author: JUSTICE LUND JUSTICE COOK,

text:
    THE PEOPLE ex rel. PATRICIA ROBINSON HINES, Plaintiff-Appellant, v. ROBERT HINES, Defendant-Appellee.
    Fourth District
    No. 4—91—0578
    Opinion filed October 29, 1992.

      COOK, J., dissenting.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Claudia E. Sainsot, Assistant Attorney General, of Chicago, of counsel), for appellant.
    No brief filed for appellee.
   JUSTICE LUND

delivered the opinion of the court:

Plaintiff Patricia Hines was divorced from defendant Robert Hines in April 1977 in the circuit court of Macon County. She received custody of their two minor children, Brandy and Teric. Defendant was ordered to pay child support payments of $40 per week.

This case has a lengthy history, most of it involving defendant’s failure to pay child support payments. In September 1980, plaintiff filed a petition for rule to show cause, alleging that defendant was in arrears $2,070 for child support payments. He was ordered to make a lump-sum payment toward arrearage, execute a wage-deduction order for payment of his current support obligation, and pay an additional $20 per week toward the arrearage.

In January 1981, plaintiff filed another petition for rule to show cause, alleging that defendant had failed to make the lump-sum payment as required or to comply with the order concerning deduction of child support payments from his wages. She alleged that his arrearage had increased to $2,270. Defendant was once again ordered to execute a wage assignment. He was also ordered to make a lump-sum payment toward the arrearage. The wage assignment was executed, and the record shows it was delivered to defendant’s employer, Borg Warner.

In March 1988, plaintiff filed a petition in two counts. Count I asked that defendant be held in civil contempt and alleged that he was $12,590 in arrears on his child support payments. Count II asked for an increase in child support, which the court ultimately granted, increasing support to $65 per week. Defendant was ordered to pay an additional $35 per week toward his arrearage. An order for withholding was entered and served on defendant’s then employer, Sam Tanksley Trucking, Inc. Defendant was ordered to notify plaintiff within seven days of all subsequent changes in his employment status.

In August 1988, plaintiff filed yet another petition for rule to show cause, alleging that defendant had not complied with the prior order and was in arrears $595 for current support payments and $315 on arrearage payments. She also alleged that defendant had failed to notify her of an employment status change. The record indicates defendant failed to appear at the hearing on this petition and a body attachment was issued. Defendant was arrested and posted $500 cash bond. The court found that defendant had failed to comply with the prior order. He was ordered to make a lump-sum payment on the arrearage, continue making current support payments, and continue payments on the arrearage. He was also ordered to pay plaintiff’s attorney fees. The record contains a certificate that an order for withholding was served in April 1989 on defendant’s new employer, K.O. Enterprises, Inc. A handwritten note filed in June 1989 in the record, signed by the bookkeeper of defendant’s employer, indicated that defendant had voluntarily resigned his employment. A certificate in the record indicates an order for withholding was served on defendant’s new employer, Owen Mathias Trucking, in September 1989.

In December 1989, plaintiff filed a petition for adjudication of civil contempt, alleging defendant had failed to pay her attorney fees as required. Defendant appeared and stipulated to a finding of contempt. He was ordered to pay additional amounts in attorney fees. The record shows he did eventually pay the fees.

In October 1990, an order was entered requiring the circuit clerk to remit defendant’s child support payments as directed by the Illinois Department of Public Aid, division of child support enforcement (Department), for transmittal to plaintiff (who had become a Title IV-D nonassistance client of the Department).

In November 1990, the State’s Attorney filed a petition for adjudication of civil contempt on behalf of plaintiff. The petition alleged that defendant had amassed a total child support arrearage of $18,265, and it asked that he be held in contempt and sentenced to jail. In February 1991, defendant filed a petition asking that his current child support payments be reduced. The petition alleged that defendant had been unemployed for lengthy time periods since entry of the May 1988 order increasing his child support payments to $65 per week. It alleged defendant was currently employed, but he was earning much less than he was at the time that order was entered. It also alleged defendant was supporting two other minor children and that the parties’ daughter Brandy had reached the age of majority and was not a full-time student. The petition asked for a reduction in child support payments and for termination of support for Brandy. In response to plaintiff’s petition for civil contempt, defendant asked that the petition be dismissed because of his inability to make payments under the existing order.

A hearing was held February 15, 1991, on the contempt matter. Defendant testified on cross-examination by the assistant State’s Attorney that he had been working part time for about three weeks (about 25 hours per week) driving a truck. His last net weekly paycheck was $128. Prior to that, he worked for Eric Smith Trucking, where he had worked 50 hours per week since March 1990. He quit this job because he could not get along with the boss. He made between $200 and $400 per week, and his W-2 statement showed gross wages of almost $16,500 for 1990. Prior to that, he had worked at yet another trucking firm for about a year and, before that job, he had worked at K.O. Enterprises for about a year. He worked at another trucking company for about two years prior to this. Generally, he made between $200 and $400 per week at these jobs. Defendant admitted he had left each of these jobs shortly after the employers were served with orders to withhold child support payments. He paid child support payments voluntarily for only a couple weeks after he left these jobs. He also admitted he had no excuse for not notifying plaintiff of his changes in employment. Defendant admitted he quit these jobs because he felt he could not afford the child support payments being deducted from his paychecks. He also admitted his arrearage exceeded $18,000.

When questioned by his counsel, defendant denied he had quit his prior jobs to avoid paying child support payments. He said he had better job prospects each time. He testified that he was sometimes laid off. He was making $450 per week at the job he had at Borg Warner at the time of the divorce. He said he was laid off in 1982 and worked odd jobs for about five years after that. At times he made $150 per week doing this. In 1987, he worked at the Holiday Inn making $175 per week.

Defendant admitted he had made no child support payments since April 1990 and that he had continued to work at Eric Smith Trucking until he took his current job. He testified he is remarried and has four children (three are foster children) in his home. He does not support the foster children, as the State pays for their care. The other child (two years of age) is his child by his current wife.

At the conclusion of this hearing, the court found defendant to be in contempt. It made the following findings:

“THE COURT: Show evidence heard. Finding by the court this is a flagrant case of contempt and there is an arrearage of over $17,000. Finding by the court he has not ma[d]e any payments on child support since April of 1990 and during the year of 1990 he had a gross income of $16,000. Finding by the court he has willfully tried not to pay child support for a number of years. Wherefore, Defendant is held in contempt of court. He is sentenced to the county jail immediately for a period of 90 days. He may purge himself by paying $2,000 on the child support. So, sir, I sentence[ ] you to the county jail for 90 days. I’m going to get your attention and some other people’s in the community attention. Your[]s was a flagrant case so you are the one that’s going to jail. You can post $2,000 and get out of jail. Sheriff, here’s the order. Take him away.”

The record shows defendant paid the required $2,000 and thus purged himself of contempt.

A hearing was held on April 26, 1991, on defendant’s petition to reduce child support payments. Defendant testified he was still working for the same company. His average weekly net pay was $225. He was still working part time, although he hoped the job would shortly become full time. He and his wife received approximately $900 per month for the foster children in their home. His daughter Brandy was 18 in November 1990, and she had graduated from high school and was employed. We note defense counsel attempted to question defendant about his financial affidavit, but was unable to do so because the affidavit was completed at a time when defendant was employed by Eric Smith Trucking. There was no evidence offered regarding the needs of Teric, nor was any evidence produced as to plaintiff’s income. At the conclusion of the hearing, defense counsel stressed the reduction in defendant’s income due to his change of employment and the existence of the minor child of defendant’s present marriage. Counsel suggested an appropriate support order for Teric would be $28.13 per week, or 121/2% of defendant’s net weekly income (rather than the statutory minimum 20% guideline for one child). He arrived at this conclusion in the following manner: $225 (net weekly average income) x 25% (statutory minimum guideline support for two children) = $56.25 per week; divided in half = $28.13. The court questioned the assistant State’s Attorney regarding plaintiff’s current employment. She responded that she believed plaintiffs financial affidavit was in the court file. The court then stated it thought defense counsel’s suggested payment might be a “little high. We’ve got to consider the social good that is going on at that home of the 3 children. I don’t want him to lose this job.” The assistant State’s Attorney then reminded the court that efforts to collect child-support payments from defendant had been largely unsuccessful in the past because of defendant’s successful avoidance of enforcement. She stated her belief that defendant’s change of employment was not in good faith. The court found there had been a substantial change in circumstances, that defendant’s income had been reduced, and that he had another child to support. Support was reduced to $28 per week for current support and $12 per week on the arrearage. An order for withholding was to be issued.

Plaintiff filed a motion to reconsider. In that motion, she alleged the court had failed to make written findings for deviating from the child support guidelines as set forth in section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)). The motion also alleged that the court had abused its discretion in setting defendant’s child support payments below the guidelines and that its decision was contrary to law.

A hearing was held on this motion. At this hearing, defendant testified that he was still working only part time for the same employer. Three pay stubs produced by defendant showed net weekly income of $150, $195 and $259. He stated his average net weekly pay was $250. At the conclusion of this hearing, the court found there had been no substantial change of circumstances and denied the motion for reconsideration. This appeal followed.

Initially, we note that defendant as appellee has not filed a brief in this court. Therefore, we review this case in accordance with the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495. We reverse and remand.

Modification of child support payments lies within the sound discretion of the trial court, and its decision will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 296, 483 N.E.2d 1229, 1233; In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 912, 483 N.E.2d 692, 696.

Petitions to modify child support payments are determined in accordance with section 510(a) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)). That subsection provides that support may be modified only upon a showing of a substantial change in circumstances. The burden of demonstrating such a change is on the party seeking modification. (In re Marriage of Lyons (1987), 155 Ill. App. 3d 300, 304-05, 508 N.E.2d 458, 461.) Once a determination is made that modification is warranted, the court should consider the factors set forth in section 505(a) of the Act. (Lyons, 155 Ill. App. 3d at 305, 508 N.E.2d at 461-62; In re Marriage of Stadheim (1988), 170 Ill. App. 3d 19, 24, 523 N.E.2d 1284, 1287.) The court should also consider the child support guidelines set forth in that section as part of its modification analysis. Such an approach comports with the principle that courts consider the same factors they considered in formulating the original support order. In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 326, 523 N.E.2d 573, 579.

The formula in sections 505(a)(1) and (a)(2) of the Act to be used in determining child support payments provides in part:

“(1) The Court shall determine the minimum amount of support by using the following guidelines:
Number of Children
Percent of Supporting Party’s Net Income
1
20%
* * *
(2) The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include but are not limited to:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.
If the court orders a lower award, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, it shall make express findings as to its reason for doing so.” Ill. Rev. Stat. 1989, ch. 40, pars. 505(a)(1), (a)(2).

Plaintiff argues on appeal that the trial court erred in failing to make express findings as required by section 505(a) of the Act to support its deviation from the established child support guidelines. She also argues the court erred in reducing defendant’s child support payments to a level below the 20% guideline for one child.

Section 505(a)(2) of the Act provides that the court may deviate from the established child support guidelines only after hearing evidence on all relevant factors. While the court may consider other factors which may be relevant in a particular case, it must consider all the relevant factors which are set forth in the statute if it makes a child support award below the 20% guideline. (In re Marriage of Harding (1989), 189 Ill. App. 3d 663, 681, 545 N.E.2d 459, 470.) We find no indication in the instant case that the trial court complied with this mandate. The court only heard evidence as to defendant’s reduced income and the fact he has another minor child to support. The court heard no evidence regarding any of the other factors enumerated in section 505(a) of the Act. Its decision reducing defendant’s child support payments below the 20% minimum was based upon reduced income and another child. While these are relevant factors, the court cannot pick out one or two factors on which to base its decision and not hear evidence on other relevant factors. For example, it is an abuse of discretion to set child support payments based only upon one party’s income. (In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1115, 421 N.E.2d 1308, 1313.) The court here heard no evidence as to the needs of Teric. It heard no evidence of plaintiff’s income or financial needs. At the hearing on the modification petition, the assistant State’s Attorney referred to a financial affidavit completed by plaintiff which is not contained in the record on appeal. However, even assuming that her affidavit contained current information, it is apparent the court did not consider it. In addition, it appears from the record that the only current financial information the court had from defendant was as to his reduced income. Defendant’s financial affidavit was completed while he was working for a previous employer. Thus, although the court could have relied on defendant’s testimony as to his income, no evidence was produced relating to defendant’s financial needs. Therefore, we find that the trial court abused its discretion in failing to consider all relevant factors in its determination to reduce defendant’s child support payments below the established guidelines.

Section 505(a)(2) of the Act also requires the court to make express findings when a support order is entered that deviates from the guidelines. In the instant case, the trial court found that defendant’s income had been reduced and that he has another child to support. However, as indicated above, since the trial court heard no evidence on the other relevant factors, the findings it did make were insufficient to support its determination.

Plaintiff urges us to find the trial court abused its discretion by reducing defendant’s child support payments to below 20% of his net income. Since the court did not hear evidence on many of the statutory factors, and since it did not make the requisite express findings necessary to support such a deviation, we cannot determine whether a reduction below 20% would be an abuse of discretion in this case. Clearly, however, it is not permissible to apply a mechanical formula such as the one suggested by defense counsel and as apparently adopted by the trial court in making its decision. There is no statutory support for such a formula. Cf. Stockton, 169 Ill. App. 3d at 327, 523 N.E.2d at 580 (finding the trial court was justified in deviating from the guidelines, but that it abused its discretion by computing child support payments on a ratio of the parties’ incomes).

It also appears the trial court may have based its order on factors not relevant to its determination. In reducing defendant’s child support payments, the court commented that it had to consider the “social good” defendant and his wife were doing by caring for three foster children. It also expressed a concern that defendant not lose “this” job, presumably referring to the foster care. There is no support in the record for the belief that the trial court’s decision on child support payments should be affected by defendant’s foster children. As defendant himself testified, he has no financial responsibility for them because they are provided for by the State. Thus, on remand, defendant’s foster children should not be a consideration in the court’s child support payment decision.

Finally, we point out one other factor to be considered by the trial court upon remand to determine whether a reduction in defendant’s child support payments is warranted. We note that aside from the emancipation of his oldest child, defendant’s petition for reduction of child support payments was based upon his reduced income, which was brought about by a change in employment. While a voluntary change in employment may constitute a change in circumstances sufficient to support a modification of a child support order, that change must have been made in good faith. The crucial consideration in determining whether the change was made in good faith is whether the change was prompted by a desire to evade financial responsibility for supporting one’s children or to otherwise jeopardize their interests. (Coons v. Wilder (1981), 93 Ill. App. 3d 127, 132, 416 N.E.2d 785, 790.) This necessitates an inquiry into the question of motive in making the employment change. (Cohn v. Cohn (1984), 122 Ill. App. 3d 763, 766, 461 N.E.2d 1028, 1031.) The assistant State’s Attorney brought the good-faith issue to the court’s attention at the modification hearing, but a review of the record does not indicate the court considered it. While not expressing a view on the merits of the issue in this case, we note that it is a proper factor to consider, especially in light of evidence presented at the earlier hearing on plaintiff’s petition for contempt and the court’s express finding after this hearing that defendant had wilfully tried not to pay his child support payments for a number of years.

We are well aware, as stated in the dissent, that information as to many of the elements to be considered by the court in considering modification of child support was within plaintiff’s control. However, the burden was on defendant to sustain his motion for reduction, and inherent in the determination of the change is the consideration of the relevant factors as set forth in section 505(a)(2) of the Act. The defendant, in seeking modification, cannot escape the court’s consideration of these factors by plaintiff’s failure to come forth with evidence. Any other holding would make a mockery of the child support provisions.

The order of the circuit court granting defendant’s petition for modification is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

McCullough, j., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent, and would affirm the order appealed from.

A petition to modify child support is often a response to a petition for a rule to show cause. The fact the obligor is found to be in contempt does not require denial of the petition to modify. A partial inability to pay support, although not a defense to contempt, may still justify modification. (See, e.g., In re Marriage of Hardy (1989), 191 Ill. App. 3d 685, 688-90, 548 N.E.2d 139, 141-42; In re Marriage of Scordo (1988), 176 Ill. App. 3d 269, 273, 530 N.E.2d 1170, 1172.) In this case defendant was found in contempt, not because he failed to pay the full amount of child support and arrearages each week, but because he failed to pay anything since April 1990, while he had gross income in 1990 of $16,000.

An order awarding child support may be modified “upon a showing of a substantial change in circumstances.” (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) If the court determines that a substantial change in circumstances has occurred, the court should set a new amount by following the statutory guidelines set forth in section 505 of the Act. (In re Marriage of Stone (1989), 191 Ill. App. 3d 172, 174, 547 N.E.2d 714, 715; cf. Stockton, 169 Ill. App. 3d at 325, 523 N.E.2d at 578 (consider the factors set forth in section 505(a)(2)); see also In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 411, 555 N.E.2d 1114, 1118 (statutory factors in section 505(a)(2) are not to be considered if court follows guidelines under section 505(a)(1)).) The majority does not dispute the trial court’s finding there was a substantial change in circumstances in this ease, and would affirm a reduction in child support — just not this reduction below 20% of net income.

The amount computed from the guidelines “shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) If the court deviates from the guidelines “it shall make express findings as to its reason for doing so.” (Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2).) The legislature has required that a court which modifies or terminates joint custody “shall state in its decision specific findings of fact in support” of its decision, but has not required that findings justifying a deviation from the child support guidelines be written, or incorporated in the court’s order. (Ill. Rev. Stat. 1989, ch. 40, par. 610(b); cf. In re Marriage of Wright (1991), 212 Ill. App. 3d 392, 399, 571 N.E.2d 197, 201.) The majority properly concludes the trial court’s findings were sufficiently “express” here, but the ma-. jority concludes the findings were insufficient to support the modification.

The trial court in fact did not deviate from the guidelines, because there are no guidelines which apply to the specific facts of this case, where defendant has another child by a second marriage. Plaintiff argues the guidelines percentage for one child, 20%, should be used to set support. If the guidelines were stretched so as to apply in this case, however, the more appropriate percentage would be 25%, as defendant has two children, not one child. Of course plaintiff would not be entitled to the entire 25%, as she has custody of only one of defendant’s children.

The guidelines do not address every possible situation. For example, they make no provision for situations where custody is split between the parties, or where a party is responsible for the support of children from other marriages. (In re Marriage of White (1990), 204 Ill. App. 3d 579, 582, 561 N.E.2d 1387, 1389; In re Marriage of Werner (1986), 144 Ill. App. 3d 263, 267-68, 493 N.E.2d 1199, 1202; see Carnes v. Dressen (1991), 215 Ill. App. 3d 166, 170-71, 574 N.E.2d 845, 847-48.) When the guidelines of section 505(a)(1) do not specifically apply, there is a question whether the court should abandon them completely and decide the case based on traditional factors for determining child support, or begin with the amount stated by the guidelines and make some adjustment as the situation requires. In In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 599, 493 N.E.2d 666, 671, the supporting spouse, the father, had custody of one child, the mother custody of the other. The trial court there did what the trial court did here: took the guidelines amount for two children, 25%, and divided that in half, to set child support at the dollar equivalent of 121/2% of the father’s net income. The appellate court affirmed, stating it was unable to conclude the award was an abuse of discretion. (A problem with just splitting the guidelines amount is that while 25% may be enough to raise two children in one household it may not be enough to raise two children in separate households.) This court has recognized that a trial court may utilize the Flemming approach, but suggested that the factors set forth in section 505 of the Act be considered. White, 204 Ill. App. 3d at 582, 561 N.E.2d at 1389; see also In re Marriage of Taylor (1980), 89 Ill. App. 3d 278, 281, 411 N.E.2d 950, 953 (division of college expenses in proportion to income of parties approved).

The majority criticizes the trial court for not hearing evidence on the needs of Teric, or on plaintiff’s income or financial needs. The majority complains that no evidence was presented by defendant as to defendant’s financial needs. The statement that the trial court did not hear evidence is misleading. The trial court did not refuse to hear any evidence; the trial court listened to all evidence the parties chose to introduce. It is the burden of the parties, not the trial court, to present evidence in cases arising under the Act. (White, 204 Ill. App. 3d at 582, 561 N.E.2d at 1389; In re Marriage of Falat (1990), 201 Ill. App. 3d 320, 329, 559 N.E.2d 33, 39 (failure to offer evidence creates presumption that evidence would be unfavorable); Stockton, 169 Ill. App. 3d at 324, 523 N.E.2d at 578 (burden of providing evidence on net income lies with the parties and not with the court).) A burden of cross-examining witnesses also rests on the parties. (White, 204 Ill. App. 3d at 582, 561 N.E.2d at 1389.) Reviewing courts cannot continue to reverse and remand cases arising under the Act 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. In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54-55, 448 N.E.2d 545, 550 (a property division case); In re Marriage of Mullins (1984), 121 Ill. App. 3d 86, 90, 458 N.E.2d 1360, 1363.

Defendant could have presented more evidence on his petition to modify, but he did present enough evidence to establish a prima facie case, enough evidence to justify modification in the absence of evidence to the contrary. It was plaintiff’s obligation to present that contrary evidence, not the trial court’s obligation. This case was prosecuted by the State’s Attorney’s office for the Department, and although plaintiff was present for the hearing on contempt, the assistant State’s Attorney did not choose to have plaintiff present for the hearing on the petition to modify, or even for the motion for rehearing. The assistant State’s Attorney did not attempt to present any evidence that plaintiff’s income or Teric’s needs had changed. The trial court could therefore assume that neither had changed. The responsibility of the State’s Attorney to present evidence supporting the Department’s case is no different from that of any other litigant. See Cogan v. KAL Leasing, Inc. (1989), 190 Ill. App. 3d 145, 154, 546 N.E.2d 20, 26 (mistake to skew rules of evidence or procedure in cases where minors or incompetents are involved).

The majority says there is no indication in the record that the trial court considered other factors, or that the court considered whether defendant’s change of jobs was in good faith. It is not the duty of the trial court to prove to us its decision is correct. Rather it is our duty to affirm unless appellant has convinced us the trial court’s decision is wrong. A reviewing court will extend all reasonable presumptions in favor of the judgment or order from which the appeal is taken, and will not presume that error occurred below. (Village of Cary v. Jakubek (1984), 121 Ill. App. 3d 341, 345-46, 459 N.E.2d 651, 654; In re Marriage of Frazier (1990), 205 Ill. App. 3d 621, 625, 563 N.E.2d 1236, 1239; In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 114-15, 559 N.E.2d 819, 829.) The majority says that it cannot determine whether a reduction below 20% would be an abuse of discretion in this case. If we cannot say the trial court was wrong we should affirm.

The argument that the trial court committed reversible error is an unusual one. That argument is found in the paragraph of the majority opinion which begins: “Section 505(a)(2) of the Act provides that the court may deviate from the established child support guidelines only after hearing evidence on all relevant factors.” (236 Ill. App. 3d at 746.) The language of section 505 indicates the legislature intended for the guidelines to apply unless there was a reason for deviation, but I see no indication that the legislature intended to change the way a trial court hears evidence, makes its decisions, or the deference we give those decisions on review. There is no legislative mandate that the trial court’s failure to consider a relevant factor, not raised by the parties, requires reversal of a child support order.

Although the traditional rule is that modification of child support requires consideration of the needs of the child and the abilities of the parents, that rule is not an inflexible one. The guidelines have brought a whole new way of thinking to the setting of child support. Once a court determines that the guidelines should be applied, the court does not consider the income of the noncustodial parent, or the particular needs of the child; the only variables considered by the court are the number of children and the net income of the party responsible for support. The arbitrary .nature of fixing support by the.use of guidelines was the criticism expressed in the case cited by the majority, In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 421 N.E.2d 1308 (before section 505. incorporated guidelines, improper to use Cook County guidelines); see Ill. Ann. Stat., ch. 40, par. 505, Supplement to Historical and Practice Notes, at. 176 (Smith-Hurd Supp. 1992) (“The enactment of these support guidelines in Illinois reversed a well-established line of Illinois Appellate Court decisions which held that the use of guidelines, charts or standard rates is improper in determining child support, since they do not satisfy the requirement of accommodating the needs ■ of the children with the available means of the parents”).

Even using the factors, a court may increase support based on the noncustodial parent’s increased ability to pay, even though the child’s needs have not increased. (Wilson v. Wilson (1988), 166 Ill. App. 3d 1035, 1038, 520 N.E.2d 1230, 1232; In re Marriage of Bean (1989), 181 Ill. App. 3d 671, 674, 537 N.E.2d 342, 344.) The trial court need not consider the income of the respondent on a petition to modify child support where the respondent does not take advantage of his opportunity to introduce such evidence. (Falat, 201 Ill. App. 3d at 328-29, 559 N.E.2d at 39.) The court may presume the expenses of raising children increase each year as the children grow older and the cost of living rises. Stone, 191 Ill. App. 3d at 174, 547 N.E.2d at 715; Falat, 201 Ill. App. 3d at 327, 559 N.E.2d at 38.

The majority criticizes the trial court for considering irrelevant factors, including the concern that defendant not lose “this” job. I understand the trial court to refer to defendant’s present job, as a truck driver. I disagree the trial court thereby considered any improper factor, and suggest the trial court understood this case better than a reviewing court ever could. There is a nationwide concern that child support orders are inadequate, and poorly enforced. (See People ex rel. Sheppard v. Money (1988), 124 Ill. 2d 265, 270, 529 N.E.2d 542, 544.) There are risks, however, if a court takes a one-sided approach to setting child support. An award which is too high guarantees its own failure, creating future problems not just for the obligor, but for the obligee, the courts, and the Department. I agree defendant’s support of the foster children was of only minimal relevance, but the trial court properly considered defendant’s ability to support his child by his second marriage, a factor under section 505(a)(2)(e) of the Act. The argument that the first child is entitled to the full guidelines amount of 20% before the needs of the second child may be considered is wrong in policy and in law, and may violate equal protection. (See Greiman v. Friedman (1980), 90 Ill. App. 3d 941, 948-49, 414 N.E.2d 77, 83-84; see Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 934, 527 N.E.2d 680, 681 (support obligations extend equally to every child).) The trial court was properly concerned that defendant keep working, as well as that he support his child by his first marriage and his child by his second marriage. Based on the evidence presented, the trial court’s decision was a reasonable one.

A reviewing court will not find an abuse of discretion unless no reasonable person would agree with the trial court’s decision. (In re Marriage of Jacks (1990), 200 Ill. App. 3d 112, 118, 558 N.E.2d 106, 110 (a marital property case).) Great deference must be accorded the decision of the trial judge, who is in the best position to judge the credibility of the witnesses and determine the needs of the child. (In re Marriage of Valter (1989), 191 Ill. App. 3d 584, 588, 548 N.E.2d 29, 31 (a custody modification case).) If it is true that the modification of child support payments lies within the sound discretion of the trial court, we should affirm the order appealed here.


source: Caselaw Access Project

author: JUSTICE McCULLOUGH

license: Public Domain

text:
    FIRST NATIONAL BANK OF MT. ZION, Plaintiff-Appellee, v. JOHN FRYMAN et al., Defendants-Appellants.
    Fourth District
    No. 4—92—0014
    Opinion filed October 29, 1992.

      Tietz & Richardson, of Decatur (Jeffrey D. Richardson, of counsel), for appellants.
    Thomas M. Shade, of Decatur, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Plaintiff First National Bank of Mt. Zion purchased a parcel of land located in Macon County following a foreclosure of a judgment lien which was entered on December 12, 1991, and confirmed on December 23, 1991. Defendant John Fryman had acquired title to this property through a previous foreclosure proceeding in December 1985. Defendant appeals the judgment of foreclosure entered on December 12, 1991, and subsequent order of sale regarding this property, contending plaintiff (1) never obtained a valid lien against his property and (2) if a valid lien was created, it lapsed because of plaintiff’s failure to revive its judgment which created the lien after seven years from the date it was entered. We affirm.

On February 18, 1976, defendant entered into an agreement for deed to purchase from James R. Yeager, Sr., and James R. Yeager, Jr., the subject property. Plaintiff was the escrow agent for this transaction. Defendant failed to make the final payment on the agreement and thus did not acquire title to the property. The property was encumbered by a mortgage to Millikin National Bank of Decatur which, in 1983, commenced foreclosure proceedings against the Yeagers and defendant in Macon County case No. 83 — CH—11. Judgment of foreclosure was entered against both Yeagers on May 30, 1985. The property was ordered sold and the clerk of the court was directed to apply the proceeds first to defendant for his interest in the property. The Us pendens notice in this mortgage foreclosure was not filed until January 31, 1985. Defendant was the successful purchaser at the foreclosure sale and he received judicial deed to the property on December 6,1985.

On September 7, 1983, plaintiff filed a complaint in Macon County case No. 83 — L—192 seeking a money judgment against James Yeager, Sr. Plaintiff was awarded such a judgment in the amount of $43,488.87 on February 24, 1984. On March 1, 1984, plaintiff recorded a “Certified Copy of Judgment” in the recorder’s office of Macon County. In that document, the circuit clerk did “Certify that on February 24, A.D. 1984, a Judgment was entered by said Court as follows:

Judgment AGAINST (Name and address) JAMES YEAGER. Amount Forty Thousand Five Hundred Thirty Four Dollars & Forty Six [Count] 1 & Two Thousand Nine Hundred Fifty Four Dollars & Forty One & Costs [Count] 2. In favor of (Name) FIRST NATIONAL BANK OF MT.' ZION Court Case Number 83 — L—192.”

That document also contained the docket entry for February 24, 1984, which stated:

“Court convened for the transaction of business on February 24, 1984. And thereupon, there were had among others the following proceedings. Judge Donald W. Morthland.
Plaintiff’s exhibits Nos. 1 and 2 offered and admitted into evidence. Judgment in favor of the plaintiff and. against the defendant on count I in the sum of $40,534.46. Judgment in favor of the plaintiff and against the defendant on count II, in the sum of $2,9.54.41, and costs of suit. See written judgment order on file.”

On November 13, 1990, plaintiff filed a complaint to foreclose the judgment lien against defendant. In that complaint, plaintiff alleged the “Certified Copy of Judgment” filed with the Macon County recorder’s office on March 1, 1984, created a judgment lien on the property owned by defendant. Defendant filed a motion to dismiss pursuant to section 2 — 619 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619) alleging no judgment lien was created since the document filed in the Macon County recorder’s office was not a certified copy of the judgment entered against James Yeager, Sr., on February 24, 1984. On January 2, 1991, the trial court denied defendant’s motion, finding the document was a memorandum of judgment as defined in section 12 — 101 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 101). Defendant then filed a motion for reconsideration of the trial court’s order of January 2, 1991, or alternatively, a finding pursuant to Supreme Court Rule 308 (134 Ill. 2d R. 308) for leave to file-an interlocutory appeal. Both of defendant’s motions were denied on January 17,1991.

Next, defendant filed a motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005) alleging the facts uncovered through discovery established that plaintiff’s lien, if valid, only attached to an undivided one-half interest in the premises since the February 24, 1984, judgment was only rendered against James Yeager, Sr. The motion further alleged that the judgment had lapsed since it had not been revived or executed and levied upon because seven years had passed since the judgment was entered. Plaintiff responded that the judgment of foreclosure action was tantamount to a levy under section 12 — 108 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 108), which extended the seven-year period for one year in order to conduct a sale pursuant to the levy. In the alternative, plaintiff contended the bankruptcy of James Yeager, Sr., which was filed on August 19, 1984, and closed on September 22,1989, extended the seven-year period.

The trial court granted defendant’s motion in part, finding plaintiff’s judgment only attached to an undivided one-half interest in the property. The court expressly found, although the judgment was not revived within seven years of its rendition or within any extended period because of the bankruptcy, revival of the judgment was not required because the foreclosure proceeding was commenced by plaintiff within seven years of the rendition of the judgment. Accordingly, that part of defendant’s motion was denied.

Plaintiff then moved for summary judgment, which was granted on December 12, 1991. A judgment lien in the sum of $74,000 against an undivided one-half interest in the premises was awarded to plaintiff. The property was sold and the foreclosure sale was confirmed on December 23, 1991. The trial court stayed issuance of the judicial deed for 30 days after the issue of the order confirming the sale and further ordered that if a notice of appeal was filed with the appellate court, the issuance of a judicial deed would be stayed until the mandate issued from the appellate court. Defendant filed his notice of appeal on January 3, 1992.

Defendant first contends no judgment lien in favor of plaintiff was created since the document recorded in the Macon County recorder’s office was not a certified copy of the judgment nor a memorandum of judgment. Section 12 — 101 of the Code provided in pertinent part:

“As to real estate included within class two, a judgment is a lien on the real estate of the person against whom it is entered in any county in this State, including the county in which it is entered, only from the time a transcript, certified copy or memorandum of the judgment is filed in the office of the recorder in the county in which the real estate is located.” (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 101.)

Thus, there are three documents that could be recorded to create a judgment lien: (1) transcript; (2) certified copy of the judgment; or (3) memorandum of judgment. Unquestionably, the document recorded on March 1, 1984, is not a transcript nor do we believe it is a certified copy of the judgment. First, a copy of the two-page judgment order filed February 24, 1984, signed by Judge Morthland appears in the record on appeal. As this separate order exists, the docket entry for that date does not constitute the judgment order. (Davidson Masonry & Restoration, Inc. v. J.L. Wroan & Sons, Inc. (1971), 2 Ill. App. 3d 524, 275 N.E.2d 654.) Since there is a separate written order and the docket entry refers to that order, the certified copy of the docket entry is not a “certified copy of the judgment” in terms of section 12— 101. See also Stoermer v. Edgar (1984), 104 Ill. 2d 287, 472 N.E.2d 400.

Accordingly, for plaintiff to have created a valid judgment lien, the document which was recorded must be a memorandum of judgment. Section 12 — 101 of the Code defines “memorandum” as follows:

“The term ‘memorandum’ as used in this Section means a memorandum or copy of the judgment signed by a judge or a copy attested by the clerk of the court entering it and showing the court in which entered, date, amount, number of the case in which it was entered, name of the party in whose favor and name of the party against whom entered.” (Ill. Rev. Stat. 1983, ch. 110, par. 12 — 101.)

Defendant suggests this document recorded in the Macon County recorder’s office is not a memorandum of judgment because it is not signed by a judge, but rather only attested to by the clerk of the court of Macon County.

The document recorded by the plaintiff constituted a memorandum of judgment as defined in section 12 — 101 of the Code. There are three documents that can be recorded to meet the definition of memorandum: (1) a memorandum of judgment; (2) a copy of the judgment signed by a judge; or (3) a copy of the judgment attested to by the clerk of the court entering it. Contrary to defendant’s contention, a memorandum of judgment does not need a signature of a judge; only a copy of the judgment itself need be signed by a judge. The document recorded by plaintiff showed the court entering the judgment, the date and amount of the judgment, the case number and the names of the parties for and against whom the judgment was entered, all as required by section 12 — 101.

Moreover, the purpose of this section was satisfied by the filing of this document. A memorandum of judgment is a notice document. (First National Bank & Trust Co. v. Wissmiller (1989), 182 Ill. App. 3d 481, 484, 538 N.E.2d 190, 192.) The recordation of this document was sufficient to put defendant on notice of the judgment against James Yeager, Sr., and, thus, satisfied the purpose of this section. Accordingly, the document recorded by plaintiff on March 1, 1984, constituted a memorandum of judgment and created a judgment lien against the property.

Next, defendant contends the trial court erred in holding that the judgment did not have to be revived since the foreclosure proceeding was commenced within seven years of the entry of the judgment.

Section 12 — 101 of the Code provided that a judgment is not a lien against real estate for longer than seven years from the time it is entered or revived. (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 101.) Section 12 — 108(a) of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12— 108(a)) states:

“[N]o judgment shall be enforced after the expiration of 7 years from the time the same is rendered, except upon the revival of the same by a proceeding provided by Section 2 — 1601 of this Act; but real estate, levied upon within the 7 years, may be sold to enforce the judgment at any time within one year after the expiration of the 7 years.”

The final judgment against James Yeager, Sr., was entered on February 24, 1984. Thus, unless revived, it would expire on February 23, 1991. James Yeager, Sr., filed for bankruptcy relief on August 9, 1985. He received his bankruptcy discharge on February 13, 1986, and the bankruptcy case was closed on September 22, 1989. Section 12 — 104 of the Code (Ill. Rev. Stat. 1989, ch. 110, par. 12 — 104) provides that when a party in whose favor judgment was rendered is restrained by an order of court from enforcement of that judgment, the time that party is restrained is not considered as any part of the time measured in sections 12 — 101 or 12 — 108 of the Code. The parties agreed in the trial court that the bankruptcy petition of James Yeager, Sr., should extend the time of the lien for 103 days, that being the amount of time between the filing of his petition for bankruptcy relief and the expiration of the redemption period of his rights in the mortgage foreclosure proceeding in which defendant acquired the property. Inasmuch as neither party on appeal contests that calculation, we will also assume that the life of the lien was extended 103 days, thereby making June 6, 1991, the date on which the lien would lapse.

It is defendant’s position on appeal that the lien expired on June 6, 1991, and thus the sale of the property in December 1991 to foreclose on the lien was ineffective. Defendant suggests this procedure was not a “levy” within the meaning of section 12 — 108 of the Code as the sheriff did not participate in the sale, and thus plaintiff is not entitled to the benefit of the additional year in which to perfect the sale of the property. On the other hand, plaintiff contends the filing of the complaint to foreclose on the judgment lien in November 1990 was within the seven-year life of the lien, thus making revival of the judgment unnecessary. Furthermore, plaintiff contends it should get the benefit of the additional year because the filing of the complaint constituted enforcement of the judgment and the judicial sale of the property constituted a levy on the property.

We agree with plaintiff that the procedures involved herein are equivalent to a “levy,” and, since the property was “levied” upon within the seven years, plaintiff received one year after the expiration of the seven years in which to sell the property. “Levy” is defined as “the taking of property on execution to satisfy a judgment.” (Webster’s Third New International Dictionary 1301 (1986).) When used as a verb, “levy” means “to seize in satisfaction of a legal claim or judgment”; “to seize real or personal property or subject it to attachment or execution.” Webster’s Third New International Dictionary 1301 (1986).

The purpose of the statute relating to the enforcement of judgments “is remedial and affords a means of collecting a judgment by forcing the sale of the judgment debtor’s property, real or personal, or both, to the extent necessary to satisfy the debt and costs.” (Haugens v. Holmes (1942), 314 Ill. App. 166, 169, 41 N.E.2d 109, 111.) The ultimate result of a levy and a judicial sale pursuant to a judgment of foreclosure of a judgment lien is the same, i.e., the debtor’s property is sold to satisfy the judgment. A complaint to foreclose a judgment lien is a levy on real estate in terms of section 12— 108 of the Code.

Thus, the filing of the complaint to foreclose the judgment lien was sufficient to preserve the lien before the end of the seventh year. However, the property had to be sold within one year after the end of the seventh year, which was done in this instance. The seventh year ended in June 1991 and plaintiff had until June 1992 to complete the sale of the property. The final order confirming the sale was entered in December 1991, which was well within the time restriction.

For the foregoing reasons, we affirm the trial court’s order confirming the sale of the property.

Affirmed.

KNECHT and COOK, JJ., concur.


author: JUSTICE COOK

text:
    JILL M. BENNER et al., Plaintiffs-Appellants, v. ROGER C. BELL et al., Defendants (Levi E. Schrock, Defendant-Appellee).
    Fourth District
    No. 4—91—0738
    Opinion filed October 29, 1992.

      Gregory D. Fombelle and James E. Zachry, both of Burger, Fombelle, Zachry & Rathbun, P.C., of Decatur, for appellants.
    Marc J. Ansel, of Erwin, Martinkus, Cole & Ansel, Ltd., of Champaign, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Plaintiffs brought this action to recover damages allegedly occasioned by defendant Schrock’s operation of his horse-drawn buggy. The circuit court of Moultrie County entered summary judgment in favor of Schrock. Plaintiffs appeal, arguing that Schrock’s failure to illuminate his buggy was a proximate cause of their injuries. We affirm.

The facts are, unless indicated, agreed upon by the parties. About 6 p.m. on February 3, 1989, plaintiffs Jill Benner, her sons Eric and Justin, and Cara Burwell were southbound on the Arthur-Atwood Road, approximately 2V2 miles north of Arthur, Illinois. Defendant Schrock was operating a horse-drawn buggy, also southbound, a short distance ahead of Benner on the paved portion of the highway. Defendant Bell’s pickup truck was also southbound on the Arthur-Atwood Road, one-quarter to one-half mile behind the Benner vehicle. Defendant Yeakel and her daughter were northbound on the same road. Deposition testimony as to the conditions of the road varies slightly, but the parties generally agreed the road was icy in patches and the sky was dark with a light mist falling. The Arthur-Atwood Road is a two-lane highway with a 55-mile-per-hour speed limit. The road is straight and level in the area where the incident occurred.

Schrock’s buggy was traveling at approximately 10 to 15 miles per hour on the paved portion of the road; the shoulder was not wide enough at that point to accommodate it. Schrock stated his buggy was equipped with “slow moving vehicle” signs on the front and back of the buggy, reflective tape outlining the buggy’s front and rear, battery-operated clear lights in front and amber lights in the rear of the buggy, and two flashing yellow lights higher at the back. The buggy is black.

Schrock testified that, just prior to the occurrence, he observed in his rearview mirror that the Benner vehicle’s headlights approached him, then slowed to his pace directly behind him. Plaintiff Jill Benner also testified that, upon seeing the buggy, she slowed her vehicle to a comparable speed and remained approximately one to two car lengths behind the buggy. Benner stated that she saw the orange triangle “slow moving vehicle” reflector but did not see any lights on the buggy. Schrock testified that soon after the Benner vehicle slowed behind him he saw the Yeakel vehicle approaching in the northbound lane. Benner also testified that she saw Yeakel approaching. Benner had a conversation with her passenger, Cara Burwell, about whether she should pass the buggy or wait until the approaching car had passed. Burwell responded that they were in no hurry and “it was better to be safe than sorry” and to let the car pass.

Approximately 10 to 15 seconds after Benner had slowed down to the pace of the buggy, defendant Bell’s pickup truck, which had been traveling behind Benner at some distance, crashed into the rear end of the Benner vehicle. The force of the collision caused Benner to swerve into the northbound lane of oncoming traffic, where it was struck by Yeakel. Defendant Schrock’s buggy did not contact any other vehicle in the accident. Schrock testified that he saw Bell approaching behind Benner and that Bell did not appear to be slowing before the impact. Benner stated that she had seen Bell’s vehicle following some distance behind her but did not see his vehicle in her rear-view mirror just prior to impact.

Bell received a ticket for failing to reduce his speed and was arrested for driving under the influence. He later pleaded guilty in court. Charles Hess, a Moultrie County deputy sheriff, testified during his deposition that Bell’s blood-alcohol test showed a level of .25, well over the legal limit. Hess also testified that he saw no apparent reason for Bell not to be able to slow down and no apparent reason for him to collide with the rear end of a slow-moving vehicle.

Bell testified he was traveling about 40 miles per hour, as opposed to the 55-mile-per-hour speed limit, due to patches of ice on the road. He stated that as he approached the Benner and Schrock vehicles he saw only Benner’s taillights. Bell testified he could see for three-eighths of a mile, normal visibility being one-half to three-fourths of a mile. Bell said he first saw the Benner vehicle about one-fourth of a mile away and thought it to be traveling at a normal speed. He then glanced in his rearview mirror and, when he returned his eyes to the road in front of him, the Benner vehicle was only 600 or 700 feet away. At this point he thought the vehicle was stopped but then quickly realized it was moving at a very slow speed. Bell said he applied his brakes to avoid colliding with Benner, but his truck hit a patch of ice and skidded into the rear of Benner’s car. Bell stated that he had been traveling about 35 miles per hour and hit Benner at a speed of approximately 25 miles per hour.

Plaintiffs filed suit against Schrock, Bell, and Yeakel. Dale Cordt, the proprietor of the bar where Bell was drinking prior to the accident, is also a dramshop defendant. Yeakel’s motion for summary judgment was granted. The claim against Bell was discharged in bankruptcy. The only remaining defendant involved in this appeal is Schrock, in whose favor the summary judgment was entered.

Plaintiffs allege that Schrock’s failure to have operating taillights was a proximate cause of the collision because Bell was not properly alerted to the slow-moving vehicle situation and could not slow his vehicle in time to avoid collision with Benner. Defendant Schrock moved for summary judgment after the depositions of all relevant parties had been taken. Because there was an issue of fact as to his lights Schrock conceded, for purposes of his summary judgment motion, that his lights were not working at the time of the accident. He argued that the deposition testimony established that the time interval between Benner’s slowing down to the speed of the buggy and Bell’s coming upon the scene and striking Benner was long enough to eliminate any sudden decrease in speed of the Benner vehicle as a causative factor of the collision. Plaintiffs responded that if the buggy had been properly lit, Bell would have seen the lighted buggy in front of Benner and would have been better able to slow his vehicle down and avoid collision. On September 11, 1991, the trial court granted summary judgment to Schrock, finding the absence of lighting on Sch-rock’s buggy was not a proximate cause of plaintiffs’ injuries as a matter of law. This appeal followed.

In order to prevail in an action for negligence, the plaintiff must prove that the defendant owed a duty, that defendant breached that duty, and that defendant’s breach was the proximate cause of injury to the plaintiff. (American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 25, 594 N.E.2d 313, 318.) A dismissal (Ill. Rev. Stat. 1991, ch. 110, par. 2—615) or a summary judgment (Ill. Rev. Stat. 1991, ch. 110, par. 2—1005) is the likely result where there is no duty; whether a duty exists in a particular case is a question of law to be determined by the court. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 525, 513 N.E.2d 387, 395-96; Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226.) In determining the existence of a duty the “reasonable foreseeability” of injury is one important factor. Other considerations include the likelihood of injury, the magnitude of the burden of guarding against it and the consequences of placing that burden upon the defendant — questions of policy. Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 226-27; Rowe v. State Bank (1988), 125 Ill. 2d 203, 227-28, 531 N.E.2d 1358, 1369-70.

While the issue of duty is a question of law, the issues of breach of that duty and proximate cause are said to be questions of fact for the jury. (Scott & Fetzer Co. v. Montgomery Ward & Co. (1986), 112 Ill. 2d 378, 393, 493 N.E.2d 1022, 1028; American National, 149 Ill. 2d at 29-30, 594 N.E.2d at 320.) Courts have been criticized for sometimes defining duty very specifically, and affirming summary judgments on the basis of the absence of a duty of care, when the issue could more properly be considered one of breach of duty. (4 R. Michael, Illinois Practice §40.5, at 285-86 (1989).) That criticism appears unfounded. The issues of duty, breach, and proximate cause are not completely separate. Foreseeability is a factor both in determining duty and in determining proximate cause. It is possible to deal with most of the questions which arise in a negligence case in terms of duty. (W. Keeton, Prosser & Keeton on Torts §53, at 356 (5th ed. 1984).) Such an approach may in fact be helpful because it may direct attention to the policy issues which determine the extent of the original obligation, rather than to the mechanical sequence of events which goes to make up causation in fact. (W. Keeton, Prosser & Keeton on Torts §42, at 274 (5th ed. 1984).) The same policy questions which must be addressed in determining duty must be addressed, although more narrowly, in determining proximate cause. Cause in fact, “but for” causation, is not enough for liability. “*** ‘ “Once it is established that the defendant’s conduct has in fact been a cause of the injury *** there remains the question whether the defendant should be legally responsible for what he has caused ***,”’” and that is a question of policy to be resolved by the courts. Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 89, 508 N.E.2d 1201, 1210, quoting Kerns v. Engelke (1977), 54 Ill. App. 3d 323, 333, 369 N.E.2d 1284, 1292, aff’d in part & rev’d in part (1979), 76 Ill. 2d 154, 390 N.E.2d 859.

In the present case there is no policy disfavoring liability, whether those policy questions are considered on the issue of duty or the issue of proximate cause. It cannot be said that the law is offended by a buggy operator being held liable for injuries resulting from his operation of his buggy without lights. Even where there is no public policy against liability, however, a defendant will not be held liable for every injury which is in fact caused by his conduct. A defendant will not be held liable for injuries for which his conduct was a remote cause — only for injuries proximately caused by his conduct, only for foreseeable injuries, only for conduct “which, in natural or probable sequence, produced the injury complained of.” (Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1992) (hereinafter IPI Civil 3d).) “Foreseeability” means that which it is objectively reasonable to expect, not merely what might conceivably occur. (American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) Still, there can be liability even if the precise injury which resulted is not foreseen. Scott & Fetzer, 112 Ill. 2d at 393, 493 N.E.2d at 1029; Rowe, 125 Ill. 2d at 227, 531 N.E.2d at 1369.

Foreseeability questions are generally left to the jury, but proximate cause becomes a question of law when the facts are undisputed and are such that there can be no difference in the judgment of reasonable persons as to the inferences to be drawn from them. (Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 357, 564 N.E.2d 242, 253; Thacker v. U N R Industries, Inc. (1992), 151 Ill. 2d 343, 355-56.) A number of negligence cases have affirmed summary judgment for defendant, finding no proximate cause as a matter of law. (West v. Deere & Co. (1991), 145 Ill. 2d 177, 183, 582 N.E.2d 685, 688 (cultivator designed 6V2 inches too wide for traffic lane, but farmer could have chosen a better route, and plaintiff may have swerved over centerline); Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 1002, 473 N.E.2d 531, 536 (plaintiff’s vehicle struck a roadsweeper escort vehicle, with a nonconforming tailgate sign, stopped on the shoulder); Bogovich v. Nalco Chemical Co. (1991), 213 Ill. App. 3d 439, 440, 572 N.E.2d 1043, 1043 (plaintiff’s vehicle struck defendant’s vehicle, allegedly improperly parked on a median strip); Salinas v. Werton (1987), 161 Ill. App. 3d 510, 512, 515 N.E.2d 142, 143 (plaintiff struck parked tow truck on shoulder; tow truck was not carrying flares which it could have used to warn traffic); Ball v. Waldo Township (1990), 207 Ill. App. 3d 968, 970, 567 N.E.2d 10, 11 (after plaintiff’s vehicle left road, he drove through a field, then drove back across the road before impact occurred; held summary judgment was appropriate); Young v. Texas Eastern Transmission Corp. (1985), 137 Ill. App. 3d 35, 40, 484 N.E.2d 325, 328 (summary judgment for defendant despite allegations defendant could have avoided accident after plaintiff’s decedent swerved into defendant’s lane).) Anderson v. Jones (1986), 66 Ill. App. 2d 407, 213 N.E.2d 627, reversed a judgment following jury verdict against defendant Jones, who had caused an accident which blocked a highway; plaintiffs stopped for the Jones accident with no injuries, but after they had been stopped for two or three minutes they were struck by Zehr. However, summary judgment has been reversed in other cases. Turner v. Roesner (1990), 193 Ill. App. 3d 482, 485, 549 N.E.2d 1287, 1289 (plaintiff’s car crossed into defendant’s lane; jury question whether defendant was driving too fast to stop within distance illuminated by headlights); Chevrie v. Gruesen (1991), 208 Ill. App. 3d 881, 882, 567 N.E.2d 629, 630 (summary judgment reversed where plaintiff crossed into defendant’s lane; jury question whether defendant failed to keep a proper lookout and was driving too fast for conditions).

The existence of an “intervening cause,” the negligent, or even criminal, act of a third party which is a cause of the injury, may not insulate a defendant from liability where that intervening cause is foreseeable. (Rowe, 125 Ill. 2d at 224, 531 N.E.2d at 1368 (landlord could be liable for damages caused by third party’s criminal act, where landlord was aware of outstanding master keys); Michalak v. County of La Salle (1984), 121 Ill. App. 3d 574, 576, 459 N.E.2d 1131, 1132 (county could be liable for negligent installation and maintenance of a guardrail, which plaintiff’s car struck while he was bent over tending to a cigarette); King v. Petefish (1989), 185 Ill. App. 3d 630, 640, 541 N.E.2d 847, 853-54 (defendant could be liable for death of intoxicated minor to whom she entrusted her mother’s car).) There can be more than one proximate cause of an injury. (Durbin, 206 Ill. App. 3d at 357, 564 N.E.2d at 253 (tractor-trailer upset could have been caused both by defendant’s unbalanced loading, and by plaintiff-driver’s dumping while unit was in a jackknife position).) It is interesting that the Illinois civil pattern jury instructions, which devote a great deal of attention to negligence, do not contain an instruction on intervening or superseding cause. The IPI Civil 3d instructions dealing with the conduct of another excuse defendant’s conduct only if some other person’s conduct was the sole proximate cause of injury to the plaintiff. (IPI Civil 3d Nos. 12.04, 12.05.) Under IPI the conduct of others most often is just a factor to be considered by the jury in determining proximate cause: whether defendant’s conduct “in natural or probable sequence, produced the injury complained of.” IPI Civil 3d No. 15.01.

It has been suggested that the advent of comparative fault should change our views on conduct which can only remotely be considered to have caused an injury, i.e., that a remote cause can now appropriately be charged with some slight percentage of liability. (Holbrook, 129 Ill. App. 3d at 1001, 473 N.E.2d at 535; King, 185 Ill. App. 3d at 641-42, 541 N.E.2d at 854.) That suggestion seems inconsistent with the basic concept of negligence, that a person need not foresee consequences which are highly unlikely to occur, and was apparently rejected in Ward (136 Ill. 2d at 145, 554 N.E.2d at 229 (“We hold therefore that the adoption of comparative negligence in this State has no effect on the basic duty a defendant owes to a plaintiff”)). Of course, before the demise of contributory negligence it was impossible to have a case where plaintiff’s conduct was an intervening cause of an injury, and that is no longer true.

One approach in proximate cause cases is for the court to rule, as a matter of law, that defendant’s act was only a condition by which the injury was made possible, and not the cause of the accident. (Merlo v. Public Service Co. (1942), 381 Ill. 300, 316, 45 N.E.2d 665, 675; West, 145 Ill. 2d at 181-82, 582 N.E.2d at 687; Ball, 207 Ill. App. 3d at 973, 567 N.E.2d at 13.) That approach is useful in indicating that there is more to liability than cause in fact, that policy decisions must be made as a matter of law, and courts in some cases may make the decision that conduct is only a remote cause of injury. That approach is not much help, however, in determining whether defendant’s conduct was a cause or a condition in a particular case. In all these cases there was cause in fact; the accident would not have occurred but for the existence of the “condition.” In Salinas (161 Ill. App. 3d at 513-14, 515 N.E.2d at 144), plaintiff argued that an accident, where a van drove onto the shoulder of the road and struck the operators of a tow truck, would have been avoided if the tow truck had had flares and had placed them on the roadside (the tow truck did have lights flashing). The argument was rejected as “mere speculation, guess or conjecture.” (Salinas, 161 Ill. App. 3d at 515, 515 N.E.2d at 144.) Again, the catchword “speculation” does not add much to the analysis, but it does show that at a certain point the possibility that conduct has caused an injury becomes so slight that it may be disregarded as a matter of law.

It was once the law that a mere scintilla of evidence was sufficient to raise a genuine issue of a material fact and defeat a summary judgment. That is no longer true. See Laycock, Dispositive Pre-Trial Motions in Illinois — Sections 15, 18, and 57 of the Civil Practice Act, 9 Loy. U. Chi. L.J. 823, 847 (1978); 4 R Michael, Illinois Practice §40.2 (1989); Schwarzer, Hirsch & Barrans, The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 477 (1991).

“[I]f what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered.” (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.)

(See Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505.) On defendant’s motion for summary judgment, a plaintiff is not required to establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to a judgment. (West, 145 Ill. 2d at 182, 582 N.E.2d at 687.) A plaintiff may not resist a motion for summary judgment, on an issue on which he has the burden of proof, by arguing that it is up to movant to negate his case. Webber v. Armstrong World Industries, Inc. (1992), 235 Ill. App. 3d 790, 795-96; Gresham v. Kirby (1992), 229 Ill. App. 3d 952, 954, 595 N.E.2d 201, 203; Celotex Corp. v. Catrett (1986), 477 U.S. 317, 325, 91 L. Ed. 2d 265, 275, 106 S. Ct. 2548, 2554 (no burden on movant to produce evidence on issue where nonmovant bears burden of proof; movant may “point[ ] out” there is no evidence to support nonmovant’s case).

Plaintiff’s argument in this case is that Bell, the intoxicated driver following her, would have been able to react to lights on the buggy, although he was not able to react to the lights on her vehicle. Plaintiff’s vehicle had been following immediately behind the buggy, at the same speed as the buggy, for about 10 to 15 seconds. The possibility that Bell would have so reacted, in our view, is so remote that a verdict in favor of plaintiff on that basis could never stand. Bell recognized that the Benner vehicle was a slow-moving vehicle, but he still failed to slow down properly and avoid collision, although he testified he had 600 to 700 feet in which to react after he realized the Benner car was moving very slowly or stopped. The accident would not have happened but for the slow-moving buggy’s presence on the highway, but that cannot be a basis for liability. Slow-moving horse-drawn buggies are allowed on Illinois highways. Ill. Rev. Stat. 1989, ch. 951/2, pars. 11-206,12-205, 12-709(a).

This case is similar to Salinas (161 Ill. App. 3d at 513, 515 N.E.2d at 143), where “[a]ll of the lights on the tow truck were in operation, including the yellow Mars lights, the four-way flashers, the headlights and the taillights,” but plaintiff argued that if the tow truck had also had flares it would have made a difference. This case is also similar to Anderson, where defendant was admittedly at fault in the original accident, but a line of cars had then successfully stopped before a third party plowed into the last car in line. In both these cases the court decided the issue in favor of defendant as a matter of law. In Lindenmier, left-turn green arrows were not working the day of the accident, and had not been working for several days prior thereto; plaintiffs decedent made a left turn on a solid green light, in the belief that oncoming traffic had a red light. The court found that the display of a solid green light was neither the cause in fact nor the legal cause of decedent’s decision to make the left-hand turn, and affirmed a summary judgment against plaintiff, despite the remote possibility that the absence of a working green arrow caused decedent to guess whether oncoming traffic had a red or green light. (Lindenmier, 156 Ill. App. 3d at 90, 508 N.E.2d at 1211.) The present case is similar.

The evidence on proximate cause so overwhelmingly favors defendant that a contrary verdict could never stand. The trial court properly entered summary judgment for defendant Schrock.

Affirmed.

GREEN, P.J., and LUND, J., concur.