text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LYNN MITCHELL, Defendant-Appellant.
    Second District
    No. 2 — 90—0281
    Opinion filed March 11, 1992.
    Rehearing denied April 6, 1992.

      G. Joseph Weller and Kathleen J. Hamill, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers and Martin P. Moltz, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

The defendant, David Lynn Mitchell, was charged by information with criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—13(a)(3)) and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(l)). Following a jury trial, defendant was found guilty of both offenses. The trial judge granted defendant’s motion for a new trial as to the criminal sexual assault conviction and denied the motion as to the aggravated criminal sexual assault conviction. Defendant was subsequently sentenced to 15 years’ imprisonment on the aggravated criminal sexual assault conviction, and this timely appeal followed.

On appeal, defendant contends that: (1) he was denied a fair trial due to (a) prosecutorial misconduct and (b) ineffective assistance of defense counsel; (2) he was not proved guilty beyond a reasonable doubt; and (3) he was denied a fair trial when the trial court improperly admitted into evidence a videotaped statement made by the complainant prior to trial. Based on our resolution of this last issue, we reverse defendant’s conviction and remand for a new trial.

Prior to trial the Ogle County State’s Attorney indicated that a videotape of the complainant had been given to defense counsel. At that time, defense counsel stated that, since he was not present when the videotape was made, he intended to object to the use of the tape at trial. The trial judge indicated that he would defer ruling on the matter.

The following evidence was adduced at trial. The complainant, H.G., was nine years old at the time of the alleged assault in February 1989 and 10 years old at the time of trial in October 1989. H.G. testified that, one day during the previous school year, her mother called her at school and told her that she was going to Polo, Illinois, for the afternoon. H.G.’s mother told her to go home after school and said that defendant would be at home. Defendant was a friend of H.G.’s mother who had been staying at their house.

H.G. stated that, when she got home that afternoon, defendant was there. She went into her room, did some homework and then started a puzzle. As H.G. was starting her puzzle, defendant came in to the room, grabbed H.G.’s hand and pulled her into her mother’s bedroom. Defendant then removed both H.G.’s jeans and shirt and his own jeans and shirt. As H.G. was lying on her mother’s bed on her back, defendant got on top of her and “tried to put his private part inside [hers].” H.G. further testified that by “private part” she was referring to the area “between the legs” and “below the belly button.” H.G. said that it hurt when defendant did this.

H.G. also stated that defendant put his mouth on other parts of her body. She said that defendant sucked on her chest and “between the legs.” Next, H.G. stated that defendant put his hands on his own “private part” and rubbed up and down. H.G. added that “[w]hite stuff” came out of defendant’s private part and went onto the bed, H.G. and defendant. H.G. then demonstrated what had occurred using anatomically correct dolls.

On cross-examination, H.G. recalled that she and her mother had gone on rides with defendant, who was a truck driver, including trips to Des Moines, Iowa, and to Minnesota. H.G. stated that the Des Moines trip caused her to miss a few days of school. H.G. also admitted that on prior occasions she had told people that defendant was wearing a robe when the offense occurred. H.G. indicated that she had been thinking of the next evening on which defendant had worn a robe.

H.G.’s mother, Stephanie, also testified. Stephanie stated that she was a former truck driver and that she met defendant through her truck-driving friends in February 1989 at a restaurant in Rochelle, Illinois. On the night of February 10, defendant called Stephanie and asked her to pick him up at a truck stop. When Stephanie picked him up, defendant told her that he had been fired. Stephanie then brought defendant back to her home, where he stayed with her and H.G. for about 10 days. Stephanie stated that, after 10 days, she told defendant to leave because she was the recipient of an Ogle County Housing Authority grant, which would not allow her to have anyone live with her for more than 14 consecutive days. Defendant moved out on February 21.

On February 17, defendant was still living in Stephanie’s apartment. Stephanie stated that, on that date, she had to go to Polo, Illinois, to deliver some papers to the Housing Authority. Before leaving, she called H.G.’s school and left a message that H.G. should go straight home after school and that defendant would be there waiting for her. Stephanie left for Polo at 2:30 p.m. and returned home between 4:30 and 5 p.m.

A week to 10 days after defendant moved out, H.G. complained of feeling a burning sensation when she urinated. Stephanie took H.G. to a doctor where certain cultures were taken. During a follow-up visit, Dr. William Johanson told Stephanie that something had happened to H.G. According to Stephanie, H.G. then stated that defendant had molested her. Dr. Johanson and his nurse were also present when H.G. made that statement. Dr. Johanson told Stephanie that he would have to report the situation to the Department of Children and Family Services (DCFS). Stephanie then went home and called the police. Thereafter, Marie Flosi of DCFS and Detective Robbie Buck of the Rochelle police department came to talk to Stephanie.

On cross-examination, Stephanie stated that she and H.G. never rode to Minnesota with defendant. She admitted that they did go with defendant to Joslyn, Illinois, on one occasion and that, on another, they drove to Des Moines in the middle of the night to meet defendant at a motel room. Stephanie stated that she and H.G. did not spend the night with defendant in Des Moines; rather, they spent a few hours at defendant’s motel room and then returned to Rochelle. Stephanie was also called to the stand as an adverse witness during defendant’s case in chief. Stephanie then admitted that she and defendant had had sex during their relationship and that she did not have herpes.

Marie Flosi testified that she was an investigator for DCFS. On March 21, 1989, she participated in the investigation of the report of sexual abuse involving H.G. Flosi, along with Detective Buck and Assistant State’s Attorney Robin Minnis, had a conversation with H.G. in the Ogle County courthouse building regarding the incident. The conversation was videotaped. Flosi also acknowledged that, prior to the day on which the videotape was made, she and Detective Buck interviewed H.G. at the Rochelle police department for about one-half hour. According to Flosi’s notes taken on March 15, H.G. told her that defendant was wearing a robe when the incident took place.

The State subsequently played for the jury the videotape of the March 21 interview wherein H.G. detailed for Detective Buck, Ms. Flosi and Assistant State’s Attorney Minnis the facts surrounding the alleged sexual assault. While we note that some discrepancies do exist, for the most part, H.G.’s statements on the videotape were consistent with her testimony at trial. The State then rested its case.

The defendant testified in his own behalf and stated that he was a 44-year-old truck driver. He worked out of “Esterville [sic], Iowa,” for the Holiday Express trucking company. Sometime late in December 1988 or early in January 1989 defendant was dispatched to the Rochelle, Illinois, area to pick up a load at a company called FDL to take to the Hormel Company in Jackson, Minnesota. During a delay in the loading of his truck, defendant went to the Oaks Restaurant, which was frequented by truckers in the Rochelle area. It was at the Oaks Restaurant that defendant met Stephanie at 4 or 5 p.m.

Defendant and Stephanie spent the evening together going to bars. At about 11 p.m., Stephanie went back to FDL with defendant to get his loaded truck. Stephanie and defendant then rode in the truck together back to the Oaks Restaurant, where they parked. They sat and talked and then climbed into the sleeper portion of the truck cab and had sexual intercourse. The next morning, defendant went with Stephanie to her apartment to freshen up and then proceeded to Minnesota alone. During parts of January and February 1989 defendant, Stephanie and H.G. traveled together in defendant’s truck to such places as Joslyn, Illinois; Des Moines, Iowa; Jackson, Minnesota; and New York. Defendant and Stephanie were sexually active during this period, and on occasion, H.G. witnessed defendant and Stephanie engaging in sex.

On February 10 defendant went to the Tiki truck stop before leaving for New York. He discovered that his fuel card had been shut off and later learned that he had been fired because he had been seen with an unauthorized passenger aboard his truck. Defendant called Stephanie, who picked him up at the Tiki truck stop and brought him back to her apartment. On February 17, the day of the alleged sexual assault, defendant was still living there. That morning Stephanie told defendant that she had to go to Polo, Illinois, to take some papers to the Housing Authority. Stephanie told defendant that she did not want him to come along because, under the Housing Authority’s rules, she was not supposed to have anyone staying with her. She also stated that she would be back in time to pick up H.G. from school.

H.G. arrived home before Stephanie did, arriving at about 3:30 p.m. Defendant was in a sleeping bag watching television on the living room floor when H.G. came in. H.G. did homework for 15 or 20 minutes and then came into the living room to watch cartoons. Defendant went into the kitchen and made sandwiches for H.G. and himself. Stephanie returned home between 7 and 8 p.m. Later, waitresses at the Oaks Restaurant told defendant that Stephanie had been there for three or four hours on the afternoon of February 17. Defendant denied having any physical contact, sexual or otherwise, with H.G. on February 17.

According to defendant, he and Stephanie argued on February 17 when Stephanie returned home and on February 19 regarding how Stephanie was spending defendant’s money. Another argument on February 20 led defendant to move out of Stephanie’s apartment on the 21st. Defendant stated that he was not then, nor had he ever been, infected with herpes. He also stated that he did not use any form of protection against conception or disease when he and Stephanie engaged in sexual activity.

Rose Walton also testified on defendant’s behalf and stated that she had known defendant for five years. Walton stated that she and defendant were lovers and that she had been intimate with defendant. She stated that they had been intimate on five or six occasions since December 1988 and that some of these instances of intimacy occurred after February and March 1989. Ms. Walton stated that she did not have herpes and that, as a nurse, she had been trained to recognize the symptoms of herpes. Walton also stated that she had never seen any signs of herpes on defendant.

The State presented several rebuttal witnesses, including Dr. William Johanson. Dr. Johanson testified that he examined H.G. in March 1989. H.G. had been seen by Dr. Nyquist previously on March 3. H.G. had displayed external symptoms that indicated the presence of herpes. Dr. Nyquist took specimens for laboratory tests, and Dr. Johanson received these test results on March 14. The test results indicated that H.G. had herpes simplex II, a sexually transmitted disease.

After reviewing the test results, Dr. Johanson saw Stephanie and H.G. at his office. First, he told Stephanie that H.G. had herpes and that he would have to question her regarding how she had contracted it. Then, in Stephanie’s presence, H.G. mentioned that she might have been touched by a “boyfriend.” She did not state any specific names. Dr. Johanson then reported the circumstances of H.G.’s condition to DCFS and the Health Department, and a follow-up investigation was arranged.

Dr. Johanson indicated that a person’s first episode of herpes is usually very noticeable, involving soreness, a fever, as well as blisters and lesions. Subsequent episodes can be relatively asymptomatic and may appear as only a skin irritation. The initial attack occurs one to two weeks after the disease is contracted. Dr. Johanson said that herpes is not flagrantly contagious, and the fact that one person who had sex with an infected person contracted the disease does not mean that another person who had sex with the same infected person at about the same time necessarily would contract the disease as well. Additionally, the parties stipulated that, if a qualified expert were called to testify, he would state that there is no scientific test which could prove or disprove that defendant had herpes. This is because the only tests available must be performed when open lesions are present.

During deliberations, the jury made several requests to review H.G.’s videotaped testimony. Defense counsel objected to reshowing the tape, arguing that it would unduly emphasize the taped testimony. Defense counsel also noted that he was not present when the tape was made and that H.G. was not cross-examined at that time. The trial court ultimately granted the jury’s request and allowed the videotape to be shown again. The jury subsequently returned verdicts of guilty on both counts of criminal sexual assault and aggravated criminal sexual assault.

The parties appeared in court again on November 11, 1989, at which time defendant’s trial counsel told the court that defendant was raising his ineffectiveness in a pro se post-trial motion. Trial counsel was given leave to withdraw, and Ogle County Public Defender George Fischer was appointed to represent defendant. The trial court subsequently allowed defendant’s request that his conviction of criminal sexual assault be reversed but denied all other requests for relief. Defendant was then sentenced to a 15-year term of imprisonment on the aggravated criminal sexual assault conviction.

As indicated earlier, we will first address defendant’s argument that the trial court erred in admitting into evidence a videotaped statement made by H.G. prior to trial. Specifically, defendant maintains that the videotape, which the jury was allowed to view and listen to twice, unfairly bolstered H.G.’s trial testimony, thus denying him a fair trial. We agree that the trial court committed reversible error when it allowed the State to present this videotape evidence to the jury.

Initially, the State responds to defendant’s argument by pointing out that, although defense counsel objected to the admission of the videotape prior to trial and prior to the reshowing of the tape during jury deliberations and raised the issue in a post-trial motion, counsel nevertheless acquiesced to the showing of the tape during trial. The State maintains, therefore, that this issue has been waived. Although the State’s argument in this regard is well taken, such issues may still be considered on appeal where the failure to object is claimed, as it is here, to result from the ineffective assistance of counsel. (People v. Emerson (1987), 122 Ill. 2d 411, 434.) We shall therefore examine defendant’s argument on the merits.

Defendant contends that the trial court erred in holding that the videotape was admissible pursuant to section 115—10 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115—10). The State contends that the court’s holding regarding section 115—10 was correct. However, both defendant and the State have confused what the trial court actually said. In ruling on defendant’s post-trial motion, the trial judge stated, in part, that the videotaped testimony was “probably admissible under 115—10.1.” Thus, contrary to both parties’ arguments, the trial court was apparently relying on section 115—10.1 of the Code, not section 115—10, in support of its ruling. However, the trial court then directed defense counsel’s attention to People v. Rocha (1989), 191 Ill. App. 3d 529, which addresses section 115—10, as further authority for admission of the video. Regardless of whether the trial court was relying on section 115 —10 or section 115—10.1, however, we believe the admission of the videotape was improper.

We first address the applicability of section 115—10.1 of the Code. Section 115—10.1 provides, in pertinent part, as follows:

“§115—10.1. Admissibility of Prior Inconsistent Statements. In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement—
***
(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and
* * *
(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.” Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1.

At the hearing on defendant’s post-trial motion, the State noted that there appeared to be “several discrepancies in the child’s statement” and that therefore the videotape might be admissible as a prior inconsistent statement pursuant to section 115—10.1. We disagree. Under the circumstances of this case, we can perceive of absolutely no reason why the State would want to introduce the prior inconsistent statements of the complainant. Rather, we believe the State, through the use of the videotape, was clearly attempting to corroborate or bolster H.G.’s in-court testimony with her generally consistent statements contained on the video. As such, the videotaped statement was not admissible under section 115—10.1 as a prior inconsistent statement.

We next address the applicability of section 115—10 of the Code, which provides, in part, as follows:

“§115—10. (a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12—13 through 12—16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” (Ill. Rev. Stat. 1987, ch. 38, par. 115—10.)

Defendant maintains that the use of videotaped statements as a corroborative complaint is not contemplated by section 115—10. We agree.

It is often stated that the fundamental rule of statutory construction is to give effect to the intent of the legislature. (People v. Parker (1988), 123 Ill. 2d 204, 209.) It is presumed that the legislature, in enacting various statutes, acts rationally and with full knowledge of all previous enactments. (State v. Mikusch (1990), 138 Ill. 2d 242, 248.) Moreover, penal statutes must be strictly construed and may not be extended in their application to matters which do not, by the strictest construction, come under their provisions. People v. Parvin (1987), 164 Ill. App. 3d 29, 34.

A plain reading of section 115—10 reveals that the statute does not expressly or affirmatively provide for the introduction of prior videotaped statements of a complainant. On the other hand, section 115 —10.1 of the Code, referenced above, specifically provides that certain videotaped statements may be admissible as prior inconsistent statements. (Ill. Rev. Stat. 1987, ch. 38, par. 115—10.1.) In addition, former section 106A—2 of the Code specifically provided for the admission into evidence of videotaped statements or testimony of child witnesses in sexual assault cases. (Ill. Rev. Stat. 1987, ch. 38, par. 106A—2.) This statute was subsequently declared unconstitutional in People v. Bastien (1989), 129 Ill. 2d 64, and repealed by Public Act 87—345 (Pub. Act 87—345, eff. Jan. 1, 1992 (repealing Ill. Rev. Stat. 1987, ch. 38, par. 106A-2)).

We believe that the inclusion of specific language by the legislature in sections 106A—2 and 115—10.1 of the Code, allowing the use of videotaped statements with regard to child witnesses and prior inconsistent statements, and the omission of similar language from section 115—10, evinces a legislative intent to refrain from allowing the introduction of such statements or testimony in the form of a corroborative complaint. It would have been a simple matter for the legislature to indicate that videotaped statements were admissible under section 115—10. The legislature did not do so. We must, therefore, conclude that section 115—10 of the Code does not contemplate or allow the admission of such evidence.

In his reply brief, defendant notes that People v. Velasco (1991), 216 Ill. App. 3d 578, could be interpreted to stand for a contrary proposition. In Velasco, the complainant in a criminal sexual assault prosecution was a 31-year-old woman with Down’s syndrome. At trial, the State introduced into evidence and played for the jury a videotape of the complainant’s interview with the police. On appeal, the court found that “the trial court improperly admitted the videotape under section 115—10 of the Code, which permits admission of videotape evidence in a ‘prosecution for a sexual act perpetrated upon a child under the age of 13.’ ” (Velasco, 216 Ill. App. 3d at 585, quoting Ill. Rev. Stat. 1989, ch. 38, par. 115—10(a).) The court concluded that section 115—10 was not applicable to the facts of that case since the complainant, at 31 years of age, did not fall within the statute’s express terms. 216 Ill. App. 3d at 585.

The Velasco court, however, provides no analysis and cites no authority, other than the statute itself, in support of its statement that section 115—10 “permits admission of videotape evidence.” As noted above, we interpret section 115—10 differently. We therefore decline to follow the Velasco dictum.

Additionally, we disagree with the State’s contention that this court’s decision in People v. Rocha (1989), 191 Ill. App. 3d 529, is dis-positive of this issue. The issue to be decided in Rocha was whether a three-year-old child complainant, unable to testify because of fear, inability to communicate in a courtroom setting, or incompetence, was “unavailable” within the meaning of section 115—10(b)(2). We answered that question in the affirmative and went on to state that section 115—10 did not violate any right of the defendant to confront the witnesses against him. Rocha, 191 Ill. App. 3d at 539, 543.

In the instant case, there was no question regarding H.G.’s availability to testify. More importantly, Rocha did not involve the use of a child witness’ videotaped statements or testimony. As such, we do not view our decision in Rocha as dispositive of the specific issue presented in this case.

Rather, we agree with defendant that a resolution of this issue should be guided by the reasoning of the Illinois Supreme Court in People v. Bastien (1989), 129 Ill. 2d 64. At issue in Bastien was whether section 106A—2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 106A—2) violated the defendant’s right to confront witnesses against him, as guaranteed by the United States and Illinois Constitutions. (U.S. Const., amend. VI; Ill. Const. 1970, art. I, §8.) Section 106A—2 provided as follows:

“§106A—2. (a) Upon motion of the State at any time before the trial of the defendant begins, the court may order that a child’s oral statement or testimony be recorded. The recording shall be made in the presence of the court, the attorneys for the defendant and for the prosecution and, in addition, may be made in the presence of the operator of the recording equipment, necessary security personnel, and any person who, in the court’s discretion would contribute to the welfare and well-being of the child. The defendant shall be permitted to be present at the making of the recording. Only the attorney for the prosecution or the court may question the child. The court shall rule on evidentiary objections of the attorney for the defendant.
(b) The recording, or portions of the recording, may be admissible into evidence upon motion of either the State or the defendant, provided:
(1) the recording is both visual and aural and is recorded on film or video tape or by other electronic means;
(2) the recording equipment was capable of making an accurate recording, the operator of the equipment was competent, and the recording is accurate and has not been altered;
(3) every voice on the recording and every person present at the making of the recording is identified;
(4) the statement was not made in response to questioning calculated to lead the child to make a particular statement;
(5) the defendant or the attorney for the defendant is afforded the opportunity to view the recording before it is offered into evidence;
(6) the child is available to testify at trial; and
(7) the defendant or the attorney for the defendant is afforded the opportunity to cross examine the child at trial.” Ill. Rev. Stat. 1987, ch. 38, par. 106A—2.

In finding section 106A—2 unconstitutional, the supreme court addressed the danger presented by the delayed cross-examination authorized by the statute. The court noted that the videotaping and the trial would likely take place months apart and, during that time, a child witness would have contact with prosecutors and relatives who could influence the child. The court then concluded that “the statute, by prohibiting contemporaneous. cross-examination, unnecessarily and impermissibly infringes on an accused’s right of confrontation.” (Bastien, 129 Ill. 2d at 77.) The court added that, “Under the terms of the statute, the child witness must be available to testify and to submit to cross-examination at trial; thus, ‘there is little justification for relying on the weaker version’ — the videotaped statement.” (Emphasis in original.) 129 Ill. 2d at 78.

It is also important to note that, while the Bastien court was concerned primarily with the constitutionality of section 106A—2, it was well aware of the existence of other Illinois statutory exceptions to the rule against hearsay. In this regard, the court specifically mentioned sections 115—10 and 115—13 of the Code. (Ill. Rev. Stat. 1987, ch. 38, pars. 115—10, 115—13; Bastien, 129 Ill. 2d at 70.) Nevertheless, after concluding that the videotaped statement authorized by section 106A— 2 was pure hearsay, and although it was clearly aware of the existence of section 115—10, the court stated that its research revealed “no exception to the rule against hearsay recognized by Illinois which would allow the introduction of such hearsay.” (129 Ill. 2d at 74.) If the State’s argument in the instant case was correct, the Bastien court could, and should, have held that the facts in that case fell within the scope of section 115—10. The court, however, did not so hold.

As stated, we believe our resolution of this issue should be guided by Bastien. Here, the State, by the way in which it used the videotaped evidence, did that which the supreme court expressly disallowed in Bastien. Thus, even though we are concerned with the admissibility of evidence pursuant to section 115—10, rather than section 106A—2, we hold that the use of H.G.’s videotaped testimony at trial operated to deny defendant’s right of confrontation.

In People v. Rocha, we opined that the Bastien court could not have “intended to suggest that every out-of-court statement offered into evidence must be subject to contemporaneous cross-examination.” (Rocha, 191 Ill. App. 3d at 543.) This, of course, is true. For the reasons stated above, however, we do believe that the Bastien court did in fact intend to hold specifically that the type of videotaped statements at issue in this case must be subject to contemporaneous cross-examination.

Finally, we do not believe the erroneous admission of this evidence to be merely cumulative in nature and therefore harmless error. We agree with defendant that the evidence was relatively close, in that a resolution of the case basically came down to the jury’s determinations regarding the credibility of defendant and H.G. Moreover, the videotape was clearly an important piece of evidence to the jury, which made four separate requests during deliberations to listen to and view it again. The jury therefore heard and saw H.G.’s account of this incident three times, once by way of her in-court testimony, and twice by way of the videotaped statement. Under these circumstances, we fail to see how this evidence could not have had a prejudicial effect on the jury. Accordingly, we hold that defendant’s conviction must be reversed and the case remanded for a new trial in view of the improper admission of the videotaped statements.

Defendant also raises two other trial-related issues. He contends that he was denied a fair trial due to prosecutorial misconduct and the ineffective assistance of counsel and that he was not proved guilty beyond a reasonable doubt. As to the first contention, these matters are not likely to recur on retrial and need not be further considered. As to the reasonable doubt contention, having reviewed the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found defendant guilty of aggravated criminal sexual assault beyond a reasonable doubt. (People v. Schott (1991), 145 Ill. 2d 188, 203.) Our finding in this regard is intended to protect defendant from the risk of being subjected to double jeopardy and does not constitute in any way an implication as to defendant’s guilt or innocence which would be binding on retrial. People v. Taylor (1979), 76 Ill. 2d 289, 309-10.

For all of the above-stated reasons, the judgment of the circuit court of Ogle County is reversed, and this cause is remanded for a new trial.

Reversed and remanded.

WOODWARD and GEIGER, JJ., concur.


source: Caselaw Access Project

author: JUSTICE MANNING

license: Public Domain

text:
      In re MARRIAGE OF MICHAEL ROPPO, Petitioner-Appellee, and JANE M. ROPPO, n/k/a Jane M. Malanowski, Respondent-Appellant.
    First District (1st Division)
    No. 1 — 90—3419
    Opinion filed October 28, 1991.
    —Modified on denial of rehearing March 3, 1992.

      Pinderski & Pinderski, Ltd., of Palatine (Jerome W. Pinderski, of counsel), for appellant.
    DiTommaso & Berman, P.C., of Oak Brook (Vincent L. DiTommaso, of counsel), for appellee.
   JUSTICE MANNING

delivered the opinion of the court:

This appeal is taken from the circuit court’s denial of the petition of appellant Jane Malanowski to remove her minor son from Illinois pursuant to section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 609(a)). Jane and her new husband, Alan, sought to relocate their residence from Berwyn, Illinois, to Vesper, Wisconsin, and requested leave of the court to remove then three-year-old Joseph Roppo. Jane’s ex-husband, Michael Roppo, opposed the removal of their son, Joseph. At the conclusion of Jane’s case, the trial court granted Michael’s motion for a directed finding and denied the petition. We reverse and remand for the following reasons.

On appeal, Jane contends: (1) that the circuit court failed to apply the proper evidentiary standard as enunciated in In re Marriage of Eckert (1988), 119 Ill. 2d 316, 518 N.E.2d 1041; (2) that the circuit court improperly denied the petition for removal; and (3) that section 609 violates her fundamental right to travel throughout the States.

The petition for removal alleges that Jane “has purchased a home in Vesper, Wisconsin, expects to be employed there on a full-time basis as a medical transcriber and has immediate family members living in that area but none in Chicago.” During the hearing on the petition for removal which was held on October 26, 1990, Jane testified that she and Michael were married on October 4, 1980, in Pittsville, Wisconsin. They soon relocated to Berwyn, Illinois, and thereafter adopted Joseph. The marriage was dissolved on November 8, 1989. Incorporated into the judgment of dissolution of marriage was a written marital settlement agreement. Pursuant to the agreement, custody of Joseph was awarded to Jane and Michael was awarded reasonable visitation. Michael thereafter exercised overnight visitation rights with Joseph commencing Wednesday at 6 p.m. until Thursday at 9 a.m. and weekend visitation rights commencing Saturday at 10 a.m. until Monday at 9 a.m. However, beginning August 9, 1990, following the trial court’s disposition of Jane’s petition to restrict visitation, Michael’s visitation rights were changed to alternate weekends.

Jane stated that she currently resided in Berwyn, Illinois, with her husband and Joseph and that she had been employed as a medical transcriber at Loyola Hospital until the day before the hearing at which time she quit the position. Jane further testified, inter alia, that she had lived in the Pittsville, Wisconsin, area which was approximately 10 miles from Vesper; that she had attended high school in the area; that she had married Michael there; that Michael also had lived in the area and graduated from the high school there; that her parents and siblings and their families lived in the area and Joseph visited with them on a regular basis; and that Michael’s mother lived in Stevens Point, which was approximately 20 miles from Vesper. Jane also stated that she discussed moving to the Vesper-Pittsville area with Joseph and Michael on a few occasions and that during the discussions, Michael never expressed any opposition to having Joseph live or grow up in the area. When asked about her reasons for wanting to move to Vesper, Jane replied that she purchased a three-bedroom house on an acre of land and that “the environment is just totally different from here. There are fewer people ***, less people in class. The school systems are better. Less crime. It’s just a totally different atmosphere than City life.”

Although Jane did not have any employment offers in Vesper, she did not anticipate any difficulty in finding employment because she worked in the area for five years as a medical transcriber, was familiar with the hospitals there, and knew of three openings at the time of the hearing. Neither did Jane envision any visitation problems for Michael if the court granted her petition and she was willing to share the burden and expense of visitation that might be incurred in travel for Joseph. Jane stated that Vesper, Wisconsin, was located approximately 4½ hours from Berwyn. Finally, Jane stated that she believed it would be in her son’s best interest to be raised and to live in Vesper, Wisconsin.

On cross-examination by Michael’s attorney, Jane testified that Alan was employed on a full-time basis as the manager of a warehouse. Although she stated during her deposition that Alan had no job offers for permanent employment in Wisconsin, the situation had changed because her brother, who was a house builder, recently offered Alan seasonal work. During the deposition Jane also stated that she believed Joseph should see his father once a month because more visits were disruptive and it was best for Joseph to settle into his new family and new home; however, during the hearing Jane testified that she thought Joseph should see his father “as often as the guidelines permit” and more than one weekend per month if the court so decided.

When questioned by the minor’s court-appointed attorney, Jane acknowledged that Michael took Joseph to the park and the movies during their visits and that Joseph spent time with his brother and the children of Michael’s new wife. The record also reflects that Michael has a son, Nicholas Roppo, and several stepchildren from his second marriage to Sherri Calaban. Jane also believed that the move to Vesper would enhance Joseph’s and her own general quality of life.

The circuit court found that Jane and Michael were both very good parents with good situations and settings for Joseph. It recognized Eckert as the controlling precedent in removal actions and based thereon determined: (1) that Jane did not have the motive of disrupting the relationship between the father and the child; (2) that Jane did not have the motive to defeat or frustrate visitation; (3) that Michael had no motive to harm Jane or act unreasonably in opposition to the removal and only wanted to continue the close relationship with the child; and (4) that Michael had adhered to the current visitation schedule of alternate weekends and one day during the week and that he had previously adhered to the visitation schedule of every weekend and one day during the week.

In looking at the likelihood of enhancing the general quality of life, the court found that: (1) Jane wanted to return to her roots; (2) the area could be a very beautiful, wonderful area; (3) there is no question but that the small town is different from Berwyn or the Chicagoland area; (4) the child would be in a rural school rather than the Catholic school in Berwyn, but there was no testimony about the quality of either school; (5) the nice house in Vesper is different from a three flat in Berwyn on a lot; (6) there are relatives for the child to play with in Vesper and a half brother and stepchildren to play with in Illinois; (7) Jane had no job in Wisconsin; (8) Jane’s husband Alan has a job in Illinois and the family is economically dependent on that job, and further, this is not a situation where Alan is being transferred to Wisconsin; (9) Jane had a job which she recently quit; (10) Michael and Joseph enjoyed an extremely good relationship; and (11) there are alternatives in Illinois such as rural Chicagoland. The court concluded that Jane had not met her burden of proving that the move would enhance the general quality of life for the child and denied the petition for removal.

Section 609 of the Act provides, in relevant part:

“(a) The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal. When such removal is permitted, the court may require the party removing the child or children from Illinois to give reasonable security guaranteeing the return of such children.
***
The State of Illinois retains jurisdiction when the minor child is absent from the State pursuant to this subsection.” Ill. Rev. Stat. 1987, ch. 40, par. 609.

Court approval is required where minor children subject to the jurisdiction of the court are to be removed permanently from the State. Section 609 authorizes the custodial parent to obtain court permission to remove the minor child from Illinois where the permanent removal is in the best interests of the children.

The current statutory provision clarifies that the burden of proof in removal actions is on the party seeking the removal. However, decisions construing the prior statutory provisions continue to be applicable to the construction of the current section. To that extent, circumstances which the courts have deemed relevant in deciding requests for removal based upon the best interest standard include improved employment opportunities (Tandy v. Tandy (1976), 42 Ill. App. 3d 87, 355 N.E.2d 585); improved health and welfare of the child (Hickey v. Hickey (1975), 31 Ill. App. 3d 257, 333 N.E.2d 271); and the relative quality of educational facilities available to the child (Gray v. Gray (1978), 57 Ill. App. 3d 1, 372 N.E.2d 909). This court has also found that the custodial parent’s mere desire to move, without more, is insufficient to meet the burden of proof that removal is in the best interests of the child. See Quirin v. Quirin (1977), 50 Ill. App. 3d 785, 365 N.E.2d 226.

A three-part test for determining whether removal should be allowed was established in the case of In re Custody of Arquilla (1980), 85 Ill. App. 3d 1090, 407 N.E.2d 948. The court enunciated the test as: (1) whether the general quality of life for both the parent and the child will be improved as a consequence of the move; (2) whether the motives of the custodial parent in seeking removal are proper; and (3) whether the noncustodial parent will continue to be able to exercise reasonable visitation. However, there arose a difference of opinion on this issue among the districts of the Illinois Appellate Court. In In re Marriage of Burgham (1980), 86 Ill. App. 3d 341, 408 N.E.2d 37, the court developed a more liberal test and stated that a prima facie showing is made when a proper custodian: (1) states a desire to remove the child; (2) shows a sensible reason for the move; and (3) makes at least a superficial showing that the move is consistent with the child’s best interests. Some of the other districts of the Illinois Appellate Court agreed with Burgham. See In re Marriage of Brady (2d Dist. 1983), 115 Ill. App. 3d 521, 450 N.E.2d 985; In re Marriage of Lichtenstein (5th Dist. 1986), 139 Ill. App. 3d 881, 487 N.E.2d 1293.

Michael urges this court to follow the Burgham test. However, the Illinois Supreme Court in Eckert (119 Ill. 2d 316, 518 N.E.2d 1041) rejected the liberal test set forth in Burgham as being contrary to the 1982 amendment of section 609 which placed the burden of proof on the party seeking removal. The Eckert court stressed that much of the decisional law which predates the 1982 amendments, as well as other decisions, provides factors to aid the trial court’s determinations under the “best interests” test. The court enunciated that “[a] determination of the best interests of the child cannot be reduced to a simple bright-line test, but rather must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. [Citations.] There are, however, several factors which may aid a trial court in determining the best interests of the child.” Eckert, 119 Ill. 2d at 326.

In Eckert, our supreme court stated that in deciding upon a petition for removal, the trial court should consider the following factors:

(1) whether the proposed move will enhance the general quality of life for both the custodial parent and the child or children;
(2) whether the proposed move is a ruse by the custodial parent to defeat or frustrate visitation;
(3) the motives of the noncustodial parent in resisting removal;
(4) the visitation rights of the noncustodial parent; and
(5) whether a realistic and reasonable visitation schedule can be reached if the move is allowed.

(See Eckert, 119 Ill. 2d at 326-27; accord In re Marriage of Gratz (1989), 193 Ill. App. 3d 142, 548 N.E.2d 1325; In re Marriage of Kutinac (1989), 182 Ill. App. 3d 377, 538 N.E.2d 862.) Additionally, in Arquilla (85 Ill. App. 3d at 1093), this court found that so long as the trial court is satisfied with the motives of the custodial parent in seeking the move and reasonable visitation is available to the remaining parent, removal should be granted. Eckert defines a reasonable visitation schedule as “one that will preserve and foster the child’s relationship with the noncustodial parent.” Eckert, 119 Ill. 2d at 327.

It is well settled that the reviewing court should not disturb the trial court’s determination of what is in the best interests of the child in a removal action unless such determination has resulted in manifest injustice or is against the weight of the evidence. (Eckert, 119 Ill. 2d at 328, citing Quirin, 50 Ill. App. 3d 785, and Hickey v. Hickey, 31 Ill. App. 3d 257, 333 N.E.2d 271.) In the present case, after applying the foregoing principles of law, being especially guided by the principles of fairness and justice, and the competing interests involved, and after having reviewed the record below, we do not find that these factors, when considered individually and as a whole, support the conclusion that removal of Joseph to Vesper was not in his best interest. We thus believe the trial court’s finding that Jane failed to sustain her burden of proof that removal of the child from the State is in the child’s best interest is against the manifest weight of the evidence.

First, there was an express finding by the trial court that neither of the parents’ motives in seeking or resisting removal was improper, and we have found nothing in the record to the contrary. Therefore, we will consider only the first, fourth and fifth factors set forth in Eckert.

In examining what will likely enhance the general quality of life for the child, it is permissible for the trial court to analyze the benefits to be derived by the custodial parent who desires to move because the existence of such direct benefits will indirectly enhance the quality of life enjoyed by the child involved. In re Marriage of Zamarripa-Gesundheit (1988), 175 Ill. App. 3d 184, 529 N.E.2d 780.

In Zamarripa-Gesundheit, the appellate court found that the petitioner’s petition for removal was improperly denied by the trial court. The facts there revealed that the petitioner’s new husband wanted to move to Seattle because he had visited the city on a few occasions and liked it. The income and employment opportunities for petitioner and her husband were comparable to those in Illinois. Similarly, the child’s general quality of life would not be directly enhanced because the move would place her in the same educational and financial situations. However, in reversing the trial court’s decision, this court found that the move would enhance the petitioner’s quality of life and that the respondent would still be able to maintain a close relationship with his daughter by having extended visitation during the summer and school breaks.

In In re Marriage of Gratz (193 Ill. App. 3d 142, 548 N.E.2d 1325), we reversed the trial court’s denial of petitioner’s petition to remove her child to Arizona, finding that the petitioner presented abundant evidence that the move would enhance the general quality of life for her and her son. In that case, although the respondent would no longer enjoy visits with his son every weekend because of the distance involved, we determined that under the new visitation schedule with increased days during the summer, the number of days would be substantially the same and that no evidence was presented that lack of regular contact invalidates a fostering relationship. To the contrary, the court there reasoned that given the length of the summer visits, the child would spend even more time with siblings and friends.

We reached the same result in In re Marriage of Taylor (1990), 202 Ill. App. 3d 740, 559 N.E.2d 1150, and In re Marriage of Carlson (1991), 216 Ill. App. 3d 1077, 576 N.E.2d 578. In Taylor, we concluded that where a move significantly enhances the general quality of life for the wife, the custodial parent, it therefore indirectly beneficially affects the child’s quality of life. (Taylor, 202 Ill. App. 3d at 745.) In Carlson, we reasoned that a determination of the best interest of the child depends largely on whether the move is likely to enhance the general quality of life of the children and their mother. Similarly, in In re Marriage of Shelton (1991), 217 Ill. App. 3d 26, 576 N.E.2d 862, we affirmed the trial court’s grant of petitioner’s petition for removal, finding that the trial court’s decision that the move to Florida was in the best interests of the children was not against the manifest weight of the evidence. The evidence presented there established that the children’s lifestyle in both Florida and Illinois would be comparable. We held that since petitioner’s husband, who was unemployed in Illinois, subsequently became employed in Florida, the family’s financial situation was enhanced and thus their general quality of life would be enhanced.

Here, Jane testified that the move to Vesper would not only benefit Joseph, who would be living closer to her family and in a more spacious home and safer environment, but it would also benefit Jane since she would be happier and more fulfilled living in Vesper near her family and familiar surroundings. Although there was little, if any, evidence about the current school and educational circumstances for Joseph in Vesper, Jane stated that she and Michael had grown up in the area and attended school there. She also testified that the schools were better and the classes were smaller. Michael attempts to trivialize Jane’s reasons for moving as a mere desire to move, and during cross-examination, Michael’s attorney questioned her motives for quitting her job in Illinois and the fact that Alan had gainful employment in Illinois but speculative employment in Vesper. However, Jane testified that her job prospects were very promising in Vesper, that three positions were available at the time of the hearing and that her brother was willing and able to hire Alan for construction work. Moreover, Jane stated that she and Alan had already purchased a home in Vesper while she lived in a three-family apartment building in Illinois. She stated that her parents and siblings and their families lived close by, that Michael’s mother lived in the area and that Joseph had maintained regular visitation with Jane’s relatives in the past year.

Based upon the foregoing cases, we find that where Jane’s general quality of life is enhanced, that of Joseph is, in the least, indirectly beneficially enhanced. We believe that the evidence below, contrary to the finding of the circuit court, establishes that Jane sustained her burden of proof that the move to Vesper would enhance her general quality of life. Thus, we conclude that the circuit court’s decision denying Jane’s petition for removal in reliance on the general enhancement factor was against the manifest weight of the evidence and that Michael was not entitled to a directed finding at the conclusion of Jane’s case.

We are mindful of the caveat in Eckert that a bright-line test is improper; therefore, we must be careful not to overemphasize any one factor. To that extent, we now look at the fourth and fifth factors, as an analysis which may be helpful to the trial court on remand.

The record clearly establishes that Michael exercised his visitation rights with Joseph, that he saw Joseph on a regular basis and that he seemingly fostered a relationship between Joseph and Michael’s new family which included his wife, Sherri, his son Nicholas and stepchildren. The circuit court stated that Joseph stayed with Michael on alternate weekends and one evening during the week and that he had previously stayed with him every weekend. However, the court did not look at a reasonable and realistic visitation schedule in the event the removal petition was granted. According to our calculations, at the time of the instant petition, Michael spent approximately 78 days during the year with Joseph. Although the record does not contain a proposed schedule, Jane testified that given the travel involved, one weekend every month seemed reasonable to her. There was no mention of holidays or summer vacation. Additionally, Michael presented no testimony whatsoever and as a result the record does not reflect his work schedule. Jane testified that she would share in the expenses incurred in the travel from Vesper to Illinois and would travel with Joseph, if necessary.

Our supreme court has determined that “[w]hen removal to a distant jurisdiction will substantially impair the noncustodial parent's involvement with the child, the trial court should examine the potential harm to the child which may result from the move. [Citations.]” (Eckert, 119 Ill. 2d at 328.) However, in balancing all of the competing interests involved, the Eckert court further reasoned that if the best interests of the child would not be affected by a move to another State, the custodial parent should be free to move. Here, as mentioned above, we agree with the trial court’s finding that Jane’s reason for the move is neither frivolous, unpersuasive nor inadequate.

Based on the precedent in removal actions as mentioned previously, it is not uncommon to supplement the weekend or alternate visitation schedule of the noncustodial parent with monthly visits and longer visitation of weeks or even months during school breaks and the summer vacation. Again, according to our calculations, assuming arguendo that Joseph spent one weekend of each month during the school year and two months during the summer with Michael, the amount of visitation days would remain the same. Neither does the move to Vesper substantially impair Michael’s visitation rights with respect to distance since travel time by automobile is approximately four hours and the move is not to some distant jurisdiction. We find that as the circuit court did not consider whether a realistic and reasonable visitation schedule could be fashioned to preserve Michael’s rights, on remand, it is directed to do so when reconsidering the removal petition and award visitation rights to Michael in accordance therewith, if appropriate.

Accordingly, the order of the trial court granting Michael’s motion for a directed finding and denying Jane’s petition for removal is reversed and the cause is remanded with directions to proceed as though the motion had been denied by the trial court. We reach this decision because we are guided by the overall and underlying general purpose of the Act and, as argued by Michael, we believe that it is important that the child maintain significant contact with both parents following the divorce. While it is important that Michael continue to spend time with Joseph and that Joseph continue the relationship with his brother and Michael’s stepchildren, all of whom live in Illinois, it is equally important that Joseph adjust to his new family life with Jane and his stepfather and spend time with his maternal relatives, most of whom apparently live in Wisconsin.

In the final analysis, the trial court’s examination of a removal petition should be guided by the policies of the Act, one of which is to “ ‘secure the maximum involvement and cooperation of both parents regarding the physical, mental, moral and emotional well-being of the children during and after the litigation.’ ” (In re Marriage of Eckert, 119 Ill. 2d at 328, quoting Ill. Rev. Stat. 1987, ch. 40, par. 102(7).) That policy is best served when, in addition to a favorable determination of all of the Eckert factors, the court considers the aspects of cooperation of both parents in achieving as reasonable an expectation of normalcy and family life for the child involved as can be achieved following a divorce, which includes adjustments to stepparents in the event of the remarriage of one or both parents.

Finally, because of our disposition of this case, we need not address Jane’s assertions that section 609 may violate her fundamental right to travel throughout the States.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CAMPBELL and O’CONNOR, JJ., concur.


author: JUSTICE LUND

text:
      In re MARRIAGE OF JILL BROWN, f/k/a Jill Harms, Petitioner-Appellant, and THOMAS HARMS, Respondent-Appellee.
    Fourth District
    No. 4 — 91—0549
    Opinion filed February 20, 1992.
    Balbach & Fehr, P.C., of Urbana, for appellant.

      Reino C. Lanto, Jr., of Wilson & Lanto, of Rantoul, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Champaign County entered April 25, 1991, dismissing the “Petition for Registration of Foreign Judgment and for Supplemental Relief” (registration petition) and from the June 25, 1991, order denying a motion for reconsideration. Jill Brown, f/k/a Jill Harms, is petitioner, and her ex-husband Thomas Harms is respondent.

Petitioner caused the registration petition to be filed on April 26, 1990. The registration petition stated the petitioner’s residence was in Dale City, Virginia, and alleged respondent was living in Washington, D.C., with his legal residence shown as Urbana, Illinois.

The registration petition basically alleged the marriage of Thomas Harms and Jill Harms was dissolved by a German court on October 17, 1984, but that petitioner commenced a dissolution action in Champaign County on March 30, 1984, which was not pursued because of respondent’s request for a continuance because of his then active military duty in Germany.

The registration petition also referred to a portion of the German court’s order and the approved agreement of the parties which reserved the determination of military retirement benefits to an American court.

Issue

The issue on appeal is whether the trial court erred in dismissing the registration petition because of lack of subject-matter jurisdiction.

Procedural History

On March 30, 1984, in Champaign County case No. 84—C—290, Jill Harms filed a petition for dissolution of marriage. Thomas Harms was respondent. On May 7, 1984, a letter dated April 30, 1984, from Lieutenant Colonel Thomas E. Harms to the circuit clerk of Champaign County was filed in case No. 84—C—290. This letter provided as follows:

“Having received only this day my wife’s (Jill M. Harms) petition for the dissolution of our marriage, I am responding directly to the court.
Request a stay on any proceedings on this matter until July 1984. As the petition points out, I am a Lieutenant Colonel in the United States Air Force nearing the end of a five year tour of duty in Germany. I am returning to the United States on 30 June 84 and am required to report for duty at the Pentagon not later than 31 July 84. Therefore, it is possible for me to be present at most any time during the month of July. I will be staying with my parents, which is also my permanent home address:
Mr. & Mrs. W. E. Harms 2206 Vawter Street Urbana, Illinois 61801
While I’m still in Germany, any correspondence can reach me at the following address:
Lt Col Thomas E. Harms
BOX 62
APO NY 09021
Again, request your favorable consideration for deferral of proceedings until I can be present to personally defend and represent myself.”

The next, and last, entry on the docket in case No. 84—C—290 provided: “April 9, 1987 On Court’s own motion, cause stricken for want of prosecution, unpaid costs remitted.”

The marriage of petitioner and respondent was dissolved by a German court on October 17, 1984, at which time the parties agreed to child custody, child support, and property division. Both parties were living in Germany at this time. The German court order provided:

“III.
Pension Equalizations:
The parties have agreed that a pension equalization shall proceed between the parties by way of the law of obligations (contracts). A regulation under U.S. law that possibly put the wife into a better position is specifically reserved to the wife. This agreement is appropriate and reserves to the parties their rights for pension equalization, it therefore was agreed to by the Family Court.”
The agreement part of the German proceedings provided:
“4. A claim for support of the wife who is gainfully employed does not exist at this time. The assertion of support rights in case of the wife’s need remains reserved.
5. The parties are agreed that there is to be a pension equalization between them by way of the law of obligations (contract).
Possible further rights of the wife under U.S. law remain reserved.”

The April 26, 1990, registration petition followed. On April 25, 1991, after various motions, memorandums, and arguments by both sides, the trial court entered a written order, which provided in part: “[I]t is hereby ordered, adjudged and decreed that the Petition for Registration of Foreign Judgment and for Supplemental Relief is dismissed with prejudice per CCP 2—619 [(Ill. Rev. Stat. 1989, ch. 110, par. 2— 619)].” No reason for the ruling is given in the order.

The trial court, at the March 20, 1991, hearing on the motion to dismiss, expressed its concern with subject-matter jurisdiction, stating: “It’s not apparent to me,” and: “[I]f this were an Indiana divorce, why would I have subject matter jurisdiction to start dealing with issues other than children reserved in an Indiana divorce?” The court stated:

“MR. FEHR [Counsel for petitioner]: No. sir, it doesn’t.
THE COURT: And I’m looking for some help of why it is that I’m urged to have subject matter jurisdiction to resolve this issue. It’s not apparent to me.
MR. FEHR: Your Honor, all I can come up with is the fact that Colonel Harms is a resident and has been a resident all his life of Illinois.
THE COURT: I may have personal jurisdiction until the end of time. I’m talking about subject matter jurisdiction.
If this were an Indiana divorce, why would I have subject matter jurisdiction to start dealing with issues other than children reserved in an Indiana divorce?
MR. FEHR: I’m [sic] believe—I’m sorry, Your Honor. I believe you have subject matter jurisdiction by virtue of the fact you have personal jurisdiction over Colonel Harms. It’s Colonel Harms’ right to this pension that we’re considering, and by virtue of the fact that he has chosen to subject himself to the jurisdiction in Illinois, and this, this is probably the only court in Illinois, Illinois court, it’s probably the only court that has any ability to deal with these issues.
THE COURT: Certainly the German court does.
MR. FEHR: Except they chose not to do that.
It’s my understanding they felt they did not have jurisdiction to consider U.S. military pension.
THE COURT: I don’t see that set forth in here. I see it reserved, which we do all the time.
MR. FEHR: Uh-huh.
THE COURT: I’m not sure I want German courts deciding when I reserve allocation of, of pension rights pending some further action, I’m not sure I want a German court to just pick up and start deciding what I’ve reserved.
I’m, I’m, I personally am at a loss as to why I’m urged to have jurisdiction to deal with the subject matter of this dispute. That’s what I’m looking for help with. If there is some theory upon which I’m urged to have that jurisdiction, I would like to have it succinctly articulated.”

From the court’s comments and the resulting order, it is apparent that the dismissal was based upon the conclusion that subject-matter jurisdiction did not exist.

The Law

“Subject matter jurisdiction is conferred on courts by the Constitution or by legislative enactment. (Knaus v. Chicago Title & Trust Co. (1937), 365 Ill. 588, 592.) Article VI, section 9, of the 1970 Constitution provides: ‘Circuit Courts shall have original jurisdiction of all justiciable matters except when the Supreme Court has original and exclusive jurisdiction ***. Circuit Courts shall have such power to review administrative action as provided by law.’ (Emphasis added.) (Ill. Const. 1970, art. VI, sec. 9.) This court has held that when a court is in the exercise of special statutory jurisdiction, that jurisdiction is limited to the language of the act conferring it and the court has no powers from any other source. (Central Illinois Public Service Co. v. Industrial Com. (1920), 293 Ill. 62, 65-66.) In the exercise of special statutory jurisdiction, if the mode of procedure prescribed by statute is not strictly pursued, no jurisdiction is conferred on the circuit court. See Demchuk v. Duplancich (1982), 92 Ill. 2d 1, 6-7; Avdich v. Kleinert (1977), 69 Ill. 1, 6; Fitzgerald v. Quinn (1896), 165 Ill. 354, 360.” Fredman Brothers Furniture Co. v. Department of Revenue (1985), 109 Ill. 2d 202, 210, 486 N.E.2d 893, 895-96.

.1 A court’s jurisdiction in a dissolution of marriage action is conferred only by statute, and it must act within the statutory grant and may not rely upon its general equity powers. In re Marriage of Garrison (1981), 99 Ill. App. 3d 717, 720-21, 425 N.E.2d 518, 521; Strukoff v. Strukoff(1979), 76 Ill. 2d 53, 60, 389 N.E.2d 1170, 1172-73.

Orders entered by a court lacking subject-matter jurisdiction are void, and subject-matter jurisdiction cannot be conferred by consent of the parties. Zalduendo v. Zalduendo (1977), 45 Ill. App. 3d 849, 853, 360 N.E.2d 386, 389; Cash v. Maloney (1949), 402 Ill. 528, 534, 84 N.E.2d 390, 393; Werner v. Illinois Central R.R. Co. (1942), 379 Ill. 559, 566, 42 N.E.2d 82, 85.

Judgments of foreign countries cannot be registered under the Uniform Enforcement of Foreign Judgments Act (UEFJA) (Ill. Rev. Stat. 1989, ch. 110, pars. 12—601 through 12—617). In re Marriage of Agathos (1990), 194 Ill. App. 3d 168, 170, 550 N.E.2d 1161, 1162; Zalduendo, 45 Ill. App. 3d at 853-54, 360 N.E.2d at 389-90.

In her appeal, petitioner argues that she has rights under the Uniform Services Former Spouses’ Protection Act (Spouses Protection Act) (10 U.S.C. §1408(4)(B), at 397 (1988)), specifically paragraph 1408(4)(B), which, by an agreement approved by the German court, are reserved for determination by a court in the United States of America. She further contends that respondent’s legal residence in Champaign County, Illinois, requires that the right be pursued in the State court of that county. The filing of the registration petition apparently is an attempt to invoke jurisdiction of the circuit court of Champaign County so that court will make what amounts to a marital property division determination.

Congress enacted the Spouses’ Protection Act (Pub. L. No. 97—252, 96 Stat. 718, 730-38 (1982)) to permit courts to treat pay of military personnel in accordance with the law of the jurisdiction of the court. (See In re Marriage of Dooley (1985), 137 Ill. App. 3d 401, 404, 484 N.E.2d 894, 896.) Military pensions may be treated as marital property under Illinois law and are subject to the division provisions of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503). (In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 755-57, 475 N.E.2d 1333, 1335-36.) It necessarily follows that had the marriage of the Harmses been dissolved by the circuit court of Champaign County in case No. 84—C—290, the military pension would have been subject to possible division.

In this appeal, petitioner argues that she has personal jurisdiction over the respondent and has a right to an interest in his military pension under the provisions of Federal law, which interest should be determined by the Illinois courts. She appears to equate personal service with subject-matter jurisdiction.

Respondent, on the other hand, says no subject-matter jurisdiction exists and, in any case, petitioner is barred by the statute of limitations and the res judicata effect of the termination of Champaign County case No. 84 —C—290.

We first address the issue of res judicata. Supreme Court Rule 273 provides:

“Unless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” 134 Ill. 2d R. 273.

Section 13—217 of the Code of Civil Procedure (Code) provides, in relevant part, if “the action is dismissed for want of prosecution *** plaintiff *** may commence a new action within one year or within the remaining period of limitation, whichever is greater.” (Ill. Rev. Stat. 1989, ch. 110, par. 13—217.) Illinois decisions have held this section is one which “ ‘otherwise specifies’ ” in terms of Rule 273. (Olson v. Dwinn-Shaffer & Co. (1983), 114 Ill. App. 3d 925, 927, 449 N.E.2d 882, 884.) Olson states:

“Moreover, it is clear that a dismissal for want of prosecution in Illinois is considered not to be an adjudication on the merits, not to prejudice the case of the party against whom it is entered, and not to act as a bar to a subsequent suit on the same issues.” (Olson, 114 Ill. App. 3d at 927, 449 N.E.2d at 884.)

(See also Franzese v. Trinko (1977), 66 Ill. 2d 136, 361 N.E.2d 585; Wold v. Bull Valley Management Co. (1981), 97 Ill. App. 3d 516, 423 N.E.2d 201; O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 420 N.E.2d 425.) Respondent does not have a defense of res judicata.

Respondent contends petitioner had a claim to the military pension at the time of the March 30, 1984, filing in Champaign County case No. 84— C—290, and at least by the October 1984 German judgment. No action to enforce the military pension interest was commenced between October 1984 and the April 26, 1990, filing of the registration petition, a period of over five years. Respondent suggests that section 13—205 of the Code is the applicable limitation. That section provides:

“Five year limitation. Except as provided in Section 2—725 of the ‘Uniform Commercial Code’, approved July 31, 1961, as amended, and Section 11—13 of ‘The Illinois Public Aid Code’, approved April 11, 1967, as amended, actions on unwritten contracts, expressed or implied, or on awards of arbitration, or to recover damages for an injury done to property, real or personal, or to recover the possession of personal property or damages for the detention or conversion thereof, and all civil actions not otherwise provided for, shall be commenced within 5 years next after the cause of action accrued.” Ill. Rev. Stat. 1989, ch. 110, par. 13-205.

Petitioner objects to the consideration of the limitation argument because the trial court did not rule on it. She further contends that the limitations should not start to run until the pension becomes payable. Of more significance is her suggestion that the agreement entered into by the parties of the German order was a written agreement—thus making section 13—206 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 13— 206), the 10-year limitation provision, applicable. Because of our following decision finding that subject-matter jurisdiction did not exist, we decline further comment on respondent’s limitation contention.

Conclusion

Regardless of the apparent harshness of our decision, we conclude that subject-matter jurisdiction did not exist in the present circuit court proceedings. As we have stated, marriage dissolution jurisdiction is statutory, now based upon the Dissolution Act (Ill. Rev. Stat. 1989, ch. 40, pars. 101 through 802). Commencement of an action under the Dissolution Act requires the filing of a petition for dissolution of marriage or for a legal separation. (Ill. Rev. Stat. 1989, ch. 40, par. 403.) Inherent within this provision is the existence of a marriage.

The lack of jurisdiction to enforce a marriage dissolution decree of a foreign country does not prevent us from giving recognition to the dissolution. (See Clubb v. Clubb (1949), 402 Ill. 390, 399, 84 N.E.2d 366, 371; Zalduendo, 45 Ill. App. 3d at 854-55, 360 N.E.2d at 390.) Thus, the German court’s termination of the marriage should be recognized by the Illinois courts. As no marriage now exists between the parties, any petition under section 403 of the Dissolution Act (Ill. Rev. Stat. 1989, ch. 40, par. 403) would necessarily contain a false allegation. Thus, we can find no statutory authority under the Dissolution Act which will allow petitioner to come within its coverage. Not being able to come within the Act deprives the trial court of the jurisdiction of subject matter normally provided by a filing under the Act.

We are concerned that this decision leads to an inequitable result. It is apparent that the litigants in the German court proceedings recognized that Jill Harms (n/k/a Jill Brown) might well be entitled, under the laws of the United States, to a part of Thomas Harms’ military pension. It appears the result of our opinion may deprive her of that entitlement.

We doubt that State courts of this country which hear marriage dissolutions reserve the allocation of a military pension, or other marital property, for purposes of assigning that allocation responsibility to the courts of another State. Many States, including Illinois, have adopted acts similar to the Uniform Marriage and Divorce Act (9A U.L.A. 147 (1973)), which includes (as does our Act) the concept that one court consider all factors set forth in section 503 of the Dissolution Act, and then allocate all marital property. Piecemeal allocation by different courts would appear to interfere with the fair distribution of marital assets.

The present fact situation may be unique but, because of the ever-increasing multinational character of our world society, perhaps it is time to carefully consider a legislative scheme allowing for jurisdiction in cases similar to the one now before us. Because of the complexity of the problem, it may be that such legislation should be developed by those who prepare uniform law proposals.

Affirmed.

KNECHT and COOK, JJ., concur.


author: PRESIDING JUSTICE GREEN

text:
      In re APPLICATION OF THE COUNTY COLLECTOR FOR DELINQUENT TAXES, FOR AT LEAST FIVE YEARS PRIOR TO 1987 (J & J Partnership, Petitioner-Appellee, v. Laborer’s Local 703, Respondent-Appellant).
    Fourth District
    No. 4 — 91—0534
    Opinion filed February 20, 1992.

      David A. Fernandes, of Johnson, Ryan & Fernandes, of Urbana, for appellant.
    Stephen J. LeSeuer, of Keller & LeSeuer, of Champaign, for appellee.
   PRESIDING JUSTICE GREEN

delivered the opinion of the court:

This dispute involves a certain tract of real property, located in Champaign County, owned by respondent Laborer’s International Union Local No. 703 (Local 703), and purchased at a scavenger tax sale on May 16, 1988, by petitioner J&J Partnership (J&J). (See Ill. Rev. Stat. 1987, ch. 120, par. 716a.) On October 20, 1988, J&J filed a petition for issuance of a tax deed, and an amended petition was filed on December 7, 1989. The court denied a motion by Local 703 to dismiss the petition and, on March 22, 1991, entered an opinion and judgment which ordered the tax deed be issued. Local 703 has appealed. We reverse.

Little dispute exists as to the facts, most of which were agreed upon by the parties. The time within which Local 703 could redeem from the sale expired February 17, 1989. However, prior to that date, on January 20, 1989, the county clerk of Champaign County issued a certificate of redemption to Local 703 in regard to the property sold. Section 235a of the Revenue Act of 1939 (Act) requires that in order to redeem from a scavenger sale, an owner “shall” pay “an amount equal to all delinquent taxes.” (Ill. Rev. Stat. 1987, ch. 120, par. 716a.) The term “taxes” includes penalties, interests or costs imposed. (Ill. Rev. Stat. 1987, ch. 120, par. 482(11).) Here, by virtue of a purported agreement between Local 703 and the State’s Attorney, county clerk, and county collector (all of Champaign County), Local 703 was permitted to redeem by paying (1) the county the total unpaid taxes on the property ($6,768.86); and (2) to J&J (a) the sum of $70, the amount for which J&J made the purchase, and (b) the sum of $308.56 for interest and court costs. This purported agreement permitted Local 703 to redeem without paying the county clerk the interest and penalties in a sum in excess of $8,000 which had accrued under the Act.

Local 703 relied upon the validity of the certificate of redemption as a defense to J&J’s request for a tax deed. In J&J’s amended petition for deed, it requested the trial court find the certificate of redemption was invalid. That court made that determination and then ordered the tax deed to issue. The propriety of that judgment depends almost entirely upon the validity of the certificate of redemption.

In ruling the redemption certificate was invalid, the trial court noted that section 216a of the Act lists the amount of interest that “shall” be paid to redeem property following tax sales. (Ill. Rev. Stat. 1989, ch. 120, par. 697a.) The trial court reasoned that, since the word “shall” is used, the Act requires the repayment of “[a]ny tax, special assessments or costs, interest or penalty imposed upon property” (Ill. Rev. Stat. 1989, ch. 120, par. 482(11)) in redeeming the property, and neither the county collector nor the State’s Attorney, acting on behalf of the county, has the power to compromise the redemption amount owed. The court indicated this was so even though it considered that the tax purchaser, J&J, had been made whole by the payments made under the redemption agreement.

We conclude the State’s Attorney has inherent power to compromise as to the sums which the county clerk is to receive to effectuate a redemption from a scavenger sale pursuant to section 235a of the Act. That is what the purported agreement did here. J&J received from the redemption all to which it would have been entitled even if Local 703 had paid the full statutory amount to the county clerk.

Our holding in regard to the inherent power of the State’s Attorney begins with consideration of the cases of Channahon Park District v. Bosworth (1986), 145 Ill. App. 3d 820, 495 N.E.2d 1367, and People ex rel. Thompson v. Anderson (1983), 119 Ill. App. 3d 932, 457 N.E.2d 489. Both cases concern settlements between taxpayers and State’s Attorneys as to amounts of taxes owed, after those taxes had been paid under protest and the taxpayers had filed objections to the applications of the county collector for judgments for the unpaid taxes on their properties. Then, and now, section 194a of the Act has stated when such objections are filed, the court must hold a conference between the State’s Attorney and any objector, and “[i]f no agreement is reached at the conference,” upon request of any party, set the matter for hearing. (Ill. Rev. Stat. 1989, ch. 120, par. 675a.) Section 194a then sets forth that any agreements reached between the objector and the State’s Attorney shall be filed with the court. No provision of the Act makes any similar recitation directly indicating a similar power of the State’s Attorney to make settlements as to the amount to be paid to taxing units in order to redeem from a scavenger sale.

In Bosworth, the court explained that the State’s Attorney, as the legal representative of all taxing units in the tax collecting process, “should and does have the power and the authority to bind the units represented unless it can be shown his representation was inadequate.” Bosworth, 145 Ill. App. 3d at 825, 495 N.E.2d at 1370.

In Anderson, the court noted: “the State’s Attorney is a part of the executive branch of government vested with the discretionary powers of an executive officer” and that “the executive powers of the State’s Attorney as the legal representative of county government correspond to those of the Attorney General as the chief legal officer of the State.” (Anderson, 119 Ill. App. 3d at 939, 457 N.E.2d at 493.) The court said:

“In an action like the one before us, where multiple units of government have an interest in the outcome and where the county collector is the petitioning party, the public interest is best served by recognizing the authority of the State’s Attorney to control this litigation on behalf of the collector, and all other taxing bodies affected. In other words, this was not an ordinary attorney-client situation, and the county board was not the ‘client’ in any event. The State’s Attorney as an elected public official had a duty to conduct this litigation and had express authority to enter into a compromise agreement without the approval of any of the taxing units that might ultimately be affected. To the extent the trial court ruled to the contrary, that ruling was erroneous.” Anderson, 119 Ill. App. 3d at 939, 457 N.E.2d at 493.

While the language of section 194a does recite a power in the State’s Attorney to compromise the amount to be collected from objecting taxpayers, no direct grant of such authority is made in the Act. Rather, the language used more nearly indicates a recognition of the existence of that power. Consistent with such an interpretation is the language in Bosworth and Anderson which speaks of the powers of the State’s Attorney in tax cases in expansive terms. Our conclusion that the State’s Attorney has inherent power to compromise the amount to be paid to go to taxing units from a redemption from a scavenger is based upon the similarity between governmental interests involved in the proceeding giving rise to this litigation and those in Bosworth and Anderson.

The provisions of section 235a of the Act, which require an owner in redeeming to not only make payments to reimburse the tax sale purchaser for the purchase price plus interest thereon but also to pay unpaid taxes with interest and costs to reimburse the taxing bodies through the county clerk, are unique. Ordinarily, to redeem after a judicial sale, the property owner only has to make whole the purchaser at the judicial sale. (See Ill. Rev. Stat. 1989, ch. 110, par. 12—122.) In In re Application of Rosewell (1983), 97 Ill. 2d 434, 444-45, 454 N.E.2d 997, 1001-02, the supreme court discussed the amendment to section 235a of the Act (Pub. Act 81-1076, eff. July 1, 1980 (1979 Ill. Laws 4091, 4093)), which required the full payment for redemption as described above. That court noted that prior to the amendment, as with other judicial sales, an owner could redeem by merely making the purchaser at the sale whole. The court explained that prior to the amendment, owners of blighted property often defaulted for several years and then had someone repurchase the property at a scavenger sale for a small price, destroying the tax lien and then reselling it to them. The supreme court described the amendment as one of two which were designed to close a loophole.

Allowing the State’s Attorney to enter into agreement which could compromise the tax revenue available from redemptions from scavenger sales is just as logical as to allow him or her to compromise the revenue that may come in from the judgment which gives rise to a tax lien. In either case, the position of the taxing units may be enhanced by compromise. When the ability to get a judgment for unpaid taxes is in doubt, a compromised amount may be better than none. Here, the redemption amount obtained would certainly have been better for the taxing districts than if no redemption had taken place, J&J had obtained a deed, and all the taxing districts obtained was the $70 purchase price. The compromised amount obtained was also better for the taxing districts than would be the case if the sale was determined to have been in error. Ill. Rev. Stat. 1989, ch. 120, par. 741.

J&J maintains that the purported redemption agreement did not treat it fairly. It points out that in preparing to purchase and later purchasing at a tax sale, a buyer incurs time and expense not necessarily covered by that which the buyer receives on redemption. In In re Application of Du Page County Collector (1981), 98 Ill. App. 3d 950, 952, 424 N.E.2d 1204, 1207, in holding that an adverse possessor of land sold at a tax sale may redeem, the appellate court indicated that a tax purchaser who would otherwise have been entitled to a deed is not injured by a liberal construction of the redemption law which deprives- him of that deed. Even more in point is the language of the supreme court in speaking of the position of a purchaser at a mortgage foreclosure sale, stating:

“[H]is right to the land is no higher or more sacred than to the redemption money, and the statute holds out no inducements for a speculation at a sheriff’s sale, beyond the interest provided for the use of the purchase money.” Hruby v. Steinman (1940), 374 Ill. 465, 470-71, 30 N.E.2d 7, 10.

A purpose of the previously described amendment (Pub. Act 81— 1076, eff. July 1, 1980) to section 235a of the Act was to prevent redemptions which left unpaid taxes free from lien. (See 81st Ill. Gen. Assem., Senate Proceedings, June 27, 1979, at 163-64 (statements of Senator Rock) (third reading of House Bill 2767).) However, the larger purpose was to protect the revenue of the taxing units. The interpretation we have placed upon the power of the State’s Attorney to compromise redemption payments to be made for the benefit of taxing units leaves defaulting owners without the right to clear properties without full payment of taxes while enabling the State’s Attorney to make the best deal possible for the taxing units when that can be accomplished by compromise. In the process, the rights of scavenger sale purchasers are not thwarted, as they proceed understanding the substantial likelihood of redemption. We recognize that the tax sale purchaser has standing to seek the relief it requests, but we consider the nature of the damage to it only to the extent that it bears upon the reasonableness of our interpretation of the power of the State’s Attorney.

The question of the power of the State’s Attorney involved here is close, but we conclude that office indeed has the power we have attributed to it. We do not agree with J&J that even if the State’s Attorney had the power to compromise which he purported to exercise here, J&J had a right to be consulted or heard before the certificate of redemption issued. The State’s Attorney does not represent the tax purchaser. If the State’s Attorney had the power to compromise the amount to be paid for redemption, which we hold he did, the tax purchaser did not have to be consulted.

Accordingly, we reverse the judgment of the circuit court ordering a tax deed to issue. This reversal encompasses a reversal of the ruling of the circuit court finding the certificate of redemption issued to Local 703 invalid.

Reversed.

McCULLOUGH and KNECHT, JJ., concur.