author: JUSTICE DUNN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RANDY S. MIKYSKA, Defendant-Appellant.
    Second District
    No. 2—87—0802
    Opinion filed February 24, 1989.

      Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, and G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers, Robert J. Biderman, and John A.C. Knuppel, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE DUNN

delivered the opinion of the court:

Following a jury trial, defendant, Randy Mikyska, was found guilty of reckless homicide (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 3), for causing death by driving over the speed limit at an unreasonable speed and failing to respond to a sudden crisis. He was found not guilty of reckless homicide for driving under the influence of drugs. Defendant was sentenced to two years’ imprisonment. He raises two issues on appeal: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial by evidence of his past use of illegal drugs. For the reasons below, we reverse.

At approximately 11 p.m., April 8, 1986, defendant was driving south in the right lane of Interstate 39, a 55-miles-per-hour highway in Ogle County, when he drove into the rear of a Ford Falcon that was traveling between 20 and 30 miles per hour in the right lane. The cars caught fire, and the driver of the Falcon, Harry Oltman, was killed.

At trial defendant testified that he was traveling about 55 miles per hour when he observed dim taillights approximately three-fourths of a mile away. After seeing the taillights, he checked the gauges on the dashboard, as well as the rearview mirror, both side mirrors, and around the blind spot to his left. He signaled to change lanes. After checking his blind spot, he saw the Falcon just in front of him so he braked and shifted down, but could not avoid hitting it. In a taped statement to police, defendant stated that when he first saw the taillights he had ample time to change lanes, but thought the Falcon was traveling at about the same speed as his car, about 55 miles per hour. He estimated he was about 45 feet behind the Falcon when he put on his blinker and checked his mirrors and his blind spot.

Defendant testified that before the accident, he had made his final delivery for his employer, a pharmaceutical supplier. Defendant’s log book showed that his last delivery was made at a health center in Rockford at 10:50 p.m. The collision occurred 16 minutes later, at 11:06 p.m. Defendant agreed with the prosecutor’s calculation that it would have been necessary to travel 105 miles per hour in order to travel the 28 miles from the last delivery point to the site of the accident in 16 minutes, but stated that the time indicated on the log book was inaccurate. He said he deliberately misrepresented the time because he was behind schedule.

Douglas Muchow testified he saw the fire and stopped to help. He said defendant appeared to have all his faculties about him and defendant asked him, “Where did that car come from? Why was he stopped in the middle of the road?”

Roxannne Chamock testified that at approximately 11 p.m. she was driving south on Interstate 39 at about 55 miles per hour when she approached the Falcon. She had to brake and slow down to about 40 miles per hour before she moved to the left lane to pass the Falcon. She estimated that the Falcon was going about 20 to 30 miles per hour. She stated that she was surprised that the car was going slower than normal, but she did not have difficulty passing the car.

State Trooper Michael Broome testified he was driving north on Interstate 39 at approximately 11 p.m. when he noticed the Falcon going south at a slow speed, which he estimated at 30 miles per hour. He continued to watch the car in his rearview mirror as he drove north looking for a spot to turn around. He saw a semitruck approach the Falcon at a quick pace and then move into the passing lane without problem to pass the Falcon. Broome watched the Falcon continue down the highway when he saw a fire in his mirror. He did not see defendant’s car until, he approached the accident site. Broome later conducted a visibility test near the accident site. He stated that at that point the road was a straight, level, four-lane highway. Broome testified that he sat two-tenths of a mile north of the accident site to watch a car drive by with its headlights off. He could see the car as it passed him and was able to see it as far as a half a mile past the site where there is a well-lit exit for highway 38.

State Trooper Terry Shanafelt testified for the State as an expert in accident reconstruction. He investigated the accident scene and concluded that if the Falcon’s speed was between 20 to 30 miles per hour, defendant’s car was traveling 89 to 99 miles per hour when he started braking and 82 to 94 miles per hour at impact. He observed the skid marks at the scene and found that defendant had braked his car 44 feet prior to impact.

Defendant submitted to a blood and urine test approximately four hours after the accident. Against defendant’s continuing objection and after the denial of a motion to suppress, the State was allowed to introduce the results of the tests. The blood test showed the presence of four drugs: (1) acetaminophen (Tylenol); (2) diazepam (Valium); (3) lidocaine (used as a local anesthetic); (4) pentobarbital (a sedative). It was determined that the acetaminophen and the diazepam were administered to defendant after the accident. No alcohol was found in the blood. The urine test showed traces of marijuana, though this was not quantified. Dr. John Murphy, a pathologist in charge of the chemistry and toxicology laboratories at Memorial Medical Center, testified that the level of pentobarbital found in defendant’s blood, 1.8 milligrams, was within the therapeutic range of 1 to 5 milligrams. At the therapeutic level the drug would have its optimum effect. The Valium in defendant’s blood, .4 milligrams, was below the therapeutic range of .5 to 1.5 milligrams and would not have impaired defendant’s driving ability by itself, though it would intensify the effect of the pentobarbital, but Murphy could not say by how much. Murphy explained that these two drugs were sedatives designed to relax and calm a person. He said it was quite possible that a person under the therapeutic level would have slowed reflexes and reaction time. He concluded that a person under the therapeutic level could drive but would have to use extreme caution.

Dr. Murphy could give no opinion about the presence of marijuana found in defendant’s urine because it was not quantified. Defendant’s blood was not tested for marijuana, Murphy explained, because the State does not have the resources for such a test. He testified that it was possible for traces of marijuana to show up in the urine even when it was not present in the blood system; for an occasional marijuana user, the drug could be found in the urine up to 72 to 96 hours after ingestion. Dr. Murphy stated that marijuana would not be found in the blood if defendant had smoked marijuana 24 hours before the blood test, and that unless he had taken it within an hour of the blood test, it would not show up in his blood.

Dr. Larry Blum, a forensic pathologist who performed the autopsy on Harry Oltman, testified that a person’s driving would be impaired if he or she was under the same level of drugs found in defendant.

Dr. O’Donnell, a doctor of pharmacology and expert for the defense, testified that defendant’s driving ability would not have been impaired by any drugs found in defendant’s system. He testified that a person would be impaired when the level of the drugs was toxic, not therapeutic. He said that at a therapeutic level it is not expected that a person will nod off or slur speech. At a level of impairment, on the other hand, a person would feel drowsy, and his or her speech might be slurred.

The State presented evidence, over defendant’s objection, concerning defendant’s history of drug and alcohol use by way of defendant’s taped statement to the police taken about four hours after the accident. In that statement, defendant stated he smoked marijuana the night before the accident. He also stated he used alcohol almost every day after work and marijuana on the weekends. Further, he stated he smoked marijuana on the last job he had. He also talked about taking “street pills.” When asked by a police officer if defendant was saying that he used illegal drugs, he responded yes.

Defendant first contends he was not proved guilty of reckless homicide beyond a reasonable doubt. A person commits reckless homicide if he kills a person while driving a motor vehicle and the acts which caused death are such as are likely to cause death or great bodily harm to some individual and are performed recklessly. (People v. Griffith (1978), 56 Ill. App. 3d 747, 750.) Recklessness is defined as follows:

“A person is reckless or acts recklessly, when he consciously disregards a substantial and an unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.” (Ill. Rev. Stat. 1985, ch. 38, par. 4 — 6.)

To prove the offense of reckless homicide, there must be evidence that defendant knew of the danger of collision and recklessly collided with the decedent without employing the reasonable means at his disposal to avoid the accident. People v. Brajcki (1986), 150 Ill. App. 3d 506, 512.

Defendant argues that to prove recklessness, it must be proved that defendant acted willfully and wantonly when he collided with decedent. Though case law on this issue finds some courts using the phrase “willful and wanton” conduct as a standard for reckless homicide, this court made it clear in People v. Wolfe (1983), 114 Ill. App. 3d 841, 849-50, that the definition of recklessness does not require the State to prove willful and wanton conduct to prove recklessness. The court pointed out that the Criminal Code of 1961 did not use the term “willful and wanton” in defining recklessness (see Ill. Rev. Stat. 1985. ch. 38, par. 4 — 6) and that courts that had used the term “willful and wanton” were merely using the phrase interchangeably with the term “reckless.” Wolfe, 114 Ill. App. 3d at 848-50.

In reviewing the sufficiency of the evidence to sustain a conviction, the relevant inquiry is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact would have found the elements of the crime beyond a reasonable doubt. (People v. Williams (1987), 118 Ill. 2d 407, 416.) The evidence in this case supports the jury’s verdict.

Though defendant testified he was not driving over 55 miles per hour before the accident, the weight of the evidence clearly shows defendant was traveling well over the speed limit. Shanafelt testified that defendant’s speed was between 89 to 99 miles per hour just before he started braking and at the point of impact it was between 83 to 94 miles per hour. He was able to determine the speed of defendant’s car through various calculations involving factors such as the grade of the road, the distance the cars traveled after impact, the length of skid marks and the speed of decedent’s vehicle, estimated at 20 and 30 miles per hour. In addition to Shanafelt’s testimony, the defendant’s log book establishes that defendant would have had to travel 105 miles per hour from his last destination to get to the accident site at the time he did.

Driving over the speed limit does not in and of itself constitute reckless homicide. (People v. Frary (1976), 36 Ill. App. 3d 111, 114.) But, a charge of reckless homicide may be justified by a combination of excessive speed and other circumstances which would indicate a conscious disregard, and the circumstances are such that a reasonable person would act differently under the same situation. (People v. Bonzi (1978), 65 Ill. App. 3d 927, 931-32.) “The indicium of conscious disregard need not be shown solely by the maneuvering of the motor vehicle. It may include the physical condition of the driver [citation] or the failure to keep a proper lookout [citation].” People v. Boyle (1979), 78 Ill. App. 3d 791, 797-98.

In addition to driving well over the speed limit, defendant failed to change lanes to avoid a car that he saw three-fourths of a mile ahead of him. Furthermore, he drove at an excessive speed at night when visibility was lower and at a time when he had a therapeutic level of a sedative drug in his system. Dr. Murphy testified it was quite possible the sedatives caused defendant’s reflexes and reaction time to be slower than normal and that a person under these drugs would have to use extreme caution in driving a car. The fact that the jury acquitted defendant of driving under the influence of drugs does not mean that the jury completely discounted the drug evidence. Though insufficient to support the driving under the influence charge, this evidence is relevant as a factor in determining whether defendant’s excessive speed and failure to respond to a sudden crisis were grossly unreasonable and disregarded a substantial risk.

Defendant argues he cannot be guilty of reckless homicide because the evidence showed that he attempted to avoid the collision by braking before he hit the car. This fact does not negate defendant’s criminal recklessness. Defendant observed decedent’s car from three-fourths of a mile, yet he did not apply his brakes until he was within 44 feet of the car. Considering defendant’s excessive speed, his attempt to avoid the accident by braking within 44 feet of decedent’s car constitutes a gross deviation from the standard of care that a reasonable person would exercise in such a situation.

Defendant also contends his conduct was not criminally reckless because it was not forseeable that a car would be traveling 20 to 30 miles per hour on a 55-miles-per-hour highway. Though it may have been unexpected to find a car traveling at such a slow rate of speed on the highway, the decedent’s conduct cannot be attributed to the cause of this accident where defendant stated that he saw the car from three-fourths of a mile away and that he had ample time to change lanes. Furthermore, defendant testified he was aware that there was a truck stop near the accident site as well as an exit ramp a short distance south of the site and that one could expect to find vehicles moving slowly on this stretch of the road. Also, two other vehicles were able to pass decedent’s car without difficulty.

The cases cited by defendant are distinguished from this case. In each, the decedent’s unexpected conduct was a significant contributing factor to the cause of death. In People v. Frary (1976), 36 Ill. App. 3d 111, defendant was following closely behind a motorcycle. Both vehicles were traveling about 75 miles per hour. The motorcycle began to slow down and then went out of control and fell on its side. Defendant could not avoid hitting the motorcycle. The court reversed defendant’s conviction for reckless homicide. (Frary, 36 Ill. App. 3d at 114-15.) This case is not like Frary because here defendant had more than enough time to avoid hitting decedent’s car by simply moving to the passing lane. Unlike Frary, there is no evidence to suggest that decedent’s car slowed down suddenly in front of defendant’s. In People v. LaCombe (1982), 104 Ill. App. 3d 66, 72-74, the defendant’s conduct of driving his truck on an athletic field and accelerating during turns did not support a reckless homicide conviction where the passenger was killed after he climbed out of the truck and fell off. Here again, the main factor that caused the accident was the unexpected conduct of the decedent.

In his second issue, defendant contends the trial court erred in allowing evidence of defendant’s past use of legal and illegal drugs because it was irrelevant and highly prejudicial. The test of whether evidence is relevant, and therefore admissible, is whether it tends to make the question of guilt more or less probable. (People v. Ward (1984), 101 Ill. 2d 443, 455.) Evidence may be rejected as irrelevant if it has little probative value due to its remoteness, uncertainty, or possible unfair prejudicial nature. (Ward, 101 Ill. 2d at 455.) Evidence of collateral crimes or evidence suggesting prior criminal conduct is inadmissible if relevant merely to establish the defendant’s propensity to commit crimes. (People v. Lindgren (1980), 79 Ill. 2d 129, 137.) Such evidence overpersuades the jury, which might convict the defendant only because it feels he or she is a bad person deserving punishment. Lindgren, 79 Ill. 2d at 137.

In this case, there was extensive testimony concerning defendant’s history of illegal drug use. It is well recognized that evidence of a defendant’s prior narcotics use constitutes evidence of criminal conduct. (People v. Carlson (1982), 92 Ill. 2d 440, 448; People v. Novak (1965), 63 Ill. App. 2d 433, 443.) The State contends this evidence was properly admitted under the exception that other crimes evidence is admissible if relevant to demonstrate knowledge, intent, motive, design, plan or identification. (Lindgren, 79 Ill. 2d at 137.) The State argues that evidence of defendant’s history of drug use is relevant to show absence of mistake since defendant testified that he did not know how the sedative drugs got into his system. Clearly, any evidence tending to establish how and when these drugs were taken is relevant to the charge that defendant was operating a car while under the influence of drugs. The evidence admitted concerning defendant’s drug history, however, was in no way limited to this purpose.

The court allowed into evidence testimony by a nurse that defendant told her that Tylenol would not help him because he had “been on morphine for a couple of years.” There was absolutely no evidence to show that defendant was on morphine at the time of the accident. Neither blood nor urine tests showed the presence of this drug. Not only was this evidence clearly irrelevant, but it was also highly prejudicial since the lay person’s opinion of a person on morphine would likely be that the person was an illegal drug user.

The court also admitted defendant’s taped statement to police, where he talks at length about his history of drug use. Some of defendant’s statements are excerpted below:

“OFFICER: How often do you use drugs?
DEFENDANT: What types?
OFFICER: You tell me.
DEFENDANT: Nicotine every day. Alcohol almost every day, after work, of course. Ah. tetrahydrocannabis, marijuana, um, maybe on the weekends if somebody’s got it; if not, you know, if I happen or maybe, you know, score an eighth, or something, you know, I’ll smoke a joint when I get home from work while I’m drinking my beer watching the news or MASH, or whatever on TV. Other than that, the only time I take any type of pill would be if, you know, I needed it. Like I say, just suppose a friend of mine had some Seconal or something on him, and you know, I had, you know, twisted my finger pretty bad or something to cause me a lot of pain and aspirin didn’t do anything for it, I might go and buy a couple pills off of him.
* * *
OFFICER: Then again, I would say that you’re telling me that you do, in fact, at time use illegal drugs?
DEFENDANT: Yes, I do.
* * *
OFFICER: So are you in the habit of smoking before you go to work? Or on the way to work?
DEFENDANT: Oh, no. *** not with the job I have now, no, I haven’t. Last job I had, yes. I smoked marijuana on the job.”

Defendant’s past use of drugs is not relevant to the question of whether defendant was under the influence of drugs at the time of the accident. His past use does not tend to prove that he was under the influence at the time of the accident. It is pure speculation to conclude otherwise. Other crimes evidence cannot be admitted if the grounds for establishing its relevance are speculative. (.Lindgren, 79 111. 2d at 140.) Moreover, these statements were also highly prejudicial because they likely created an image of defendant as a bad person.

In his statement defendant also states that he smoked marijuana the night prior to the accident. The State contends that this was relevant because defendant’s urine test showed an unquantified amount of marijuana. The State did not test for marijuana in the blood stream. Dr. Murphy testified that without testing the blood for marijuana there is no way of knowing whether the marijuana was in defendant’s blood stream at the time of the accident. It was possible that the marijuana would be found in the urine but would not have been in the blood stream. Dr. Murphy also stated that if a person smoked marijuana 24 hours prior to giving a blood test that marijuana would not be in the blood. The State presented no other evidence to show that defendant was under the influence of marijuana at the time of the accident. Given that the doctors could not give an opinion about whether defendant was under the influence of marijuana, the evidence that he smoked it the night before and that it was found in his urine is not probative of his state of mind at the time of the accident. Furthermore, it was highly prejudicial because it planted the seed for speculation that defendant might have smoked marijuana closer in time to the accident. In People v. Gosse (1983), 119 Ill. App. 3d 733, 737, this court held that evidence of a nominal consumption of alcohol and cannabis without more or without any showing that defendant’s mental and physical abilities were impaired is so inflammatory as to constitute reversible error. As in Gosse, the admission of this evidence was error.

We do not agree with the State’s contention that the admission of defendant’s past drug use was harmless error. The State argues this evidence was no more prejudicial than admissible evidence concerning the drugs found in defendant’s blood. We are not persuaded. First, the State incorrectly assumes that evidence that defendant smoked marijuana the night before the accident was admissible. Furthermore, the repeated references to defendant’s past use of marijuana and other illegal drugs was much more prejudicial than any admissible evidence concerning the drugs found in his system. The sedative drugs found in defendant’s blood were not narcotics. They were mild tranquilizers commonly used by people who are not illegal drug users. Evidence concerning when defendant may have taken these drugs does not create the degree of prejudice created by evidence that defendant is a frequent user of marijuana and other illegal drugs. This evidence painted defendant as a bad person and perhaps even a reckless person. “It needs no extended discussion to demonstrate that the use of narcotics is regarded by the major part of society with aversion and contempt, and that references to the matter undoubtedly prejudice [a] defendant in the eyes of the jury.” Novak, 63 111. App. 2d at 442-43.

Nor do we agree with the State’s argument that the jury’s acquittal on driving under the influence of drugs shows that it was not influenced by this evidence. The driving under the influence charge required the jury to find that defendant could not drive safely under the influence of the drugs found in his system. Evidence of past drug use would not have influenced the jury on this charge because the evidence clearly showed that defendant could have driven safely under the drugs found in his system if he used extreme caution. There is a much greater likelihood that prejudicial evidence influenced the jury on the charge of driving too fast and failing to respond to a sudden crisis since this is a more general charge of recklessness which required the jury to weigh conflicting and competing evidence.

The admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal. (Lindgren, 79 Ill. 2d at 140.) A conviction will be upheld only if the properly admitted evidence is so overwhelming that no fair-minded jury could have voted for acquittal. (Lindgren, 79 Ill. 2d at 141.) The evidence in this case is not so overwhelming. There were no witnesses to the accident. Though the evidence tended to show that defendant was driving at an excessive rate of speed, it is also clear that defendant was caught by surprise when he came upon the victim’s car that was traveling only 20 to 30 miles per hour on the highway. Furthermore, the State’s doctors stated that the sedative drug level found in defendant’s blood was at a low therapeutic level, and defendant’s expert, Dr. O’Donnell, testified that the drugs would not have had any significant effect on defendant’s ability to drive. Where the evidence was not overwhelming, the admission of irrelevant and prejudicial evidence of defendant’s past drug use and marijuana use the night before the accident denied defendant a fair trial. We, therefore, reverse the judgment and remand the cause.

The judgment of the circuit court is reversed, and the cause is remanded for new trial.

Reversed and remanded.

NASH and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
      In re MARRIAGE OF BARBARA TALMADGE, Petitioner-Appellee, and STEPHEN J. TALMADGE, Respondent-Appellant.
    Second District
    Nos. 2—88—0414, 2—88—0485 cons.
    Opinion filed February 24, 1989.

      Stephen J. Thlmadge, of Evanston, appellant pro se.

      Scott C. Cleal, of Burek & Associates, of Wheaton, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

This is an appeal from an order which (1) denied respondent’s, Stephen J. Talmadge’s, motion to reconsider an order directing respondent to pay extraordinary medical expenses for the parties’ children in the amount of $4,806.22; (2) found respondent in contempt; and (3) directed respondent to pay petitioner $158.24 for reimbursement of travel expenses. Respondent also appeals an order directing respondent to pay for attorney fees in the amount of $2,549. These appeals have been consolidated for our consideration.

On appeal, respondent contends that (1) the trial court improperly ordered respondent to pay extraordinary medical expenses of the parties’ children; (2) petitioner was barred by laches from seeking extraordinary medical expenses; (3) petitioner was estopped from seeking extraordinary medical expenses; (4) the trial court erred in preventing respondent from reading a definition of the term “consult”; (5) the trial court improperly issued a rule to show cause against respondent; (6) respondent was improperly held in contempt; and (7) the trial court improperly awarded attorney fees. We reverse and remand.

A decree of dissolution of the parties’ marriage was entered on November 28, 1979. At the time of the dissolution, both parties resided in Illinois with their two children. Pursuant to the dissolution agreement, petitioner (wife) was granted custody of both children. The dissolution agreement also provided that respondent (husband) was responsible for all major medical expenses of the children. It provided in pertinent part:

“The wife shall be responsible for the ordinary medical care of the children. The husband shall be responsible for all extraordinary medical expenses incurred on behalf of the minor children. The term ‘extraordinary,’ shall include medical, dental, psychological, psychiatric, optical needs of the children, teeth straightening or major dental work, operations, serious illness, requiring hospitalization or extended medical care, but shall not include routine check-ups, minor ailments, or medical supplies.
The wife shall consult with the husband as to the need for other medical attention, except grave emergency, where the life of the child might be imperiled by delay; in the event where the parties do not agree as to whether any expense is extraordinary, the Court shall, upon proper notice and petition, determine same, even after the expense is incurred.
The husband shall maintain medical insurance on the children for said extraordinary medical care and costs and will be responsible for any extraordinary expenditures above and beyond the coverage of the insurance, except as may otherwise by [sic] Ordered by a court of competent jurisdiction, upon good cause shown.”

Subsequent to the dissolution, petitioner moved to California with the two children.

In April 1987, petitioner filed a petition for increase in child support and other relief. The petition prayed for an order directing respondent to pay petitioner the sum of $1,288 for extraordinary medical expenses incurred on behalf of the children.

On September 16, 1987, an order was entered which granted, among other things, leave for petitioner to withdraw her petition for increase in child support and other relief. Also entered on that date was a rule to show cause against respondent for failure to pay medical expenses pursuant to the dissolution agreement, “said sum currently in the amount of $3,573.93.” Prior to the entry of this order, respondent and counsel for petitioner appeared before the trial court. At that time, respondent contended that he had not been served with notice of the petition for the rule to show cause.

On October 28, 1987, an order was entered directing respondent to pay $3,573.93 to petitioner for extraordinary medical expenses incurred on behalf of the children. The order also provided that respondent was granted leave to file a motion to reconsider and further provided that respondent was to pay in advance of any hearing on that motion petitioner’s cost for airfare from California, the cost of overnight housing, and attorney fees necessary for her counsel to prepare for and represent her at the hearing. No evidentiary hearing was held prior to the order being entered.

Respondent filed a motion to reconsider the order of October 28, 1987.

On February 3, 1988, petitioner filed another petition for a rule to show cause against respondent for an additional $648.95 in extraordinary medical expenses. A notice of motion indicates that this was sent to William Major on February 3, 1988, who was attorney of record for respondent at that time.

On February 22, 1988, the parties appeared before the trial court, respondent filed a pro se appearance, and Major, Fennell & Associates filed a motion to withdraw. Later that day, a rule to show cause was entered against respondent for failure to pay extraordinary medical expenses of the children, “sum currently in the amount of $4,806.22.” On that date, the court also entered an order which provided, among other things, petitioner leave to file a petition for attorney fees and leave to file a petition for travel expenses. Prior to the order being entered, respondent alleged that he had not been served a notice of the petition for a rule to show cause.

Also on February 22, 1988, respondent filed a response to the petition for rule to show cause in which he alleged that petitioner at no time attempted to consult him prior to the engagement of medical services for the children. Respondent further asserted that this gave him reasonable cause to believe that he was not responsible for payment of the alleged medical treatments. Respondent also asserted that petitioner’s failure to consult him prior to treatment prevented him from, among other things, being reimbursed by his insurance carrier. As a part of his response, respondent attached an exhibit which alleged that his costs would have been $2,403 less if he had been consulted prior to the onset of treatment. Other portions of the claim he contended were not extraordinary medical expenses.

On March 30, 1988, there was a hearing on respondent’s amended motion to reconsider and whether respondent should be held in contempt. The motion to reconsider was denied without an evidentiary hearing. An evidentiary hearing was then held on whether respondent should be held in contempt. Respondent stated that petitioner had failed to consult with him prior to the onset of any medical treatment for the children.

Petitioner stated that she did not consult with respondent prior to bringing their daughter to an optometrist, but sent respondent the bill. She further stated that she does not call him prior to taking the children to the eye doctor. She further stated that she did not consult him prior to purchasing glasses for their daughter. She stated that she did contact him prior to orthodontic treatment for their son in relation to a bill dated January 13, 1988. During examination of petitioner, the trial court ruled that questioning should be limited to whether respondent was consulted before a course of treatment was begun and should, not extend to whether respondent had been consulted prior to every visit to every doctor. Petitioner stated that orthodontic treatment from Dr. Guy W. Mendivil was begun in August 1987, and that respondent was notified of this prior to the onset of treatment.

Respondent then made a reference to Black’s Law Dictionary, to which the court stated: “Mr. Talmadge, just ask questions here, and don’t start making speeches or spout law, okay?”

On further examination, petitioner also stated that she notified respondent prior to the onset of psychiatric services for their daughter. She stated that she did not consult respondent prior to treatment of their son’s broken finger. She also stated that she did not consult with him prior to treatment for their son when he was swollen and could not breathe. She further stated that she did not consult with respondent regarding related treatment. Petitioner stated that she did not consult respondent prior to the onset of medical treatment when their daughter had mononucleosis. Petitioner stated that she did not consult with respondent prior to the onset of medical treatment when their daughter had a sty.

Although petitioner stated that many of the occasions that she did not consult with respondent were not life threatening, she did state on cross-examination that she felt there was an emergency which required immediate medical attention. She further stated that she attempted to consult with respondent when she obtained medical services for the children. Asked what the result was, she stated, “[ljack of cooperation, no insurance.” Petitioner stated that immediately after the divorce, she tried contacting respondent by phone and later in writing. Petitioner also stated that her current husband had insurance that covered many of the children’s expenses and that she was only seeking reimbursement for uninsured portions.

When petitioner was done being questioned, the trial court asked respondent whether he had insurance coverage for any of the expenses. Respondent answered, “I did at the time that the medical expenses were incurred.” Respondent also stated that petitioner did not consult with him prior to the onset of orthodontia or the onset of psychiatric treatment.

The trial court entered an order which denied respondent’s motion to reconsider. The trial court also granted petitioner leave to file a petition for attorney fees and travel expenses. The order found that respondent was in contempt of court for his failure to obey the orders of October 28, 1987, and the provisions of judgment of dissolution. Respondent was sentenced to 30 days in jail with said sentence to be stayed for a period of 45 days to allow respondent the opportunity to purge himself by payment of $4,806.22 to petitioner for medical expenses of the children. Finally, respondent was ordered to pay petitioner $158.24 for reimbursement of travel expenses. It is from this order that respondent appeals.

On May 9, 1988, the trial court entered an order directing respondent to pay $2,549 in attorney fees. Respondent also appeals this order.

Respondent initially contends that the trial court improperly ordered him to pay extraordinary medical expenses of the children. Specifically, respondent argues that the trial court improperly construed the marital settlement agreement; that the evidence shows that petitioner did not consult with respondent prior to the onset of medical treatment of the children; and that petitioner was required to submit documentary proof that she consulted with respondent.

Respondent contends that the agreement required petitioner to consult with respondent prior to the onset of medical treatment and that the trial court incorrectly interpreted the agreement in such a way as to relieve petitioner of this duty.

In finding respondent in contempt, the court stated:

“I think a very liberal intent of the parties and the word consult as contained in the marital separation agreement *** should be construed by this Court to mean advise because to do other than that could delay and/or deny the children the right to have the extraordinary care and the treatment that they would otherwise have been — have required for their general health and well-being.”

Respondent contends that in making this statement, the court allowed petitioner to satisfy her obligation by advising respondent after medical treatment had been received as opposed to requiring her to consult with him prior to obtaining medical treatment.

The interpretation of a marital settlement agreement is a question of law (see In re Marriage of Kolb (1981), 99 Ill. App. 3d 895, 900) and is governed by the same rules as those applying to the construction of contracts (In re Estate of Bresler (1987), 159 Ill. App. 3d 535, 539). Clear and unambiguous agreements must be given their ordinary and natural meaning. (159 Ill. App. 3d at 539.) The intention of the parties is to be determined solely by reference to the agreement. 159 Ill. App. 3d at 539.

In the instant case, the trial court was called upon to interpret the term “consult.” Webster’s variously defines “consult” as: “to deliberate on: DISCUSS *** 2a: to ask advice of: seek the opinion of: apply to for information.” (Webster’s Third New International Dictionary 490 (1971).) On the other hand, “advise,” as it appears to have been used by the trial court, is defined as “to give information or notice to: INFORM, APPRISE.” (Webster’s Third New International Dictionary 32 (1971).) It is thus apparent that “consult” and “advise” are not the same.

In People v. Stewart (1988), 121 Ill. 2d 93, our supreme court reviewed the question of whether a defendant had received adequate representation during post-conviction proceedings in accordance with Supreme Court Rule 651(c) (107 Ill. 2d R. 651(c)), which states in relevant part: “The record filed in [the trial] court shall contain a showing, which may be made by the certificate of petitioner’s attorney, that the attorney has consulted with petitioner either by mail or in person.” (Emphasis added.) (107 Ill. 2d R. 651(c).) In finding that there was sufficient evidence to show that the defendant’s attorney had consulted with defendant in accordance with Rule 651(c), the court stated:

“Where, as here, it is determined that counsel advised defendant of the issues raised in the petition, and offered him an opportunity to suggest additional claims, we believe the requirement of Rule 651(c) that counsel confer with defendant concerning the petition has been satisfied.” (Emphasis added.) Stewart, 121 Ill. 2d at 103.

Under Stewart, mere advisement of a course of action, absent an opportunity to respond prior to the inception of that action, does not equate to a consultation. Thus, under Stewart, the trial court’s interpretation was incorrect. This conclusion is also supported by looking elsewhere in the agreement.

The term “consult” is used in one other place in the agreement wherein it is stated, “[t]he parties hereto shall consult with each other with regard to what college, if any, the children of the parties will attend.” (Emphasis added.) It appears that “consult” as used in the foregoing passage requires a dialogue between the parties because such a dialogue would be more likely to benefit the children. Additionally, because the agreement provides that both parties are to contribute to the cost of education, the cost of that education is a determination on which the parties would want to have input. Thus, “consult” as used in relation to education appears to mean more than just advise. There is no reason to believe that it should mean something else when used in conjunction with medical expenses. Similar concerns are present regarding extraordinary medical expenses: the welfare of the children, the cost of the treatment, and the appropriateness of the treatment.

Although the trial court found that “consult” meant “advise,” its reasoning does not support its definition. The trial court interpreted “consult” to mean “advise” because to do otherwise “could delay or deny the children the right to have extraordinary medical care.” Yet, the agreement provides that petitioner need not consult respondent where there is a “grave emergency, where the life of the child might be imperiled by delay.” Therefore, delay or denial of extraordinary medical care in emergency situations is not pertinent to the interpretation of the term “consult” because in such circumstances the agreement does not require any consultation. While the agreement refers to consultation not being required where the “life” of a child is imperiled, we find that it is this portion of the agreement that should be read liberally, as it is the welfare of the children that is the controlling and paramount question. See Page v. Page (1975), 30 Ill. App. 3d 514, 515.

In accordance with the foregoing analysis, we find that the trial court erred in interpreting the agreement. In our opinion, “consult” should be interpreted to mean advised prior to treatment with sufficient time for respondent to voice any concern regarding the treatment.

Without stating it as such, respondent appears to argue that the consultation requirement is a condition precedent to his duty to pay extraordinary medical expenses. Such reasoning would relieve respondent of his duty where the consultation requirement was not met.

Where there is an existing contract, a condition precedent is one that must be performed by one party before the other party is obligated to perform. (McAnelly v. Graves (1984), 126 Ill. App. 3d 528, 532.) If the condition is not satisfied by the first party, the other party has no duty to perform. (Grill v. Adams (1984), 123 Ill. App. 3d 913, 917.) Whether an act is necessary to the performance of an obligation under the contract depends upon the facts of the case. McAnelly, 126 Ill. App. 3d at 532.

In the instant case, we find that the consultation requirement was a condition precedent to respondent’s duty to pay because prior notification could affect insurance coverage and prior consultation would give respondent an opportunity to make sure the cost of the medical treatment was reasonable and that the treatment was in the best interest of the child.

The trial court found that there had been notification. However, the trial court made no finding as to when such notification took place. Under these circumstances, we cannot determine whether petitioner consulted respondent with regard to all extraordinary medical expenses. Thus, we remand the cause for a determination by the trial court as to whether petitioner consulted with respondent prior to initiating a course of medical treatment. In any instance where there was no consultation prior to the inception of a course of medical treatment, respondent should be relieved of any duty to pay for that treatment.

We find that the above course of action does no violence to the welfare of the children. Should any situation occur where the failure to fulfill a condition precedent would jeopardize the availability of medical treatment due to the financial inability of the party who had not fulfilled the condition, the agreement could be modified as in the best interest of the children. (See Ill. Rev. Stat. 1987, ch. 40, par. 502(b).) In the instant case, there is no allegation that petitioner is fiscally unable to pay for the claimed costs if the respondent does not. Therefore, any contention that the children will suffer by way of a decision that does not require respondent to pay is illusory.

Respondent also contends that no finding that petitioner consulted him could be made absent documentary proof. Respondent makes this argument without citation to any authority, in violation of Supreme Court Rule 341 (107 Ill. 2d R. 341), and we therefore consider it waived.

Respondent also contends that both doctrines of laches and estoppel should bar petitioner’s recovery. Both of these arguments rest on a factual finding of whether there was a consultation prior to the inception of medical treatment. As the trial court’s determination of this issue will be dispositive, we find these issues need not be addressed.

Respondent next contends that the trial court improperly prevented him from presenting a definition of “consult” from Black’s Law Dictionary.

The trial court has wide discretion in conducting a trial, and such discretion includes precluding argument during the examination of a witness. (Waukegan Park District v. First National Bank (1961), 22 Ill. 2d 238, 245.) We find that in prohibiting respondent from quoting Black’s while examining a witness, the trial court was properly exercising its discretion to limit examination of petitioner to questioning.

Respondent next contends that the trial court improperly issued a rule to show cause. Specifically, respondent argues that the petition for the rule to show cause was not brought in accordance with Illinois Supreme Court Rules 11 and 12 (107 Ill. 2d Rules 11, 12) and Rule 15.02 of the Rules of the Eighteenth Judicial Circuit. Respondent contends that these rules were violated because the rule was issued on the same day the petition was filed. Respondent also appears to contend that it was in violation of the rules because it was not verified.

In response, petitioner contends that the petition was filed in excess of the time required and does not address the verification issue.

Rule 15.02 of the Eighteenth Judicial Circuit provides:

“Except as otherwise provided by law, in all proceedings involving petitions for any relief, the moving party shall serve proper notice in accordance with Supreme Court Rule 11, setting forth the relief prayed for not less than 4 days prior to hearing unless for good cause shown the court otherwise directs.” 18th Circuit Court R. 15.02.

Supreme Court Rule 11 provides that if a party is represented by an attorney of record, service shall be upon the attorney. 107 111. 2d R. 11.

The record indicates that a petition for a rule to show cause was filed on February 3, 1988, seeking to enforce the order of October 28, 1988, and an additional $648.95 for expenses incurred from the date of that order. The petition contains the verified signature of petitioner. The record further indicates that the petition of February 3, 1988, was served upon W. H. Major, who was respondent’s attorney of record at the time. Thus, the petition was timely filed and served in accordance with Supreme Court Rule 11 and Rule 15.02 of the Eighteenth Judicial Circuit. Respondent does not explain why there is a violation of Rule 12, and a reading of Rule 12 does not bring to mind any possible violation given the remainder of respondent’s argument. Consequently, we find that there is no violation of Supreme Court Rules 11 and 12 or Rule 15.02 of the Rules of the Eighteenth Judicial District.

Respondent next contends that the trial court improperly found him to be in contempt. Respondent argues that because there was no stated finding that his behavior was contumacious, it was error for the court to hold him in contempt.

As with regard to other issues, the determination of contempt hinges on whether petitioner consulted with respondent prior to obtaining medical treatment for the children. If she did not consult with him, respondent would not have been in violation of the agreement. Therefore, respondent could not be held in contempt. (See In re Marriage of Harvey (1985), 136 Ill. App. 3d 116, 117.) On the other hand, if petitioner did consult with respondent prior to obtaining medical treatment, respondent’s failure to pay would have been prima facie evidence of contempt, and the burden of proof would have shifted to respondent to prove that his failure to pay was either not willful or not contumacious. (136 Ill. App. 3d at 118.) Other than respondent’s claim that he was not consulted, there is no other reason which excuses him from not paying.

Because the burden of proof was on respondent to show that his actions were not willful or contumacious, we find that the trial court was not required to state that it found respondent’s behavior to be willful and contumacious. From the trial court’s finding, it can be presumed that respondent’s conduct was found to be willful and contumacious. We note, however, that this analysis is based on the presumption that the contempt finding was meant to be civil in nature.

In order for a civil contempt judgment to stand, the sanctions must be coercive, and the respondent must be allowed to purge himself of contempt at any time thereafter. (People v. Rodriguez (1987), 162 Ill. App. 3d 149, 154; see also Hicks v. Feiock (1988), 485 U.S. 624, _, 99 L. Ed. 2d 721, 731, 108 S. Ct. 1423, 1429; People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill. 2d 407, 410.) In the instant case, the order finding respondent in contempt sentenced him to 30 days in jail with said sentence to be stayed for a period of 45 days to allow respondent to purge himself by payment of $4,806.22 to petitioner. We find that this order was criminal in nature because, once respondent failed to pay within 45 days, he was to be incarcerated without any way to purge himself. (See Hicks, 485 U.S. at_, 99 L. Ed. 2d at 735, 108 S. Ct. at 1432.) Thus, assuming that on remand the trial court finds that petitioner did consult with respondent, respondent should be entitled to a new hearing using the standard of beyond a reasonable doubt (see Hicks, 485 U.S. at _, 99 L. Ed. 2d at 735, 108 S. Ct. at 1432 (criminal penalties may not be imposed unless the offense is proved beyond a reasonable doubt)), or the court should modify its order to allow respondent to purge himself at any time. Finally, if the sanction is to be criminal in nature, the burden of proof should not shift to respondent to show his failure to pay was not willful and contumacious. See 485 U.S. at_, 99 L. Ed. 2d at 735, 108 S. Ct. at 1432, (requiring respondent to prove his inability to pay in a criminal proceeding is violative of the due process clause).

Respondent next contends that the trial court should not have awarded attorney fees in excess of an amount previously stated by the trial court. Respondent argues that on October 28, 1988, the trial court granted leave to file a petition “for a couple of hours of attorney fees.” Respondent argues that the trial court’s later award of $2,549 was an abuse of discretion.

Respondent cites no authority in support of his contention, in violation of Supreme Court Rule 341(e)(7) (107 Ill. 2d R. 341(e)(7)). We therefore consider respondent’s argument to be waived.

Respondent next contends that, because this was a divorce proceeding, the trial court should not have awarded attorney fees prior to determining that petitioner was financially unable to pay and determining the ability of respondent to pay. In response, petitioner contends that no such determination is required in this case because it is an action to enforce a prior judgment.

Section 508(a). of the Illinois Marriage and Dissolution of Marriage Act provides in pertinent part:

“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by the other spouse ***.” (Ill. Rev. Stat. 1987, ch. 40, par. 508(a).)

In contrast, section 508(b) does not require the court to determine the financial abilities of the parties prior to granting attorney fees related to enforcement of an order. Section 508(b) provides:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” Ill. Rev. Stat. 1987, ch. 40, par. 508(b).

Given that the instant action was brought to enforce the agreement which was made a part of the order of dissolution and that section 508(b) does not require the court to determine the financial abilities of the parties prior to awarding attorney fees in such actions, we find that the trial court was not required to consider the financial ability of petitioner to pay her attorney fees. Nevertheless, we also remand this issue since attorney fees are to be awarded to the prevailing party, and that determination rests on whether petitioner consulted with respondent.

In accordance with the foregoing analysis, we remand for a determination of whether petitioner consulted with respondent prior to incurring extraordinary medical expenses and for further proceedings consistent with that determination.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: JUSTICE WOODWARD

text:
    HARRY R. KETCHUM, Plaintiff-Appellant, v. DURA-BOND CONCRETE, INC., et al, Defendants-Appellees.
    Second District
    No. 2—88—0371
    Opinion filed February 24, 1989.
    Madsen, Baudin, Stolfi & Sugden, of Crystal Lake (W. Randal Baudin, of counsel), for appellant.

      Esther Joy Schwartz and Helen Wong Mehok, both of Orner & Wasserman, Ltd., of Chicago, for appellee Dorothy E. Curran.
    Vette E. Kell, of Kell, Nuelle & Loizzo, of Woodstock, for other appellees.
   JUSTICE WOODWARD

delivered the opinion of the court:

This case arises out of two collisions involving three vehicles occurring on Route 14 in Crystal Lake, Illinois, on Sunday, October 14, 1984, at approximately 9:50 a.m. Plaintiff, Harry Ketchum, appeals from the trial court’s granting of defendants’ motions for directed verdicts.

Plaintiff sued Dorothy Curran (Curran), Douglas Daugherty (Daugherty), Dura-Bond Concrete, Inc. (Dura-Bond), and Russell Keck (Keck), for damages arising out of the accident. Plaintiff sued DuraBond, Daugherty’s employer, under the theory of respondeat superior. Prior to the jury trial, plaintiff settled with defendant Keck. At trial, after plaintiff concluded his case, the trial court granted defendant Curran’s motion for a directed verdict. The court denied motions by defendants Daugherty and Dura-Bond for directed verdicts.

Daugherty and Dura-Bond did not present any testimony but offered photographs into evidence. Plaintiff offered no rebuttal. At the trial’s conclusion, Daugherty and Dura-Bond renewed their motions for directed verdicts, which were again denied by the trial court. After 11 hours of deliberation, the jury informed the trial court it was unable to reach a verdict; the court declared a mistrial.

A motion to reconsider the court’s denial of Daugherty’s and DuraBond’s motions for a directed verdict was granted by the trial court on February 24, 1988. At that time, the court also reconfirmed its granting of Curran’s motion for a directed verdict and entered judgment on her behalf.

On March 21, 1988, the trial court entered an order directing verdicts on behalf of Daugherty, Dura-Bond, and Curran. This appeal followed.

On appeal, plaintiff argues that (1) the trial court erred in granting defendant’s motions for a directed verdict; and (2) the trial court erred in not permitting plaintiff to present expert testimony.

OFFICER THOMAS KOUKALIK’S TESTIMONY

Officer Thomas Koukalik testified that on the date of the accident, he was a patrolman for the Crystal Lake police department. He was sent to the accident scene to investigate. At the time of the trial, he served as a police officer for the University of Arizona police department at Tucson, a position he had held since 1985. The witness had been a police officer for the City of East Dundee for approximately 2V2 years before joining the Crystal Lake police department, in which he had served for a period of 5V2 years. The witness had junior college level training in law enforcement, and he had attended evidence technician and accident investigation schools. He also had been a member of the emergency services team in Crystal Lake.

Officer Koukalik described Route 14 as a four-lane, asphalt highway, divided into two northeasterly and southwesterly lanes, which were separated in the center by a yellow line. (We note that the other witnesses generally referred to Route 14 as going in an east-west direction.) The entire width of the roadway from the northern border to the southern border was slightly in excess of 28 feet. At the time of the accident, weather conditions were clear, and it was not raining. The pavement was generally dry with some wet patches.

At the accident scene, Officer Koukalik measured the skid marks attributed to Keck’s vehicle to be 34 feet 2 inches in length. The skid marks went in straight lines, entirely within the lane nearest the center line for westbound traffic. These were the only skid marks indicated on the roadway surface that morning. Specifically, he indicated that there were no skid marks or yaw marks found on the roadway attributable to the Daugherty van.

At the accident scene, Officer Koukalik talked to Keck, who said that he had been traveling at the speed limit of 35 miles per hour along Route 14 in a westerly direction. Keck stated that he had been “in no particular hurry,” when his attention was “diverted momentarily” away from the road in front of him. When he had glanced back, he noticed that the vehicle (the Daugherty van) in front of him “had its brake lights on, and it was slowing.” Keck also stated to him that he had applied his brakes after seeing Daugherty’s brake lights and slid into the rear end of the Daugherty van.

Officer Koukalik spoke to Daugherty, who stated that he was traveling westbound along Route 14, when he observed a vehicle (Curran’s) in front of him, “either slowing or stopping or attempting a left-hand turn into the driveway of Montgomery Wards,” and that as a result, he started to slow his van, to avoid hitting her. Daugherty then stated that he was struck from behind by another vehicle (Keck’s) “and was pushed forward slightly.”

Officer Koukalik testified that Daugherty had not told him that Keck had struck him at the speed of 50 miles an hour, nor did he tell him that Curran had cut him off. In an offer of proof, Officer Koukalik related what Curran had said to him in a telephone interview several hours after the accident.

Curran stated that she was in the inside lane (heading westbound) on Route 14 and had slowed down to make a left-hand turn at the Montgomery Ward store. Her turn signal was on. She heard the squealing of rubber or tires and looked up in her rearview mirror and saw a van approaching her car “from the rear at what she thought was a high rate of speed.” She took “an evasive action and quickly accelerated and turned her wheel to the right to get out of the path of that vehicle [the van].”

She managed to get out of the path of the van, and from her “side vision” she saw the van “go past her side and be involved in a motor vehicle accident.”

On cross-examination, Officer Koukalik stated that Keck told him that he knew his vehicle would strike Daugherty’s van. Keck also stated to him that during the collision, the van was pushed over the center line. Daugherty told Officer Koukalik that just prior to coming to a stop, his van was rear-ended by another vehicle and pushed forward at an angle across the center line.

PLAINTIFF HARRY KETCHUM’S TESTIMONY

At about 9 a.m. on October 14, 1984, plaintiff ate breakfast with his cousin, Daniel Shrove, at the Lakeview Restaurant on Route 14 in Crystal Lake. (Mr. Shrove was killed in the accident.) At approximately 9:30 a.m., they left the restaurant and drove in an easterly direction along Route 14, their destination being a bull farm located on Route 14 in Crystal Lake. In addition to working his own farm, plaintiff had worked at the bull farm since approximately 1961 in barter for hay.

Plaintiff sat in the front passenger seat as Daniel Shrove drove his 1971 red Volkswagen Beetle (Volkswagen). Their car was in the curb lane as it passed through the intersection of Route 14 and Virginia Road just west of the Montgomery Ward store in Crystal Lake. The speed limit in the area was 35 miles an hour, and their vehicle was traveling at that speed.

As they traveled, plaintiff had been “relaxing, practically asleep,” when he heard a horn, and looked up to see two vans coming toward the Volkswagen. The next thing he remembered was “what felt like bouncing over a curb, and that was it.”

Plaintiff regained consciousness while being treated at the emergency room of the Northern Illinois Medical Center in McHenry, Illinois, where he received treatment for a period of several months.

DEFENDANT DOROTHY CURRAN’S TESTIMONY

Curran left her home that morning in Orland Park to attend her niece’s birthday party in McHenry County and had turned left, or westbound, from Route 31 onto Route 14, to drive to the Montgomery Ward store to buy her niece a present.

The weather was overcast, and the streets in Crystal Lake were damp. Curran said that it was not raining at the time, and, consequently, neither her headlights nor windshield wipers were activated. The pavement was “damp and dry in patches.”

The witness turned onto Route 14 and immediately entered the inside lane. Her speed was 30 miles per hour until she reached the vicinity of Montgomery Ward, where she executed her left-hand turn signal, about 100 feet from the parking lot entrance. She came to a stop opposite the entrance in “a very regular, normal, slow stop.” She did not skid or come to an abrupt stop. She waited “20 to 30 seconds” for oncoming, i.e., eastbound, traffic along Route 14 to clear. As the witness was waiting to turn, she “heard some screeching from behind, as in tires on pavement and *** looked in [her] rearview mirror, and saw the van [i.e., the van driven by Daugherty] coming up behind [her].” Upon hearing the screeching and looking into her rearview mirror, Curran thought the van was about “20 to 30 feet behind her.”

Curran could not testify as to the exact speed of the van when she first saw it because she was “more intent in getting [her] car out of the way.” She stated that “it was moving sufficiently fast that I felt that the person could not stop, and I had to move out of'the way in order to avoid a collision.”

Accordingly, Curran accelerated and “tried to move my car as quickly as I could, and I checked the right view mirror to see if there was somebody coming up in the outside lane, and there was not, so I proceeded to go a little bit into that lane.” The witness moved her car “just a couple of feet over into the curb lane area.” There was no contact between the two vehicles.

As she was maneuvering her vehicle, Curran took a quick glance in her left side mirror and observed that the van “had already gone into the oncoming traffic.” She did not see the impact between the van and the Volkswagen in which plaintiff was riding, because she had redirected her attention to driving her own car.

The witness eventually made her way into the John Evans restaurant parking lot adjacent to the Ward’s parking lot and parked her car. From there she saw the Volkswagen resting in approximately the center of the Wards’ driveway facing in a southeasterly direction, about 5 or 10 feet back from Route 14.

The van came to rest facing in an east to southeast direction up against the curb area of the driveway. At the accident scene, she saw plaintiff, who was “half out of the V.W. His head was on the pavement. His head was bleeding.” Neither Daugherty nor Keck appeared to have been hurt in the accident.

On cross-examination, Curran admitted that she did not know which vehicle behind her was screeching its tires. Also, she heard only one impact.

DEFENDANT DOUGLAS DAUGHERTY’S TESTIMONY

On the date of the incident, Daugherty was employed by DuraBond, which structurally restored bridges, parking structures, dams, and sewers. In the course of his employment, Daugherty was provided by the company with a 1981 three-quarter ton Chevy, Series 20 van, which on the relevant date had traveled approximately 99,000 miles.

Daugherty testified that he was 6 feet 4 inches tall, weighed 230 pounds, and was color blind. At the time of the incident, he was not wearing a seat belt.

On the morning of Sunday, October 14, 1984, Daugherty went to “The Keep,” a storage facility in Crystal Lake, to pick up work materials which he was going to use the following day. Daugherty loaded approximately 1,800 pounds of materials into the van before he left “The Keep.”

After loading the van, Daugherty drove the vehicle on Teckler Boulevard and turned left onto Route 14 heading in a westerly direction. The van was traveling in the inside lane. It was drizzling and overcast, and he was operating the van with its windshield wipers and headlights activated. The fastest speed he traveled was “25 to 30 miles an hour.”

Daugherty initially said that he first saw Curran’s car when her vehicle was entering the inside lane approximately 800 feet ahead of him. Curran gave one signal flash and came into the inside lane. At that time, he was traveling 25 miles per hour, and “she was doing the speed limit, 35 miles an hour.”

When Curran changed lanes, he began to slow down, because “I am a cautious driver. If somebody gives me a one signal flash and comes into my lane, I take it as I don’t know what is coming next.”

Daugherty then altered his testimony, stating that after Curran signaled once and entered his lane, the distance between the two vehicles was 300 feet. Daugherty then stated that when coming to a stop behind Curran’s vehicle, he pumped his brakes three times in a 70-foot interval and then took another 80 feet to come to a stop, i.e., 150 feet to stop his vehicle. Plaintiff’s attorney impeached this testimony with Dautherty’s deposition testimony that the interval in which his vehicle came to a stop was 300 feet.

While following Curran’s car, Daugherty pumped his brakes three times, “to slow my vehicle down,” diminishing his speed “from 25 miles an hour to 15 miles an hour.” Daugherty first noticed Curran’s brake lights were activated when they were at a distance of 300 feet apart. However, plaintiff’s attorney impeached this testimony with Daugherty’s deposition testimony that the distance was only four car lengths, or about 80 feet.

At the time he was pumping his brakes, Curran’s vehicle came to “an abrupt stop.” He did not recall seeing Curran’s left rear turn signal flashing. Curran’s braking was “hard enough to make [Curran’s] car dive. No, not skid, no squeals, but enough to put the nose of that car down to stop.” Plaintiff’s attorney impeached this testimony with Daugherty’s deposition testimony that Curran skidded when she had applied her brakes.

Daugherty never saw Curran move her vehicle from the center lane to the curb lane. Plaintiff’s attorney impeached this testimony with Daugherty’s deposition testimony that he had seen Curran “cut back into the lane nearest the curb.”

At the time Curran moved out of his way, Daugherty stated that he was traveling at five miles an hour, but it would have taken him at least five more seconds to avoid colliding with the rear of Curran’s car. He admitted that had Curran not pulled away, he would have “tapped her.” At this time, Daugherty’s van was struck from behind by the vehicle driven by Keck.

Daugherty did not see Keck’s vehicle prior to being struck by it. At the time of the collision with the Keck vehicle, both of Daugherty’s hands were on the steering wheel, and his van was “heading straight” down Route 14 in a westerly direction. He was hit at what he estimated to be a speed of 50 miles per hour. The van was propelled by the impact with Keck’s vehicle, “across the center line,” and “across the one lane of traffic nearest the center line for eastbound traffic,” and “hit off center and [was] just a projectile into that Volkswagen.” The impact caused by Keck’s vehicle hitting his van was “harder” than the impact sustained by the van when it hit the Volkswagen.

Upon impact, Daugherty’s hands left the steering wheel, and it bent towards him. Also, his seat was bent backwards. Daugherty did not believe the seat could have been bent as a result of the collision between the van and the Volkswagen.

Daugherty stated that he had not flipped over his seat and ended up in the back of the van. Plaintiff’s attorney impeached this testimony by reading Daugherty’s deposition testimony into the record.

“Q. And, when you say you were knocked to the floor, you mean you actually bent back with your seat?
A. I bent the seat right back and flipped over it.
Q. You flipped over the seat?
A. Flipped over the seat and landed on the floor behind it.”

Daugherty ended up on his backside on the floor of the van after he had been hit by Keck. As he attempted to regain his position, he was unable to get his hands back on the steering wheel before the van hit the Volkswagen.

Daugherty acknowledged that prior to the second collision, the Volkswagen had beén in the eastbound curb lane and that there was nothing unusual about its travel or speed, which he approximated to be about 30 to 35 miles an hour.

Daugherty was not injured in either of the collisions, but immediately following the accident, he was “extremely disoriented.” He admitted that he did not tell Officer Koukalik that Curran had cut him off or that Keck had hit him at 50 miles per hour.

RUSSELL KECK’S TESTIMONY

Keck testified that on October 14, 1984, he had worked all night at the McDonald’s in Crystal Lake and left work that morning at 9:30 a.m. to go to his parents’ house in Lake in the Hills, where he lived. He was driving a 1979 Chevrolet Suburban vehicle and traveling westerly along Route 14. He was not wearing a seat belt at the time of the occurrence. The highway was comprised of four lanes, two in each direction, with the center being divided by two yellow lines; he traveled in the lane nearest the center line. It was not raining. As he drove along Route 14, he noticed the van driven by Daugherty, approximately 75 to 85 feet ahead of him. The speed limit was 35 miles an hour. He estimated his speed at the time and that of Daugherty’s van to be 30 to 35 miles per hour. For an unspecified distance, he maintained that same 75- to 85-foot interval.

Keck took his eyes off the roadway in front of him for “not more than a second,” to check the surrounding area. When his eyes returned to the roadway, he noticed that Daugherty’s brake lights were on. At that time, he was “maybe 60 to 70 feet” behind Daugherty.

When he saw the brake lights, Keck “immediately applied [his] brakes.” At that time, he was traveling 30 to 35 miles an hour. He did not know why the van was stopping. Keck had not seen Curran’s car ahead of Daugherty’s van. Keck did not hear the van’s tires screech when he saw the brake lights appear, nor did he see the van skid. He first applied his brake lights, and, “when I saw I wasn’t going to stop in time, I stepped on them hard and I skidded into the rear of the van.” He acknowledged leaving skid marks at the scene of the accident. The impact with the van was “not very hard.” At the time of impact, his vehicle was traveling “about 10 to 15 miles an hour,” and the van was traveling at 5 to 10 miles an hour.” At the time of impact, he was “straight behind it [the van].” He said that he did not hit the van “with such force that it caused it to fly across the center line.” Nor did he hit it with such force that the van should have crossed over the center line into oncoming traffic.

After his contact with the van, Keck’s vehicle “stopped right there.” Keck was not injured in the collision, and he never sought any medical attention.

After it was hit, the van appeared to turn across the center line at a “kind of sharp” angle — approximately 75° to 80°. He observed the Volkswagen in the eastbound curb lane just before it was hit by Daugherty. There was nothing unusual about its position or speed.

At the time the van hit the Volkswagen, the van’s speed was 10 to 15 miles an hour. He saw the left of the van strike the left of the Volkswagen. At impact, the Volkswagen was pushed sideways into the Wards parking lot, and the rear of the van swung around in a counterclockwise direction.

After the collision, Keck got out of his vehicle without the need of assistance and observed the plaintiff, half in and half out of his car, “unconscious and bleeding.”

On cross-examination, Keck stated that “when he first noticed [the van], it was almost to a stop. That’s when I first saw it, almost to a stop.” At the point of impact, the van was pointed straight ahead. Keck was still applying his brakes at impact. The left front of Keck’s vehicle struck the left rear portion of the van. As a result of this collision, the radiator of Keck’s vehicle was punctured, and the grill was damaged.

Plaintiff initially argues that the trial court erred in granting Daugherty’s and Dura-Bond’s motions for directed verdicts. The standard used in determining whether or not to grant a motion for a directed verdict is found in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494.

“In our judgment verdicts ought to be directed *** only 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.

Plaintiff contends that the trial testimony contains such blatant disparities that, under Pedrick, the directed verdicts in Daugherty’s and Dura-Bond’s favor cannot stand. We agree. A careful review of the evidence demonstrates that there is no clear picture of what exactly occurred before and during the two collisions. On virtually all important points, the evidence is contradictory and confusing.

In determining this first issue, the testimony of Keck and Daugherty is of critical importance. They are the only two witnesses who spoke directly to how the collisions occurred.

Daugherty testified that at the time Curran moved out of his way, he was traveling five miles an hour. He also stated that Keck’s vehicle was coming up from behind him at a high rate of speed, which he estimated to be about 50 miles per hour. Daugherty claimed to be driving in a straight course when Keck’s vehicle hit him, causing the steering wheel to bend towards him and the driver’s seat to break, knocking him onto his back. Daugherty testified that he unsuccessfully attempted to regain his position at the steering wheel prior to the collision with the car in which plaintiff was riding. Daugherty said that as a result of the impact with the Keck vehicle, the van had been propelled across the center line and the inside lane of the eastbound traffic into the Volkswagen’s path.

Keck testified that he had been following Daugherty’s van at between 30 and 35 miles per hour. Keck stated that he momentarily took his eyes off the roadway in front of him, and when his eyes returned to the roadway, he noticed Daugherty’s brake lights were on. Keck estimated that at that point, he was 60 to 70 feet behind Daugherty; he immediately applied his brakes. Keck testified that he hit Daugherty’s van at a speed of 10 to 15 miles per hour and that Daugherty’s van was proceeding at 5 to 10 miles per hour at the point of impact.

Keck stated that at the time of impact, he was straight behind the van. Keck testified that the impact with the van was “not very hard.” He thought his vehicle did not hit Daugherty’s with such force as to propel it across the center line, through two lanes of traffic, and into the Volkswagen’s path.

In essence, Daugherty contends that Keck’s vehicle rear-ended the van into the Volkswagen. Conversely, Keck maintains that the impact of his collision with the van was not sufficient to cause the van’s collision with the Volkswagen. This contrary testimony, when viewed in a light most favorable to the plaintiff, does not support a directed verdict in favor of Daugherty and Dura-Bond. Therefore, we find that the trial court erred in granting their motions for directed verdict.

Plaintiff next argues that Curran’s motion for a directed verdict should not have been granted. We disagree. The only testimony regarding Curran’s part in the collisions came from her and Daugherty. Curran stated that she moved into the inside lane to execute a left-hand turn and then, in a stopped position, waited 20 to 30 seconds for the oncoming traffic to clear. Daugherty testified that Cur-ran had quickly changed lanes from the curb lane to the center lane in front of him. Daugherty stated that he was 300 feet behind Curran when her brake lights flashed and that he began pumping his brakes at that time. As* a result of Curran’s lane change, Daugherty testified that he had to pump his brakes three times to slow his vehicle from a speed of 25 miles an hour to 15 miles an hour. Daugherty said that Curran’s stop was so abrupt that it was “hard enough to make [her] car dive. No, not skid, no squeals, but enough to put the nose of that car down to a stop.”

Further, Curran testified that while she was stopped in the inside lane waiting to make a left-hand turn, she heard screeching tires behind her and saw, in her rearview mirror, the van coming up behind her, 20 to 30 feet away. Curran stated that she felt the van could not stop before hitting her vehicle, so she moved out of its way into the curb lane.

Daugherty admitted that it would have taken five more seconds in order for the van not to collide with Curran’s car. He also stated that he might have “tapped” her car had she not driven it into the curb lane.

Even viewed in the light most favorable to plaintiff, there is insufficient evidence of negligence on the part of Curran to merit a jury’s consideration of liability on Curran’s part. Therefore, we find the trial court did not err in granting Curran’s motion for a directed verdict.

Plaintiff argues that the trial court erred when it did not allow his expert to testify. In the midst of putting on his case, plaintiff sought to introduce the testimony of Fred Monick, an engineer and reconstruction expert. The trial court was unsure as to what Monick would testify to. In an offer of proof, plaintiff’s lawyer explicated what Monick’s testimony would be: namely, the relevance of the Keck’s skid marks to Keck’s and Daugherty’s testimonies; the angle and force of impact necessary to propel the van into the Volkswagen; the significance of no yaw marks between the point of the Keck-Daugherty impact and the Daugherty-Volkswagen collision; and the impact necessary to force the van’s trailer hitch to the position it was in following the accident. Additionally, plaintiff’s lawyer stated, “I think what Mr. Monick would say is it’s physically impossible given the statements that were made that the van would have enhanced its speed [following the Keck-Daugherty collision] unless it accelerated *** given the circumstances of this collision, the only way Daugherty could have accelerated and gotten from the 5 to 10 mile an hour speed he was [at] to hit the Volkswagen was that he intentionally did that, and that’s what I believe his testimony is.” (Emphasis added.) The court granted the motion in limine to bar Monick’s testimony. In so doing, the court stated that such speculative evidence would not aid the jury in its deliberations.

It is well established that, normally, expert testimony will not be permitted when its subject matter is not beyond the average juror’s ken. (Binge v. J.J. Borders Construction Co. (1981), 95 Ill. App. 3d 238.) In recent years, this position has been somewhat modified. The modern standard for admissibility of expert testimony is whether such testimony will aid the jurors’ understanding of the facts. (Johnson v. Commonwealth Edison Co. (1985), 133 Ill. App. 3d 472.) Here, the testimony was sufficiently confusing that an expert’s testimony was necessary to determine how the collisions likely occurred. The fact that the jury could not reach a verdict underscores this need.

When the court ruled on the motion banning plaintiff’s expert, it had heard the testimony of Officer Koukalik, Curran, Daugherty, and Keck. Only the plaintiff had not testified. By that time, it was clear that the testimony was creating an incomprehensible depiction of what actually occurred. The interplay of the physical forces that caused the collisions was beyond the average juror’s ken. Monick’s testimony would likely have cleared up some, if not all, of the confusion. The trial court therefore abused its discretion in barring plaintiff’s witness. In so finding, we reject defendant’s contention that plaintiff’s offer of proof regarding Monick’s testimony was inadequate. The offer of proof, though somewhat sketchy, did explicate the specific areas of Monick’s testimony and his conclusions drawn therefrom. From said offer of proof, the trial court had a sufficiently accurate description of Monick’s testimony.

For the reasons stated above, the judgement of the circuit court is reversed, and the cause is remanded for proceedings consistent with this opinion. Specifically, the court should allow plaintiff to present relevant expert testimony.

Reversed and remanded with directions.

REINHARD and McLAREN, JJ., concur.


author: JUSTICE NASH

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL K. BOUCHER, Defendant-Appellant.
    Second District
    No. 2—87—0708
    Opinion filed February 23, 1989.

      G. Joseph Weller and Patrick M. Carmody, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE NASH

delivered the opinion of the court:

Defendant, Michael K. Boucher, appeals from his conviction of criminal contempt of court and sentence to jail. In August 1986 defendant had pleaded guilty to forgery and was sentenced to 30 months of probation, 90 days’ work release, 130 hours’ public service work, restitution, and payment of a fine. In May 1987 a petition to revoke his probation was filed by the State’s Attorney which alleged that defendant had violated the conditions of his probation by failing to report to his probation officer and perform the ordered public service work, and by willfully failing to pay the fine and restitution. At a hearing held on the petition to revoke probation, defendant admitted the allegations in the petition. The trial court found that defendant willfully violated the terms of his probation and indicated that he was going to order that defendant be incarcerated for 60 days, with credit for time served during this period of incarceration, in addition to his original term of probation. Arguments ensued between the State and defendant’s counsel as to whether defendant was entitled to credit for time spent in custody on the original forgery charge. The trial court then determined that a more appropriate disposition of the matter would be to find defendant in contempt of court for violating the conditions of his probation; the judge did so and sentenced defendant to 30 days’ incarceration in the Du Page County jail as a sanction. The court’s order did not provide a means by which defendant could purge himself of contempt.

Defense counsel objected to this procedure on the ground no petition for a rule to show cause had been filed, and the trial court determined, based on the holding in People v. Patrick (1980), 83 Ill. App. 3d 951, 404 N.E.2d 1042, that none was required. Defendant moved to withdraw his stipulation to the probation violations, raising issues concerning credit for time served, which the court denied.

Defendant appeals, contending that: (1) his motion to withdraw his stipulation to the probation violations should have been granted because he did so under a misapprehension of the State’s burden of proof, and (2) the holding in People v. Patrick is no longer the law. These arguments were not presented to the trial court and, having been raised for the first time on appeal, they are subject to waiver. However, the waiver rule operates as a limitation on the litigant, not on the court, and a reviewing court may disregard the waiver rule in order to reach a just result (People v. Hoskins (1984), 101 Ill. 2d 209, 219, 461 N.E.2d 941), and we do so here.

Defendant contends first that he should have been allowed to withdraw his stipulation to the probation violations because at the time of his stipulation, the State’s burden of proof under the pending petition to revoke probation was by a preponderance of the evidence. Defendant argues that the elevation of the burden of proof to beyond a reasonable doubt by the court's substitution of the contempt charge meant that defendant made his admissions under a misapprehension of the burden of proof applicable. In support of his argument defendant cites People v. Braje (1985), 130 Ill. App. 3d 1054, 1065, 474 N.E.2d 1364, which held that a defendant should be permitted to withdraw a guilty plea where he shows that he pleaded guilty based upon either a misapprehension of the law or facts.

While we do not consider this issue because defendant has not cited authority pertinent to probation revocation proceedings, we do note that a probation revocation has been upheld over a defendant’s objection that he was not advised of the State’s burden of proof. People v. Beard (1974), 59 Ill. 2d 220, 223-27, 319 N.E.2d 745.

Defendant next contends that in People v. Mowery (1983), 116 Ill. App. 3d 695, 452 N.E.2d 363, the court tacitly concurred with the specially concurring opinion in People v. Patrick, where Justice Trapp stated that “an alleged violation of a condition of probation must be prosecuted as provided by the Unified Code of Corrections and not by means of contempt of court.” (People v. Patrick (1980), 83 Ill. App. 3d 951, 957, 404 N.E.2d 1042 (Trapp, J., concurring).) While we do not agree with defendant’s analysis of Mowery, we do conclude that the trial court erred when it found defendant in contempt of court based upon the State’s petition to revoke probation before it.

We note that the trial judge did find defendant in contempt based on his failure to pay fines, court costs and restitution ordered by the court. Because of our disposition of this case, we need not here determine whether defendant’s failure to obey these orders was indirect civil or criminal contempt. Compare People v. Mowery (1983), 116 Ill. App. 3d 695, 703, 452 N.E.2d 363 (where the defendant was sentenced for contempt of court for failing to pay costs and restitution, and the order sentencing the defendant to jail did not provide a means of purging himself, court held that contempt was civil). Contra People v. Mowery (1983), 116 Ill. App. 3d 695, 705-06, 452 N.E.2d 363 (Miller, J., dissenting) (contempt may be treated as criminal as an alternative to the revocation of probation, or as civil contempt if the court’s purpose is to induce the defendant to comply with the court’s order of payment).

Contempt, in addition to being characterized as civil or criminal, is also classified as direct or indirect. Direct contempt arises from conduct in the presence of the court, or any constituent part of it, of which the judge has personal knowledge. (In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 861, 415 N.E.2d 1354.) Indirect contempt occurs outside of the court’s presence, and its proof is dependent upon evidence of which the judge has no personal, judicial notice. (People v. Waldron (1986), 114 Ill. 2d 295, 302, 500 N.E.2d 17.) Indirect contempt can be punished summarily as direct contempt, without notice, written charges, plea, issue, or trial, if the contemnor admits his contempt in open court. Only willful violations of a court order can constitute contempt, whether direct or indirect. (In re Grand Jury Investigation of Swan (1981), 92 Ill. App. 3d 856, 861, 415 N.E.2d 1354.) While defendant did admit the allegations of the petition to revoke probation that he willfully failed to pay the fine and restitution, we do not consider that he stipulated that his failure to report to his probation officer or to perform public service work was willful. Thus, his conduct cannot be summarily punished as direct contempt, and defendant must be afforded the procedural safeguards applicable to indirect criminal contempt.

In a proceeding to punish for indirect contempt, the alleged contemnor must be: (1) informed of the charges against him by information, notice, citation, or rule to show cause; (2) allowed to file an answer to the charges; (3) afforded a full hearing thereon; and (4) allowed a jury trial in serious cases. (People v. Javaras (1972), 51 Ill. 2d 296, 300, 281 N.E.2d 670.) While the petition to revoke his probation did inform defendant of the charged violations, and there is authority that defendant need not be directly informed that he can be held in contempt of court for those violations (see People v. Patrick (1980), 83 Ill. App. 3d 951, 954-55, 404 N.E.2d 1042), we find the holding in People v. Waldron (1986), 114 Ill. 2d 295, 500 N.E.2d 17, to be dispositive. There, the court found that due process requires that the alleged contemnor in an indirect criminal contempt proceeding be accorded notice and a fair hearing, which includes the requirement that he be advised of the possibility that he might be found in contempt. Waldron, 114 Ill. 2d at 302-04; see also People ex rel. Williams v. Williams (1987), 156 Ill. App. 3d 438, 443, 509 N.E.2d 460 (the defendant who was held in indirect civil contempt was denied due process because he did not receive notice that the hearing concerned his alleged contempt).

In the present case, the defendant was not charged with contempt, nor did the petition to revoke his probation inform him that he might also be found in contempt of court. The petition to revoke his probation only informed defendant, as grounds, that he had failed to report to his probation officer and perform public service work; it did not charge him with a willful failure to comply with these conditions of his probation. We note too that defendant did not have an opportunity to answer to a charge of contempt, nor was he granted a hearing thereon.

Accordingly, the order finding defendant to be in contempt of court and imposing sentence is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN AND REINHARD, JJ., concur.