author: JUSTICE McCULLOUGH JUSTICE STEIGMANN,

text:
      In re MARRIAGE OF BARBARA ANN HART, Petitioner-Appellant, and ROBERT HART, Respondent-Appellee.
    Fourth District
    No. 4—89—0238
    Opinion filed February 22, 1990.

      Ronald Tulin, of Ronald Tulin, Ltd., of Charleston, for appellant.

      Thomas J. Logue, of Glenn & Logue, of Mattoon, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

On November 12, 1986, Barbara Hart, age 42, filed a petition for dissolution of her marriage to Robert Hart, age 52. On September 11, 1988, the trial court entered an order dissolving the marriage, dividing marital property, setting child support, and denying maintenance. Petitioner appeals, arguing the trial court abused its discretion in not awarding her one-half of respondent’s pension, the trial court erred in calculating respondent’s net income for purposes of child support, and the trial court abused its discretion in denying her rehabilitative maintenance.

We reverse and remand.

Background

The parties were married on February 11, 1968, and have three children, Eric, Michael, and Shannon. The children are 16, 14, and 12 years of age, respectively.

INCOME

Petitioner is a registered nurse. After her marriage, she worked part time until her first child was born. Subsequent to the birth of her children, she worked part time training horses and riders. In November 1987, she began work as a staff nurse at a nursing home. She earns $10 per hour and nets $860 per month. She works 56 hours every two weeks during the daytime. Petitioner testified she wanted to improve her skills and return to school. She wanted to earn a bachelor’s degree in nursing so she would be able to apply for a supervisory position or better paying position. She investigated returning to school but had not made any plans. She did not plan to return to school or increase her work hours at the present time because the children needed supervision. Petitioner stated her return to school was dependent upon the children’s adjustment to the dissolution. She needed temporary maintenance in order to return to school full time.

Petitioner requested she be awarded the marital home. She stated she could not afford the $1,217 monthly mortgage, tax, and insurance payment. She contributed $500 per month to the home and it would cost her a similar amount to rent a home.

Respondent is a surgeon and was a partner in Link Clinic. He had been associated with Link Clinic since 1978. Respondent and petitioner’s joint Federal income tax return shows that he had a partnership income of $142,000 in 1987. Donald Doehring, a certified public accountant, who prepared the parties’ tax returns, stated respondent’s gross income from all sources was $149,506 in 1987. He had prepared an exhibit to show respondent’s income for purposes of the instant cause. Doehring stated $23,370 of the 1987 income was nonrecurring income from the sale of a 2% interest in the partnership. Doehring subtracted this amount and professional expenses from respondent’s income. He then added income received from consulting fees. The net professional income was $119,948. From this Doehring deducted taxes, leaving $93,610. Doehring then deducted $15,742, which represented repayment of part of the debts the parties had incurred pursuant to a bankruptcy reorganization plan. Doehring then deducted medical insurance premiums totalling $2,546. Finally, Doehring subtracted $17,050, which represented money respondent had borrowed to pay his 1987 taxes and interest on that amount.

Doehring stated respondent’s net income for purposes of this case was $58,272. Doehring admitted that he had subtracted $16,000 of the income tax liability twice and that this was not sound accounting practice. Doehring testified respondent’s gross income in 1988 would be $6,000 to $8,000 less than his gross income in 1987.

Link Clinic merged with Carle Clinic in 1988. All of the agreements had not been signed as of the day of the hearing. However, respondent was guaranteed a minimum gross salary of $140,000. As part of the merger, respondent was responsible for malpractice insurance premiums totalling $100,000. His partnership share in Link Clinic, valued at $38,962, was used to offset part of the liability. The balance would be deducted from his salary from Carle Clinic in installments of $23,000 the first year and $25,000 the second year. Respondent testified that it was possible he could generate income above the minimum salary. Carle Clinic had a pension and profit-sharing program. However, respondent was uncertain about the specifics of this program. The merger with Carle Clinic was a business decision, which would eliminate future competition and protect his income.

ASSETS AND LIABILITIES

The parties submitted statements of marital assets and liabilities. The value of several items of personal property varied in the documentation submitted to the trial court. The following table roughly summarizes the information. All of the marital debt is not summarized.

ASSETS AND LIABILITIES

Value Indebtedness

$ 92,500 $ 87,342 (first mortgage) Marital home

24,000 27,604 (first mortgage acreage; second mortgage marital home, hereinafter second mortgage) Adjoining 10-acre tract and barn

disputed 4,500 1978 Porsche

disputed 1981 Dodge

disputed 1978 Truck

disputed 1972 Ford

unvalued three horses

3,677 IRA’s

Disputed Household furnishings

800 Equipment

38,962 Interest in partnership

96,393 +1988 contribution of $12,000 to Pension profit share

15,000

Unsecured creditors 310 per month

(Until August 1989)

Respondent testified that the loan repayment amount subtracted from his income by Doehring was for the repayment of business debts. He and petitioner borrowed money from several sources to finance the purchase of airplanes for investment purposes. Part of the loan was also to purchase the 10-acre tract and barn. The primary loan was secured by a second mortgage on the marital home and a first mortgage on the 10-acre tract (hereinafter referred to as second mortgage). Respondent stated this was a business loan. He borrowed an additional amount of money for the 10 acres. The debt to the Mat-toon National Bank was for a second plane. The third debt was for use tax on a twin-engine plane. The monies borrowed from the insurance companies against policy benefits were for living expenses. As an adverse witness, respondent admitted he did not have the various amounts of money and loans segregated in his mind.

Petitioner admitted the ranch operation and the plane were shown as business investments for tax purposes. Petitioner stated she reluctantly agreed to purchase the twin-engine plane and signed the notes. However, she felt respondent bought the plane because he loved flying. Respondent was not qualified to pilot the twin-engine plane.

In 1986, the parties filed a reorganization plan, which involved both business and personal debts. The first mortgage on the marital home was not affected by the reorganization. Pursuant to the plan, the second mortgage, valued at $50,000, was to be paid off in 48 monthly installments of $1,104.17. After payment, the creditor was to release the second mortgage on the marital home and the mortgage on the 10-acre tract. Additionally, the parties were required to pay unsecured creditors $310 per month beginning August 22, 1986, for 36 months. The parties’ joint debts at the time of the bankruptcy were approximately $318,000. Their joint. assets were approximately $138,000. The reorganization plan stated the property in the bankruptcy estate would become the debtors’ property after payment of the amount shown in the plan.

The trial court in a letter to the parties stated the primary problem was whether the home with the acreage should be sold to pay debts or retained by the petitioner. The court noted the children should, if possible, live in the family home. Respondent was the primary source of the parties’ income as well as the primary source of the debts. The court then stated that if it were best for the children to live in the family home, it was best that respondent have exclusive rights to his pension. The letter offered respondent several options.

On September 11, 1988, the trial court entered an order dissolving the marriage and awarding custody of the children to petitioner. The court found respondent was the primary source of income for the family, the main cause of some of the debts, and would be the main source of college funds for the children. The court stated that since respondent must pay the bulk of the debts, he was given a choice of various property division options.

Petitioner was awarded possession of the home and acreage until Shannon was 18 years old and out of high school. Petitioner received the furnishings and equipment, except the cut glass vase and the furniture respondent brought into the marriage. She received the vehicles except the Porsche.

Respondent was ordered to pay the mortgage, taxes, insurance, and repairs on the marital home. The marital home was to be sold after Shannon reached 18 years of age and was out of high school. The equity was to be divided equally between the parties. Respondent received the mortgage interest deduction, pension through the clinic, and Porsche, subject to its debt. The court noted respondent was to receive any interest from his partnership share in Link Clinic. In discussing child support, the court found the partnership interest was a wasted asset since it would be used to pay respondent’s insurance costs. The court ordered respondent to pay all unpaid marital debts.

The court set child support at $1,760 per month until September 1989, $1,825 per month until September 1990, and then at $2,180 per month. The court based the $1,760 figure on a projected net income of approximately $65,872 as suggested by respondent. The court ordered respondent to maintain his existing insurance policies, with existing beneficiaries, and to maintain adequate medical insurance for the children. The court further ordered respondent to pay $3,415.70 to petitioner’s attorney and $1,428.70 to petitioner’s certified public accountant. Finally, the court denied maintenance, other than property in lieu of maintenance. The court noted petitioner was capable of working full time but chose not to do so. Subsequently, the court denied petitioner’s motion for reconsideration.

Opinion

Initially, petitioner argues the trial court’s division of marital property was inequitable, and the trial court improperly applied the factors stated in section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)). Petitioner contends the pension and profit-sharing plan was the only real asset in the parties’ possession, since the marital residence and adjoining acreage were encumbered. Therefore, respondent received both his interest in Link Clinic and the pension and profit-sharing plan. Petitioner did not determine the value of her use of the marital residence.

Respondent argues the benefit of living in the marital home has worth- which must be calculated. Respondent secondly argues the interest in Link Clinic is not property which the respondent received because he received no value for it. Respondent contends the division was not an abuse of discretion.

In her reply brief, petitioner contends the court must calculate the present cash value of living in the marital home and the detriment to respondent, as well as the probable increase in the pension. Petitioner then contends the tax consequences and present cash value of alternative dispositions must be calculated.

Section 503(d) of the Act allows the court discretion to divide marital property in what it considers just proportions, considering listed factors and all other relevant matters. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d); In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316.) The court should consider: the value of the non-marital and marital property; the contribution of each party in acquiring property, including any homemaker contribution; the age, health, occupation, source of income, and employability of each party, and whether maintenance is also to be awarded. No specific findings are necessary. In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 494 N.E.2d 615.

The touchstone of a proper apportionment is whether it is equitable in nature. Each case must rest upon its own facts. (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336.) A division of marital property need not be equal to be equitable. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238; In re Marriage of Click (1988), 169 Ill. App. 3d 48, 523 N.E.2d 169.) Absent an abuse of discretion whereby no reasonable man could adopt the trial court’s position, a reviewing court will not substitute its judgment for the trial court’s disposition in marital property matters. Benz, 165 Ill. App. 3d at 285, 518 N.E.2d at 1322; see also In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 521 N.E.2d 621 (discretion abused in maintenance award only when no reasonable person could adopt the view of the trial court).

The trial court abused its discretion in the instant case. First, the trial court did not consider the partnership interest in Link Clinic, $38,962, as an asset having real worth. Respondent applied that value to reduce his insurance liability debt, which was incurred as a part of the merger of Link Clinic with Carle Clinic. The merger was not finalized at the time of the dissolution, but its terms were set. Generally, property acquired after marriage, with certain inapplicable exceptions, is presumed to be marital property. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499; Ill. Rev. Stat. 1987, ch. 40, par. 503(a).) The business interest of a spouse acquired subsequent to marriage constitutes marital property subject to equitable distribution upon dissolution. In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 507 N.E.2d 900.

Respondent concedes the value of the partnership interest in Link Clinic was a marital asset. Section 503(d)(1) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1)) provides the court shall divide marital property in just proportions, considering relevant factors. Among those factors is each party’s contribution to or dissipation of the marital property. “Dissipation” is use of marital assets for one spouse’s sole benefit or for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 511 N.E.2d 676.) Where a party has dissipated marital assets, the trial court may charge the amount dissipated against the offending party’s share of the marital property, so the other party is compensated. Partyka, 158 Ill. App. 3d 545, 511 N.E.2d 676.

The evidence below clearly established respondent’s use of the marital asset for his individual benefit. In essence, petitioner’s interest in a marital asset was treated as a nullity because respondent chose to apply the asset to his individual insurance liability, rather than receive a cash payment for it. The partnership interest did not lose its value as a marital asset subject to distribution when it was used to retíre a debt. Failure to correctly consider disposition of the partnership interest renders the property division an abuse of discretion. Partyka, 158 Ill. App. 3d 545, 511 N.E.2d 676.

Petitioner argues the trial court failed to adequately consider the factors stated in section 503(d) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)). Petitioner contends she is entitled to a portion of the pension plan. The trial court in dividing marital property balanced the benefit to petitioner of living in the marital home until Shannon is 18, free of mortgage, taxes, and insurance payments, and her freedom from marital debts, with respondent’s obligation to maintain the payments and retire marital debts. The trial court properly considered the joint debt of the parties as a factor offsetting the award of property. (In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 522 N.E.2d 317.) The trial court also properly considered that respondent’s actions in paying the first mortgage for six years would preserve a marital asset and would increase the value of the marital home for both parties. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) Respondent will retire the second mortgage during the six-year period. This will increase the equity in the combined properties. Petitioner urges this court to engage in an assessment of the present cash value of the use of the home, the earning potential of the retirement account, and the detriment to the respondent. Petitioner urges us to then find the trial court abused its discretion based upon our determination of the present cash value of various options which the court could have taken.

The petitioner did not offer such analysis to the trial court. A reviewing court will not reverse and remand for further proceedings where the parties had an opportunity to present evidence to the trial court but failed to do so. (Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316.) We note such calculations are subjects for expert testimony and dispute. However, since the complete division of property must be reevaluated by the court in light of our finding that the partnership interest in Link Clinic was not adequately considered, the petitioner will have an opportunity to present this information to the trial court for its consideration.

We note a complete valuation of all the parties’ assets and liabilities will assist the court in reaching its determination of a just property division. The trial court did not set a value for many items of personal property. In this case, valuation of personal property is a necessary predicate to determining the fairness of a property settlement. We note also that where children are involved, the primary objective of the court is to provide adequate support for them. (Stone, 155 Ill. App. 3d at 75, 507 N.E.2d at 908.) The trial court on remand will have an opportunity to reassess property division in light of the factors stated in section 504 of the Act and reconsider a division of all the parties’ assets and liabilities.

Petitioner next argues the trial court erred in calculating child support by using past rather than future income and by allowing a deduction for certain debts. Respondent argues future income for child support purposes is speculative and the trial court correctly deducted amounts used to generate income.

Section 505 of the Act provides for the imposition of child support obligations and determines the amount based upon statutory criteria. The minimum amount for the support of three children is 32% of the supporting party’s net income. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1).) “Net income” is defined as total income from all sources, minus: (a) Federal tax; (b) State income tax; (c) social security; (d) mandatory retirement contributions; (e) union dues; (f) dependent and individual health insurance premiums; (g) prior obligations of support paid pursuant to court order; and (h) expenditures for the repayment of debts that represent reasonable and necessary expenses for the production of income. Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(3); In re Marriage of Adams (1988), 174 Ill. App. 3d 595, 528 N.E.2d 1075.

Respondent began employment as an associate of Carle Clinic on the date of the hearing. He testified his guaranteed minimum gross salary was $140,000. Petitioner urges this court to take the $140,000 salary less taxes and social security and use the resultant figure as the base salary for support calculations. Petitioner’s argument does not consider deductions for health insurance, deductions for business expenses, and debts. The trial court did not err in using the 1987 income figure as the base for calculating child support amounts.

Petitioner next argues the court erroneously allowed respondent to deduct his 1987 taxes and an amount borrowed to pay those taxes from his gross income. The record does not support this contention. Although Doehring subtracted the taxes and a $16,000 debt to pay them from respondent’s gross income, the amount of support awarded by the trial court shows it added $16,000 to respondent’s net income as calculated by Doehring. Petitioner’s contention, thus, is not supported by the record.

Petitioner next contends allowing deductions from gross income for debts incurred for the purchase of the twin-engine plane and three other debts was improper. Petitioner contends these were not business debts. The trial court specifically found the plane was purchased as a business investment. Part of the money borrowed for the plane and adjoining acreage was secured by the second mortgage on the home and the first mortgage on the acreage. Petitioner in her testimony agreed the plane was shown as an investment on tax returns. The parties also boarded horses, trained riders, and used the ranch operation as a business deduction. Respondent testified that the amount of the second mortgage was used for the plane and the ranch. Thus, we cannot find the trial court’s determination that these were business debts is contrary to the manifest weight of the evidence.

Petitioner next contends the trial court allowed a deduction for all unsecured ordinary debts as combined in the bankruptcy proceeding. The record does not support this conclusion. Respondent proposed deductions for four debts from his gross income. One involved the second mortgage, incurred to purchase the plane and ranch. The other three involved the plane and tax liability on the plane. The trial court did not err in finding these were expenditures for repayment of debts incurred to produce income.

However, under the facts presented by the instant case, we believe the amounts should not have been deducted from respondent’s income for purposes of calculating his child support obligation. Here, respondent received the bulk of the marital assets because he had the duty to repay marital debt. Thus, deducting amounts used to repay a portion of the marital debt from income for purposes of child support allows respondent a double benefit. The property awarded to him could have been used to repay these debts. Thus, the trial court erred in determining net income for purposes of child support.

Additionally, we note the figures used by the trial court based on respondent’s income in 1987 included a deduction of $23,370 for nonrecurring income. Section 505(a)(1) of the Act does not provide for a deduction of nonrecurring income in calculating net income for purposes of child support. (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1).) We note that on remand respondent’s actual income for 1988 will be available for use by the court in its child support determination. The trial court’s responsibility is to determine child support payments as required by section 505 of the Act.

Petitioner next argues the trial court’s order denying her $500-a-month rehabilitative maintenance for two years is contrary to the manifest weight of the evidence. Petitioner stated she needed the award to return to school and update her degree. An award of maintenance is within the discretion of the trial court and will not be reversed on appeal unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. (In re Marriage of Zummo (1988), 167 Ill. App. 3d 566, 521 N.E.2d 621.) We do not adopt the concurring opinion as to maintenance. Reviewing courts should be wary of directing trial courts to make provisions for maintenance not requested by the parties. Marital misconduct and morality are not considered. “[T]he standard of living established during the marriage” is a proper consideration. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 504(b)(3).) Awards of maintenance under the Act are governed by the criteria of section 504 of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 504.) The amount of marital property apportioned to each spouse is one of the factors to be considered in deciding whether to grant an award of maintenance under section 504 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 504). Because we are remanding for a division of marital property, reconsideration of maintenance is necessary. See Partyka, 158 Ill. App. 3d 545, 511 N.E.2d 676.

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

Reversed and remanded.

GREEN, J., concurs.

JUSTICE STEIGMANN,

specially concurring:

I concur in the opinion reached by the majority of the court. I write separately because I believe the inequities in this case are representative of similar inequities that occur all too frequently in dissolution proceedings in this State, particularly with regard to maintenance.

Maintenance is an important part of the public policy of this State and ought not be viewed with disfavor. As the majority states in its opinion, an award of maintenance is within the discretion of the trial court and will not be reversed on appeal unless it constitutes an abuse of discretion or is against the manifest weight of the evidence. I conclude the trial court in this case grossly abused its discretion.

Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 504) sets forth the standards for awarding maintenance. An award of maintenance is warranted where the court finds that the party seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs and is unable to support herself. (Ill. Rev. Stat. 1987, ch. 40, pars. 504(a)(1), (a)(2); In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269, 511 N.E.2d 156, 166.) The phrases “lacks sufficient property *** to provide for [her] reasonable needs” and “is unable to support [herself],” however! cannot mean that a party must be reduced to penury before maintenance becomes appropriate.

A proper understanding of when maintenance is apprOpriaté under section 504(a) may be obtained from the description-of the factors to be considered under section 504(b) in determining the amount of maintenance to be ordered. (Ill. Rev. Stat. 1987, ch. 40, pars. 504(a), (b).) According to section 504(b), maintenance should be sufficient to provide the spouse seeking it with the standard of living established during the marriage, except where the financial situation of the paying spouse, the duration of the marriage, or the health of either party indicates otherwise. (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) It makes no sense to say that a party is not entitled to maintenance because she is able to support herself at some level of subsistence, and then to say that if she is entitled to maintenance, it should be in an amount consistent, among other factors, with “the standard of living [established] during the marriage.” See In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 1013-14, 462 N.E.2d 30, 38-39.

In the instant case, after 18 years of marriage and three children, petitioner filed a petition for dissolution. She then began to work part time as a staff nurse at a nursing home, netting only $860 per month. Although she indicated a desire to return to school to obtain a bachelor’s degree in nursing, she had no income to achieve this goal (much less support herself) in the standard of living that she had grown accustomed to as the wife of an established surgeon. Respondent, on the other hand, has substantial income. As a surgeon affiliated with the Carle Clinic of Urbana, respondent had a guaranteed minimum gross salary of $140,000, starting in July 1988, and has the potential to earn much more.

At oral arguments, respondent’s counsel was asked to consider the respective positions of these parties four years after the dissolution of their marriage. He conceded that under the best possible circumstances, petitioner might be able to gross $40,000 a year as a nurse, while under the worst possible circumstances, respondent would continue to gross $140,000 a year as a surgeon.

Immediately prior to the dissolution of their marriage, these parties had a partnership in marriage. Viewed in a light most favorable to respondent, four years after the dissolution of that partnership, the former partners will be earning a combined gross income of $180,000. However, at best, petitioner is to receive only 22% of the former partners’ total earnings. Respondent gets to enjoy the remaining 78% and need not suffer through retraining, as petitioner must, in order to get it.

Marriage is a partnership, not only morally, but financially. Spouses are coequals, and homemaker services must be recognized as significant when the economic incidents of divorce are determined. Petitioner should not be penalized for having performed her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle petitioner with the burden of her reduced earning potential and to allow respondent to continue in the advantageous position he reached through their joint efforts.

What makes the denial of maintenance in this case all the more egregious is the quality of life which all of the members of this family enjoyed prior to the dissolution of marriage and which respondent will still continue to enjoy. A few of the more notable features of how they lived prior to the dissolution (and prior to a bankruptcy in 1986) are the following: a marital home with an adjoining 10-acre tract and barn and three horses maintained thereon; four motor vehicles, including a 1978 Porsche; and several airplanes purchased over the years (including one twin-engine plane) for the respondent, who is a pilot.

On remand, the trial court has been directed to take additional evidence to ascertain the current and future financial status and needs of both parties. In doing so, I conclude the trial court may use income potential rather than actual income on the date of the hearing (In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 631, 450 N.E.2d 1229, 1232); and, given the relative certainty of financial predictions in this case, it may be viewed as error for the trial court not to do so. In addition, the court may take judicial notice of the fair earning power of money or invested capital over a certain time period. (In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 612, 527 N.E.2d 18, 26.) Thus, the trial court, based upon the evidence presented, should project income four and eight years into the future, using a consumer price index adjustment. This approximation of income will enable the trial court to properly consider the real financial resources of the parties as they will be, as well as what they are at the time of the hearing.

Directing that the trial court should look four and eight years (at least) into the future as it determines what an appropriate order of maintenance should be should not be understood as requiring such an approach only on the facts of this case. Rather, such an approach is required whenever the evidence permits it to be utilized.

As stated earlier, section 504(b) directs that maintenance “shall be in such amounts and for such periods of time as the court deems just.” (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) That section further directs the court to consider the following factors, inter alia, in deciding the amount of maintenance:

“(1) [T]he financial resources of the party seeking maintenance *** and his ability to meet his needs independently ***;
(3) the standard of living established during the marriage;
(4) the duration of the marriage;
(5) the age and the physical and emotional condition of both parties; [and]
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” (Ill. Rev. Stat. 1987, ch. 40, pars. 504(b)(1), (b)(3), (b)(4), (b)(5), (b)(6).)

On remand, the above-quoted factors should be the particular focus of the trial court’s attention. By so focusing, the trial court will be better able to place these parties in positions of equity with regard both to their present financial circumstances and their future financial circumstances as well.

The denial of maintenance in this case is outrageous. In my judgment, petitioner’s original request for maintenance was too paltry a sum; that she did not even get what she requested reveals the need for trial courts and the bar to reexamine attitudes too often brought to the resolution of the issue of maintenance.


source: Caselaw Access Project

author: JUSTICE STEIGMANN

license: Public Domain

text:
    KENNETH THOMPSON, Petitioner-Appellee, v. MICHAEL P. LANE, Director, Department of Corrections, et al., Respondents-Appellants.—JOHN L. CROOM, Petitioner-Appellee, v. MICHAEL P. LANE, Director, Department of Corrections, et al., Respondents-Appellants.
    Fourth District
    Nos. 4—89—0186, 4—89—0266 cons.
    Opinion filed February 22, 1990.

      Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Karen Michels Caille, Assistant Attorney General, of Chicago, of counsel), for appellants.
    Kenneth Thompson, of Menard, appellee pro se.

    John L. Croom, of Menard, appellee pro se.

   JUSTICE STEIGMANN

delivered the opinion of the court;

This consolidated appeal involves two petitioners, Kenneth Thompson and John Croom, both inmates at the Pontiac Correctional Center (Pontiac), and their challenge to procedures used by the named respondents on behalf of the Illinois Department of Corrections (DOC) in revoking good-time credit. DOC appeals from judgments of the trial court (1) denying its motions to dismiss petitioners’ petitions for writ of mandamus, and (2) ordering DOC to conduct a rehearing of the inmate disciplinary reports, or in the alternative, to restore petitioners’ lost good time and demotion in grade. On appeal, DOC argues that (1) the revocation of petitioners’ good-time credit complied with the requirements of due process, and (2) there was some evidence in the record supporting the revocation of petitioners’ good-time credit.

We disagree and affirm.

On October 16, 1987, Thompson was issued a prison disciplinary report charging him with assault, gang activity, and conspiracy to commit murder. The charges related to the murder of Superintendent Robert Taylor, which occurred on September 3, 1987, at Pontiac, and were based on an investigation report which revealed that Thompson was the exercise coordinator of the Black Gangster Disciples (Disciples) on September 3, 1987, when he attended meetings held in the south yard with other members of the Disciples during July and August, where plans were made to attack Taylor. The ticket further indicated that additional information could be obtained under a specified case number from the office of Inspections and Audits Internal Investigations.

On October 21, 1987, the Adjustment Committee (Committee) met and found Thompson guilty of the charges cited in the disciplinary report. Thompson appeared at the hearing, but refused to remain to address or deny the charges. Thompson claimed that the hearing was not being conducted in a private setting. The Committee’s summary indicated that the Committee reached its finding of guilt for the following reasons:

“Based upon the statement by reporting employee; and from resident’s refusal to stay for the hearing to address and or to deny the charges; from investigative report that revealed Thompson A 74160 was an active member of the Black Gangster Disciples, that he did participate in meetings that discussed the planning and the attack on Robert Taylor; committee is satisfied that violations did occur.”

The Committee revoked 360 days of Thompson’s good time, demoted him to C grade for 360 days, and ordered him placed in segregation for 360 days. Thereafter, Thompson filed a grievance and appeared before the Administrative Review Board (Board) on January 21, 1988. The Board concurred with the Committee’s finding.

On September 19, 1988, Thompson filed a petition for writ of mandamus, alleging that DOC denied him due process at the Committee hearing and seeking restoration of 360 days of good-time credit. Specifically, Thompson alleged that DOC failed to follow its own rules in the preparation of Thompson’s disciplinary report and in the conduct of the Committee hearings.

DOC moved to dismiss Thompson’s petition, arguing that the hearing complied with due process. Thompson filed a response in opposition to DOC’s motion, contending that the advance written notice of the charges given by DOC was deficient, the hearing was not conducted in an area of the facility offering him privacy, and the summary report of the Committee did not sufficiently inform him of the Committee’s basis for finding him guilty.

The court denied DOC’s motion to dismiss. The court held that the hearing on October 21, 1987, did not meet minimum due process requirements because it did not afford Thompson any opportunity to challenge the disciplinary report. The court held that Thompson “was not furnished with the most fundamental of information concerning the charges, specifically, who his accusers were, times, dates and places, and his alleged involvement in said plots and discussions.” The court ordered DOC to conduct a rehearing or, in the alternative, to restore to Thompson 360 days of lost good time and loss of grade. The court further ordered that in the event DOC conducts a rehearing, DOC must advise Thompson in writing of the hearing more than 10 days prior to the hearing and must inform him of the specific dates, times, location, and persons attending the meetings.

Croom, also an inmate at Pontiac, was issued a disciplinary ticket on October 16, 1987, charging him with assault, gang activity, and conspiracy to commit murder. The ticket stated that Croom was the assistant exercise coordinator for the Disciples and that during the months of July and August, Croom attended meetings with other Disciples in the south yard, where plans were discussed and made to attack Taylor. Croom’s report also stated that additional information could be obtained from the same office of Inspections and Audits Internal Investigations under the same case number.

On October 21, 1987, the Committee found Croom guilty of the charges cited in his disciplinary report. Croom appeared at the hearing, but made no comments other than stating he was not guilty. The Committee’s summary report indicated that the Committee reached its finding of guilt for the following reasons:

“Based upon the statements by reporting employee and from investigative reports that reveal that Croom N 40345 was the assistant coordinator of exercise for the BGD’s and did attend meetings on the south yard that did discuss the planning and attack of Robert Taylor; committee is satisfied he was a participant and did commit the violations. Resident has a past history of similar offense.”

The Committee revoked 360 days of Croom’s good-time credit, demoted him to C grade for 360 days, and ordered him placed in segregation for 360 days.

Subsequently, on November 12, 1987, Croom filed a grievance with the Pontiac Inquiry Board, complaining that the Committee refused to show him evidence concerning the incident. The Inquiry Board concluded that Croom’s grievance was without foundation. Thereafter, Croom brought the issue to the Administrative Review Board on February 17, 1988. The Board concurred with the findings of the Committee.

On January 26, 1989, Croom filed a petition for a writ of mandamus alleging, as Thompson alleged in his petition, various due process violations. DOC moved to dismiss Croom’s petition, asking the court to accept the same arguments that DOC made in Thompson’s case. The court denied DOC’s motion, adopting the ruling it made in Thompson’s case that DOC violated due process.

On appeal, DOC contends that the procedures used in conducting the prison disciplinary proceedings complied with due process. Specifically, DOC maintains these procedures conformed to requirements set forth in Wolff v. McDonnell (1974), 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963.

In Wolff, the United States Supreme Court held that an inmate must receive the following: (1) advance written notice of the disciplinary charges at least 24 hours prior to the hearing; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action. Wolff, 418 U.S. at 564-66, 41 L. Ed. 2d at 956-57, 94 S. Ct. at 2978-79.

With respect to the first requirement set forth in Wolff— that inmates must receive advance written notice of the disciplinary charges at least 24 hours prior to the hearing — DOC argues that it was met on October 16, 1987, when petitioners received disciplinary tickets. DOC maintains that the tickets complied with due process requirements in that the tickets informed petitioners of the specific charges against them and cited the specific disciplinary rules that formed the basis of the charges.

Petitioners argue they should have received a more detailed notice of the charges pending against them. They contend the notice they received was so general that it was difficult for them to prepare any defense.

Initially, we note that section 3 — 6—3(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1987, ch. 38, par. 1003 — 6—3(c)) provides for the DOC to prescribe rules and regulations for the revocation of good-conduct credit, and one such regulation is section 504.30(c) of the Illinois Department of Corrections rules, as stated in the Illinois Administrative Code (Code) (20 Ill. Adm. Code §504.30(c) (1985)). Section 504.30(c) states in pertinent part:

“The Disciplinary Report must be fully completed. The reporting employee shall provide the following information to the extent known or available.
(2) The place, time and date of the offense.
(5) The names of all committed persons, employees and visitors who were witnesses.” (Emphasis added.) (20 Ill. Adm. Code §504.30(c) (1985).)

DOC is required to follow its own regulations. People ex rel. Yoder v. Hardy (1983), 116 Ill. App. 3d 489, 495, 451 N.E.2d 965, 969; Taylor v. Franzen (1981), 93 Ill. App. 3d 758, 761, 417 N.E.2d 242, 244.

The ticket issued to Thompson read as follows:

“INMATE KENNETH THOMPSON A 74160 is to be charged with the above violations for his involvement [in] the MURDER of ROBERT TAYLOR that occurred on September 3, 1987 in the South Cell House, the investigation revealed that Thompson was the exercise coordinator on September 3, 1987 and during the months of July and August 1987 when he attended meetings held on the South Yard with other members of the BLACK GANGSTER DISCIPLES, at these meeting[s] it was discussed and plans made to ATTACK ROBERT TAYLOR which occurred on September 3, 1987 and the result being the death of ROBERT TAYLOR, the investigation revealed that THOMPSON was involved with these acts[.] [A]ny additional information needed contact the office of Inspections and Audits Internal] Investigations, refer to case number 88 PON 041 for additional information.”

Croom’s ticket read:

“INMATE JOHN CROOM N 40345 is to be charged with the above violations for his involvement [in] the MURDER of ROBERT TAYLOR that occurred on September 3, 1987 in the South Cell House, the investigation was able to reveal that CROOM is and was the Assistant Exercise Coordinator for the BLACK GANGSTER DISCIPLE ORGANIZATION and during the months of July and August CROOM did attend meetings with other BGD’s in the South yard where plans were discussed and made to attack ROBERT TAYLOR and this attack did occur on September 3, 1987 and resulted in his death, additional information can be obtained from the office of Inspections and Audits Internal Investigations, refer to case number 88 PON 041 for this information.”

Information required by section 504.30(c) of DOC rules to be included was left out. Specifically, according to section 504.30(c), to the extent known or available, petitioners should have been informed who their accusers were, as well as the approximate times, dates, and places of the alleged infractions.

Prisoners are not afforded all of the rights and privileges guaranteed to other citizens. (Wolff, 418 U.S. at 555, 41 L. Ed. 2d at 950, 94 S. Ct. at 2974.) The rights they enjoy are flexible and subject to limitation. It is therefore necessary to balance the need for efficient and secure prisons against petitioners’ rights to be protected against unwarranted losses of liberty. Prison officials must have broad discretion in structuring and operating the prison disciplinary system. A court should not meddle in prison affairs unless legitimate constitutional issues are raised that require intervention. Redding v. Fairman (7th Cir. 1983), 717 F.2d 1105, 1112.

While some of the additional information required by section 504.30(c) of DOC rules might have been lethal, other information might have been “safe.” For example, revealing the names of the informants might have led to the death or serious injury of some or all of the informants. Thus, any benefit to petitioners, substantial as it might have been, to being provided with the names of witnesses might have been outweighed by the costs associated with providing this additional information. But, the approximate times, dates, and places of the alleged meetings in furtherance of the conspiracy to murder Taylor are examples of additional information that might have been “safe.”

DOC cites two decisions of the Seventh Circuit Court of Appeals as supporting its position that it need not furnish petitioners with the names of witnesses, but we believe these cases are factually distinguishable. In Dawson v. Smith (7th Cir. 1983), 719 F.2d 896, 897, the ticket served on the inmate asserted that he planned to escape from the United States Penitentiary at Terre Haute and then stated the following: “The source of this information is considered to be reliable and will remain CONFIDENTIAL to ensure the orderly running of the institution.” (Capitalization in original.) In McCollum v. Miller (7th Cir. 1982), 695 F.2d 1044, 1045, the ticket alleged that the inmate pressured other inmates to give him money and to perform homosexual acts with him and asserted that the basis of this information was “various confidential sources.”

Citing these cases and Mendoza v. Miller (7th Cir. 1985), 779 F.2d 1287, DOC claims that prison inmates need not be provided with the names of confidential sources or information where to do so would jeopardize the well-being of other individuals or institutional safety. We agree but point out that nowhere in the ticket of either petitioner is there a claim by DOC that the information being requested by the petitioners is being withheld for any such reason. Given the careful balancing of important competing interests at issue, we decline to presume that the safety of individuals or the institution is DOC’s basis for refusing to provide the information requested to the petitioners. Based on this record, that refusal could simply be premised upon the use of arbitrary authority. In sum, we hold that if DOC wishes to rely on such safety concerns, it is required to say so on the inmate’s ticket.

DOC also argues that the second requirement of Wolff — that the inmate must receive an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense — was met. DOC contends that both petitioners were given an opportunity to call witnesses and present documentary evidence, but that neither chose to exercise this right. In further support of this argument, DOC claims that neither petitioner even requested the production of witnesses.

In view of our resolution of this case based upon our analysis of the first and third requirements of Wolff, as well as the applicable DOC regulations, we need not address this issue.

Last, DOC argues that the third requirement set forth in Wolff — that an inmate must receive a written statement by the fact finder of the evidence relied on and the reasons for the disciplinary action — was also satisfied. Respondents maintain that in informing petitioners of the charges and considering the evidence, the Committee, in its summaries, found petitioners guilty and stated in writing the reasons for those findings. Petitioners argue that the summaries contained no evidence to support the Committee’s findings of guilt.

Thompson’s Committee summary read as follows:

“Based upon the statement by reporting employee; and from resident’s refusal to stay for the hearing to address and or deny the charges; from investigative report that revealed Thompson A 74160, was an active member of the Black Gangster Disciples, that he did participate in meetings that discussed the planning and the [attack] on Robert Taylor; Committee is satisfied that violations did occur.”

Croom’s Committee summary read as follows:

“Based upon the statements by reporting employee and from investigative reports that reveal that Croom N 40345 was the assistant coordinator of exercise for the BGD’s and did attend meetings on the south yard that did discuss the planning and attack of Robert Taylor; committee is satisfied he was a participant and did commit the violations. Resident has a past history of similar offense.”

Section 504.80(k)(l) of the DOC rules, as set forth in the Code, states:

“All evidence submitted, including all oral and written statements, shall be summarized in the written record prepared by the Committee. The Committee members shall specifically refer to the evidence which convinced them to decide the committed person did or did not commit the offense.” (20 Ill. Adm. Code §504.80(k)(l), at 1963 (1985).)

This requirement is not to be taken lightly. (Redding, 717 F.2d at 1114.) In fact, the United States Supreme Court has stated:

“Without written records, the inmate will be at a severe disadvantage in propounding his own cause to or defending himself from others. It may be that there will be occasions when personal or institutional safety is so implicated that the statement may properly exclude certain items of evidence, but in that event the statement should indicate the fact of the omission. Otherwise, we perceive no conceivable rehabilitative objective or prospect of prison disruption that can flow from the requirement of these statements.” {Wolff, 418 U.S. at 565, 41 L. Ed. 2d at 956, 94 S. Ct. at 2979.)

General findings of the sort used here, merely incorporating the disciplinary report and the special investigator’s report, do not comply with either Wolff or DOC’s own rules. Nor will this type of finding protect the inmate against subsequent collateral effects based on a possible misunderstanding of the initial decision. Redding, 717 F.2d at 1114.

DOC argues, however, that the relevant inquiry is whether there is some evidence in the record that could support the conclusion reached by the Committee (Superintendent v. Hill (1985), 472 U.S. 445, 86 L. Ed. 2d 356, 105 S. Ct. 2768) and maintains that the Committee’s summaries meet that standard. DOC claims those summaries contain some evidence in that they were premised on investigative reports which revealed that Thompson and Croom were active members of the Disciples and participated in meetings held in the south yard in the months of July and August, where plans were formed to attack Taylor.

We find, however, that to satisfy minimum due process requirements, a statement of reasons should be sufficient to enable a reviewing body to determine whether good-time credit has been revoked for an impermissible reason or for no reason at all. While detailed findings are not required, something beyond mere conclusory statements is required.

Here, the Committee failed to give an adequate statement as to the evidence relied on or the reasons for the action taken. Rather than pointing out the essential facts upon which inferences were based, the Committee merely made reference to the disciplinary report and the special investigator’s report.

For the foregoing reasons, the order of the circuit court of Livingston County denying DOC’s motion to dismiss petitioners’ petitions for writ of mandamus and ordering DOC to conduct a rehearing of the inmate disciplinary reports, or in the alternative, to restore petitioners’ lost good-time credits and demotion in grade, is affirmed.

Affirmed.

McCULLOUGH and SPITZ, JJ., concur.


author: JUSTICE GREEN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARREN BRYAN WALKER, Defendant-Appellant.
    Fourth District
    No. 4—89—0396
    Opinion filed February 22, 1990.

      Daniel D. Yuhas, Charles M. Schiedel, and Peter L. Rotskoff, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle and Robert J. Biderman, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On March 30, 1989, the circuit court of Macon County entered judgment on a jury verdict returned finding defendant Darren Bryan Walker guilty of the offenses of unlawful possession of cannabis (Ill. Rev. Stat. 1987, ch. 56V2, par. 704(d)) and unlawful possession of cannabis with the intent to deliver (Ill. Rev. Stat. 1987, ch. par. 705(d)). The court subsequently vacated the former conviction and sentenced defendant to five years’ imprisonment for his conviction of unlawful possession with the intent to deliver.

Defendant now appeals, contending (1) the trial court erred in allowing the introduction of evidence of other crimes, and (2) the State failed to prove him guilty beyond a reasonable doubt of unlawful possession with the intent to deliver. For the reasons hereinafter stated, we affirm.

The evidence introduced at trial revealed that, on October 21, 1988, the Macon County sheriffs department executed a search warrant at defendant’s place of residence. The officers used a canine unit to conduct the search and were alerted to a blue suitcase located in a closet of a southwest bedroom of the premises. Defendant’s mother identified that particular bedroom as defendant’s bedroom. She further indicated she recognized the blue suitcase as one she had given defendant in April or May 1988 after he had lost his own suitcase.

Upon opening the suitcase in question, the officers discovered seven small, clear plastic bags located inside a larger clear plastic bag. Each bag contained a green, leafy substance which the officers believed to be cannabis. The officers also found an envelope addressed to Darren Walker inside the suitcase. It was later determined the suitcase contained 155 grams of cannabis.

Defendant’s brother Adam Walker identified the blue suitcase as the one in which defendant stored “pot.” Adam Walker testified defendant kept the suitcase in his closet and gave Adam a key to it so he could examine or retrieve pot from it whenever he wanted. Adam Walker admitted he personally used cannabis given to him by defendant.

Over strenuous defense objection, Adam Walker also stated he had been present in his home on two separate occasions when defendant had sold cannabis to others. He recalled one incident when a girl came over to the house with several other persons and asked defendant if he had some pot for sale. He said defendant responded affirmatively, and he and defendant then went and retrieved the substance from defendant’s bedroom. They returned to the kitchen and proceeded to sell a sandwich bag containing a crushed green substance to the girl.

Keith Long also testified over defense objection that he was acquainted with defendant and had gone to his residence on several occasions. Long said he first went to the Walker home with a friend of his on October 9 or 10, 1988, because his friend wanted to pick up some marijuana which he claimed Adam Walker owed him. When they arrived at that home, Adam Walker was not there. Long stated his friend talked with defendant, and defendant told him he would give him the amount Adam owed him. He stated defendant went into his house and retrieved a nickel bag of a green substance for Long’s friend.

Long testified his next trip to the Walker residence occurred a day or two later when he and his-friends brought defendant a “potential customer.” He explained defendant had previously asked him and his friends if they would sell marijuana for him, from which sales they would receive part of the profit. Long described the situation already testified to by Adam Walker in which Adam and defendant obtained a big baggie of marijuana from a bedroom and sold a girl a smaller baggie of marijuana for $50. The girl also testified at trial over defense objection and corroborated the testimony concerning this transaction.

Long further stated that, after the girl left defendant’s house on that particular occasion, defendant told him and his friends they had “proven” themselves to him, and he would “front” them a couple of bags. Long said defendant gave them two, one-ounce bags and told them he wanted a total of $50 for each one.

Long said he and his friends returned on October 14, 1988, to pick up two more bags of marijuana from defendant because they thought they could sell all four bags. He testified defendant told them he would give them the bags they wanted. He said defendant retrieved a large bag from his garage, which bag contained about 15 or 20 smaller rolled-up bags, and handed them the two bags they had requested.

Defendant now claims his due process rights were violated and he was denied a fair trial because the trial court allowed in evidence of other marijuana transactions between defendant and others to prove he intended to deliver the marijuana found in his possession. He maintains the evidence had no probative value and, even if it did, its prejudicial effect far outweighed its value. We disagree.

Evidence of the commission of other crimes is admissible when it is relevant to prove intent, modus operandi, identity, motive, or absence of mistake. (People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821.) It is inadmissible where such evidence is relevant merely to establish a defendant’s propensity to commit crime. People v. Lindgren (1980), 79 Ill. 2d 129, 402 N.E.2d 238.

The evidence presented here clearly was relevant to prove defendant’s intent to deliver the marijuana found in his possession on October 21, 1988. The witnesses who testified described a recent encounter with defendant in which he retired to his bedroom, returned with a large bag of cannabis, and sold a smaller bag of the substance to another. The officers testified at trial they discovered a large bag containing several smaller bags of cannabis in a suitcase in defendant’s bedroom. The evidence of past sales bore a close relationship to the offense for which defendant was on trial and was indicative of his intent to deliver the substance in the future.

We recognize the evidence presented was somewhat cumulative, in that three different witnesses testified in detail concerning one prior delivery of drugs by the defendant. However, because that evidence went directly to the heart of the question of defendant’s intent, we conclude the evidence did not unduly prejudice him, and the trial court did not abuse its discretion in allowing it in.

Defendant also argues the State failed to prove him guilty beyond a reasonable doubt of the offense of possession of cannabis with the intent to deliver. He emphasizes the amount of marijuana found in his possession was relatively small. Furthermore, the officers found no other items, such as scales, weapons, or large amounts of cash, which might indicate an intent to deliver.

A jury’s determination of guilt should not be disturbed on review where, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original.) (Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) Here, the evidence showed officers found 155 grams of cannabis segregated into seven separate baggies in defendant’s bedroom and that defendant had recently sold a baggie of a similar substance, which he had obtained from his bedroom. We conclude the evidence was sufficient to support defendant’s conviction for unlawful possession of cannabis -with the intent to deliver.

For the reasons stated, the judgment of the circuit court of Macon County is affirmed.

Affirmed.

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


text:
    EDMARD H. DESSEN et al., Plaintiffs-Appellees and Cross-Appellants, v. JIMMIE JONES, Defendant-Appellant and Cross-Appellee.
    Fourth District
    No. 4—89—0403
    Opinion filed February 28, 1990.

      Lawrence E. Johnson, of Lawrence E. Johnson & Associates, P.C., of Champaign, for appellant.
    Mary A. Perlstein, of Dobbins, Fraker, Tennant, Joy & Perlstein, P.C., of Champaign, for appellees.
   JUSTICE GREEN

delivered the opinion of the court:

On April 22, 1988, plaintiffs Edward H. Dessen and Loretta Des-sen filed suit in the circuit court of Champaign County against defendant Jimmie Jones seeking temporary and permanent injunctive relief in regard to the alleged infringement by defendant of plaintiffs’ rights as dominant owners to have water flow from their land through that of defendant, a servient land’s owner. Compensatory damages were also requested. The dispute arose because defendant had filled portions of his land with dirt. On May 6, 1988, the court preliminarily enjoined defendant from spreading more dirt over his land. An amended and second-amended complaint were filed, and Knowlton and Bennett, Inc. (Knowlton), a corporation of which plaintiffs were the sole shareholders, was added as a party plaintiff requesting the same relief. Compensatory damages were also requested for an alleged trespass by defendant on plaintiffs’ land resulting in the destruction of some trees.

The case was tried at bench with hearings held on several separate dates. On April 18, 1989, the court entered an order in favor of the Dessen plaintiffs and against defendant and in favor of defendant and against the plaintiff Knowlton. The order permanently enjoined defendant from obstructing the flow of water from the Dessens’ land through swales on defendant’s land and required defendant to restore the swales to the condition existing before he placed dirt on them. The plaintiffs were awarded damages of $518.17 for defendant’s trespass. Defendant has appealed and Knowlton has cross-appealed the finding against it.

Defendant maintains (1) the Dessens were not proper parties to seek injunctive relief; (2) the evidence did not support the issuance of any injunctive relief, particularly a mandatory injunction; (3) the circuit court failed to balance the equities between the Dessens and defendant; (4) the terms of the mandatory injunction were too vague; and (5) the court erred in awarding compensatory damages for the destruction of trees. Plaintiff Knowlton maintains it had an interest in the property entitling it to relief. We affirm every aspect of the order on appeal except we vacate the portion of the order providing for a mandatory injunction and remand to the circuit court with directions to make the terms of the mandatory injunction more definite and certain.

We can dispose of the last issue raised by defendant most easily. The evidence is undisputed that in clearing his tract, defendant destroyed at least two live Osage orange trees upon plaintiffs’ land. An expert witness testified that replacements could be obtained without cost and the cost of replanting them would be approximately $75 to $150 each. Plaintiffs presented the testimony of an expert who assumed some seven trees had been destroyed and testified to a replacement cost of approximately $3,500 plus installation cost for those trees. The determination of the circuit court was well within the range of testimony and will be accepted in the absence of showing the decision resulted from passion or prejudice. Stein v. Spainhour (1988), 167 Ill. App. 3d 555, 561, 521 N.E.2d 641, 644.

Defendant’s assertion the Dessens lacked standing to sue and the contention of Knowlton on cross-appeal are closely related and should be considered together. These issues arise because the dominant estate consisted of a tract which the Dessens entered into a contract to purchase in 1978 upon periodic payments which have not been completed. Thus, they do not have legal title but, upon execution of the contract, they became equitable owners and have power to sue to protect their land. (Rosewood Corp. v. Fisher (1970), 46 Ill. 2d 249, 263 N.E.2d 833.) However, the evidence showed that in some ways the Dessens had treated the property as belonging to their wholly owned corporation, Knowlton, though, as the parties have stipulated, no written assignment to that corporation has been made. Knowlton has entered into a lease with a tenant that occupies a building on the tract under a written lease which is not definite as to whether it covers merely the portion containing the building or the entire tract. The corporation receives the rental income, which it reports for income tax purposes. The corporation also takes an income tax deduction for depreciation on the building.

Defendant maintains the evidence conclusively shows that the Dessens had assigned their interest in the contract for sale of the tract to Knowlton and thus had no standing to sue. He asserts that in attempting to sue, they are seeking to avoid the existence of the corporate entity in which they are the only shareholders while, when it is to their advantage, for business and tax purposes, they treat the corporate entity as the owner of the tract. Such a procedure was frowned upon in Bevelheimer v. Gierach (1975), 33 Ill. App. 3d 988, 339 N.E.2d 299. The circuit court found an assignment of the equitable interest in the portion of the property containing the building had been made to Knowlton, but the Dessens retained equitable ownership in the remainder of the tract. That court then found the building had not been damaged by any flooding which had taken place and dismissed the complaint as to plaintiff Knowlton. The court then awarded injunctive relief solely to the Dessens.

We recognize this case differs from Bevelheimer. There, a plaintiff who had assigned a tenant’s interest in a lease to a solely owned corporation and later joined with the corporation in bringing suit against a lawyer for a malpractice in failing to perfect an extension of the lease. The trial court allowed recovery for both the individual and the corporation. The appellate court reversed as to the individual, saying he had no standing to sue because he had assigned all his rights in the lease. Here, no double recovery was sought or granted. The corporation joined in the suit only after an issue was raised as to who had a right to sue. Defendant’s only claim of prejudice by the existence of both the individual and corporate plaintiffs is a technical one. He asserts that if the Dessens have no standing, no injunctive relief could have been granted properly to any plaintiff because Knowlton put on no evidence and did not formally adopt the evidence presented by the parties. His theory is that a party can recover only on the basis of the evidence produced by that party. However, the crucial evidence here was admitted generally. The usual rule is that such evidence may be used by any party. (Morris v. Central West Casualty Co. (1932), 351 Ill. 40, 183 N.E.2d 595; Dudanas v. Plate (1976), 44 Ill. App. 3d 901, 358 N.E.2d 1171.) Defendant was not prejudiced by the fact that both the shareholders of the corporation sued as individuals and the corporation also sued.

The parties agreed that no written assignment was made. However, the lack of a written assignment does not automatically assume that the Dessens had an interest in the premises which would give them standing to sue. The evidence concerning the relationship between the Dessens and Knowlton in regard to the whole tract was uncertain. Accordingly, the circuit court’s decision that no assignment had been made of the Dessens’ equitable interest in the portion of the premises, excluding that upon which the building lies, is not contrary to the manifest weight of the evidence.

Conversely, as we will explain, the court could properly have determined the portion of the tract upon which the building lies was not damaged by any actions of defendant. Thus, we hold the court did not err either in dismissing the portion of the complaint brought by Knowlton, or by finding the Dessens had standing to sue. We need not decide whether the court could properly find Knowlton an assignee of the Dessens’ interest in the part of the land which contained the building.

The heart of the case concerns the sufficiency of the evidence to support the injunctive relief granted.' The suit involves three tracts lying on the west side of U.S. Route 45 north of Urbana and just north of the intersection of Route 45 and Interstate 74. All are bound on the west with a frontage road to Route 45. The Dessens’ property is the most northerly and defendant’s the most southerly. The eastern portions of these two tracts adjoin each other, but a tract belonging to Loren Ellsworth, who is not a party to the case, lies between the western portion of the two tracts, the portion of the two tracts with which we are concerned. Dirt was scraped from the eastern area in the 1940’s for use on widening Route 45. The general flow of water has been in a southeasterly direction.

As indicated, the Dessens entered into the contract to purchase some 12 years ago. Edward Dessen testified he has been familiar with that tract since 18 years before the purchase. According to Edward Dessen’s testimony, in times of heavy rains, a large volume of water has flowed from the north across the driveway of the building on his tract and then southerly and southeasterly through swales on the Ellsworth property and the Jones’ property. He further testified he had installed some drainage tile and a sump pump near the building to help alleviate the problems in that area. The defendant purchased his tract in the fall of 1987. According to defendant’s testimony, his tract was a swamp which could not be used without filling. The evidence is undisputed that shortly after coming into possession, defendant hauled in dirt and placed it upon his land and some on the Ellsworth land. Defendant testified he dumped 12 loads of dirt, while Edward Dessen estimated 50 to 75 loads were dumped on the site. The circuit court indicated the testimony of defendant appeared to be more accurate.

Edward Dessen testified that in the spring of 1988, after defendant had dumped dirt on his and the Ellsworth tract, two moderate rains caused water to back up upon his tract, creating a larger area of ponding than ever before and standing for almost a week. Dessen further testified that the dumped dirt filled swales on the tracts of defendant and Ellsworth that had existed throughout the 30 years he had knowledge of the most northerly of the three tracts. Dessen’s testimony was supported by that of Thomas Berns, a registered professional engineer and surveyor who had been hired by Dessen as an expert witness. The substance of Berns’ testimony was that swales on the Ellsworth tract and that of defendant in the area described by Dessen had been in existence for over 30 years, carried off water coming from the Dessen tract and had been obstructed by the dirt dumped by defendant. Berns based his opinion in regard to the prior existence of the swales upon geological surveys and aerial photographs of the area which he had studied.

Defendant countered with the testimony of Charles S. Dan-ner, also a professional engineer. Danner testified he had walked the area encompassed by the three tracts in 1979 and did not see swales on the land, which he found later to exist when walking the area a few months before his testimony. The court chose to find the testimony of Berns more persuasive than that of Danner. While Danner testified from personal observation and Berns testified as to prior conditions based on interpretation of various documents, Berns’ testimony was consistent with that of Dessen. The circuit court’s interpretation of the evidence was supportable.

A comprehensive opinion by Justice Harrison of the Fifth District Appellate Court in Mileur v. McBride (1986), 147 Ill. App. 3d 755, 498 N.E.2d 581, is very instructive as to much of the law applicable to this case. There, as here, the rights of an owner of higher, dominant land, to continue to discharge water in the natural course of drainage over lower, servient land, were involved. In Mileur, the dominant owner sought monetary damages from the servient owner for obstruction of the flow of that water resulting from the servient owner’s actions in raising the level of his land. The appellate court reversed a circuit court judgment which had dismissed the complaint for failure to state a cause of action.

The Mileur court explained that Illinois follows the civil law rule of surface-water drainage, which provides that when tracts are situated

“such that surface water falling or coming onto one naturally descends upon the other, the owner of the higher (dominant) land has a natural easement in the lower (servient) tract to allow the surface water to flow naturally off the dominant land upon or over the servient land. (Pinkstaff v. Steffy (1905), 216 Ill. 406, 411-12, 75 N.E. 163; Peek v. Herrington (1884), 109 Ill. 611, 619; Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 22, 414 N.E.2d 865, 869.) Correspondingly, the owner of the servient land ‘ “must suffer the water to be discharged upon his land and has no right to stop or impede the natural flow of the surface water.” ’ (Geis v. Rohrer (1957), 12 Ill. 2d 133, 136, 145 N.E.2d 596 quoting Gough v. Goble (1954), 2 Ill. 2d 577, 580, 119 N.E.2d 252.) The servient owner ‘cannot, by an embankment or other artificial means, obstruct the water in its natural flow, and thus throw it back upon the upper proprietor.’ Gillham v. Madison County R.R. Co. (1869), 49 Ill. 484, 487.” (Emphasis added.) Mileur, 147 III. App. 3d at 758, 498 N.E.2d at 583.

The Mileur court explained that two exceptions exist to the civil law rule of surface-water drainage. One is applicable to railroads and thus clearly not applicable here. (Coomer v. Chicago & North Western Transportation Co. (1980), 91 Ill. App. 3d 17, 414 N.E.2d 865.) The other is the so-called “good husbandry” rule, which permits the owner of dominant agricultural land to increase or alter the flow of water upon a servient estate if this is required for proper husbandry of the dominant land. (Peck v. Herrington (1884), 109 Ill. 611.) The Mileur court pointed out that in Templeton v. Huss (1974), 57 Ill. 2d 134, 311 N.E.2d 141, the supreme court held that whether in an agricultural or urban setting, no rule of law permitted a dominant owner to unreasonably increase the flow of water upon a servient estate. The Mileur court concluded no precedent existed in this State for a rule which would permit a servient owner to obstruct the proper flow from a dominant estate in order to make a reasonable use of the servient estate.

Further instruction is given us by an equally comprehensive opinion of Justice Inglis of the Second District Appellate Court in Dovin v. Winfield Township (1987), 164 Ill. App. 3d 326, 517 N.E.2d 1119. There, the circuit court had entered judgment on a jury verdict which awarded damages for trespass against a township and a contractor which had altered a road in such a way as to change the course and amount of water discharging upon servient land. In affirming, the appellate court recognized that the dominant land had the benefit of a reasonable-use rule, which would have permitted those defendants to change the drainage if the advantage to the dominant land sufficiently outweighed the damage to the use of the servient land. The appellate court held the circuit court had properly submitted that question to the jury with a well-drawn instruction.

The Dovin instruction permitted the trier of fact, in balancing the advantages to the dominant tract against the injury to the servient land, to consider (1) the extent and nature of the harm; (2) “the social value attached to the type of use or enjoyment interfered with”; (3) “the suitability of the particular use or enjoyment [involved]”; (4) the burden on those harmed of avoiding harm; and (5) the usefulness of the improvement to the street. (Dovin, 164 Ill. App. 3d at 336, 517 N.E.2d at 1125.) That court deemed these factors to be consistent with the factors to be considered in determining whether a nuisance exists. See Restatement (Second) of Torts §833 (1979).

The decision in Dovin constitutes authority for application of a rule of reason, balancing the equities when disputes arise over changes in manner or rate of flow from dominant to servient estates. However, the observation in Mileur that no authority exists in this State to apply a similar rule of reason when a servient estate has obstructed the flow from the dominant estate to the damage of the dominant estate is very significant. We conclude the two situations are materially different. In Templeton, the supreme court no.ted the “good husbandry” rule “was embodied” in early drainage codes, and has continued in the present code (Ill. Rev. Stat. 1987, ch. 42, par. 1 — 1 et seq.) to provide for the extension of drains from dominant to servient land with damages to be awarded when “land was damaged in the process.” (Templeton, 57 Ill. 2d at 139, 311 N.E.2d at 144.) On the other hand, section 2 — 12 of the Illinois Drainage Code speaks in absolute terms when it states that a “landowner shall not *** interfere with any ditches or natural drains which cross his land in such manner that such ditches or natural drains shall fill or become obstructed with any matter which shall materially impede or interfere with the flow of water.” Ill. Rev. Stat. 1987, ch. 42, par. 2 — 12.

The somewhat different treatment given by the law when the flow from a dominant estate is obstructed by a servient one may result because a dominant owner usually has no way to drain off water without sending it through the servient estate, while sometimes a servient owner can divert excess water from a dominant estate. In any event, we hold that in a situation where, as here, obstruction by the servient estate is in issue, the court is not required to apply the reasonable-use rule.

The circuit court here, in a memorandum opinion, stated it did not consider itself to be required to apply a “reasonable use” rule. Nevertheless, the court did consider some factors which were in the Dovin instruction. The circuit court noted that the land of defendant was very swampy when he purchased it and that he had not presented any evidence of the nature of the use he intended to make of the property. The court also considered the damage to the dominant Dessen estate. He concluded it was not overwhelming but that the puddling covered a greater area and lasted for a longer period than before. This was shown by Edward Dessen’s testimony and by photographs. While the testimony of Edwin Keller, tenant in the building on the dominant estate, tended to minimize the damage from the extra water, the trial court heard and saw the witness and was entitled to give the evidence the weight it deemed appropriate. The court did express a conclusion that the amount of obstruction defendant placed upon the water course was unreasonable. Thus, although the court did not apply the reasonable-use doctrine set forth in Dovin, the court did balance the equities of the situation. The court did not err in its application of surface-water drainage law.

Defendant maintains the Dessens were not shown to be dominant owners because the swale the water followed was not one produced by nature, but was created when the land was scraped to provide dirt for the construction of an enlargement of Route 45. Early Illinois case law defined the term “natural water course,” for the purpose of applying the civil law concepts we have discussed, in these terms:

“If the conformation of the land is such as to give the surface water flowing from one tract to the other a fixed and determinate course, so as to uniformly discharge it upon the servient tract at a fixed and definite point, the course thus uniformly followed by the water in its flow, is a water-course ***.” Lambert v. Alcorn (1893), 144 Ill. 313, 324, 33 N.E. 53, 56.

In Gough v. Goble (1954), 2 Ill. 2d 577, 119 N.E.2d 252, a plaintiff sought to enjoin a defendant owner of land across a road from blocking a drain under the road which had been used for more than 40 years to carry water from plaintiff’s land to that of the defendant. The land at the defendant’s side of the road around the opening of the drain had been some two feet lower than the rest of the defendant’s land in the area. The defendant had built an obstruction to the opening of the drain only to the extent he had built the land there up to the level of the rest of his land at that point. Nevertheless, the supreme court held the plaintiff was entitled to a mandatory injunction requiring the restoration of the land at the opening of the drain to the condition existing for the period of more than 40 years. Because of the time span, the rights of the plaintiff were treated as existing just as if the course of this drainage had arisen through nature and not through the construction of the road. No mention was made by the supreme court that the use by plaintiff or his predecessors in title needed to be adverse to the defendant.

Shortly after Gough, the supreme court also determined a use of an artificial water course for a long period permitted a dominant owner to continue its use just as if the course had been created naturally. There, the waterway had been created in the course of digging a borrow pit to obtain dirt to build a railroad. The court there did make a slight reference to the dominant estate’s use of the water course being adverse, but spent most of the opinion in explaining why the water course had the qualities of a natural one. The court stated:

“It is immaterial that this ditch in question is an artificial ditch rather than a natural stream. We believe that the correct applicable law is stated in 56 Am. Jur. p. 621, sec. 151, to-wit: ‘An artificial waterway or stream may, under some circumstances, have the characteristics and incidents of a natural watercourse. In determining the question, three things seem generally to be taken into consideration by the courts: (1) whether the way or stream is temporary or permanent; (2) the circumstances under which it was created; and, (3) the mode in which it has been used and enjoyed. Where the way is of a permanent character, and is created under circumstances indicating an intention that it shall become permanent, and it has been used consistently with such intention for a considerable period, it is generally regarded as stamped with the character of a natural watercourse, and treated, so far as the rules of law and the rights of the public or of individuals are concerned, as if it were of natural origin.’ ” Saelens v. Pollentier (1956), 7 Ill. 2d 556, 561, 131 N.E.2d 479, 482.

The circuit court here found the Dessens had acquired a right to discharge their water through swales which defendant had covered because of the use of that water course for a long period (1) created a use by prescription, and (2) created a situation whereby the water course should be treated as if it had been created by nature. We need not decide whether sufficient, evidence was presented that the use by the Dessens or their predecessors was adverse, thus creating a prescriptive use. Under the theory of Gough and as explained in Saelens, the water course here could properly be treated as one created by nature. In the face of conflicting evidence, the court could properly find the swales had existed for many years. Here, as in Saelens, the water course was created because of the taking of earth to create a roadbed. The court could also determine that the swales had been carrying the water for a sufficiently extended period of time to meet the requirements of Saelens and Gough. The evidence fully supported a determination the Dessens had a right for the continued use of the water course.

As we have indicated, we conclude that although the damage to the Dessens’ land by the greater flooding for longer periods of time was not great, it was of some substance. Monetary damage would be difficult to ascertain and would be inadequate because of the continuing nature of the trespass. Relying primarily upon the decision of this court in Delano v. Collins (1977), 49 Ill. App. 3d 791, 364 N.E.2d 716, defendant maintains the severity of damage here was insufficient to support a mandatory injunction. There, a servient tenant complained of the dominant owner’s building of a house which mildly increased the runoff onto lands of the plaintiffs. This court held that the circuit court did not abuse its discretion in entering a summary judgment for that defendant as to a complaint which, among other relief, asked for a mandatory injunction which would have required the tearing down of the house erected by the defendant. This court noted the holding in Templeton, which indicated that the dominant urban estate could, within reason, increase the flow of water to land of servient tenants. While the language of Delano in regard to the necessity of proof to justify a mandatory injunction was strong, we do not deem that holding to be applicable to the situation here, where the dominant tenant sought a mandatory injunction and the circuit court saw fit to grant it.

Finally, we came to the question of whether the decree is specific enough for defendant to know what he must do to comply. In part, the decree orders defendant:

“[T]o forthwith place the property back to where the surface water drains from Plaintiffs’ property as well as it did before Defendant performed work on his property ***.”

In maintaining this mandate is sufficiently definite, the Dessens rely upon Eberle v. Greene (1960), 18 Ill. 2d 322, 163 N.E.2d 822, and Gough. In Eberle, the defendant was found to have obstructed the flow of surface water by increasing the elevation of a fence row and building a dam. The injunction granted ordered the defendants to restore the fence row to the condition existing in 1947. The supreme court concluded the order was sufficient to inform the defendants they must remove all the material they had placed on the fence row since 1947. The court stated the defendants knew what they had to do. Gough required a defendant to restore land at the outlet of a drain to the condition prior to the construction of a dam. That would clearly require removal of the dam.

Here, the parties are in dispute as to what the situation was in regard to the swales before the spreading of the dirt, and are in disagreement as to what the nature of Dessens’ drainage was prior to the spreading of the dirt. We do not interpret the decree, to require defendant to remove all of the dirt placed upon his land. We recognize the difficulty in drafting an order as to what must be done with minute specificity, but we fear the instant order may lead to much further dispute. We agree with defendant that the order requires greater specificity.

Accordingly, as we have indicated, we affirm every aspect of the decree giving rise to the appeal and cross-appeal except to the portion of the decree describing what defendant is mandated to do. We reverse that portion of the order and remand to the trial court with directions to make that portion of the order more definite and certain. The trial court may, in its discretion, hear further evidence or arguments on that question. We strongly urge the parties to attempt to settle that portion of the decree by agreement and to establish as neighborly a relationship as possible. The evidence indicates they all have substantial drainage problems which can best be worked out through cooperation.

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

LUND and McCULLOUGH, JJ., concur.