text:
      In re MARRIAGE OF OLIVE CUSHMAN BLOUNT, Petitioner-Appellee, and HOWARD D. BLOUNT, Respondent-Appellant.
    Fourth District
    No. 4—90—0195
    Opinion filed May 24, 1990.
    Scott D. Drazewski, of Luedtke, Hartweg & Turner, of Bloomington, for appellant.
    Donald W. Wilcox, Jr., of Thomson & Weintraub, of Bloomington, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Howard D. Blount, respondent, appeals from a bifurcated judgment dissolving his marriage with Olive Cushman Blount, petitioner. Respondent’s only argument on appeal is that appropriate circumstances did not exist authorizing the bifurcated judgment dissolving the marriage.

THE LAW

Section 401 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 401) provides in part:

“The court may enter a judgment for dissolution which reserves any such issues either upon (i) agreement of the parties, or (ii) motion of either party and a finding by the court that appropriate circumstances exist.
The death of a party subsequent to entry of a judgment for dissolution but before judgment on reserved issues shall not abate the proceedings.” (Ill. Rev. Stat. 1987, ch. 40, par. 401(b).)

Our supreme court declared the necessity for “appropriate circumstances” prior to the adaption of the statute, including the term:

“[T]he court could likely be required to adjudicate marital-property rights that have become entangled with the supervening rights of third parties, including subsequent spouses. Additionally, entering a judgment of dissolution prior to property disposition would complicate, rather than simplify, matters with respect to the rights of a surviving spouse in the event of an intervening death. Other complications that can ensue if a judgment of dissolution is not deferred until disposition of the other matters include the loss of ability to file joint income tax returns, the loss of medical insurance coverage, and the loss of marital-property treatment for property accumulated during the intervening period between the entry of the judgment of dissolution and the final disposition of property rights. See Ill. Ann. Stat., ch. 40, par. 401(3), Historical and Practice Notes, at 105-06 (Smith-Hurd 1980). See generally Kujawinski v. Kujawinski (1978), 71 Ill. 2d 563, 572-73.
We therefore believe that sound policy reasons militate against an interpretation of section 401(3) that gives a trial judge unfettered discretion to bifurcate a judgment of dissolution. We do, however, recognize that certain circumstances will justify bifurcating a judgment. We conclude, as did the appellate court based upon the historical and practice notes, that appropriate circumstances for entering a judgment of dissolution, while reserving questions of child custody, support, maintenance or property disposition, include, but are not limited to, the following: Where the court does not have in personam jurisdiction over the respondent; where a party is unable to pay child support or maintenance if so ordered; where the court has set aside an adequate fund for child support pursuant to section 503(d) of the Act; or where the parties’ child or children do not reside with either parent. We do not attempt to envision all the possible appropriate circumstances.” (In re Marriage of Cohn (1982), 93 Ill. 2d 190, 199, 443 N.E.2d 541, 545.)

In In re Marriage of Bogan (1986), 116 Ill. 2d 72, 80-81, 506 N.E.2d 1243, 1246, the Cohn case was relied upon in holding that hampering performance of social functions for business reasons did not constitute appropriate circumstances.

In In re Marriage of Kenik (1989), 181 Ill. App. 3d 266, 536 N.E.2d 982, the facts that the respondent was pregnant by another man, who was willing to marry her and provide for her and her children, taken with the inability of the petitioner to support his children, were held sufficient to meet the appropriate circumstances test. The Kenik decision emphasized the readily identifiable and easily divided assets, the legitimacy issue, prior cessation of filing joint tax returns, and petitioner’s late objections to bifurcation in the litigation chronology. Kenik, 181 Ill. App. 3d at 277-78, 536 N.E.2d at 989.

THE FACTS

Petitioner and respondent were married on May 25, 1979, when petitioner was 64 years of age and respondent was 57. There are no children of the parties. With few exceptions, the major assets of the parties have been kept separate. Both parties were employed when married. Petitioner went into the marriage with more assets, and both now receive social security and work-related annuities. A premarital agreement was executed by the parties on May 14, 1979, which provided in part:

“4. In the event that the parties should separate or become divorced, then in such event each of the parties shall retain such property as they had at the time they entered into the marriage, plus any increase thereof and diminished by any part thereof that has been consumed during the marriage.”

Under the agreement respondent would, in absence of separation or divorce if he survives petitioner, receive petitioner’s automobile, engagement ring, and $10,000. Other less significant benefits would also exist.

Petitioner has been ill for several years. She produced evidence that her depression, which has led to a suicide attempt, has been aggravated by respondent’s argumentative and sullen nature. She is now cared for, under the control of her daughter, at a nursing home.

The medical evidence indicates severe emotional and physical problems. It was testified that her condition is aggravated by her fear that respondent will obtain some of her assets on her death. Petitioner testified that visits from respondent depress and irritate her.

TRIAL COURT RULING

The trial court entered an order which provided in part:

“7. Appropriate circumstances exist to warrant the entry of a Judgment for Dissolution of Marriage while reserving issues of maintenance and the disposition of property.
8. A Judgment for Dissolution of Marriage should be entered herein.”

In giving his oral decision, the trial judge said:

“[A]nd there is not the slightest doubt in my mind that Mrs. Blount is extremely concerned about these things, even if it is unlikely, in the Court’s mind, that those fears are justified. They are still real, and I think it is having a profoundly negative effect on her mental health.
And ***, I think when you weigh that, and the fact that I believe if the Court does grant a dissolution of marriage today, that that will remove a great burden from her shoulders, and will be of assistance to her ***, definitely mentally and physically. When you weigh that importance, in light of the other considerations which militate against a bifurcated hearing, I find very little to *** stand on.”

We agree.

THE DECISION

The Cohn decision enumerated certain appropriate circumstances which will justify bifurcating a judgment. Except for the lack of in personam jurisdiction, they related to the lack of problems with child support. The court emphasized that no attempt was being made to envision all the possible circumstances where such a ruling would be appropriate. See Cohn, 93 Ill. 2d at 199, 443 N.E.2d at 545.

The Bogan decision stated:

“The appropriate circumstances for bifurcating a judgment, as referenced in section 401(b) and enumerated in Cohn, are narrowly drawn. If trial courts were allowed unfettered discretion to bifurcate a judgment of dissolution, the inequities and complications envisioned by this court in Cohn would result.
While we did not attempt to set forth an exhaustive list of appropriate circumstances in Cohn, we conclude here that the reasons advanced for bifurcation must be of the same caliber as those enumerated in Cohn.” (Bogan, 116 Ill. 2d at 79-80, 506 N.E.2d at 1246.)

As we have stated, Bogan’s so-called appropriate circumstance basically involved his social and community participations.

Of the four specific reasons (which we recognize were not intended to be exhaustive), the only one which we see applicable to the present case is based on the theory that dissolving the marriage prior to property distribution would complicate matters with respect to the surviving spouse in the event of an intervening death. No children exist. Any additional tax burden will be upon the petitioner, who has the larger income. No medical insurance problem was made known to the trial court, and there is no indication that there will be additional marital property acquired before the final hearing.

We are concerned with a relatively short marriage and the fact that most property acquired before the marriage was held in the sole ownership of the party bringing the assets into the relationship. If a premarital agreement did not exist, section 503 of the Act would appear to dictate the division of the various significant assets.

This court is reluctant to give much weight to the effect of one of the two parties dying before the final hearing. Why should we deny the emotional benefit to the petitioner — because respondent might receive more assets if petitioner predeceases respondent before the final judgment?

We conclude the evidence before the trial court did not establish a financial entanglement which necessitated a delay in the judgment dissolving the marriage. All necessary reservations were provided for in the trial court’s judgment. In this case, benefit to the emotional status of an elderly, very ill woman, was correctly determined to be “appropriate circumstance.”

Affirmed.

GREEN and McCULLOUGH, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE KNECHT JUSTICE STEIGMANN,

license: Public Domain

text:
      In re A.T. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Pam Daniels, Respondent-Appellant).
    Fourth District
    No. 4—89—0483
    Opinion filed May 17, 1990.

      STEIGMANN, J., specially concurring.
    Robert K. Adrian, of Pollock, Ennis & Heck, of Quincy, for appellant.
    Scott H. Walden, State’s Attorney, of Quincy (Kenneth R. Boyle, Robert J. Biderman, and Denise M. Ambrose, all of State's Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE KNECHT

delivered the opinion of the court:

Pamela Daniels, respondent, appeals the trial court order terminating parental rights for her two minor children, A.T. and R.T. Parental rights were also terminated for the minors’ father, Richard Turner. Turner does not join respondent in this appeal. We affirm.

On June 24, 1985, the Adams County State’s Attorney filed petitions against respondent alleging neglect of her one-year-old son, R.T. and neglect and abuse of her two-year-old daughter, A.T. The petition alleging neglect of R.T. cited sexual abuse of R.T.’s sister, physical abuse of R.T. by respondent’s boyfriend, and inadequate and improper housing. The petition alleging neglect and abuse of A.T. stated on or about May 22, 1985, A.T. was sexually abused by her uncle, Kenneth Forbis, who was at the time a member of the household. Forbis engaged A.T. in anal and oral intercourse, and A.T. contracted oral gonorrhea and experienced vaginal bleeding. Respondent had left A.T. with Forbis on several occasions, knowing Forbis to be an improper caretaker. At the shelter care hearing, the trial court found the petitions to be supported by probable cause and temporary custody of the children was given to the Illinois Department of Children and Family Services (DCFS).

On June 30, 1985, an amended petition for adjudication of wardship was filed. Both petitions alleged R.T. and A.T. were neglected and abused. Count I of the amended petitions recited the allegations made in the original petitions. Count II of both petitions alleged respondent had not provided proper and necessary care for the minors’ well being in that she had lived at six different addresses within the past several months and had placed the minors with different relatives during this period of time. Additionally, the minors had not received adequate food, clothing, or shelter when in residence with respondent. On July 30, 1985, respondent admitted the allegations of count II of the petitions and the court found the minors to be neglected.

A dispositional hearing was held on August 30, 1985. The court adjudged the minors neglected as to proper or necessary support, education as required by law, or as to medical or other remedial care recognized under State law, or other care as necessary for their well being, including adequate food, clothing, and shelter. The court found respondent unable and unfit to care for the minors. The court appointed DCFS guardian of A.T. and R.T. and ordered respondent to attend and complete the day program at the community counseling center. A.T. and R.T. were placed together in a foster home in which they have remained throughout all these proceedings.

A series of review hearings followed on December 6, 1985, January 17, 1986, March 21, 1986, September 23, 1986, March 10, 1987, September 18, 1987, April 25, 1988, and October 17, 1988. Additionally, DCFS provided the court with periodic reports of respondent’s progress. On February 21, 1989, a petition for termination of parental rights was filed. The petition alleged respondent was an unfit parent for failure to make reasonable efforts to correct the conditions which were the basis for removal of her children, and for failure to make reasonable progress toward return of the children within 12 months of adjudication.

A hearing was held on the petition to terminate parental rights on June 2, 1989. The court found respondent to be unfit based upon her failure to make reasonable efforts to correct the conditions which were the basis for removal of her children, and to make reasonable progress toward the return of the children within 12 months after adjudication. The court terminated respondent’s parental rights and gave DCFS the power to consent to adoption of the minors. Respondent now appeals, alleging (1) the trial court’s termination of respondent’s parental rights was against the manifest weight of the evidence; (2) the trial court erred in determining what progress respondent had made only up to 12 months after the date of adjudication; (3) the trial court erred in admitting evidence of an indicated report against respondent concerning abuse of another child; (4) the trial court erred in making a finding of unfitness when it was not provided with transcripts from the earlier hearings; and (5) the trial court erred in considering all prior reports made by DCFS.

Initially, this court pays deference to the importance of parental rights. Our courts have recognized parental rights and responsibilities are of deep human importance, and thus will not be lightly terminated. (In re Paul (1984), 101 Ill. 2d 345, 461 N.E.2d 983; In re Hoback (1981), 95 Ill. App. 3d 169, 419 N.E.2d 713.) A finding of parental unfitness required to terminate parental rights must be supported by clear and convincing evidence. (In re Brown (1981), 86 Ill. 2d 147, 427 N.E.2d 84.) However, such deference does not negate our responsibility to protect minors from neglect and abuse.

The termination of parental rights is governed by the Juvenile Court Act of 1987 (Ill. Rev. Stat. 1987, ch. 37, par. 801 — 1 et seq.) and the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501 et seq.). Under these acts, a finding of unfitness may lead to termination of parental rights. The court may take such action after finding it to be in the best interests of the minors. (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 29.) A finding of unfitness can result from failure by the parent to make reasonable efforts to correct conditions which were the basis for removal of the child, or from failure to make reasonable progress toward the return of the child within 12 months after adjudication. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) Reasonable progress requires measurable movement toward the goal of returning the child. Whether a small amount of progress is reasonable must be determined with proper regard for the best interest of the child. In re Edmonds (1980), 85 Ill. App. 3d 229, 406 N.E.2d 231.

At the termination hearing, Barbara Bernett testified for the State. Bernett has been the child-welfare specialist assigned to this case since its inception. In this capacity, she assisted in formulating a service plan for respondent designed to improve respondent’s parenting ability. The plan provided respondent was to obtain and maintain employment; obtain and maintain safe and clean housing suitable for the children; attend counseling and follow the advice of the counselor; attend scheduled visitations with the children; refrain from physically or sexually abusing the children and not allow anyone else to abuse them; provide proper care, supervision, and discipline for the children during visitation; abide by city, State, and Federal laws; submit to random urine toxicology screening for alcohol and other substances; and maintain stability in her life, particularly her choice of male companions. Respondent’s progress was evaluated every six months.

Bernett testified regarding the conditions which precipitated removing the children from respondent’s home and how these conditions related to the requirements of the service plan. Bernett testified respondent had made progress on some of the tasks set out in the service plan, but then tended to regress. Respondent had made little or no effort to obtain and maintain a job. Respondent worked for a very short period of time before quitting her job at the Swift-Eckrich Company in 1986 and 1987, and again at the Ayerco gasoline station in Camp Point in January 1988. Respondent had also worked two days as a waitress at Larry’s Restaurant in January 1988 before quitting that job. Although respondent had a hysterectomy in September 1985 and gallbladder surgery in May 1987, her physical health did not preclude her from working.

From June 1985 through August 1988, respondent had lived in 10 different residences in Adams County which were suitable for visitation with the children. One or two of the homes would not have been large enough had the children been living with her. In February 1986, respondent began cohabiting with Russell Daniels and his three-year-old son, S.D. Daniels’ daughter, A.D., began living with them in the summer of 1987. Respondent and Daniels moved to Camp Point in August 1987, which created problems as all the social services provided to them were centered in Quincy. Respondent and Daniels married in March 1988.

After respondent became involved with Daniels, additional conditions were written into the service plan requiring Daniels to participate in parenting classes with respondent. While respondent had already attended parenting classes, it was determined she needed a review, particularly because she was experiencing difficulty controlling her and Daniels’ children during visitation. Respondent and Daniels attended 2 or 3 out of 16 classes before quitting, reportedly because of transportation problems. DCFS would have reimbursed them for mileage. Respondent received a certificate for parenting because DCFS agreed to combine her attendance from the first set of classes with the second set.

In January 1986, respondent was referred to the community counseling center. Out of 14 appointments scheduled for her between January and June 1986, respondent missed or cancelled 10. The center closed her case in July 1986 due to her lack of cooperation. In September 1986, respondent voluntarily admitted herself into the psychiatric ward of St. Mary’s Hospital for an evaluation. She left after three days and before the evaluation was completed. A stress team which assessed respondent’s case in December 1987 recommended DCFS exercise great caution before returning the children to her.

Respondent resumed counseling at the community counseling center from April 1987 to September 1988. At this time counseling was ended due to respondent’s conviction for unlawful delivery of a controlled substance, lysergic acid diethylamide (LSD). This offense was committed in April or May 1987. Respondent was convicted on September 30, 1988, and sentenced to three years’ imprisonment. While in prison, respondent’s service plan was amended to require respondent to attend counseling in prison, abide by prison regulations, show interest in the children, and participate in visitation with the children at prison. Respondent met these revised goals.

In her capacity as child-welfare specialist for this case, Bernett also prepared dispositional reports which were periodically filed with the court. The court took judicial notice of these reports in making its determination to terminate respondent’s parental rights. The reports included additional information regarding respondent’s progress and elaborated upon Bernett’s testimony. Respondent was divorced from Richard Turner in the fall of 1984, and began living with Aaron Van Herron. Van Herron was diagnosed as being paranoid schizophrenic with a lengthy history of violence toward others. Despite Van Herron’s admission of having an uncontrollable temper, respondent allowed him to discipline her children. Even after the removal of the children, respondent continued her relationship with Van Herron. Respondent reported her relationship with Van Herron ended in December 1985; by mid-February 1986, respondent had begun living with Russell Daniels and his three-year-old son.

DCFS arranged weekly two- to three-hour visits between respondent and the children. The visits were supervised by a homemaker. Respondent did not devote this time exclusively to the children and frequently was distracted by friends who called on the telephone or visited. Respondent also used this time for chores, including doing laundry for her boyfriend and requesting the homemaker to watch the children while she returned a rental car. The children were frequently unruly during visitation -with respondent, particularly when Daniels and S.D. were present. Daniels antagonized the children and S.D. was a bad influence because he was disruptive. Respondent exacerbated the situation by tickling the children, who often vomited during or after the visits. Respondent was overwhelmed when the children misbehaved and was unable to correct their behavior.

Russell Daniels pleaded guilty to unlawful possession of cannabis on September 9, 1986, and was assessed by recovery resources as a chronic alcoholic with dependency on marijuana and amphetamines. Daniels was described as hostile and unpredictable when under the influence of alcohol and drugs. He was on probation for driving under the influence, his second conviction for the offense, when arrested on the new charge.

With regard to respondent’s own conviction for unlawful delivery of a controlled substance (LSD), respondent advised Bernett she sold drugs because she needed money to pay a fine assessed against Daniels in a criminal case. Respondent did not appreciate how her sale of drugs adversely affected her efforts to regain custody of the children.

Dr. Robert A. Karp, a psychiatrist, also testified for the State at the termination hearing. Dr. Karp testified regarding psychiatric evaluations he made of respondent and A.T. Pursuant to a request by DCFS, Dr. Karp evaluated respondent to ascertain her mental status as it related to her ability to function as a mother. Between October and December 1986, he interviewed respondent on seven occasions for approximately 45 minutes to an hour. Based on these interviews, Karp concluded respondent suffered from borderline personality disorder, an emotional disorder marked by unstableness of mood, self-image, and relationships. The social history respondent related to Karp revealed a pattern of maladaptive behaviors, which fit seven out of the eight salient characteristics of the disorder. The features of the disorder respondent manifested in the interviews were (1) a history of unstable interpersonal relationships; (2) loss of impulse control; (3) instability of mood and affect; (4) formation of premature, intimate relationships with members of the opposite sex; (5) chronic feelings of emptiness and boredom; (6) fear of abandonment and dependence on others; and (7) history of passivity.

Karp testified this combination of personality traits impacted negatively on respondent’s ability to be a responsible mother to her children. Her fear of abandonment and dependence upon men outweighed her concern for her children. Respondent had recounted to him a series of liaisons with unstable men, some of whom she knew were abusing the children. She related incidents when Van Herron severely beat A.T., then age two, for having a bowel movement in her pants, and hit R.T. about the face. Respondent was unable to explain why she did nothing to intervene on her children’s behalf or how she would thwart such abuse in the future. Karp testified every aspect of respondent’s life was chaotic and disorganized. She formed attachments to a succession of men, some of whom she had only known for a matter of hours, made impulsive and erratic moves from one residence to another, experienced mood swings which negatively affected her ability to maintain a job and relationship, and sought inappropriate types of stimulation to counteract boredom.

Karp testified borderline personality disorder is amenable to treatment, but that respondent’s prognosis for recovery was guarded unless she was generally motivated to change and consistently participate in therapy for several years. Though respondent expressed a desire to reform, Karp questioned the sincerity of this statement, particularly because respondent had not voluntarily sought this advice.

On September 5, 1986, Dr. Karp evaluated A.T. to determine whether she had been sexually abused and was developmental^ impaired. Karp first reviewed a history of A.T. provided by the Quincy Community Counseling Center. The report indicated a significant delay in A.T.’s development of language skills. Based upon A.T.’s conduct during this 90-minute interview and play session, Karp reached the following conclusions: (1) A.T.’s sexual precociousness was indicative she had been molested or witnessed adult sexual relations; (2) her physical aggressiveness suggested she was the victim of physical aggression or witnessed major chaotic physical struggles between respondent and another; (3) there was no constant father figure in A.T.’s life; (4) A.T. was possibly functioning in the borderline intelligence level; and (5) her developmental language disorder and regressive behavior suggested she suffered a pervasive early developmental trauma such as physical abuse, neglect, and lack of nurturing.

Respondent testified on her own behalf regarding her rehabilitative efforts since incarceration. Respondent claimed she was an exemplary inmate. She was on work release from the Peoria Correctional Center, working as a maid at the Holiday Inn approximately 40 hours a week and as a waitress at a restaurant for about 20 hours a week. Approximately 20% of her earnings were spent for room and board at the Peoria Correctional Center. The remainder of her earnings were placed in savings, or were used to pay outstanding bills or to buy gifts for her children. Every week she attends drug-abuse counseling, which is a mandatory condition of her sentence. Maxine Eldridge, respondent’s mother, testified she had noticed a change in respondent following her arrest on the drug charges. Respondent is less moody and no longer apathetic.

On appeal, a court will not reverse a finding of unfitness unless it is against the manifest weight of the evidence. The trial court’s opportunity to view and evaluate the parties and their testimony is far superior to that of the reviewing court. Accordingly, the trial court’s findings should be given great deference. In re Brown, 86 Ill. 2d at 152, 427 N.E.2d at 87; In re Wright (1986), 142 Ill. App. 3d 809, 492 N.E.2d 252.

Respondent was given both time and opportunity to make reasonable progress and efforts. Respondent failed and the trial court was required to act. The trial court was justified in terminating parental rights, considering respondent’s failure to make efforts, to achieve meaningful progress, and the best interests of the children. The trial court’s order terminating parental rights of respondent is not against the manifest weight of the evidence.

Respondent further contends the trial court erred in only considering the progress respondent had made up to 12 months after the date of adjudication. In alleging the trial court only considered the 12 months immediately following adjudication of neglect, respondent cites the trial court’s written order entered June 7, 1989, which provides: “2. Mother has failed to make reasonable progress toward return of children within 12 months following adjudication of neglect on August 29, 1985.” Respondent further cites an excerpt from the termination proceedings, which provided:

“Q. [By prosecutor]: And you have been a caseworker for this family: A.T., R.T., and their mother?
A. Yes. I have. Since January of ‘84, I have been acquainted with the family.
Q. And January of 84, would have been when the case first arose?
A. Yes, Pam called the [DCFS] in January of ’84 inquiring about—
[Respondent’s Counsel]: Judge, I’m going to object to anything that happened before the petition was filed. I believe we are concerned here with the allegations of the petitioner to terminate as to progress that has been made and what has happened after the children have been removed from Pam’s custody, so therefore, I am objecting to any testimony concerning what happened prior to the date of the petition for adjudication was filed. I believe that is irrelevant to what has happened since then.
THE COURT: Mrs. Rodriguez?
[Assistant State’s Attorney]: Your Honor, I believe that any indicated reports and history that the [DCFS] has involving this family is relevant to the overall picture of whether or not there has been any progress made in this case.
THE COURT: Anything else, [Assistant State’s Attorney]?
[Assistant State’s Attorney]: Just that I believe the case law is clear that the time we are looking at is from the time the minors were removed to the present date, and that is the relevant evidence in this case.
THE COURT: The objection is sustained. We are limited to the dates between the date that the minors were adjudicated and 12 months following that date.
* * *
[Assistant State’s Attorney]: Your Honor, if I may have some clarification. Are we proceeding then from the date the original petition was filed? Is that what the court meant? I’m not sure what the time restriction is that is being placed on us.
THE COURT: I indicated that what we are looking at is the time period from the date of adjudication, which the court record indicates was August 30, 1985, starting on that date and then to the next 12 months. If there is other evidence that you or somebody wants to present that is more than 12 months beyond that date, then we can consider that also.”

Section l(D)(m) of the Adoption Act (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m)) provides a court may find a parent unfit for failure “to make reasonable efforts to correct the conditions which were the basis for the removal of the child from such parent, or to make reasonable progress toward the return of the child to such parent within 12 months after an adjudication” of neglect or dependency. (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).

As written, this statutory language is capable of two contradictory interpretations. The first interpretation is a determination of unfitness must be based solely on parenting efforts or progress during the period beginning with adjudication and ending 12 months thereafter. The second interpretation is a determination of unfitness must be based upon parenting efforts or progress made during the entire period between adjudication and filing of the termination petition. Under this latter interpretation, the length of the period is not limited by the statute.

In In re R.S. (1988), 174 Ill. App. 3d 132, 528 N.E.2d 25, the Third District Appellate Court adopted the latter interpretation of the statute, and we agree with this finding. It is clearly in the best interest of the child to consider respondent’s conduct during the entire post-adjudication period. Such a determination is a more true representation of respondent’s efforts and progress. Accordingly, the statute also serves to protect respondent. As written, the 12-month period is a limiting provision, which guarantees respondent a minimum of 12 months in which to improve the situation between adjudication and a hearing on the issue of termination. In reviewing respondent’s situation, the court should consider both favorable and unfavorable evidence regarding fitness to parent. An interpretation of the statute permitting evidence of respondent’s efforts or progress made during the entire period between adjudication and a hearing on the termination petition more clearly meets these policy concerns and more clearly comports with our responsibility to protect minors from neglect and abuse.

With regard to the court’s statements, we do not find it was the court’s intent to limit the admission of evidence to events occurring only during the 12-month period after adjudication. Though somewhat inartfully stated, the court was explaining it did not wish to hear evidence regarding incidents which occurred prior to the initial filing of the petitions. From the record, we understand this was also the objective of respondent’s attorney’s objection. The court’s written order, stating respondent had failed to make progress within 12 months after adjudication, was merely a recitation of the statute and, in light of all the other factors, does not indicate an intent by the court to limit evidence of conduct only occurring during the 12-month period. Instead, the trial court appropriately considered evidence of respondent’s conduct during the entire post-adjudication period. Both respondent and the State presented evidence of respondent’s conduct beyond 12 months after adjudication. This evidence was both favorable and unfavorable to respondent.

Respondent alleges the trial court further erred in admitting evidence of an indicated report against her concerning abuse of another child. Respondent contends such information is irrelevant to the proceedings and made this objection at the termination hearing. The evidence received at the termination hearing regarding this allegation came on redirect examination of Barbara Bernett. The State asked Bernett if DCFS had an indicated abuse report against respondent regarding children other than her own. Bernett indicated DCFS had received a hotline report on April 29, 1986, to the effect respondent had sexually abused the 21/2-year-old niece of Russell Daniels and Daniels’ three-year-old son, S.D. The report alleged respondent had fondled the genitals of the niece and taken pictures of the two children engaging in sexual acts. Respondent was also alleged to have masturbated in front of the children. The incident occurred at a time when respondent had been entrusted with the care of both children. Following an investigation by the Quincy police department and DCFS, the report was given indicated status. Respondent pursued an administrative hearing before DCFS, and the review board expunged the allegations respondent had fondled the niece’s genitals and photographed the children engaging in sexual acts. The portion of the report alleging respondent sexually exploited the children by masturbating in their presence still has indicated status.

Evidence is relevant if it has any tendency and reason to prove any material fact in issue. (People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) The court heard evidence from Bernett and Dr. Karp that part of the reason for removing the children was respondent had allowed others to abuse the children and had not otherwise provided proper and necessary care for their well-being. Karp attributed A.T.’s sexual precociousness and aggressiveness to incidents of sexual or physical abuse perpetrated upon her or from witnessing such acts between respondent and others in the household. He also ascribed A.T.’s developmental language disorder and regressive behavior to a pervasive trauma such as physical abuse, neglect, and lack of nurture occurring early in her life.

Evidence respondent was engaging in sexual conduct in the presence of other children entrusted in her care eight months after the adjudication of neglect of her own children bears directly upon the efforts and progress respondent was making to rehabilitate herself. As such, this evidence is not irrelevant. This evidence also does not constitute inadmissible hearsay as sections 2 — 18(3) and 2 — 18(4)(b) of the Act (Ill. Rev. Stat. 1987, ch. 37, pars. 802-18(3), (4)(b)) directly provide for its admission. Accordingly, the trial court did not err in admitting such evidence.

Judge Paul A. Kolodziej presided over this case from its inception through January 17, 1986. Accordingly, he presided over the hearing for temporary shelter care, the hearing of adjudication and disposition. Judge John Wooleyhan was then appointed to the case and presided through its conclusion on June 8, 1989. At the close of the evidence at the termination hearing, respondent’s attorney argued the State had not sustained its burden of proof because it had failed to provide the court with a record of the prior proceeding which resulted in the finding of neglect. Respondent’s attorney argued that as a different judge was now presiding over this matter, it would be impossible for the court to measure respondent’s efforts or progress without knowing the prior status of the case. In response, the court advised all parties that in making a decision it would be reviewing the notes it had made during the termination hearing and the entire record of the case with specific emphasis upon the reports from DCFS.

The record does not indicate why a transcript was not provided; however, we do not find this to constitute reversible error. The court was provided with all court records, including the petitions, findings, reports, and orders. Bernett and Dr. Karp testified to the circumstances regarding the finding of neglect and how these circumstances related to respondent’s efforts and progress. Judge Wooleyhan presided over this case for three years. Though he was not the judge at the time of adjudication, the case was assigned to him only six to seven months later.

This case is easily distinguished from In re Enis (1986), 145 Ill. App. 3d 753, 495 N.E.2d 1319, in which the Second District Appellate Court held the State failed to show by clear and convincing evidence respondent had failed to make reasonable efforts to correct conditions leading to removal. A different judge had presided over the termination hearing, and the court did not have before it any transcripts of the earlier hearings or any other presentation of facts supporting the abuse findings. The court found the absence of evidence which led to removal of the child prevented an accurate assessment of the parents’ efforts. Unlike Enis, this court had sufficient evidence before it regarding respondent’s status at the time of removal to appropriately review her efforts and progress. Additionally, respondent’s attorney objected at the termination hearing to the State’s elicitation of evidence regarding conditions which impelled the filing of the neglect petition. Having taken this position in the trial court, respondent cannot now complain of the alleged lack of evidence regarding her prior status.

On the other hand, respondent alleges the trial court erred in admitting evidence of the prior reports made by DCFS. These reports monitored respondent’s progress pursuant to the service plan and had been periodically filed with the court. At the termination hearing, respondent did not object to the court’s statement it was taking judicial notice of these reports.

It is incumbent upon the party opposing the taking of judicial notice to make such an objection. (In re Johnson (1985), 134 Ill. App. 3d 365, 480 N.E.2d 520.) Even aside from respondent’s waiver of the issue, a court may take judicial notice of matters of record in its own proceedings. People v. Davis (1976), 65 Ill. 2d 157, 357 N.E.2d 792; In re J.R.Y. (1987), 157 Ill. App. 3d 396, 510 N.E.2d 541.

Respondent was given an opportunity on this occasion and on numerous other occasions to controvert the contents of these reports. A large portion of the content of these reports was testified to by Bernett. We do not find respondent to be prejudiced or the court to have erred in reviewing such documents.

Affirmed.

McCullough, j., concurs.

JUSTICE STEIGMANN,

specially concurring:

While I agree with the majority’s analysis in this case, I write separately to express my dismay at the delay in the filing of the petition to terminate parental rights. On August 30, 1985, the dispositional hearing was held at which the court placed these children in a foster home pursuant to a finding that respondent was unable and unfit to care for them. On February 21, 1989, SW years later, a petition for termination of parental rights was finally filed and ultimately granted.

The evidence as reviewed by the majority demonstrates that the responsible authorities waited much too long for respondent “to get her act together” before this petition was filed. These children deserved better. Every child should have a stable, loving, secure, and permanent home. DCFS and the respective State’s Attorney’s offices ought to decide towards the end of the 12-month period provided by statute whether a petition to terminate parental rights should then be filed. (Ill. Rev. Stat. 1987, ch. 40, par. 1501(D)(m).) If a determination is made at that point not to file a petition to terminate parental rights, the issue should still be continuously reviewed as long as the children involved have not been placed back with a parent.

If neither DCFS nor the appropriate State’s Attorney’s office acts promptly to seek to terminate parental rights when that action is called for, then, as a last resort, the trial court must alert these agencies to the need to do so. Once the trial court makes its views known, I seriously doubt that it would ever need to take the extraordinary (and probably unwise) step of directing the State’s Attorney to file a petition to terminate parental rights, assuming that the court even had the authority to do so under section 2 — 13(1) of the Juvenile Court Act of 1987 (Act) (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 13(1)). Of course, when a judge has indicated there is a need for a petition to terminate parental rights to be filed, that judge must thereafter recuse himself or herself from any proceedings on that petition once it is filed.

Trial courts must bear in mind that the formal order entered at the dispositional hearing (when the court finds the best interest of an abused or neglected child so requires) is to adjudicate the child a ward of the court. (See Ill. Rev. Stat. 1987, ch. 37, par. 802 — 22(1).) The statute does not say a “ward of DCFS” or a “ward of the State’s Attorney.” Section 2 — 28 of the Act (Ill. Rev. Stat. 1987, ch. 37, par. 802 — 28) provides the mechanism for periodic review by the court of the status of its wards. Part of the court’s review always should be an inquiry as to whether its wards have permanent homes, and, if not, why not.

Delays of SVa years in the filing of a petition to terminate parental rights are explainable only if the basis for that petition was a late-occurring event. That is clearly not the situation in the present case.


author: JUSTICE GREEN

text:
      In re SIMPSON DRISKELL, JR., a Disabled Person (Jean A. Pape, Guardian of the Person of Simpson Driskell, Jr., a Disabled Adult, Indiv. and as a Member of a Class, et al., Plaintiffs-Appellants and Cross-Appellees, v. Wilma Louise Byrd, who now calls herself Wilma Louise Driskell, Defendant-Appellee and Cross-Appellant).
    Fourth District
    No. 4—89—0926
    Opinion filed May 24, 1990.
    Rehearing denied June 26, 1990.

      G. William Horsley, of Springfield, for appellants.
    Grady E. Holley and Robert W. Mueller, both of.Holley, Keith & Huntley, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On September 23, 1988, plaintiff Jean A. Pape, as guardian of the person of Simpson Driskell, Jr. (Simpson), a disabled adult, brought suit in chancery in the circuit court of Sangamon County against a defendant designated as “Wilma Louise Byrd, who now calls herself Wilma Louise Driskell” (Wilma). Two of the counts of the complaint requested a declaration that a marriage between Simpson and Wilma occurring on August 20, 1985, was void. Other counts requested a determination that plaintiff, in her individual capacity, and many others who had remainder or reversionary interests in the estate of Simpson’s grandfather be designated a class and that a constructive trust for their benefit be established as to funds being administered by the guardian of Simpson’s estate.

On September 25, 1989, Pape, in her capacity as the guardian of Simpson’s person, filed a document purporting to be in both the chancery case and the probate proceedings concerning the guardianship of Simpson’s person and estate. The document was designated as a petition for leave to file a “counterclaim as part of an answer to a petition,” that being a petition filed in the probate proceeding by Wilma to have Pape removed as guardian of Simpson’s person. The parties are in agreement that, at this stage, the chancery case and the guardianship proceedings were consolidated by the circuit court. The counterclaim alleged that the marriage between Simpson and Wilma was invalid for the reasons set forth in the chancery proceeding.

After various proceedings and an evidentiary hearing, the circuit court entered an order on November 6, 1989, from which this appeal is taken. In one count of the complaint, Pape sought to have the marriage set aside on the grounds that Simpson was incompetent to enter into the marriage. In the November 6 order, the circuit court granted summary judgment to Wilma on this count, ruling the count was barred by a statutory period of limitation which we later describe. The court also heard evidence on the question of fitness and made a conditional finding that, if the count was not barred as untimely, Simpson was, in fact, mentally incompetent to marry. Another count sought to set aside the marriage because it took place on the date of the issuance of the marriage license and in violation of a statutory one-day waiting period. (Ill. Rev. Stat. 1985, ch. 40, par. 207.) The court also entered judgment for Wilma in that regard, ruling that a violation of the waiting period was, of itself, insufficient to invalidate a marriage.

The circuit court allowed Pape’s motion for leave to file a “counterclaim” to the petition for her removal. The court then announced that Wilma was not required to respond to the counterclaim. As part of the order entered November 6, 1989, the court then denied the counterclaim and also denied Wilma’s petition to discharge Pape as guardian of Simpson’s person. The court certified the various described persons holding remainder or reversionary interests as a class but did not proceed further in regard to the request for declaring a constructive trust. The court then found, pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), that no just reason existed to delay enforcement or appeal. The court also pointed out that under Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)), the final determination of the status or right of a party in a probate proceeding is an appealable order even though not all claims of all the parties to the consolidated proceeding have been finally determined.

Pape has appealed all of the orders entered against her in either her personal or representative capacities. Wilma has cross-appealed the contingent finding that Simpson was incompetent to enter the marriage. We affirm.

The issue of whether Pape’s action to declare the marriage invalid because of Simpson’s lack of mental capacity to enter the marriage involves sections 301(1) and 302(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, pars. 301(1), 302(a)(1)). Section 301(1) states a “court shall enter its judgment declaring the invalidity of a marriage” when “a party lacked capacity to consent *** at the time the marriage was solemnized, either because of mental incapacity or infirmity.” (Ill. Rev. Stat. 1985, ch. 40, par. 301(1).) Section 302(a)(1) states:

“Time of commencement, (a) A declaration of invalidity under paragraphs (1) through (3) of Section 301 may be sought by any of the following persons and must be commenced within the times specified:
(1) for any of the reasons set forth in paragraph (1) of Section 301, by either party or by the legal representative of the party who lacked capacity to consent, no later than 90 days after the petitioner obtained knowledge of the described condition.” Ill. Rev. Stat. 1985, ch. 40, par. 302(a)(1).

In the case of In re Marriage of Drews (1986), 115 Ill. 2d 201, 503 N.E.2d 339, while ruling a guardian of the person of a mentally disabled person cannot seek a dissolution of a ward’s marriage, the court stated such a guardian had capacity to seek a declaration a marriage is void and should be annulled. No authority to the contrary has been presented. Here, the record shows Pape was appointed guardian on June 6, 1988, and waited until September 23, 1988, to bring the instant action. The parties agree Pape had knowledge of Simpson’s condition during all of this time. Thus, the 90-day period of section 302(a)(1) of the Act had expired before the case was filed.

Plaintiff points out that at common law, courts would annul a marriage upon a showing that a party to the marriage lacked the mental capacity to marry. (Pyott v. Pyott (1901), 191 Ill. 280, 61 N.E. 88; Orchardson v. Cofield (1897), 171 Ill. 14, 49 N.E. 197.) Pape maintains the action here should be deemed a common law action, and the limitation period of section 302(a)(1) of the Act should not be deemed to be applicable. Assuming arguendo that a common law right to seek annulment on some grounds not listed in section 301 still exists, we do not accept a theory that when seeking to annul a marriage for a ground stated in section 301, the legislature did not intend for the limitations of section 302 of the Act to apply. If the General Assembly had intended that the time limits of section 302 should be applicable to actions to seek annulments on section 301 grounds, section 302 would be virtually meaningless, because a party seeking that type of relief could avoid the provisions of section 302 by designating the action brought as one at common law. We hold the limitation period of section 302(a)(1) was applicable here.

The operation of section 302 of the Act does have problems which we need not confront directly here. In Payton v. Payne (1980), 90 Ill. App. 3d 892, 414 N.E.2d 33, a man suffering from Alzheimer’s disease married a woman who contended she had been living with him for several years. Nearly four years later, she was appointed his conservator and served for slightly more than one year when a successor conservator was appointed. Well within 90 days of his appointment, the new conservator brought an action to annul the marriage because of his ward’s mental incapacity at the time of the marriage. The circuit court dismissed the petition for annulment on the grounds the limitation period of section 302(a)(1) of the Act had expired. The appellate court reversed and remanded. That court held (1) the period between the marriage and the appointment of the wife should not be considered as a part of the 90-day period of section 302(a)(1) because the man was incompetent to proceed on his own; (2) the running of the limitation period was also tolled while the wife was conservator because of her conflict of interest; and (3) the subsequent conservator had known of the man’s disability for many months but, the limitation period did not start to run until he was appointed and had the capacity to sue to annul. The judgment of dismissal was reversed, and the cause remanded for hearing on the merits.

Thus, many factors may prevent the 90-day period of section 302(a)(1) from running until a proper guardian of the person is appointed. Not touched by the Payton opinion is the effect upon the rights of a successor guardian to bring an action for annulment when a prior guardian has negligently permitted the statutory period to run. However, we need not answer these questions here. We find nothing to have prevented the running of the 90-day period as far as Pape’s chancery complaint was concerned.

Section 207 of the Act states:

“A license to marry becomes effective in the county where it was issued one day after the date of issuance, unless the court orders that the license is effective when issued, and expires 60 days after it becomes effective.” (Ill. Rev. Stat. 1985, ch. 40, par. 207.)

The record showed the license was issued on August 20, 1985, and the wedding took place that day. The license stated it was to be effective August 21, 1985. The word “waived” had been typed on the license. Some evidence indicated that the word “waived” on the license indicated a court order had been entered waiving the one-day waiting period of section 207 and permitting a marriage that day. However, other evidence was to the contrary. The circuit court did not rely upon any court order being entered waiving the waiting period. That court ruled that any failure to wait until August 21, 1985, to have the marriage performed did not invalidate the marriage. We agree.

In Haderaski v. Haderaski (1953), 415 Ill. 118, 112 N.E.2d 714, a defendant to a divorce petition based on drunkenness sought to defend on the basis no marriage had taken place. The supreme court affirmed a circuit court decree upholding the validity of the marriage and awarding a divorce. The evidence indicated no marriage license had ever issued although the parties had gone through a proper church ceremony and a certificate memorializing the marriage had been executed. The court concluded that the proper rule was that failure to follow statutory licensing requirements does not render a marriage void unless the statute so provides. The Haderaski case was decided before the enactment of section 207 of the Act, but the General Assembly enacted that provision with constructive knowledge of that decision and made no provision providing the failure to follow the one-day waiting period would void the marriage. Furthermore, section 207 is not stated in mandatory language. We deem Haderaski to be controlling and hold that any failure to observe the one-day waiting period of section 207 did not void the marriage.

Pape maintains that even if her failure to bring suit to annul the marriage between Wilma and Simpson on grounds of his mental incapacity within the 90-day period bars that court of the chancery complaint, that issue was timely present by her counterclaim in the probate proceeding. She contends the circuit court erred in dismissing that counterclaim. She relies on section 13 — 207 of the Code of Civil Procedure (Code), which states:

“Counterclaim or set-off. A defendant may plead a set-off or counterclaim barred by the statute of limitation, while held and owned by him or her, to any action, the cause of which was owned by the plaintiff or person under whom he or she claims, before such set-off or counterclaim was so barred, and not otherwise. This section shall not affect the right of a bona fide assignee of a negotiable instrument assigned before due.” (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 207.)

We conclude Pape’s counterclaim in the probate proceedings failed to meet the express requirements of section 13 — 207 of the Code necessary to negate the limitation of section 302(a)(1) of the Act.

The “action” to which Pape’s counterclaim was filed was Wilma’s petition to have Pape removed as guardian of Simpson’s person. That “action” was not “owned” by Wilma within the meaning of section 13 — 207 of the Code. A proceeding to remove a guardian is in the nature of a proceeding on behalf of the State for the purpose of protecting an incompetent ward. (In re Estate of Sherwood (1965), 56 Ill. App. 2d 334, 338-39, 206 N.E.2d 304, 307.) Any “reputable person” can bring such an action. (Ill. Rev. Stat. 1985, ch. HOW, par. 11a— 3(a).) The “action” was also not “owned” by anyone under whom Wilma claimed.

Similarly, Pape’s counterclaim against Wilma did not concern an “action” which she “owned” in the capacity in which she was respondent to Wilma’s petition for her removal. Pape was not acting on behalf of Simpson in defending against Wilma’s petition. Pape was acting on her own behalf, defending her right to be guardian. Pape had no right as an individual to seek annulment of the marriage. That right was “owned” by Simpson. Pape could seek to exercise that right only on his own behalf and not on her behalf. Section 13 — 207 of the Code speaks of the right of the “plaintiff” (here Wilma) being “owned by the plaintiff or person under whom he or she claims,” but requires ownership of the counterclaim to be in the defendant (here Pape) without reference to anyone under whom the defendant might claim. Thus, Pape was attempting to counterclaim in a different capacity than that in which she was a respondent to Wilma’s petition and counterclaimed in regard to an “action” not “owned” by her. Ill. Rev. Stat. 1985, ch. 110, par. 13 — 207.

As we have indicated, after permitting Pape to file the counterclaim, the circuit court indicated to Wilma she need not file a responsive pleading. The record indicates a tacit understanding that the defense of the limitations of section 302(a)(1) of the Act was raised as to the counterclaim. As section 13 — 207 of the Code did not negate the application of section 302(a)(1) of the Act, the circuit court correctly dismissed the counterclaim.

On August 23, 1985, John Ray was appointed guardian of Simpson’s person and served until he resigned on June 6, 1988. On November 26, 1985, Wilma filed a petition to have him removed and, on December 31, 1985, he filed a counterclaim seeking to set aside Wilma’s marriage to Simpson. The petition for removal was never ruled upon and was rendered moot when Ray resigned. Pape maintains the filing of this counterclaim, which was mentioned in her counterclaim, tolled the running of the 90-day period of section 302(a)(1) of the Act. However, the evidence shows Ray knew of Simpson’s disability when he was appointed and more than 90 days elapsed between his appointment and his filing of the counterclaim. That counterclaim has never been ruled upon. However, even if it is not invalid and can be considered to have been before the court at the time it ruled on Pape’s counterclaim, it suffered from the same infirmities as hers as far as overcoming the running of the 90-day period.

Pape maintains the circuit court effectively denied the request for a declaration creating a constructive trust. We disagree. The record clearly indicates the court did not rule upon that issue. The reason why the court made a finding pursuant to Supreme Court Rule 304(a) was because of the pendency of that issue.

For the reasons we have stated, we affirm the portions of the order of November 6, 1989, from which Pape has appealed.

Wilma cross-appealed the contingent finding in the November 6, 1989, order that Simpson did, in fact, lack mental capacity to enter into the marriage. Entry of such an order was appropriate, because, if a reviewing court should hold the limitation period of section 302(a)(1) of the Act did not bar the action to annul the marriage, the finding, if upheld on review, would enable a proper judgment to be entered without the necessity of a further evidentiary hearing. Wilma contends the finding was contrary to the manifest weight of the evidence, and, in any event, the circuit court erroneously applied a preponderance of the evidence standard in making its finding. We disagree. As we will explain, the finding was not contrary to the manifest weight of the evidence and the circuit court applied the proper standard of proof.

We consider the question of the standard of proof first. Many opinions of Rlinois courts of review have stated that where a purported marriage is shown, a strong presumption of its validity exists, and the burden is upon the person attacking the marriage to prove its invalidity. (I.e., Greathouse v. Vosburgh (1960), 19 Ill. 2d 555, 568, 169 N.E.2d 97, 103; Crysler v. Crysler (1928), 330 Ill. 74, 77, 161 N.E. 97, 98.) We have been unable to find a published opinion holding the proof of invalidity need be stronger than the preponderance of the evidence. In an unpublished opinion, this court held that proof must be “strong, distinct and conclusive.” (Diez v. Diez (1966), 73 Ill. App. 2d 442, 219 N.E.2d 67 (abstract of opinion) (slip op. at 5).) In support of its position, this court relied on Crysler, which merely made the statement we have attributed it in regard to the presumption created and the burden on the one attacking the marriage. We conclude that if a higher standard than a preponderance of the evidence is required, some court of review would have so stated in a published opinion. Moreover, Diez concerned a charge of fraud and involved a situation where support of a child was in issue. We choose not to follow Diez and, to the extent any precedent is established by its holding as to the standard of proof, we overrule that precedent.

The applicable test to determine whether Simpson was competent to marry was whether he had the ability to understand the nature, effect, duties, and obligations of marriage. (Larson v. Larson (1963), 42 Ill. App. 2d 467, 473, 192 N.E.2d 594, 597.) He need not have been able to transact ordinary business. (Ertel v. Ertel (1942), 313 Ill. App. 326, 335, 40 N.E.2d 85, 89.) We examine the evidence on this basis.

Dr. Herbert Henkel, a urologist who had treated Simpson since February 1982, testified Simpson’s mental condition was such he was incapable of making decisions involving his health or personal matters in a reasonable manner. He stated an opinion Simpson would have lacked mental capacity to understand the nature, effect, duties, and obligations arising from a marriage ceremony in August 1985. Dr. Mohammad Irshad had also treated Simpson since February 1982. He diagnosed Simpson as having organic brain syndrome, schizophrenia, confusion, and disorientation. Dr. Kenneth Malmberg diagnosed Simpson as having schizophrenia and Alzheimer’s disease in the summer of 1985. He described Simpson as being unable to know what he was doing on August 20, 1985. All of these physicians indicated Simpson also had numerous physical imparities. Several nurses who had attended Simpson at hospitals or nursing homes at times pertinent to August 20, 1985, testified he was difficult to work with, unable to dress or clean himself, and often required restraint.

The case put on by Wilma to negate the contention of Simpson’s lack of competence did not have the benefit of the testimony of physicians. A nurse who had admitted Simpson to a hospital in 1985 testified he appeared to understand her explanation of the consent form she tendered him. An ambulance driver who had frequently taken Simpson from the nursing home where he stayed to a hospital stated Simpson often rode in the front seat and appeared to understand the nature of their conversation and what was happening to him. However, the driver admitted he had difficulty in understanding what Simpson was saying. The strongest testimony supporting Simpson’s competence was the testimony of the ambulance driver’s daughter who was an assistant activities director at the nursing home where Simpson lived. She stated he was able to participate in activities, knew when to take his medicine, and, in her opinion, was capable of recognizing the nature, effect, duties, and obligations of a marriage contract.

The minister who performed the wedding ceremony testified that although he did not remember the occasion, his methods were such he would not have performed the ceremony if he thought Simpson was incompetent. Wilma’s sister stated she was a witness to the marriage ceremony and noticed Simpson was anxious to get married, had no trouble answering the minister’s questions, and understood he had to have a blood test in order to get married. She testified Simpson knew what was transpiring and was competent to marry. Wilma testified to visiting Simpson two or three times a week at the nursing home where he lived and talking with him about marriage, which he seemed to understand. Another witness testified Simpson had mentioned prior to the ceremony that he was going to get married.

The foregoing evidence was clearly sufficient for the trial court to have found Simpson did not understand the nature, effect, duties, and obligations of a marriage. The finding was not contrary to the manifest weight of the evidence.

For the first time, on appeal, Pape requests a declaration that if Simpson dies before the proceedings concerning the creation of a constructive trust are established, the case may continue. Even if this matter were presented to the circuit court, it would not constitute a proper request for a declaratory judgment. Such an order would not terminate any part of the controversy giving rise to these proceedings. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 701(a).) The request is merely an improper one for an advisory opinion. In re Estates of Rice (1979), 77 Ill. App. 3d 641, 396 N.E.2d 298.

As previously stated, we affirm the circuit court’s order of November 6, 1989, in its entirety.

Affirmed.

KNECHT, P.J., and STEIGMANN, J., concur.


author: JUSTICE McMORROW

text:
    LOUIS DATO et al., Plaintiffs and Counterdefendants-Appellants, v. ARTHUR A. MASCARELLO, Defendant and Counterplaintiff-Appellee.
    First District (4th Division)
    No. 1—87—3261
    Opinion filed December 7, 1989.
    Rehearing denied May 30, 1990.

      Jeffrey H. Bunn, of Lupel & Bunn, of Chicago, for appellants.
    Richard J. Nakon, of Palatine, for appellee.
   JUSTICE McMORROW

delivered the opinion of the court:

Plaintiff-counterdefendant Louis Dato (plaintiff) appeals from a judgment order in favor of defendant-counterplaintiff Arthur Mascarello (defendant) in an action arising from a commercial real estate transaction. Plaintiff contends that the trial court erred in its award and calculation of damages on defendant’s counterclaim.

The facts of the case, which are largely undisputed, will be set forth only to the extent they are relevant to the issue presented. On July 3, 1979, the parties executed a written contract for the sale and purchase of a parcel of commercial property in Bellwood, Illinois. The contract provided, inter alia, that the purchase price was $215,000; that upon payment of $21,500 earnest money, plaintiffs would be permitted to take possession of the property; that closing would take place within seven days after issuance of a title insurance commitment; that at the closing, plaintiffs would pay to defendant the sum of $13,500 plus or minus prorations; and that defendant would hold a purchase money mortgage secured by a note from plaintiffs for the remaining amount of $180,000. The parties also entered into a separate agreement for the sale of various items of personal property for an agreed price of $7,000. There is a dispute as to when closing originally was to have taken place and why it did not occur as scheduled. However, it is agreed that plaintiffs took possession of the property on July 23, 1979, and that closing was rescheduled for September 14, 1979. On September 13, 1979, plaintiffs presented defendant with an itemized list of defects in need of repair (the punchlist) which plaintiffs had discovered after taking possession of the property. In addition to the dispute concerning the punchlist, a disagreement arose regarding whether certain items of personalty were to be conveyed with the property.

These disputes resulted in the cancellation of the September 14 closing and the filing of plaintiffs’ original complaint seeking injunctive relief, specific performance of the contract, and damages for defendant’s failure to make the necessary repairs of the items on the punchlist. Defendant thereafter filed his answer and a counterclaim alleging breach of contract by plaintiffs, seeking forfeiture of the earnest money and an order requiring plaintiffs to pay rent on a per diem basis from the date of their possession of the property.

The parties eventually executed an agreement to close the sale of the property on February 22, 1980, without prejudice to their respective rights under the real estate contract. Throughout the seven-month period between the date plaintiffs took possession of the property and the date of closing, defendant continued to collect the rents and to pay all taxes, insurance, utilities and maintenance costs (operating expenses) relating to the property.

On July 24, 1980, plaintiffs filed an amended complaint seeking reimbursement for the cost of the repairs not made by defendant and a declaration of the rights and liabilities of the parties with respect to the separate agreement regarding the items of personal property in dispute. Defendant filed an answer, affirmative defenses and an amended counterclaim seeking (1) payment of the full amount agreed upon for the personal property; and (2) damages equivalent to (a) the lost interest on the amount of the unpaid purchase price plus (b) the sums expended by him for the operating expenses during the seven months plaintiffs were in possession of the property prior to closing.

Following a bench trial, the trial court ruled that defendant owed plaintiff $2,000 as reimbursement for the reasonable cost of repairs of the defects itemized on the punchlist; that plaintiff was entitled to the rents of $2,450 collected by defendant during the seven months plaintiff was in possession of the property; that plaintiff, as a vendee in beneficial possession of the property for those seven months, was obligated to pay defendant $11,287.50 in interest on the unpaid purchase price of $180,000; and that plaintiff was further liable to defendant for all operating expenses paid by defendant during that period, which amounted to $10,015. The order resulted in a net judgment in favor of defendant and against plaintiff in the amount of $19,852.60. The trial court denied plaintiffs motion to vacate or modify the judgment, and this appeal followed.

Opinion

Plaintiff contends that the order of the trial court constituted an unwarranted judicial reformation of the parties’ written contract which was based on the court’s erroneous reliance on inapplicable authorities. He asserts that the written contract is clear and unambiguous in expressing the intentions of the parties as to their rights and obligations, and that the court’s award of damages on defendant’s counterclaim is contrary to the intentions expressed in the contract.

The overriding objective in contract litigation is to give effect to the intentions of the parties. (Braeside Realty Trust v. Cimino (1985), 133 Ill. App. 3d 1009, 479 N.E.2d 1031.) Where an agreement is clear and unambiguous, a court should not resort to rules of construction or principles of equity (Harris Trust & Savings Bank v. Hirsch (1983), 112 Ill. App. 3d 895, 445 N.E.2d 1236). On the other hand, where an ambiguity arises from the written agreement, a court is not confined to a strict and literal construction of the language used, if such construction would frustrate the intentions of the parties as gathered from the agreement as a whole. (Shelton v. Andres (1985), 106 Ill. 2d 153, 478 N.E.2d 311.) In such circumstances, the court may look to extrinsic facts surrounding the formation of the contract to determine and give effect to the intentions of the parties at the time they entered into the agreement. (Harris, 112 Ill. App. 3d 895, 445 N.E.2d 1236; Wald v. Chicago Shippers Association (1988), 175 Ill. App. 3d 607, 529 N.E.2d 1138.) The court noted in Pieszchalski v. Oslager (1984), 128 Ill. App. 3d 437, 470 N.E.2d 1083, that the construction of á¡ written contract should be controlled by its spirit and purpose, and a strict construction which renders a result different from that which the parties intended should not be adopted. Whether ambiguity exists in a contract is to be determined by the trial court as a question of law (Turner Construction Co. v. Midwest Curtainwalls, Inc. (1989), 187 Ill. App. 3d 417, 543 N.E.2d 249). Where the court determines that an ambiguity exists, its subsequent construction of the contract will not be disturbed on review, unless it is contrary to the manifest weight of the evidence (Michigan Avenue National Bank v. Evans, Inc. (1988), 176 Ill. App. 3d 1047, 531 N.E.2d 872).

Plaintiff correctly argues that if a contract purports to be a complete expression of the intentions of the parties, courts should not add other terms about which the agreement is silent. (Schuch v. University of Chicago (1980), 87 Ill. App. 3d 856, 410 N.E.2d 258.) However, a written contract need not provide for every feasible contingency which might arise in the future to be enforceable. (Morey v. Hoffman (1957), 12 Ill. 2d 125, 145 N.E.2d 644.) Indeed, as observed in David M. Kaufman Associates, Inc. v. Lake County Trust Co. (1987), 157 Ill. App. 3d 926, 510 N.E.2d 919, most agreements have some degree of indefiniteness and uncertainty. As stated in section 204 of Restatement (Second) of Contracts, “[w]hen the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.” (Restatement (Second) of Contracts, §204, at 96-97 (1981).) The comments to section 204 explain that such an omission may occur when the parties to an agreement entirely fail to foresee the situation which later occurs and gives rise to the dispute. In such cases, they have no expectations with respect to that situation and a search of the agreement for their intentions regarding it would be fruitless. In those circumstances, a court may supply a term which it determines to be reasonable either by logical deduction from the agreed terms or on the basis of what comports with standards of fairness. The supplying of omitted terms which are essential to a determination of the rights and duties of the parties who have entered into an otherwise binding agreement is not technically “interpretation” of the contract, since “interpretation” involves the ascertainment of the meaning of the terms which are contained in the instrument but which are unclear or ambiguous. See Restatement (Second) of Contracts §§200 through 204 (1981).

As noted above, plaintiff, in arguing that the trial court erroneously resorted to rules of construction and principles of equity in this case, relies upon the general principles that a court should not undertake to construe a contract which is clear and unambiguous and which constitutes a complete expression of the parties’ intentions. However, on appeal plaintiff admits that “neither the parties, nor their attorneys, anticipated that the closing of the subject transaction would be delayed for almost seven months after the plaintiffs took possession of the premises. As a result, the contract is silent as to the rights and obligations of the parties under the circumstances which are now before this Court.” (Plaintiff’s brief, at 15.) The silence of the contract with respect to the unanticipated delay in closing, acknowledged by both parties, brings the case within the purview of section 204 of the Restatement.

Thus, we conclude that it was proper for the trial court to supply terms which it determined to be reasonable, either by construing the expressed terms together with the circumstances surrounding and occurring subsequent to the formation of the contract, or on the basis of fundamental principles of fairness, or both. That is precisely what the court did. Further, the supplying of reasonable terms by the court to a contract which is substantially performed but which is devoid of operative terms to resolve the issues before the court constitutes neither an unwarranted judicial reformation of the contract nor a disregard for the general principles of contract law.

In ruling that plaintiff was obligated to pay defendant an amount equivalent to seven months’ interest on the $180,000 purchase money mortgage and to reimburse defendant for the property’s operating expenses paid by defendant during that period, the court relied on Atchison, Topeka & Santa Fe R.R. Co. v. Chicago & Western Indiana R.R. Co. (1896), 162 Ill. 632, and Hanson v. Duffy (1982), 106 Ill. App. 3d 727, 435 N.E.2d 1373. In Hanson, the appellate court ruled that under an executory sales contract the vendor is entitled to interest at the legal rate on the unpaid purchase balance from the vendee in possession, even though the vendor has not delivered the deed, unless the vendee has placed the purchase money beyond his own use, or meanwhile incurred liability for payment of interest to a prospective mortgagee. The Hanson court observed that the rule derives from the equitable proposition recognized by the supreme court in Atchison, in Rankin v. Rankin (1905), 216 Ill. 132, and in Bear v. Fletcher (1911), 252 Ill. 206, that the vendee should not enjoy beneficial use of the premises as well as the purchase money without compensating the vendor for either. These authorities directly support the argument of defendant that to allow the plaintiff to possess and use the property, as well as retain the purchase money without compensating defendant for either, results in an inequitable deprivation to defendant and an unjust enrichment to plaintiff. In this regard, the court in Hanson explained that the interest accruing to the vendor is not an award of damages based on a breach of contract by the vendee in failing to pay money when it was due but, rather, compensation to the vendor for the vendee’s use of the unpaid purchase monies remaining in the vendee’s possession. See also Meeker v. Gray (1986), 142 Ill. App. 3d 717, 492 N.E.2d 508 (expressly following Hanson and Atchison in ruling that under an executory sales contract the purchaser in possession was required to pay interest to the vendor on the balance due of the purchase price of a farm).

Plaintiff alternatively asserts that the order fashioned by the trial court improperly compensated defendant twice for the period of time plaintiff was in possession of the property. He argues that even assuming that the application of equitable principles was proper in this case, the appropriate remedy should have been an award of either interest or a fair per diem rental charge, but not both. He maintains that there was no basis either in the written contract or under the authorities relied on by the trial court to impute an obligation by him to pay what he interchangeably refers to as “per diem use and occupancy payment,” “rental charge” and “per diem rent” in addition to interest. Plaintiff urges that if damages are to be awarded at all, under the equitable principles enunciated in Hanson and Atchison, the only appropriate award is that of interest. He requests that we therefore reverse the portion of the trial court’s order ordering him to pay per diem rent. In our opinion, plaintiff’s argument is both legally and factually flawed.

Initially, plaintiff correctly notes that in Hanson, the court held that the vendee in possession was not obligated to pay rent to the vendor. However, in that case, the issue of rent was discussed in the context of a dispute arising by reason of the prior relationship of the parties, which had been that of lessor-lessee. The basis of the court’s ruling was that once the lessee exercised an option to purchase, the relationship became that of vendor-vendee, that the lease.then terminated, and that the vendor was no longer entitled to collect rent from the vendee under the terms of the terminated lease. Not only is that portion of the Hanson case factually distinguishable from the case at bar but, contrary to plaintiffs assertion, the court’s ruling on that issue does not translate into the proposition that a vendee in possession is obligated to pay the vendor only the interest on the purchase price.

The Hanson decision aside, the fatal flaw in plaintiff’s argument in his characterization of the trial court’s order as requiring him to pay “per diem rent” in addition to interest for the seven months he was in preclosing possession. The order contains no provision for rent, per diem or otherwise.

If the closing had occurred in July, as was intended under the terms of the contract, plaintiff, as owner of the property, would have been (1) entitled to all rent payments from the tenants; (2) obligated for all expenses attendant to the ownership and operation of the premises, i.e., taxes, insurance and utilities; and (3) liable for payment of interest on the purchase money mortgage held by defendant. The order before us requires that (1) defendant recompense plaintiff an amount equivalent to the rents defendant collected from the nonparty tenants; (2) plaintiff pay all expenses attendant to the ownership and operation of the premises; and (3) plaintiff pay an amount equal to seven months’ interest on the purchase money mortgage held by defendant during the seven months he was in possession. We reiterate that there is no provision in-the order before us for the payment by plaintiff of rent to defendant. Rather, the court fashioned an order which, in effect, put the parties in the positions they would have been, i.e., owner and mortgagee, had the seven-month closing delay not occurred.

Finally, we are not persuaded by plaintiff’s argument that the date from which “damages” should have been calculated was September 14, 1979, rather than July 23, 1979, because September 14 was the first “agreed-upon date of closing.” As we noted during our summary of the facts in this case, there is some dispute as to the exact date closing was originally to have occurred (the record strongly indicates the parties intended closing to occur in mid-July) and the reasons it did not occur as originally expected. Irrespective of the parties’ disagreement on this matter and their mutual assertions of fault by the other, we hold that the trial court was correct in finding that the determinative factor is the date on which plaintiff took possession of the property. It is undisputed that plaintiff took possession on July 23, 1979, and continued in beneficial use of the premises until February 22, 1980, at which time the transaction was concluded. Based on the equitable principles we have found to be applicable, we find no error in the court’s calculation of the respective liabilities of the parties from July 23, 1979, the date plaintiff took possession of the property.

For the reasons stated, we affirm the order of the trial court in its entirety.

Affirmed.

JIGANTI, P.J., and LINN, J., concur.

       Qur use of the term “plaintiffs” in the summary of facts refers to both Louis Dato and Robert Marsh. We have been informed that Mr. Marsh died prior to the trial of this case. Consequently, throughout the remainder of the opinion, we use the singular “plaintiff” in reference to the appellant, Mr. Dato.