author: JUSTICE CHAPMAN

text:
      In re MARRIAGE OF PATRICIA VICTORIA OSBORN, Petitioner-Appellee, and JONATHAN VAUGHAN OSBORN, Respondent-Appellant.
    Fifth District
    No. 5—88—0739
    Opinion filed December 14, 1990.

      Neubauer & Meyer, of Fairview Heights, for appellant.
    David A. Campbell, of Campbell, Black, Camine & Hedin, P.C., of Mt. Vernon, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The parties were married in Quebec, Canada, on July 4, 1970. Five days prior to the marriage, Jonathan and Patricia entered into a written marriage contract in Montreal, Canada. The parties moved to Illinois in 1979 and were separated in 1985. Upon separation, Patricia returned to Canada with the parties’ four children. On November 26, 1985, she filed a verified petition for dissolution of marriage in the circuit court of Clinton County. The court entered a judgment for dissolution of marriage on June 8, 1988. On July 27, 1988, the court entered its ruling on the issues of the validity of the marriage contract, the appropriate value of Jonathan Osborn’s medical practice, child support, division of marital assets, award of attorney fees, medical and transportation expenses for the children, insurance benefits for the children, and visitation. Jonathan filed a post-trial motion addressing these issues. It is from the denial of said motion that Jonathan Osborn appeals.

We first turn our attention to the choice of laws question of whether to apply Canadian law in this case. Jonathan Osborn claims that this court should apply both Canadian and Illinois law in determining if the decision of the trial court was correct. Like Jonathan, Patricia makes general reference to Canadian common and statutory law. While we respect the parties’ request to consider Canadian law, we are compelled to remind the parties that it has long been the rule that courts will not take judicial notice of the laws of another country, but they must be alleged and proved as facts. (Shannon v. Wolf (1898), 173 Ill. 253, 260, 50 N.E. 682, 684; Crouch v. Hall (1853), 15 Ill. 263, 266; see also Dempster v. Stephen (1895), 63 Ill. App. 126.) In the case at bar, scant reference is made to Canadian law. Included in the appendix to respondent’s brief is a one-paragraph excerpt taken from the Canadian Family Law Reform Act (Que. Rev. Stat. ch. 41 (1978)). Other than references to a few Canadian cases in the parties’ briefs and in a memorandum submitted to the trial court, no formal proof of the law of Canada has been submitted. When a party interested in claiming the benefit of a foreign law or statute fails to show by appropriate pleading and proof the status of the law of the place where the contract was made or was to be performed, the courts of the State where the suit is brought will apply the law of the latter State to the contract. (Shannon, 173 Ill. at 260.) Under the circumstances, we apply the law of Illinois, without consideration of Canadian law, to determine the issues in this case.

In his post-trial motion and on appeal, Jonathan Osborn argues that the court erred in finding the marriage contract to be unconscionable and in refusing to apply the contract in deciding issues of property division. Jonathan contends that Patricia made a judicial admission that the marriage contract settled and disposed of all issues involving property division, thereby resolving those issues.

It is undisputed that Patricia filed a verified petition for divorce on November 26, 1985. Attached to that petition was a copy of the parties’ antenuptial agreement. Paragraph 6 of the petition alleges that “with respect to the issues of property division and payment of outstanding debts *** the parties did on June 30, 1970, enter into a Marriage Contract, which settled and disposed of the issues of property division and debt payment, which would otherwise be issues before this court.” In January of 1987, Patricia was granted leave of court to file an amended petition for dissolution of marriage. The amended petition did not include a copy of the marriage contract, nor did it refer to the contract. Patricia argues that although she initially took the position that the marriage contract was' applicable to the property division, upon the filing of her amended complaint and throughout the case she has taken the position that the marriage contract is inapplicable to the property division.

When an original pleading is verified it remains a part of the record upon the filing of an amended pleading. Furthermore, the admissions of a party contained in an original verified pleading are judicial admissions and bind the pleader even after the filing of an amended pleading which supersedes the original. (American National Bank & Trust Co. v. Erickson (1983), 115 Ill. App. 3d 1026, 1029, 452 N.E.2d 3, 6; Yarc v. American Hospital Supply Corp. (1974), 17 Ill. App. 3d 667, 670, 307 N.E.2d 749, 752.) Notwithstanding these general rules, section 2—605 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2—605) provides that verified allegations shall not constitute evidence, except by way of admission. However, this provision refers to admissions of fact, not admissions of law. (Premier Electrical Construction Co. v. La Salle National Bank (1984), 132 Ill. App. 3d 485, 494, 477 N.E.2d 1249, 1256.) Jonathan contends that paragraph 6 of Patricia Osborn’s verified petition constitutes a judicial admission that the contract is valid and enforceable. Such a theory fails to recognize, however, that the allegations in paragraph 6 are legal conclusions, not factual conclusions. Questions of contractual validity or interpretation are matters of law for the court to decide. (Northern Illinois Construction Co. v. Zale (1985), 136 Ill. App. 3d 822, 824, 483 N.E.2d 1013, 1015.) Consequently, we find the argument that Patricia Osborn made a judicial admission that the marriage contract is valid is without merit. Based on our finding, we need not address petitioner’s allegation that Jonathan Osborn waived on appeal his right to claim a judicial admission was made by the petitioner.

The next issue on the merits is whether the contract entered into by the parties is valid and enforceable. Antenuptial agreements are generally enforceable as long as the contract is entered, into with .full knowledge and without fraud, duress or coercion. (In re Marriage of Byrne (1989), 179 Ill. App. 3d 944, 947, 535 N.E.2d 14, 16; Volid v. Volid (1972), 6 Ill. App. 3d 386, 392, 286 N.E.2d 42, 47.) In the instant case, Patricia does not allege that the contract was entered into because of fraud, duress or coercion. Rather, she contends that the contract is not valid because the parties did not intend for the contract to be used to divide the parties’ property in the event of divorce. Her position is reflected in the trial court’s ruling of July 27, 1988, where the court declared that it would not apply the parties’ antenuptial agreement in deciding issues of property division. The court found that it was the intent of the parties “to take advantage of Quebec law in dealing with possible creditors and that it was not the intent of the parties to reach a reasoned agreement as to dealing with property in event of dissolution.” The court concluded that “it would be unconscionable to apply the agreement herein under the intent and circumstances surrounding the entry of the agreement.”

Patricia argues that the language of the contract itself does not conclusively establish that it is an antenuptial agreement. She contends that the document is clearly ambiguous as to its purpose and intent, and that the. court properly allowed the admission of parol evidence to demonstrate the true purpose of the contract. To the contrary, we find that the contract is unambiguous and that it clearly delineates a property settlement in the event of divorce. To facilitate an understanding of our holding, the contract is set forth herein:

“MARRIAGE CONTRACT BEFORE Mtre. ERNEST AUGUSTE JAVET
the undersigned Notary for the Province of Quebec practising [sic] at the City of Montreal
APPEARED: JONATHAN VAUGHN OSBORN, re-
siding in the City of Roxboro (Address: 55 11th Avenue) Junior Administrator;
Hereinafter called ‘the future husband’ OF THE ONE PART:
AND:
PATRICIA VICTORIA MALTBY, residing in the City of Pierrefonds (Address: 5620 Andre Street)
Technician;
Hereinafter called ‘the future wife’
OF THE OTHER PART:
WHO, in view of the marriage which is shortly to be celebrated between them, have entered into the following Contract, namely:
ARTICLE FIRST. No community of property shall at any time exist between the future consorts. On the contrary, they shall be separate as to property in conformity with Article 1422 and other provisions of the Civil Code of the Province of Quebec.
ARTICLE SECOND. Neither of the future consorts shall be responsible for the debts of the other whether contracted before or after the marriage.
ARTICLE THIRD. The property of the future wife shall include the following:
10. her wedding presents;
20. her wearing apparel, jewellery [sic] and other personal effects; and
30. all other property identifiable as now being hers.
The wearing apparel, jewellery [sic] and other personal effects which are in the possession of the future wife at the dissolution of the marriage shall take the place of those she now has without any claim on either side for any excess or deficiency.
ARTICLE FOURTH. The future husband obliges himself to pay all expenses of the household and of the marriage generally, and the future wife shall not be bound to contribute thereto; but she shall have no claim against the future husband for such of her revenues as she may contribute or as have been used for these purposes.
ARTICLE FIFTH. There shall be no dower, the future wife renouncing as well for herself as for the child or children who may be born of the marriage such dower or right of dower.
ARTICLE SIXTH. 1) In consideration of the stipulation that no community of property shall exist between the future consorts and of the renunciation of dower by the future wife, the future husband obliges himself to pay to the future wife, hereto present and accepting, during his lifetime the sum of ONE HUNDRED THOUSAND DOLLARS-but as an obligation on his part in favour [sic] of the future wife personally and exclusively.
The future husband shall have the right to pay the whole or any part of the said sum either in cash or by the transfer of moveable or immoveable property or to invest the same or any part thereof in the name and for the benefit of the future wife in real estate, loans secured by hypothec, [sic] and securities of any sort, nature and description.
If the said obligation shall not be satisfied during the lifetime of the future husband and the future wife shall survive him, she shall have upon his death the right to exact immediate payment of the said sum of ONE HUNDRED THOUSAND DOLLARS-with interest from the date of his death at the rate of Six per centum per annum.
If the future wife shall die before the future husband, his obligation to pay the said sum of ONE HUNDRED THOUSAND DOLLARS — shall ipso facto be deemed never to have existed so far as such obligation may then be unsatisfied.
2) For the same consideration, the future husband obliges himself to pay to the future wife, hereto present and accepting, as soon and according as his means permit, the sum of TEN THOUSAND DOLLARS — for the purpose of acquiring household furniture and other moveables for the furnishing of their common residence.
The future husband shall be discharged from his obligation to pay the said sum to the extent of such payments on account as he may make and of the value of such household furniture and other moveables as he may acquire and place in the common residence for the furnishing thereof, but his heirs and legal representatives shall not be bound to pay any balance which at his death may remain unpaid of the said sum.
The future husband obliges himself to keep such household furniture and other moveables in repair and to replace with new what may become worn out or be destroyed.
ARTICLE SEVENTH. The future consorts hereby reciprocally give to the survivor of them all the property moveable and immoveable of which the succesion of the predeceased consort may be composed, unless the latter shall have disposed of the said property by Will or Donation inter vivos.
WHEREOF ACTE:
THUS DONE AND PASSED at the City of Montreal, this Thirtieth day of June Nineteen hundred and seventy, and of record in the office of the undersigned Notary under the Number Nine thousand eight hundred and forty eight.
And after due reading hereof, the parties signed in the presence of the said Notary.
(Signed) J. Osborn “ P.V. Maltby
“ E.A. JAVET, Notary
A true copy of the original hereof remaining of record in my office.”

Extrinsic evidence is inadmissible to vary, alter or contradict a written instrument which is complete, unambiguous, valid and unaffected by fraud, duress, mistake, or. illegality. (Johnson v. Flueckiger (1980), 81 Ill. App. 3d 623, 624, 401 N.E.2d 1317, 1318.) The rule is that when the writing shows a complete legal obligation, without any uncertainty or ambiguity as to the object and extent of the engagement, it is conclusively presumed that the whole agreement of the parties was included in the writing. Kendall v. Kendall (1978), 71 Ill. 2d 374, 377, 375 N.E.2d 1280, 1282.

The instrument before us is entitled “Marriage Contract.” It was executed just four days prior to the parties’ marriage, and declares that its execution is made “in view of the marriage.” The agreement specifies the title of property acquired both before and after the marriage. The rights and obligations of each spouse are delineated, with reference to the .assets and liabilities which the parties were possessed both during and beyond the marriage. Patricia testified that she believed the purpose of the contract was to protect her family against creditors. The document is not ambiguous merely because it serves the purported purpose of guarding against creditors. Therefore, parol evidence consisting of testimony bearing on the intent of the parties in executing the contract was improperly admitted on the grounds that the contract was ambiguous.

Parol evidence was properly admitted, however, to show the real agreement of the parties where petitioner alleged that a mistake was made at the time the contract was executed. (See Stoerger v. Ivesdale Co-op Grain Co. (1973), 15 Ill. App. 3d 313, 317, 304 N.E.2d 300, 303.) Patricia argues that if the contract is to be construed as an ante-nuptial agreement, she and her husband were both mistaken as to its meaning, as they believed the purpose of the instrument was to protect their assets from creditors. A mutual mistake exists when the contract has been written in terms that violate the understanding of both parties. (Beynon Building Corp. v. National Guardian Life Insurance Co. (1983), 118 Ill. App. 3d 754, 760, 455 N.E.2d 246, 250.) We are unpersuaded that a mutual mistake as to the object and purpose of the contract was made. Jonathan has throughout this case taken the position that he was aware of the ramifications of the contract with regard to divorce, that the purpose of the contract was both to protect their assets from creditors and to determine the rights of the parties in the event of divorce.

As a general rule, relief will not be granted if but one party to a contract has made a mistake. (People ex rel. Department of Public Works & Buildings v. South East National Bank (1971), 131 Ill. App. 2d 238, 240, 266 N.E.2d 778, 780.) Where a unilateral mistake is claimed, the conditions generally required for recission are that the mistake relate to a material feature of the contract, that it-occurred notwithstanding the exercise of reasonable care, that it is of such grave consequence that enforcement of that contract would be unconscionable, and that the other party can be placed in statu quo. Department of Public Works, 131 Ill. App. 2d at 241, 266 N.E.2d at 780.

At trial, Patricia testified that prior to their marriage her husband asked her to have a marriage contract prepared to protect “our assets, mine and the children’s, in case he was sued.” She testified that divorce was never mentioned as a reason for the marriage contract, and that it was neither her nor Jonathan’s intent to have the contract establish the property division in the event of divorce. Neither Patricia nor Jonathan was represented by an attorney at the time the contract was prepared and executed. The contract was prepared by a notary. Jonathan testified that in Quebec a notary is a person who specializes in preparing contracts.

Patricia testified that while she was given an opportunity to read the contract prior to signing it, she did not do so. She believed the purpose of the contract was to protect her and her family. Jonathan testified that he believed it was Patricia’s family who recommended that they enter into a marriage contract. Jonathan testified that in discussing whether he and his wife should have a marriage contract prepared, Patricia’s family advised them that “it was a way of protecting the family; that it was a way of insuring proper distribution of things in the case of a lawsuit.” Jonathan explained that at the time of the original discussion, divorce was not mentioned, but later at the notary’s office when he and Patricia executed the document, divorce was discussed. Jonathan recalled that prior to executing the agreement, the notary explained the division of. property and the major clauses in the contract. Jonathan testified that the notary advised both him and Patricia that the document was not just to protect the family, but that it was “used for lawsuits for family disputes and for divorce.” Jonathan also testified that if he and Patricia did not execute wills, the contract would suffice as their will.

Based on the parties’ testimony it is apparent that Patricia believed the marriage contract was intended to protect the family. She has not alleged any fraud or coercion on behalf of her husband in. enticing her to sign the agreement. On the contrary, it appears from the evidence that Patricia was provided with an explanation of how the contract would apply in the event of divorce, and was given the opportunity to read the document and ask questions as to its import, yet chose not to take advantage of her right to do so.

The applicable standard of care necessary to rescind a contract on grounds of unilateral mistake is whether a person of reasonable prudence would have acted in the same manner under the same circumstances. (Keller v. State Farm Insurance Co, (1989), 180 Ill. App. 3d 539, 549, 536 N.E.2d 194, 200.) In light of the foregoing, we find the trial court’s determination to be against the manifest weight of the evidence. Petitioner’s mistaken belief that the contract was not applicable to divorce proceedings is not enough to declare that it would be unconscionable to apply the contract in this case. We, therefore, reverse the decision of the trial court and remand so that the trial court can apply the marriage contract in determining the issues of property division in accordance with section 503(d) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1989, ch. 40, par. 503(d).

Jonathan Osborn also argues on appeal that the trial court erred in dividing the marital assets and liabilities. Because this case is remanded in order for the court to take into account the antenuptial agreement, our examination of this issue would be premature.

We next turn our attention to Jonathan Osborn’s claim that the trial court erred in finding that he dissipated marital assets. Dissipation is defined as the use of marital property for one spouse’s sole benefit or for a purpose unrelated to the marriage at a time when it is undergoing an irreconcilable breakdown. (In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 492-93; In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549, 511 N.E.2d 676, 680.) We affirm the trial court’s finding on this issue.

Jonathan testified that since the separation he has taken three trips with a woman. He testified that he took an 18-day business trip to Brazil and Argentina sponsored by the American Soybean Association. Jonathan Osborn testified that, although he is not a farmer and does not own any soybeans, he is involved in a group that does research in commodities in order to make money. Jonathan was accompanied by a woman on his excursion, and he testified that the trip cost him approximately $7,000.

In 1986, Jonathan accompanied the same woman to Aruba for one week. Jonathan testified that the woman’s boss paid her fare and also paid the room and board. Jonathan estimated his personal expenditures for the trip to Aruba at $400 or $500. Jonathan also took a two-day trip with this same woman to Minnesota in 1986. He testified that he wanted to check on an investment that he had there. He estimated the total cost of the Minnesota trip, which he paid personally, at $400 or $500.

With regard to dissipation, the trial court specifically provided:

“In regard to Petitioner’s argument of dissipation of assets, the court finds there was a dissipation of assets on the trip [sic] to Brazil, Aruba, and Minnesota. If the United States government recognizes some business purposes in the trip to Brazil and Minnesota, so will the court. On the other hand, the court treats the dissipation as a matter of marital property to be divided.
Brazil trip as marital property to be divided $4,000
Aruba trip $ 700
Minnesota trip $1,000
Marital property $5,700”

It is clear from the record that the trip to Aruba was a pleasure trip as Jonathan Osborn offered no evidence to refute this conclusion. Jonathan claims that the excursions to Brazil and Minnesota were business oriented; however, we do not find the trial court’s decision to the contrary an abuse of discretion. (See In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23, 32, 500 N.E.2d 612, 618.) Once it is established that one party has liquidated marital assets, the party charged with dissipation must establish by clear and specific evidence how the funds were spent; general and vague statements that they were spent on marital expenses or bills are inadequate to avoid a finding of dissipation. (In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676, 680.) Based on the record, we find no abuse of discretion in the finding of dissipation.

Jonathan argues that there is no merit to the claim that his purchase of $5,000 worth of furniture constituted a dissipation of assets. We fail to see the import of this argument, as the trial court’s ruling of July 27, 1988, upon which the court based its final judgment, expressly provides that the furniture in Jonathan’s possession purchased since separation is marital property. The furniture is not included in the court’s ruling with regard to dissipation. Because of our decision above to remand for further consideration of the marital contract in distributing the marital property, we will not address the issue of distribution of the furniture.

Jonathan next contends that the trial court abused its discretion in ordering him to pay Patricia’s attorney fees in the amount of $13,500. Jonathan claims that Patricia is quite capable of paying her own attorney fees. At the trial, Patricia testified that when she and Jonathan married she worked as a lab technician at the Pulp & Paper Research Institute of Canada. She continued to work outside the home until their first child was bom in July of 1974. From that time until the date of separation of the parties in 1985, Patricia Osborn was a homemaker and did not work outside of the home except for occasional part-time employment. Patricia testified that she is currently unemployed, but is enrolled in a S^-year nursing program, of which she has completed one year. She testified that she relies solely upon Jonathan’s support payments and upon the financial assistance of her parents.

The income tax returns for Jonathan’s medical corporation, of which he is the sole stockholder, show:

“Gross profit 1984 — $243,322 Gross profit 1985 — $244,846 Gross profit 1986 — $261,029.”

Jonathan testified that his present income is $9,000 per month. As the sole stockholder of J.V. Osborn, M.D., Limited, he has the authority, to take bonuses from the corporation. Jonathan testified that in December of 1986, he received a $14,000 bonus from the corporation. In February of 1987, he received a $30,000 bonus. Notwithstanding these figures, Jonathan points out that Patricia has received 72% of the marital assets in addition to $3,300-per-month child support. Jonathan maintains that this substantial award provides Patricia with sufficient means to pay her own attorney fees.

An award of attorney fees in a dissolution proceeding rests in the sound discretion of the trial court, and a court of review will reverse only for an abuse of discretion. The party seeking the attorney fees must show a financial inability to pay and must show the financial ability of the opposing spouse to pay. (In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 210, 523 N.E.2d 664, 670.) Financial inability does not mean destitution, but that the payment would strip the petitioner of her means of support and undermine her financial stability. (Brandis v. Brandis (1977), 51 Ill. App. 3d 467, 472, 367 N.E.2d 162, 166.) Evidence was presented that Patricia’s attorney fees were in excess of $20,000. In view of Jonathan’s ability to absorb the fee, and in view of the significant disparity in incomes between the parties, we do not find the trial court abused its discretion.

Jonathan also contends that the evidence offered to prove the attorney fees incurred by Patricia was insufficient. The factors to consider in determining the amount of attorney fees are: the skill and standing of the attorney, the nature of the case, the novelty and difficulty of the questions in issue, the amount and importance of .the subject matter, the degree of responsibility, the usual and customary charges, and the benefits resulting to the client. In re Marriage of Armstrong (1982), 107 Ill. App. 3d 217, 219, 437 N.E.2d 761, 762.

Patricia’s attorney, David Campbell, testified that he has been practicing family law since 1969, and that he charges $90 per hour. He testified that this rate is consistent with the fees that are charged in the southern Illinois area. Campbell testified that lesser experienced attorneys charge $75 per hour, while more experienced attorneys charge upwards of $120 per hour for their services. He testified that he is a capable and highly qualified attorney. Campbell also testified that the divorce was difficult. In particular, Campbell had problems with respondent refusing to comply with discovery and refusing to pay child support. At trial, Campbell submitted as an exhibit a statement detailing the work he performed in this case. He calculated the total amount due for services rendered at $21,042. This amount included an estimation for the time he would spend at trial.

Jonathan’s counsel, Terry Neubauer, objected to the admission of the exhibit offered by Campbell. Neubauer argued that the account of services performed was a general statement which did not include an accounting of time spent on each task. Neubauer argued that the court could not determine what is fair and reasonable based on the exhibit offered by Campbell. An attorney’s general statement as to time spent is an insufficient basis for a fee award. (In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 41, 429 N.E.2d 594, 598.) The court reserved admitting the exhibit until Campbell submitted a supplemental statement showing the time spent on each task performed. On August 3, 1987, six days following the trial, Campbell submitted an itemized account of the time spent on this case. The final accounting for fees due totaled $20,700. We conclude that there was sufficient evidence of the relevant factors used to consider the award of attorney fees and that the amount awarded is supported by the evidence.

Attorney Neubauer also claims that he was denied the opportunity to cross-examine Campbell as to the supplemental statement because it was submitted after trial. We disagree. Although Neubauer claims he did not have the benefit of Campbell’s itemized statement for use during trial, the record demonstrates that Neubauer did not even attempt at trial to question Campbell as to time spent on particular services. No objection was made to Campbell submitting the itemized accounting after trial. In addition, Neubauer did not request that he be permitted to recall the witness for cross-examination after Campbell’s, records were made available. Under these circumstances we find no error.

The trial court’s award of child support is also challenged by Jonathan. Jonathan argues that Patricia failed to demonstrate that the children’s need for child support exceeds $2,500 per month. Patricia submitted documentation as to the expenses incurred by her in maintaining her family, and testified that her and the children’s monthly living expenses totaled $4,472.35.

• 19 Our supreme court has held that to consider only the “shown needs” of a minor child is in effect to eliminate from the statute the consideration of the “standard of living the child would have enjoyed had the marriage not been dissolved.” (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 297, 483 N.E.2d 1229, 1234.) The evidence shows that for the 1986 and 1987 tax years Jonathan received a salary in excess of $100,000. In 1987, Jonathan’s medical corporation held undistributed taxable income available for distribution to him in the amount of $55,443. In 1986, Jonathan made voluntary pension contributions in the amount of $65,512. It is clear that had the marriage not been dissolved, the children would have been afforded a higher standard of living. (See In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1094, 527 N.E.2d 1351, 1364.) Therefore, we find Jonathan’s argument to be without merit.

The trial court determined that respondent’s average net monthly income was $9,793.44. Jonathan contests this figure to the extent that it is based upon the premise that Jonathan can claim five dependants on his tax return. Jonathan argues that the court failed to consider that Jonathan’s exemptions will be phased out under the tax laws. Even assuming Jonathan will be precluded from claiming exemptions, no showing has been made that his net income would be significantly reduced. We note that Jonathan does not contest petitioner’s argument on appeal that, in the event Jonathan is allowed only one exemption, the reduction in Jonathan’s net monthly income would be only $252. Given these facts we do not find that the court abused its discretion.

Jonathan also argues that the court should have taken into consideration that he will be required to pay all transportation costs associated with visitation. However, in the trial court’s final judgment, the court did consider this factor:

“Considering Defendant’s income and also considering the expenses that he will have to incur in the cost of transporting the children and himself in connection with visitations [sic] *** the Court finds that Defendant’s child support obligations to the Petitioner should be set at $3,300.00 per month ***.”

In resolving the amount of child support payments, the court shall determine the minimum amount of support in accordance with the guidelines in section 505 of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1989, ch. 40, par. 505.) Using the figures given previously as to Jonathan’s income, Jonathan’s net monthly income is $9,793.44. Using the guidelines of section 505, Jonathan’s minimum support obligation would be $3,917.38 per month. In the court’s ruling of July 27, 1988, the court provided the following analysis to support its decision to award child support in the amount of $3,300 per month:

“Total annual support $9,793.44 x 12 x 40% equals $47,008.51; $47,008.51 minus (transportation expense) 2,800 equals $44,208.51; $44,208.51 x lx/i2 (credit for the month he has them) equals $40,524.47; $40,524.47 x V12 equals $3377.04 support per month. There is also appropriate expense of providing for continuance of support by provision for term life insurance on his life. Rounded off, the court orders Dr. Osborn to pay child support of $3300.00 for all four children per month.”

It is clear that the trial court took into consideration the transportation costs Jonathan would incur and the cost of term life insurance Jonathan was ordered to acquire. The court also credited Jonathan with an amount equal to four weeks’ support to compensate for the time Jonathan would exercise visitation. In view of the foregoing, we do not agree that the trial court’s award of child support was contrary to the facts or the law, and therefore, we affirm the trial court’s judgment ordering Jonathan to pay $3,300-per-month child support.

Jonathan next argues that the court erred in ordering him to pay child support on a monthly basis instead of on a weekly basis. No authority is cited in support of this proposition, and our research has not uncovered any authority which would require the court to order the payment of support at a weekly as opposed to a monthly schedule. No prejudice has been alleged by the respondent because of the monthly payment schedule. We find no abuse of discretion.

We further find no merit to Jonathan’s claim that the trial court failed to consider that child support was awarded at United States currency rates as opposed to Canadian monetary standards. Jonathan argues that since United States currency is worth approximately 25% more than Canadian currency, Patricia received the equivalent of $4,000 per month Canadian currency in child support. Once again, no authority is cited which would require the court to consider this factor.

Patricia testified as to her expenses based on both United States and Canadian currency. Section 505 of the Illinois Marriage and Dissolution of Marriage Act does not provide an adjusted scale to compensate for differences in exchange rates. The court properly utilized section 505 in determining the percentage of Jonathan’s income to be allocated to child support based on United States currency.

Next we are asked to determine whether the trial court erred in assessing the responsibility of transportation costs associated with visitation to Jonathan. As discussed above, the court took this cost into consideration in calculating the child support obligation. As Jonathan receiv.ed a substantial benefit in terms of a reduction in his support obligation for transportation expenses, we find the trial court did not abuse its discretion in its award.

Finally, Jonathan contends that the trial court erred in order? ing him to provide term life insurance on his life for the benefit of each minor child. The trial court’s final judgment provides in pertinent part:

“Defendant shall provide term insurance on his. own.life, naming the children as beneficiaries thereon, in the amount of $150,000 for each child. Defendant’s obligation to carry said $150,000 term life insurance policy for each child shall terminate as to each child as he or she becomes emancipated or finishes college, whichever .event last occurs.”

A trial court is vested with the authority to order a parent to provide life insurance for the benefit of his children. (In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 310, 411 N.E.2d 988, 993.) We find that the court did not act beyond its authority in ordering Jonathan to provide the life insurance.

Jonathan claims that there was no evidence presented as to the cost of term life insurance or as to whether Jonathan would be able to obtain such a policy. While specific evidence as to the cost of such policies was not presented, the trial court stated that it gave credit for the appropriate expense of the insurance in determining the child support obligation. Respondent has not shown that he has been unable to obtain term life insurance. In view of the circumstances of this case, we do not find that the court erred in ordering Jonathan to provide insurance to insure that the children would be provided for in the event of Jonathan’s death.

In light of the foregoing, we reverse the trial court’s decision with regard to the marriage contract and remand for further proceedings to determine the issues of property division. We affirm the trial court’s decision as to all remaining issues addressed herein.

Affirmed in part; reversed in part and remanded.

HARRISON and WELCH, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
      In re MARRIAGE OF ELLEN (NALDER) LAVELLE, Petitioner-Appellee, and KENNETH JOHN NALDER, Respondent-Appellant.
    Fifth District
    No. 5—89—0600
    Opinion filed December 21, 1990.

      Gerald S. Reed and Jonathan Hurst, both of Reed, Heller & Mansfield, of Murphysboro, for appellant.
    Treva O’Neill, of O’Neill & Colvin, of Carbondale, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

Respondent, Kenneth John Nalder, appeals from an order of the circuit court of Jackson County denying his petition to modify child support, granting the petition for rule to show cause of petitioner, Ellen (Nalder) Lavelle, and awarding attorney fees. In this cause, respondent raises two issues: (1) whether the trial court abused its discretion in denying his motion to modify child support, and (2) whether the trial court erred in finding respondent in contempt for failing to pay child support and then awarding petitioner attorney fees. We reverse and remand.

The marriage of the parties ended on October 29, 1985, by the entry of a judgment of dissolution. This judgment incorporated the terms of a settlement agreement reached between the parties. It provided custody of the parties’ two minor children to petitioner and required respondent to pay child support initially in the amount of $250 per month per child, but to increase to $315 per month per child on January 1, 1987. Respondent also agreed to maintain medical insurance on the children and to-be responsible for noncovered routine medical, dental and optical expenses. On October 30, 1987, the judgment of dissolution was modified by stipulation of the parties. This modification allowed respondent to continue to pay $250 per month per child until January 1, 1989, when this amount would increase to $315 per month per child.

At the time the original judgment of dissolution was entered, respondent was self-employed as the owner of Nalder Stereo, Inc., in Carbondale. He had been the owner and operator of this business for almost 10 years. In December 1988, Nalder Stereo went out of business and filed for bankruptcy. Respondent collected unemployment benefits from January 1989 through April 1989. Respondent’s unemployment benefits were approximately $200 per week, $50 of which he contributed toward child support. Apparently, the parties had agreed upon this amount plus 25% of any money respondent made over $200, but no order was ever entered in the court file reflecting this agreement. During this period of unemployment, respondent studied for and passed his Series Seven Securities Test. Additionally, respondent completed testing to obtain an insurance license. In April 1989, respondent began working as a stockbroker at Burley-Shay Investments in Carbondale. On May 16, 1989, respondent filed a petition to modify child support. On July 14, 1989, petitioner filed a rule to show cause alleging failure to comply with prior court orders, specifically: (1) scheduling marital debts on the bankruptcy pleadings, (2) failure to pay child support at the court-ordered level, (3) failure to pay child support through the circuit clerk’s office as ordered, (4) failure to maintain health insurance on the parties’ two minor children, and (5) failure to make a good effort to find employment. On August 10,1989, both motions went to hearing.

Respondent testified concerning his income. He testified that his salary at Burley-Shay Investments was based strictly on commission. Respondent introduced evidence that from April 28 through June 21, 1989, he earned $685.89 gross. Respondent stated that he made additional commission money from May 25 through June 9, but that he was not able to locate these records. In any event, respondent stated that whatever money he had made, he would figure out the net amount and send petitioner 25% of it. He would also send petitioner accompanying documentation to let her know how he arrived at the 25% net sum. Respondent stated that he had a bachelor of arts degree in mathematics, but that he had no teaching certificate. He stated that his only employment other than owning Nalder Stereo was as an electronic technician from 1973 to 1978. Respondent stated that he expected his income through Burley-Shay Investments to increase.

After direct examination of respondent, the trial court denied respondent’s motion to modify, finding that there was only a temporary reduction in income because respondent expected to increase his income as a stockbroker. The trial court then proceeded on petitioner’s rule to show cause. Respondent was called as an adverse witness. He stated that he had a one-twelfth interest in a $60,000 home with his girl friend. He also stated that he had a $200 car payment per month. Respondent’s girl friend was helping to support him. In addition, she had made respondent’s health insurance payments for his children, but had become upset and had stopped making these payments. Respondent stated that he did not make child support payments through the circuit clerk’s office because the parties had agreed that respondent would make the payments directly to petitioner. Respondent also stated that after he filed bankruptcy, he enlisted the aid of a “head hunting” agency in St. Louis, Missouri, to assist him in finding employment in the electronics field; however, this agency was unable to help him find employment.

Petitioner testified that she has asked respondent to make payments through the circuit clerk’s office so that she could have an official record of payment. Petitioner stated that since May 1989, she has received $90 in child support. Petitioner is a student and has added the parties’ two children to her health insurance plan provided through the university. She also testified that there were outstanding medical bills for the children which were not covered by insurance and which had not been paid by respondent.

At the close of the evidence, the trial court found respondent in contempt for failing to make child support payments through the circuit clerk’s office, for failing to maintain health insurance on the parties’ two minor children, and for failing to pay additional medical expenses not covered by insurance. The trial court' ordered respondent to pay $430 to petitioner for health insurance coverage and to pay the original rate of $630 per month in arrearage for those months in which respondent had failed to make any child support payments: For those months respondent had made payments, the trial court found that petitioner had accepted these payments with the apparent understanding that no further money was due for those months. For. those months, the trial court found no arrearage. The trial court also, ordered defendant to pay $600 in attorney fees.

The first issue we are asked to address is whether the trial court abused its discretion in denying respondent’s motion to modify child support. Respondent- argues that the trial court abused its discretion because the evidence clearly showed a substantial change in circum.stances and that respondent’s inability to pay was not due to any voluntary act by respondent, but rather due to respondent’s business going bankrupt. Respondent contends that he was not attempting to avoid his maintenance obligations. Additionally, respondent contends that the trial court abused its discretion in not allowing him the opportunity to complete his evidence. Petitioner responds that respondent failed to make a sufficient showing of a substantial change in circumstances that would warrant a modification in child support. Petitioner concedes that the bankruptcy of respondent’s business was unfortunate, but, nonetheless, contends that respondent’s decision to change careers and to become an investment broker was his own decision. Petitioner argues that respondent should have attempted to get a job in the electronics field for which he was qualified and which would have provided a regular income, unlike his new career, which was based solely upon commissions. In addition, petitioner complains that respondent voluntarily gave up his unemployment benefits from which he was able to pay $50 per week for support of his children to take a position which had no guaranteed income.

The Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.) provides that support judgments “may be modified only as to installments accruing subsequent to due notice by the moving party of the filing of the motion for modification and only upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) The question then is whether respondent’s change in employment constitutes a substantial change in circumstances sufficient to warrant a modification of child support. It is well established that child support payments should be reduced where substantial economic reversals result from an involuntary change or loss of employment. (In re Marriage of Donovan (1984), 122 Ill. App. 3d 803, 462 N.E.2d 9.) If the employment change is voluntary, the change in employment must be made in good faith and not prompted by a desire to avoid one’s child support obligation. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 791.) The decision of the trial court to modify or not to modify child support payments will only be disturbed, if such decision is clearly against the manifest weight of the evidence. In re Marriage of Donovan (1984), 122 Ill. App. 3d at 805, 462 N.E.2d at 11.

In the instant case, respondent’s change in employment was due to his stereo business going bankrupt. There were no allegations that respondent deliberately caused his business to fail in order to avoid his support obligations. Contrary to petitioner’s assertions that respondent did not attempt to find employment in the electronics field, the record clearly reflects that respondent enlisted the aid of a firm in St. Louis to help him find a position in the electronics field, but was unable to secure such a position even with the agency’s assistance. Respondent then took the requisite courses and tests to become an investment broker. Courts have permitted an ex-spouse to change occupations or to further his education in the hope of improving his prospects for the future and have allowed a reduction in income until the new occupation becomes lucrative. See Coons v. Wilder (1981), 93 Ill. App. 3d 127, 416 N.E.2d 785.

In the instant case, respondent believes that his new position as an investment broker will bring him financial success in the future. However, at the time of the hearing, respondent’s income was nowhere near the level it would need to be in order to pay the $630 per month in child support as previously agreed upon and ordered by the court. We also note that respondent was not allowed to complete his evidence at the hearing on his motion to modify. Respondent was the first witness to testify. Before petitioner was even given the opportunity to cross-examine, and before respondent was allowed to present other witnesses, the trial court declared that there had been no proof presented of a change in circumstances which would allow for modification of support. On the limited evidence allowed, we find that respondent demonstrated that there was a substantial change in his circumstances that would warrant a reduction or modification of his support obligations. We, therefore, find that the trial court abused its discretion in denying respondent’s motion to modify child support and also erred in denying respondent the opportunity to complete his evidence.

Petitioner analogizes the instant case to two cases in which the former husbands had sought a reduction in either maintenance or child support obligations and were denied such reductions even though they did, in fact, have a loss of income. We, however, find both cases distinguishable from the instant case. In In re Marriage of Ingram (1989), 185 Ill. App. 3d 395, 541 N.E.2d 731, the former husband, a physician, filed a petition seeking termination of maintenance payments to his former wife because the former wife had obtained employment which provided her with enough income to meet her needs and because he had suffered a decrease in income and had incurred financial setbacks which substantially reduced his income. The trial court denied the reduction and found the former husband to be in contempt for his failure to pay. In affirming the trial court, we found that while the record indicated that the former husband had suffered some significant financial misfortune, he had not presented sufficient evidence of a substantial change in circumstances. The ex-husband had never clearly established his debt, was still a practicing physician with an estimated income of $120,000 per year, and was no longer required to pay child support obligations or to make monthly mortgage payment of $1,000 per month on the family residence. Clearly, the Ingram case is not analogous to the instant case, where respondent’s business has gone bankrupt and his projected income is unknown and unprojectable.

The other case cited by petitioner is In re Marriage of Uphoff (1980), 80 Ill. App. 3d 145, 398 N.E.2d 1243, in which the ex-husband petitioned the court for a reduction in child support payments because his income had been reduced from $2,600 per month to approximately $1,000 per month. The trial court denied the ex-husband’s petition and our colleagues in the Third District Appellate Court affirmed, finding that there had not been a substantial change in circumstances to warrant a reduction. In Uphojf, the ex-husband had agreed to pay $100 per week per child for the support of three minor children one week after he had voluntarily entered into an agreement with his employer to end his salary. The Uphoff court correctly stated:

“For the appellant to agree to the order he now seeks to modify just a week after signing the termination agreement which serves as the grounds for the sought-after modification is hardly consistent with our understanding of good faith.” (80 Ill. App. 3d at 147, 398 N.E.2d at 1245.)

In the instant case, respondent had agreed to the $315 per month per child well before his business entered bankruptcy and there was no evidence that respondent voluntarily chose to have his business fail. Thus, Uphojf is also distinguishable.

The only other issue we are asked to address is whether the trial court erred in finding respondent in contempt for failing to pay child support and in awarding petitioner attorney fees. The power of a court to enforce payment for child support by contempt is limited to cases of wilful and contumacious refusal to obey the order of the court. (Giamanco v. Giamanco (1982), 111 Ill. App. 3d 1017, 1023, 444 N.E.2d 1090, 1095; Cole v. Cole (1967), 85 Ill. App. 2d 105, 112-13, 229 N.E.2d 293, 295.) As previously discussed, we do not believe that in the instant case respondent’s nonpayment of support was wilful and contumacious. In addition, after a review of the transcript of the contempt hearing, we do not believe that respondent’s failure to maintain health insurance or his failure to pay medical expenses not covered by insurance were wilful and contumacious acts. Rather, the record supports respondent’s contention that his nonpayment was due to a lack of sufficient income.

The trial court also found defendant in contempt for failing to make child support payments through the circuit clerk’s office as ordered. While it is true that respondent did not make his payments through the clerk’s office, the record supports respondent’s contention that the parties had a mutual agreement whereby respondent would make the payments directly to petitioner. Petitioner stated that she only remembered one “recent” conversation in which she had asked respondent to make payments directly to the circuit clerk’s office. While we do not encourage such side agreements between the parties, we cannot agree with the trial.court that defendánt’s failure to make payments through the clerk’s office constituted contempt when petitioner at the least acquiesced in such method of payment if not encouraged payment directly to her. Petitioner had only recently asked respondent to make payments through the clerk’s office when respondent was in a financial position in which he could not make the payments either directly to petitioner or to the clerk’s office. Therefore, we find that.the trial court abused its discretion in finding that defendant was in contempt.

We also agree with respondent’s final contention that the trial, court erred in awarding petitioner attorney fees in connection with his petition to modify child support and the petition for contempt. Under section 508(b) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 508(b)), the court must enter an order requiring the party against whom the proceeding was brought to pay reasonable attorney fees only when the court finds that the failure to comply with the order was without cause or justification. Because we have found that respondent was justified in not making child support payments, we likewise find that the trial court erred in awarding attorney fees to petitioner.

Accordingly, the order of the circuit court of Jackson County is reversed and the cause remanded for further proceedings not inconsistent with this disposition.

Reversed and remanded.

CHAPMAN and WELCH, JJ., concur.


text:
    GORDON R. STONE, Plaintiff-Appellant, v. SALVAGE & BRIDGES AGENCY, INC., Defendant and Third-Party Plaintiff-Appellee (W.A. Schickedanz Agency, Inc., Third-Party Defendant and Fourth-Party Plaintiff; Lionel Sage Company, Ltd., n/k/a Gibbs Hartley Cooper Limited, et al., Fourth-Party Defendants).
    Fifth District
    No. 5—88—0663
    Opinion filed December 31, 1990.

      G. Richard Jones, of Carr, Korein, Schlichter, Tillery, Kunin & Montroy, of East St. Louis, for appellant.
    Sanford Goffstein and Michael S. Weinberg, both of Weiss, Goffstein, Kraus, Seigel & Sherman, of St. Louis, Missouri, for appellee.
   JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff Gordon R. Stone filed a complaint against defendant Salvage & Bridges Agency, Inc. (Salvage & Bridges), alleging negligence and breach of contract for failure to properly insure certain art objects. Defendant filed a third-party complaint against the W.A. Schickedanz Agency, Inc., which in turn filed a fourth-party complaint against the Lionel Sage Co., Ltd., and Certain Underwriters at Lloyds, London, England (Lloyds). The third- and fourth-party complaints were subsequently dismissed and are not involved in this appeal. The trial court granted summary judgment in favor of defendant Salvage & Bridges on the basis of collateral estoppel and this court’s decision in Stone v. Those Certain Underwriters at Lloyds, London, Subscribing to Cover Note No. SL 10001 (1980), 81 Ill. App. 3d 333, 401 N.E.2d 622 (Stone v. Lloyds). Because this case involves the doctrine of collateral estoppel, it is necessary to relate the facts underlying the disposition in Stone v. Lloyds.

In 1975 the plaintiff purchased 14 Oriental art objects from Charles Bueche for $19,800. Bueche provided plaintiff with an appraisal of the items in which he stated their value to be $275,800. Thereafter, plaintiff contacted Stephen Smith of Salvage & Bridges for the purpose of insuring the art objects for their appraised value. Plaintiff provided Smith with the appraisal by Bueche. After Smith was unsuccessful in obtaining coverage from two companies which Salvage & Bridges represented, he contacted Jack Miller at the W.A. Schickedanz Agency, a specialty broker, to aid in insuring the items. Miller contacted Lloyds which sent an application form which included the following question (No. 19):

“Is there any other material fact, within your knowledge, regarding the proposal of insurance, which should be submitted to the Insurers for consideration?”

Smith read the question to the plaintiff and he responded “no.” Plaintiff never advised Smith that he had purchased, the art objects for $19,800, nor that the man who had appraised the items was the same man who had sold them to plaintiff. Smith, however, never asked plaintiff for this information, nor did he attempt to explain what type of information was requested by question 19.

On August 8, 1975, Lloyds issued a cover note of insurance on the art objects in the amount of the appraisal, $275,800. In March of 1976 all the items, except a boxwood screen, were taken from plaintiffs apartment in a burglary. Plaintiff notified Lloyds of the loss, but it declined payment after it discovered the discrepancy between plaintiff’s cost of the items and the appraised value and that the seller of the items had also furnished the appraisal. Plaintiff filed suit on the policy seeking to recover $245,800 for the stolen items. Lloyds filed an answer and two affirmative defenses, the first for rescission due to material misrepresentations and the second for reformation of the coverage to reflect the true nature and value of the items.

After trial, the trial court entered judgment for Lloyds on its first affirmative defense, rescinded the cover note, and directed Lloyds to refund the premium paid. The trial court found that the art objects did not remotely approach the value of $275,800 and that statements as to the nature and the value of the items were material. The court also found that if information concerning the transaction between plaintiff and Bueche had been submitted to Lloyds, the coverage would not have been issued, and the failure to reveal such facts prevented Lloyds from properly appraising its risk. Finally, the court found that the plaintiff had not entered into a planned scheme to defraud Lloyds.

The plaintiff appealed the trial court’s judgment, and this court stated that the question presented was whether- the plaintiff’s failure to disclose the wide variation between purchase price and the contemporaneous appraised value and the fact that the seller and the appraiser were the same person constituted a misrepresentation that affected the materiality of the risk and furnished grounds for rescission. (Stone v. Lloyds, 81 Ill. App. 3d at 336, 401 N.E.2d at 624.) This court affirmed the trial court’s judgment rescinding the insurance coverage. Because the findings and rationale of the Stone v. Lloyds court are important to our decision in this case, they are set out below at some length.

“We have concluded that the findings of the trial court are fully supported by the record, and we will not disturb them. Plaintiff’s factual assertions are fraught with incredulity. Only the most naive, or the most blissfully ignorant, could believe that they could purchase genuine objects of art valued at $275,000 from an established art dealer and appraiser for less than one-thirteenth of their value. If plaintiff chooses to believe he was dealing in an arms-length transaction with Bueche and received the bargain as represented to him, he is at liberty to do so. However, he cannot bring such naivete into the marketplace and fix upon others the consequences of his grossly mistaken judgment. This is especially true in policies of insurance which have traditionally called for good faith, openness and candor on the prospective insured’s part. Carroll v. Preferred Risk Insurance Co.
The plaintiff argues, though, that he was under no duty to report to defendant the source and purchase price of the art objects because the defendant did not ask him. This argument is aimed at question 19 of the proposal completed by plaintiff which asked whether there was any other material fact ‘within his knowledge’ regarding the proposal which should be submitted for consideration. Plaintiff had answered by simply stating, ‘no.’
Plaintiff’s duty to disclose the source and price paid for the artifacts and the other particulars attending his purchase pursuant to question 19 arises as a matter of law. Without question this information would be vital to the risk, and if disclosure had been made the cover note would not have- issued. Plaintiff’s silence under the circumstances constitutes a misrepresentation that must be regarded as material. In providing his answer to question 19 the plaintiff was obliged to furnish the defendant the important information he possessed regarding the discrepancy between the price paid and the contemporaneous appraised value, and the fact that the seller also furnished the appraisals.
*** Beyond this, the facts in this case are so egregious that it can be determined as a matter of law that the misrepresentation implicit in plaintiff’s failure to disclose was material to the risk.” (Emphasis added.) Stone v. Lloyds, 81 Ill. App. 3d at 338-39, 401 N.E.2d at 626.

Subsequent to the decision in Stone v. Lloyds, the plaintiff filed a two-count complaint against Salvage & Bridges which is the subject of this appeal. Count I of plaintiff’s complaint alleges breach of contract for failure to obtain insurance. Count II alleges that the defendant, in procuring insurance coverage, negligently:

“(a) Failed to disclose necessary information to Lloyds of London relating to the purchase price of said property and to the identity of the appraiser of said property, when it knew or in the exercise of ordinary care should have known, that the failure so to disclose such information would result in the policy so obtained to be invalid and non-binding.
(b) Failed to inform the plaintiff that the issuance of a valid insurance policy required the disclosing of information as to the purchase price of said property and as to the identity of the appraiser of said property.
(c) Failed to cause said objects to be insured by an insurance company willing to cover the risks based upon the facts surrounding the purchase of said properties and the appraisal of said properties.
(d) Failed to inform the plaintiff that said agency was incapable of procuring a valid insurance policy on said objects so as to protect plaintiff against loss in the sum of $275,800.”

Defendant filed a motion for summary judgment in which it contended that plaintiff’s claim was dependent upon the issue of whether the defendant had a duty to inform plaintiff that he must disclose the information concerning the purchase price and appraisal of the art objects. Defendant argued that since Stone v. Lloyds found that plaintiff had a duty as a matter of law to disclose such information, the plaintiff was estopped from contending that defendant failed to inform him that disclosure was required. As related earlier, the trial court granted defendant’s motion and plaintiff now appeals, contending that the issue resolved in Stone v. Lloyds was different from the issues presented by this case. For the reasons stated below, we affirm the judgment of the trial court.

“The doctrine of collateral estoppel applies when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction.” (Emphasis in original.) (Housing Authority v. YMCA (1984), 101 Ill. 2d 246, 252, 461 N.E.2d 959, 962.) However, the judgment in the first suit will act as an estoppel only to issues actually litigated and determined and not to other matters which might have been determined. (Housing Authority, 101 Ill. 2d at 252, 461 N.E.2d at 962; Buttitta v. Newell (1988), 176 Ill. App. 3d 880, 882, 531 N.E.2d 957, 958.) In determining whether collateral estoppel should be applied, the relevant questions are whether the issue decided in the prior adjudication is the same as that presented in the case at bar, whether there has been a final judgment on the merits, and whether the party against whom the estoppel is asserted was a party or in privity with a party to the prior suit. (Stratemeyer v. West (1985), 136 Ill. App. 3d 1095, 1097-98, 484 N.E.2d 399, 401.) In addition, the party sought to be estopped must have had a full and fair opportunity to litigate the issue and an injustice must not be done to him under the circumstances of the later case. (Buttitta, 176 Ill. App. 3d at 882, 531 N.E.2d at 958.) In determining whether the issues in the prior and subsequent cases are the same, a court should realistically and rationally consider the record “within a practical framework and viewed with an eye to all the circumstances of the proceedings.” People v. Shlensky (1983), 118 Ill. App. 3d 243, 246, 454 N.E.2d 1103, 1106.

The pivotal issue in this case is whether there is an identity of issues between the instant case and Stone v. Lloyds. While it seems clear that plaintiff’s duty to disclose the facts surrounding the purchase of the art objects is an important issue, is it the cornerstone of his complaint, such that all his allegations necessarily rest upon it? In other words, given plaintiff’s duty to disclose the circumstances of his transaction, is there any remaining genuine issue' of material fact with respect to the allegations of defendant’s negligence or breach of contract? We believe that the answer to the latter question is no.

With respect to count I of plaintiff’s complaint alleging breach of contract, we find the plaintiff is estopped from claiming such a breach. The oral contract to obtain insurance which existed between the plaintiff and the defendant Salvage & Bridges suffers from the same infirmity as the contract between plaintiff and Lloyds. Plaintiff’s failure to reveal the circumstances surrounding the purchase and appraisal of the art objects constituted a material misrepresentation which furnished grounds for rescission of both the contract of insurance with Lloyds and the contract to procure insurance with defendant Salvage & Bridges. (Cf. Stratemeyer v. West (1985), 136 Ill. App. 3d 1095, 484 N.E.2d 399.) We find no error by the trial court in granting summary judgment on count I of plaintiff’s complaint.

Turning to count II, it is clear that the allegations of negligence contained in subparagraphs (a), (c) and (d) of plaintiff’s complaint are completely dependent upon the allegation contained in subparagraph (b), charging that defendant was negligent in failing to inform plaintiff that it was necessary to disclose the information regarding purchase price and the identity of the appraiser. For example, subparagraph (a) charges defendant with failing to disclose the aforementioned information to Lloyds when it should have known that such a failure would invalidate the insurance policy. Obviously, however, the defendant could not disclose what it did not know; only if defendant was negligent in failing to discover the facts can negligence be based upon its failure to disclose. Subparagraphs (c) and (d) are similarly predicated on the underlying allegation of defendant’s failure to discover the facts and inform plaintiff of the necessity for disclosure.

The only remaining question, therefore, is whether the finding of this court in Stone v. Lloyds that plaintiff had a duty as a matter of law to disclose the circumstances of the purchase and appraisal of the art objects to Lloyds is dispositive of the issue of defendant’s duty to inform the plaintiff that this information must be disclosed. While an insurance broker may have a duty to make reasonable inquiry of those seeking his services (see Shults v. Griffin-Rahn Insurance Agency, Inc. (1990), 193 Ill. App. 3d 453, 550 N.E.2d 232), this court has already determined, as a matter of law, that in this case the duty to disclose rested upon the plaintiff. We believe, therefore, that the decision in Stone v. Lloyds is dispositive of the issue presented in the instant case, and we find that the trial court correctly granted summary judgment for the defendant.

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

Affirmed.

RARICK, P.J., and GOLDENHERSH, J., concur.


author: PRESIDING JUSTICE RARICK

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RICHARD LAWRENCE, Defendant-Appellant.
    Fifth District
    No. 5—89—0256
    Opinion filed December 31, 1990.

      Daniel M. Kirwan and Erwin J. Anderson, both of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
    Barry Vaughn, State’s Attorney, of Fairfield (Kenneth R. Boyle and Stephen E. Norris, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE RARICK

delivered the opinion of the court:

Defendant, Richard Lawrence, appeals from the judgment entered by the circuit court of Wayne County revoking his probation and ordering him to pay restitution. We reverse in part and affirm in part.

In October of 1987, defendant pleaded guilty to two separate counts of unlawful delivery of a controlled substance. In accordance with the plea agreement, defendant was sentenced to one year of periodic imprisonment and 30 months’ probation and ordered to pay $405 as restitution to the Division of Criminal Investigation (DCI). Pursuant to section 6 — 205(b)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(b)(2)), defendant’s driver’s license also was revoked as a result of his conviction.

After completing his sentence of periodic imprisonment, defendant was arrested for driving while license revoked. A petition was filed two days later requesting the revocation of defendant’s probation. Defendant’s probation subsequently was revoked. This time, defendant was sentenced to 30 months’ probation without credit for prior time served and to two weekends of periodic imprisonment along with being ordered to pay all outstanding fines and court costs.

Defendant first argues on appeal in reliance upon People v. Lindner (1989), 127 Ill. 2d 174, 535 N.E.2d 829, that his license to drive was not properly revoked and, therefore, the revocation of his probation was improper and should be reversed. In Lindner, our supreme court struck down section 6 — 205(b)(2) of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 951/2, par. 6 — 205(b)(2)), the statute under which defendant’s license was revoked, as a violation of the due process clauses of the Illinois and United States constitutions. (127 Ill. 2d at 186, 535 N.E.2d at 834.) The trial court here, however, believed the holding only applied to convictions for specified sex offenses and accordingly agreed to the revocation of defendant’s probation. It is true the convictions involved in Lindner are sex offense-related, but this does not mean the court’s holding is so narrowly limited. The supreme court reviewed in detail section 6— 205(b)(2) and the Illinois Vehicle Code in general. Upon determining the legislative purpose in enacting the Code was to protect the public interest of safe and legal operation and ownership of motor vehicles, the court concluded section 6 — 205(b)(2) constituted an unreasonable means of furthering this public interest. To prohibit persons from driving merely because they have committed an offense which did not even involve the use of a motor vehicle is not a reasonable way to ensure that motor vehicles will be owned and operated safely and legally. (127 Ill. 2d at 182-83, 535 N.E.2d at 832-33.) The court further stated the inclusion of the enumerated offenses and no others was an arbitrary decision of the legislature. (127 Ill. 2d at 183, 535 N.E.2d at 833.) We therefore believe the trial court erred in distinguishing Lindner solely on the basis of which offense defendant was convicted of. Lindner overruled section 6 — 205(b)(2) in its entirety without regard for the specific offense as an unreasonable and arbitrary exercise of State powers.

The State counters that revocation of driving privileges for delivery of a controlled substance can be reasonably related to the purpose of repressing the commission of such crimes. The same argument can be made for numerous other crimes committed without the use of a motor vehicle. The choice of this offense and no others remains an arbitrary decision of the legislature. We therefore conclude defendant’s license was never properly revoked. Consequently, the decision to revoke defendant’s probation based upon his arrest for driving while license revoked must be reversed.

Defendant also argues on appeal the trial court erred in ordering him to pay $405 restitution to DCI because DCI is not a victim.

We initially note that the State’s contentions that defendant has waived this issue for appeal are erroneous. A void order may be attacked at any time. People v. Evans (1984), 122 Ill. App. 3d 733, 740, 461 N.E.2d 634, 639; People v. Daugherty (1982), 104 Ill. App. 3d 89, 92, 432 N.E.2d 391, 394.

• 4, 5 Turning to the merits of the issue, admittedly, when public monies have been expended to purchase drugs by undercover agents, the governmental agency that funded the purchase is not a victim within the intendments of section 5 — 5—6(b) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005 — 5—6(b)). (See Evans, 122 Ill. App. 3d at 740, 461 N.E.2d at 639.) Here, however, we are not dealing with a restitution order imposed after a jury verdict. Rather, we are faced with a restitution order comprising an essential term of defendant’s plea agreement. Under such circumstances, if legal consideration is present and both parties have in fact entered into an agreement, then both parties will be bound by such agreement. (People v. Starks (1985), 106 Ill. 2d 441, 448-49, 478 N.E.2d 350, 353-54.) In this instance, the State’s legal consideration consisted of giving up the right to seek the maximum sentence allowed for defendant’s conviction while defendant’s legal consideration was giving up his right to a trial by jury. Defendant clearly received the benefit of his bargain and is, therefore, bound by the terms of his agreement. In light of this, we can vacate defendant’s restitution order only if the record indicates the plea agreement was involuntary or uninformed. We find no indication such was the case. We, therefore, affirm the trial court’s order of restitution to DCI. See People v. Brumas (1990), 204 Ill. App. 3d 542, 548.

For the aforementioned reasons, the order entered by the circuit court of Wayne County revoking defendant’s probation is reversed while the order of restitution to DCI is affirmed.

Reversed in part; affirmed in part.

WELCH and GOLDENHERSH, JJ., concur.