source: Caselaw Access Project

author: JUSTICE GORDON

license: Public Domain

text:
      In re MARRIAGE OF FINDLEY MAHAFFEY, Petitioner-Appellant, and NORMA MAHAFFEY, Respondent-Appellee.
    First District (5th Division)
    No. 1—88—1734
    Opinion filed November 30, 1990.

      Kalcheim, Schatz & Berger, of Chicago, for appellant.
    Thomas Holstein and Michael Long, both of Chicago, and Alfred L. Levinson, of Park Ridge, for appellee.
   JUSTICE GORDON

delivered the opinion of the court:

Petitioner, Findley Mahaffey, appeals from the judgment of the trial court dissolving his marriage to respondent, Norma Mahaffey. He contends that the trial court: (1) erred in characterizing a lottery jackpot won during the marriage as marital property, and (2) abused its discretion in dividing the marital property. We affirm.

The evidence presented at trial disclosed that the parties married in April of 1965 and gave birth to two children, Margaret and Paula, who were 19 and 16 years of age, respectively, at the time of the trial. During the marriage, petitioner, who at trial was 49 years of age, worked in a series of unskilled and skilled jobs, earning as much as $21 an hour, and respondent, who was 53 years of age, worked primarily as the family’s homemaker. In 1981, however, respondent began working outside the home as a nursing assistant for a little over the minimum wage after petitioner was injured in an automobile accident and temporarily could not work. Prior to petitioner’s accident in 1981, the parties basically met their expenses with his earnings, but, thereafter, they began falling into debt. By May of 1983, the parties, who were living in a rented house in Matteson, Illinois, remained in debt and had acquired only minimal assets.

In May of 1983, the parties’ lives changed considerably when one of them purchased the winning ticket in the Illinois lottery, worth approximately $3.6 million. Though there was a dispute in the evidence over who purchased the winning ticket and a charge that respondent committed perjury when she testified that she selected the winning numbers based on her children’s birthdays, both of these matters are not dispositive of the issues presented by this appeal. What is significant, however, is the undisputed evidence that the money used to purchase the ticket came from either petitioner’s or respondent’s marital earnings and the right to receive the full lottery payments became irrevocable during the marriage. The single premium annuity contract purchased from Standard Security Life Insurance Company of New York (hereinafter Standard Security) by the State of Illinois to pay the lottery jackpot named the Illinois Department of Revenue as the contractholder and petitioner as the annuitant with the right to receive 19 annual payments of $180,484.50. Under the terms of that contract, Standard Security could not, “prior to the completion of the Contract, suspend, revoke, postpone or terminate any payments under this Annuity Contract to the Contractholder or such person or persons as the Contractholder may from time to time direct for any reason, including but not limited to, the threat of or filing of a suit against it, without the prior written approval of the Contractholder or a court order directing payment to another individual(s).” Further, the State of Illinois guaranteed payment of the prize. The only significant limitation on petitioner’s right to the payments is contained in section 13 of the Illinois Lottery Law, which states that he cannot assign that right but further provides:

“[P]ayment of any prize drawn may be paid to the estate of a deceased prize winner, and, except that any person pursuant to an appropriate judicial order may be paid the prize to which the winner is entitled ***.” Ill. Rev. Stat. 1987, ch. 120, par. 1163.

Immediately after winning the lottery, both petitioner and respondent quit their respective jobs and jointly began to enjoy the fruit of their good fortune. Upon petitioner’s receipt of the first three installments of the jackpot, he first deposited the checks in the parties’ joint checking or money market accounts and then he and respondent expended all of the money on items such as vacations, gifts to family members, entertainment and clothes, often falling into debt in the process. Additionally, in 1983, the parties used a portion of the first lottery installment to purchase a 1983 Chevrolet camper, with title placed in their joint names, for $35,000 and to fund a $2,000 individual retirement account (hereinafter IRA). In 1984, they used a portion of that year’s lottery installment as a downpayment on a $75,000 house at 4323 Kildare in Matteson for use by petitioner’s mother and stepfather. They also purchased $5,000 worth of furniture for that house. At trial, petitioner testified that he had decided to sell the house and had listed it for sale for $74,900. He further stated that there was a $55,000 mortgage on the house. In 1984, the parties also deposited various amounts of money in accounts set up for their daughters and petitioner’s godchild but later mutually decided to close out the account for the godchild. In 1985, the parties used a portion of that year’s lottery installment to purchase a used 1982 Chrysler automobile for $10,000 and a used truck tractor and semitrailer for $19,000. At the time of trial, they still owned the Chrysler and had a $280 indebtedness on the car. They no longer owned the tractor and trailer, however, because it cost over $40,000 to keep in good repair and petitioner decided to simply turn it over to the party who had loaned him the money to fund these repairs.

In September of 1985, petitioner advised respondent that he wanted a divorce. Thereafter, the parties separated, with respondent taking all the furnishings from their rented marital home and moving to Monticello, Indiana, with their two children.

In October of 1985, petitioner filed his petition for dissolution of marriage, and in December of that year, by agreement, a trial court entered an order directing petitioner to pay $50 a week in child support for his two children. Respondent testified that from the time she left the marital home until the end of 1986 she supported herself and their daughters with money earned working off and on in a seríes of low paying jobs, in addition to the $50-a-week child support payments, food stamps and other governmental relief. During this time, she and her daughters lived in a home owned by her brother. Although her brother charged rent for the home, he agreed to await payment from her. At trial, she testified that she owed $4,200 in unpaid rent to her brother. In 1987, she obtained a court order increasing her child support money to $2,000 a month and she then quit her job and went off governmental relief.

Petitioner meanwhile was continuing to spend the lottery money as quickly as he received it. In 1986, petitioner used a portion of that year’s lottery installment to purchase a farm in Tennessee for $80,000 (hereinafter the Downed farm). In acquiring that property, he made a cash downpayment of $50,000 and mortgaged the remaining amount. At the time of trial, he still owed $24,000 on that mortgage and was listing the property for sale with a broker for $90,000. Additionally, he borrowed $80,000 from the Farm Bureau Bank to renovate a house that was located on the farm and still owed $69,600 on that loan at the time of trial.

In 1987, petitioner used a portion of that year’s lottery installment to purchase another farm in Tennessee for $385,000 (hereinafter the Cooper farm). In acquiring that property, he paid $30,000 as earnest money, used $50,000 of the Downed farm Farm Bureau Bank loan as additional downpayment and obtained a mortgage for the remaining $305,000. At trial, petitioner introduced an appraisal into evidence indicating the value of the Cooper farm to be $378,300. Though he initially testified that he owed $335,000 on the farm, he later stated that the actual amount owed was either $305,000 or $315,000. Though not reflected in the record, petitioner’s counsel has argued in his brief that the actual amount owed on the farm was $335,000, and that figure consisted of accrued interest and principal. In 1987, he also borrowed an additional $35,000 from the Farm Bureau Bank to pay for various farm equipment and owed $38,055 (principal and accrued interest) on that loan at the time of trial.

Petitioner further testified that at various times during 1986-87 he purchased three trucks, which the evidence shows had an aggregate value of either $6,035 or $7,735, and livestock for the farms including 120 head of cattle, which the evidence shows was worth $36,000, three horses worth $500, and one jackass worth $700. To finance the purchase of the livestock, petitioner at various times borrowed money from Mr. and Mrs. Williams of Wartrace, Tennessee. At the time of trial, according to petitioner’s testimony, he owed the Williams family either $39,000, $42,000, or $49,000. As proof, he submitted a copy of his promissory note of $39,000 to the Williams family.

At the conclusion of the trial, the court entered its judgment dissolving the parties’ marriage and dividing all of the marital property. In dividing the property, the court noted that it considered all of the relevant factors contained in section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503), including specifically the relative economic circumstances as well as the liabilities of each party, the dissipation by the petitioner of some marital assets during the parties’ separation, and the future earning capacity of the parties.

The court’s division of property provided for a 50/50 split of the gross amount from the remaining 15 lottery annuity payments, which the court characterized as “marital property.” The court further awarded the following property solely to respondent:

(1) the 1983 Chevrolet camper;
(2) the 1982 Chrysler automobile;
(3) the marital home furniture;
(4) the IRA;
(5) the proceeds from a life insurance policy with a present cash value of $7,000;
(6) two-thirds of the proceeds from the sale of a boat which was purchased in 1986 for $10,000; and
(7) two-thirds of any money obtained from a lawsuit which petitioner had filed seeking to recover $4,825 in unpaid rent from a tenant at 4323 Kildare.

The court also made respondent solely responsible for the $280 indebtedness on the 1982 Chrysler and the outstanding rent indebtedness of $4,200 owed to her brother. The court awarded the following property solely to petitioner:

(1) the three trucks;
(2) a 1971 Cadillac;
(3) the house at 4323 Kildare;
(4) the furniture at 4323 Kildare;
(5) one-third of the proceeds from the sale of the boat; and
(6) one-third of any money obtained from the lawsuit.

Additionally, the trial court directed petitioner to sell the Downell and Cooper farms, the farm equipment, and the livestock and that when “the aforesaid premises and personalty are sold, then Norma is to receive zls of the ‘net proceeds’ and Findley is to receive xfs of the ‘net proceeds.’ ” The court defined “net proceeds” as “those proceeds remaining, if any, from the sale of the aforesaid real estate and personalty after all the existing loans are paid off, the payment of reasonable attorney’s fees, the payment of any brokerage commission which may be incurred, and the payment of any and all ordinary and usual closing costs and prorations.”

Opinion

Petitioner contends that the trial court erred when it failed to treat “his” lottery winnings as income rather than marital property subject to division under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503) (hereinafter the Act). He argues that the court should have considered the winnings to be his personal income because the Internal Revenue Code (26 U.S.C. §61 (1988)) treats the receipt of lottery payments as income to the recipient. He further argues that although the source of payment of the lottery winnings is an annuity contract, which would normally be considered a marital asset, it should not be deemed a marital asset in the present case because: (1) under the annuity contract, he does not own the contract but “only” has the right to receive income from it, and (2) because it is not assignable.

Under the theory advanced by section 503, the property disposition provision of the Act, marriage is a shared enterprise or a partnership. (See In re Marriage of Smith (1981), 86 Ill. 2d 518, 529, 427 N.E.2d 1239, 1244.) As one commentator has noted:

“Like a commercial partnership, the parties in a marriage function by sharing duties and by dividing their labor, without which the relationship could not succeed. It is conceded that the relationship cannot successfully operate without the acquisition of some capital. The accumulation of that capital, however, will not occur, especially if children are present, unless the homemaker-spouse contributes a significant part of her energies to the marriage. The services of both are necessary for the continuance of the relationship. ’[T]he wife who spends almost all her married life in homemaking and childrearing contributes significantly to the family’s economic welfare by making it possible for [the] husband to earn income and amass property during the marriage.’ Parties enter into marriage to achieve particular objectives, and, as in a commercial partnership, the degree to which the joint efforts effectuate this purpose provide [sic] the basis for determining and assessing property rights upon dissolution. This viewpoint of marriage as a functional partnership underlies the statutory scheme of the Illinois Marriage and Dissolution of Marriage Act.” Heyman, The Illinois Marriage and Dissolution of Marriage Act: New Solutions to Old Problems, 12 J. Marshall J. Prac. & Proc. 1, 8 (1978).

To foster the principle of marriage as a functional partnership, section 503(b) of the Act creates a broad category of “marital property” by presuming that all property acquired by either spouse after the marriage and before a judgment for dissolution of marriage is marital property, regardless of how title is held. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b).) This presumption may only be overcome by a showing that the property has been acquired through one of the methods specified in section 503(a) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)). These methods include:

“(1) property acquired by gift, legacy or descent;
(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent;
(3) property acquired by a spouse after a judgment of legal separation;
(4) property excluded by valid agreement of the parties;
(5) any judgment or property obtained by judgment awarded to a spouse from the other spouse;
(6) property acquired before the marriage;
(7) the increase in value of property acquired by a method listed in paragraphs (1) through (6) of this subsection, irrespective of whether the increase results from a contribution of marital property, non-martial property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section; and
(8) income from property acquired by a method listed in paragraphs (1) though (7) of this subsection if the income is not attributable to the personal effort of a spouse.” 111. Rev. Stat. 1987, ch. 40, par. 503(a).

As indicated by the facts of this case, it is uncontroverted that the money used to purchase the winning lottery ticket came from either petitioner’s or respondent’s earnings, the purchase of the ticket occurred during their marriage, and the irrevocable right to receive the lottery payments was established during the marriage. Under such circumstances, the winnings would be presumed to be marital property under section 503.

Petitioner does not claim that the lottery winnings were acquired by any of the methods specified in section 503(a) so as to overcome this presumption but instead asserts that because lottery winnings are taxable as income to the recipient in the year received, the winnings should also be considered income for purposes of his dissolution of marriage proceeding. He argues that if the winnings are characterized as income they should not be divided between the parties but, instead, they could be considered in arriving at an award of maintenance to respondent.

In making this assertion, petitioner fails to distinguish between the shared enterprise concept which underlies the concept of marital property and the essentially revenue-gathering purposes of the Internal Revenue Code. The shared enterprise concept reflects the modern day recognition that it takes the joint efforts of the parties to a marriage to acquire property. (Heyman, The Illinois Marriage and Dissolution of Marriage Act: New Solutions to Old Problems, 12 J. Marshall J. Prac. & Proc. 1, 7 (1978).) Based on a recognition of that joint effort, the Act presumes that all property acquired during the marriage is marital property. This is true regardless of whether the property is also taxable as income. For example, in In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 545 N.E.2d 459, the petitioner argued that the income from a motel investment, which was taxable as income under section 61 of the Internal Revenue Code, should not be considered marital property but rather should be considered his income for purposes of determining temporary maintenance and child support. The Harding court rejected that argument, stating: “These proceeds should have been included in the parties’ assets and should have been considered by the trial court when it distributed the assets.” (189 Ill. App. 3d at 678, 545 N.E.2d at 468.) Similarly, other property, such as pension payments, though taxable as income (26 U.S.C. §61(a)(11) (1988)), also has been treated as marital property when it is available or the right to receive it has been established at the time of dissolution. In re Marriage of Hunt (1979), 78 Ill. App. 3d 653, 397 N.E.2d 511.

The fact that the payments are made solely in petitioner’s name does not alter their marital property character, for section 503(b) presumes that all property acquired by either spouse is marital property regardless of how title is held. Nor does the fact that the vast majority of the lottery payments will not be received until after the entry of the judgment of dissolution of marriage alter the marital property character of the payments. In this regard the lottery installments are much like pension payments to be made in the future. In Illinois, pension rights, whether matured, not matured, vested, or nonvested, are treated as marital property for dissolution pmposes. (In re Marriage of Fairchild (1982), 110 Ill. App. 3d 470, 473, 442 N.E.2d 557, 559.) The theory behind this treatment is that these rights are valuable rights acquired during the marriage and, although the payments may not be received until after the marriage, they are property divisible as the fruit of the shared enterprise of marriage. (In re Marriage of Pieper (1979), 79 Ill. App. 3d 835, 840-42, 398 N.E.2d 868, 871-73.) Similarly, the lottery winnings, the irrevocable right to which was acquired during the marriage, are fruit of the shared enterprise of marriage and should be divided as martial property.

We find no merit to petitioner’s argument that since he is not the annuity contract holder, his rights should be thereby treated differently. The significant factor in classifying this annuity contract is not whether petitioner is the named contract holder, but rather that under the terms of the contract he is the party with the irrevocable right to receive the payments. Nor do we find the inability to assign payments to change the characterization of the payments because the right to receive the payments is paramount and any need to assign may be accomplished pursuant to the statutory provision that “any person pursuant to an appropriate judicial order may be paid the prize to which the winner is entitled.” Ill. Rev. Stat. 1987, ch. 120, par. 1163.

Petitioner argues that although no Illinois case has expressly ruled that lottery winnings are income to the recipient, two Illinois cases, In re Marriage of Boyden (1987), 164 Ill. App. 3d 385, 517 N.E.2d 1144, and In re Marriage of Parello (1980), 87 Ill. App. 3d 926, 409 N.E.2d 461, strongly imply that such winnings are income. We find both cases to be readily distinguishable on their facts. Neither the Boyden case nor the Parello case involved the question of the characterization of lottery winnings, the right to which had accrued during the marriage. In Boyden, the court characterized the lottery winnings of a divorced husband, acquired 10 years after the divorce, as income for child support modification purpose. (Boyden, 164 Ill. App. 3d at 387, 517 N.E.2d at 1146.) In Parello, though factually there were no lottery winnings involved in the case, the court noted that “[cjounsel for petitioner concedes that neither petitioner nor the trial court intended for extraordinary income such as income from a lottery or sweepstakes ticket to be included” in determining the amount of maintenance to be paid after the dissolution of marriage. (Parello, 87 Ill. App. 3d at 936, 409 N.E.2d at 468.) Thus, both cases dealt with the characterization of lottery winnings acquired after, not during, the marriage. Accordingly, neither case can be properly read to imply that lottery winnings, the right to which is acquired during the dissolution of marriage, should be characterized as income.

Both sides have cited published and unpublished decisions from other jurisdictions to support their respective characterizations of the lottery winnings. Though we are not bound by any of these decisions, we do find the decision of the New York Supreme Court, Appellate Division, in Ullah v. Ullah (1990), _ A.D.2d _, 555 N.Y.S.2d 834, to be instructive on the issue. The relevant facts in that case are that during the marriage the husband used marital funds to purchase a New York State lottery ticket which won the jackpot of $8 million. Upon winning the lottery, both the husband and wife resigned from their respective jobs and jointly decided the manner in which the first installment of the lottery winnings would be spent. Divorce proceedings were instituted soon thereafter. Though the husband conceded at trial that the lottery prize was joint income, he argued on appeal that the lottery award was his separate property. In construing language similar to that contained in section 503 of the Act, the Ullah court stated:

” Consistent with the legislative intent to treat modern marriages as economic partnerships [citation], clearly the unambiguous, plain meaning of Domestic Relations Law §236(B)(1)(c) mandates that a lottery jackpot, including future payments, the right to which arose during the marriage by virtue of the efforts of one spouse, and upon a wager of marital funds, constitutes marital property subject to equitable distribution [citations].” (_A.D.2d at_, 555 N.Y.S.2d at 835.)

The court further noted that an equal split of the lottery prize was a fair distribution of this marital property because

“in the instant case the contributions each spouse made prior to winning the prize have little relevance to the manner in which the lottery jackpot should be distributed. This award was won through sheer luck, against odds of 12,913,583 to one. As Justice Rigler [trial judge] aptly recognized, this enormous return required ‘little effort or investment’. As it was predominately the result of fortuitous circumstances and not the result of either spouse’s toil or labor, we find that an equal division of this jackpot was entirely appropriate.” _ A.D.2d at _, 555 N.Y.S.2d at 835.

Similarly, in the present case, the lottery jackpot of $3.6 million, including the right to future payments, was acquired during the marriage through the efforts of one spouse who wagered marital funds. Under the language of section 503 and consistent with its underlying principle, the jackpot should be treated as marital property. Furthermore, the record discloses that the parties themselves treated the jackpot as marital property. Though unlike the husband in Ullah, petitioner did not ever verbally concede that the lottery award was joint income, it is clear from the conduct of the parties upon winning the lottery that they treated it as joint property. As in Ullah, both parties quit their respective jobs and shared in the determination of how the winnings would be spent. Furthermore, it is significant to note that upon receipt of the lottery installments, petitioner first deposited the installments in the parties’ joint marital accounts and then the parties used the funds to acquire items some of which were placed in their joint names, such as the camper, or to jointly open accounts, such as the accounts established for their children and petitioner’s godchild. Under such circumstances, we find the trial court’s characterization of the jackpot as marital property to be correct.

Additionally, as in Ullah, we find that an equal division of this asset was appropriate. Regardless of who actually handled the purchase of the winning ticket or who selected the numbers, the actual winning was predominately the result of fortuitous circumstances. Under such circumstances, we cannot say that either party would be entitled to a greater share of the prize. We view this situation as similar to any fortuitous or unfortuitous circumstance which would impact on the value of marital property. Under a shared enterprise or partnership concept of marriage, both parties should share in the consequences.

Petitioner next contends that the trial court abused its discretion in awarding respondent a disproportionate share of the marital property. To a large extent this contention is premised upon the disproportionate division which would result from a characterization of the lottery winnings as income. Since we have affirmed both the trial court’s characterization of the winnings as marital property and its even split of the remaining 15 installments of the winnings, the basis for this contention has been largely eliminated. Because the lottery winnings represent such a large portion of the marital property, an even split of those winnings would result in the overall division of the property being close to equal. Nonetheless, we will address petitioner’s contention to the extent that it is directed at the division of the nonlottery marital property. Petitioner argues that the court’s division of this remaining marital property resulted in an award of 97% of that property to respondent, and only 3% to him.

The Act does not require that marital property be evenly divided between the parties. (In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 303, 524 N.E.2d 695, 698.) The Act merely requires that a trial court divide the marital property in “just proportions” considering all relevant factors, including:

“(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(5) any obligations and rights arising from a prior marriage of either party;
(6) any antenuptial agreement of the parties;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
(8) the custodial provisions for any children;
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” (Ill. Rev. Stat. 1987, ch. 40, par. 503(d).)

Upon review, a trial court’s division of marital property will not be reversed absent a showing that the court acted arbitrarily and beyond the bounds of reason. Szesny v. Szesny (1990), 197 Ill. App. 3d 966, 971, 557 N.E.2d 222, 225.

As previously noted, the trial court expressly predicated its division of marital property on a consideration of the factors set forth in section 503 of the Act, including the economic circumstances and liabilities of each party, petitioner’s dissipation of some marital assets during the parties’ separation, and the future earning capacity of the parties. Based on its consideration of these factors, it assigned certain property to each party and directed that the parties share the “net proceeds” on the sale of other property based on a two-thirds respondent — one-third petitioner split. Though the court’s division of this property does result in an uneven division between the parties, we find the disparity to be within the bounds of reason in light of the circumstances of this case. Furthermore, we find that when one in-eludes the share of the lottery winnings each party will receive, any disparity in the division of the other marital property would be insignificant and not such as to make the division unjust.

Initially, we note that based on the evidence presented at trial, the court’s division of the remaining marital property did not result in respondent’s receiving 97% and petitioner’s receiving 3% of that property. Pursuant to the court’s division, the respondent was assigned the following property with the following values:

(1.) Marital Home Furnishings — Unknown

(2.) 1983 Chevrolet Camper — $35,000

(3.) 1982 Chrysler - $10,000

(4.) IRA - $ 2,000

(5.) Life Insurance Cash Value — $ 7,000

(6.) Two-thirds Sale of Boat Proceeds — $ 6,666.67

(7.) Two-thirds Pending Lawsuit

Proceeds — $ 3,216.67

$63,883.34

(Assigned Liabilities) - 4,480.00

$59,403.34

The petitioner was assigned the following property with the following values:

(1.) 1971 Cadillac — Unknown (2.) 4323 Kildare - $19,900 or $20,000 (3.) Trucks - $ 6,035 or $ 7,735 (4.) 4323 Kildare Furnishings - $ 5,000 (5.) One-third Sale of Boat Proceeds - $ 3,333.33 (6.) One-third Pending Lawsuit Proceeds - $ 1,608.33 $35,876.66 or $37,676.66

Additionally, respondent was assigned two-thirds and petitioner was assigned one-third of the “net proceeds” from the sale of the Downed and Cooper farms, the farm equipment and the livestock. Though the precise amount of the net proceeds will not be known until all the property is sold, based on the evidence presented at trial, the projected net proceeds would appear to be based on the following figures:

ITEM VALUE LIABILITIES

(1.) Downell Farm $80,000 or $90,000 — $ 69,600 (loan)

— 24,000 (mortgage)

- 4,800 or $ 5,400

(6% commission)

(2.) Cooper Farm 378,300 or 385,000

305,000 or 315,000 (mortgage)

(3.) Farm Equipment (4.) Livestock

35,000

37,200

22,698 or 23,100 (6% commission) 38,055 (loan)

39,000 or 42,000 or 49,000 (loan)

Even assuming that this property would sell at the highest combined value, $547,200, and that the liabilities would be at the lowest possible combined level, $504,155, the projected net proceeds from the sale would be no more than $43,045, which according to the trial court’s order would be divided $28,696.67 to the respondent and $14,348.33 to the petitioner. Adding these figures to the figures for the solely assigned property, the parties would receive:

Respondent

$ 59,403.34 + 28,696,67 $ 88,100.01

Petitioner

$ 35,876.66 or 37,676.66 + 14,348.33

$ 50,224.99 or 52,024.99

Respondent’s $88,100.01 would represent approximately 63% of the remaining marital property. In light of respondent’s lower earning capacity, as evidenced by the fact that she remained out of the work force during most of the marriage and when she reentered the work force she worked at only low paying jobs, and the circumstances under which she lived in 1986, when petitioner had virtually full use of that year’s lottery payment, we cannot say that such a division would be beyond the bounds of reason. (See In re Marriage of Hanson (1988), 170 Ill. App. 3d 298, 303, 524 N.E.2d 695, 698.) Furthermore, the fact that each party will receive total lottery payments of $1,353,633.70 (gross) makes this disparity insignificant as the overall percentages of marital property received would be approximately 51% for the respondent and 49% for the petitioner.

Petitioner argues that the court’s division of marital property would require him to raise additional cash to liquidate his share of the farms, the equipment and the livestock, but we find this argument to be unsupported- by the record. The judgment only provides for a sharing of this property after all the existing loans, attorney fees, brokerage commissions and any and all ordinary and unusual closing costs are paid. Thus, both parties will share in the cost of liquidating the property. Moreover, from the record presented to us, it does not appear that there will be a loss from the sale of the property. The record indicates that even assuming the greatest possible liability and lowest possible sale price supportable by the evidence, $523,153 and $530,500, respectively, the sale of the farms, farm equipment and livestock would generate a gain. Therefore, we need not address the hypothetical question of who would bear the burden of any loss.

For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

Affirmed.

COCCIA, P.J., and MURRAY, J., concur.

      The initial payment of $180,484.50 was paid by the Lottery Division of the State of Illinois apart from this contract.


author: JUSTICE LORENZ

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARVIN JOHNSON, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—1969
    Opinion filed November 30, 1990.

      Michael J. Pelletier and Maria Harrigan, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, and Donna Lambert, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE LORENZ

delivered the opinion of the court:

Following a bench trial, defendant Marvin Johnson was convicted of the murder of Marvetta Arrington, his 17-month-old daughter, and was sentenced to 30 years’ imprisonment.

We affirm.

We summarize, below, the relevant testimony presented ¿t trial.

Lavetta Arrington, Marvetta’s mother, testified that on the evening of November 26, 1985, after engaging in an argument with the defendant, her boyfriend, at her apartment, she left him alone with seven children, including Marvetta, and spent the night at her mother’s house. The next morning, she telephoned defendant at her apartment and told him she was going to pick up the children. Shortly thereafter, one of the children telephoned Arrington back. Arrington asked to speak to the defendant and, at that time, he advised her that Marvetta would not wake up. Arrington testified she told the defendant to call an ambulance and left for her apartment.

Arrington stated that when she dressed Marvetta on the morning of November 26, 1985, she did not notice any injuries on her body except for a “busted lip” which Marvetta sustained in a fall two days earlier at Arrington’s mother’s house.

Chicago police officer Alfonso Ware testified he was assigned to meet an ambulance at Arrington’s apartment on the morning of November 27, 1985, and was the first officer on the scene. Upon arriving, Ware stated he saw Marvetta lying on a bed in a bedroom. The bed was approximately two feet off of the floor. Ware stated paramedics in the bedroom were putting away their equipment. Ware described Marvetta’s neck and limbs as cold and stiff to the touch. She was not breathing. He also noticed bruise marks on her face and neck and dried blood on her mouth.

Ware stated he left the bedroom and spoke to defendant in the living room. Ware testified defendant told him that early in the morning Marvetta had started crying. Edward, one of the other children, had told defendant that Marvetta had rolled off of the bed. Defendant had instructed Edward to put Marvetta back on the bed. However, Ware testified, defendant stated he had not checked on Marvetta himself.

Richard Levy, an assistant State’s Attorney, and James Hanrahan, a Chicago police detective, both testified to being present on November 29, 1985, when defendant gave an oral account to police of the events of November 26, 1985. Two recorded versions of that account, both signed by defendant, were admitted into evidence.

One writing consists of Levy’s handwritten summary of defendant’s statement. In it, defendant stated that, on the night of the incident, he was angry because he was left by Arrington to tend to the seven children, alone. Defendant stated that, at about 10 p.m., he sent three of the children, including Marvetta, to bed, but that the children did not go to bed and were misbehaving. Marvetta was crying. Defendant prepared a bottle of milk for Marvetta. Marvetta continued to cry and defendant threw the bottle at her. Defendant described the bottle as being about eight inches tall, holding approximately 8 to 10 ounces of fluid and shaped like a bear.

The bottle struck Marvetta in her midsection and knocked her down. Defendant went to Marvetta, lifted her, standing her up by a wall and a refrigerator. Defendant stated he hit her two or three more times in the stomach with the bottle. Defendant ordered Marvetta back to bed and returned to the living room, eventually falling asleep.

At about 7 a.m. the next morning, Edward advised defendant that Marvetta had fallen out of bed. Defendant instructed Edward to pick Marvetta up and put her back into the bed. Approximately three hours later, another of the children notified defendant that Marvetta would not wake up and telephoned Arrington.

The second writing is in the form of a court reporter’s transcription of a subsequent interview of defendant by Levy on November 29, 1985. Defendant’s account of the sequence of events in the interview is substantially identical to that contained in Levy’s handwritten summary.

Doctor Shaku Teas, an assistant medical examiner for Cook County, was qualified as an expert in forensic pathology upon the parties’ stipulation and testified regarding an autopsy she performed on Marvetta. Teas testified that her internal examination of Marvetta revealed blood mixed with other fluids in the abdominal cavity and blood in the right chest cavity. Teas discovered a tear in the mesentery, the abdominal connective tissue. The duodenum, that portion of the stomach leading to the intestines, was completely separated. Marvetta’s liver was lacerated, showing hemorrhage. There were contusions or bruises on the right lung and hemorrhage underlying the inner tissue of the lung.

Based on her examination, Teas concluded Marvetta’s death was attributable to peritonitis resulting from multiple injuries to the mesentery, duodenum, and liver. Teas stated that Marvetta’s injuries would be consistent with injuries caused to a child being punched in the stomach with a baby’s bottle filled with liquid. Further, Marvetta’s injuries were caused by more than one blow and would not be consistent with a fall from a bed. In Teas’ opinion, the internal injuries were recent, being sustained within a 24-hour period preceding death, and could not have been caused by the work of paramedics attempting to revive Marvetta.

Opinion

Defendant first contends on appeal that the trial judge improperly limited defendant’s counsel’s cross-examination of Teas in violation of defendant’s rights under the sixth and fourteenth amendments to the Constitution. Specifically, defendant argues the trial judge precluded an attempt by counsel to impeach Teas’ testimony citing a textbook, apparently supporting, contrary to Teas’ opinion, the contention that an 18-month-old child could sustain a lacerated liver and duodenum in a fall from a crib.

The record discloses that although Teas stated she was familiar with the particular textbook, Pathology of Homicides by Lester Adelson, and used it for reference, Teas could not say the book was one of the most commonly used sources on forensic pathology or whether it was authoritative. The trial judge sustained the State’s objection to defendant’s counsel’s use of the textbook. The judge reasoned Teas’ acknowledgment that she was aware of and had used the textbook in the past was of no consequence because Teas indicated she had not relied on the textbook in making her diagnosis in the case at hand.

In an offer of proof outside of Teas’ presence, defendant’s counsel indicated he intended to impeach Teas by revealing Teas was unaware of any documented case in which an 18-month-old child died after falling from a crib as a result of peritonitis caused from lacerations of the duodenum and liver and a tear of the adrenal gland.

We do not agree with the reason given for precluding defendant’s counsel’s cross-examination of Teas with reference to the mentioned textbook. In Darling v. Charleston Community Memorial Hospital (1965), 33 Ill. 2d 326, 211 N.E.2d 253, our supreme court rejected such a rule limiting cross-examination of an expert witness because the source upon which the cross-examination was based was not used by the expert being questioned. Expert testimony as a tool in the attainment of justice, the court reasoned, would be more effective if cross-examination were permitted with respect to the views of recognized authorities. (Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259.) Instead, cross-examination of an expert with reference to a recognized text or treatise is proper where either the court has taken judicial notice of the author’s competence (see Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259) or, absent concession by the witness, the cross-examiner proves the text or treatise is authoritative (see Darling, 33 Ill. 2d at 336, 211 N.E.2d at 259; People v. Behnke (1976), 41 Ill. App. 3d 276, 283, 353 N.E.2d 684, 689).

We believe the record in the instant case reveals an adequate concession by Teas that she considered the textbook, Pathology of Homicides, authoritative for purposes of satisfying the supreme court’s concern, in Darling, regarding the effectiveness of expert testimony. Teas stated that, although she did not rely on the textbook, she related she was familiar with it and had used it in the past as a reference.

Nevertheless, we cannot conclude, in light of the evidence presented, that reversible error was committed at trial when defendant’s counsel was precluded from closely examining Marvetta with respect to the textbook. Teas’ direct testimony established specifically that Marvetta’s death resulted from multiple blows to the area of her stomach, not from any single blow. Defendant admitted to striking Marvetta two or three times with the bear-shaped baby bottle filled with milk. In light of that positive evidence, we believe that even if the trial judge had permitted defendant’s counsel to attempt to impeach Teas by citing a contrary case study in a textbook, that attempt would have had no effect on the ultimate determination. We therefore find the error harmless.

Defendant next argues the State failed to prove defendant possessed the requisite mental state required for murder because the State did not prove that defendant knew that hitting Marvetta in the stomach with a bottle would cause death or created the strong probability of death or great bodily harm. See Ill. Rev. Stat. 1985, ch. 38, par. 9—1.

We disagree. Intent to commit the offense of murder can be implied or inferred from the character of the act. (People v. Szerletich (1980), 86 Ill. App. 3d 1121, 1124, 408 N.E.2d 1098, 1101.) Here, the record discloses that on November 29, 1985, the defendant, admittedly already angry at having been left to supervise seven children alone, prepared a bottle to quiet Marvetta’s continued crying. The defendant, then a 21-year-old male weighing 125 pounds, threw the bottle filled with milk at Marvetta, then a 17-month-old infant weighing approximately 18 pounds, striking her in the midsection with enough force to knock her down. The defendant proceeded to stand Marvetta up and strike her in the stomach with the bottle two or three more times. We believe that evidence is sufficient to support an inference of the requisite intent and therefore refuse to disturb the trial judge’s finding of guilt.

Defendant last contends that the prison sentence imposed by the trial judge was excessive. Defendant does not dispute the sentence was within the statutory range of 20 to 40 years. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1(a)(1)(a).) Rather, defendant argues that consideration of various mitigating factors shows his sentence constituted an abuse of discretion. In particular, defendant notes the following: existence of a potential for rehabilitation in view of his youth and absence of a prior violent criminal offense; the entrustment in him by Marvetta’s mother with sole care of the seven children on November 29, 1985; the absence of evidence indicating a pattern of abuse to Marvetta; his exhibited remorse; and his cooperation with police.

We have carefully considered the mitigating circumstances in the instant case. We are cognizant, however, of the great discretion properly afforded trial judges in imposing criminal sentences and must de-. cline to substitute, instead, our own judgment merely because we might have imposed a more lenient sentence. See People v. Perruquet (1977), 68 Ill. 2d 149, 368 N.E.2d 882.

Affirmed.

COCCIA, P.J., and GORDON, J., concur.


author: PRESIDING JUSTICE COCCIA

text:
    GENERAL MOTORS CORPORATION, Plaintiff-Appellee, v. JACK DOUGLASS, Defendant-Appellant.
    First District (5th Division)
    No. 1—88—3670
    Opinion filed November 30, 1990.
    Lee T. Hettinger, of Chicago, for appellant.
    John J. O’Malley and Gregory W. Beihl, both of Pope, Ballard, Shepard & Fowle, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE COCCIA

delivered the opinion of the court:

I

Defendant Jack Douglass appeals from the circuit court’s entry of summary judgment against him and in favor of plaintiff General Motors Corporation on count III of its complaint. In count III, General Motors accused Douglass of converting $37,364.36. Because we have concluded that General Motors did not establish conversion on the part of Douglass, this case must be reversed and remanded.

II

General Motors filed its three-count complaint on March 30, 1987. It directed count I against Jack Douglass Chevrolet, Inc. In count I, General Motors alleged that Douglass Chevrolet was one of its authorized dealers prior to January 1984. As part of the business relationship between General Motors and Douglass Chevrolet, General Motors maintained a “holdback account” concerning Douglass Chevrolet. From time to time, General Motors made payments to Douglass Chevrolet from the holdback account. About May 21, 1984, General Motors issued a check payable to Douglass Chevrolet, among others, for $50,201.24. General Motors believed that this amount represented the current balance in the holdback account for Douglass Chevrolet. General Motors attached a copy of this check to its complaint as an exhibit. General Motors went on to allege that the actual balance for Douglass Chevrolet on that date was $12,836.88, which resulted in an overpayment to Douglass Chevrolet of $37,364.36. The check containing this overpayment was later endorsed by Douglass Chevrolet, among others. General Motors charged that, by its endorsement and negotiation of the check, Douglass Chevrolet converted $37,364.36 to its own use. Douglass Chevrolet failed and refused to return this sum, General Motors concluded, although it duly demanded payment.

General Motors also directed count II against Douglass Chevrolet. After incorporating the relevant allegations of count I, General Motors went on to allege that Douglass Chevrolet became indebted to it by endorsing and negotiating the check including the overpayment. In December 1984, an account was stated between General Motors and Douglass Chevrolet. Upon this statement, a balance of $37,364.36 was found due from Douglass Chevrolet to General Motors. It attached a copy of this account, which listed $37,364.36 under a column labelled “debit,” as an exhibit to its complaint. On several occasions beginning in December 1984, the account was mailed to Douglass Chevrolet. Douglass Chevrolet failed and refused to pay this sum, General Motors concluded, although it duly demanded payment.

In count III, General Motors proceeded against Jack Douglass individually. After incorporating the relevant allegations of count I, General Motors went on to allege that Douglass was the president and sole stockholder of Douglass Chevrolet. Douglass, among others, endorsed and negotiated the check that included the overpayment of $37,364.36. By endorsing and negotiating the check, General Motors charged, Douglass converted its $37,364.36 to his own use. General Motors concluded that he failed and refused to return this sum although it duly demanded payment.

Douglass Chevrolet and Douglass, individually, answered General Motors’ complaint on September 18, 1987. Regarding count III, Douglass admitted that in 1984, and prior to that time, Douglass Chevrolet was a Delaware corporation authorized to do business in Illinois. Douglass further admitted that prior to January 1984, Douglass Chevrolet was an authorized dealer of General Motors; that from time to time Douglass Chevrolet received payments from a holdback account with General Motors; that Douglass Chevrolet received a check made payable to it and General Motors Acceptance Corporation (GMAC) for the amount of $50,201.24, which was drawn from the account of General Motors’ Chevrolet Motor Division and dated May 21, 1984; and that in his capacity as president of Douglass Chevrolet he signed his name as payee on the back of the check and deposited it into Douglass Chevrolet’s account at the First National Bank of Hinsdale. Douglass denied that, by endorsing and negotiating the check, he converted General Motors’ $37,364.36 to his own use. Finally, Douglass admitted that he had not paid $37,364.36 to General Motors. As far as the remaining allegations of count III were concerned, Douglass answered that he was without sufficient knowledge to determine their truth or falsity and, therefore, neither admitted nor denied them, but demanded strict proof thereof.

On June 20, 1988, General Motors moved for summary judgment against Douglass on count III of its complaint. General Motors argued that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Its motion was based upon the admission of Douglass, in his answer, that he had endorsed and negotiated the check. By so doing, General Motors contended, Douglass converted its $37,364.36 and was individually liable for the overpayment. General Motors’ motion was also based on the affidavit of Norm F. Corda. General Motors attached a copy of Corda’s affidavit to its motion. Corda, senior administrator of accounts receivable for Chevrolet Motor Division of General Motors, stated that General Motors issued a check in the amount of $50,201.24, payable to Douglass Chevrolet and GMAC, on May 21, 1984. On that date, General Motors’ records mistakenly indicated that it owed $50,201.24 to Douglass Chevrolet. In fact, Corda conceded, the correct amount owed by General Motors to Douglass Chevrolet was $12,836.88. The General Motors account on which the check was drawn was later debited by $50,201.24, Corda affirmed.

Douglass responded to General Motors’ motion for summary judgment on August 22, 1988. In his response, Douglass asserted that General Motors failed to establish the essential elements of the tort of conversion. Douglass also attached his affidavit to the response. In the affidavit, Douglass stated that he was president and sole stockholder of Douglass Chevrolet, which was an automobile dealership for Chevrolet Motor Division of General Motors. Under the terms of a dealership agreement between General Motors and Douglass Chevrolet, General Motors owed Douglass Chevrolet money based on a percentage of the money Douglass Chevrolet had paid to General Motors for cars it had bought from General Motors over a period of time. Checks made payable to Douglass Chevrolet and GMAC were mailed to Douglass Chevrolet from time to time in payment of the money owed by General Motors. In May or June of 1984, Douglass Chevrolet received a check made payable to it and GMAC in the amount of $50,201.24 drawn from the account of General Motors’ Chevrolet Motor Division. Douglass affirmed that at no time, either as an individual or as president of Douglass Chevrolet, did he attempt to persuade General Motors to deliver or make payable to Douglass Chevrolet the check in question; at no time while the check was in the possession of Douglass Chevrolet did General Motors indicate to him or to Douglass Chevrolet that it had not authorized full payment to Douglass Chevrolet on the check or had overpaid the amount due and owing to Douglass Chevrolet on its account; and at no time did General Motors indicate to Douglass or Douglass Chevrolet that it was restricted in the use of the check, or that it was entrusted to use the check for certain purposes, or that it was required to deposit the check into a special account. Lastly, Douglass stated that at no time while the check was in the possession of Douglass Chevrolet did General Motors request or demand return for the amount of the check or any part of it.

After General Motors replied to Douglass’ response, its motion for summary judgment was heard on November 22, 1988. At the hearing, counsel for Douglass informed the circuit court during argument that Douglass Chevrolet had been sold between the time it received the check and six months later, when General Motors demanded payment. The circuit court granted General Motors’ motion. Although the court concluded that there was no unauthorized taking of the check, it ruled:

“[0]nce that check was submitted and then there was a demand, the conversion took place at that point. * * *
At the point where demand was made and the overpayment was not returned.”

That same day, the circuit court entered an order granting summary judgment against Douglass and in favor of General Motors on count III of its complaint, finding that there was no just reason for the delay of enforcement of its order pursuant to Illinois Supreme Court Rule 304(a). (See 107 Ill. 2d R. 304(a).) Douglass then appealed to this court. He is represented by different counsel on review.

Ill

Although General Motors argues that the abuse of discretion standard governs review of orders granting summary judgments, the better view is that the granting of a motion for summary judgment is not a matter of judicial discretion. Rather, the normal deference a reviewing court grants an order of a trial court is not applicable to orders granting summary judgments, in order to ensure that a party’s right to trial by jury has not been unjustly lost. (See R. Michael, 4 Illinois Practice: Civil Procedure Before Trial §38.5, at 233 (1989).) And, where a plaintiff has moved for summary judgment, the materials relied upon must establish the validity of the plaintiff’s factual position on all the contested elements of the cause of action. (R. Michael, 4 Illinois Practice: Civil Procedure Before Trial §38.5, at 229 (1989).) In other words, the plaintiff’s affirmative evidence must establish all essential elements of the claim not admitted in the pleadings. R. Michael, 4 Illinois Practice: Civil Procedure Before Trial §40.3, at 270-71 (1989).

With the appropriate standard of review in mind, we turn to a consideration of whether General Motors has established the essential elements of its conversion claim. The modern action for the tort of conversion always has been colored by its descent from the ancient common law form of action of trover, which originated as a remedy against the finder of lost goods who refused to return them. (See Restatement of Torts (Second) §242, comment d, at 474 (1965).) Until comparatively recently, the fiction of losing and finding persisted in the pleading of the action. However, the basis of the tort was considered to be an interference with possession of a chattel, or with the right to immediate possession. (See Restatement of Torts (Second) §222A, comment a, at 431-32 (1965).) Although the common law forms of action such as trover and conversion have long since been abolished in this State, if the sort of relief formerly encompassed by them is sought, the same substantial averments formerly required must be pleaded. (See Mid-America Fire & Marine Insurance Co. v. Middleton (1984), 127 Ill. App. 3d 887, 889, 468 N.E.2d 1335, 1336.) Consequently, a proper complaint for conversion must allege: (1) an unauthorized and wrongful assumption of control, dominion, or ownership by defendant over plaintiff’s personalty; (2) plaintiff’s right in the property; (3) plaintiff’s right to the immediate possession of the property, absolutely and unconditionally; and (4) a demand for possession of the property. (Middleton, 127 Ill. App. 3d at 891, 468 N.E.2d at 1338.) The essence of conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held. In re Thebus (1985), 108 Ill. 2d 255, 259, 483 N.E.2d 1258, 1260.

In this case, General Motors alleged in count III of its complaint that Douglass converted its $37,364.36 when he endorsed and negotiated the check including the overpayment. But the circuit court ruled that Douglass converted General Motors’ money later, when he refused its demand that he return the overpayment. As far as either date is concerned, however, we have concluded that General Motors failed to establish the essential elements of conversion.

We focus first upon General Motors’ theory that conversion occurred at the time of Douglass’ endorsement and negotiation of the check. Plaintiffs in Douglass v. Wanes (1983), 120 Ill. App. 3d 36, 458 N.E.2d 514, were victims of a bad-check scheme. They sought to hold certain banks liable for conversion. The defendant who perpetrated the scheme requested and received from plaintiffs checks drawn by them payable to the defendant banks. After the circuit court granted the banks’ motions to dismiss, plaintiffs appealed. The appellate court held that a conversion action could not lie against the payee banks. The court began its analysis by noting that an essential element of conversion is the plaintiff’s immediate right of possession as against the defendant. Even though the payee banks were not entitled to holder in due course status under the Uniform Commercial Code, the court reasoned, they were holders of the checks, for they were in possession of instruments payable to their order. (Wones, 120 Ill. App. 3d at 45, 456 N.E.2d at 522, citing Ill. Rev. Stat. 1979, ch. 26, par. 1—201(20).) As the payee banks were holders of the instruments, and thereby entitled to possession, a conversion action could not be maintained against them. The court also relied on the comments to section 3 — 419 of the Uniform Commercial Code, which state that a negotiable instrument is the property of the holder. (Wones, 120 Ill. App. 3d at 47, 458 N.E.2d at 523, citing Ill. Ann. Stat., ch. 26, par. 3—419, Uniform Commercial Code Comment 2, at 328 (Smith-Hurd 1963).) Because they were holders of the checks, the defendant banks became owners of the instruments; as between the drawer plaintiffs and the payee banks, the banks had the immediate right to possession of the instruments at the time of negotiation. And, the court stated, the Uniform Commercial Code provided that an instrument’s holder may transfer or negotiate it or enforce payment in his name. Wones, 120 Ill. App. 3d at 47, 458 N.E.2d at 523, citing Ill. Rev. Stat. 1979, ch. 26, par. 3—301.

Here, the check attached to General Motors’ complaint was drawn by it upon Citibank, N.A., New York, New York, and made payable to Douglass Chevrolet and GMAC. The back of the instrument reflects that it was endorsed by GMAC, without recourse, and by Douglass, as president of Douglass Chevrolet. Although Douglass may not have been entitled to holder in due course status, in light of Wones he could not have converted this check merely by endorsing and negotiating it. Douglass was entitled to possession of the instrument; he became its owner as between himself and the drawer, General Motors; he had the immediate right of possession; and he also had the right to negotiate the check. Thus, an essential element of conversion — General Motors’ immediate right of possession as against Douglass — is lacking, at least at the time of endorsement and negotiation. Accordingly, General Motors failed to establish that Douglass committed an act of conversion by endorsing and negotiating the check containing the overpayment.

We now turn to the basis of the circuit court’s ruling, namely that Douglass converted General Motors’ money later, when he refused its demand. Resolution of this issue requires discussion of a line of cases that can be traced to Kerwin v. Balhatchett (1909), 147 Ill. App. 561. Defendant in Kerwin was the medical attendant for plaintiff’s family. After the death of plaintiff’s husband, she received a check for $2,000. Plaintiff herself was ill at this time, and defendant took the money with her knowledge and consent. She also owed defendant about $170 for services and disbursements. Plaintiff brought an action of trover, and she recovered judgment upon the jury’s verdict for $1,256.86. Defendant appealed, and the appellate court reversed, concluding that there had been no conversion. The appellate court reasoned:

“The money was voluntarily given to defendant, to do certain things with — to pay himself the debt which plaintiff owed him and then to discharge other specified indebtedness of plaintiff and to account to her for the balance. The relation of debtor and creditor was thus created between them. Trover lies for specific chattels wrongfully converted, and not for money had and received for payment of debts. It does not operate on chattels generally, but specifically, such as money in coin or bills, animals, or other property capable of identification as being the actual property or thing wrongfully taken and converted. [Citations.]” (Kerwin, 147 Ill. App. at 565-66.)

However, the appellate court held that on remand plaintiff had the right to change her action from trover to assumpsit. Kerwin, 147 Ill. App. at 567.

Since 1909, Kerwin has been followed in cases similar to ours. In Middleton, for example, plaintiff insurer filed an action of trover and conversion after its insureds were killed in an automobile accident. A dispute arose between plaintiff and defendants, the latter having represented the administrator of the insureds in a wrongful death and declaratory judgment action. Under the terms of a release prepared by plaintiff and signed by its insureds, plaintiff had the right to reimbursement from any settlement of the wrongful death actions. Yet that reimbursement was to be reduced by plaintiff’s proportionate share of all reasonable costs incurred in effecting the recovery. The appellate court decided that plaintiff failed to establish the elements of conversion by a preponderance of the evidence. Relying on Kerwin, the appellate court stated that conversion lies only for a specific chattel. (See Middleton, 127 Ill. App. 3d at 892, 468 N.E.2d at 1338.) Because plaintiff had no right to a specific fund or specific money in coins or bills, the appellate court concluded, its right was only to an indeterminate sum. The proper action in such cases was assumpsit for money had and received. See Middleton, 127 Ill. App. 3d at 892-93, 468 N.E.2d at 1339.

The supreme court of Illinois cited Kerwin with approval in The-bus. Thebus was an attorney disciplinary proceeding, in which respondent was charged with conversion by withholding funds from his employees’ wages and then failing to remit the amount withheld to the Internal Revenue Service (IRS) and to file an employer’s quarterly tax return. After discussing the leading authorities on the law of conversion, including Kerwin, the supreme court stated that the general rule which has emerged is that conversion will not lie for money represented by a general debt or obligation; instead, it must be shown that the money claimed, or its equivalent, at all times belonged to plaintiff and that the defendant converted it to his own use. (See The-bus, 108 Ill. 2d at 261, 483 N.E.2d at 1261.) Applying this principle to the facts of the case before it, the court observed that although respondent was under an obligation to remit to the IRS the amount of money withheld as taxes, this obligation was in the nature of a debt to the government. The amount withheld was not a specified, identifiable fund capable of being the subject of a conversion. Respondent was not required to segregate the withheld sums from his general funds or to deposit them in a special bank account. (Thebus, 108 Ill. 2d at 262, 483 N.E.2d at 1261.) Indeed, respondent neither maintained a separate bank account in which the taxes withheld and owed to the IRS were deposited, nor did he maintain a separate payroll account. Because respondent was not required by law to segregate the tax money from his general funds or to deposit them in a separate bank account, and because respondent did not segregate the taxes owed to the IRS, the court held that there was a question of fact as to whether there was a fund capable of being the subject of a conversion, and whether there was a conversion at all. Thebus, 108 Ill. 2d at 263, 483 N.E.2d at 1262.

In Eggert v. Weisz (7th Cir. 1988), 839 F.2d 1261, the court of appeals relied on Thebus and Middleton, two cases which relied on Kerwin. Plaintiff Eggert sued to recover the proceeds from the sale of his stamp collection. Among others, he sued defendant Weisz, personally, as the latter’s company no longer existed. A jury found Weisz liable for conversion, but the district court granted him judgment notwithstanding the verdict. Upon Eggert’s appeal, the seventh circuit affirmed. Reviewing the facts of the . case before it, the court noted that Eggert contemplated selling his collection of stamps and contacted Weisz, president and majority stockholder of Bob Weisz Stamps, for that purpose. Eggert consigned his entire collection to the company, which sold the stamps at various auctions. After each auction, the company deposited all sale proceeds in its general corporate bank account. The proceeds were not segregated from other corporate funds. After the company had sold much of Eggert’s collection, but had not paid him in full, he told Weisz to hold the money for later payment. Eggert believed that Weisz agreed to segregate his money from general corporate funds, yet Weisz believed a debtor-creditor relationship, similar to that created by a bank deposit, had been created. Neither Eggert nor Weisz attempted to clarify their relationship. Subsequently, Weisz sold his business. Before and after Weisz sold the company, Eggert’s money was treated as a loan. The money was deposited in the company’s general corporate account and was used to pay general corporate debts. When, after Weisz sold the company, Eggert requested the money, the former’s successors were unable to pay.

The reviewing court concluded that Eggert could not establish a cause of action for conversion because Illinois law limited the circumstances under which a plaintiff could maintain an action for the conversion of money. (Eggert, 839 F.2d at 1264.) Following Thebus and Middleton, the court reasoned that Eggert could not identify the money owed him as a specific chattel. The court also rejected Eggert’s argument that Weisz promised to segregate funds. As Eggert could not identify the money owed him, he had no right to a specific fund or specific money in coin or bills; accordingly, there was liability for a debt rather than for a conversion. That is, the money held for Eggert was not a specific and identifiable fund that could be converted. See Eggert, 839 F.2d at 1265.

Thebus and Eggert were followed by the district court in Rasmussen v. Sports Media Sales, Inc. (N.D. Ill. 1988), 691 F. Supp 153. Defendants in Rasmussen moved for summary judgment on plaintiff’s conversion claim. Plaintiff, who operated a sports broadcasting network, orally agreed with defendant Sports Media that it would sell advertising time on his network. Sports Media was not required to place funds received from the advertisers into a special account segregated from its other accounts, and the advertisers’ payments were deposited into its general business account. Subsequently, plaintiff terminated the agreement. After Sports Media refused to forward certain revenues collected, plaintiff sued for $157,788.05. In their summary judgment motion, defendants argued that plaintiff could not recover the funds allegedly due and owing because they were not specifically identifiable and constituted only a debt. The district court granted the motion for summary judgment. Like the parties charged with conversion in Thebus and Eggert, the district court reasoned, Sports Media deposited the disputed funds in its general business account and was under no contractual duty to place the funds in a separate account segregated from all other funds. (Rasmussen, 691 F. Supp. at 155.) The district court concluded that, in the absence of any duty to segregate funds, there was no property that could be the subject of a conversion action. To hold otherwise, the court opined, would result in an expansion of the conversion remedy that found no basis in Illinois law. See Rasmussen, 691 F. Supp. at 155.

Kerwin’s progeny were also cited with approval in Sutherland v. O’Malley (7th Cir. 1989), 882 F.2d 1196. Sutherland arose out of a fee dispute between two attorneys. Plaintiff had asked defendant to serve as co-counsel in the representation of one of her clients. After a settlement in the amount of $127,000 was obtained, defendant caused the settlement payments to be sent to him and deposited them in his firm’s client fund account. Under the fee contract with her client, plaintiff allegedly had a right to $50,800 in attorney fees. She filed suit to recover the fees, proceeding against defendant under a conversion theory, among other theories. The district court granted defendant’s motion for summary judgment and plaintiff appealed. The seventh circuit affirmed, concluding that the district court properly rejected plaintiff’s conversion claim, as she had a claim only for an indeterminate portion of the attorney fees generated by the settlement. (Sutherland, 882 F.2d at 1200.) Although defendant did not have an express contract with the plaintiff in the litigation that resulted in the settlement, the appeals court observed, he had performed substantial services. As a result, he had a quantum meruit claim for attorney fees. Therefore, the seventh circuit determined, plaintiff was not entitled to the entire $50,800 fund. While she may have been entitled to a portion of the fees generated by the underlying litigation, and could have instituted a breach of contract action against defendant, she could not make a claim for a specific, identifiable fund capable of being the subject of a conversion. (Sutherland, 882 F.2d at 1201.) Because plaintiff only had a claim for an indeterminate sum of money, she could not successfully maintain a conversion action under Illinois law, the court held. Sutherland, 882 F.2d at 1205.

The facts and principles of the these cases lead us to conclude that the circuit court erred in ruling that Douglass converted General Motors’ money when he refused its demand well after endorsing and negotiating the check which included the overpayment. As in Kerwin, a relation of debtor and creditor was created between Douglass, on the one hand, and General Motors, on the other hand, when it voluntarily, albeit mistakenly, transferred money to him, some of which represented payment it confessedly owed him. That is, we refuse to say that Douglass converted property which was voluntarily given to him in the first instance. Subsequent cases only serve to bolster this conclusion. In the language of Middleton, General Motors had a right to only an indeterminate sum of money. The guiding principle, as stated in Thebus, is that conversion cannot lie for money represented by a general debt or obligation. Here, General Motors failed to establish that the money at all times belonged to it and that Douglass converted it to his own use. Like the supreme court in Thebus, we doubt that there was a fund of money capable of being the subject of a conversion. In his affidavit, Douglass stated — and General Motors has not shown otherwise — that he was not required to segregate payments from the holdback account, and that he did not in fact segregate them. The Federal cases teach that Douglass may be liable in debt, but not in conversion, for General Motors has not identified a specific chattel. On remand, General Motors is free to seek leave to amend its complaint and proceed against. Douglass under assumpsit for money had and received, account stated, or other theories that may be appropriate. Since other remedies may be available, this is not an appropriate case for expanding the admittedly limited circumstances under which a conversion action can be maintained in this State.

In sum, whether we focus upon the allegations of the complaint (that Douglass converted the money by endorsing and negotiating the check) or the circuit court’s ruling (that conversion took place at the point of demand), General Motors was not entitled to summary judgement, for it failed to establish the essential elements of conversion.

IV

Because we have concluded that the circuit court improperly granted summary judgment against Douglass and in General Motors’ favor on count III of its complaint, this case must be reversed and remanded for proceedings consistent with our opinion.

Reversed and remanded.

GORDON and MURRAY, JJ., concur.

       “Forms of action are dead, but their ghosts still haunt the precincts of the law. In their life they were powers of evil, and even in death they have not wholly ceased from troubling. *** In no branch of the law is this more obvious than that which relates to the different classes of wrongs which may be committed with respect to chattels. In particular the law of trover and conversion is a region still darkened with the mists of legal formalism, through which no man will find his way by the light of nature or with any other guide save the old learning of writs and forms of action and the mysteries of pleading.” Salmond, Observations on Trover & Conversion, 21 L.Q. Rev. 43 (1905), quoted in W. Keeton, Prosser & Keeton on Torts §15, at 88 n.3 (5th ed. 1984).

       Justice R. Eugene Pinchara participated in this case prior to his resignation. Since that time, Justice Joseph Gordon was designated the third member of the panel, and he has read the record and briefs and listened to the oral argument tapes.