author: JUSTICE KNECHT

text:
      In re MARRIAGE OF ELIZABETH DICK TIETZ, Petitioner-Appellee, and Cross-Appellant, and CHRISTOPHER MARTIN TIETZ, Respondent-Appellant and Cross-Appellee.
    Fourth District
    No. 4—92—0160
    Opinion filed December 23, 1992.

      Vernon H. Houchen, of Decatur, for appellant.
    Frederick P. Erickson, of Erickson, Davis, Murphy, Griffith & Walsh, Ltd., of Decatur, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

The marriage of petitioner, Elizabeth Dick Tietz, and respondent, Christopher Martin Tietz, was dissolved on July 25, 1991. The court took under advisement all remaining issues. On October 16, 1991, it filed a memorandum of decision, and on November 15, 1991, entered a supplemental judgment of dissolution resolving all remaining issues. Respondent appeals the supplemental judgment relating to the award of maintenance, the valuation of his law practice, the award of child support, and the division of marital property. Petitioner cross-appeals, contending the court erred in finding respondent did not dissipate the marital assets. We affirm.

The parties were married on July 16, 1976, and separated on September 20, 1990. Two children were bom of the marriage, Aaron Carl Tietz, bom on March 23, 1982, and Eric Joseph Tietz, bom on July 17, 1985. On November 29, 1990, petitioner filed a petition for dissolution of the marriage, and respondent later filed a counterpetition.

At the time of the initiation of the dissolution proceedings, the parties were both 38 years old. Petitioner does not work outside the home. She has a bachelor’s degree in education and psychology from the-University of Illinois and a master’s degree in education from Illinois State University. She taught from January 1976 to the end of the school year in 1981 and then began another job outside the teaching field until their first child was bom in 1982. Although she has not returned to work since the children were bom, she has maintained her teaching certificate in good standing. Respondent was a practicing attorney at the time the parties married and has continued to practice.

In 1990, petitioner was diagnosed with Bartter’s syndrome. This syndrome results from a defect in the kidney which leads to a wasting of potassium and magnesium. The effect of the reduced level of these elements results in muscle weakness which causes fatigue and requires daily rest periods. Petitioner takes medication to compensate for the low potassium and magnesium levels, but has not been restored to her prior health status.

Dr. James Neviackos, a nephrologist, testified it would be inadvisable for petitioner to work outside the home in addition to caring for the children and maintaining the home. He stated it also would be questionable whether she could work if she was not caring for the children. Since teaching required standing for a prolonged period of time, he asserted she may not be able to do this. On cross-examination, he indicated she was totally unable to work and would provide a medical opinion to the Social Security Administration to that effect if asked.

Petitioner is a beneficiary under three trusts: the Carl R. Dick Trust, the Margaret W. Dick Trust, and the Dick Family Trust. Carl R. Dick and Margaret W. Dick were petitioner’s grandparents. They had two children, Carl R. Dick, Jr., petitioner’s father, and Margaret J. Dick, petitioner’s aunt. Carl R. Dick, Jr., had four children, one of which was petitioner.

The Carl R. Dick Trust was established under the terms of Carl R. Dick’s will. He died on November 29, 1949. Under the will, the remainder of his estate was placed in trust. Two-thirds of the income from the trust was to be distributed to Margaret W. Dick and one-sixth to be distributed to petitioner’s father and aunt each. After Margaret W. Dick’s death in July 1956, the income from the trust was divided equally between petitioner’s father and aunt. Following petitioner’s father’s death, his one-half interest was divided between petitioner and her three siblings. If petitioner’s aunt dies leaving no children, her share of the trust will be divided between petitioner and her three siblings. At the time of the dissolution proceedings, petitioner’s aunt was 70 years old and had no children. As of June 28, 1991, this trust had a present value of $5,230,768.09. The total income distributed from this trust in 1991 was $98,732.82. Petitioner received $12,341.61.

The Margaret W. Dick Trust was established under the terms of her will. The income from this trust was shared equally between petitioner’s father and aunt. Upon petitioner’s father’s death, his half of the trust was distributed to his four children. Petitioner and her three siblings inherited, among other things, approximately 500 acres of farmland. If petitioner’s aunt dies leaving no children, her one-half interest will be divided equally between petitioner and her three siblings. As of June 28, 1991, the value of this trust was $1,744,948.98. Petitioner does not receive income from the trust, but does have a remainder interest in the trust if petitioner’s aunt predeceases her.

To ensure the farm property which they inherited would remain together, petitioner and her three siblings created the Dick Family Trust. The sole asset of the trust is their undivided one-half interest in the farmland. The other half interest is owned by petitioner’s aunt. Under the terms of the trust, petitioner cannot sell her interest unless two of the other siblings agree. The land in the trust is valued at $503,964.29, and the total distribution of income from the trust in 1991 was $24,394.76, of which petitioner received $6,098.69.

Petitioner began receiving income from these trusts a year after the parties married. During the course of the marriage, petitioner received $347,164.48 from these trusts. Upon the advice of respondent, all the money was placed in a joint account for estate planning purposes. Since the separation, petitioner has placed all money she has received from the trusts in her own money market account. During the course of the marriage, petitioner’s aunt also made cash gifts totalling $90,000 to the parties.

On a financial affidavit, petitioner estimated her total monthly expenses were $6,084.25, or $73,011 a year. Her income for 1991 was estimated at $28,811 after taxes. Respondent estimated his monthly expenses were $4,321.23 and his monthly income before taxes was $11,500, or $138,000 a year. During the separation, respondent voluntarily paid the mortgage payments on the house and gave petitioner $1,500 for child support less any other expenses he paid on the children’s behalf.

The court awarded petitioner a judgment of dissolution of the marriage and sole custody of the children, and it took under advisement all remaining issues. On October 16, 1991, the court entered a memorandum of decision resolving these remaining issues, and on November 15, 1991, issued a supplemental judgment of dissolution of marriage. The court awarded petitioner the following nonmarital property: (1) her interest in the Carl R. Dick Trust, which it found to be a one-eighth vested interest and a one-eighth vested interest subject to divestment, valued at $937,067.97; (2) her interest in the Margaret W. Dick Trust, with a present value of one-quarter vested remainder interest subject to divestment of $210,396.75; and (3) her interest in the Dick Family Trust, which it found was a one-quarter vested interest with a present value of $130,974.47. The total value of nonmarital assets awarded to petitioner was $1,278,439.19. Respondent was awarded the following nonmarital property: (1) his books and personal papers, and (2) all past and future distributions from his father’s estate, valued at $40,000.

The value of marital property awarded to petitioner was $274,454 after deducting the indebtedness assigned to her. The award included (1) the marital residence with an agreed value of $215,000 subject to the mortgage indebtedness of $73,694.87 and a mechanic’s lien of $11,804.37; and (2) 50% of petitioner’s IRA and 50% of respondent’s SEP IRAs. The value of the marital property awarded to respondent was $261,619.93 after reduction for indebtedness assigned to him. The marital property awarded to him included his interest in his law partnership, which the court valued at $115,000.

The court further ordered respondent to pay petitioner $1,700 per month in child support and $1,100 per month for 36 months in rehabilitative maintenance. After the 36-month period, the maintenance award was subject to automatic review by the court. Both parties filed post-trial motions. The court denied petitioner’s motion in its entirety and granted respondent’s motion in part. This appeal followed.

I. Maintenance

In awarding maintenance, the court stated:

“The Court finds that the [petitioner] lacks sufficient current income including the marital property apportioned to her to provide for her reasonable needs in accordance with the substantial standard of living enjoyed by the parties prior to their separation. The Court further finds that the [petitioner] is unable to currently support herself through appropriate employment due to her medical condition of Barter’s [s-ic] Syndrome. While the Court recognizes that the [petitioner] has a substantial interest in the various trusts that constitute her non-marital property, it is the Court’s finding that the current income level provided by said trust over which the [petitioner] has virtually no control, are [sic] insufficient to support her in accordance with the standard of living she would have enjoyed but for the dissolution of marriage of the parties. The Court does not find that a permanent award of maintenance is indicated inasmuch as the [petitioner] has a significantly large amount of non-marital property which at a later point in her life will be readily available to her and she is therefore not in a situation where her ability to accumulate assets for the future is of great concern. The Court’s primary concern in establishing a rehabilitative maintenance award is the present medical condition of the [petitioner] coupled together with the reduced present income that she enjoys from her significant non-marital holdings. The Court has additionally given due consideration to the duration of this marriage and the age of the parties. The [respondent] has significant income earning ability far in excess of that of the [petitioner], and he will be well able to meet his needs while meeting those needs of the [petitioner] during the period of rehabilitative maintenance which the Court has found to be proper. Additionally, the Court has given due consideration to the tax consequences of each of the parties and the divergence of the present income in establishing an award of maintenance.”

Respondent initially argues the trial court erred in granting maintenance to petitioner. He contends petitioner has sufficient assets in light of the nonmarital and marital property awarded to her to support herself, thereby negating the necessity for maintenance.

Section 504(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides a court may grant maintenance only if it finds the spouse seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” Ill. Rev. Stat. 1991, ch. 40, par. 504(a).

Section 504(b) of the Act further directs that the amount and duration of maintenance be determined after the court considers all relevant factors, including:

“(1) the financial resources of the party seeking maintenance, including marital properly apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(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;
(6) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; and
(7) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1991, ch. 40, par. 504(b).

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 Hensley (1991), 210 Ill. App. 3d 1043, 1048, 569 N.E.2d 1097, 1100; In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 851, 551 N.E.2d 737, 744.) An abuse of discretion occurs where no reasonable person would take the view adopted by the trial court. In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 378, 571 N.E.2d 1135, 1140.

The court gave careful consideration to the factors set forth in section 504, and in light of these factors, the award of maintenance is supported by the evidence. The benchmark for determination of maintenance is the reasonable needs of the spouse seeking maintenance in view of the standard of living established during the marriage, the duration of the marriage, the ability to become self-supporting, the income-producing property of a spouse, if any, and the value of the nonmarital property. (Cheger, 213 Ill. App. 3d at 379, 571 N.E.2d at 1140.) In her financial affidavit, petitioner stated her monthly expenses were $6,084.25. Her only income is what she receives from the trusts. Her projected income for 1991 from these trusts after taxes was $28,811, or $2,400 per month, leaving a monthly deficit of $3,684.25. As the evidence illustrated, the parties enjoyed a lavish lifestyle during their 15-year marriage. Petitioner has not worked since the birth of the parties’ first child, and due to her medical condition, her doctor testified she would be unable to work. Therefore, her potential for becoming self-supporting through employment is limited. The amount she receives from the trusts is far below the standard of living established during the marriage. Respondent earns approximately $138,000 a year and has a net income of $91,146 after taxes. The evidence established that respondent has sufficient income to pay maintenance. Based on petitioner’s medical condition and her monthly income from the trusts, petitioner needs maintenance to support herself in the manner commensurate with that established during the marriage. The award of maintenance is not an abuse of discretion or against the manifest weight of the evidence.

Respondent argues petitioner has sufficient nonmarital assets to provide for her support. While petitioner has an interest in three trusts equalling $1,278,439.19, the trial court correctly looked at the current income from these trusts in determining maintenance rather than the full value of her interest. The testimony of the witnesses and the trust instruments themselves establish petitioner has no direct control over the investments or income-earning potential of the trusts, nor over the type or amount of income distributions from these trusts. Rather, these are decisions left to the trustees under the trust document, and petitioner is not empowered to direct the trustees to invest the funds at higher rates or to increase her monthly income. While petitioner may have more control over the Dick Family Trust, because it is a self-settled trust, the provisions of the trust agreement can only be revoked in whole or in part by an instrument in writing signed by at least three of the four beneficiaries. Petitioner, however, is not required to sell or impair her capital assets to provide for her support where respondent has sufficient income to meet his needs as well as hers. Cheger, 213 Ill. App. 3d at 379-80, 571 N.E.2d at 1141; In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 234-35, 505 N.E.2d 1294, 1300-01; Hensley, 210 Ill. App. 3d at 1050, 569 N.E.2d at 1101.

II. Valuation Of Respondent’s Law Practice

The court awarded respondent his interest in the law practice and valued it at $115,000. It accepted petitioner’s valuation of the law practice and testimony that respondent intentionally lessened billings during the initial stages of the parties’ separation in an attempt to artificially reduce the accounts receivable of the law practice. On appeal, respondent contends the court erred in valuing his law practice by taking into consideration accounts receivable and accepting petitioner’s expert’s appraisal of the business.

Both parties presented expert testimony regarding the value of respondent’s law practice. Petitioner presented the expert testimony of Robert Disbrow, a certified public accountant. After reviewing respondent’s tax returns, bank accounts, depositions, and answers to interrogatories, Disbrow concluded the total value of the law practice was $115,000. In reaching this figure, Disbrow took into account accounts receivable, including billed, unbilled, and receivable for advances, and $50,000 in “[mjissing receivables or fees.”

Respondent disputes Disbrow’s calculation of “receivables for advances” of $17,774.91 and $50,000 in “missing fees.” With respect to the receivables for advances, Disbrow arrived at this figure by taking the money respondent stated was due him as of December 31, 1990, added advances made in 1991, and subtracted the advances recovered. This left a balance of $17,774.91 as of May 31, 1991, and $12,861.67 as of July 12,1991.

The basis for his calculation of $50,000 in “[mjissing receivables or fees” was a comparison between expected fees and actual fees respondent had collected plus receivables. Looking at respondent’s income, tax returns, depositions and answers to interrogatories, his gross fees had been approximately $240,000 a year. The tax returns showed his gross fees were $230,853 in 1988 and $251,973 in 1989. In 1990, his gross fees were $183,535.20. This was a shortfall of approximately $57,000 from his normal average gross fee of $240,000. Respondent had indicated in his deposition that he had not done substantial billing in the latter part of 1990, and he estimated he was owed $32,000 or $33,000. Disbrow added that figure to $183,000 to arrive at $216,000 as a gross income for 1990. He then compared respondent’s income for the first five months of 1990, which was $93,380, with his income for the same time period in 1991, which was $94,277. As the figures reflected, he collected approximately the same amount. Disbrow posited this was wrong because respondent should have received in the first part of 1991 the fees he did not receive in 1990 because he billed late. The uncollected fees in 1990 which were collected in 1991 were not reflected in his 1991 income because his income was essentially the same as it was during the same period in 1990.

Disbrow also compared the amount of income respondent received prior to the separation and that which he received after the separation. For the first nine months in 1990, respondent collected $170,000; for the three months after the separation, he collected only $12,000. Disbrow concluded respondent either reduced his work substantially during this period in question or he did not bill his clients for hours worked. On cross-examination, Disbrow admitted he had not examined the records and books of the law practice. On redirect, he stated he did not believe if he had looked at the books he would have reached a different conclusion because there is usually not much information on unbilled accounts receivable.

Respondent admitted for the first nine months of 1990, prior to the separation, he collected $172,000 in fees, and for the three months after the separation, he received only $12,000. From January to September 30, 1990, he stated he received draws from the law practice of $103,773.15, and after the separation he only had a draw of $795. In fact, he transferred $17,500 into the law practice so the firm could meet expenses. Respondent also admitted testifying at a deposition $32,000 or $33,000 in receivables should have been paid in 1990, but he was delinquent in sending out bills. He stated the money had been paid in 1991, and this money would be included in his 1991 income. Therefore, he would have a “balloon” of $32,000 or $33,000 in his 1991 income. He further asserted he was billing in excess of 200 hours a month, including months he went on vacation. He stated his income in 1988 was $136,000, and $138,000 in 1989. He asserted his 1990 income would have been about the same if the income not billed in 1990 was included. He expected his 1991 income to be relatively the same as in previous years except there would be a balloon payment of $32,000 or $33,000 which resulted from him not promptly billing in 1990.

Respondent’s own accountant, Brian Moore, testified the value of the law practice was $41,739. He further testified respondent’s 1990 tax return reflected a lesser amount of income than normal. He stated he reviewed the financial records of respondent and did not find any missing or uncollected receivables as set out by Disbrow.

The valuation of assets in an action for dissolution of marriage is a question of fact for the trial court to determine. (In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 70, 507 N.E.2d 900, 905.) Any conflicts in testimony concerning the valuation of such assets are matters to be resolved by the trier of fact. (In re Marriage of Simmons (1991), 221 Ill. App. 3d 89, 91, 581 N.E.2d 716, 719; Stone, 155 Ill. App. 3d at 70-71, 507 N.E.2d at 905.) The trial court’s findings thereon will not be disturbed on review unless they are contrary to the manifest weight of the evidence. Simmons, 221 Ill. App. 3d at 92, 581 N.E.2d at 719; In re Marriage of Perlmutter (1992), 225 Ill. App. 3d 362, 377, 587 N.E.2d 609, 619.

Both parties presented evidence regarding the value of respondent’s law practice. Based on this evidence, the court accepted petitioner’s valuation of the law practice and found respondent intentionally lessened billings during the separation in an attempt to reduce the accounts receivable of the law practice. The trial court had sufficient evidence to reach such a conclusion, and the trial court’s valuation of the property, therefore, is not an abuse of discretion or against the manifest weight of the evidence.

Further, it was not error for the court to consider accounts receivable in determining the value of the law practice. Respondent argues accounts receivable are a part of his future earnings and are accounted for in his projected income. Therefore, it would be duplicative to also consider them as a separate asset in valuing the law practice. He contends accounts receivable should not be viewed as marital property subject to distribution, but rather used in the determination of income for support and maintenance. To support his contention, respondent relies on In re Marriage of Zells (1991), 143 Ill. 2d 251, 572 N.E.2d 944, and Head v. Head (1988), 168 Ill. App. 3d 697, 523 N.E.2d 17.

In Stone, this court stated:

“A number of courts have adopted a method for valuation of a partnership or professional practice which includes consideration of:
(a) Fixed assets which include cash, furniture, equipment, supplies and library;
(b) Other assets, including properly aged accounts receivable, costs advanced with due regard for their collectibility; work in progress partially completed but not billed as a receivable, and where completed but not billed;
(c) Goodwill of the practitioner in his business as a going concern; and
(d) Liabilities of the practitioner related to his business.” Stone, 155 Ill. App. 3d at 72, 507 N.E.2d at 906-07.

See also In re Marriage of Leon (1980), 80 Ill. App. 3d 383, 386-87, 399 N.E.2d 1006, 1009, citing In re Marriage of Lopez (1974), 38 Cal. App. 3d 93, 110, 113 Cal. Rptr. 58, 69; In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 35-36, 495 N.E.2d 659, 662 (valuation of medical corporation); In re Marriage of Davis (1985), 131 Ill. App. 3d 1065, 1069, 476 N.E.2d 1137, 1140 (valuation of corporate law firm); In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, 813-14, 443 N.E.2d 31, 34-35 (valuation of timber business partnership); In re Marriage of Feldman (1990), 199 Ill. App. 3d 1002, 1005, 557 N.E.2d 1004, 1006 (accounts receivable are business assets and must be included in the practice’s valuation); Davis, Valuation of Professional Practices in Dissolution Cases, 74 Ill. B.J. 14 (1985).

While the supreme court in Zells held neither contingent-fee contracts nor professional goodwill was a marital asset subject to valuation, division or distribution, it did not state accounts receivable could not be considered in valuing a partnership. Respondent points to one paragraph in the Zells opinion to support his contention:

“The context for the consideration of fees, contingent or otherwise, is in the determination of income for support and maintenance. Fees earned by an attorney contribute to the annual income figures relied upon in awarding maintenance and support. Future earned fees would be considered should the subject of maintenance be revisited.” (Emphasis added.) Zells, 143 Ill. 2d at 253, 572 N.E.2d at 945.

We hold Zells does not apply to accounts receivable. The supreme court was specifically determining whether contingent fees could be included in the marital estate. In reaching its conclusion, the supreme court cited with approval the appellate court’s reliance on three factors to conclude contingent fees were not marital assets.

“ ‘First, the nature of a contingent fee contract indicates that an attorney has neither the right to receive the fee until the case is disposed of, nor any assurance that he ever will receive the fee. Second, the amount of the contingent fee depends on the amount of the award or settlement in the case; therefore its ultimate value, if any, remains highly speculative during the pendency of the case. *** Third, the worth of a contingent fee to an attorney, if any, remains intangible until the firm receives cash or other consideration for the services rendered.’ ” Zells, 143 Ill. 2d at 252-53, 572 N.E.2d at 945, quoting In re Marriage of Zells (1990), 197 Ill. App. 3d 232, 237, 554 N.E.2d 289, 292-93.

Clearly, future earned fees, like contingent fees, are not marital assets because their value is too speculative and because they are fees earned in the future. Accounts receivable, however, are distinguishable because they are assets already earned with a known value but have not yet been collected.

Head also does not support respondent’s proposition. In Head, the husband’s expert fixed the value of his interest in his professional corporation at $58,000 based on the value of tangible assets. Both parties agreed there was no other evidence presented regarding the value of tangible assets. The trial court, however, valued the business at $175,000 by adding $117,000 to the husband’s $58,000 valuation. The court did so by considering the stream of future income and the greater than average revenues earned by the corporation.

The appellate court concluded adding $117,000 to the value of the professional corporation “based upon a stream of future income was error because it resulted] in a ‘double count’ of potential future income by considering such income in both the valuation of the asset and considering it in apportioning the total marital assets and awarding maintenance.” (Head, 168 Ill. App. 3d at 701, 523 N.E.2d at 20.) This case is clearly distinguishable from the case at bar as the trial court did not consider the fiiture income of the partnership or the “greater than average revenues” earned, nor was there a “double count” of future income. Rather, the court valued the partnership by viewing the tangible assets, including accounts receivables, of the law practice. Accounts receivable are only “future income” in the sense they will be collected in the future. The distinction is these fees have already been earned and have a known value. Further, Head cited with approval In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891, and In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447, which held the value of the tangible assets was a proper basis for the valuation of partnerships. In each case, the court took into consideration accounts receivable.

The trial court did not err in including accounts receivable in valuing the respondent’s law practice, and as there was sufficient evidence to support its valuation of the practice, it was not an abuse of discretion or against the manifest weight of the evidence.

III. Child Support

In determining child support, the court stated it considered the financial resources and needs of the prospective parties and the standard of living the children would have enjoyed had the marriage not been dissolved. It then found the award of child support in the amount of $1,700 per month was equal to or in excess of the statutory minimum guidelines of 25% of the current net income of respondent. Relying on In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 547 N.E.2d 590, and In re Marriage of Meyer (1986), 140 Ill. App. 3d 1031, 489 N.E.2d 906, respondent argues the award of child support was an abuse of discretion because it is in excess of any amount needed for the support of two children.

An award of child support is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (Bush, 191 Ill. App. 3d at 260, 547 N.E.2d at 596; In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 410, 555 N.E.2d 1114, 1118.) Section 505 of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 505) provides for the imposition of child-support obligations and determines the amount based upon statutory criteria. The minimum amount for the support of two children is 25% of the supporting parent’s net income. (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(1).) Courts may, however, deviate from these guidelines after considering all relevant factors. Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2).

It is apparent the court took into consideration the statutory factors, and in light of these factors, it was not an abuse of discretion to award petitioner $1,700 per month in child support because it was consistent with the standard of living these children would have enjoyed had the marriage not been dissolved, and the financial resources and needs of the parties.

Further, both Meyer and Bush are distinguishable from the case at bar. In Meyer, the appellate court found the child-support award “greatly exceeded] the statutory guidelines,” and the trial court had not provided any reason for its substantial departure. (Meyer, 140 Ill. App. 3d at 1036, 489 N.E.2d at 910.) Moreover, the court found the award ignored the ability of the noncustodial parent to contribute to the support of the minor child. (Meyer, 140 Ill. App. 3d at 1036, 489 N.E.2d at 910.) In the case at bar, the child-support award did not “greatly exceed” the statutory guideline, and the trial court specifically took into consideration both parties’ financial needs and resources. Even if the award was greater than the statutory guidelines, the trial court properly took into consideration certain statutory factors in making its determination.

In Bush, this court found the overall award of 20% of respondent’s net income (approximately $30,000 a year) was an abuse of discretion as it was excessive for a four-year-old child. This court additionally con-eluded the use of a trust as a “reservoir” for the portion of the 20% not paid directly to petitioner was improper. This court further held “where the individual incomes of both parents are more than sufficient to provide the reasonable needs of the parties’ children, taking into account the life-style the children would have absent the dissolution, the court is justified in setting a figure below the guideline amount.” Bush, 191 Ill. App. 3d at 260, 547 N.E.2d at 596.

The circumstances of the instant case are distinguishable from Bush. Petitioner has much less disposable income with which to meet the children’s needs than did the custodial parent in Bush. Nor can it be determined, as was the case in Bush, that the child-support award greatly exceeded the needs of the children or that it resulted in a windfall to them. The award in the present case was not an abuse of discretion.

IV. Division Of Marital Property

Respondent next asserts the trial court erred in its distribution of the marital assets. He specifically argues petitioner should not have been awarded half of his individual retirement accounts, valued at $120,122.19, and the marital residence should have been ordered sold rather than awarded to petitioner in order to properly divide the marital assets. The thrust of his argument is that the trial court erred in awarding her half of his retirement accounts (as accumulated during the marriage) because she has substantial nonmarital assets while he does not.

The Act requires the trial court to divide marital property in “just proportions” considering all relevant factors, including a number of statutory factors. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d); In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37, 411 N.E.2d 238, 241.) The touchstone of apportionment of marital property is whether the distribution is equitable in nature. (In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 268, 511 N.E.2d 156, 165; In re Marriage of Riech (1991), 208 Ill. App. 3d 301, 308, 566 N.E.2d 826, 830; Hart, 194 Ill. App. 3d at 847, 551 N.E.2d at 741.) The division need not be mathematically equal to be equitable. (Wade, 158 Ill. App. 3d at 268, 511 N.E.2d at 165; In re Marriage of Sheber (1984), 121 Ill. App. 3d 328, 337, 459 N.E.2d 1056, 1063; Riech, 208 Ill. App. 3d at 309, 566 N.E.2d at 830.) The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. Riech, 208 Ill. App. 3d at 309, 566 N.E.2d at 830; In re Marriage of Kerber (1991), 215 Ill. App. 3d 248, 254, 574 N.E.2d 830, 834.

Applying these principles, the trial court did not abuse its discretion in dividing the parties’ marital assets. The record illustrates the court conscientiously evaluated the circumstances of the parties and considered all relevant statutory factors before dividing the property. As the figures reflect, the value of the property awarded to each is approximately equal, with petitioner receiving $12,834.07 more. In arguing the distribution of marital assets was improper, respondent again relies on his argument that petitioner has substantial nonmarital assets. As previously stated, she receives approximately $2,400 in monthly income from the trust and does not have access to the principal nor can she direct how the trustees invest the assets or distribute the income. As the court found, she has virtually no control over the income level provided by the trusts. The court’s apportionment of the marital assets was not an abuse of discretion considering the contribution of the parties, the value of the property awarded to each, the duration of the marriage, the disparity in income between the parties, the custodial provisions, the desire of awarding the family home to petitioner, and the health status and opportunity of the respective parties. See Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(1) through (d)(11).

Respondent also argues the marital residence should have been ordered sold because the house is too expensive to maintain based on the parties’ income. The parties purchased the marital residence in the fall of 1987 for $190,000. They borrowed $140,000 from petitioner’s aunt, Margaret J. Dick, to pay for the house. She took a first mortgage on the residence to secure the loan. The monthly mortgage payments are $1,286.50. The parties have made these monthly payments and, in addition, have made payments on the principal. Over the past several years, petitioner’s aunt has made annual gifts to the parties of $10,000 and in one case $20,000. This money was applied to the mortgage. The present balance on the mortgage is approximately $73,000, and the agreed estimated market value of the home is $215,000. The parties also owe a builder $11,804.37 for building an addition on the home. The monthly expenses on the house are $2,485.50 monthly or $29,826 a year.

■ The trial court determined that in accordance with the best interests of the children and the equitable division of the marital property petitioner should be awarded the home subject to the mortgage and the debt for the addition to the house.

The trial court based its decision to award the home to petitioner on the fact that she would have custody of the two minor children and it would be in their best interest for petitioner to be awarded the home subject to the mortgage and mechanics’ lien. This factor has been of great importance in cases reasoning that “[t]he adverse effect which dissolution of a marriage has on children is self-evident. Therefore, where possible, children should be afforded continuity in their environment in order to reduce the emotional disruption caused by the separation of their parents. One of the ways this can be accomplished is by affording the children continued residence in the family home.” In re Marriage of Brenner (1981), 95 Ill. App. 3d 100, 102, 419 N.E.2d 400, 402; see also In re Marriage of Wiley (1990), 199 Ill. App. 3d 169, 178-79, 556 N.E.2d 809, 815; Sheber, 121 Ill. App. 3d at 338-39, 459 N.E.2d at 1064; In re Marriage of Legge (1982), 111 Ill. App. 3d 198, 209, 443 N.E.2d 1089, 1097; In re Marriage of Kush (1982), 106 Ill. App. 3d 233, 236, 435 N.E.2d 921, 923.

In dividing the marital property, the trial court is to consider the custodial provisions made for any children and the desirability of awarding the marital residence to the spouse having custody of the children. (Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(4), (d)(8).) Since petitioner was awarded custody of the two minor children, assignment of the house to her was justified. Moreover, the court took into consideration the estimated value of the house in dividing the assets, and considering the income of the parties and other relevant statutory criteria, the award of the marital residence to petitioner appears appropriate.

V. Dissipation Op Marital Assets

On September 14, 1990, prior to their separation on September 20, 1990, respondent withdrew $35,976.17 from the parties’ cotenant savings account, leaving a balance of $1,000 in the account. To withdraw money from this account, both signatures of the parties were required. Petitioner had signed the withdrawal slip, but respondent had not indicated to her how much he intended to withdraw or for what purpose. The funds withdrawn were transferred into respondent’s personal checking account at the First of America Bank, from which petitioner cannot withdraw. The balance of the checking account after the deposit was $37,552.95. Respondent thereafter transferred $20,000 from his checking account into his savings account at Magna Bank. The balance in his savings account after the deposit was $51,707.68. The money in this account was also not subject to withdrawal by petitioner.

A total of $145,195.42 was deposited in respondent’s checking account between September 14 and the date of the trial, including the $35,976.17 transferred from the parties’ joint account, and $90,000 transferred from his Magna Bank savings account into his checking account. A total of $144,112.19 was withdrawn from the account during this time period, including the $20,000 transferred from his checking account to his savings account.

In an attempt to explain how he spent the money, respondent testified he wrote five checks on September 14 to (1) American Express for $1,866.69, (2) the Internal Revenue Service for $8,287, (3) the Illinois Department of Revenue for $860, (4) Illinois Bell for $24.16, and (5) another check for $33.56. He also presented the following exhibit outlining the deposits and withdrawals made on the account during the period of September 14 through the time of trial:

“5. Personal checking account (Christopher M. Tietz)
a. 9/10/90 balance $ 1,576.82
b. 9/14/90 deposit from First of America Bank savings account 35,976.17
c. 9/14/90 transfer to Magna savings account (ck[.] [N]o. 2878) (20,000.00)
d. 11/7/90 deposit from Jeffrey D. Richardson, payment on notes 3,000.00
. e. 6/17/91 deposit from Soy Capital Bank, loan proceeds for payment of [F]ederal income tax estimate 13,000.00
f. 6/27/91 ck[.] to Soy Capital Bank to repay loan for tax estimate (ck[.] [N]o. 3171) (13,028.49)
g. 10/22/90-6/27/91 deposits from Magna savings account 93,000.00
h. 9/25/90 — 6/25/91 interest earned 193.47
i. 1/17/91 voiding ck[.] [N]o. 2990 (dated 1/14/91) 4.00
j. 1/25/91 adjustment to reconcile account 21.78
Subtotal, $113,743.75
k. Checks to Internal Revenue Service for [Fjederal income tax estimate, ([N]os. 2879, 2989, 3083 and 3157) (42,574.00)
l. Checks to Internal Revenue Service for [SJtate income tax estimate ([N]os. 2880, 2977, 3084 and 3136) (4,320.00)
m. Checks to Macon County Collector for real estate taxes ([N]os. 3134 and 3135) (2,984.25)
n. Checks to Margaret J. Dick trust for payments on note ([N]os. 2884, 2921, 2957, 2975, 3003, 3028, 3050, 3104, 3133 and 3172) [(mortgage payments)] (12,865.00)
o. Checks to Elizabeth D. Tietz (or for her benefit) (14,750.00)
p. Checks to Maynor Rentals for apartment rent ([N]os. 3001, 3002, 3032, 3066, 3110, 3132 and 3172) (4,550.00)
q. Checks for cash ([N]os. 2951, 2958, 2978, 2980, 3080, 3106, 3147 and 3160) (3,900.00)
r. Checks for payment of other marital debts and Christopher M. Tietz’ living expenses (25,140.45)
[Total Expenditures 111,083.70]
Current balance $ 2,660.05.”

In regard to dissipation of marital assets, the trial court found respondent presented sufficient evidence of necessary and proper expenditures of the funds removed from the parties’ savings account, and therefore no dissipation.

Petitioner argues by cross-appeal respondent had the burden of showing by clear and specific evidence how the money he withdrew was spent, and his explanation for the last two figures, the $25,140.45 (item “r” above) as “payment of other marital debts and *** living expenses,” and the $3,900 expenditure (item “q” above) as “checks for cash” was inadequate to meet this burden. Because respondent failed to meet his burden, petitioner contends the trial court erred in not finding respondent’s withdrawal of at least $29,000.40 constituted dissipation under section 503(d)(1) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(1)).

When dividing marital property, a court must consider the dissipation of the value of marital and nonmarital property. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d)(1).) Dissipation is defined as the use of marital property for one spouse’s sole benefit for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. (In re Marriage of Seversen (1992), 228 Ill. App. 3d 820, 824, 593 N.E.2d 747, 749; Hensley, 210 Ill. App. 3d at 1053, 569 N.E.2d at 1103; In re Marriage of Adams (1989), 183 Ill. App. 3d 296, 301, 538 N.E.2d 1286, 1289.) Whether a given course of conduct constitutes dissipation depends upon the facts of the particular case. (Seversen, 228 Ill. App. 3d at 824, 593 N.E.2d at 749; Adams, 183 Ill. App. 3d at 301, 538 N.E.2d at 1290; In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 683, 509 N.E.2d 707, 715.) The spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how the marital funds were spent. (Adams, 183 Ill. App. 3d at 301, 538 N.E.2d at 1290.) When the funds are spent for legitimate family expenses, and necessary and appropriate purposes, there is no dissipation. (Hensley, 210 Ill. App. 3d at 1053, 569 N.E.2d at 1103.) The explanation given by the spouse charged with dissipation as to how funds were spent requires the trial court to determine his or her credibility. (Adams, 183 Ill. App. 3d at 301, 538 N.E.2d at 1290; In re Marriage of Rai (1989), 189 Ill. App. 3d 559, 565, 545 N.E.2d 446, 449.) If expenditures are not documented adequately by the person charged with dissipation, courts will affirm a finding of dissipation. (Rai, 189 Ill. App. 3d at 565, 545 N.E.2d at 450.) General and vague statements that funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. The issue of dissipation is generally a question of fact, and the trial court’s finding concerning dissipation will not be disturbed unless it is against the manifest weight of the evidence (Seversen, 228 Ill. App. 3d at 824, 593 N.E.2d at 749; Rai, 189 Ill. App. 3d at 565, 545 N.E.2d at 450) or an abuse of discretion (Drummond, 156 Ill. App. 3d at 683, 509 N.E.2d at 715).

In the present case, respondent undisputedly withdrew the funds when the marriage was experiencing an irretrievable breakdown. Through his testimony and summary of transactions of his checking account, respondent specifically accounted for how these funds were spent. The money was spent on legitimate expenses for taxes, mortgage payments, voluntary monthly payments to petitioner, and various living expenses incurred by both parties. These were appropriate expenditures and should not result in a finding of dissipation. While his explanation of “payment of other marital debts and *** living expenses” and “checks for cash” to account for $29,000.40 is vague, respondent only transferred $35,976.17 into his checking account from the parties’ joint checking account, while he paid bills and expenses totalling $111,083.70, well in excess of the amount he withdrew from the parties’ joint account. Since respondent presented sufficient evidence to establish the money withdrawn was used for appropriate purposes, and- there was no evidence of wilful dissipation of marital assets, the court did not abuse its discretion in finding no dissipation.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
    MEMORIAL CHILD CARE, Plaintiff-Appellee, v. THE DEPARTMENT OF REVENUE, Defendant-Appellant.
    Fourth District
    No. 4—92—0309
    Opinion filed November 30, 1992.

      Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Robert G. Toews, Assistant Attorney General, of Chicago, of counsel), for appellant.
    J. Patrick Joyce, Jr., and Terry D. Charlton, both of Brown, Hay & Stephens, of Springfield, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Defendant Illinois Department of Revenue (Department) appeals the judgment of the circuit court of Sangamon County granting tax-exempt status to three tracts of land owned by plaintiff Memorial Child Care, Inc. (Child Care). Plaintiff operates a child-care center on the land for the benefit of its affiliate, Memorial Medical Center. On appeal the Department asserts that Child Care is not entitled to property tax exemption as a charitable or educational organization pursuant to section 19.7 of the Revenue Act of ,1939 (Act) (Ill. Rev. Stat. 1989, ch. 120, par. 500.7). We affirm.

The following facts are not in dispute. Child Care and Memorial Medical Center are affiliated corporations under the parent not-for-profit corporation, Memorial Medical Center System. Memorial Medical Center is an acute-care hospital located in Springfield, which has previously been granted a property tax exemption as a hospital operated for charitable purposes. Child Care is a not-for-profit Illinois corporation with an exemption from the Internal Revenue Service for Federal income taxes. Child Care is located approximately one block west of the main hospital complex, and is situated on three contiguous parcels of property improved with a 12,000-square-foot one-story building. The entire building is devoted to the child-care center. Child Care filed separate applications for property tax exemptions for each of the three tracts for part of the 1987 and all of the 1988 tax years. In support of these claims, Child Care described itself in the applications as a not-for-profit corporation which provided “a day-care center for children of employees of Memorial Medical Center. No net income is derived from the use of said property. Fees charged for day-care do not cover cost of maintenance and operation.” The Sangamon County Board of Review recommended approval of the applications and submitted them to the Department. The Department found the primary use of Child Care’s property was neither charitable nor educational and denied the applications for exemptions. A formal administrative hearing was held at Child Care’s request. Child Care argued it should receive property tax exemptions based on the charitable and educational nature of the day-care services provided to the employees of Memorial Medical Center.

Paul Smith, chief financial officer and senior vice-president for Memorial Medical Center System, testified concerning the motivation for building the child-care center. In the early 1980’s Memorial Medical Center conducted a study because the hospital was experiencing some instability with its staff, especially the nursing department. The study determined that the young professional staff at the hospital had difficulty obtaining child care due to a lack of adequate day-care facilities in the community. Child Care was developed and built to provide a day-care facility that could correspond to the scheduling needs of the employees of the hospital. Child Care’s admission policy limited the enrollment to children of the employees of the affiliated corporations of Memorial Medical Center System. The fees charged by Child Care for day-care services were comparable to other facilities in Springfield. Child Care was built with the intention of being a self-supporting operation; however, it has required a subsidy from Memorial Medical Center to meet its expenses. Smith testified that although Child Care was not breaking even, it was still fulfilling the needs of the hospital because of the valuable service provided to the hospital employees.

Joyce Spier, director of Child Care, also testified at the administrative hearing. Spier was a member of the human resource task force which worked for three years investigating the hospital’s need for a child-care facility. The task force determined that because adequate child-care for hospital employees was not available in the community, the hospital needed to operate its own facility. Spier stated that this finding was subsequently confirmed by a study by the League of Women Voters which also documented the shortage of child-care in the Springfield area. Spier stated that the biggest difference between Child Care and the other day-care centers in Springfield was the hours of operation. Child Care was open from 5:30 a.m. until midnight, seven days per week. Spier testified that Child Care stayed open until the last child went home, usually close to midnight, but that the Child Care staff stayed as long as required to meet the needs of the hospital employees. Because part-time employees had a particularly difficult time finding a flexible child-care program, Child Care offered both a weekly rate and a daily rate. Child Care did not offer free services based on need or for any other reason. Child Care is used by approximately 140 employees; about half of those are from the department of nursing. Spier also testified about the educational component of Child Care’s services. Each age group had daily activities designed to include math, science, art, language, and music. The lessons also included development of fine and gross motor skills. The preschool program was usually held between 9 a.m. and 11 a.m., with instructional activities held on weekends as well.

The administrative law judge recommended denial of the property tax exemptions. The Department accepted the recommended disposition and denied Child Care’s applications. The Department determined that Child Care was not a preschool because the children were not present on a daily basis, and because the children enrolled in the evening participated in significantly fewer activities. In addition, the Department determined that Child Care was not a charitable institution because it did not meet the guidelines of a charitable operation as set out by the supreme court in Methodist Old Peoples Home v. Korzen (1968), 39 Ill. 2d 149, 233 N.E.2d 537. The Department rejected Child Care’s argument that the day-care operation was reasonably necessary to fulfill the charitable objectives of Memorial Medical Center.

Child Care filed a complaint for administrative review in the circuit court of Sangamon County. The circuit court reversed the decision of the Department, finding the Department’s decision in denying Child Care’s property tax exemptions was against the manifest weight of the evidence and contrary to law. The circuit court held that Child Care was entitled to exemption from real estate taxes pursuant to section 19.7 of the Act because Child Care’s activities were “reasonably necessary” to further the charitable objectives of Child Care’s acute-care hospital affiliate, Memorial Medical Center, and to allow for the more efficient administration of the hospital. The Department appeals the circuit court’s order.

Although Illinois charitable institutions are entitled to an exemption from property taxes, such exemptions are to be narrowly construed. (Rogers Park Post No. 108 v. Brenza (1956), 8 Ill. 2d 286, 289-90, 134 N.E.2d 292, 295; see also City of Chicago v. Illinois Department of Revenue (1992), 147 Ill. 2d 484, 491, 590 N.E.2d 478, 481.) Article IX of the Illinois Constitution provides the taxing authority for the State and establishes the types of property which may obtain an exemption from taxation:

“The General Assembly by law may exempt from taxation only the property of the State, units of local government and school districts and property used exclusively for agricultural and horticultural societies, and for school, religious, cemetery and charitable purposes. The General Assembly by law may grant homestead exemptions or rent credits.” (Ill. Const. 1970, art. IX, §6.)

In accordance with this provision, the legislature has provided a tax exemption for charitable organizations in section 19.7 of the Act by exempting:

“All property of institutions of public charity, all property of beneficent and charitable organizations, *** when such property is actually and exclusively used for such charitable or beneficent purposes, and not leased or otherwise used with a view to profit ***.” Ill. Rev. Stat. 1989, ch. 120, par. 500.7.

A determination whether an exemption exists is a question of law where, as in this case, the facts are not in dispute. (Harrisburg-Raleigh Airport Authority v. Department of Revenue (1989), 126 Ill. 2d 326, 331, 533 N.E.2d 1072, 1073.) Thus, the decision as to whether property is exempt depends solely upon the application of the appropriate legal standard to the undisputed facts. (City of Chicago, 147 Ill. 2d at 491, 590 N.E.2d at 481.) Property may qualify for a charitable exemption if the use of the property is exclusively charitable (Methodist Old Peoples Home, 39 Ill. 2d at 156-57, 233 N.E.2d at 541-42), or “reasonably necessary” for accomplishing the goals of a charitable organization (MacMurray College v. Wright (1967), 38 Ill. 2d 272, 278, 230 N.E.2d 846, 850).

Here, the Department determined that Child Care did not qualify as an organization devoted exclusively to charitable purposes within the meaning of section 19.7 of the Act. As a general rule, a reviewing court will give deference to an administrative agency’s interpretation of the statute it was created to enforce (City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 361, 522 N.E.2d 1219, 1222), although it is not the same measure of deference given to the agency’s findings of fact. (Harrisburg-Raleigh, 126 Ill. 2d at 331, 533 N.E.2d at 1073-74.) The Department argues in this appeal that Child Care does not qualify as an organization devoted exclusively to charitable purposes under the Methodist Old Peoples Home test for determining when an organization qualifies for the exemption on charitable grounds. (Methodist Old Peoples Home, 39 Ill. 2d at 156-57, 233 N.E.2d at 541-42.) Although Child Care, similar to its affiliate Memorial Medical Center, is a not-for-profit corporation and has been granted exemption from payment of Federal income tax under section 501(c)(3) of the Internal Revenue Code of 1939 (26 U.S.C. §501(c)(3) (1988)), Child Care does not contend that fact, standing alone, qualifies it for a charitable exemption under the standard set forth in Methodist Old Peoples Home. Child Care does, however, contend that its services are “reasonably necessary” for the efficient administration of its affiliate, Memorial Medical Center, which the Department determined was a charitable organization for purpose of property tax exemptions on other real estate. Child Care contends its services allow Memorial Medical Center to fulfill its charitable objectives of providing quality health care to all patients regardless of race, religion, sex, national origin, or economic status.

In MacMurray College the supreme court considered whether faculty and staff housing facilities were used exclusively for school purposes and, therefore, exempt from property taxation. The court phrased the standard in the following terms:

“A party seeking tax exemption for staff housing facilities as property exclusively used for school purposes obviously must do more than merely show that the property is owned by the school and occupied by school personnel. There must be use exclusively for school purposes. However, one is not required to show that the use of the property is absolutely indispensable for carrying out the work of the institution. [Citation.] The primary use of the property, not its incidental uses, determines its tax exempt status. [Citation.] Exemption will be sustained if it is established that the property is primarily used for purposes which are reasonably necessary for the accomplishment and fulfillment of the educational objectives, or efficient administration, of the particular institution.” (Emphasis added.) (MacMurray College, 38 Ill. 2d at 278, 230 N.E.2d at 850.)

The court then analyzed the nature of the faculty housing and determined that it was primarily residential and not educational. Therefore, the colleges were not entitled to exemptions for faculty and staff housing facilities since the facilities were not reasonably necessary for the educational objectives or administrative efficiency of the college. MacMurray College, 38 Ill. 2d at 278-79, 230 N.E.2d at 850.

In McKenzie v. Johnson (1983), 98 Ill. 2d 87, 456 N.E.2d 73, the supreme court used the MacMurray College standard to determine whether a statutory exemption for parsonages was unconstitutional because it impermissibly broadened the constitutional exemption for property used exclusively for religious purposes. In holding the statutory exemption constitutional, the court quoted the above language from MacMurray College and then stated:

“Under the MacMurray standard a parsonage qualifies for an exemption if it reasonably and substantially facilitates the aims of religious worship or religious instruction because the pastor’s religious duties require him to live in close proximity to the church or because the parsonage has unique facilities for religious worship and instruction or is primarily used for such purposes. *** Whether a particular parsonage may be entitled to exemption turns on the evidence showing how the parsonage is being used ***.” (Emphasis added.) (McKenzie, 98 Ill. 2d at 99-100, 456 N.E.2d at 79.)

The Department contends that in McKenzie the supreme court clarified the MacMurray College “reasonably necessary” standard by adopting a more stringent “reasonably and substantially” necessary test. This position is not supported by McKenzie and has not been accepted in other tax exemption cases. (See Evangelical Hospital Association v. Novak (1984), 125 Ill. App. 3d 439, 443, 465 N.E.2d 986, 988 (the MacMurray College “reasonably necessary” test was “reaffirmed in McKenzie”); Northwestern Memorial Foundation v. Johnson (1986), 141 Ill. App. 3d 309, 313, 490 N.E.2d 161, 164 (applied the MacMurray College “reasonably necessary” test); Norwegian American Hospital, Inc. v. Department of Revenue (1991), 210 Ill. App. 3d 318, 324, 569 N.E.2d 83, 87 (applied the MacMurray College “reasonably necessary” test).) The standard used in McKenzie was the same as the standard used in MacMurray College. In McKenzie, the supreme court reaffirmed the “reasonably necessary” standard by stating that the use of the property must “reasonably and substantially facilitate[ ]” the charitable goals. McKenzie, 98 Ill. 2d at 99, 456 N.E.2d at 79.

There are no Illinois cases which have determined whether a child-care center is reasonably necessary for the efficient operation of a charitable hospital. However, Illinois courts have held that property used as hospital administrative and support services (Evangelical Hospital Association, 125 Ill. App. 3d 439, 465 N.E.2d 986), property used as a hospital employee parking lot (Northwestern Memorial Foundation, 141 Ill. App. 3d 309, 490 N.E.2d 161), and the reclamation of property containing abandoned and gang-infested buildings surrounding a hospital (Norwegian American Hospital, Inc., 210 Ill. App. 3d 318, 569 N.E.2d 83) qualify for the property tax exemption.

In Evangelical Hospital Association, the court held that property used to house the administrative offices of five hospitals was reasonably necessary under MacMurray College and McKenzie. The court found that the administrative offices were exempt from property tax, although they were separated from the hospital, because they were reasonably necessary for the efficient administration of the hospital system. (Evangelical Hospital Association, 125 Ill. App. 3d at 442-43, 465 N.E.2d at 988-89.) In Northwestern Memorial Foundation, the court permitted an exemption for a hospital employees’ parking lot. The court took judicial notice of the fact that the hospital complex was located in a densely populated urban area which necessitated adequate employee parking. (Northwestern Memorial Foundation, 141 Ill. App. 3d at 313, 490 N.E.2d at 164.) Moreover, the court noted the existence of a statutory provision specifically exempting parking lots used by non-profit hospitals. (Northwestern Memorial Foundation, 141 Ill. App. 3d at 312, 490 N.E.2d at 163, quoting Ill. Rev. Stat. 1989, ch. 120, par. 500.16.) The area surrounding the hospital in Norwegian American Hospital, Inc. was deteriorating into a gang-infested area with a reputation for dangerous criminal activity. (Norwegian American Hospital, Inc., 210 Ill. App. 3d at 320, 569 N.E.2d at 84-85.) The court found the hospital’s plan to reclaim the land and turn it into part of the hospital’s campus “reasonably necessary to the continued survival and efficient administration” of the hospital. Norwegian American Hospital, Inc., 210 Ill. App. 3d at 322, 569 N.E.2d at 86.

While it is the taxpayer’s burden to prove its right to an exemption, each case requires consideration of the particular facts presented. (Norwegian American Hospital, Inc., 210 Ill. App. 3d at 323, 569 N.E.2d at 86, citing Evangelical Hospital Association, 125 Ill. App. 3d 439, 465 N.E.2d 986.) In the instant case, Child Care operated a child-care center for the employees at Memorial Medical Center. The record indicates that Springfield had a shortage of child-care facilities, and that the employees of Memorial Medical Center had difficulty finding child-care available which met their needs and fit the hospital scheduling requirements. Child Care’s facility was specifically organized to provide a flexible child-care program for the employees of Memorial Medical Center. The hours of operation of the facility are from 5:30 a.m. to midnight, seven days a week, including holidays. Child Care offers variable services for employees, such as a daily rate for part-time employees because department schedules often include work on weekends. Child Care’s hours of operation were specifically structured for Memorial Medical Center employees and are more flexible and of longer duration than those of commercial day-care centers. Child Care was created specifically as a not-for-profit corporation to alleviate the difficulty Memorial Medical Center experienced in hiring and maintaining employment of professional employees with young children.

The use of the property at issue is for a purpose reasonably necessary to accomplish the efficient administration of Memorial Medical Center as a tax-exempt charitable hospital under the Act. The facility enables Memorial Medical Center to better serve the needs of central Illinois by allowing the hospital to attract and retain quality nurses and other medical professionals. Although Memorial Medical Center functioned for years without a child-care center, this alone does not show that a child-care center for employees of the hospital is not essential to the operation of the hospital. (See Northwestern Memorial Foundation, 141 Ill. App. 3d at 313, 490 N.E.2d at 164.) In this case, the availability of secure, flexible child care is more than a mere convenience; it is a necessity that directly affects an employee’s willingness and ability to provide much needed services to Memorial Medical Center and the community. Child Care’s use of the property is primarily for purposes reasonably necessary to accomplish the efficient administration of the hospital, and therefore the three parcels should be exempt from property taxation pursuant to section 19.7 of the Act.

Child Care argues in the alternative that it qualifies for a property tax exemption as an educational institution in accordance with section 19.7 of the Act. Given that Child Care qualifies for property tax exemption in accordance with the exemption for charitable institutions, we find no need to determine whether Child Care should be granted tax exemption as an educational institution.

Accordingly, we affirm the judgment of the circuit court of Sangamon County.

Affirmed.

STEIGMANN and LUND, JJ., concur.


author: JUSTICE LUND JUSTICE KNECHT,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD J. WHALEN, Defendant-Appellant.
    Fourth District
    No. 4—91—0974
    Opinion filed December 10, 1992.

      KNECHT, J., concurring in part and dissenting in part.
    George F. Taseff, of Bloomington, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goetten, Robert J. Biderman, and David E. Mannchen, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE LUND

delivered the opinion of the court:

Following a jury trial in the circuit court of McLean County, defendant Donald J. Whalen was convicted of two counts of first degree murder, in violation of section 9—1(a)(1) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1991, ch. 38, par. 9—1(a)(1)), and sentenced to a term of 60 years’ imprisonment.

On appeal, defendant contends it was reversible error to (1) exclude his expert witness because of late disclosure; (2) admit evidence of his purchase and use of cocaine; and (3) exclude evidence tending to show that another committed the crime. We disagree and affirm.

On the morning of April 6, 1991, the body of William Whalen was discovered at the Twenty Grand Tap in Bloomington, Illinois. Police arrested his son, defendant Donald Whalen, and charged him with two counts of first degree murder. The decedent had been struck 39 times with blunt instruments and stabbed over 30 times with several sharp instruments. In its initial discovery response, the State disclosed evidence of an alleged match between a bloody latent palm print found on a broken pool cue and inked palm prints of defendant.

Defendant filed his discovery response on September 30, 1991, and provided notice of an intended alibi defense. No mention was made of an intent to seek an expert witness. Defendant then filed a supplementary discovery response on October 21, 1991, that listed 24 additional witnesses, but made no mention of seeking an expert witness.

On November 4, 1991, eight days before trial, defense counsel filed another supplemental discovery response disclosing his intent to call an expert witness, Dr. Zeldes. Zeldes’ resume was attached to the discovery response, but there was no indication of the nature or content of his proposed testimony. The State telephoned Zeldes the same day and learned that he was not certain what he would be asked to testify about, although he did indicate that one area of his expertise is in fingerprint analysis.

The next day, November 5, 1991, a hearing was held on the State’s motion to strike the supplemental discovery and bar the testimony of Zeldes. The State argued that as recently as October 28, 1991, defense counsel advised them that the only evidence he had was his alibi evidence and character witnesses. No mention was made of finding an expert witness in fingerprint analysis. The State’s trial strategy focused on its expert testimony versus defendant’s alibi. This last-minute revelation of expert testimony supporting defendant’s position represented a major change in the trial strategy which the State claimed would require more than a single week for adequate preparation. The State argued that the situation was further aggravated by the fact that it was given no information regarding Zeldes’ findings.

Defense counsel contends the delay in hiring Dr. Zeldes was caused by lack of funds. The funds allegedly became available approximately 10 days before the November 5, 1991, hearing. The prints were faxed to Zeldes approximately seven days prior to the hearing, and defense counsel was unable to speak to Zeldes personally because defense counsel was involved with a family matter regarding surgery on his father.

The State questions the credibility of defense counsel’s argument on lack of funds. It questions why defendant never filed a motion for the appointment of an expert alleging an inability to pay. Defense counsel offered to set up a phone conference between Zeldes and the assistant State’s Attorney on the following day. The trial court found this solution to be insufficient, claiming defense counsel had had plenty of time to get the job done. The trial court granted the State’s motion to bar the expert’s testimony.

On November 6, 1991, defense counsel filed a motion to reconsider the court’s ruling barring Dr. Zeldes’ testimony. Attached to the motion was a letter from defense counsel’s private investigator, who had spoken with Zeldes on the telephone and summarized the proposed testimony. At a hearing held the following day, defense counsel stated that he was prepared to have Zeldes issue a report and have it faxed to the court immediately He argued that there was no undue delay on the part of the defense from the point in time when the witness first became available to him and when he formed the intent to call him as a witness.

Defense counsel argued that Zeldes’ testimony would cast doubt upon the only physical evidence linking defendant to the crime and to exclude this testimony would deprive him of a fair trial. The State argued that it was now three days since the name of the expert had been disclosed and it still did not have any type of report indicating the basis for the expert’s determination. Before a decision could be made to reconsider, the State argued that defendant should produce Dr. Zeldes, in person, along with whatever he used to make his comparison.

The trial court noted that defense counsel had not brought to the court’s attention any problems concerning disclosure of expert witnesses, and that a firm trial date had been set for over 60 days. Before issuing its ruling on the motion to reconsider, the court engaged in the following dialogue with defense counsel:

“[THE COURT:] I can only think of one possible mitigation in this matter and that is if you want a continuance is the only possible situation we can run into.
[Defense counsel]: Could — If we did move for a continuance would we still be able to try it this calendar?
THE COURT: No way it can be tried this calendar with a continuance.
[Defense counsel]: When would the next available trial—
THE COURT: January.
[Defense counsel]: May I have a moment to discuss it with my client?
[Defendant]: Don’t need a moment.
[Defense counsel]: My client indicates, Your Honor, that he does not desire a continuance.
THE COURT: Well, that’s entirely up to you. I would afford a continuance potentially you see—
[Defense counsel]: I understand.
THE COURT: Seems to me that’s the only way we can cure the problem we have, and even that imposes considerable difficulty on the State because they have at least an out-of-state witness that’s been subpoenaed. They have a witness out of the penitentiary, don’t you, that’s been [‘Jwritted out[’j?
[Prosecution]: Yes.
THE COURT: And we have, you know, we’ve set aside the time for this.
[Defense counsel]: Could we have — Could we have one more minute?
* * *
[Defense counsel]: My client wishes to proceed to trial on the 12th, Your Honor.”

Motion to reconsider was denied, and the action proceeded to trial on November 12,1991.

The correct sanction to be applied for violation of a discovery rule is left to the trial court’s discretion, and the judgment of the trial judge is given great weight. (People v. Morgan (1986), 112 Ill. 2d 111, 135, 492 N.E.2d 1303, 1312.) This rule is balanced against the principle that few rights are more fundamental than that of an accused to present witnesses in his own defense. (Taylor v. Illinois (1988), 484 U.S. 400, 98 L. Ed. 2d 798, 108 S. Ct. 646.) The exclusion of evidence is a drastic measure, applicable to flagrant violations where the uncooperative party demonstrates a " ‘deliberate contumacious or unwarranted disregard’ ” of the court’s authority. People v. Rayford (1976), 43 Ill. App. 3d 283, 286, 356 N.E.2d 1274, 1277, quoting Schwartz v. Moats (1971), 3 Ill. App. 3d 596, 599, 277 N.E.2d 529, 531.

Even so, the Supreme Court rejected the argument that preclusion of evidence is never a permissible sanction for a discovery violation:

“[I]t is neither necessary nor appropriate for us to attempt to draft a comprehensive set of standards to guide the exercise of discretion in every possible case. It is elementary, of course, that a trial court may not ignore the fundamental character of the defendant’s right to offer the testimony of witnesses in his favor. But the mere invocation of that right cannot automatically and invariably outweigh countervailing public interests.” Taylor, 484 U.S. at 414, 98 L. Ed. 2d at 814, 108 S. Ct. at 656.

The principal reason for notice rules is prevention of surprise to the opposing party, not punishment of the proponent of the evidence for mere technical errors or omissions. Other factors considered before a witness preclusion sanction is employed to enforce discovery rules are effectiveness of less severe sanctions, materiality of the testimony to the outcome of the case, prejudice to the other party caused by the testimony, and evidence of bad faith in the violation of the discovery rules. United States ex rel. Enoch v. Hartigan (1985), 768 F.2d 161.

Defendant contends that the preclusion of relevant defense testimony is too harsh a sanction where there is no evidence that defense counsel willfully violated discovery rules in order to obtain a tactical advantage. The State counters that there is more than sufficient evidence of willful behavior designed to obtain a tactical advantage. Furthermore, the State argues that eight days would be insufficient time to investigate Zeldes’ background, potential bias, and qualifications while simultaneously reworking its entire trial strategy. We need not address these arguments, since we find that defendant’s refusal of an offer to continue the trial to a later date effectively waived this issue for purposes of review.

The Supreme Court in Taylor acknowledged that a sanction less drastic than evidence preclusion is always available. “Prejudice to the prosecution could be minimized by granting a continuance or a mistrial to provide time for further investigation ***.” (Taylor, 484 U.S. at 413, 98 L. Ed. 2d at 813, 108 S. Ct. at 655.) The trial court offered a continuance of approximately two months and, after consulting with defendant, the offer was refused. Defendant cannot be permitted to complain of an alleged error which was invited by his behavior and preserved through his rejection of the only reasonable solution. See People v. Moore (1988), 178 Ill. App. 3d 531, 533 N.E.2d 463.

Defendant argues the court gave no assurance that the expert would be allowed to testify, even if the continuance was requested. Furthermore, he argues that the court gave no assurance that the continuance would be granted if it was requested. Appellate counsel is ignoring the clear interpretation of the evidence as shown by the transcript quoted above. No other reasonable interpretation can be given to this discussion but that defendant was offered the use of Dr. Zeldes’ testimony in exchange for a continuance. The fact that the continuance would delay the trial until January did not prevent waiver. Defendant’s claim that the trial court might have refused to grant the continuance, after suggesting that counsel should request one, is unconvincing.

Alternatively, defendant argues that he was never admonished that his decision to proceed to trial on the scheduled date effectively waived his right to present a witness in his defense. Consistent with waivers in other sixth amendment contexts, defendant contends that the court is required to determine whether defendant knowingly, intentionally, and voluntarily relinquished his constitutional right to compulsory process and to present witnesses in his defense. In support, defendant cites Faretta v. California (1975), 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525, and Patterson v. Illinois (1988), 487 U.S. 285, 101 L. Ed. 2d 261, 108 S. Ct. 2389. Both cases involve waiver of the sixth amendment right to counsel. We find no support in these cases for defendant’s argument.

Next, defendant claims the court committed reversible error in allowing the State to present testimony that defendant purchased cocaine in Chicago shortly after the death of his father. At trial, William Craig Elliott testified that defendant was involved in a $3,000 purchase of cocaine on April 9 and 10, 1991, three days after his father’s death. The State maintains that evidence of the cocaine purchase tended to establish a motive for the murder. Defendant claims there was insufficient evidence to establish the cocaine purchase as motive and that proof of defendant’s need for money could have been established without reference to the actual cocaine purchase. Accordingly, the evidence is claimed to have been grossly prejudicial and should have been excluded.

The State theorized that defendant had a poor relationship with his father and killed him, in part, to support his cocaine habit. The State presented evidence that defendant had a $100-per-day cocaine habit. One month prior to the murder, defendant became involved in a fight with his father at the tavern. His father had also kicked him out of the family residence. A police investigator testified that defendant told him that he owed his father $350 and was trying to avoid seeing him. This conflicts with defendant’s testimony that he worked at his father’s tavern the night before his murder and was also scheduled to work the following day. Evidence also established that defendant was an unemployed laborer who tended bar on a part-time basis. He had no checking or savings account. On the morning of the day before the murder, defendant borrowed $50 from his mother.

When police arrived at the scene of the crime, the door to the safe was open with no money inside. Evidence was heard that as much as $900 could have been taken in during the previous day’s business. Two hundred and forty dollars in small bills were left in the cash register. No evidence established the actual amount in the safe on that day.

Over defense counsel’s objection, William Elliott testified that on April 9, 1991, defendant told him he had approximately $5,000 and wanted to go to Chicago to buy cocaine. Defendant allegedly purchased four ounces of cocaine for $3,000 and then returned to Bloomington with Elliott. The jury was properly instructed to consider evidence of the cocaine purchase solely in terms of the issues of intent and motive. Defendant denied these allegations, claiming that he had never met Elliott, and never possessed $5,000 in cash nor purchased any cocaine with Elliott.

The State then produced evidence that a few weeks later defendant sold his family’s lawn mower for $500. The lawn mower was later reported stolen by his brother and mother. Defendant also sold his car. Between the time of his father’s death and the time he was arrested, defendant cashed checks from his mother totalling nearly $5,000.

Defendant claims there is no direct link between his alleged purchase of cocaine shortly after his father’s death and his alleged motive for murdering him a week earlier. Defendant testified that he never had a drug problem until after his father died. A few weeks after his father’s death, he admitted himself into a drug rehabilitation center.

Defendant points out three inconsistencies in the murder-for-drug-money theory: (1) no one knew how much, if any, money was in the safe; (2) there was no explanation for the $240 left in the cash register; and (3) no evidence that he knew how to open the safe. Defendant sees the alleged purchase of cocaine as separate and distinct from the charge of murder. Furthermore, defendant claims that evidence of his possession of a large sum of cash could have been accomplished without mentioning that the money was used to purchase cocaine.

The State’s theory of defendant’s motive is comprised of two elements. First, he needed money to satisfy his cocaine habit. Since he had worked part-time in the family-owned tavern before, he would know that a large sum of money would be on hand at the close of business late Friday night. Second, the State sought to establish that defendant had a much closer relationship with his mother and would be able to get money from her to satisfy his cocaine habit much more easily if his father was out of the way. The significance of the evidence showing that he received large amounts of money from his mother and sold several items after the homicide is unclear, the State argues, without the drug sale and drug use providing the necessary attitude of desperation required to kill his own father.

Evidence of other crimes is admissible if it is relevant for any purpose other than to show the defendant’s propensity to commit a criminal offense. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 824.) Generally, while any evidence which tends to show that an accused had a motive for committing murder is relevant, to be competent, it must, at least to a slight degree, tend to establish the existence of the motive relied on. (People v. Stewart (1984), 105 Ill. 2d 22, 56, 473 N.E.2d 840, 857.)

“The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court’s decision may not be overturned on appeal absent a clear abuse of discretion. [Citations.] Such an abuse of discretion will be found only where the trial court’s decision is ‘ “arbitrary, fanciful or unreasonable” ’ or ‘ “where no reasonable man would take the view adopted by the trial court.” ’ ” (People v. Illgen (1991), 145 Ill. 2d 353, 364, 583 N.E.2d 515, 519, quoting People v. M.D. (1984), 101 Ill. 2d 73, 90, 461 N.E.2d 367, 375, quoting Peek v. United States (9th Cir. 1963), 321 F.2d 934, 942.)

Evidence of a defendant’s uncharged misconduct undermines the presumption of innocence. (People v. Hendricks (1990), 137 Ill. 2d 31, 52, 560 N.E.2d 611, 620.) But motive, although not an element of murder, may be a material factor in establishing guilt, particularly when the only evidence is circumstantial. In some circumstances “it is possible for the State to offer evidence tending to establish a defendant’s motivation even though it involves the potential of disclosing a defendant’s prior immoral or improper conduct.” (Hendricks, 137 Ill. 2d at 53, 560 N.E.2d at 621.) We find no abuse of discretion in the admission of William Elliott’s testimony.

Next, defendant claims the court committed reversible error in excluding the testimony of Robert McElvaney and Detective Richard Davis which tended to show that another person committed the offense with which defendant was charged and of which he was convicted. Following the State’s objection, defendant was allowed to make an offer of proof to determine whether the jury would be allowed to hear the testimony of McElvaney and Davis. The following facts were elicited.

The night before Bill Whalen’s murder, Robert McElvaney was at the Twenty Grand Tap drinking Pabst Blue Ribbon beer. As a result of a confrontation between McElvaney and two other customers, the decedent asked McElvaney to leave the tavern. McElvaney was a friend of the victim, and he left without argument. No evidence was presented that any force was used to eject him from the tavern. This was not the first time he had been asked to leave and, when asked if he was upset with the decedent, he replied that he was not. Before leaving, he told Bill Whalen that he would see him again the next day.

Upon learning of McElvaney’s ejection from the tavern the night before, two detectives went to McElvaney’s residence at 7 a.m. on the day of the murder. McElvaney was fully dressed, except for being barefoot, and the detectives found this unusual based on their prior contacts with him. After telling McElvaney there had been a disturbance at the Twenty Grand Tap, McElvaney stated that, “I wouldn’t hurt Bill Whalen. Bill Whalen is my buddy. What did I do?” Defendant stresses the fact that at the time the statement was made, no news reports had been released concerning Whalen’s murder. Also noted is the fact that a number of empty beer cans were found at the crime scene, and one of them was a Pabst Blue Ribbon can. The trial court barred the evidence on grounds that there was no evidence of animosity between McElvaney and the deceased. Defendant contends that his constitutional right to present witnesses in his defense has been violated.

A defendant may prove any fact or circumstance tending to show that the crime was committed by a person other than himself, but that right is not without limitations. (People v. Nitti (1924), 312 Ill. 73, 90, 143 N.E. 448, 454; People v. Enis (1990), 139 Ill. 2d 264, 281, 564 N.E.2d 1155, 1161.) A trial court may reject offered evidence on grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty, or if it is speculative in nature. (Enis, 139 Ill. 2d at 281, 564 N.E.2d at 1161; People v. Howard (1991), 147 Ill. 2d 103, 143, 588 N.E.2d 1044, 1060.) The trial judge has a wide scope of discretion in ruling on issues of relevancy and materiality and its ruling should not be reversed absent a clear showing of abuse of that discretion. Enis, 139 Ill. 2d at 281, 564 N.E.2d at 1161; People v. King (1978), 61 Ill. App. 3d 49, 55, 377 N.E.2d 856, 860.

The State argues persuasively that McElvaney’s testimony would provide nothing more than a possible motive for committing the murder. People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733, is cited for the principle that evidence of possible motive, without more, is insufficient to require admission of the evidence.

In Columbo, defendant subpoenaed two business acquaintances of the victim in an effort to show that they harbored animosity toward him and, therefore, had motive to murder him. Both witnesses were questioned outside the presence of the jury, and both indicated that, if called to testify, they would invoke their privileges under the fifth amendment. Defense counsel requested the court’s permission to ask the questions before a jury anyway, but the court refused. On appeal, the trial court’s refusal to allow testimony regarding the witnesses’ relationships with the decedent was upheld. The evidence was found to be purely speculative and lacking the requisite specificity required by law so as to ensure that extraneous and irrelevant matters are excluded from the jury.

In support, the Columbo decision cited People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, where the trial court refused to allow testimony of a witness who had threatened the murder victim. The witness, James Basford, testified outside the presence of the jury that several months prior to the murder he had fired a blank cartridge in the direction of the victim, burning his jacket. Three months before the murder, he told the victim that he should have his “block knocked off.” (Dukett, 56 Ill. 2d at 448, 308 N.E.2d at 599.) When someone asked him whether he committed the murder, he told the person that he did not know if he did or not. This was later explained as a smart remark. The chief of police also testified outside the presence of the jury that Basford had inquired about developments in the case on three or four occasions, asking whether he had been cleared of suspicion.

The supreme court found the evidence was properly excluded, as it merely showed that Basford disliked the victim and was concerned that he would be accused of the crime. As such, evidence of this possible motive, without more, was held to be entirely speculative.

In Howard, defendant was denied the opportunity to question the sole eyewitness to a murder on the question of whether she was involved in a romantic relationship with the victim. According to statements of counsel at the hearing on the State’s motion in limine, both the witness and the victim were married at the time of the murder. Defense counsel represented that the police had initially investigated the case as a family-related homicide and had questioned the witness’ husband and given him a lie detector test. Defendant asserted that evidence that the witness was romantically involved with the victim suggested that the witness’ husband, or the victim’s wife, had motive to commit the murder. Additionally, the love affair provided motive for the witness to misidentify the actual offender.

The supreme court found no error in the trial court’s exclusion of evidence on the subject of her marriage and the nature of her relationship with the decedent. Evidence of a possible motive, without evidence linking either spouse to the murder, was held to be groundless and based upon speculation.

In the present case, the only evidence linking McElvaney to the crime scene is the fact that one of a number of empty beer cans found at the scene was the same brand that McElvaney drinks. No evidence was presented that McElvaney had ever touched this can, nor is there any evidence of animosity between McElvaney and the deceased. To the contrary, all evidence points to a conclusion that their relationship was amicable. Finally, we are left with McElvaney’s outburst to detectives that he would not hurt Bill Whalen, at a time when he had no reason to know of any injury to the deceased. This evidence is far too uncertain to form the basis for finding that the trial judge abused his discretion in excluding McElvaney’s testimony.

Affirmed.

GREEN, J., concurs.

JUSTICE KNECHT,

concurring in part and dissenting in part:

I agree with the majority opinion it was not an abuse of discretion to admit evidence of defendant’s purchase and use of cocaine. This evidence arguably supported the State’s murder-for-drug-money theory, and the trial judge appropriately exercised his discretion.

Defendant should have the same latitude in presenting evidence to support his theory of the case. Evidence that someone other than the defendant may have committed the offense is relevant and admissible when a close connection is demonstrated between the third person and the commission of the offense. (People v. Maberry (1990), 193 Ill. App. 3d 250, 263, 549 N.E.2d 974, 982; King, 61 Ill. App. 3d at 52, 377 N.E.2d at 859.) It is properly excluded if it is remote or speculative. (Howard, 147 Ill. 2d at 143, 588 N.E.2d at 1060; People v. Ward (1984), 101 Ill. 2d 443, 455, 463 N.E.2d 696, 702.) Defendant should have been permitted to introduce evidence which allegedly linked a third person to the victim’s murder.

His offer of proof shows a patron of the Twenty Grand Tap was ejected from the tavern just hours before the murder. The victim asked this patron to leave because of a confrontation between the patron and two other customers. While the patron did not argue and did not appear upset, he was ejected.

On the early morning of April 6, just a few hours after the crime was discovered and before any information had been released to the media, two police detectives sought out the patron at his home. When advised there had been trouble at the tavern, the patron responded, “I wouldn’t hurt Bill Whalen. Bill Whalen is my buddy. What did I do?”

Police sought out the patron precisely because he had had a drunken encounter with another customer and had been ejected from the tavern. They found him fully dressed and awake. The detectives thought this was unusual because of what they knew about his habits. The patron then responded in a manner which suggested he knew Bill Whalen had been harmed. This evidence tended to show someone other than defendant committed the murder.

None of the cases cited by the majority address the issue presented here. The offer of proof goes beyond establishing a possible motive for someone else to murder Bill Whalen. The majority infers the patron was not affronted by the ejection because he had been ejected before, and there was an amicable relationship between the patron and the victim. This analysis ignores the fact the patron had been at the scene of the crime just hours before the murder, was ejected from the tavern by the victim, was a regular customer who would know the closing routine, and responded to a police visit by denying he would ever hurt Bill Whalen at a time when only the authorities, and the guilty party or a witness, would know Bill Whalen had been murdered. This interpretation of the evidence, which defendant is entitled to suggest, is not extraneous or irrelevant.

I am confident the State could have presented evidence to undercut this theory on rebuttal, just as the evidence already presented during its case in chief would likely have overcome this theory. The point is, defendant ought to be given the chance to advance the theory, and he was denied that chance.

The importance of this error is enhanced by the exclusion of defendant’s expert witness because of late disclosure. The trial judge carefully considered this issue and even suggested a continuance as a practical solution. The majority relies on the refusal of a continuance as a waiver of the issue. The record suggests defendant was offered the use of Dr. Zelde's testimony in exchange for a continuance, but the issue is not whether we understand the court’s suggestion, but whether defendant understood the offer and its consequences.

The compulsory process clause of the sixth amendment of the United States Constitution ensures a criminal defendant “ ‘the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.’ ” (Taylor, 484 U.S. at 408, 98 L. Ed. 2d at 810, 108 S. Ct. at 652, quoting Pennsylvania v. Ritchie (1987), 480 U.S. 39, 56, 94 L. Ed. 2d 40, 56, 107 S. Ct. 989, 1000.) The majority rejects defendant’s argument that just as waiver of a sixth amendment right to counsel must be made knowingly, intentionally, and voluntarily, waiver of his right to compulsory process and to present witnesses in his defense must be made knowingly, intentionally, and voluntarily.

The right of a defendant to present evidence “stands on no lesser footing than the other Sixth Amendment rights.” (Washington v. Texas (1967), 388 U.S. 14, 18, 18 L. Ed. 2d 1019, 1023, 87 S. Ct. 1920, 1923.) A constitutional protection can be waived only if it is made knowingly and intelligently. People v. Lester (1988), 165 Ill. App. 3d 1056, 1058, 519 N.E.2d 1127, 1129; People v. Jackson (1982), 105 Ill. App. 3d 750, 758, 433 N.E.2d 1385, 1391.

The record does not show defendant understood he was being asked to weigh the right to a prompt trial with the right to present a witness on his behalf. For an issue this important the trial court could and should have explicitly stated to both defendant and his attorney that defendant’s expert would be permitted to testify only if the case were continued; and if the defendant did not agree to a continuance, then the court would not permit his expert to testify. The preclusion of defendant’s expert would have been proper had the court clearly presented the alternatives to defendant and he then elected to proceed to trial and reject a continuance. The alternatives were not clearly presented and this record does not show waiver. If there was no waiver, then defendant’s arguments on the preclusion of his expert witness should be addressed.

The less severe sanction of a continuance was available but was not properly explained to defendant. The likely testimony of the expert would have challenged the reliability of the bloody palm print comparison and was thus material to the outcome of the case. Since the State intended to establish defendant’s presence at the scene by the palm print, a defense expert’s challenge to the reliability of its palm print comparison would not necessitate reworking its entire trial strategy. The trial judge granted the State’s motion to bar the expert’s testimony, but nothing in the record suggests the trial court found that defense counsel wilfully violated the rules of discovery to gain an advantage. Considering these factors, as relied on by the majority citation to Enoch, I believe the preclusion of the defense expert witness was too drastic in these circumstances.

I would reverse and remand for a new trial and accordingly dissent on this issue.