author: JUSTICE McNAMARA

text:
      In re MARRIAGE OF JEAN E. MADOCH, Petitioner-Appellant, and KENNETH J. MADOCH, Respondent-Appellee.
    First District (6th Division)
    No. 1—89—1880
    Opinion filed April 19, 1991.

      Ward P. Fisher, of Chicago, and Albert Koretzky, of DiMonte and Lizak, of Park Ridge, for appellant.
    Linda S. Kagan, of Chicago, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

On October 16, 1984, petitioner, Jean E. Madoch, filed a petition for dissolution of her marriage to respondent, Kenneth Madoch. The trial court’s judgment on July 10, 1989, dissolved the marriage and awarded petitioner a 55% interest and respondent a 45% interest in the marital condominium and in a Merrill Lynch account. The condominium was valued at $114,000, and the Merrill Lynch account at approximately $15,000. The trial court found that respondent’s interests in two bakeries and in certain real estate were nonmarital property. The trial court awarded petitioner, who had since become totally disabled, $500 monthly maintenance. That award was to be reviewed after three years. The parties were ordered to pay their own attorney fees. Petitioner of course does not challenge the judgment of dissolution but appeals from the court’s findings and orders with respect to all of the other findings.

The parties were married on April 23, 1981, and resided as husband and wife until May 1984, at which time respondent vacated the marital home. At the time the complaint was filed, petitioner was 49 years old, and respondent was 37 years old. No children were born of the marriage. During the marriage, the parties purchased a condominium located at 3200 Lake Shore Drive, Chicago, at a cost of $105,000 (consisting of $24,000 of petitioner’s money accumulated prior to the marriage; a $50,000 gift from respondent’s parents; $23,285 from the sale of respondent’s former residence from a previous marriage, and the remainder from the joint checking account of the parties). Petitioner testified and the trial court found that the $50,000 received from respondent’s parents was a gift to both parties.

At the time of trial, respondent had taken an unpaid leave of absence from his position as a supervisor of the official court reporters in Cook County. Respondent’s earnings from that position were approximately $45,000 per year. In addition, respondent earned approximately $3,000 in 1988 for transcribing grand jury transcripts. Respondent currently manages Heck’s Bakery, a business in which he holds a one-third ownership interest. Conflicting testimony exists, as set forth below, concerning the amount of income generated to respondent from Heck’s Bakery.

Petitioner was also employed as an official court reporter from 1970 through October 31, 1987. In November 1987, petitioner was diagnosed with cancer. Petitioner’s treating physician, Dr. A1 Bowen Benson III, opined that petitioner’s condition is incurable. Dr. Benson stated that as a result of her therapy, petitioner experienced severe fatigue as well as additional side effects that would prevent her from working as a court reporter. Petitioner testified that she is unable to work because she is very weak and in pain at times.

Petitioner received her previous salary of $36,000 for the first year during her medical leave of absence. Petitioner currently draws $1,500 per month as disability income from social security and the State of Illinois. Petitioner’s affidavit indicated that she incurred monthly living expenses in the amount of $1,685 for the previous year. At trial, petitioner estimated her average expenses to be approximately $2,000 per month.

Respondent’s interest in two bakeries was among the centrally contested issues, especially as to whether the interest constituted marital property. Petitioner filed a motion in limine arguing that respondent made a judicial admission in the pleadings that he acquired an interest in both bakeries during the marriage; therefore, he should be precluded from introducing any evidence contradicting that admission. The trial court denied petitioner’s motion and allowed respondent to amend his initial response to show that he had no interest in Augusta Bakery, and that he acquired an interest in Heck’s Bakery as a gift from his father.

The record reveals that respondent’s father, Leonard Madoch, purchased a 50% interest in Augusta Bakery in 1972 and obtained the remaining interest in 1976. Heck’s Bakery, along with the real property located at 2038 W. Roscoe Street, Chicago, was obtained by respondent and his two brothers, Lawrence and Robert Madoch, on January 3,1984 (during the course of the marriage).

At trial, petitioner called respondent’s brother, Lawrence, as an adverse witness. Lawrence testified that Heck’s Bakery and the real estate were purchased for approximately $130,000. Respondent, Lawrence and Robert became shareholders in Heck’s Bakery, but none of them used any of their personal funds for the purchase; instead the money was drawn from the Cosmopolitan National Bank custodial account funded by their parents. Respondent and Lawrence later entered into a loan agreement with Wells Fargo Credit Corporation for equity mortgage financing in the amount of $75,000 for working capital and expansion of the business.

Lawrence stated that his father retained 20% of the Augusta Bakery shares, and the remaining stock was split among his 12 grandchildren. Augusta Bakery was rated “Triple A” by Dun and Bradstreet and it was a “money maker.” Augusta Bakery was dissolved after failing to pay the annual filing fee, and that property has since been sold for delinquent taxes. Augusta Bakery is also currently known as “Heck’s Bakery.” According to Lawrence, after the purchase of Heck’s Bakery, both businesses and the bread routes were consolidated in Heck’s Bakery and operated as one trade name.

Lawrence further testified that respondent received a weekly check for $30 from 1982 through 1986 from Augusta Bakery, and varying amounts of cash ranging from $100 to $350 per week during that same period. Respondent received no cash or checks from either bakery in 1987 or 1988 because of a lack of operating capital in the business due to a union strike and a cash shortage. According to Federal income tax returns, the two bakeries had a combined income of over $70,000 in 1987.

Lawrence stated at a previous deposition that respondent would receive a salary for currently working at the bakery equal to what he had earned as a court reporter (approximately $45,000) after taking over the bakery management in September 1988. Lawrence testified at trial that respondent had not received a salary for working in the bakery during the past three months in order not to deplete working capital.

Robert Madoch, respondent’s brother, also testified as an adverse witness. Robert stated that he managed the bakery until September 1988, at which time he quit and respondent became manager. (After his own dissolution of marriage, Robert retained his ownership interest in both bakeries.) Robert considered himself, Lawrence and respondent to be the owners of Augusta Bakery, and he acquired his interest in 1984 from his father. Although he never saw the actual stock, Robert believed there was supposed to be 25% of the stock in his children’s names, and that his brothers acquired their interests from his father in the same manner for their children. According to Robert, checks for $20,000 representing the profits from Augusta Bakery were written, but they were never cashed and remain in a safe at the bakery. Robert was not aware that Augusta Bakery had been dissolved or that the bakeries had been consolidated.

Robert testified that he acquired his interest in Heck’s Bakery along with his brothers, and the money to purchase the bakery was drawn from the Cosmopolitan Bank account funded by his father. In the Heck’s Bakery annual report for the year 1984, Lawrence is listed as president, respondent was secretary and Robert as treasurer; the three brothers are also listed as its directors.

Robert testified that respondent received weekly checks in the amount of $30 from the bakery and $300 cash per week, but he could not remember the period of time during which the payments began or ceased.

Leonard Madoch, respondent’s father, testified as an adverse witness that he was the owner of Augusta Bakery at all times, and that the profits were directed toward his grandchildren. Leonard intended to distribute his interest in the bakery among the grandchildren, with his sons acting as overseers. Leonard testified that he purchased Heck’s Bakery with his profit sharing money and gave it to his sons.

Respondent testified as an adverse witness that he did not inherit any interest in Augusta Bakery. He did have an ownership interest in Heck’s Bakery, but he did not invest any of his own money toward its purchase.

Respondent testified in his own behalf that the $50,000 used for the purchase of the condominium was a loan from his father without interest for which he had signed a demand note, but that it later became a gift to him. Respondent further testified that while he did pay certain bills from bakery funds, he took no actual income. Respondent did receive checks from the bakery for a number of years, but they were payable to his son by his first marriage and were reported on his income tax returns.

The trial court concluded that respondent’s interests in the bakery entities were nonmarital property. The court determined that respondent met his burden of proof primarily through the adverse testimony produced by petitioner. The court relied upon the fact that respondent’s father first purchased a 50% interest in Augusta Bakery in 1972 and later increased his holdings to 100%. The judge acknowledged that the testimony of Lawrence conflicted with that of Robert, Leonard and respondent, especially with respect to distribution of earnings and the actual ownership of the various interests. However, the judge found that respondent’s interests were sufficiently segregated so as to be classified as respondent’s nonmarital property. Having so decided, the judge did not consider the valuation of those business interests.

After considering petitioner’s total disability and the fact that she occupied the condominium exclusively since respondent vacated the premises, the trial court awarded her 55% of the marital home, which had a total value of $114,000, and allowed her 90 days to arrange financing to purchase respondent’s remaining 45% interest. If petitioner chose not to purchase the condominium, respondent was extended an equal period of time to buy her 55% interest. Although respondent maintained that the $50,000 obtained from his father was merely a loan, the judge disregarded that argument as there was no indication that these funds were meant to be segregated; rather, the judge found there was a donative intent from respondent’s father to both parties.

The Merrill Lynch account held by the parties in the approximate amount of $15,000 was distributed 55% to petitioner and 45% to respondent. The court awarded petitioner her individual retirement account worth approximately $20,000, while respondent was awarded the individual retirement account held in his name valued at $12,000. Petitioner was awarded her personal property and all furnishings in the condominium. Respondent was awarded his personal property and a 1981 Oldsmobile automobile. Each party received the existing value of his or her pension rights, and each was ordered to pay his or her respective attorney fees.

Although respondent appeared to have no source of income because he had taken a leave of absence from his position as a court reporter, the court determined that conflicting testimony existed concerning the salary he received from the two bakeries. The court found that respondent was well able to produce income in the range of $40,000 to $45,000 per year versus the income of petitioner in the amount of $1,500 per month. The court concluded that an award of maintenance was proper, in view of the fact that the parties lived together for approximately three years and the marriage itself was in existence for almost eight years. After considering the lifestyle previously enjoyed by the parties evidenced by their income tax returns, the court awarded petitioner $500 monthly maintenance for a period of 36 months, reviewable in three years.

On appeal, petitioner contends that the trial court erred in finding that respondent’s bakery and real estate interests were nonmarital property. Petitioner further argues that the trial court’s 55% distribution to her of the condominium and assets in the Merrill Lynch account was inequitable in light of the significant amount of money she contributed toward their purchase and her subsequent disability. Petitioner also argues that the maintenance award of $500 was inadequate and that the trial court should have ordered respondent to pay her attorney fees.

Under the Illinois Marriage and Dissolution of Marriage Act, the trial court is first required to divide the parties’ property into marital and nonmarital property. Nonmarital property includes property acquired by gift, legacy or descent. Next, each spouse is assigned his own nonmarital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503.) All property acquired during the marriage is presumed to be marital property unless the presumption is overcome by a showing that it falls within one of the statutory exceptions. The party claiming that the property is nonmarital has the burden of proof. In re Marriage of Schriner (1980), 88 Ill. App. 3d 380, 410 N.E.2d 572, citing In re Marriage of Amato (1980), 80 Ill. App. 3d 395, 399 N.E.2d 1018.

Initially, we reject petitioner’s argument that respondent made a binding judicial admission in his verified answer thereby foreclosing him from presenting certain evidence relative to the claimed nonmarital property.

In her petition for dissolution filed on October 26, 1984, petitioner alleged that the parties acquired marital property including an interest in both bakeries. Respondent’s answer, filed December 10, 1984, did not deny that he had acquired the interest subsequent to the marriage, but stated that the interest was acquired by legacy or descent. Nearly five years later, petitioner filed a motion in limine asking that respondent be restricted from offering any evidence other than that he acquired the interest by inheritance. Petitioner stated that she did not wish to be taken by surprise at trial by other proof of the manner of acquisition of the property. Respondent filed a response to the motion in limine pointing out that he had denied in his answer that the bakery interest was marital property. He asserted that in the course of these proceedings he had been required to give three depositions. With regard to the bakeries, he had consistently stated that his interest, if any, was acquired by gift. Therefore, there could be no surprise to petitioner. He asked in his response and was granted leave by the court to amend his original answer so as to show that while any interest in the bakeries was nonmarital, it was not inherited. There is no indication in the record that an amended answer was filed. In May 1989, the trial court denied petitioner’s motion in limine.

Notwithstanding the absence of an amended answer in the record, we hold that the trial court acted well within its discretion in denying petitioner’s motion in limine. Respondent had denied that the bakeries constituted marital property. The issue had been explored by the parties for several years. It is clear that petitioner was not and could not be surprised by respondent’s claim that as to any interest he possessed in the bakeries he had acquired by gift. Indeed, we believe that it would have been an abuse of discretion to deny respondent the opportunity to present a valid defense. See Madison Associates v. Bass (1987), 158 Ill. App. 3d 526, 511 N.E.2d 690.

We also find that the trial court had ample evidence to conclude that respondent met his burden of proving that his interest in the bakeries was nonmarital property acquired by gift from his father. It is undisputed that respondent’s father initially purchased his interest in Augusta Bakery in 1972 and the remaining interest in that enterprise in 1976. Robert, Lawrence and respondent all testified consistently that Heck’s Bakery was purchased with funds from a bank account funded by their father, and that none of them invested any of their personal funds towards its purchase. Lawrence and respondent later entered into a business loan agreement with a credit corporation for equity financing. Petitioner was not a party to that loan transaction, nor was any evidence presented that she took part in any of the business activities or operations of the bakeries.

While we agree with the trial judge that the adverse testimony of Robert, Leonard and Lawrence was inconsistent with respect to income derived from the bakeries and actual ownership, we find that sufficient evidence existed to show that respondent’s interest in these business entities constituted nonmarital property acquired by gift.

Next, we consider petitioner’s contention that the trial court erred in awarding her 55% of the marital property and 45% to respondent. Section 503(d) of the Act directs the court to divide the parties’ property in just proportions. (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).) An equitable award, however, does not require that the marital estate be divided equally. (In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459, citing In re Marriage of Randall (1987), 157 Ill. App. 3d 892, 510 N.E.2d 1153.) The trial court’s distribution of marital property rests within its sound discretion and will not be disturbed on review absent an abuse of that discretion. (In re Marriage of Heller (1987), 153 Ill. App. 3d 224, 505 N.E.2d 1294.) An abuse of discretion occurs only when no reasonable person would take the view adopted by the trial court. In re Marriage of Harding, 189 Ill. App. 3d 663, 545 N.E.2d 459, citing In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267.

Under section 503(d), a court may consider the following factors when apportioning property: each spouse’s contribution to or dissipation of the marital property; the value of the property set apart to each spouse; the duration of the marriage; the relative economic circumstances of the parties; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; the custodial provisions for any children; whether the apportionment is in lieu of or in addition to maintenance; the opportunity of each spouse for acquisition of capital assets and income; and the tax consequences of the property divison upon the respective economic circumstances of the parties. Ill. Rev. Stat. 1987, ch. 40, par. 503(d).

Upon review of these statutory guidelines and the conflicting testimony presented by Lawrence, Robert, Leonard and respondent (acknowledged by the trial judge) pertaining to respondent’s interests and income from the bakeries, we find that the trial court failed to distribute the marital assets in just proportions. While the trial judge did not consider the value of respondent’s interests in the bakeries because he determined that they were nonmarital property, we find that respondent has the ability to generate significant future income from the value of that property set apart to him. In contrast, petitioner’s total disability as the result of illness precludes her from returning to her former occupation as a court reporter, thereby limiting her employability and sources of income. Accordingly, we hold that the trial court abused its discretion in granting petitioner only 55% of the marital property, while granting respondent 45%. Those assets consisted of a condominium valued at $114,000, and a $15,000 Merrill Lynch account. Ordinarily, we would remand the matter to the trial court to reexamine its distribution. However, in the present case, the record contains sufficient facts to enable us to order a redistribution. Consequently, we direct that petitioner’s share in the condominium and Merrill Lynch account be increased from 55% to 75%, and respondent’s share be decreased from 45% to 25%.

Petitioner also contends that the trial .court’s award of $500 monthly maintenance is inadequate in view of her total disability. Section 504(a) of the Act provides that a court may grant maintenance only if it finds that the spouse seeking maintenance lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; is unable to support herself through appropriate employment; or is otherwise without sufficient income. (Ill. Rev. Stat. 1987, ch. 40, par. 504(a).) Maintenance is to be awarded in such amounts and for such periods of time as the court deems just, after consideration of various factors, including the following: the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; the standard of living established during the marriage; the age and the physical and emotional condition of both parties; and the ability of the. spouse from whom maintenance is sought to meet his or her needs while meeting those of the spouse seeking maintenance. (Ill. Rev. Stat. 1987, ch. 40, par. 504(a).) An award of maintenance will not be overturned absent an abuse of discretion by the trial court. In re Marriage of Heller, 153 Ill. App. 3d 224, 505 N.E.2d 1294.

In this case, we find that the monthly maintenance awarded by the court was not an abuse of its discretion. Petitioner testified that her monthly expenses total $2,000, and that she receives $1,500 per month as disability income. In consideration of the trial court’s award of $500 as monthly maintenance, we conclude that petitioner has adequate resources available to meet her monthly expenses. We also note that after three years from entry of the award it is subject to review by the court; at which time, depending upon the circumstances, the award could be continued or even increased.

Lastly, petitioner contends that the court improperly denied her request for attorney fees. Section 508 of the Act provides that the court may order either spouse to pay attorney fees incurred by the other spouse after it considers the financial resources of the parties. (Ill. Rev. Stat. 1987, ch. 40, par. 508.) After considering the property distributed to petitioner, the court found that each party should be responsible for payment of his or her own attorney fees. The petitioner has not demonstrated an inability to pay her own attorney fees, and we uphold that ruling. It must also be pointed out that in this court and in at least part of the trial court proceedings, petitioner has been represented by her brother.

For the reasons stated, the judgment of dissolution is affirmed. The order of the circuit court of Cook County finding that respondent’s interests in the businesses and the real estate at 2038 W. Roscoe Street were nonmarital property is also affirmed. The order granting 55% of the marital property to petitioner is increased to 75% distribution, and respondent’s portion of the marital assets is decreased from 45% to 25%. The orders granting monthly maintenance of $500 to petitioner and holding each party responsible for payment of his or her own attorney fees are affirmed.

Judgment affirmed in part; modified in part and remanded with directions.

RAKOWSKI, P.J., and LaPORTA, J., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE RAKOWSKI

license: Public Domain

text:
      In re MARRIAGE OF DOLORES ROMASHKO, Petitioner-Appellee, and NICHOLAS ROMASHKO, Respondent-Appellant.
    First District (6th Division)
    No. 1—89—3531
    Opinion filed April 19, 1991.

      Mary Ellen Dienes, of Chicago, for appellant.
    Springer, Casey, Dienstag & Devitt, P.C., Norman Becker and Selwyn Blum, all of Chicago (Gary Dienstag, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

The action below was one for the dissolution of a 23-year marriage between petitioner-appellee Dolores Romashko (Dolores) and respondent-appellant Nicholas Romashko (Nicholas). Nicholas and his attorney failed to appear at trial, and judgment for dissolution of marriage was entered against Nicholas after an ex parte hearing. Within 30 days of the entry of judgment, Nicholas filed a motion to vacate the entry of judgment. The trial court denied this motion except with respect to one issue involving whether Nicholas’ credit union account was a marital property. A hearing on this matter was subsequently had. The trial judge then affirmed her earlier finding that the credit union account was in fact a marital property. Nicholas appeals the entry of judgment, requesting that this court reverse the entry of judgment, remand the matter for a new trial and classify the credit union account as nonmarital property. We reverse and remand the matter, while leaving the trial court’s finding on the credit union account intact.

The pertinent facts to this appeal are as follows. Dolores filed her petition for dissolution of marriage against Nicholas in February of 1986. On October 14, 1987, Judge Gustafson entered an order setting the case for trial on January 7, 1988, before Judge McNulty. The order provided that emergency motions for continuance of trial, supported by affidavit, must be presented at least 48 hours prior to trial.

On the date of trial, Dolores and her counsel appeared, but neither Nicholas nor his counsel, James Reagan, appeared. Dolores’ counsel informed the court that Reagan had called him and asked him to continue the case, which Dolores’ counsel could not agree to. The reason Reagan needed the case continued was because Reagan had an emergency matter in another case before the appellate court in Elgin, Illinois. The trial judge, noting the failure to provide the two days’ notice required by the order setting the matter for trial, ruled that she would not grant a continuance and proceeded to trial.

At the trial, Dolores testified that she and Nicholas were married in 1965 and have two children, Nicolette, who was a college student at the time of trial, and Todd, who was a high school senior at the time of trial. Dolores testified that Nicholas engaged in mental and physical cruelty during their marriage, without any cause on her part. Dolores and Nicholas own a residence in Morton Grove in joint tenancy, which is worth about $95,000 and has an outstanding mortgage of about $5,000. Dolores’ mother had loaned the couple $5,000 to buy the property — $3,000 of which was still owed.

Dolores, who was employed during the marriage and contributed money toward maintaining the home, further testified regarding a PaceSetter Federal Credit Union account. Nicholas, according to Dolores, had $25,088.77 in this account and these funds had been acquired during the marriage. The funds were no longer in the account at the time of trial, however. Dolores testified that Nicholas had cashed a life insurance policy which was paid from funds acquired during the marriage. Nicholas received $3,100 from the policy. Dolores drove a 1979 Dodge St. Regis, while Nicholas drove a 1981 Chevrolet truck. Dolores waived maintenance, and during the course of the trial Dolores’ attorney advised the court that Nicholas earned $7 an hour as a maintenance person for United Airlines.

The trial court then made the following oral ruling: that grounds existed to dissolve the marriage; that each party should receive 50% of the proceeds from the sale of the house; that Dolores should receive, from Nicholas’ share of the proceeds from the sale of the house, 50% of what had been in the credit union account, 50% of the $3,000 owed to Dolores’ mother, and 50% of the $3,100 insurance policy proceeds; and that Dolores was entitled to the Dodge automobile and 50% of the furniture and furnishings from the house. No written order was entered.

On January 21, 1988, 14 days after the ex parte hearing, Nicholas filed a written motion to vacate. Nicholas’ attorney, Reagan, also filed an affidavit which stated that he was unable to be at the trial because the day before the trial he became aware that he would need to present an emergency motion to consolidate appeals in another case he was handling before the Second District Appellate Court in Elgin. Reagan averred that he had tried to reach Dolores’ attorney to inform him of the need for a continuance the day before the trial in the instant matter, but Dolores’ attorney was not in the office. The morning of the trial Reagan did contact Dolores’ attorney, and at this time was informed that though the trial judge would be informed of Reagan’s predicament, Dolores’ counsel could not agree to have the trial continued. While the motion was brought as an emergency matter, the trial judge indicated that the motion should be brought on the court’s regular call, and Nicholas did not receive a hearing on the motion until June 13, 1988. At this time, Reagan argued that the ex parte rulings should be vacated because Nicholas had a meritorious defense and Dolores had concealed some of her assets from the court. The trial judge indicated that the only issue before her was whether there was a good reason for Nicholas’ failure to attend the trial, and eventually ruled that such a reason did not exist.

The trial judge ruled that the judgment for dissolution of marriage was to be entered, and judgment was in fact entered. Next, on July 11, 1988, Nicholas filed a written motion to vacate the judgment. In this motion, Nicholas argued that Dolores had failed to inform the court about certain marital assets within her control. Dolores had, at her deposition, testified that she had a vested pension in the amount of $24,000, personal bank accounts, a life insurance policy and additional policies on the children’s lives, and savings bonds. Nicholas further argued that the money in the PaceSetter account had been his own, nonmarital funds, as opposed to a marital asset. The trial court denied the motion to vacate the judgment, excepting that the court ordered a hearing on the issue of whether the PaceSetter account was a marital asset or not.

On March 14, 1989, a hearing was conducted to determine if the PaceSetter account was a marital asset or not. Nicholas testified that when he was a teenager, he worked stripping down machines, and that during this time he saved about $4,000. He kept this money at his home. From 1959-1963, Nicholas served in the United States Navy. During this time he saved about $12,000, which he also kept in cash at his mother’s home. In 1961, Nicholas married Barbara Meyers. The wedding was paid for by the parents of the bride and groom. Nicholas and his first wife received $7,000 in wedding gifts, which, again,. he kept at his parents’ house. Nicholas was divorced from his first wife in 1964, but he kept the wedding gift money.

After he left the service, Nicholas further testified, he lived with his parents for two years, during which time his parents supported him — paying for his meals and vacations. He worked as a lithographer during this time, and also as a hobby made two boats, which he sold for $1,200 and $800, respectively. He also sold a motorcycle for $1,800 during this time.

On July 10, 1965, Nicholas married Dolores. At the time of the marriage, Dolores had no knowledge of the cash he had accumulated before the marriage. About a year into the marriage, Nicholas brought the cash to the couple’s apartment, and at this point in time Dolores did have knowledge of the funds. Later, he returned the cash to his parents’ house again. After they moved, however, the money (amounting to about $25,000) was placed in a certificate of deposit (CD) in the First Bank of Morton Grove. He and Dolores both had signature cards for the CD. The account read: “Nicolette and Todd, minor, by Dolores or Nicholas Romashko.”

When the CD matured in October of 1982, Nicholas placed the money in the PaceSetter account at his place of employment, A.B. Dick Company. The money in this CD was in the name of Nicholas and Dolores with Nicolette and Todd again listed. When the funds from the Pace Setter account matured, Nicholas deposited the funds into an account at Skokie Federal Savings and Loan Association. This was April of 1985, and at this time the couple was having marital difficulties. Dolores was told that the funds were deposited at Skokie Federal.

On August 31, 1985, Nicholas testified, he withdrew the funds from Skokie Federal. The money was placed in a safe in the basement of the couple’s home. Dolores was aware of this, and she knew the combination to the safe. Nicholas allocated the money for family expenses and some of it ($450) was used to purchase a washing machine. Substantial portions of it were used to repay loans Nicholas had taken from individuals in recent years. $4,800 was repaid to Bud Pulack, $2,400 was repaid to Nicholas’ sister, and $2,500 was repaid to Nicholas’ mother. Nicholas further used $1,300 to repay attorney fees he owed. In late September 1986, after the dissolution proceedings had been filed, Nicholas took what was left, $9,000, and spent the money in Las Vegas. He returned from the trip with only a few hundred dollars. After September of 1986, there was no money left from the original $25,000 that he had.

Dolores also testified at the hearing. She testified that during her marriage to Nicholas, for a couple of years, he supplemented his income by processing negatives in a darkroom in the basement. Eventually, he sold the business and the equipment. Though she did the billing for him, she did not know how much money was involved.

She worked during the marriage except for about 21k years. Sometimes she worked part time and sometimes she worked full time. She and Nicholas had a joint checking account until they separated in April of 1986. In 1985, Dolores had her own checking account, and she used the money she earned for household expenses and to support the children. Dolores was never made-aware of Nicholas’ indebtedness to his mother, sister, or Bud Pulack. Nicholas never told her that he had accumulated large sums of money before marrying her.

After hearing the testimony of both Dolores and Nicholas, the trial court ruled that the PaceSetter account money was in fact a marital asset, and the prior disposition of the property was reinstated.

The first issue we address is whether the trial court erred in denying Nicholas’ second, July 11, 1988, motion to vacate the judgment for dissolution of marriage. Unnecessary to the disposition of this appeal are the questions of whether the trial court properly refused to grant Nicholas a continuance at the ex parte trial or whether Nicholas’ first motion to vacate should have been granted. Additionally, we wish to make clear that Nicholas does not challenge the trial court’s ruling that there were valid grounds to dissolve the marriage, and our holding in no way addresses that determination.

The motion was brought under section 2 — 1301(e) of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1301(e)), which provides: “The court may in its discretion, before final order or judgment, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order or judgment upon any terms and conditions that shall be reasonable.” While the court below and the parties variously referred to the initial hearing in this manner as a “default” proceeding, the matter is more appropriately referenced as a judgment on the merits following an ex parte hearing. See, e.g., In re Marriage of Garde (1983), 118 Ill. App. 3d 303, 307, 454 N.E.2d 1065.

The purpose behind section 2 — 1301(e) is to afford a party post-judgment relief by permitting the vacation of judgment where facts exist which, had they been known to the trial court, would have precluded judgment. (Anglin v. Dearth (1988), 175 Ill. App. 3d 367, 369, 529 N.E.2d 1176.) “In ruling on a section 2 — 1301(e) motion to vacate, the overriding concern is whether or not substantial justice is being done between the litigants, and specifically whether it is reasonable under the circumstances to compel the nonmovant to proceed to trial on the merits.” (Havana National Bank v. Satorious-Curry, Inc. (1988), 167 Ill. App. 3d 562, 564, 521 N.E.2d 645.) Whether a section 2 — 1301(e) motion to vacate should be granted lies within the sound discretion of the trial court. (Espedido v. St. Joseph Hospital (1988), 172 Ill. App. 3d 460, 467, 526 N.E.2d 664.) Due diligence and a meritorious defense are factors in determining whether section 2 — 1301(e) relief should be granted, although they need not necessarily be alleged. Additional factors to be considered include residence of the nonmovant (in or out of State), the severity of the penalty as a result of judgment and the hardship on the nonmovant if they are required to go to trial. See Durham v. Rockford Mutual Insurance Co. (1988), 169 Ill. App. 3d 211, 213, 523 N.E.2d 670.

Nicholas’ motion sought to have the “ex parte judgment entered June 13, 1988,” vacated. In it, Nicholas asserted that he had a meritorious defense, and that Dolores had failed to inform the court (at the ex parte trial) that there were marital assets that needed to be considered and disposed of by the court. Nicholas specified such matters that needed to be brought to the trial court’s attention as the fact that Dolores had a- vested pension in the amount of $24,000, that she had life insurance with her employer and life insurance policies of the children, that she had personal bank accounts and savings bonds in. her possession, that she also had cashed a life insurance policy, that portions of the marital assets were spent by her on nonmarital expenses, and that her mother was not owed anything by the couple.

Nicholas was allowed to argue that Dolores had testified at her deposition inconsistently to the testimony at the ex parte trial; further, that Dolores had failed to inform the court about assets in her possession at that time. After argument, the court determined that with the exception of the issue relating to the PaceSetter account, the motion would be denied. That matter was then set for an evidentiary hearing. The court in ruling indicated that the matters brought to its attention by Nicholas (excepting the PaceSetter matter) had not entered into its granting judgment, and that “any marital assets that exist that were not disposed of by this judgment can always be corrected by the virtue of post trial motion.” The trial court indicated that once the PaceSetter matter was disposed of, she would certify the matter as a final and appealable order.

Although we appreciate that the trial judge was managing an extremely congested docket, we nonetheless feel that it was an abuse of discretion to deny Nicholas post-judgment relief with respect to the second section 2 — 1301 motion. That motion asserted that Nicholas had a meritorious defense, and specified numerous alleged marital assets that the trial court did not consider in entering judgment as to the disposition of the property. While a meritorious defense is not a requirement, Nicholas did assert that Dolores had contradicted herself with respect to some of the assets the court disposed of in the judgment, and that Dolores never informed the trial court of substantial marital assets in her possession. Further, after the initial trial date, Nicholas pursued section 2 — 1301 relief by filing his initial motion within two weeks, and his second motion within the 30-day period the statute provides.

An examination of other relevant factors supports our determination. Dolores was an in-State resident, and thus would not incur significant travel expenses or be forced to be away from her home during additional proceedings. The severity of the hardship to Nicholas if he were not allowed to litigate his claim in full would be great. As Nicholas points out in Ms brief, after Nicholas would reimburse Dolores pursuant to the terms of the judgment, he would in the end receive a much lesser proportion of the marital assets. Nicholas earns only $7 per hour, and the possibility that he is erroneously required to pay even only a few thousand dollars more than he should properly pay would represent a great hardship to Mm. We see, moreover, no great hardship to Dolores were the case to be fully litigated. As indicated, she is a resident of the State, and her case has thus far not reqmred the importation of witnesses from out of State or the necessity of hired witnesses. The trial court, moreover, could have significantly lessened whatever hardship Dolores could have incurred by conditioning vacature of the judgment upon Nicholas reimbursing Dolores for any unnecessary lost work time, and/or requiring Nicholas to pay Dolores’ attorney fees. (See, e.g., Andreasen v. Suburban Bank of Bartlett (1988), 173 Ill. App. 3d 333, 340, 527 N.E.2d 595.) The majority of these factors were not considered during the argument on the motion to vacate the judgment, and we hold that substantial justice was not accomplished in the denial of the second section 2 — 1301 motion. As a result, we remand the matter for a new trial on the disposition of the assets of the marriage, except as to the credit union matter.

We next consider Nicholas’ contention that the trial court erred in ruling that respondent’s credit union account was marital property. Under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(b)), “all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage *** including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property.” Nicholas attempted to overcome this presumption by showing that the PaceSetter funds were acquired before marriage, and thus not subject to distribution. However, because (as Nicholas acknowledges) the subject funds were placed in a form of co-ownership, even if Nicholas had shown that the funds were acquired before marriage, a presumption arises that a gift of the property to the marriage was made and the property is considered marital property. (See In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125.) In dissolution proceedings, a “donor” spouse may rebut the presumption of gift with clear, convincing evidence. In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 257, 483 N.E.2d 316.

The distribution of marital property rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion — “where no reasonable man would take the view adopted by the trial court.” (In re Marriage of Rink, 136 Ill. App. 3d at 257.) Dolores testified that the funds were accumulated in the course of the marriage, and Nicholas testified, as detailed previously, that the funds were accumulated prior to the marriage. The trial judge was in the best position to resolve this conflict in testimony, and it was for the trial judge to consider the credibility of the testimony. As the court indicated in In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 100, 393 N.E.2d 1065, it is the trial court’s function to resolve conflicting testimony by assessing the credibility of the witnesses and the weight to be accorded their testimony. The trial court indicated, correctly we think, that Nicholas’ testimony was incredible as to the manner in which he accumulated the money before marriage. Specifically, we agree with the trial court that Nicholas’ testimony that $7,000 was derived from wedding gifts from a previous marriage was unbelievable. As was shown at trial, that marriage lasted only a couple of months, the couple did not live together, and though Nicholas’ first wife was represented by an attorney, no claim was made for the wedding gift money in the divorce proceedings. We thus agree that Nicholas did not establish that the PaceSetter funds were nonmarital property, not subject to division. We note additionally that even if Nicholas had established that the funds were accumulated by him prior to marriage, we agree with the trial court that Nicholas did not rebut the presumption of a marital gift which arose when the funds were repeatedly put in a form of co-ownership.

We therefore hold that the trial judge’s determination that the PaceSetter funds were marital property was not error, and her dividing those funds not an abuse of discretion.

Accordingly, the judgment of the circuit court is reversed with respect to the denial of Nicholas’ second 2 — 1301 motion, and, excepting as to the credit union funds determination, the cause is remanded for a new trial on the disposition of the marital assets. The trial court’s ruling that the credit union funds were marital property and the trial court’s disposition of those funds are affirmed.

Affirmed in part; reversed in part and remanded for further proceedings.

EGAN and LaPORTA, JJ., concur.


text:
    KATHARINA TARDI, Plaintiff-Appellee, v. HARVEY HENRY, Defendant-Appellant.
    First District (6th Division)
    Nos. 1—90—0421, 1—90—0600 cons.
    Opinion filed April 19, 1991.

      Lord, Bissell & Brook, of Chicago (William P. Dorr, Diane I. Jennings, and Hugh C. Griffin, of counsel), for appellant.
    Stellate & Schumacher, Ltd., of Chicago (Esther Joy Schwartz, of counsel), for appellee.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

The subject of this appeal is a civil action for assault and battery filed by plaintiff Katharina Tardi against defendant Harvey Henry alleging incidents of sexual contact without her consent in 1979, 1982 and 1983. Following a trial, the jury rendered a special finding that plaintiff was not under a legal disability during the two years following the 1979 occurrence. As a result of this finding, the trial court dismissed this claim as barred by the statute of limitations. The jury then rendered a verdict in plaintiff’s favor for the sexual incidents in 1982 and 1983 and awarded plaintiff $352,500 in damages. The trial court subsequently granted defendant’s motion for a remittitur and reduced the damage award to $220,000. The issues on appeal are: (1) whether the evidence, viewed most favorably for the plaintiff, failed to sustain plaintiff’s claims that she had been sexually assaulted by defendant; (2) whether plaintiff failed to present any evidentiary basis upon which the jury could apportion the claimed damages between the dismissed rape claim and the claims that were submitted to the jury; (3) whether defendant was denied a fair trial by the numerous trial errors that were committed; and (4) whether defendant is entitled to further reduction of the amount of damages awarded to plaintiff. Plaintiff has also filed a cross-appeal on the jury’s special finding that she was not under legal disability during the time period when the 1979 rape claim should have been filed as well as the trial court’s dismissal of her claim.

During the relevant time period defendant was a physician specializing in neurosurgery. In 1979 plaintiff’s family physician contacted defendant for consultation and treatment regarding plaintiff’s complaint of severe headaches. He was again contacted by plaintiff’s physician in 1982 to treat her fainting spells and in 1983 for the treatment of her back pain. In addition to her physical complaints, plaintiff had a history of mental illness. During therapy sessions with a psychologist in 1983 and 1984, plaintiff claimed that defendant had raped her in March 1979, and that he had touched her in a sexually provocative manner on four other occasions in April 1982 and August 1983.

Plaintiff, who was 38 years of age at the time of the trial, had been diagnosed as suffering from a mental illness identified as borderline personality disorder. According to the testimony of the parties’ medical witnesses, this disorder is characterized by intense emotional changes, psychotic episodes, delusions, perverse fantasies as well as behavior that is impulsive, manipulative, aggressive and controlling. People with this illness tend to have strong negative or positive feelings toward others. The illness is difficult to treat because the person affected has a great deal of difficulty forming a therapeutic relationship.

Dr. Robert Allan Reff, one of plaintiff’s treating physicians, testified that plaintiff first began psychiatric treatment in 1974, although her psychological problems developed years earlier and were most likely due to early childhood abuse. Reff further testified that plaintiff dealt with her feelings regarding this childhood abuse by seeking out others to abuse, particularly those connected with the treatment of her psychological illness. On cross-examination, Reff related an incident from the record of plaintiff’s psychiatric hospitalization at .Northwestern Memorial Hospital in 1986. Plaintiff yelled “rape” when a mental health worker placed his hand on her shoulder to escort her back to the psychiatric unit. There was also a notation from that hospitalization that plaintiff equated the control she perceived that her psychiatrist had over her life with rape. Although Reff corroborated plaintiff’s testimony that she was less depressed and functioning well during the three-year period prior to the alleged March 1979 rape, Reff acknowledged on cross-examination that there were fluctuations in plaintiff’s psychological state and level of functioning during this period. The medical record for this period shows that plaintiff was prescribed diet pills, antidepressants, tranquilizers, sedatives and lithium carbonate to control her mood swings. In June 1977, plaintiff threatened suicide, and she continued to hallucinate and exhibit symptoms of severe depression. There is also a notation in the record that plaintiff stole sleeping pills from a patient who was admitted to the hospital where plaintiff worked, and that she was refusing to take medication prescribed for her because she was afraid she would use it to kill herself.

In March 1979, plaintiff contacted her family physician complaining of headaches and a pressure in her head which at times resulted in a hearing loss. Plaintiff’s physician admitted her to the hospital for a diagnostic evaluation and asked defendant to examine her. As part of his examination of the plaintiff, defendant ordered skull X rays, a CAT scan and an EEC, and he performed a lumbar puncture. The only abnormal finding was in the EEC, which showed some evidence of an underlying seizure disorder. Defendant testified that about one week after plaintiff was discharged from the hospital she telephoned him and asked him to come to her house and discuss the EEC findings with her. Defendant stated that it was not his usual practice to make house calls, but that he did so in this case because plaintiff was a nurse. He also testified that he had done so on other occasions when the patient was a medical practitioner. Defendant stated that he discussed the EEC results with the plaintiff as well as other matters for a short period of time, and that he did not examine her. He denied making any sexual advances. Plaintiff, however, testified that she did not contact defendant, and that he came to her house unannounced. Shortly after his arrival, he led her into the bedroom and raped her. Plaintiff stated that she did not tell anyone about the incident or report it to the police because defendant threatened to have her fired from her job if she did.

In 1980, plaintiff began outpatient psychiatric treatment with David Madsen, a psychologist. Madsen initially asked plaintiff if she had ever been raped, which she denied. However, in August 1983, plaintiff told Madsen that defendant had raped her, but that she could not talk about it. On September 22, 1983, Madsen hypnotized plaintiff, and she described the alleged incident. .

In April 1982, plaintiff was again hospitalized by her physician for a medical evaluation of the dizziness and fainting spells of which she had complained. Plaintiff’s physician again asked defendant to see the plaintiff and provide a consultation regarding these complaints. According to defendant’s testimony, plaintiff told him that she had fainted seven times over the preceding three days, and that she had been having memory lapses for about three months. He further testified that he examined the plaintiff and noted that she had self-inflicted wounds. He prepared a report of his examination and recommended a psychiatric consultation and CAT scan. Plaintiff was seen by a psychiatrist who diagnosed her as having borderline personality disorder and recommended treatment with antipsychotic and antidepressant medication. Plaintiff testified to a different version of her contact with defendant during this hospitalization. She stated that defendant came into her room and made repeated threats that she would lose her job and her nursing license if she told anyone about the March 1979 incident. Plaintiff then testified that defendant grabbed her breast as he was leaving. Plaintiff also testified that defendant came to her room on another occasion during this hospitalization and attempted to perform a lumbar puncture but was unable to complete the procedure when plaintiff became tense and started crying. Plaintiff stated that she became upset when defendant again threatened her regarding the alleged rape incident in 1979. According to plaintiff’s testimony, defendant made the comment “I didn’t have this much trouble getting it in when I was at your house,” in reference to his difficulty with the procedure. Plaintiff further testified that following her discharge, she saw defendant at the hospital where they were both employed and that he made the comment that she should watch her step or she “wouldn’t be a nurse anymore.” Defendant’s recollection of this incident was that he saw the plaintiff at the hospital where they were both working but that he only said “hello.” Plaintiff described another occasion when she saw defendant in the work setting. She claimed that defendant was on his way to surgery, and when he saw her, he made the comment that he would love to get her on the table and take apart her brain so that she would never be able to talk to anyone again.

Plaintiff first reported the occurrence of the sexual incident described above during a hypnotic session with Dr. Madsen in October of 1983. She also testified that no nursing staff were present when defendant threatened her and that the roommate she had during this hospitalization did not speak English. Plaintiff acknowledged that she did not tell defendant not to treat her, and she did not tell her treating physician about defendant’s conduct and threats.

In August 1983, plaintiff injured her back and was hospitalized at St. Anthony’s Hospital. Her family physician again requested a consultation from defendant. Defendant testified that he examined the plaintiff and prepared a consultation report which contained a history and results of his examination. The plaintiff was in traction during this hospitalization. Defendant’s medical finding was that plaintiff was suffering from a parispinal muscle spasm as well as decreased sensation and reflexes in her left leg and foot. Defendant’s treatment recommendation was for bed rest, continued traction, medication and a CAT scan of the lumbar spine. The CAT scan revealed the presence of a herniated disc for which defendant recommended treatment with physical therapy with heat, massage and whirlpool. Plaintiff claimed that when defendant saw her during this hospitalization, he removed the covers and “began to grope her vagina.” Plaintiff testified that she pleaded with defendant to stop and that she felt “scattered and falling to pieces.” Plaintiff stated that the same assault was repeated the next day, but that this time she was wearing underwear. She claimed that defendant became angry, put his hand near her vagina and said, “[W]hat is this? You should’ve been ready for me.” Plaintiff claimed that she then became hysterical, and defendant left her room. Plaintiff also testified that defendant came to her room on one other occasion during this hospitalization. She informed defendant that she was being released, and in response to this information he commented, “[0]h no you’re not. I’m going to keep you here another week. I’ll fix that.” The next day defendant wrote a progress note that plaintiff should be kept in the hospital an additional week for physical therapy. On cross-examination, defendant stated that he recommended an additional week of hospitalization because the plaintiff was not responding to treatment. However, plaintiff’s physician discharged her the next day.

Plaintiff reported these incidents during a therapy session with Dr. Madsen in March of 1984. Plaintiff also claimed that she had two roommates during this hospitalization who were present when the incidents occurred but that one roommate was Spanish and the other roommate was blind. She further stated that when defendant put his hand near her vagina she pushed it away and told him to “act professional.” Plaintiff again acknowledged that she did not tell her physician about the sexual incidents.

Following her discharge from the hospital, plaintiff scheduled an appointment with defendant at his office. Defendant testified that he examined the plaintiff, recommended another week of bedrest and prescribed medication. He also contacted plaintiff’s physician and informed him that if there was no improvement in plaintiff’s condition by her next visit, he would recommend rehospitalization to perform a myelogram. Plaintiff scheduled an appointment for the following week but did not keep it. Plaintiff testified that she saw defendant in his office because her family physician requested it, she was in a lot of pain and she was unable to get an appointment with another specialist. Plaintiff stated that she wore a sweatshirt and jogging pants to prevent any further attacks. However, when she arrived at defendant’s office, he ordered her to get undressed but provided no gown or sheets for her to use. She also stated that there was no one else present during the examination. Plaintiff refused to remove her clothes, but defendant became angry and ordered her to get on the examining table. When plaintiff was on the examining table, defendant pulled her leg up which caused her a great deal of pain. She then testified that defendant had her stand on the floor and bend down to touch her toes. At this point, defendant approached her, put his hand near her vagina again and “groped her vagina.” After this incident, plaintiff did not return to defendant’s office for further treatment but began seeing another doctor for her back problem. Plaintiff further claimed that following the sexual assaults, she became very depressed and suicidal, and she was hospitalized for psychiatric treatment on 14 occasions.

On January 25, 1984, plaintiff filed a complaint against defendant alleging the 1979 rape and the sexual incidents which she claimed occurred in 1982 and 1983. Defendant denied plaintiff’s allegations and raised an affirmative defense that the rape claim was barred by the statute of limitations. Plaintiff then responded that she was mentally disabled prior to January 25, 1982, and that the statute of limitations was tolled. Trial commenced on the allegations of plaintiff’s complaint, defendant’s affirmative defense as well as the issue of plaintiff’s competency. The jury found that plaintiff was competent during the relevant time period and her rape claim was dismissed on the grounds that it was barred by the statute of limitations. A verdict was then returned in plaintiff’s favor on the 1982 and 1983 sexual incidents. Defendant appealed the jury’s verdict, and plaintiff filed a cross-appeal on the issue of whether she was under a legal disability during the time period when the rape claim should have been filed and whether her rape claim should have been dismissed.

Defendant contends that he is entitled to a judgment n.o.v. or a new trial where the evidence, even when viewed most favorably for the plaintiff, overwhelmingly failed to support plaintiff’s claims that she was sexually assaulted by defendant. The standard used to determine whether a motion for a judgment n.o.v. should be granted, as set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504, states that the motion should only be granted “in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick, 37 Ill. 2d at 510.) However, on a motion for a new trial, the applicable standard is whether the verdict is against the manifest weight of the evidence. (Mizowek v. De Franco (1976), 64 Ill. 2d 303, 310, 356 N.E.2d 32.) Defendant claims that plaintiff’s testimony regarding the alleged sexual incidents in 1982 and 1983 was not sufficient to sustain the current verdict against him under either standard.

Plaintiff’s allegations against defendant were that he grabbed her breast during a hospitalization in April and May of 1982 and “groped her vagina” during a hospitalization and office visit in August of 1983. In addition to plaintiff’s trial testimony as to the occurrence of these incidents, Dr. Madsen testified on cross-examination that plaintiff reported the two hospital incidents while under hypnosis. Defendant contends that because plaintiff’s testimony concerning these incidents was hypnotically induced, it was unreliable and therefore inadmissible.

The Illinois Supreme Court in People v. Zayas (1989), 131 Ill. 2d 284, 546 N.E.2d 513, addressed the question of whether hypnotically enhanced testimony was admissible. The court quoted the definition of “hypnosis” advanced by the American Medical Association as:

“ ‘[A] temporary condition of altered attention in the subject which may be induced by another person and in which a variety of phenomena may appear spontaneously or in response to [verbal] or other stimuli. These phenomena include alterations in consciousness and memory, increased susceptibility to suggestion, and the production in the subject of responses and ideas unfamiliar to him in his usual state of mind.’ ” (Zayas, 131 Ill. 2d at 290, quoting The Admissibility of Hypnotically Refreshed Testimony, 20 Wake Forest L. Rev. 223, 224 (1984).)

The court noted:

“As this rather imprecise definition indicates, the nature of hypnosis remains largely a mystery, and can be defined only by its symptoms and manifestations. The various theories explaining hypnosis, moreover, are often in conflict and may never be fully understood. [Citation.] Because no one really understands it, hypnosis plays a rather dubious role in judicial proceedings.” Zayas, 131 Ill. 2d at 290.

The court identified three possible approaches that could be taken regarding the admissibility of this evidence. The first approach would be one of per se admissibility which would place the burden on the jury to determine the witness’ credibility. The rationale for this approach is that the previously hypnotized witness is subject to cross-examination, and that the opposing party can present his own expert witness to rebut the testimony of the experts that the proponents of the evidence examined. (Zayas, 131 Ill. 2d at 291.) The court then addressed the ways in which this reasoning is flawed. The first problem is:

“[Previously hypnotized witnesses are virtually immune from effective cross-examination. That is, having been hypnotized, the subject gains complete confidence in his ‘restored’ memory, forgets how it was ‘restored,’ and is unable to differentiate between that which he was able to recall before hypnosis and that' which the hypnosis elicited. Any information that the hypnotist suggested, or the subject fantasized or confabulated, becomes part of the subject’s ‘restored’ memory ***.” (Zayas, 131 Ill. 2d at 291.)

The other problem with this approach is the jurors’ misconceptions of the hypnotic process which impair their ability to objectively weigh the credibility of the previously hypnotized witness. The court stated:

“The public has been barraged with misinformation concerning hypnosis and has resultantly been led to incorrectly believe that it provides a panacea for lost memory. [Citation.] While some studies show that, when properly administered, hypnosis can increase one’s quantitative memory, these studies also demonstrate that subjects tend to fill in forgotten details with details they concoct and are later unable to discern between the two.” Zayas, 131 Ill. 2d at 292.

The second approach which could be taken regarding the admissibility of hypnotically induced testimony would be to develop a strict set of procedural safeguards. The shortcomings of this approach, however, are that no procedural safeguards could be devised which could detect whether a hypnotist has unintentionally or subconsciously implanted suggestions in the mind of the subject. In fact, hypnosis requires that the hypnotist suggest answers to the subject. “The subject, moreover, will inevitably fill in missing details and fantasize about events that never in fact happened.” (Zayas, 131 Ill. 2d at 292.) Furthermore, procedural safeguards do nothing to eliminate the problems associated with the bolstered witness’ confidence and erroneous juror perception. Zayas, 131 Ill. 2d at 293.

The Zayas court concluded that because of the problems inherent in the first two approaches, the third approach of per se inadmissibility was being more frequently adopted by other jurisdictions. The court found that the standard originally applied to the- inadmissibility of polygraph evidence was also applicable to hypnotically induced testimony. This standard holds that a court should not allow into evidence a “scientific” test which the relevant scientific community has not recognized as reliable. (Zayas, 131 Ill. 2d at 293, citing Contreras v. State (Alaska 1986), 718 P.2d 129.) The Zayas court then concluded that not only did the relevant scientific community generally find hypnotically induced recall inaccurate but “the legal and scientific literature is now replete with articles imploring courts to reject such evidence because of its many flaws.” (Zayas, 131 Ill. 2d at 294-95.) In conclusion, the court stated:

“[Bjecause its reliability is suspect, and is not amenable to verification due to the fact that even the experts cannot agree upon its effectiveness as a memory-restorative device, a witness’ hypnotically induced testimony, other than that of the defendant, is not admissible in Illinois courts.” Zayas, 131 Ill. 2d at 295.

Based upon Zayas, we conclude that the plaintiff’s testimony as well as that of Dr. Madsen regarding what the plaintiff reported during the hypnotic sessions was also unreliable because in both instances it would be difficult to distinguish between what portion of plaintiff’s recall was hypnotically enhanced, the product of the therapist’s suggestion, or the plaintiff’s own fantasies. Because the plaintiff would not be able to make this distinction herself, she would be immune from effective cross-examination. Additionally, there were the potential problems associated with the jurors’ erroneous perceptions of hypnosis as an infallible process. Lastly, the relevant scientific community does not generally accept hypnotically induced recall as accurate or, at the very least, does not agree on the effectiveness of the hypnotic process to restore memory.

Plaintiff first argues that the reliability of the hypnotically induced testimony and statements was a credibility issue for the jury to decide. Plaintiff also claims that the admission of this evidence was proper because defendant was able to cross-examine the plaintiff and Dr. Madsen. However, pursuant to our discussion above regarding the jury’s inaccurate perceptions of hypnosis as well as a hypnotic subject’s immunity to cross-examination, we find both arguments without merit.

Plaintiff next raises several points in support of her argument that the holding in Zayas is inapplicable to this case. Plaintiff first claims that the holding in Zayas is only applicable to criminal cases where the hypnotically enhanced testimony is by an occurrence witness. However, contrary to plaintiff’s contention, the only exception made by the Zayas court to the inadmissibility of hypnotically enhanced testimony is in the case of a criminal defendant. This exception for criminal defendants is based on the reasoning that the restriction of his testimony in this manner would be a violation of his constitutional rights under the fourteenth, fifth and sixth amendments. (Rock v. Arkansas (1987), 483 U.S. 44, 51-53, 97 L. Ed. 2d 37, 46-47, 107 S. Ct. 2704, 2708-10.) Thus, the exception is inapplicable to this case.

Plaintiff further argues that defendant failed to prove that her memory of the alleged sexual incidents was hypnotically induced. One of the problems inherent in the testimony of one who has previously been hypnotized is that the subject is “unable to differentiate between that which he was able to recall before hypnosis and that which the hypnosis elicited.” (Zayas, 131 Ill. 2d at 291.) Zayas also holds that it is the proponent of the prehypnotic recall who bears the burden of establishing that her testimony was based solely on independent prehypnotic recall. Zayas, 131 Ill. 2d at 297.

Plaintiff’s final argument is that defendant has waived this issue on appeal because he failed to make a trial objection to plaintiff’s or Dr. Madsen’s testimony regarding plaintiff’s hypnotically enhanced recall. Defendant claims that the waiver rule is inapplicable because at the time of the trial in this matter, hypnotically induced testimony was admissible subject to certain procedural safeguards. (See People v. Jordan (1983), 120 Ill. App. 3d 836, 458 N.E.2d 1115; People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848.) One month following the trial, the Illinois Supreme Court issued the Zayas opinion, which held that hypnotically induced testimony, except in the case of a criminal defendant, was per se inadmissible. Defendant subsequently included an objection to the admission of plaintiff’s hypnotically induced testimony in his motion for a new trial.

Where there has been a change in law due to a judicial decision or statutory alteration, after a case has been adjudicated and remains pending in the trial court or on direct appeal, the waiver rule is inapplicable. (People v. Fernetti (1984), 104 Ill. 2d 19, 21-22, 470 N.E.2d 501.) Although plaintiff argues that there was no change in the law regarding this case because the Zayas holding is only applicable to criminal cases, we do not interpret Zayas to limit its ruling in this way. As we previously stated, the only exception we find in Zayas is for criminal defendants based on constitutional protections specific to them. Furthermore, even if defendant had misinterpreted the applicability of the Zayas ruling to this case, the law in Illinois regarding this issue was sufficiently altered by Zayas to justify defendant’s failure to object until the opinion was issued. Thus, plaintiff’s waiver argument is also without merit.

For the aforementioned reasons, we conclude that plaintiffs hypnotically induced testimony and statements to Dr. Madsen regarding defendant’s alleged sexual conduct were per se inadmissible. Having concluded that the plaintiff’s hypnotically enhanced testimony and statements to Dr. Madsen were inadmissible, we next address the question of which portion of this evidence was hypnotically induced.

On direct examination, Dr. Madsen was asked if the plaintiff related more than one instance with Dr. Henry. Dr. Madsen replied that she had, that it was in October 1983, while plaintiff was in a hypnotic state. Although it appears from Dr. Madsen’s recitation of his notes that plaintiff talked about experiences with the defendant during the 1982 hospitalization, there is no specific reference to the sexual incident which was alleged to have occurred at that time. He then testified that the sexual incident which allegedly occurred during the 1983 hospitalization was related by the plaintiff in a “straight-forward discussion.” However, on cross-examination, Dr. Madsen stated that all of the alleged hospital assaults were reported by the plaintiff while under hypnosis. Plaintiff’s statements regarding what was hypnotically induced are also contradictory. Although plaintiff claimed during oral argument that none of the alleged sexual incidents were hypnotically induced, plaintiff stated in her appellee’s brief:

“A good deal of plaintiff’s history, including her sexual encounters with Dr. Henry, was told to Dr. Madsen under hypnosis.”
“Plaintiff herself detailed how the defendant sexually assaulted her, and explained how she remembered these incidents while under hypnosis administered by Dr. Madsen.”

Therefore, while we recognize that the evidence as to what was hypnotically induced is ambiguous, Zayas teaches us that plaintiff’s testimony was inherently unreliable. Thus, even if admissible, it would be of very little value. Further, plaintiff’s uncorroborated testimony was all that was offered in support of her claim.

There were also additional factors which contributed to the unreliability of the evidence against defendant. The testimony of plaintiff’s treating physician and psychologist established that she had been suffering from borderline personality disorder for many years which was characterized by periodic hallucinations and delusions, difficulty with male relationships and “hate feelings” toward others. The evidence also established that plaintiff had been inconsistent in relating past sexual experiences. At times she claimed that she had been sexually molested as a child but was unable to give any information about these alleged incidents. At other times plaintiff denied such occurrences. In addition, when the plaintiff first began therapy with Dr. Madsen in 1980 she denied that she had ever been raped, but in September 1983, plaintiff told Dr. Madsen that she had been raped by defendant in 1979. There was also evidence that plaintiff had identified sexual conduct where none had occurred, such as when a staff member placed his hand on plaintiff’s shoulder during one of her psychiatric hospitalizations and she screamed “rape.”

Another factor contributing to the unreliability of plaintiff’s allegations was her failure to report the incidents to anyone at the time that they occurred. Not only was there a four-year delay in reporting the rape incident, but the 1982 incident was not communicated to anyone including her therapist for IV2 years, and the 1983 incident was not reported until six months after its occurrence. Furthermore, although defendant allegedly threatened plaintiff if she reported the rape incident, there was no apparent reason why plaintiff could not have sought treatment from another neurosurgeon at any time between 1979 and 1983. Finally, plaintiff offered the testimony of her sister to corroborate her own testimony regarding the sexual incidents. However, plaintiff’s witness contradicted plaintiff’s testimony when she stated that in 1983, plaintiff told her about an incident of defendant touching plaintiff’s breast which had just occurred. Plaintiff testified that this incident took place in 1982.

As a result of the foregoing, we conclude that the evidence, even when viewed in a light most favorable to the plaintiff, so overwhelmingly favors defendant that no contrary verdict could stand. (See Pedrick, 37 Ill. 2d at 510.) Therefore, we need not address defendant’s other issues.

CROSS APPEAL

Plaintiff appeals the special finding of the jury that she was not under a legal disability during the period when she could have timely pursued her rape claim. The question of plaintiff’s legal disability was tried along with her suit against Dr. Henry for rape and sexual assault. Following the presentation of evidence on all of these issues, a special interrogatory was submitted to the jury which stated:

“Was Katharina Tardi from the period of time beginning on March 29, 1979, up to and including January 25, 1982, under legal disability.”

The trial judge then defined “legal disability” for the jury as follows:

“For the purposes of this question, the term under legal disability means that during the period in question Katharina Tardi was incapable of managing her person or property and could not comprehend her rights or the nature of the act giving rise to her cause of action.”

The jury determined that during the relevant time period plaintiff was not under a legal disability and that the statute of limitations was not tolled. An order was subsequently entered dismissing plaintiff’s rape claim as being time barred. Plaintiff contends that this instruction on the definition of legal disability was reversible error because it was inconsistent and contradictory, and that plaintiff should be granted a new trial on the rape claim. Plaintiff claims that the above instruction was defective because the jury was given two distinct standards by which to measure plaintiff’s disability. One standard was the ability to manage her person or property, and the other standard was the ability to comprehend her rights or the nature of the act giving rise to her cause of action. Plaintiff further argues that the jury should only have been instructed on the standard of plaintiff’s ability to comprehend her rights or the nature of the act giving rise to her cause of action because whether plaintiff could manage her person or property was unrelated to the kind of disability she alleged. Plaintiff further contends that, applying the proper definition of legal disability to the facts of this case, a determination should be made that plaintiff was under a legal disability during the relevant time period as a matter of law.

Without addressing the merits of plaintiff’s contentions, we conclude that plaintiff is not entitled to a new trial on the merits of her rape claim. At the previous trial, plaintiff’s rape claim was not dismissed until after all of the evidence had been presented. Based on our foregoing discussion, we have already concluded that the evidence presented by plaintiff was unreliable and insufficient to support a verdict in her favor. Therefore, we conclude that plaintiff’s request for a new trial on her rape claim is without merit.

Accordingly, the judgment of the circuit court on direct appeal is reversed. The judgment on plaintiff’s cross-appeal is affirmed.

Judgment reversed in part and affirmed in part.

EGAN and LaPORTA, JJ., concur.


text:
    CAROL BINDELL et al., Plaintiffs-Appellees, v. THE CITY OF HARVEY et al., Defendants-Appellants.
    First District (6th Division)
    No. 1—90—0638
    Opinion filed April 19, 1991.

      James D. Montgomery & Associates, Ltd., of Chicago (Robert P. Vogt, of counsel), for appellants.
    Cornfield & Feldman, of Chicago (Melissa J. Auerbach, of counsel), for appellees.
   PRESIDING JUSTICE RAKOWSKI

delivered the opinion of the court:

In this appeal, we are asked to determine whether a final Civil Service Commission determination can negate an employee’s right to have a subsequent disciplinary proceeding decided through grievance and arbitration procedure in accordance with a collective bargaining agreement.

The trial judge ruled that it could not. We agree, and therefore affirm.

The undisputed facts are these: On November 10, 1986, defendant, City of Harvey (City), and plaintiff, American Federation of State, County and Municipal Employees, Council 31, AFL-CIO (AFSCME), entered into a comprehensive collective bargaining agreement (Agreement) that encompassed nearly all relations between the City and its police department employees. Plaintiff Carol Bindell was both a police department employee and a member of AFSCME. In part, the Agreement provided that “[disciplinary matters coming within the jurisdiction of the Civil Service Commission may be processed through the grievance and arbitration procedure.” In an addendum, the Agreement further provided a form letter to be used by employees facing disciplinary proceedings. The letter provided an election to have discipline or discharge decided by either the Civil Service Commission or through grievance and arbitration procedure. In the event no election is made within seven days, the right to arbitration is waived and the City “will proceed as legally required under the Civil Service laws.”

In September of 1987, Bindell was charged with certain violations of the Harvey police department’s rules and regulations. The specified conduct, which occurred in August of 1987, included failure to report for work, leaving work early and false and/or improper use of sick time. A hearing was conducted before the Harvey Civil Service Commission (Commission), and on November 23, 1987, a written decision was rendered. The decision, after finding.that Bindell had violated department rules, held that her conduct “does not justify a finding of discharge” and ordered that she “should submit to drug test[s] at the discretion of the police chief [and that] [a]ny further usage of drugs would subject CAROL BINDELL to immediate termination.” No motion for reconsideration or appeal was taken from this decision.

Approximately 17 months after the entry of this decision (May 4, 1989), Bindell tested positive for ingestion of cocaine and a complaint seeking her discharge was filed by the chief of police. This time, however, Bindell elected to have the disciplinary proceeding decided through grievance and arbitration procedures and within the seven-day time limit filed the “Choice of Procedure” form. The City refused to arbitrate and instead conducted a hearing before the Commission. On August 9, 1989, Bindell was discharged from her position with the Harvey police department.

On February 7, 1990, the trial court reversed the Commission’s decision as being contrary to law, ordered the City to proceed with arbitration and specified that the arbitrator should be informed of the Commission’s November 23,1987, decision. This appeal followed.

Initially defendant argues that the November 23, 1987, decision was wholly proper and this action is nothing more than an impermissible, collateral attack on that decision. We disagree. The propriety of the 1987 decision is a question we need not and cannot answer. The decision was final, not appealed and as a result we are without jurisdiction. Further, while we agree with defendants that an attack on the 1987 decision would be improper, we fail to see how this lawsuit involves such an attack. Rather, plaintiff’s position is that the Commission was without jurisdiction in the 1989 proceeding because Bin-dell elected to have that disciplinary matter decided through arbitration, a right to which she was entitled pursuant to the Agreement. In this appeal, we are not determining whether Bindell will ultimately be discharged or not. We are merely deciding which forum will make that determination. Bindell will be subject to discharge when this matter proceeds to arbitration in the same fashion that she was when her disciplinary proceeding was heard by the Commission. Whether discharge in fact occurs is to be determined through the grievance or arbitration procedures.

Next, defendants argue principles of waiver and equitable estoppel in that Bindell, by not appealing the 1987 decision, waived any complaint regarding the terms and conditions of that order. They further reason that because Bindell accepted benefits (not being terminated) she is now estopped from denying the validity of that portion of the order which subjected her to discharge. Again, these arguments must fail because this action does not dispute the validity of the 1987 decision. As previously stated, Bindell is subject to discharge. The question is who will make that determination.

Next, defendants argue that a collective bargaining agreement cannot nullify an order of an administrative agency. Although it does not affect the outcome, it is worth noting that defendants’ brief is at odds with the record as to when the Agreement came into effect. While the Agreement itself reflects that it was executed on November 10, 1986, defendants argue in their brief that it was not entered into until 1989. However, assuming, arguendo, that the Agreement did not take effect until 1989, defendants do not dispute that it was in effect when the 1989 charges were filed. As such, Bindell was entitled to arbitration. Prior to this Agreement, the Commission was the only forum before which disciplinary proceedings could be brought. During the collective bargaining process this was changed and arbitration became an alternative forum with the choice of forum to be made by the employee. As a result, we fail to understand how the agreement nullified the 1987 decision.

Nor can it be argued Bindell somehow waived her right to arbitration by virtue of the 1987 decision. Waiver is an intended relinquishment of a known right. (Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 499, 475 N.E.2d 872.) If we accept defendants’ position that the Agreement did not take effect until 1989, it is hard to understand how arbitration could have been waived in 1987. In any event, the right to arbitration will not be considered waived unless the evidence is clear and unmistakable. See Village of Oak Park v. Illinois State Labor Relations Board (1988), 168 Ill. App. 3d 7, 522 N.E.2d 161.

In sum, the issue before us is one of jurisdiction. “[W]here the authority of an administrative body is in question[,] the determination of the scope of its power and authority is a judicial function, not a question to be finally determined by the administrative agency itself.” (People ex. rel Thompson v. Property Tax Appeal Board (1974), 22 Ill. App. 3d 316, 321, 317 N.E.2d 121.) Accordingly, there is no presumption in favor of an administrative agency’s assertion of jurisdiction (see Pickering v. Human Rights Comm’n (1986), 146 Ill. App. 3d 340, 496 N.E.2d 646), and the burden of proving jurisdiction rests upon the party asserting it. Ballard v. Rawlins (1981), 101 Ill. App. 3d 601, 604, 428 N.E.2d 532.

For the foregoing reasons, we conclude that Bindell’s election of forum was proper and in accordance with the Agreement. As a result, the judgment of the circuit court is affirmed.

Affirmed.

McNAMARA and LaPORTA, JJ., concur.