to drive to Eldorado, Saline County, Illinois, in order to accomplish the act of shooting the Newmans. It has been stated that the single course of conduct rule was not adopted to free a defendant from the consequences of a series of crimes, involving separate acts, committed against several individuals. (People v. Lindsay (1978), 67 Ill. App. 3d 638, 647, 384 N.E.2d 793, 800.) We feel this statement is equally applicable to the “different series of acts” condition in section 5 — 5—3.2(b)(1) (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(1)). Because these two murders involved shootings of different individuals at separate times and places, we find that they arose out of a different series of acts within the meaning of section 5 — 5—3.2(b)(1).

Therefore, where the trial court properly imposed an extended-term sentence under section 5 — 5—3.2(b)(1), it is unnecessary for us to examine the propriety of the other factor relied upon by the trial court — that the murder was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty (Ill. Rev. Stat. 1987, ch. 38, par. 1005 — 5—3.2(b)(2)). (See People v. McFarland (1981), 93 Ill. App. 3d 136, 416 N.E.2d 769 (presence of one of statutory factors is sufficient for imposition of extended-term sentence).) It is also unnecessary for us to reach defendant’s final argument, since it concerns the constitutionality of this additional aggravating factor.

Based upon the foregoing, we affirm the judgment and sentence of the Gallatin County trial court.

Affirmed.

HOWERTON and CHAPMAN, JJ., concur.