author: JUSTICE UNVERZAGT

text:
    ST. MARK COPTIC ORTHODOX CHURCH, Plaintiffs and Counterdefendants-Appellees, v. ISHAC TANIOS et al., Defendants and Counterplaintiffs-Appellants (Onsy Menias, Counterdefendants-Appellees; Harris Bank Hinsdale, Defendant).
    Second District
    No. 2—90—0547
    Opinion filed May 3, 1991.

      Marty J. Schwartz and Nicholas Geroulis, both of Wolin & Rosen, Ltd., of Chicago (Michael E. Pildes, of counsel), for appellants.
    Mark J. McAndrew, of Griffin & Fadden, Ltd., of Chicago (Joseph E. Fitzgerald, of counsel), for appellees.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

This is an appeal from the judgment of the circuit court of Du Page County entered on cross-claims to determine which of two factions has the right to control the administrative and financial affairs of the corporate plaintiff, the St. Mark Coptic Orthodox Church of Chicago. This church, which is located in Burr Ridge, Illinois, is the Chicago parish of the Coptic Orthodox Church of Egypt (the Church). St. Mark’s will be referred to herein as the Chicago parish.

We will refer to the first of the two factions seeking control as the Church faction. That faction is comprised of the individual plaintiff and counterdefendant, Father Basilios Sedrak, and the six other counterdefendants, Dr. Onsy Menias, Dr. Wagih Nessim, Fayek Aboutar, Dr. Atef Moawad, Dr. Ibrahim Ibrahim and Dr. Adley Khalil. The second of the two factions will be referred to as the Tanios faction. It is comprised of defendants Ishac Tanios, Dr. Yousef Atallah, Dr. Saad Saad, Dr. Aziz Solimán and Dr. Adel Michael.

The trial court’s judgment was that the Church faction has the right to control the administrative and financial affairs of the Chicago parish. The Tanios faction appeals, contending the court erred (1) in refusing to rule that the August 1988 bylaws governed the Chicago parish and (2) in finding that the actions of the Church faction were authorized under the Religious Corporation Act (Ill. Rev. Stat. 1989, ch. 32, par. 164 et seq.).

The Church, said to have been founded by St. Mark in 54 A.D., is 83/4-million members strong, eight million of whom live in Egypt. It is divided into geographical regions called dioceses which are further subdivided into parishes. The Church is hierarchical, that is, authority is vested in a series of ascending ecclesiastical judicatories. The highest priestly, legislative and judicial authority in the Church is the Holy Synod. The Holy Synod is governed by a written constitution and bylaws approved by it in 1985. The president of the Holy Synod is the pope, the Patriarch of Alexandria (currently Pope Shenouda III), and its members are the bishops. Each bishop serves a diocese and each parish within a diocese is served by a priest. Clerical deacons assist the priests. The Church in North America has grown to 52 parishes since the mid-1960’s, and it comprises a single diocese. The pope presently acts as the bishop for the North American diocese. Each American parish has a governing body called the Board of Deacons. The parish priest is president of the board; he presides over board meetings, is authorized to establish bank accounts and oversees parish life in general. The composition of the board and the manner in which it operates are specified in a constitution and bylaws.

The Chicago parish first was established in 1969 in Roselle, Illinois. The Church missionary responsible for the North American parish development, Father Marcos Marcos, appointed a board of deacons for the Chicago parish and provided it with the same constitution and set of bylaws (the 1969 bylaws) which he gave to all the new parishes in the United States and Canada. Those bylaws, formulated by him and approved by the pope with some changes, were the bylaws the pope stated would govern the churches in North America. Testimony at trial conflicted as to whether these bylaws were adopted by the board of deacons of the Chicago parish.

The Chicago parish’s first permanent priest, Father Marcos Bishay, was assigned in 1972. In 1978, in order to accommodate the larger parishes in North America, minor changes — such as the number of board members or the length of their term — were made to the 1969 bylaws. The pope introduced this modified version (the 1978 bylaws) for those parishes which would like to, or need to, adopt it.

After Father Bishay died in 1979, Father Anba Bishoy was assigned to the Chicago parish. Father Bishoy served from 1980 until he was assigned to another parish in August 1988. Near the beginning of Father Bishoy’s tenure, the Chicago parish acquired land in Burr Ridge, Illinois, and constructed a church there in 1981. In connection with the financing of the construction at the then First National Bank of Hinsdale (now Harris Bank Hinsdale), an “Affidavit of Religious Corporation” signed by Ishac Tanios as secretary was filed with the Du Page County recorder of deeds on August 13, 1982.

In 1987, a question arose as to whether the 1969 or 1978 bylaws would be followed in an upcoming election of board members. Under the 1969 bylaws, all members were to be elected; under the 1978 bylaws, half were to be elected and half appointed by the priest. After reviewing both sets of bylaws it was decided all members would be elected; neither the 1969 nor the modified 1978 bylaws were specifically adopted by the board at that time.

In July 1988 a group of three visiting bishops were accosted in the Burr Ridge church by three parishioners who were loyal to Father Bishoy and were engaged in an altercation. The three parishioners subsequently were excommunicated by the pope, and, at the direction' of the pope, Father Bishoy was removed on August 17 to another parish. A new priest was to be appointed in September. Father Bishoy’s removal angered some members of the parish and apparently was the catalyst for subsequent events which led to the instant cause.

Between August 17 and September 1, 1988, the board caused to be drafted a new constitution and bylaws (the 1988 bylaws). These new bylaws were to be for a subsequently formed not-for-profit corporation. Under these bylaws, the congregation would “select” the parish priest, who would then be ordained or delegated by the pope, and “guide and oversee the spiritual program of the parish.” This language contrasts with the prior and subsequent versions of the bylaws which provide that the priest is “ordained or delegated” by the ecclesiastical authorities (1969 bylaws) or pope (1978 and September 1989 bylaws) or “appointed” by the pope (November 1989 bylaws). The Church faction’s initial complaint appended the September 1989 bylaws as “[a] true and correct copy of the Constitution and By-Laws of the Church”; its subsequent motion to dismiss the Tanios faction’s counterclaim appended the November 1989 version of the bylaws as the “true and correct copy,” however. The November 1989 bylaws include a provision that if the priest is unaccepted by the majority of the spiritual members of his parish, the bishop, along with the clerical council of the diocese, makes “the suitable decision concerning his situation.” The clerical council, which acts as the church court, is headed by the bishop of the diocese with priests appointed by the bishop as members of the council of each diocese.

The priest’s role specified in the 1988 bylaws (“guide and oversee the spiritual program of the parish”) also contrasts with that described in 1969, 1978 and 1989, to wit, [he] “shall guide and oversee the total parish program, and is ultimately responsible for the whole life and activities of his parish.” The 1978 bylaws also included the phrase “[h]e is the only one to represent his Church before all local authorities.”

Further, rather than being an “indivisible and inseparable part of the Coptic Orthodox Church of Egypt” as stated in the 1969, 1978 and, later, the 1989 uniform bylaws, the preamble of the newly drafted 1988 bylaws stated the corporation would “follow the spiritual doctrine and rites of the Coptic Orthodox Church of Egypt.” The 1988 bylaws also deleted the vow of office which, under the 1969, 1978 and 1989 uniform bylaws, the members of the board of deacons were to take. Inter alia, the members vowed to uphold the doctrines, teachings, holy canons and principles of the Coptic Orthodox Church, as well as the constitutional charter, discipline and regulations of the Coptic Orthodox diocese of North America.

The 1988 bylaws did not include a bylaws amendment provision unlike the bylaws of 1969 (submit proposed amendment to the General Board of the church whose approval in that regard shall be final), 1978 (amendment should be authorized by the pope), September 1989 (amendments should be authorized in writing by the pope) and November 1989 (Synodical Committee for Coptic Orthodox Churches in Immigration headed by the pope can amend at any time and will decide whether to accept amendments proposed by local churches of the General Board of the diocese). Instead, the 1988 bylaws provided that “these by-laws *** shall be registered with the Corporation Department of the State of Illinois.”

Under the 1969 bylaws, the members of the board of deacons are elected and vacancies are filled by the successive candidate in the previous election. Under the 1978 bylaws, half of the members are elected by the voting members of the church and the other half are appointed by the president (the parish priest). Vacancies are filled by the candidate with the next highest vote in the previous election. Under the 1988 bylaws, the members are elected. Up to two vacancies are filled by appointment by the board, and the board may remove any board member “if the need arises” by an affirmative vote of two-thirds of the members. Under the September 1989 bylaws, four members are elected and subsequently ratified by the pope; three are appointed by the president with prior ratification from the pope. A vacancy in an elected member’s position is filled by the next-highest vote-getter in the previous election; an appointed vacancy is filled by appointment by the president. Under the November 1989 bylaws, the members of the board are selected by the bishop from among those who obtain the consent of the majority of the spiritual members of the church after acclamations and objections thereto are presented by the congregation. These 1989 bylaws also provided that “trustees, if any, are to be appointed by the bishop from among the members of the board.” The bishop has the right to remove and reselect an individual board member or the entire board for deviation from the faith or breach of fiduciary duty.

A certificate of incorporation of the Chicago parish as a not-for-profit corporation was issued by the Illinois Secretary of State on September 28, 1988. The religious corporation formed in 1982 in connection with the building of the church was neither dissolved nor merged into this not-for-profit corporation. The not-for-profit corporation never elected or established a board of directors after the certificate of incorporation was issued, nor did it formally adopt the 1988 bylaws which were approved by the board of deacons in August 1988. The only evidence of registration of the 1988 bylaws was in December 1988 when the Chicago parish forwarded copies of its articles of incorporation, the bylaws and its Internal Revenue Service exemption documentation to the Illinois Attorney General’s office in compliance with the registration provisions of the Charitable Trust Act (Ill. Rev. Stat. 1989, ch. 14, par. 51 et seq.) and “An Act to regulate Solicitation and Collection of Funds ***” (now known as the Solicitation for Charity Act) (Ill. Rev. Stat. 1989, ch. 23, par. 5101).

The new priest who arrived at the Chicago parish in September 1988 left two months later after an incident with one of the previously excommunicated parishioners. Consequently, as of December 1988, the Chicago parish was without a priest. At a meeting of the entire congregation in January 1989, it was decided that a letter should be drafted and sent to the pope which acknowledged the congregation’s obedience to the pope’s authority. It was also decided in January that a contingent from the board of deacons would meet with the pope in Cairo. The purpose of the meeting with the pope was to find out how to obtain forgiveness for the three excommunicated parishioners, “to see what [the pope] has against us as far as either bylaws or the ownership of the church,” and to request a permanent priest for the Chicago parish.

At a meeting of the board of deacons on February 7, 1989, attended by the pope’s representative, Bishop Butros, there was a continuation of previous discussions which board treasurer Dr. Adel Michael had in Los Angeles and New York with Bishop Butros regarding what the pope’s concerns were about the 1988 bylaws and whether the set of bylaws was acceptable or not. When Bishop Butros asked whether the board had bylaws which the Chicago parish follows, he was told that they “had the August 1978 by-laws” which were sent to them to be reviewed and changed as necessary in accordance with local laws. The bishop was told that the changes which appeared in the 1988 bylaws were reviewed by three attorneys with expertise in religious law and that the changes were necessary for the protection of the church and the congregation.

A copy of the 1988 bylaws was signed by all members of the board except Aboutar, who was absent, and given to the bishop to take to the pope. The board decided to add two resolutions to the bylaws: (1) “[t]he Church will not be sold without the Permission of His Holiness Pope Shenouda III, the Pope of Alexandria or his representative”; and (2) “[i]n the case of dissolution of the Church His Holiness Pope Shenouda III or his representative of the American Archdiocese will decide to what Churches of Coptic Charities the proceeds will go in North America.” A letter setting out these resolutions was sent to the pope following the February 7 meeting.

In March, Nessim, Moawad, and Tanios met with the pope in Cairo. The pope requested inclusion of the “inseparable and indivisible part of the Mother Church” language in the 1988 bylaws but the board members could not agree to this without talking with the lawyers about the change. Bishop Serapian testified at trial that the “inseparable and indivisible” language is a basic expression of the oneness and unity of the church and that the 1988 bylaws were in conflict and not in harmony with the uniform bylaws due to the exclusion of this language.

Following their meeting, the pope set out an agenda for reconciliation with the three excommunicated members and indicated to the three that he would appoint a priest to officiate the mass on Saturdays at the Chicago parish. He also advised the three that a new uniform set of bylaws was being prepared for distribution the following summer.

By the time the three board members returned to Chicago, Father Sedrak had been delegated by the pope to serve the parish’s religious needs. While maintaining his position as permanent priest for St. Mary’s in St. Louis, Father Sedrak traveled to the' Chicago parish for one day each week to officiate at the mass. Thereafter, a conflict arose between two members of the board of deacons of the Chicago parish, Nessim and Saad, and by June 1989, only the five members of the board comprising the Tanios faction would attend board meetings.

On June 1, the Tanios faction, acting as a quorum of the board, voted to suspend Nessim for one year. It also passed a resolution authorizing the collection of money for marriages, baptisms and funerals from nonvoting members of the Chicago parish, that is, members who had not contributed a minimum of $500 per year to cover the church’s operating expenses. A letter to church members in June advising them of the fees for sacraments was prefaced in part with the language “[i]n accordance with our by-laws, and as presented and approved by His Holiness Pope Shenouda III in several by-laws.” The collection of money for the performance of sacraments was disapproved by Father Sedrak from the pulpit during church service. Bishop Serapian testified at trial that requiring the payment of money for receiving one of the seven sacraments — as opposed to receiving a donation — would absolutely not be permissible under any set of circumstances.

During the summer of 1989, the authority of Father Sedrak to preside over the church affairs came into contention on the ground he was a temporary rather than a permanent priest and he had not been acclaimed by the Chicago parish. By letter dated September 1, 1989, the pope delegated Father Sedrak to pastor the Chicago parish and preside over the board of deacons. By another letter dated September 12, the pope authorized Father Sedrak to appoint two additional members to the board of deacons. Counterdefendants Dr. Ibrahim" Ibrahim and Dr. Adley Khalil were subsequently appointed as these two additional members.

Following a service on September 9, Father Sedrak was explaining to the congregation the new uniform set of bylaws for all churches in North America and Canada (the September 1989 uniform bylaws) which were sent from the pope. He was interrupted during his speech with a statement that the Chicago parish already has bylaws. A noisy disturbance ensued, and Father Sedrak concluded his remarks.

Following this disturbance, the six members of the Church faction along with Father Sedrak met on September 22 and voted to remove defendants Tanios and Michael from their positions as secretary and treasurer of the board of deacons and elected in their places Menias and Khalil. That same date, Menias, as secretary, requested Michael by letter to deliver all documents regarding the treasury to Khalil and informed him that no more charges would be honored at the bank and that the account number at the bank had been changed.

The next day, September 23, Father Sedrak was unable to enter the church because Tanios had caused the locks to be changed. With police assistance, Father Sedrak gained entrance to the building. Harris Bank Hinsdale froze the Chicago parish bank account and would not honor any direction with regard to the land trust pending court order regarding who shall have access to the accounts.

As a result of the foregoing activity, Father Sedrak filed a complaint on September 27, 1989, seeking to restrain temporarily and permanently the Tanios faction from disrupting an impending papal visit scheduled for October by engaging in any conduct to deny access to the church to any of its members or its ministry and to turn over to him all the keys to the church building and all the books and records of the church. Sedrak’s complaint also sought to have the Tanios faction refrain from representing themselves as representatives of the church and to account for all sums in the church treasury over which they exercised control. As noted above, the September 1989 version of the pope’s uniform bylaws was appended to the complaint as being “a true and correct copy of the Constitution and By-Laws of the Church.” It was alleged in the complaint that in July 1988 (prior to the adoption of the August 1988 bylaws), the then existent 1978 bylaws stated that any amendment thereto “should be authorized” by the pope.

In response to the filing of the complaint by Sedrak, the Tanios faction filed a petition for temporary restraining order and permanent injunction and, subsequently, an amended counterclaim for declaratory judgment. The counterclaim sought, inter alia, a declaration that the August 1988 bylaws govern the Chicago parish; that the Tanios faction constitutes the majority of the board of deacons and, as such, has control over the church’s bank accounts; and that the action of the Church faction on September 22 (appointing Menias and Khalil as secretary and treasurer, respectively, and removing Tanios and Michael from those positions) was a nullity.

On December 7, 1989, the Church faction moved to dismiss the amended counterclaim for declaratory judgment under section 2 — 619 of the Civil Practice Law (Ill. Rev. Stat. 1989, ch. 110, par. 2—619). As noted above, appended thereto was a copy of the uniform bylaws promulgated by the pope and the Holy Synod’s Committee on Immigration on November 28, 1989 (the November 1989 bylaws). On December 18, the court granted the motion to dismiss the amended counterclaim on the ground it lacked subject-matter jurisdiction to adjudicate the ecclesiastical issue presented, and the church was permitted to take a voluntary nonsuit of its petition.

On December 20, Harris Bank Hinsdale was advised by letter from counsel for the Tanios faction to continue to hold church bank accounts in their present frozen posture and not to honor checks or withdrawal requests without court authority. On December 22, Father Sedrak sent a letter to the members of the Tanios faction purporting to “cancel” their membership on the board of deacons. On December 30, Father Sedrak issued a statement entitled, “To Whom It May Concern” identifying the six counterdefendants here as “the only official members of the board of deacons.”

On January 9, 1990, the church filed a motion seeking leave to vacate its voluntary nonsuit and leave to file an amended complaint adding the Harris Bank Hinsdale as a party defendant. The amended complaint sought an accounting from the members of the Tanios faction, an order compelling them to turn over the books and records of the Chicago parish and an order requiring Harris Bank Hinsdale to honor the corporate resolution and letter of direction of Father Sedrak. The November 1989 bylaws were appended to this amended complaint as the church’s true and correct bylaws. On January 16, the Tanios faction filed a motion to reconsider that portion of the order of December 18 which dismissed its amended counterclaim.

On February 1, the court vacated the Church faction’s voluntary nonsuit and, on February 5, also granted the Tanios faction’s motion to reconsider dismissal of its amended counterclaim. Both matters were set for trial. Two days after reinstatement of the cause, the members of the Tanios faction were “deposed” directly by Pope Shenouda III as clerical deacons of the Coptic Orthodox Church.

On April 30, 1990, following a bench trial, the court entered an order prepared by counsel for the Church faction. The court’s order includes these findings: (1) the Coptic Orthodox Church is hierarchical in form; (2) the Chicago parish is a subordinate member parish of the Coptic Orthodox Church having been incorporated in Illinois as a religious corporation in patronage pursuant to the Religious Corporation Act; (3) the parish priest designated by the Mother Church (Mother Church) is president of the church board of deacons and the presiding officer of the Chicago parish; (4) that the Church, through the parish priest, and in conformity with the Religious Corporation Act, appointed the six members of the Church faction as the board of deacons and removed the five members of the Tanios faction as members of the board; (5) the August 1988 bylaws conflict with the teachings of the Coptic Orthodox Church and were never approved by the Mother Church; (6) the not-for-profit corporation formed in September 1988 never adopted the August 1988 bylaws, nor did it ever hold an election to establish a board; (7) the Tanios faction has physical possession of the books and records of the Church which it has improperly refused to turn over to the Church; (8) the members of the Tanios faction have been improperly representing themselves as deacons of the church and have, without authority, collected donations from parishioners in the name of the church; and (9) Harris Bank Hinsdale currently has on deposit funds belonging to the Church and is also legal owner of the Church property as trustee.

In its order following the above findings, the court denied the Tanios faction’s petition to declare the August 1988 bylaws to be binding on the Chicago parish and to declare the five of them to be members of the board of deacons. The court’s order recognized the Church faction members to be the sole and exclusive members of the board of deacons and Father Sedrak as president of the board of deacons. All properties in the name of St. Mark’s Coptic Orthodox Church of Chicago, including funds on deposit at the Harris Bank Hinsdale and all property in the land trust, were declared to be the property of the Chicago parish, and the Harris Bank Hinsdale was ordered to honor the corporate resolution prepared by Father Sedrak and the secretary and/or treasurer of the board of deacons with respect to all funds on deposit at the bank as well as the power of direction of the land trust.

The court also ordered the Tanios faction to turn over to Father Sedrak within seven days all the corporate books and other records of the Church, and its members were permanently enjoined from representing themselves as members of the board of deacons of the Chicago parish and of soliciting funds and/or donations on behalf of the Church. The Tanios faction was also ordered to submit to the Chicago parish an accounting of all funds which the Tanios faction had collected on behalf of or in the name of the church, including records from all depositories where the funds had been kept showing all amounts collected and all disbursements made. Thereafter, the Chicago parish was to be allowed leave to file a petition for a reimbursement to the Church for any funds improperly expended by the Tanios faction.

The court’s order retained jurisdiction of the accounting matters and included a finding that there was no just reason for delay or enforcement of the appeal. At the time the court’s order was entered, the Tanios faction noted that the order did not include a finding as to which bylaws govern the Chicago parish. The Church faction argued that such a ruling was unnecessary because the Religious Corporation Act vests authority in the Mother Church, and the court agreed with that position.

In this appeal, the Tanios faction contends the court erred in ruling in favor of the Church faction where (a) the Church faction’s actions were in violation of the August 1988 bylaws and (b) were not authorized by the Religious Corporation Act. It argues first that the court’s finding that the 1988 bylaws do not govern the Chicago parish is against the manifest weight of the evidence.

The Church faction responds that the trial court lacked subject-matter jurisdiction under mandatory deference principles to declare the August 1988 bylaws to be binding on the Chicago parish or to declare the Tanios faction to be members of the board of deacons. The Tanios faction replies the court had subject-matter jurisdiction inasmuch as the dispute could be resolved utilizing the neutral-principles approach.

We find the trial court properly declined to declare that the August 1988 bylaws govern the Chicago parish and properly applied strict deference principles in ruling that the Church faction had control of the administrative and financial affairs of the Chicago parish.

The court, as a governmental agency of the State, is charged generally with the task of resolving disputes. Its authority to do so, however, in matters of internal church disputes, including those which concern the control or ownership of property, is narrowly circumscribed by the first amendment’s guarantee that the right to the free exercise of religion will not be be abridged. (U.S. Const., amend. I; Kedroff v. St. Nicholas Cathedral of the Russian Orthodox Church in North America (1952), 344 U.S. 94, 113-16, 97 L. Ed. 120, 135-37, 73 S. Ct. 143, 153-55; see Hilliard, Treading the Narrow Path: Internal Church Disputes in Illinois Courts, 78 Ill. B.J. 92 (1990).) By reason of this limitation, civil courts have no authority to resolve church disputes which turn on matters of church doctrine, practice, polity or administration (Serbian Eastern Orthodox Diocese for the United States of America & Canada v. Milivojevich (1976), 426 U.S. 696, 710, 49 L. Ed. 2d 151, 163, 96 S. Ct. 2372, 2381; Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church (1969), 393 U.S. 440, 449, 21 L. Ed. 2d 658, 665, 89 S. Ct. 601, 606). A corollary to this proscription is that where hierarchical religious organizations have established their own rules and regulations for internal discipline and government and have created tribunals for adjudicating disputes concerning the government and direction of subordinate bodies, civil courts are required under the first and fourteenth amendments to defer to decisions of such tribunals. Milivojevich, 426 U.S. at 724-25, 49 L. Ed. 2d at 171, 96 S. Ct. at 2387-88; Kedroff, 344 U.S. 94, 97 L. Ed. 120, 73 S. Ct. 143.

Where doctrinal controversy is not involved in a church dispute, however, mandatory deference to religious authority is not required by the first amendment, and the court may choose from a variety of approaches in resolving the dispute. (Jones v. Wolf (1979), 443 U.S. 595, 602, 61 L. Ed. 2d 775, 784, 99 S. Ct. 3020, 3025.) One such approach, the “neutral principles of law” approach, the approach identified in the Hull case (Hull, 393 U.S. at 449, 21 L. Ed. 2d at 665, 89 S. Ct. at 606) and unequivocally endorsed in Jones (443 U.S. at 602-03, 61 L. Ed. 2d at 784-85, 99 S. Ct. at 3025), has been recognized and, where appropriate, applied in Illinois. (See, e.g., Aglikin v. Kovacheff (1987), 163 Ill. App. 3d 426, 431; York v. First Presbyterian Church (1984), 130 Ill. App. 3d 611, 617; Grace Evangelical Lutheran Church v. Lutheran Church-Missouri Synod (1983), 118 Ill. App. 3d 151, 156.) Under the neutral-principles approach, the court objectively examines pertinent church charters, constitutions and bylaws, deeds, State statutes, and other evidence and resolves the matter the same as it would a secular dispute. Jones, 443 U.S. at 603, 61 L. Ed. 2d at 784-85, 99 S. Ct. at 3025; York, 130 Ill. App. 3d at 618.

A decided advantage of the neutral-principles approach is that it is flexible enough to be applied to all forms of religious organization and polity, “polity” being the specific form of church government. Three types of polity which have been recognized are congregational, presbyterial and episcopal.

“In the congregational form, each local congregation is self-governing. The presbyterial polities are representative, authority being exercised by laymen and ministers organized in an ascending succession of judicatories — presbytery over the session of the local church, synod over presbytery, and general assembly over all. In the episcopal form power reposes in clerical superiors, such as bishops. Roughly, presbyterial and episcopal polities maybe considered hierarchical, as opposed to congregational polities, in which the autonomy of the local congregation is the central principle.” (Note, Judicial Intervention in Disputes over the Use of Church Property, 75 Harv. L. Rev. 1142, 1143-44 (1962).)

Another advantage of the neutral-principles approach is that it does not presume that a local church has relinquished all power to a hierarchical body and leaves room for legal remedies which may, or should be, available to the local church. See Aglikin, 163 Ill. App. 3d at 431-42.

Application of the neutral-principles approach does not always allow civil court resolution of the dispute, however. It was recognized in Jones v. Wolf that if examination and interpretation of the documents pertinent to the dispute necessarily would entail deciding an issue of religious doctrine or church law, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. Jones, 443 U.S. at 604, 61 L. Ed. 2d at 785, 99 S. Ct. at 3026.

The Tanios faction argues here the court could have applied the neutral-principles approach in order to determine that the 1988 bylaws govern the Chicago parish. We disagree. Although the issue at bar incidentally involves the control of the church bank account and the power of direction over the land trust, the ownership of the church property is not in dispute (see, e.g., Kelley v. Riverside Boulevard Independent Church of God (1976), 44 Ill. App. 3d 673), but, rather, its control. The parties agreed during oral argument that the real questions presented here are: Who governs? And by what rules? Stated otherwise, which of the factions should be recognized as the true members of the board of deacons?

Although the court clearly heard sufficient evidence from which it could conclude the August 1988 bylaws were adopted by the board of deacons of the Chicago parish, the question of whether those bylaws “governed” the Chicago parish to the exclusion of the pope’s authority to promulgate and approve bylaws and maintain the peace and welfare of the parish was an open one. As drafted and adopted, the 1988 bylaws were not “approved” by the pope due to the missing “indivisible and inseparable” language, and the record does not show the board ever reconsulted with counsel about adding this language or agreed to add it itself. In addition, uniform bylaws for the Coptic Orthodox Churches in North America were promulgated in September and November 1989 and ostensibly were meant to apply to all the parishes in the North American diocese. Bishop Serapian testified the September bylaws were suspended due to the appointment by the pope of the Synodical Committee for Coptic Orthodox Churches in Immigration to assist him in the drafting of the November 1989 bylaws.

In light of the evidence presented at trial, the question of whether the Chicago parish’s 1988 bylaws needed to be approved and the question of which bylaws “governed” the Chicago parish at the time the various appointments and removals of board members occurred cannot be definitively answered using the neutral-principles approach. As counsel for the Tanios faction noted during the hearing on the motion to dismiss, bylaws were being written even as the instant civil case was proceeding.

In urging that the neutral-principles approach can be applied to the instant cause, the Tanios faction asserts that the evidence relating to the adoption and validity of the August 1988 bylaws was all of a secular nature, i.e., minutes of the board of deacon meetings, the articles of incorporation, correspondence with the attorney general, etc. This argument completely ignores, however, the hierarchical nature of the Coptic Orthodox Church. For example, assuming arguendo the 1988 bylaws were meant to amend those which were promulgated in 1969 for the governance of the North American diocese, it was stated in the 1969 bylaws that proposals for amendment approved in the Annual General Assembly of the local parish “should be submitted in writing to the General Board of the Church whose approval shall be final in that regard.” According to the 1969 bylaws, each local parish was a member of the General Board of the Church in North America and was to be represented at Board meetings by the parish president and secretary. Tanios testified he did not know whether the General Board of the Church in North America ever existed, or met, and, during his tenure as parish secretary, he never attended or was asked to attend a meeting of that Board.

The 1978 version of the bylaws also contained an amendment-approval provision: “Any amendment to this constitution should be authorized by His Holiness the Pope of Alexandria and the Patriarch of the See of St. Mark.” At trial, Bishop Serapian testified that a local parish which uses bylaws not approved by the pope or Holy Synod is not considered part of the Mother Church and that no parish is allowed to use bylaws before presenting them to the pope and getting his approval. Notwithstanding that, he also testified that many of the North American parishes had their own sets of bylaws which the pope and Holy Synod had never seen or approved. He further testified that if a local parish did not adopt the uniform bylaws promulgated by the church, there would be an investigation as to why such bylaws had not been adopted.

Even assuming the 1988 bylaws were not void ab initio for lack of approval by the Mother Church, do they “govern” the Chicago parish notwithstanding the subsequent promulgation in September and November 1989 of uniform bylaws for the Coptic Orthodox Church in North America and do they supersede the authority of the pope to appoint or remove members of the board of deacons? Bishop Serapian testified the pope has the authority to promulgate and approve bylaws for North America and that the pope is not obliged to present them to the Holy Synod. Further, the pope, as the bishop of the North American diocese, can take immediate action against parishioners or deacons who go against the dogma and order of the church in order to keep the welfare and peace of the parish, even before a trial by the clerical council of the parish is held. Appeal, if any, after such a trial is to the Holy Synod. Bishop Serapian testified the deposed members of the Tanios faction would be tried after the instant court proceedings concluded.

In our opinion, resolution of the questions of who the true members of the board of deacons of the Chicago parish are and which bylaws govern it would require this court to delve, impermissibly, into matters of church doctrine and polity. “[W]here resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them.” (Milivojevich, 426 U.S. at 709, 49 L. Ed. 2d at 162, 96 S. Ct. at 2380.) In Milivojevich, one of the issues presented was the defrockment of Bishop Dionisije. Resolution of the dispute over the defrockment was determinative of the control of church property. The Illinois Supreme Court determined the defrockment must be set aside because it was “arbitrary,” that is, the church’s defrockment of the bishop was not done according to the court’s interpretation of the church’s constitution and penal code.

The United States Supreme Court reversed, finding that the Illinois Supreme Court had impermissibly rejected the church’s defrockment decision and substituted its own inquiry into church polity and resolutions based thereon. “ ‘[CJivil courts do not inquire whether the relevant [hierarchical] church governing body has power under religious law [to decide such disputes].’ ” (Milivojevich, 426 U.S. at 708, 49 L. Ed. 2d at 162, 96 S. Ct. at 2380, quoting Maryland & Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, Inc. (1970), 396 U.S. 367, 369, 24 L. Ed. 2d 582, 584, 90 S. Ct. 499, 500.) Similarly here, the pope’s power to appoint and depose the various parties here as deacons not only should not be inquired into consistent with Milivojevich, but, further, such an inquiry would lack any guidelines whatever — no matter how impermissible the inquiry — inasmuch as the question of which bylaws “govern” is constitutionally unascertainable in this civil forum.

We further believe that the principle of mandatory deference has application here despite the Tanios faction’s argument that it cannot be utilized because the Holy Synod has not ruled on the issues being litigated in the instant cause. All parties concede the Holy Synod is the highest judicatory of the Coptic Orthodox Church. As noted previously, however, the authority of the Coptic Orthodox Church is vested in a series of ascending ecclesiastical judicatories: synod, pope, bishop, priest, deacon. The rule of mandatory deference in church property disputes set forth in Watson v. Jones (1872), 80 U.S. 679, 727, 20 L. Ed. 666, 676, states:

“[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.” (Emphasis added.)

It is clear from the events subsequent to the Chicago parish’s adoption of the 1988 bylaws that the pope did not approve of those bylaws as drafted and did not approve of the actions engaged in by the Tanios faction. Accordingly, the pope acted to promulgate uniform bylaws, to reduce the Tanios faction’s influence on the board by authorizing the appointment of additional board members, and, finally, to depose the Tanios faction entirely from the board of deacons. With the cause presented to the court in that posture, the court, consistent with first and fourteenth amendment principles, properly deferred to the pope’s decisions which Bishop Serapian testified were valid pending trial pursuant to church practice. As such, we do not believe it was necessary for the matter to have been decided by the Holy Synod before mandatory deference principles became applicable. Certainly nothing in this court’s decision would prevent the Tanios faction from pursuing the matter further within the church hierarchy.

In sum, we conclude the court did not err in refusing to declare that the 1988 bylaws govern the Chicago parish.

The Tanios faction’s second argument is that the court’s finding that the Church’s actions were authorized under the Religious Corporation Act was erroneous.

The court found that the Chicago parish was incorporated in Illinois as a “religious corporation in patronage” pursuant to “Section [sic — par.] 176, et seq.” of the Religious Corporation Act. (Ill. Rev. Stat. 1989, ch. 32, par. 176 et seq.) Accordingly, it found that the Church, “through the parish priest, and in conformity with the Religious Corporation Act,” selected counterdefendants Nessim, Aboutar, Moawad, Menias, Ibrahim and Khalil to be members of the board of deacons and, further, that the Church “through the parish priest, and in conformity with the Religious Corporation Act” removed members of the Tanios faction from the board. (Emphasis in original.)

In Illinois, any church, congregation or society “formed for the purposes of religious worship” may incorporate (thus becoming a religious corporation). (Ill. Rev. Stat. 1989, ch. 32, pars. 164.) Any congregation, church or society “which is under the patronage, control, direction or supervision of any ecclesiastical body, diocesan, or like ecclesiastical officer, agreeably to the laws thereof” may also become incorporated (thus becoming a religious corporation in patronage). (Ill. Rev. Stat. 1989, ch. 32, pars. 176.) Not-for-profit corporations for religious purposes may also be organized under the provisions of the General Not For Profit Corporation Act of 1986 (thus becoming a not-for-profit corporation) (Ill. Rev. Stat. 1989, ch. 32, par. 101.01 et seq.).

The Chicago parish was incorporated as a religious corporation in 1982 when it filed its affidavit of organization with the Du Page County recorder of deeds pursuant to section 36 of “An Act concerning corporations” (the Religious Corporation Act) (Ill. Rev. Stat. 1981, ch. 32, par. 165). We agree with the Tanios faction that the inclusion of the sentence “Permission of the Patriarch’s representative was obtained” does not in itself convert the Chicago parish’s incorporation as a religious corporation under section 35 to that of a religious corporation in patronage as provided for in section 46a (Ill. Rev. Stat. 1989, ch. 32, pars. 164, 176). Section 51 of the Religious Corporation Act provides that an affidavit of incorporation filed under either section 36 (relating to religious corporations) or 46b (relating to religious corporations in patronage) may include a notation that the permission required before the subordinate body of the organization could incorporate was obtained. Ill. Rev. Stat. 1989, ch. 32, pars. 188, 165,177.

Thus, the court’s finding that the appointment and removal of the various board members by the Church, through the priest, was “in conformity” with its status as a religious corporation in patronage was error. We do not believe it was reversible error, however, first, because the court’s finding was stated in the alternative (“and in conformity with the Religious Corporation Act”) and, second, under the general principle that a court’s order may be affirmed on any basis justified by the record (Zonta v. Village of Bensenville (1988), 167 Ill. App. 3d 354). The reasons given by the trial court for an order, or the findings upon which it is based, are not material if the order is correct. (Cencula v. Keller (1989), 180 Ill. App. 3d 645; Fischer v. Mann (1987), 161 Ill. App. 3d 424.) Based on the mandatory deference principles discussed above, we believe the court’s order was correct notwithstanding its erroneous finding as to the corporate status of the Chicago parish.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

DUNN and NICKELS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    DAVID W. BENO, Plaintiff-Appellee and Cross-Appellant, v. RAYMOND L. McNEW, Defendant-Appellant and Cross-Appellee (La Salle National Bank et al., Defendants).
    Second District
    Nos. 2—90—1189, 2—90—1264 cons.
    Opinion filed May 3, 1991.

      Richard W. Husted, of Dundee, for appellant.
    Rita Farrell and John F. Early, both of Early, Collison, Tousey, Regan & Farrell, and Robert J. Morrow, of Early, Collison, Tousey, Regan, Wlodek & Morrow, both of Elgin, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Raymond L. McNew, appeals from an order of the circuit court of Kane County granting him attorney fees and costs pursuant to section 2—611 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1987, ch. 110, par. 2—611 (preempted by Supreme Court Rule 137 (134 Ill. 2d R. 137, eff. Aug. 1, 1989))). Defendant contends that the amount awarded is insufficient as it does not accurately reflect the attorney fees incurred in defending the suit, nor does it compensate defendant for the time he personally spent defending the suit. Plaintiff, David W. Beno, filed a cross-appeal, contending that the trial court erred in granting McNew any amount of attorney fees. The two appeals have been consolidated. We reverse and remand.

The record reveals the following facts. On July 30, 1985, plaintiff, an investigator with the United States Environmental Protection Agency, was inspecting property allegedly being used as an “unauthorized landfill.” The property was in a trust at La Salle National Bank, trust No. 14790 — 09, and defendant Jeffrey S. Reimer was beneficiary of the trust. While conducting his inspection, plaintiff fell on various materials deposited on the property and was injured. Plaintiff filed suit on June 1, 1987, seeking to recover damages for his personal injuries. J.S. Reimer, Inc., was named as a defendant along with four other defendants who owned property adjacent to the “landfill,” including defendant McNew. Specifically, count IV of the complaint named McNew as a defendant, alleging that McNew owned a portion of the property on which the “landfill” was located. Count IV further alleged that McNew breached a duty to exercise care in the operation, control, and maintenance of the property.

On July 2, 1987, McNew filed a motion to strike and dismiss count IV of plaintiff’s complaint for failure to state a cause of action. McNew’s motion alleged that the location of the property on which plaintiff sustained his injury is not specified in the complaint and that, as a matter of law, McNew had no obligation or duty to maintain the “landfill” since he was only obligated to care for that property which he owned or operated. McNew did not schedule his motion for a hearing.

On December 2, 1987, plaintiff and his counsel, together with all of the defendants and their attorneys, except McNew and his counsel, met at the “landfill” site to ascertain where plaintiff’s injury took place. Plaintiff subsequently filed a response to admit on December 30, 1987, stating that based upon the December 2 inspection, he believed that the fall that occurred on July 30, 1985, occurred on the property owned by J.S. Reimer, Inc.

On January 6, 1988, plaintiff filed an amended complaint. McNew was again named as a defendant in count IV of the amended complaint, which realleged that McNew owned a portion of the property on which the “landfill” was located and that he breached a duty of care in the maintenance of that property. McNew subsequently filed a motion to strike and dismiss count IV of the amended complaint, alleging that the complaint failed to state a cause of action since one does not have a duty to maintain property belonging to another. McNew did not schedule a hearing for his motion, and on August 8, 1988, plaintiff voluntarily dismissed McNew as a party defendant.

McNew subsequently filed a motion for attorney fees and costs pursuant to section 2 — 611 of the Code (Ill. Rev. Stat. 1987, ch. 110, par. 2—611). In the motion, McNew alleged that both the original complaint and the amended complaint were replete with untrue averments of facts and conclusions of law. Specifically, McNew maintained that plaintiff had not ascertained the location of his fall in the two years prior to filing the initial complaint; yet, both the original complaint and the amended complaint alleged that McNew owned a portion of the “landfill” and was obligated to maintain that property in a safe condition. McNew maintained that he did not have any maintenance responsibility for the Reimer property on which plaintiff sustained his injuries. McNew stated that, in defending plaintiff’s claim against him, he incurred $2,300 in attorney fees, based on 23 hours of work at $100 per hour. McNew also sought compensation for his own time, claiming that he had done much investigating on his own and had spent much time in consultation with other defendants and with his own lawyer. McNew valued his 50 hours of time that he spent on the case at $50 per hour. McNew sought judgment in the sum of $5,000 plus costs of the suit.

In his response to McNew’s motion, plaintiff alleged that McNew failed to meet the burden of proof imposed by section 2 — 611. Plaintiff claimed that, at the time of his fall, there were no markings on the property to delineate, who owned which portions of the “landfill” and there .was a question as to whether the adjoining landowners had placed fill materials on each other’s property creating the dangerous condition that caused plaintiff’s injuries. Plaintiff also alleged that McNew’s attorney accumulated fees in the action by failing to notice for hearing his motions to dismiss plaintiff’s complaint and amended complaint and by failing to participate in the December 2, 1987, on-site conference with plaintiff and the other parties. Plaintiff noted that the claim for attorney fees was not substantiated with any documentation and was entirely insufficient. Lastly, plaintiff argued that there is no basis in Illinois law allowing McNew to recover an award for fees for his own time.

McNew was granted leave to file a reply to plaintiff’s response to his motion for attorney fees and costs. In his reply, McNew alleged that plaintiff’s action was baseless in law and, further, that plaintiff knew that he was on the Reimer property at the time of his fall. McNew cited to two documents prepared shortly after plaintiff’s fall, specifically: (1) a “Supervisor’s Report of Accident/Illness,” dated August 27, 1985, which indicated that the exact location of the accident was: “Gilberts, Illinois: unauthorized landfill on Reimer Property”; and (2) a “Federal Employee’s Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation,” which indicated that the place the injury occurred was: “Gilberts, Illinois: Unauthorized fill on Riemer [sic] Property.” As to his claim for his own personal expenses, McNew argued that section 2 — 611 provides that a party may recover reasonable expenses, including a reasonable attorney’s fees. McNew argued that the language of the statute implies that he is entitled to recover his personal expenses in addition to his attorney fees. McNew argued that these expenses are recoverable not only for the underlying action, but also for the section 2 — 611 proceeding itself. Consequently, McNew filed a supplementary motion for fees and expenses, requesting that $1,000 be added to the award for fees and expenses to reflect the cost of the section 2 — 611 proceeding.

On October 18, 1988, the trial court denied McNew’s motion for attorney fees after hearing arguments of counsel, but without conducting an evidentiary hearing. McNew appealed, and this court reversed the trial court’s order denying McNew’s motion (Beno v. McNew (1989), 186 Ill. App. 3d 359). In doing so, we held that the trial court erred in summarily disposing of McNew’s petition; and thus, we remanded the cause to the trial court with instructions to conduct a hearing on the merits of the motion. McNew, 186 Ill. App. 3d at 366-67.

The hearing was conducted on June 18, 1990. Plaintiff was called as an adverse witness and testified that he was employed by the United States Environmental Protection Agency as an environmental protection specialist since 1979. Plaintiff explained that prior to that he was employed by the Army Corps of Engineers in the permit section. Plaintiff admittéd that he is familiar with how to locate the ownership of property; however, plaintiff testified that he made no effort to locate the ownership of the Reimer property before he inspected it on July 30, 1985. Plaintiff claimed he was not sure whose property he was inspecting. Plaintiff knew Mr. Reimer had property in that area, but he did not know who else did, and he had no idea where the property lines were. Plaintiff stated that, shortly after his fall, he made a written report identifying the property upon which he fell only as “Gilberts, Illinois.” Plaintiff was subsequently shown the supervisor’s accident report and the Federal employee’s notice of injury report; both indicated that plaintiff’s injury occurred on the Reimer property. Plaintiff explained that, in making the reports, he thought his injury could have occurred on the Reimer property, but he did not know for sure.

Plaintiff stated that he did not go back to inspect thé property after his fall in July 1985, or before he filed suit in June 1987. Plaintiff testified that, at the time he filed suit, he had no idea whether McNew owned the property, but he named him as a defendant along with the other landowners on the advice of counsel and on the alleged belief that they had been placing fill in the area.

Plaintiff testified that the first time he inspected the land after his fall was on December 2, 1987. Plaintiff testified that he then discovered that his injuries were sustained on the Reimer property, and a response to admit facts indicating the same was filed on December 27, 1987. Nonetheless, an amended complaint was subsequently filed on January 6, 1988, making the same allegation against McNew as the original complaint.

On cross-examination, plaintiff testified that, prior to the July 1985 inspection of the Reimer property, McNew was one of the persons suspected of placing.fill on the subject property. A notice of unauthorized activity from the Corps of Engineers was admitted into evidence. It was accompanied by a memorandum of record prepared by the Army Corps of Engineers and dated June 18, 1985. It indicated that fill material was being discharged on the 30-acre wetland and listed five suspected violators, including McNew. The memorandum stated that a complete investigation was to be initiated. Plaintiff testified that McNew was one of the persons he was to investigate when he made his July 1985 inspection.

McNew testified on his own behalf. He stated that he owns a five-acre piece of property on which he operates a salvage and recycling business. McNew stated that his property is located on the east side of a swamp, and Reimer’s property is located on the northwest side of the same swamp, about 300 to 400 feet away. On July 30, 1985, McNew was at his place of business and was not aware of any fall that occurred on the west side of the swamp.

McNew testified that he never placed any fill materials on Reimer’s property, nor did he ever see any of the other defendants do so. However, McNew admitted that, in 1985, he was dumping materials on his own property.

On cross-examination, McNew testified that, when he bought his property in 1972, none of it was buildable because of the swamp. McNew explained that the portion he built on was filled in by material that resulted from digging a lake. The remainder was filled in with road materials, including concrete, gravel, and grass. Road materials obtained from a different source were used by other landowners to fill in the swamp, and similar road materials were being dumped on the Reimer property.

Following arguments by counsel, the trial judge concluded that plaintiff’s original complaint • was not ill-founded or unreasonably made. The court based its decision on the following facts: (1) there were no clearly defined property lines at the time of the occurrence; (2) the “landfill” activity was being performed by a variety of occupiers of land in and around the vicinity; and (3) plaintiff apparently had the authority to investigate all the properties and all the parties relative to the improper “landfill.” The court found, however, that after the meeting in December 1987 and the notice to admit facts filed on December 27, 1987, it was improper for plaintiff to present and file the amended complaint which readopted and reincorporated the allegations concerning McNew’s ownership of the subject property. Therefore, the court awarded McNew attorney fees and court costs incurred subsequent to December 27, 1987. The court held, however, that the statute does not permit a party to recover his individual costs for- his personal time expended and devoted to the defense of the case.

The court ordered McNew to file an itemized petition setting forth the allowable fees and petitions. McNew filed a petition listing 28 hours at $100 per hour for work performed at the trial level, including time incurred as a result of the section 2 — 611 motion, and 25 hours for work performed when the case was originally appealed. McNew also included a $25 filing fee for the first appeal, bringing the total amount sought to $5,325.

The trial court modified its order as to fees, stating that McNew was allowed to recover attorney fees for the period of December 27, 1987, to August 8, 1988, the date plaintiff voluntarily withdrew its second amended complaint. The trial court then awarded McNew 9V2 hours in attorney fees at $100 per hour. McNew’s post-trial motion was denied, and he timely appeals.

Section 2 — 611 requires that an attorney sign every pleading, motion and other paper filed with the court,. certifying “that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—611; A & A Acoustics, Inc. v. Valinsky (1990), 202 Ill. App. 3d 516, 522.) Pleadings and other papers filed in violation of section 2 — 611 shall subject the party, the party’s attorney, or both to an appropriate sanction which may include an order to pay the other party the amount of reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees. (Ill. Rev. Stat. 1987, ch. 110, par. 2—611; Beno, 186 Ill. App. 3d at 365.) The purpose behind section 2 — 611 is to prevent counsel from making unsupported assertions of fact or law and to prevent a litigant from abusing the judicial process. (Hazel Crest Federation of Teachers v. Board of Education of School District 152½ (1990), 206 Ill. App. 3d 69, 79; Valinsky, 202 Ill. App. 3d at 522.) The trial court’s decision regarding the assessment of attorney fees is entitled to great weight, and a court of review will not disturb that determination unless there is a clear showing that the trial court abused its discretion. Beno, 186 Ill. App. 3d at 365.

McNew contends that both the complaint and the amended complaint had no basis in fact. These pleadings alleged, in part, that McNew owned a portion of the property on which the “landfill” was located and plaintiff was injured. McNew contends that not only was this allegation false, but plaintiff was aware of its falsity when he filed his complaint. In support, defendant cites to the accident reports initiated by plaintiff after his injury wherein plaintiff indicated that the accident occurred in Gilberts, Illinois, at the unauthorized fill on the Reimer property. McNew also cites to an affidavit filed by plaintiff in response to a motion for summary judgment filed by Reimer. Reimer claimed that he owed no duty to plaintiff because plaintiff was a trespasser. In his affidavit, plaintiff stated that he met with Reimer at the landfill site on July 23, 1985, one week prior to the accident. Plaintiff stated that he personally spoke with Refiner on that date and requested his permission to return to the landfill; Reimer allegedly consented. McNew notes that plaintiff did not seek his permission to enter the landfill, thus indicating that plaintiff was aware of who owned the property even prior to his fall.

Plaintiff responds that the allegation concerning ownership was not a knowing misstatement of fact and, when combined in the alternative with allegations regarding negligent control, maintenance or use of land, was a good-faith theory of law. In support, plaintiff cites to case law indicating that a party who creates a dangerous condition will not be relieved of liability, merely because that party does not own or possess the premises upon which the dangerous condition exists. (Corcoran v. Village of Libertyville (1978), 73 Ill. 2d 316, 324.) However, plaintiff admits that it was not until after he filed the complaint that he attempted to discover the ownership of the landfill and whether any of the defendants had deposited fill materials on each other’s property. Section 2 — 611 imposes upon both client and counsel the duty to make a reasonable inquiry into the facts to support a legal claim before pleadings are filed, not after they are filed. (Valinsky, 202 Ill. App. 3d at 522; Chicago Title & Trust Co. v. Anderson (1988), 177 Ill. App. 3d 615, 622-23.) Here, it is clear that neither plaintiff nor his counsel made a reasonable factual inquiry to support the complaint or the amended complaint. Consequently, the trial court erred in finding that the original complaint was properly made.

Next, we consider the amount to be awarded to McNew as a result of the improperly filed pleadings. McNew argues that the trial court erred in awarding him only $950 of his requested $5,325 because plaintiff did not deny, refute, or challenge McNew’s itemized schedule of fees. The schedule proposed by McNew set forth only those fees incurred subsequent to December 27, 1987, in accordance with the trial court’s order. In awarding McNew $950, the trial court disallowed the fees incurred as a result of the section 2 — 611 petition and the original appeal. We find that in so ruling the trial court abused its discretion.

Section 2 — 611 provides that, where a pleading is filed in violation of the section, the court shall impose an appropriate sanction, which may include an order to pay to the other party “the amount of the reasonable expenses incurred because of the filing of the pleading, *** including a reasonable attorney’s fee.” (Ill. Rev. Stat. 1987, ch. 110, par. 2—611.) This language clearly encompasses all resulting expenses, including attorney fees and expenses incurred as a result of prosecuting a section 2 — 611 petition. (Dayan v. McDonald’s Corp. (1984), 126 Ill. App. 3d 11, 26-28.) Here, it was plaintiff’s false allegations that prompted the section 2 — 611 petitions and the subsequent appeals. Consequently, we find that plaintiff should be taxed for the fees incurred in litigating the section 2 — 611 issues. This includes not only the prior appeal, but the present appeal as well. Under section 2 — 611, a prevailing party may recover the fees and expenses it is forced to incur on appeal as a result of the baseless lawsuit. Chavez v. Watts (1987), 161 Ill. App. 3d 664, 675.

Plaintiff contends that McNew is not entitled to recover the cost of the appeals because it was McNew who brought both appeals. Plaintiff contends that an award of appellate fees is limited to the situation where the party bringing the appeal is the same party who made the untrue statement in the trial court and the party taking the appeal has remained stubbornly litigious, causing the other party additional unnecessary expense for which it is entitled to reimbursement. (Schroeder v. Busenhart (1971), 133 Ill. App. 2d 180, 183.) We disagree. It was the baseless lawsuit which initiated the costs in the case at bar, and it was the trial court’s incorrect ruling which forced McNew to the appellate court. We find that the expenses incurred on appeal resulted from plaintiff’s improperly filed complaint, and thus the expenses are recoverable under section 2 — 611.

Plaintiff cites to Darnall v. City of Monticello (1988), 168 Ill. App. 3d 552, 557, stating: “No supreme court rule provides for the imposition of fees and costs on a party as the result of an unwarranted appeal.” First, we note that the proposition stated in Darnall is no longer the law. Supreme Court Rule 375(b) (134 Ill. 2d R. 375(b)) provides that appropriate sanctions may be imposed where an appeal is frivolous or is filed for an improper purpose. (Harris v. Harris (1990), 196 Ill. App. 3d 815, 830.) However, neither Darnall nor Supreme Court Rule 375(b) is applicable to the matter before us. Both Darnall and Supreme Court Rule 375(b) apply to frivolous appeals (see Wiley v. Howard (1989), 180 Ill. App. 3d 721, 724) and do not address the question of well-taken appeals of a baseless or frivolous lawsuit.

The appeal here is not unwarranted. Rather, it was the result of the unwarranted lawsuit and, as such, is clearly covered under the purview of section 2 — 611. We note that this is not a case where, on appeal, the party seeks for the first time the imposition of sanctions. McNew’s petition for sanctions was filed in the trial court. The trial court improperly limited McNew’s award, and we are reversing the judgment of the trial court. We find our authority to do so under section 2 — 611, not Supreme Court Rule 375(b).

In addition, we have found that both the original complaint and the amended complaint were filed without a reasonable inquiry into the facts. The allegations made in the complaints were the cornerstone of the entire baseless lawsuit. (Dayan, 126 Ill. App. 3d at 23-24.) Thus, the expenses and fees incurred in defending the suit were incurred by reason of the unsupported pleadings, and an isolated focus on each reimbursable component as urged by plaintiff is not necessary. G.M. Sloan Mosaic & Tile Co. v. Newman/Lustig & Associates (1990), 199 Ill. App. 3d 518, 523.

Finally, we consider McNew’s contention that the trial court erred in denying him fees for his personal time spent in defending the suit. McNew cites to no case in support of his proposition; instead, he relies on the language of the statute which provides that “reasonable expenses” incurred as a result of the improperly filed pleading, “including a reasonable attorney’s fee,” may be recoverable (Ill. Rev. Stat. 1987, ch. 110, par. 2-611).

We do not read the phrase “reasonable expenses” so broadly. Rather, we find that the expenses intended to be covered under section 2 — 611 are limited to court-type litigation costs and attorney fees. (See In re Marriage of Hartian (1988), 172 Ill. App. 3d 440, 454.) Thus, under our reading of the statute McNew is not permitted to recover his individual costs for his personal time expended in defending the case.

In summary, we reverse the trial court’s judgment to the extent that it limited McNew’s award of attorney fees from the time the response to admit facts was filed on December 27, 1987, to August 8, 1988, the date plaintiff voluntarily withdrew its amended complaint. We find that fees should have been awarded from the date the complaint was originally filed up to and including the present appeal. However, we find that defendant is not entitled to recover costs for his personal time. Accordingly, we remand this cause to the trial court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

REINHARD, P.J., and UNVERZAGT, J., concur.


author: JUSTICE McLAREN

text:
      In re MARRIAGE OF THERESA D. LaSHELLE, Petitioner-Appellee, and RICKY L. LaSHELLE, Respondent-Appellant.
    Second District
    No. 2—90—0732
    Opinion filed May 16, 1991.

      William R. Shirk, of Weinstine & Shirk, of Morrison, for appellant.
    No brief filed for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

Respondent, Ricky LaShelle, appeals the orders of the circuit court which found him responsible for certain obligations arising from the judgment dissolving his marriage with petitioner, Theresa LaShelle. The issue is whether the trial court’s determination that respondent’s obligation to pay a debt is in the nature of child support and thus not dischargeable by bankruptcy, pursuant to section 523(aX5) of the Bankruptcy Code (Code) (11 U.S.C.A. §523(aX5) (West 1979)) is against the manifest weight of the evidence.

Petitioner has not filed a brief, and we review this matter pursuant to the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

The parties were married on September 9, 1977, and two children were born to the marriage. Petitioner filed a petition to dissolve the marriage on May 10, 1985, and after a hearing on November 22, a judgment dissolving the marriage was entered on December 19, 1985. Because of the numerous other judgments in this cause, we refer to this judgment as the “decree.” The decree contained the following provisions:

“3. That the Plaintiff [Petitioner] herein is hereby awarded the marital residence located at 1600 Erie Avenue, Savanna, Carroll County, Illinois; and that the Defendant, RICKY L. LaSHELLE, is hereby ordered and directed to execute a quitclaim deed, quitclaiming his interest in said residence, instanter; and that the Plaintiff will be responsible for the first mortgage on said residence to the Clinton Federal Savings and Loan Association; and that the Defendant shall be responsible for the second mortgage to the Thomson State Bank.
4. That the Plaintiff herein shall be responsible for the debt to Montgomery Ward and the debt to her Mastercharge; and that the Defendant shall be responsible for all other debts, including but not limited to the debt to the Thomson State Bank, Amoco Oil, his Mastercharge, Rock Island Aresnal [sic] Credit Union for the Jeep, the debt to Blackhawk Credit Union for Plaintiff’s car, and the truck; and any other bills which he has incurred in his business, and hold the Plaintiff free and harmless from any liability on same.
* * *
9. That the Defendant herein is hereby awarded the 1977 Ford pickup truck, the 1980 Jeep, the Kenworth semi-truck, his tools which include a log splitter, a battery charger, a chain saw, a 2-wheel trailer, and a weight set.
* * *
12. That after disbursing [part of the income tax refund], there will be a balance of $2,368.37; and that Plaintiff is directed to keep these funds for child support payments in advance at the rate of $25.00 per week, per child, or a total of $50.00 per week, until this sum of money is depleted, which will be on October 18, 1986, at which time the child support payments will be reduced to $15.00 per week, per child, if the same set of circumstances are existing as they exist at this time, namely: that Defendant is losing $40,000.00 per year, to which he has attested as his net income for 1984 and 1985. If, however, that is not his income, and there has been a change in circumstances and he is making more money, then the child support payments will be re-evaluated by the Court.
13. That both parties hereto are hereby denied maintenance (alimony) from each other.”

In 1986, defendant continued to lose money. He approached the Thomson State Bank about settling his secured debts. He said that, if he could not sell his truck, he would have to file for bankruptcy protection. On July 12, 1986, he made a deal whereby he sold the Kenworth tractor to James R. Ostendorf in return for his paying off the secured notes to the bank. In addition, Ostendorf signed a paper which stated that he “agrees in return for Rick and Theresa LaShelles [sic] selling him their 1978 Kenworth Tractor, *** to pay the *** [mortgage] loans off at the rate of $300.00 per month plus interest at the Thomson State Bank.” Petitioner , also signed the assignment of the title of the truck. Respondent and Ostendorf made few, if any, payments on the second mortgage loan to the Thomson State Bank. Respondent subsequently filed a petition under the Bankruptcy Code, scheduled the debt to the Thomson State Bank, and received an order of discharge. See 11 U.S.C.A. §§727, 524 (West 1979).

On May 27, 1987, petitioner filed a petition for a rule to show cause why respondent should not be held in contempt because he was in arrears $810 in child support payments; the second mortgage loan was mentioned, but the petition did not specificaUy state he had faüed to pay it. The circuit court found that respondent was not in contempt of court, found that the arrearage was then $1,010 and ordered respondent to make the payments on the second mortgage loan commencing July 15, 1987. Petitioner filed another petition for a rule to show cause, and the court entered a memorandum opinion in which it ruled that respondent’s obligation to pay the second mortgage was in the nature of child support and thus not dischargeable under Code section 523(a)(5)(B). In continuing proceedings the circuit court found respondent not to be in contempt of court for his failures to pay because he had insufficient income, and the court incorporated the findings of the memorandum opinion. Respondent appeals that part of the order in which the circuit court determined his obligation to pay the second mortgage loan was not dischargeable.

The circuit court based its ruling on its reading of the transcript of the original dissolution proceedings on November 22, 1985. The circuit court noted that petitioner’s counsel had stated, without contradiction: “Due to the fact that Mr. LaShelle is giving up his interest in the marital residence we are not asking for maintenance and we will waive maintenance at this time. We would also ask that he be denied maintenance.” The trial court had also said in 1985: “Now, we have got $10,000.00 in a second mortgage that he is to be responsible for. I think he should pay that off as quickly as possible. If he doesn’t take care of that she is going to lose the house anyway. I would suggest that that be a big priority to pay that debt first.” The circuit court noted the trial court’s statement that it was troubled by the income of the parties. Respondent was not going to be able to support three people on her annual income of $12,000, and the child support payments of $25 per week were “poverty level,” but the court could not order a payment it knew respondent could not pay. Despite the respondent’s losses, the trial court ordered him to pay $15 per week once the income tax refund was exhausted. The trial court made a final statement: “I would sure hope that the second mortgage on the house is given first priority. Your children need a home.”

Based on the above comments of the trial court at the time of the dissolution of the marriage, the trial court determined that respondent’s assumption of the second mortgage debt was not part of the property settlement but rather in lieu of maintenance and child support. The trial court found respondent liable for the debt but did not find him in contempt. Following respondent’s motion to reconsider, the trial court also ruled that the debt was not dischargeable under section 523(a)(5)(A) on the ground it was assigned to Ostendorf. Respondent appeals.

The Bankruptcy Code provides a debtor a means where he might obtain a “fresh start” unencumbered by the claims of creditors. A successful petition under title 11 results in an order of discharge, the effect of which is to void any prepetition judgment against the debtor and to operate as an injunction against the continuation of any action to collect a debt from the debtor or his property. (11 U.S.C.A. §524 (West 1979).) Section 523, however, provides several exceptions where certain kinds of debts are not dischargeable for public policy reasons. For example, the continuing responsibility to make child support and maintenance payments is not dischargeable, unless the payments are in actuality part of a property settlement distribution.

The trial court found and determined the order of discharge did not prevent petitioner from forcing respondent to pay the second mortgage loan because this obligation was part of an order for support rather than part of a distribution of property. The standard of review in the cause before this court is whether the trial court’s determination is against the manifest weight of the evidence.

Respondent argues that the debt was dischargeable under both subsections of section 523(a)(5), which reads as follows:

“(a) A discharge under section 727 *** does not discharge an individual debtor from any debt—
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(5) to a spouse, former spouse, or child of the debtor, for alimony to, maintenance for, or support of such spouse or child, in connection with a separation agreement, divorce decree or other order of a court of record, determination made in accordance with State or territorial law by a governmental unit, or property settlement agreement, but not to the extent that—
(A) such debt is assigned to another entity, voluntarily, by operation of law or otherwise ***; or
(B) such debt includes a liability designated as alimony, maintenance, or support, unless such liability is actually in the nature of alimony, maintenance, or support.” 11 U.S.C.A. §523(a) (West Supp. 1991 & West 1979).

With regard to section 523(aX5)(A), respondent has confused an assignment of rights with a delegation of duties. Rights are assigned; duties are delegated. Section 523(aX5XA) operates only when the right to collect payment on a debt has been assigned, not when the duty to pay a debt has been delegated. There was no showing that petitioner assigned her right to have the debt paid.

Whether a debt is nondischargeable as being in the nature of maintenance or support is a matter of Federal, not State, law, but Federal and State courts have concurrent jurisdiction to determine whether section 523(aX5) excepts such debts from the discharge. (In re Marriage of Lytle (1982), 105 Ill. App. 3d 1095, 1099.) The label attached to a decree and the language used in the decree are not controlling in determining dischargeability; rather, the court must look to the substance of the order for payment to determine the essential nature of the obligation. Lytle, 105 Ill. App. 3d at 1099-1100.

Because the decree does not explicitly state whether the second mortgage debt is part of the property division or maintenance or support, other factors may be used in determining the nature of the debt to a third party, including whether the decree otherwise includes provisions for payments to the ex-spouse; whether there was any indication that the hold-harmless provision was intended to balance the relative income of the parties; whether the hold-harmless provision is in the midst of other provisions allocating property; and whether the hold-harmless provision describes the character and method of payment. (In re Coil (7th Cir. 1982), 680 F.2d 1170, 1172; In re Woods (7th Cir. 1977), 561 F.2d 27, 29.) These factors, however, may be inconclusive in determining the intent of the court and the parties at the time of the entry of the decree. Coil, 680 F.2d at 1171; In re Slingerland (S.D. Ill. 1988), 87 Bankr. 981, 987.

Respondent argues that, under these factors, the responsibility for the second mortgage loan was part of the property division and not part of an order for support. Respondent notes that the second mortgage loan was incurred as a business loan for the operation of his truck. While petitioner received the residential assets and the attendant consumer debts, respondent received the business assets, namely, the truck, and the attendant debts of the business, including the second mortgage loan; thus, his responsibility arose as part of the division of assets. Respondent also claims that petitioner received a greater share of the net assets after considering all debts. The trial court specifically denied maintenance to both parties; this provision was in the lower part of the decree near the child support sections and away from the division of property sections of the decree. The obligation did not terminate upon petitioner’s death or remarriage as maintenance and support would. The decree does not refer to the debt responsibility as maintenance or support. Petitioner was young, healthy, employed at a salary greater than respondent’s, and able to support herself. The debt distribution was not an attempt to equalize income. Finally, paragraph 3 of the decree did not contain a hold-harmless provision as paragraph 4 did.

While each of these factors has been used by courts to determine that a debt was not in the nature of maintenance or support, we do not believe they are controlling in this case. Concerning the decree itself, we find that the debts secured by the house were discussed in the paragraph concerning the house; that does not mean that the debts could not be part of the trial court’s child support consideration, but only that it was more convenient to organize the decree by asset. The decree is not otherwise split into separate sections of custody, visitation, property division, support and maintenance. We also note that the trial court addressed the second mortgage twice at the 1985 hearing, first when discussing the disposition of the house and again when discussing support. There was no reason to put the same obligation in writing twice on the same document.

The order to make the payments was not over and above that necessary for the maintenance and support of the family. (In re Marriage of Rowden (1987), 163 Ill. App. 3d 869, 873; Lytle, 105 Ill. App. 3d at 1100.) Petitioner may have been young and employed, but she also had two young children, and her salary was only $12,000, which the trial court noted was poverty level even with additional support of $15 to $25 per week. (Cf. Lytle, 105 Ill. App. 3d at 1100 (“young, healthy, employed and without dependents”).) Respondent made no showing that petitioner received a greater share of the assets. The trial court could not attempt to equalize the parties’ incomes because respondent’s income was admittedly uncertain, and the decree made such an explicit finding.

Instead, the situation here is similar to that of In re Walter (D. Del. 1985), 50 Bankr. 523, in which the parties became jointly liable on a loan secured by a second mortgage on their home. The proceeds were used to buy a truck for the debtor’s business. (50 Bankr. at 524.) After their marital separation and the debtor’s petition in bankruptcy, the bankruptcy court held that the debt was not dischargeable because the other provisions for support together with the ex-wife’s earnings would have been insufficient to maintain daily necessities and housing. The debtor’s agreement to assume the second mortgage was essential to maintain the family home as of the date of the separation agreement. (50 Bankr. at 525.) In contrast, where such payments on the second mortgage were not necessary to provide for continuing needs, the debt was considered part of the property division and dischargeable. (In re Hysock (D. Del. 1987), 75 Bankr. 113, 114.) Similarly, in In re Rush (D. Kan. 1989), 100 Bankr. 55, the debtor claimed that his obligation to pay the $10,000 second mortgage on the home, incurred as his business expense, was part of the property division where the wife received the home and responsibility for the first mortgage. The court, finding the decree to be ambiguous, noted that the ex-spouse had custody of the children, there was an imbalance of income, there was a need for support and a need to have the mortgage payments made, the payments were made directly to the ex-spouse, and a fact sheet admitted in the dissolution proceedings showed the payment to be part of the support consideration; thus, it determined that the obligation was in the nature of support and not dischargeable. (100 Bankr. at 57.) While the last two factors are not present in this cause, the others are persuasive.

Providing shelter is an important part of support, especially in the cause before the court where the petitioner could not pay both mortgages on the home. (See In re Calisoff (N.D. Ill. 1988), 92 Bankr. 346, 354.) Other courts have also looked to a spouse’s ability to support herself as a key to determining whether a debt was assumed by the other party as part of support or maintenance. In Slingerland (97 Bankr. at 985), the parties had sufficient property and income to support themselves without maintenance, and the assumption of the second mortgage loan was found dischargeable. (See also In re Boggess (S.D. Ill. 1989), 105 Bankr. 470, 472.) By contrast, the only reason the trial court in the cause before the court did not order maintenance or a greater amount of child support was because respondent was losing money. See also In re Cockhill (N.D. Ill. 1987), 72 Bankr. 339, 343 (responsibility for ex-spouse’s attorney fees ordered in the decree considered part of the order of support because she did not have sufficient funds to pay them at the time of the dissolution).

Respondent also notes that the obligation does not terminate with death, remarriage or emancipation and is thus not indicative of maintenance or support. However, maintenance may be in the form of maintenance in gross or a property settlement in lieu of maintenance, neither of which terminates upon death or remarriage; these obligations are also not dischargeable in a bankruptcy proceeding. (Rowden, 163 Ill. App. 3d at 872-73.) Respondent distinguishes Rowden by noting that in that case the judgment specifically stated that the obligation to pay a debt and to hold the ex-spouse harmless was in lieu of maintenance and maintenance was otherwise forever barred and terminated; respondent also notes that there was no hold-harmless clause in paragraph 3 of the decree. Nevertheless, at the 1985 hearing, petitioner’s counsel stated without contradiction that petitioner was waiving maintenance in return for the house. Paragraph 4 included a hold-harmless clause and included a list of respondent’s business debts, such as the debts to the Thomson State Bank.

Based on the record of the 1985 dissolution proceedings, it is not against the manifest weight of the evidence that, the trial court determined the obligation to pay the second mortgage debt as a form of support.

For the above reasons, the order of the circuit court of Carroll County is affirmed.

Affirmed.

BOWMAN and GEIGER, JJ., concur.