author: JUSTICE MURRAY

text:
      In re MARRIAGE OF CAROL A. BENKENDORF, Petitioner-Appellee, and RICHARD C. BENKENDORF, Respondent-Appellant.
    First District (5th Division)
    Nos. 1—91—2736, 1—91—3811 cons.
    Opinion filed August 13, 1993.

      Paul J. Bargiel, P.C., of Chicago, for appellant.
    Mammas & Goldberg, Ltd., and George S. Feiwell, P.C., both of Chicago (Jerry S. Goldberg and Evan James Mammas, of counsel), for appellee.
   JUSTICE MURRAY

delivered the opinion of the court:

Richard C. Benkendorf (Richard) appeals from portions of a judgment for dissolution of marriage and an order of child support.

Richard presents the following issues for review: (1) whether the trial court’s decision to award 60% of the marital property to the wife and 40% to the husband was against the manifest weight of the evidence; (2) assuming arguendo that the division of property is reasonable, whether the husband received less than 40% due to errors in valuation made by the trial court; (3) whether the trial court failed to consider the effect of liabilities assigned to the husband; (4) whether the trial court erred in refusing to permit evidence of valuation contemporaneous with the entry of judgment for dissolution of marriage; (5) whether the trial court’s child support order should be reversed; and (6) whether the trial court abused its discretion in ordering the minor children to attend Elgin Academy and requiring the husband to pay a portion of their educational expenses there.

On January 26, 1988, Carol A. Benkendorf (Carol), filed a petition for dissolution of marriage. Nine children were bom to the parties during the marriage, and at the time of the dissolution three were under the age of 18.

Richard was 52 years old at the time of trial. He had a bachelor’s degree from Notre Dame University. After he graduated college he was employed by IBM for approximately 16 years. After he left IBM, he was employed by a series of companies which culminated in his most recent employment with Ameritech. At Ameritech he was a small division vice-president from 1989 until he was terminated on October 19, 1990. Richard’s annual salary at Ameritech was $135,000 plus bonus. The president of Ameritech testified that Richard’s employment at Ameritech was terminated; he did not leave voluntarily.

At the time of trial Carol was 50 years old. She received a bachelor’s degree in biology and chemistry from St. Mary’s College, Notre Dame, Indiana, in 1961; a master’s degree from the University of Michigan in 1975 and a doctorate degree from Michigan in 1978. Currently she works as a consultant. She owns interests in three corporations she formed. They are Toxicology Data Services (100%), Tox Data Systems (50%), and Hazard Communication Resources (80%). She earned approximately $39,000 in 1985, $40,000 in 1986, and $31,500 in 1987 from Toxicology Data Services. Earlier in the marriage when the parties lived in Michigan she was employed at Ford Motor Company. She earned $18,000 per year when she began working at Ford and was earning $30,000 a year when the parties left Michigan to come to Chicago.

The record reveals that the parties accumulated a marital estate having an approximate value of $2 million.

Carol has nonmarital property with a value of $223,529. In addition, she is a lifetime income beneficiary of two trusts set up by her mother and father. Carol can ask the trustee to invade the principal for “her care, maintenance, medical needs, comfort, support, and general welfare” and “for her to provide for the needs of any of her children who are dependent upon her for their support.” However, upon Carol’s death, the trust corpus is to be divided equally among her nine children. The right to the income from the aforementioned trusts is also Carol’s nonmarital property.

On May 2 and 6, 1991, the trial court made its oral pronouncement that it would divide the marital property 60/40 in favor of the wife; that there would be no maintenance for either party; that two of the children, Sharon and Matthew, would attend Elgin Academy; and that it would take up the issue of support and educational expenses at a future hearing. The trial court also stated orally on May 17, 1991, that it would employ the “last trial date” which was December 6, 1990, as the date of valuation of the assets. The written judgment for dissolution of marriage was entered on July 9,1991.

I

Richard argues that the division of marital property, 60% to the wife and 40% to the husband, is an abuse of discretion and against the manifest weight of the evidence under the circumstances of this case.

The distribution of marital assets is within the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a clear abuse of discretion. (In re Marriage of Bush (1991), 209 Ill. App. 3d 671, 677, 567 N.E.2d 1078.) It is a well-established rule that a reviewing court is not justified in substituting its judgment for that of the trial court. (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.) However, a reviewing court must reverse if it determines that the trial court acted arbitrarily and without the employment of conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principies of law so that substantial injustice resulted. In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 180, 478 N.E.2d 1068, 1076.

Pursuant to section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)), the trial court has broad discretion to apportion marital property in “just proportions,” and that discretion is abused only when no reasonable person would take the view adopted by the court. (In re Marriage of Durante (1990), 201 Ill. App. 3d 376, 383, 559 N.E.2d 56, 61.) The trial court is not required by statute to divide the property with mathematical equality. (In re Marriage of Ligas (1982), 110 Ill. App. 3d 1, 441 N.E.2d 1277.) Although the trial court must consider all relevant factors under section 503(d), it need not make specific findings as to each relevant factor. (In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316.) The value of the parties’ nonmarital assets is a factor to be considered in the division of marital property. (In re Marriage of Deem (1984), 123 Ill. App. 3d 1019, 463 N.E.2d 1317.) In distributing the marital estate, the court should seek to place the parties in a position from which they can begin anew, in addition to providing adequate support for the children. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.

We believe the record reflects that the trial judge considered all the appropriate factors in determining the distribution of the marital estate, including the value of Carol’s nonmarital property. We are unable to find that no reasonable person would take the view adopted by the trial court and find that the trial court did not abuse its discretion in ordering a 60/40 split of the marital property in the present case. Accordingly, we affirm the trial court’s decision to divide the marital property 60% to Carol and 40% to Richard.

II

Richard argues that due to errors in valuation of the marital home, various insurance policies, the Acerbee pension fund, the Limousine Financial note and an OTC account, he actually received less than 40% of the marital property.

MARITAL HOME

At trial, Carol indicated to the court that she wished to receive the marital home as a portion of her division of the marital property. Richard did not object to Carol’s receiving the marital home. However, the parties dispute the value placed on the home in the distribution of assets.

The trial court valued the marital home located in Barrington at $731,700 in the judgment for dissolution of marriage. The home had a stipulated value of $1,100,000, and after the outstanding mortgage was deducted from the stipulated fair market value, the home had a net equity of $813,000. Carol’s attorneys argued to the trial court that the net equity value of the house should be reduced by the costs of a sale because the wife might have to sell the house if she was unable to support it, in which event she would incur capital gains tax, closing costs, and repair expenses. The trial court accepted the wife’s argument that the net equity value of the house should be reduced by those items and “took 10% off as a way of resolving [the] dispute.” According to the trial court, the value of the marital home is “$813,000 minus ten percent,” or $731,700.

Richard argues that the trial court erred in reducing the net equity value of the marital home by 10% from $813,000 to $731,700 because of the costs of a theoretical sale since no sale was made necessary by the judgment for dissolution entered in this case. We agree.

Carol argues that the trial court’s valuation of the marital home did not include a reduction on account of taxes and that all that must appear is that the transaction “was made necessary by reason of the judgment.” (In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125.) Carol states in her brief:

“CAROL’S share of the marital estate is $1,200,738.00, $731,700.00 (60.9%) of which is the marital home. If CAROL can afford to retain the home until her minor children have reached majority — an assumption that is by no means certain since she is receiving no maintenance and RICHARD is also appealing the award of any child support — the home will certainly have to be sold then. Given the relatively large portion of the allocation to CAROL represented by the marital home, the trial court properly did not put on blinders as to the real and necessary consequences of its allocation.” (Emphasis in original.)

In discussing whether or not Carol would keep the house, the trial court indicated: “Let’s suppose we *** reduce the net price by roughly $80,000 for costs of sale if it were sold.” The trial court subsequently asked Carol if taking costs of sale off the net price of the house would make the house more viable to keep. Carol responded yes. Ultimately, the trial court stated:

“What I am trying to do *** [w]as take ten percent off the top, six percent of what are the costs of the brokerage commission. *** If you get down with the other percentages, what are attorney’s fees, there are other attorney’s fees involved in a sale. There are title charges involved and other costs, documentary stamps, etcetera, in a sale. I took a figure of 10% off as an equitable way of resolving a dispute, that’s all. *** The value is 813 minus ten percent.”

The record reflects that during discussion regarding the marital home, both the trial court and Richard offered that the house could be sold in order that any costs of the sale and any capital gains tax could be incorporated into the distribution of property, or taken off the proceeds of the sale before the proceeds were distributed to the parties. An order to sell the house would have eliminated any speculation as to the financial consequences of such a sale. Nevertheless, Carol chose to receive the house as a portion of her distribution of property. Since it was Carol’s choice to receive the house as 60.9% of her share of the marital estate, we do not believe Richard should be penalized by that choice.

“While a court should take into consideration tax consequences resulting from a sale of property made necessary by the court’s judgment in a dissolution case [citations], the court should not speculate as to the existence and amount of future tax liabilities when no such sale is contemplated by the parties or required by the court’s division of property. [Citations.]” (In re Marriage of Hawkins (1987), 160 Ill. App. 3d 71, 79, 513 N.E.2d 143, 148.) There is no evidence in the record that Carol intended to sell the home, and there was nothing in the judgment requiring her to do so. In fact, as of the date of oral argument, Carol was still living in the marital home. We believe the trial court’s comments on this issue indicate that it was reducing the value of the home so as to avoid a sale, as opposed to reducing the value of the house by the costs of a sale that was required by the judgment. We find it was improper for the trial court to consider speculative tax implications from a hypothetical sale of the marital home to reduce the valuation of the home. (See In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 509, 436 N.E.2d 228, 233.) We find that the trial court’s erroneous reduction of the value of the marital home resulted in the undervaluation of the marital home by $81,300 ($813,000 x 10% = $81,300. $813,000 - $81,300 = $731,700). Based on the trial court’s 60/40 division of property, we find that Richard was deprived of 40% of $81,300, or $32,500. We remand this matter to the trial court with directions to order Carol to reimburse Richard $32,500 as a result of the erroneous reduction in value of the marital home.

INSURANCE POLICIES

Richard points out that the trial court listed and valued several life insurance policies owned by the parties and the cash values of said policies. Richard has no objection to the trial court’s valuation, but objects that the policies were not included in the trial court’s 60/ 40 division of marital property.

The listed cash value of the insurance policies awarded to Carol is $27,729, while the listed cash value of policies awarded to Richard is $4,583. The judgment for dissolution provides that each party shall maintain in full force and effect those life insurance policies awarded them and shall name the children of the parties as equal irrevocable beneficiaries of the policies until such time as the children reach the age of majority or complete their college education, whichever is last to occur, and until such time neither party shall borrow against said policies so as to reduce the death benefits thereunder and shall pay any interest on any outstanding loans against the policies so as not to reduce the death benefits thereunder. Upon completion of the college education of all the parties’ children, or upon their reaching majority, whichever is last to occur, Carol and Richard shall each be the owner of the policies allocated to her or him respectively, free and clear of any claims of the other or the children, and of the restrictions stated in the judgment of dissolution.

Richard maintains he is entitled to an additional $8,341.80 to equal 40% ($27,729 + $4,583 = $32,312 x 40% = $12,924.80. $12,924.80 - $4,583 = $8,341.80). Carol points out that the judgment for dissolution requires that the beneficiaries continue to be the parties’ children, and prohibits Carol from utilizing the cash values of the policies until the youngest child reaches majority or completes college, whichever occurs last. Matthew, the parties’ youngest child, will not reach majority until the year 2002. Carol argues that if Richard dies before then, she will never realize any value from the policies since the proceeds would go to the children.

Richard argued to the trial court that the cash surrender value of the insurance policies should be considered an asset included in Carol’s 60% share. The court ruled that “the policies’ standards are going to be kept” at which time the following colloquy then took place:

“THE COURT: There is one fallacy. Should he [Richard] die and there be no surrender, you have one value to the policy. Should the cash surrender value be taken the amount of the policy is reduced.
[Richard’s attorney]: Right.
[Carol’s attorney]: That’s correct.
THE COURT: And what we ruled on in the case is those policies be kept.
[Richard’s attorney]: I understand, but he is trying to say the valuation fee he didn’t include is in his asset sheet. The policies were not included under her assets. The $19,000, that asset she owns.
THE COURT: As far as I am concerned, she doesn’t have the right to borrow the money and therefore, she can’t have it both ways. She can’t have the money and the policy both, so therefore, as far as I understand it, she is obligated to keep the policies up, which means she can’t borrow on them.
[Richard’s attorney]: Okay, but when the children reach majority, if nothing happens, we will give him $19,000?
[Carol’s attorney]: Twelve years down the road.
[Richard’s attorney]: I never heard of such a thing.
THE COURT: I have ruled.”

The record reflects that the trial judge ordered the life insurance policies to be maintained for the benefit of the children until Matthew (seven years old at the time of the judgment) reaches majority or completes college, whichever event occurs last. The trial court ordered that Carol maintain the policies until said date and noted that Carol’s financial interest in the policies is contingent upon Richard living past the time that Matthew reaches majority or completes college. The distribution of marital assets is within the sound discretion of the trial judge and will not be disturbed on appeal unless there has been a clear abuse of discretion. (In re Marriage of Bush (1991), 209 Ill. App. 3d 671, 677, 567 N.E.2d 1078.) We believe the record reflects that the trial court considered the consequences, the benefits as well as the detriments, of awarding the life insurance policies to Carol and we cannot find that the trial court abused its discretion in doing so.

ACERBEE PENSION FUND-LIMOUSINE FINANCIAL NOTE-OTC

The trial court awarded Richard the Acerbee pension fund at a value of $223,819. Richard maintains that according to the November 30, 1990, statement from Charles Schwab the value of the account was $210,547.49. The trial court awarded Richard the Limousine Financial note at a value of $190,913. Richard argues that on December 6, 1990, the note had a value of $176,232 because of a payment of principal earlier in 1990. Richard was awarded one of two OTC accounts at a value of $6,117. Richard maintains that the value in December of 1990 was $4,864.

Carol argues that petitioner’s exhibit No. 90 supports the trial court’s valuation of the OTC and the Limousine Financial note with current information as of the close of the proofs on December 6, 1990. On December 5, 1990, Richard testified the assets on exhibit 90 were generally correct with the exception of the Harris Bank checking account. He stated:

“The remainder of these accounts to the best of my knowledge without having checked the pricing, you know, or the valuation, I believe to be correct ***.”

Richard also testified that “the Limousine Financial Group was correct as to the note but the accrued interest is incorrect and we have had substantial amounts paid this year in the earning and the interest is correct.” However, petitioner’s exhibit 90 indicates a valuation date of “12/31/89” for the OTC and a valuation date of “9/30/90” for Limousine Financial.

Richard filed a motion to reconsider on July 18, 1991, in which he argued the trial court erred in valuing the Limousine Financial note, the Acerbee pension fund and the OTC account in that the values should have been determined as of the last trial date in December 1990. On August 16, 1991, Richard filed an “Emergency Motion For Re-Hearing,” in which he again argued that the values of the Limousine Financial note, the Acerbee pension fund and the OTC account were incorrect in that the trial court should have valued those assets as of the last trial date in December 1990. Included in the exhibits attached to the motion for rehearing were a statement for Acerbee for the period November 1 through 30, 1990, and a statement for the OTC account dated December 30,1990.

Carol argues that none of the lower values which Richard asserts are part of the trial record or properly before this court and that Richard relies on the exhibits appended to the emergency motion for rehearing which followed the denial of his post-trial motion to reconsider. Carol cites to In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 90, 458 N.E.2d 1360, which states:

“ ‘We again emphasize that it is the parties’ obligation to present the court with sufficient evidence of the value of the property. Reviewing courts cannot continue to reverse and remand dissolution cases where the parties have had an adequate opportunity to introduce evidence but have failed to do so. Parties should not be allowed to benefit on review from their failure to introduce evidence at trial. [Citations.] Remanding cases such as the one before us would only protract the litigation ***.’ ” (Quoting In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54-55, 448 N.E.2d 545, 550.)

Carol argues that Richard now improperly asks this court to remedy his failures in the'trial court. (See In re Marriage of Callaway (1986), 150 Ill. App. 3d 712, 502 N.E.2d 366.) We believe in the present case that once Richard was aware that the trial court intended to use the last date of trial as the valuation date for the assets, he attempted to present the court with the proper values.

The last trial date in this case occurred on December 6, 1990. At the conclusion of the hearing on December 6, 1990, a schedule was set for briefing and closing argument. On May 17, 1991, the trial court stated that he would take the value of the assets as of the last trial date.

On May 17, 1991, there was some discussion regarding the value of the Acerbee pension fund; Richard asserted the value was $210,000, Carol asserted the value was $223,000 and the trial court discussed the possibility of splitting the difference.

On June 14 the trial court stated:

“With Schwab the indication was that we had the figures and there was a determination on Schwab. I am more troubled to be honest with you with the Limousine than on the two figures which were here on Schwab [Acerbee pension fund].
I believe it was 232 and 210. It is my recollection that I came to a figure half-way between which is roughly 21.”

Subsequently the judge indicated that he did not have a recollection of the Limousine note with the exception that he recalled that it was placed on Richard’s side, but he did not have a recollection of a valuation being accepted. The trial judge’s recollection was that everybody talked about a valuation of $190,000. Carol’s attorney then indicated the value was $190,000, while Richard’s attorney indicated that the value was stated in his records as $176,000. After several pages of discussion regarding this asset, the trial judge indicated that the parties should obtain a transcript, and held that his recollection was that “we put 190 and put it on his side and ended there.” Richard then testified that with regard to the Limousine note, he had been paid $26,000 in December. The trial court concluded the issue by stating that if the issue had not been decided it would allow the motion to reopen the proofs and go on from there. After a review of the record, we cannot find where the trial court initially found the asset to be valued at $190,000. On June 14 the trial court further stated that Schwab (Acerbee pension fund) had a value of $217,000.

The evidence presented in this case was substantial. From a review of the record it appears that the trial court stated that it intended for the parties to split the difference in valuations of the Acerbee pension fund and for the value to be $217,000. However, the value appears as $223,000 in the judgment for dissolution. We remand this matter to the trial court with directions to clarify its ruling as to the value of this asset.

We also remand the matter for a hearing as to the value of the Limousine Financial note as of the last date of trial. We believe the record is unclear as to what value the trial court initially placed on this asset. Further, even if the trial court did initially value the asset as $190,000, we find that the trial court abused its discretion in refusing to allow Richard to update the value as of the last trial date. Further, Richard has argued that between the last date of trial and the date the judgment for dissolution was final, he received a capital repayment on the note (approximately $26,000) and that he deposited said sum in another account that he was ultimately awarded. Richard argued that he was thus awarded the same sum twice. We believe under such circumstances the trial court should have allowed testimony on that issue.

On May 17, 1991, Richard’s counsel did not object to a value of $6,117 on the OTC account. Richard has waived any objection- to this value and, furthermore, in the present case we find any error in the value of this asset to be de minimus.

Accordingly, we remand the matter for clarification of the value of the Acerbee pension fund and for a hearing on the value of the Limousine Financial note on December 6, 1990. If Richard received money from Limousine Financial between December 6, 1990, and July 9, 1991, and said amount was deposited into an account such that said amount was accounted for twice, the trial judge should reduce the value of the asset accordingly. If the trial court determines that new values should be placed on either of the aforementioned assets, we direct the trial court to order Carol to pay Richard an amount that would rectify any discrepancy in the 60/40 division of property as a result of said errors in valuation.

Ill

Richard alleges that in making its distribution of property the trial court abused its discretion and acted against the uncontroverted evidence by failing to take into account liabilities owed by Richard and, as a consequence, he actually received less than 40% of the marital property.

Richard maintains the record indicates he owed Thomas Pollard $20,000 as a real estate commission for a piece of property purchased for a business venture. Mr. Pollard testified that his firm was the “broker of record” for the sale of two parcels of real estate. However, he subsequently stated: “it was fuzzy as to our [Pollard’s firm’s] qualifications really as a broker.” Pollard further testified that his firm was originally seeking $40,000 as commission, but they concluded at $20,000, which was not paid. No demand was ever made of Richard for payment of that broker’s fee. Carol’s attorney asked Mr. Pollard “[d]o you see any reason today as you sit here why he [Richard] couldn’t pay the $20,000.00,” to which Mr. Pollard replied, “[n]o.”

In regard to the alleged debt to Mr. Pollard, the trial court stated:

“This Court has a severe doubt as to whether or not the money owed to Pollard was ever used.
I have too much doubt whether the money due to Pollard are real debts. ***
I am saying the Court does not consider Pollard a marital debt.”

The credibility of the witnesses is for the trier of fact, who is in the best position to observe witnesses and their demeanor and assess the relative credibility of conflicting testimony on fact issues. (In re Marriage of Malec (1990), 205 Ill. App. 3d 273, 562 N.E.2d 1010.) Although Mr. Pollard testified that Richard owed him $20,000, he further testified that no demand had ever been made for the money. No other evidence was presented regarding the alleged debt. We find that the trial judge’s finding was supported by the record and find no abuse of discretion on the part of the trial judge.

Richard further argues that Carol’s attorney brought out the fact that he owed between $21,000 and $29,000 to Mr. Niekamp on a judgment entered against him in a limited partnership venture. Richard’s testimony regarding this alleged debt came out during a hearing on support on June 13, 1991. Carol’s attorney questioned Richard regarding his assertion that he paid $250 a month for accounting and attorney fees. The following is Richard’s testimony regarding this alleged debt:

“A. Well, I got a bill today for $3,000 from Robert Udder, okay?
Q. For what?
A. Because there’s been a judgment against me in the amount of 21 thousand or 27 thousand dollars.
Q. For what?
A. For an interest that I had in what was called a limited partnership.
Q. What limited partnership?
A. I don’t remember the name of it.
Q. You don’t remember the name of the limited partnership?
A. You have been provided with a copy of the judgment against us.
Q. Tell me the name of the partnership?
A. I don’t remember.
Q. When did you get the judgment?”

The preceding testimony is found on the only pages Richard cites in the record with regards to this alleged debt. We find no indication in the record that Richard presented any testimony regarding this alleged debt or that a copy of the purported judgment was ever entered into evidence.

The trial court found with regard to this alleged debt:

“With regard to the liabilities Niekamp was never brought into evidence, Therefore, it doesn’t exist.”

In addition, the trial judge had previously stated he did not find Richard to be a credible witness. We find the trial judge’s finding that no evidence of this alleged debt was presented to be supported by the record. Accordingly, the trial court acted properly in failing to consider this alleged debt.

IV

In his fourth assignment of error, Richard argues that the trial court erred in refusing to permit evidence of valuation contemporaneous with the entry of the judgment for dissolution of marriage. The trial court employed the last day of trial, December 6, 1990, as the date of purported valuation. The judgment for dissolution of marriage was entered July 9,1991.

Richard cites In re Marriage of Brooks (1985), 138 Ill. App. 3d 252, 486 N.E.2d 267, and In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 446 N.E.2d 1198, for the proposition that the proper date for the valuation of property is the date the judgment for dissolution of marriage is entered. However, in both Brooks and Rossi, the trial court entered a bifurcated judgment; a judgment for dissolution was entered while the question of property division was reserved for a subsequent date. The time lapse between the dissolution date and the time the trial court pronounced its findings as to property division was over five years in Brooks and approximately 2lk years in Rossi.

In the present case the judgment for dissolution of marriage encompassed all the issues of the property division. The present case was complex. Evidence was presented on numerous hearing dates as to the substantial assets acquired during the parties’ 30-year marriage. In addition, evidence was presented as to the value of Carol’s nonmarital estate, including the values of the trusts to which she is a lifetime income beneficiary. In order to dispose of the property issues at the same time the judgment for dissolution was granted, the trial court had to set the valuation date prior to entering the final judgment. We find that the trial judge did not abuse his discretion in setting the valuation date as the last date of trial.

Due to the complexity of this case, we find that the valuation date was not so remote from the date of judgment in time or in significant events. See In re Marriage of Davis (1991), 215 Ill. App. 3d 763, 767, 576 N.E.2d 44 (valuation three months prior to final judgment); In re Marriage of Courtright (1987), 155 Ill. App. 3d 55, 507 N.E.2d 891 (trial court did not abuse its discretion in utilizing valuations 4V2 months and 11 months prior to dissolution as it is the obligation of the parties to present the court with sufficient evidence of the value of the property).

Notwithstanding our finding that the trial court acted properly in setting the valuation date as of the last date of trial, we believe Richard has waived this issue. Carol argues that Richard agreed to the valuation date. Richards argues that he did not and maintains that he attempted to point out the fact that many, if not all, of the marital assets were subject to changes in value caused by the passage of time by filing an emergency motion for rehearing with exhibits itemizing and detailing several errors in valuation.

Prior to the division of property, the trial judge indicated he was going to use the last date of trial as the valuation date. Richard’s counsel did not object. Richard filed a motion to reconsider on July 18, 1991, in which he argued the trial court erred in valuing the Limousine Financial note, the Acerbee pension fund and the OTC account in that the values should have been determined as of the last trial date in December 1990. On August 16, 1991, Richard filed an “Emergency Motion For Re-Hearing,” in which he again argued that the values of the Limousine Financial note, the Acerbee pension fund and the OTC account were incorrect in that the trial court should have valued those assets as of the last trial date in December 1990. Included in the exhibits attached to the motion for rehearing were a statement for Acerbee for the period November 1 through 30, 1990, and a statement for the OTC account dated December 30, 1990. In neither motion did Richard object to the December 1990 valuation date. Questions not raised in the trial court are deemed waived and may not be raised for the first time on review. (In re Marriage of Schuster (1992), 224 Ill. App. 3d 958, 980, 586 N.E.2d 1345.) By Richard’s trial and post-trial conduct, we find he has waived his right to challenge the valuation date.

V

In his fifth assignment of error, Richard argues that the trial court’s support order requiring him to pay $2,250 per month should be reversed because it does not conform to the requirements of section 505 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1989, ch. 40, par. 505) and, in addition, any order of support would be burdensome because of his lack of income from employment and the economic uncertainty of his endeavors in the consulting field.

On June 13, 1991, Carol testified as to her income and expenses as well as the expenses of the children. Richard submitted an affidavit of expenses and income which indicated an estimated monthly income of $6,685. However, he testified that the sum was incorrect as the sum represented an estimate and a forecast of what he thought he could do and at the time he had made no consulting income. As of that date Richard had no earned income for 1991, but he had collected some money from investments. During 1990 he had earned or received approximately $600,000 in income, including $80,000 in severance pay from Ameritech. Richard testified to his monthly expenses and indicated that his expenditures were exceeding his monthly income.

On October 11, 1991, a hearing was held on the issue of child support. Richard testified that in July 1991 he purchased a home for $325,000, with $162,500 down and a $162,500 loan from his mother and his sister. He repays his sister and mother each $500 per month. As of the hearing date, Richard was still unemployed and his monthly expenditures still exceeded his assets. Richard had been able to meet his expenses by liquidating the present balance of assets. He testified he earned $24,700 from consulting and he receives $1,560 interest income from all sources per month. Richard testified that his income for the year 1991 was $64,000. As of the date of the hearing, Richard had not yet filed his 1990 income tax return.

Carol testified as to her income and expenses. She testified that she currently had no income from her businesses. Carol testified that she pays for medical insurance for herself and the children. Carol’s expenses also exceeded her monthly income.

At the support hearing, the trial court considered an objection as to relevance, and stated:

“We are here under Section 505 of the Illinois Marriage and Dissolution of Marriage Act, aren’t we? ***
I am looking at 505 and looking at the two sections, one for directing one towards guidelines and then the other is directed towards criteria how the guidelines are applied in each case.
Until the Court, after considering the evidence presents all the relevant factors, finds a reason for deviating from the guidelines by the relevant factors, which may include and is not limited to: (a) the financial resources of the children; (b) the financial resources and needs of the custodial parent; (c) the standard of living the child enjoyed while the parents were married and not divorced; (d) physical emotional condition of the child and education needs and his financial resources and the custodial parents.
Now I try to apply each one of the things. That is, what becomes frustrating about legislation. This list is inclusive and it is so hard for me to imagine anything that is to be put in there that is not relevant to this hearing. *** It -will be under the statute for the needs of the children.”

In ruling on the amount of support, the trial court reiterated its position that the $80,000 in severance pay was to be income. The trial judge indicated that he considered that money income because to him “severance pay is when somebody pays you when you are on a contract assuming there may be a lapse between that job and the new job.” The trial court then held:

“Taking into account the husband’s income, including the $80,000 *** for the year, plus the other income and I have come out with a figure of $2,250 *** per month wiH continue on until further order of the Court.”

The following colloquy then took place between Richard’s attorney and the court:

“[Richard’s attorney]: Are you basing that on the net from the $80,000 *** plus what he has on the affidavit?
THE COURT: That’s correct. That’s correct.
MR. RINELLA: But what he has on the affidavit, Judge —.
THE COURT: And I am also basing it on the right of the wife’s attorney to verify the 1990 income tax return which they are to have by October 15th. If you inconsistently based on the tax statement, Mr. Rinella, if those statements are verified, fine.”

Richard argues that the trial court never indicated what “other income” of his it was considering, or what the amount of that income might be. Richard argues that “the only income [he] had at the time of the hearing on child support with the exception of a little income from consulting work was income from dividends and interest earned on assets which were awarded to him by the Judgment for Dissolution of Marriage.” However, the aforementioned colloquy between Richard’s counsel and the court clearly indicates that the “other income” is the $64,000 reported by Richard as income on his affidavit.

Richard points to the second district case of In re Marriage of Harmon (1991), 210 Ill. App. 3d 92, 95-96, 568 N.E.2d 948, 951, arguing that the it was error for the trial court to employ income received by the husband from his share of the marital assets to determine his child support obligation. We find that Richard’s reliance on this case is misplaced. In Harmon the respondent received interest payments on a principal balance of $90,000 from petitioner, in the amount of $750 per month. The court held that the monthly interest payments which comprised respondent’s share of the marital assets should not have been used to calculate her net income. (Harmon, 210 Ill. App. 3d at 96.) In the present case, Richard is referring to passive income generated by his portion of the martial estate, rather than interest payments on a principal balance which represents his share of the marital property. We find that Harmon supports the trial court’s decision to consider Richard’s income from all sources. The court held:

“A trial court’s findings regarding net income are within the trial court’s discretion. [Citation.] According to the Act, net income is the total of all income from all sources. (111. Rev. Stat. 1989, ch. 40, par. 505(a)(3).) We agree with the trial court’s statement that passive income from bonds or securities will be considered when determining net income. [Citation.] However, when the unrefuted testimony is that the party does not actually receive the income from such passive sources, regardless of whether it is reported for Federal income tax purposes, it is not error for the trial court to refuse to consider the additional reported amounts when calculating net income.” Harmon, 210 Ill. App. 3d at 95-96.

Richard argues the trial court should not have considered the $80,000 in severance pay from Ameritech as part of his income for purposes of determining child support in 1991 because the income was received in 1990. Although the income was received in 1990, the trial court excluded the $80,000 from the property distribution on July 9, 1991. We find the trial court’s decision to consider the severance pay as earnings in the present case was not an abuse of discretion.

The guidelines set forth in section 505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act provide for support in the amount of 32% of a parent’s net income for three children. If the trial judge is following the guidelines outlined in section 505(a)(1), the statutory factors enumerated in section 505(a)(2) need not be considered. (See In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093, 527 N.E.2d 1351.) However, since the guidelines were not used, the trial judge was required to consider the statutory factors set forth in section 505(aX2). The trial judge here noted that he had considered the relevant factors in setting forth the structure of the child support.

The financial responsibility for the support of children is a joint and several obligation of each parent. (In re Marriage of Butler (1982), 106 Ill. App. 3d 831, 436 N.E.2d 561.) The determination of the proper amount of child support rests within the sound discretion of the trial court and will not be set aside unless found to be contrary to the manifest weight of the evidence, thus showing an abuse of discretion. (In re Marriage of Reyna (1979), 78 Ill. App. 3d 1010, 398 N.E.2d 641.) A court may consider past earnings in situations where current income is uncertain. (In re Marriage of Butler (1982), 106 Ill. App. 3d 381, 436 N.E.2d 561.) The record reflects that the trial court considered appropriate factors in determining Richard’s support obligation. We find that the trial court did not abuse its discretion in setting the amount of child support.

Obviously, Richard will not receive another lump sum severance payment from Ameritech, and if he has not retained other employment or earned sufficient income from other sources, nothing prohibits him from seeking modification of his support obligation.

VI

Diane (high school senior), Sharon (high school freshman), and Matthew (first grade) were enrolled at Elgin Academy (Elgin) for the 1991-92 school year. Carol testified that the tuition at Elgin Academy is approximately $8,000 a year for Sharon and $6,000 for Matthew, plus additional costs for a total of a little over $20,000. The trial court assessed $7,000 of the cost against Richard. In his sixth assignment of error, Richard asserts that the trial court abused its discretion and acted against the manifest weight of the evidence by ordering that he pay a portion of the minor parties’ educational expenses at Elgin. Richard argues that he should not have to contribute to the cost of the children’s education at Elgin Academy because he is unemployed and there is suitable, less expensive alternative education available to them.

Richard testified that he did not want Matthew and Sharon to attend Elgin. He was willing to pay for a Catholic grade school or secondary education, but he was not willing to pay for Elgin. However, since at the time Diane was a junior or senior at Elgin, Richard felt she should complete her high school education there without interruption. Richard testified that he found Elgin, went out, researched it, and took the kids (namely Jim) over there and let them look at it. He believed Elgin had been the right choice for Jim, but not for the other kids.

Richard testified that all of the parties’ children had eight years of Catholic education, all having attended Catholic grammar schools. Richard denied that he never objected to the children attending Elgin until after the parties filed for divorce.

Carol testified that currently she had three children, Diane, Sharon, and Matthew, enrolled at Elgin. Two of the older children had attended Elgin in the past; Sheila attended Elgin for four years; and Jim had attended Elgin for one year. Carol testified that she consulted or discussed the transfer of the children to Elgin with Richard, who participated in the selection process. The first occasion a transfer to Elgin was discussed was in August of the year that Jim was to be a senior. Carol, at that time, testified the parties had originally signed Sheila up to attend a Catholic high school; however, the parties agreed Sheila would be allowed to attend Elgin instead. Carol testified that Richard did not express his concern that the children would not be going to a Catholic school until she filed for divorce. She acknowledged she had heard “many good things” about Elgin, and she was “very pleased” with the education the children were receiving there. Carol testified that from the time the children were enrolled in Elgin until December of 1987, the tuitions for Elgin were paid for by Richard. When questioned if she had explored the possibility of sending the first-grade son to a school in Barrington instead of Elgin Academy, Carol responded that her other children were at St. Anne’s, but she was extremely displeased with it and would not want to send him there. When asked if the children that went to St. Anne’s got a good education and are faring well, Carol responded, “They are doing much better since they have gone to Elgin. I did not feel they had a good education at St. Anne’s and they didn’t either.”

The trial court articulated the factors underlying the decision:

“The law says to me, I don’t take into account when working class people divorce even the parochial limited amount. I don’t have to take that into account unless it was the standard of living. The more difficult part is high school. That is much more difficult than college to rule. But for example, had these children had a history of going to Barrington High School and they want something different, they would pay for it. The problem I have against the background is I take the standard of living of the children prior to the divorce. That is my criteria [sic].”

In determining that the children would remain at Elgin Academy, the court stated:

“I made the point in the determination of the lifestyle of these people was to have the children at Elgin. I made that my finding of fact. Now, that’s my finding of fact.”

In In re Marriage of Alexander (1992), 231 Ill. App. 3d 950, 955, 596 N.E.2d 1335, the reviewing court affirmed the continuation of a parochial school education (since the fourth grade) for a child entering high school:

“We find that having basically acquiesced in Michael’s attendance at parochial grade school for a number of years, that respondent’s objection to his attendance at a parochial high school on the ground it is an inappropriate choice of schools is of no particular significance. ***
*** We do not find it inappropriate *** to have relied on the advice of others who had knowledge. *** Drawing upon the experience of others is often the best way for a parent to learn the merits of a particular school.”

The history of the education of the parties’ children discloses that (1) Richard agreed to his son Jim attending Elgin for his senior year, (2) he agreed to Sheila attending four years of high school at Elgin, and (3) he had acquiesced to Diane attending Elgin for high school. Thus, prior to the parties’ divorce, three of the parties’ children had attended or currently attend Elgin for high school. However, the testimony of the parties indicates that eight of the parties’ children (all except Matthew) attended Catholic grammar schools.

We believe it is consistent with the parties’ lifestyle prior to the divorce to allow the minor children to attend Elgin Academy for high school. However, we believe it is inconsistent with the parties’ lifestyle prior to the divorce to have Matthew attend grammar school at Elgin. In addition, it is evident that Richard did not consent to, nor acquiesce to, Matthew attending grammar school at Elgin. We find that the trial court abused its discretion in ordering Richard to contribute to Matthew’s educational expenses based on the tuition at Elgin Academy, but we reject Richard’s argument that he should not contribute at all to the educational expenses of the minor children. Although Richard was unemployed at the time of the hearing, he received income from consulting as well as from dividends and interest. The trial court considered appropriate factors in making the threshold determination that Richard could contribute something to the children’s educational expenses.

Accordingly, for the reasons set forth above, we reverse the decision of the trial court ordering Richard to contribute $7,000 for the expenses of Matthew and Sharon at Elgin, and remand the matter to the trial court for a hearing to recalculate the appropriate amount of Richard’s contribution. Due to the fact that the parties have a history of sending their children to private grammar schools, albeit not as expensive as Elgin, the trial court should, in addition to considering an appropriate contribution to Sharon’s expenses at Elgin, consider an appropriate contribution towards Matthew’s educational expenses based on an education at a Catholic grammar school (a school comparable to that which the parties’ other children have attended).

Affirmed in part; reversed and remanded in part with directions.

McNULTY and COUSINS, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
    BERNARD McKAY et al., Taxpayers, for Themselves and All Others Similarly Situated, in the Name of and for the Benefit of the County of Cook, Plaintiffs-Appellants, v. STANLEY T. KUSPER, JR., Clerk of Cook County, et al., Defendants-Appellees (The County of Cook, by the Board of Commissioners of Cook County, Nominal Defendant-Appellee).
    First District (1st Division)
    Nos. 1—91—0797, 1—91—3062 cons.
    Opinion filed March 29, 1993.

      Fumagalli & Tecson, Ltd. (Daniel J. Fumagalli, of counsel), Krislov & Associates, Ltd. (Clinton A. Krislov and Jonathan Nachsin, of counsel), and William A. Barnett, all of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Karen A. Covy, Daniel E. Cannon, and Mary T. Nicolau, Assistant State’s Attorneys, of counsel), for appellees David Orr and the County of Cook.
    Winston & Strawn, of Chicago (Paul P. Biebel, Jr., Special State’s Attorney, and David E. Koropp, of counsel), for appellee Stanley T. Kusper, Jr.
    Mayer, Brown & Platt, of Chicago (Tyrone C. Fahner, Herbert L. Zarov, and Anne K. Lewis, of counsel), for appellee Amalgamated Trust and Savings Bank.
   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal. Plaintiffs, taxpayers, appeal from the February 5, 1991, order of the trial court dismissing counts III, IV and V of their second amended complaint against defendant Amalgamated Trust and Savings Bank (Bank), and from the March 19, 1991, order of the trial court dismissing counts I and II against defendants Stanley Kusper (Kusper), former clerk of Cook County (County Clerk), and David Orr (Orr), present clerk of Cook County, for alleged violations of the deposit of public funds act (Deposit Act) (111. Rev. Stat. 1989, ch. 102, par. 34) and the Public Funds Investment Act (Investment Act) (111. Rev. Stat. 1989, ch. 85, par. 901). Plaintiffs further appeal from the August 14, 1991, order of the trial court denying both plaintiffs’ motion to vacate the dismissal of Orr and petition for the award of attorney fees. For the following reasons, we affirm.

The record reveals the following relevant facts. Beginning in at least November 1982 and continuing through 1988, Kusper, as county clerk, received public funds in the form of proceeds from the “scavenger” sales of tax-delinquent parcels of real property located in Cook County (County). Kusper retained the proceeds from the scavenger sales for subsequent disbursement to the county treasurer, depositing the proceeds in non-interest-bearing accounts at the Bank.

Following public disclosure of Kusper’s investment practices in February 1990, the Bank made what it described as a “voluntary” payment of $265,779.60 to the County as interest on $6.8 million held in a County Clerk account at the Bank for a period of eight months. At this time, Kusper publicly announced that the County Clerk and the Bank were under no legal obligation to deposit and accrue interest on the public funds received from the scavenger tax sales. A County auditor’s report estimated that at least $900,000 in interest would have accrued on funds deposited by Kusper through 1988.

On March 15, 1990, plaintiffs filed a “taxpayer derivative action” on behalf of themselves, all other taxpayers similarly situated, and for the benefit of the County, against Kusper and the Bank for violations of the Deposit and Investment Acts. In their complaint, plaintiffs alleged that defendants Kusper and the Bank fraudulently deprived the County of interest on County funds by failing to deposit the proceeds obtained from the scavenger sales of real property into interest-bearing accounts. On June 15, 1990, plaintiffs sent a letter to the county board and the Cook County State’s Attorney (State’s Attorney) demanding that legal action be taken on behalf of the County to recover the interest from the public funds at issue. At that time, plaintiffs stated their belief that it would be futile to make the demand upon Kusper because of his position that he was not subject to the requirements of the Deposit and Investment Acts. In a letter dated July 5, 1990, the State’s Attorney, on behalf of the County, rejected plaintiffs’ demand.

Plaintiffs filed their amended complaint on July 9, 1990. On December 6, 1990, the trial court granted the Bank’s and the County’s separate motions to dismiss plaintiffs’ amended complaint without prejudice, pursuant to section 2 — 615(a) of the Code of Civil Procedure (111. Rev. Stat. 1989, ch. 110, par. 2 — 615(a)). At that time, the trial court also denied Kusper’s motion to dismiss plaintiffs’ amended complaint. In addition, the trial court instructed plaintiffs to include Orr as a defendant, as he had recently succeeded Kusper in the office of County Clerk. Plaintiffs filed their second amended complaint on December 20, 1990, including Orr as a defendant and naming the County as a nominal defendant.

Count I of plaintiffs’ second amended complaint, directed against both Kusper and Orr collectively as the “County Clerk,” alleged that as custodian of public funds, the County Clerk’s practice of investing the proceeds of the scavenger sales in non-interest-bearing accounts directly violated the deposit and investment requirements established in the Deposit and Investment Acts.

The Deposit Act provides in pertinent part:

“§1. Any treasurer or other custodian of public funds may deposit such funds in a savings and loan association or State or national bank in the State. When such deposits become collected funds and are not needed for immediate disbursement, they shall be invested within 2 working days at prevailing rates or better.” (111. Rev. Stat. 1989, ch. 102, par. 34.)

Section 2 of the Investment Act describes “Permitted Investments” as follows:

“To the extent a public agency has custody of funds not owned by it or another public agency and does not otherwise have authority to invest such funds, the public agency may invest such funds as if they were its own. Such funds must be released to the appropriate person at the earliest reasonable time, but in no case exceeding 31 days, after the private person becomes entitled to the receipt of them. All earnings accruing on any investments or deposits made pursuant to the provisions of this Act shall be credited to the public agency by or’ for which such investments or deposits were made, except as provided otherwise *** and except where by specific statutory provisions such earnings are directed to be credited to and paid to a particular fund.” (HI. Rev. Stat. 1989, ch. 85, par. 902.)

Plaintiffs alleged that the County Clerk’s failure to comply with the' Deposit and Investment Acts deprived the County and its taxpayers of the interest earnings required to accrue under the Acts, and sought an accounting and payment of the amount of interest the County would have received had the funds been invested in accordance with the statutes.

Count II of plaintiffs’ second amended complaint alleged that the County Clerk breached his fiduciary duty to the County and the taxpayers by failing to invest the public funds in accordance with the statutes. No count of plaintiffs’ second amended complaint is directed against the County, and the prayer for relief does not seek any relief from the County.

Counts III, IV and V of plaintiffs’ second amended complaint contained allegations against the Bank. In count III, plaintiffs alleged that the Bank had constructive notice that the County Clerk’s practice of investing the public funds in non-interest-bearing accounts violated the County Clerk’s fiduciary duty to the county taxpayers under section 6 of the Investment Act, which provides:

“§6. (a) No bank shall receive any public funds unless it has furnished the corporate authorities of a public agency submitting a deposit with copies of the last two sworn statements of resources and liabilities which the bank is required to furnish to the Commissioner of Banks and Trust Companies or to the Comptroller of the Currency. Each bank designated as a depository for public funds shall, while acting as such depository, furnish the corporate authorities of a public agency with a copy of all statements of resources and liabilities which it is required to furnish to the Commissioner of Banks and Trust Companies or to the Comptroller of the Currency ***.” (111. Rev. Stat., 1989, ch. 85, par. 906.)

Plaintiffs alleged that under the above statute, the Bank’s receipt and continuing possession of the public funds in non-interest-bearing accounts constituted a violation of the Deposit and Investment Acts.

Count IV alleged that the Bank participated in the County Clerk’s breach of fiduciary duty to the County and plaintiff taxpayers by failing to supervise properly and to insure the proper deposit of the public funds in interest-bearing accounts. Count V alleged that the Bank was unjustly enriched by receiving earnings interest on the public funds.

Kusper filed an answer to plaintiffs’ second amended complaint on January 11, 1991. The County and the Bank each filed separate motions to dismiss plaintiffs’ second amended complaint pursuant to section 2 — 615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 615) for failure to state a cause of action. The County argued that plaintiffs lacked standing to assert the rights of Cook County. Orr filed a separate motion to dismiss plaintiffs’ complaint pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(aX9)), arguing that the claim against him was barred as moot, and attaching his affidavit stating that he did not continue the investment practices of Kusper and that he currently deposited all funds received by the County Clerk’s office into interest-bearing accounts.

Following a hearing on February 5, 1991, the trial court dismissed counts III, IV and V of plaintiffs’ second amended complaint against the Bank. In addition, the court entered an order directing the parties to make further argument on Kusper’s motion to dismiss plaintiffs’ amended complaint.

On that same day, the County Board of Commissioners (County Board) passed the Cook County Taxpayers’ Interest Assurance Ordinance (Interest Ordinance), which directs “all elected and appointed public officials of Cook County” to “invest public funds in their possession or for which they are custodians in interest-bearing accounts.”

On March 19, 1991, the trial court dismissed the remaining counts I and II against Kusper and Orr, and further found that plaintiffs failed to allege standing to assert a claim on behalf of the County. The trial court found the complaint moot as to Orr in light of both his affidavit and the County Board Interest Ordinance. On August 14, 1991, the trial court denied plaintiffs’ motions to vacate the dismissal of Orr and award plaintiffs attorney fees. Plaintiffs filed a timely notice of appeal of the trial court’s order dismissing counts III, IV and V against the Bank on March 5, 1991. Plaintiffs’ timely notice of appeal of the trial court’s order of August 14, 1991, followed on August 19, 1991. The two appeals were consolidated by this court for purposes of review.

Preliminarily, on appeal of an order dismissing a plaintiff’s complaint, all well-pled facts and reasonable inferences that can be drawn from the complaint are examined to determine whether a cause of action is sufficiently stated upon which relief may be granted. Arlt v. Great American Federal Savings & Loan Association (1991), 213 Ill. App. 3d 584, 572 N.E.2d 1115; Munizza v. City of Chicago (1991), 222 Ill. App. 3d 50, 583 N.E.2d 561.

We first address plaintiffs’ contention that the the trial court erred in determining that plaintiffs lacked standing to assert a claim on behalf of the County. The County asserts that the Counties Code (Ill. Rev. Stat. 1989, ch. 34, par. 1 — 6003) places the sole authority in the County Board to bring suits on behalf of the County. We agree that the plaintiffs lack standing to bring this action against Kusper and Orr on behalf of the County, as plaintiffs’ action is not authorized by statute.

Section 1 — 6003 of the Counties Code provides:

“It shall be the duty of the county boards of each of the counties of this State to take and order suitable and proper measures for the prosecuting and defending of all suits to be brought by or against their respective counties, and all suits which it may become necessary to prosecute or defend to enforce the collection of all taxes charged on the state assessment.” (Ill. Rev. Stat. 1989, ch. 34, par. 1 — 6003.)

In Ashton v. Cook County (1943), 384 Ill. 287, 51 N.E.2d 161, the Illinois Supreme Court construed section 1 — 6003 of the Counties Code (formerly the “Counties Act” (Ill. Rev. Stat. 1941, ch. 34, par. 33)) along with section 3 — 9005 of the Counties Code (formerly the “State’s Attorney’s Act” (Ill. Rev. Stat. 1941, ch. 14, par. 5)), to impose upon the State’s Attorney the duty to prosecute actions for recovery of moneys or penalties due to the county, and for the county board to meet the expense of such litigation. (Ashton, 384 Ill. at 297.) In addition, the court found that the statute contained no express authority empowering the Cook County Board to employ private counsel for the collection of delinquent taxes. (Ashton, 384 Ill. at 298.) Thus, the Counties Code does not provide for taxpayer lawsuits on behalf of Cook County brought by private individuals.

The record in the present case reveals that the State’s Attorney, acting on behalf of the County, refused plaintiffs’ request to prosecute Kusper for violations of the Deposit and Investment Acts. Relying on a general proposition espoused in Feen v. Ray (1985), 109 Ill. 2d 339, 344, 487 N.E.2d 619, plaintiffs therefore assert that as taxpayers, they have an “equitable right to bring suit to protect their interest in public funds.” Plaintiffs further cite City of Chicago ex rel. Cohen v. Keane (1976), 64 Ill. 2d 559, 357 N.E.2d 452, for the proposition that their action is “grounded on equitable principles.”

Neither of the above cases provides support for plaintiffs’ assertion. Both cases involved taxpayer lawsuits brought on behalf of municipalities and for the benefit of those municipalities, and not on behalf of nor for the benefit of Cook County. Municipal “Taxpayer Suits” are explicitly authorized by section 1 — 5—1 of the Illinois Municipal Code (111. Rev. Stat. 1989, ch. 24, par. 1 — 5—1), which provides as follows:

“A suit may be brought by any taxpayer, in the name and for the benefit of the municipality, against any person to recover any money or property belonging to the municipality, or for any money which may have been paid, expended, or released without authority of law.” Ill. Rev. Stat. 1989, ch. 24, par. 1 — 5—1.

Plaintiffs’ further reliance on Metropolitan Sanitary District of Greater Chicago ex rel. O’Keeffe v. Ingram Corp. (1981), 85 Ill. 2d 458, 426 N.E .2d 860, and Weitzman v. Cook County (1985), 133 Ill. App. 3d 1013, 479 N.E.2d 957, is unavailing. In O’Keeffe, the plaintiff had the authority to institute a taxpayer derivative suit on behalf of the Metropolitan Sanitary District of Greater Chicago pursuant to sections 11.18 and 11.22 of the Purchasing Act for the Metropolitan Sanitary District of Greater Chicago (the Purchasing Act) (Ill. Rev. Stat. 1971, ch. 42, pars. 331.18, 331.22). Section 11.22 provides as follows:

“Any purchase order or contract executed in violation of this Act shall be null and void. Public funds which have been expended thereon, may be recovered in the name of the sanitary district in any court of competent jurisdiction.” (Ill. Rev. Stat. 1971, ch. 42, par. 331.22.)

In Weitzman, the taxpayer-plaintiff sought injunctive relief on behalf of the taxing districts of Cook County, to restrain the Cook County Board from allegedly violating its fiduciary duty to plaintiffs by awarding certain properties purchased at a scavenger sale to neighborhood housing development organizations rather than selling said properties to the highest cash bidders. On appeal, this court relied upon a municipal case analysis in determining that the plaintiff lacked standing to assert the rights of the taxing districts. (Weitzman, 133 Ill. App. 3d at 1016, 479 N.E.2d at 960, citing O’Keeffe, 85 Ill. 2d at 468-69, 426 N.E.2d at 864 (prior demand to sue or a showing that such a demand would have been futile is a precondition to bringing a taxpayer action); and Tupy v. Oremus (1982), 105 Ill. App. 3d 932, 937, 435 N.E.2d 197 (the condition precedent to the maintenance of a taxpayer suit is to make a demand on the proper public official to bring suit in the name of and on behalf of the municipality).) A municipal case analysis is inappropriate in the present case, as plaintiffs have not brought suit on behalf of a municipality.

Plaintiffs’ final contention that section 1 — 6003 of the Counties Code does not preclude taxpayers suits is without merit. Plaintiffs’ argument is based on a number of cases wherein taxpayers successfully maintained actions on their own behalf as taxpayers, individually, and for other taxpayers in the same county, for an official’s illegal retention of funds or expenditure of funds. (See Jones v. O’Connell (1914), 266 Ill. 443, 107 N.E. 731 (taxpayers had equitable right to maintain lawsuit against Cook County treasurer for his unlawful retention of inheritance taxes he collected); McCord v. Pike (1887), 121 Ill. 288, 12 N.E. 259 (allowing taxpayers’ derivative action to enjoin execution and delivery of a deed to property sold by the county board for less than its value); Hays v. Martin (1926), 240 Ill. App. 340 (allowing taxpayers’ suit seeking an accounting and recovery from the County Clerk for monies he had illegally collected and retained).) The facts of the present case are not comparable to the cases cited by plaintiffs. As such, plaintiffs have failed to properly allege standing to assert an action on behalf of Cook County, and the trial court’s order dismissing plaintiffs’ action on behalf of the County was proper.

Next, we examine plaintiffs’ contention that the trial court erred in dismissing counts I and II of their second amended complaint against Kusper. Plaintiffs argue that Kusper had a duty to deposit and invest the scavenger sale proceeds under the Deposit and Investment Acts and that by his failure to do so, he is guilty of willful and wanton misconduct. In response, Kusper asserts that the trial court properly dismissed plaintiffs’ claims because he is immune from liability under sections 2 — 201 and 2 — 202 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (Ill. Rev. Stat. 1989, ch. 85, par. 2 — 202), which together immunize public employees from liability for discretionary acts in the execution or omission of enforcement of any law unless such acts constitute willful and wanton negligence. See also Mancha v. Field Museum of Natural History (1972), 5 Ill. App. 3d 699, 283 N.E.2d 899.

The trial court dismissed Kusper as a defendant based on the following facts: (1) Kusper no longer holds office as the County Clerk and plaintiffs sued Kusper only in his corporate capacity; (2) plaintiffs failed to allege that Kusper’s conduct was willful and wanton and therefore Kusper was immune from liability as a public official; and (3) a proper action against the County Clerk for alleged misconduct is within the sole authority of the County Board. We previously determined that plaintiffs do not have standing to bring this action on behalf of the County. We further find either of the trial court’s two remaining bases for dismissal sufficient.

First, because the function of courts is to decide controverted issues in adversary proceedings, moot cases which do not present live issues are not ordinarily entertained. (People ex rel. Wallace v. Labrenz (1952), 411 Ill. 618, 104 N.E.2d 769.) Here, plaintiffs’ case against Kusper does not present a live issue for this court because plaintiffs sued Kusper only in his corporate capacity, and he is no longer the County Clerk. Therefore the trial court correctly dismissed Kusper from plaintiffs’ lawsuit.

Second, the common law doctrine of public official immunity provides immunity to Kusper from prosecution. This doctrine rests on the principle that a government official should be protected from personal liability for making discretionary judgments based on his perception of public needs. (Falk v. Martel (1991), 210 Ill. App. 3d 557, 569 N.E.2d 248; MidAmerica Trust Co. v. Moffatt (1987), 158 Ill. App. 3d 372, 511 N.E.2d 964.) “Public official immunity is granted because a good-faith mistake in judgment ought not to subject a public decisionmaker to a lawsuit.” Moffatt, 158 Ill. App. 3d at 376.

When application of the doctrine of public official immunity is urged, the critical question is whether the employee’s conduct was “discretionary” or merely “ministerial,” with the employee or State official incurring liability only where his actions were not “discretionary.” (Moffatt, 158 Ill. App. 3d at 376, citing Madden v. Kuehn (1978), 56 Ill. App. 3d 997, 1001, 372 N.E.2d 1131, 1134.) Cases holding public officials to have acted within their official discretion have generally involved actions and duties unique to a particular public office. Madden, 56 Ill. App. 3d at 1001, 372 N.E.2d at 1134.

Relying on Town of the City of Peoria v. O’Connor (1981), 85 Ill. 2d 195, 204, 421 N.E.2d 912, and Village of Pawnee v. Johnson (1984), 103 Ill. 2d 411, 417, 469 N.E.2d 1365, the trial court in the present case specifically ruled that investment of public funds by any treasurer or other custodian of public funds in interest-bearing accounts is required by the Deposit and Investment Acts, and that these acts are the controlling statutes in this matter. Thus, Kusper’s conduct regarding the investment of public funds flowed from his status as County Clerk and was “discretionary” rather than “ministerial.”

However, immunity does not extend to a public employee’s acts based on corrupt or malicious motives or willful and wanton acts. (Munizza, 222 Ill. App. 3d at 56, 583 N.E.2d at 566.) To plead a cause of action for willful and wanton misconduct, a complaint must allege facts demonstrating that a defendant committed acts with actual or deliberate intention to harm or with an utter indifference or conscious disregard for the safety of others. (Munizza, 222 Ill. App. 3d at 56.) In the present case, the record shows that plaintiffs failed to allege in their second amended complaint that Kusper was guilty of willful and wanton conduct.

We further find that Kusper is immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (HI. Rev. Stat. 1989, ch. 85, par. 1 — 101 et seq.). Section 2 — 201 of the Act provides in relevant part:

“Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.” Ill. Rev. Stat. 1989, ch. 85, par. 2 — 201.

Section 2 — 202 provides:

“A public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct.” (111. Rev. Stat. 1989, ch. 85, par. 2 — 202.)

While the trial court did not cite the Act in its ruling dismissing Kusper from plaintiffs’ action, Kusper had in fact raised the Act three times in separate pleadings before the trial court. The Tort Immunity Act was therefore properly before the trial court as a defense and provides Kusper immunity from liability.

Plaintiffs further contend that the trial court erred in dismissing counts I and II of their second amended complaint against Orr as moot. Plaintiffs initially argue that neither Orr’s affidavit nor the Interest Ordinance provides a sufficient basis to render the case moot.

Dismissal of an action under section 2 — 619(aX9) is proper where the motion, supported by affidavit, includes defenses that defeat a cause of action completely. (Koester v. Weber, Cohn & Riley, Inc. (1989), 193 Ill. App. 3d 1045, 550 N.E.2d 1004.) Moreover, when facts within an affidavit are not contradicted by counteraffidavit, they must be taken as true. Galich v. Catholic Bishop of Chicago (1979), 75 Ill. App. 3d 538, 394 N.E.2d 572.

To defeat a claim of mootness, the moving party must show that “there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.” United States v. W.T. Grant Co. (1953), 345 U.S. 629, 633, 97 L. Ed. 1303, 1309, 73 S. Ct. 894, 898.

In the present case, the record does not demonstrate any cognizable danger of “recurrent violation” on the part of Orr to defeat a claim of mootness. In his affidavit, Orr states that in his position as County Clerk, he has never violated the Deposit Act and that he currently deposits all proceeds from scavenger sales into interest-bearing accounts. Under the circumstances, it is unlikely that a violation could “recur.” It is not incumbent upon this court to anticipate that Orr will violate the law.

Plaintiffs’ further argument that the facts of the present case present an exception to the mootness doctrine is unavailing. Illinois courts have occasionally found exceptions to the mootness doctrine where a case presents an issue of substantial public interest. (See In re E.G. (1989), 133 Ill. 2d 98, 105, 549 N.E.2d 322; Labrenz, 411 Ill. at 622 (review granted in both cases regarding Jehovah’s Witness members who refused to consent to blood transfusions, even though parties had already received transfusions, because failure to act quickly in similar cases in the future would lead to irreversible harm).) In determining whether a case exhibits the requisite degree of public interest, courts look to “the public or private nature of the question presented, the desirability of an authoritative determination for the future guidance of public officers, and the likelihood of future recurrence of the question.” (Labrenz, 411 Ill. at 622.) In Labrenz, the court reasoned that an exception was warranted because “the present case falls within that highly sensitive area in which governmental action comes into contact with religious beliefs of individual citizens.” Labrenz, 411 Ill. at 623.

The facts of the present case do not present a “substantial public interest exception” to the doctrine of mootness, as plaintiffs contend. As noted above, the record demonstrates that a future recurrence of violation of the laws at issue is unlikely. Moreover, the trial court expressly held that an “authoritative determination” was not necessary, because the Deposit and Investment Acts provide guidance to public officers regarding deposit and investment of public funds.

The record shows that plaintiffs failed to file any counteraffidavit in the present case. We therefore find that Orr’s affidavit operates as a defense which defeats the action against him as moot.

Next, we address plaintiffs’ contention that the trial court improperly dismissed counts III, IV and V against Bank. Plaintiffs argue that the Bank, as a third party, (1) had knowledge and involvement in Kusper’s alleged breach of fiduciary duty; (2) had the responsibility to insure that the funds were deposited in interest-bearing accounts; and (3) was unjustly enriched because interest was not paid on Cook County accounts. We disagree.

The Deposit Act imposes a duty to invest public funds solely on the “custodian” of such funds. In the present case, the custodian of the scavenger sale proceeds is the County Clerk, not the Bank. Under Illinois law, banks have neither the right not the duty to unilaterally choose a new form of investment for their depositors. (Bieze v. Coca (1977), 54 Ill. App. 3d 7, 16-17, 369 N.E.2d 106, 113.) The Deposit Act does not direct banks to insure compliance by public officials. Therefore, the Bank cannot be liable for Kusper’s alleged failure to properly invest public funds.

Furthermore, the Bank does not have a fiduciary relationship with Kusper. This court has stated that the relationship between banks and the county collector is not one of agency but rather that of debtor-creditor. (Board of Education of Valley View Community Unit School District No. 365U v. Bosworth (1986), 144 Ill. App. 3d 982, 985, 495 N.E.2d 601, 603.) The duties between a bank and a depositor are defined entirely by the terms of the account agreement between them, and there can be no recovery for the breach of a nonexistent duty. (First Midwest Bank/Joliet v. Dempsey (1987), 157 Ill. App. 3d 307, 313, 509 N.E.2d 791.) Plaintiffs do not allege that the Bank was a willing participant in a scheme to cause Kusper to breach his fiduciary duty, and that it was the Bank that induced the breach. See Village of Wheeling v. Stavros (1980), 89 Ill. App. 3d 450, 455, 411 N.E.2d 1067, 1069.

Finally, a bank does not become unjustly enriched where proper payment is made to the depositor and a simple debtor-creditor relationship exists between the parties. (Bieze, 54 Ill. App. 3d at 16, 369 N.E.2d at 112.) Moreover, unjust enrichment is not descriptive of conduct that, standing alone, will justify an action for recovery. Rather, it is a condition that may be brought about by unlawful or improper conduct as defined by law, such as fraud, duress or undue influence, and may be redressed by a cause of action based upon that improper conduct. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1985), 137 Ill. App. 3d 84, 90-91, 484 N.E.2d 349.) Plaintiffs fail to allege in counts III, IV and V of their second amended complaint any unlawful conduct against the Bank as a basis for such relief. Accordingly, the trial court properly dismissed plaintiffs’ allegations against the Bank.

Finally, plaintiffs contend that the trial court erred in denying their request for attorney fees. Plaintiffs argue that they were entitled to an award of fees for their success in this lawsuit. In support, plaintiffs rely on a number of taxpayer derivative cases which resulted in favorable settlements or judgments for the taxpayers. See, e.g., Metropolitan Sanitary District of Greater Chicago ex rel. O’Keeffe v. Ingram Corp. (1981), 85 Ill. 2d 458, 426 N.E.2d 860.

The facts of the present case are distinguishable from O’Keeffe and the other cases cited by plaintiffs. Neither a judgment nor a settlement has been entered in plaintiffs’ favor in the present case, as the case was dismissed by the trial court. Plaintiffs’ claims that this lawsuit saved money for the county and that the practice over which they sued has ceased since the filing of their lawsuit are not grounds for the award of attorney fees in this matter.

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.

       Although Kusper filed an answer to plaintiffs’ second amended complaint, the trial court permitted Kusper to file a supplemental motion to dismiss plaintiffs' second amended complaint. The basis for this supplemental motion was Kusper’s original motion to dismiss plaintiffs’ amended complaint which was previously denied by the trial court. The trial court subsequently disposed of the matter on Kusper’s supplemental motion to dismiss.

       Kusper first raised the Tort Immunity Act in his motion to dismiss plaintiffs’ amended complaint; next, as an affirmative defense in his answer to plaintiffs’ second amended complaint; and finally in his supplemental motion to dismiss plaintiffs’ second amended complaint.