author: JUSTICE BUCKLEY

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIAM BROWN, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—2430
    Opinion filed May 28, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Elizabeth Burke and James Reddy, Assistant Public Defenders, of counsel), for appellant.
    John O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and Tyra H. Taylor, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE BUCKLEY

delivered the opinion of the court:

Defendant William Brown appeals his conviction and 60-year sentence for two counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(a)(3)) and his conviction and 15-year concurrent sentence for aggravated kidnapping (Ill. Rev. Stat. 1985, ch. 38, par. 10—2(a)(3)). On appeal, defendant contends that the circuit court committed reversible error in (1) admitting evidence of defendant’s other crimes under the modus operandi exception, (2) refusing to allow defendant to argue consent in his closing argument, and (3) refusing to instruct the jury on the defense of consent. Defendant also contends that his conviction and sentence for aggravated kidnapping were improper where any detention of complainant was merely incidental to the commission of the underlying sexual assault offense and that his extended 60-year sentence for aggravated criminal sexual assault is excessive.

Complainant testified that in August 1986, she was a 16-year-old high school student on summer vacation working at Burger King and Wendy’s fast-food restaurants. On August 6, at 10:30 p.m., complainant completed work and walked towards her “L” station. On the way, she met defendant for the first time, whom she identified in court. She testified that defendant said “hi” to her and she responded “hi.” As she continued to walk, defendant followed her and told her that she “looked like an old friend of his that he was in love with.” Complainant continued walking and defendant followed her, saying he was “going that way.” While waiting for her train, defendant began talking about a clerical job available at Water Tower Place and that he would help her get the job and to write out a resume for the position. Defendant also offered to give her $200 for some nice clothes but complainant declined. As complainant’s train approached, the two made arrangements to meet at Wendy’s the next day.

At Wendy’s the following day, complainant was informed that she needed to accompany defendant to his office to fill out her resume because defendant’s papers were located there. The two proceeded by bus to a building which complainant later learned to be the Roosevelt Hotel. Complainant testified that she did not know where she was going and that she never had been to a hotel in her life. Although she had seen hotels on television and in magazines, this hotel did not look like any of those. After entering the hotel, defendant instructed complainant to sit and wait while he went and spoke to the clerk at the desk. Defendant returned and instructed complainant to follow him.

Complainant and defendant then took an elevator to the room where the alleged assault took place. Complainant saw a bed in the room and “whispered” that she did not want to go in there. She entered anyway because defendant was “rushing” her into the room and the elevator operator was standing at the entrance way.

Inside the room, complainant sat down on a chair and defendant on the bed. Defendant talked to complainant until she told defendant that she wanted to start working on the resume. Defendant stated that he first had to ask her the same question that he had asked 26 other girls. Defendant noted that only one of those girls had answered the question correctly and wondered whether complainant would get it right. Defendant asked complainant, “if a dear friend to you did you a favor regardless of what it was, and they asked you to do them a favor, would you do it[?]” Complainant responded, “[I]t depends on what the favor is.” Defendant told her she answered the question incorrectly and asked it of her again. Complainant testified, “I started catching on, I say, well, if it has to do with sex, no, and then I got up.” She continued, “I was about to walk out of the room. And he said you better sit down before I knock you out.” Complainant sat back down and defendant told complainant that if she did not cooperate he was “going to knock you out and take it anyway, so its better if you just take off your dress.” Complainant refused, and defendant threatened to knock her out the window. Complainant took off her dress and was told to lie on the bed.

Defendant got on top of complainant and began licking her neck. Complainant requested defendant to stop, but he told her “all I want to do is just lick you all over.” Defendant took off complainant’s bra and began licking and biting her breast, and then he worked his way down to her vagina. Complainant was crying the whole time and repeatedly told defendant to stop. Defendant told her that he would not get off her until she acted like she was enjoying the assault. He continued biting the victim’s vagina and complainant, while crying, pretended like she enjoyed the assault. Defendant next pulled off his pants and put his penis inside complainant’s vagina but was unable to get it in all the way because complainant was “real dry” and kept “pushing it out” by moving around. Defendant then tried to stick his penis in her anus but was unsuccessful because complainant continued to move around.

Defendant then got off complainant and handed her a towel to wipe herself. She kept the towel for evidence. After both got dressed, defendant told her “to stop crying because if [she goes] downstairs crying he was going to knock her out.” The two proceeded downstairs and walked towards an “L” station together. Defendant gave complainant a “Plain Truth” magazine and wrote a phone number on the back and told her he would meet her the next day in front of Water Tower Place. Complainant went home and immediately took a bath. She called the number on the magazine but nobody at that number had heard of defendant’s name. Complainant then told her mother about the assault and the police were then called. Complainant told one of the officers that she had been sexually assaulted, and the police later took complainant to the hospital.

At the hospital, complainant told the nurse that she believed that defendant had anal intercourse with her because she had a painful bowel movement. The State and defendant stipulated to the testimony of the examining physician, Dr. Thomas Peters. Dr. Peters would testify that complainant told him that she was sexually assaulted and that defendant possibly engaged in anal intercourse with her against her will. The doctor found no signs of trauma and complainant’s hymen was still intact. The doctor was unable to complete the vaginal exam because of complainant’s great fear.

On December 15, 1986, after defendant was taken into custody, complainant positively identified defendant in a police lineup. Both complainant’s mother and the police officer who responded to the call were later called by the State and confirmed that complainant had stated to them that she was sexually assaulted by defendant.

On cross-examination, complainant testified that defendant’s briefcase contained “fake” resumes. She admitted that she was “suspicious” of defendant but that he also reminded her of a teacher at school. She stated that she knew Water Tower Place consisted of businesses and was in a wealthy neighborhood. Complainant also admitted that she voluntarily accompanied defendant to the hotel and that, while she did not know she was entering a hotel, she did notice a desk clerk and an elevator operator. Complainant also admitted that she did not mention to the desk clerk or to anyone in the hotel lobby or on the way to the train that she had been sexually assaulted.

Christine Anderson, an expert witness from the Chicago crime laboratory serology unit, testified for the State. She stated that there was no semen present in the vaginal and rectal swabs taken at the hospital. She also stated, however, that a negative result was not uncommon and could be caused by there being no intercourse, no ejaculation, or if the portion of the orifice tested did not contain any semen. She also stated that a bath could wash away any semen.

Over defendant’s objection, two women testified to having been similarly assaulted by defendant. J.H. testified first. She stated that on November 4, 1986, she had just finished working at Mrs. Fields Cookies and went to a Burger King restaurant on State Street. While ordering food, a man, whom J.H. identified as defendant, approached her and told her that she looked like a lady named Pamela and that he could get her a clerical job at Water Tower Place. Defendant asked her whether she would do a favor for someone if that person did a favor for her. J.H. responded that it all depends on the favor. Defendant asked her if she had a resume and told her that he already had one and would make copies for her. She did not know where they were going but was interested in the job because defendant was making the job sound “so good.” She took a State Street bus with defendant to the Roosevelt Hotel. She knew what was happening to her was unusual, but she continued with defendant into the hotel. After defendant checked in with the clerk, they proceeded to the room.

Inside the room, J.H. asked defendant about the resume. Defendant said there was no resume. She told defendant that she wished to leave, and defendant said, “[Y]ou ain’t going to leave now cause you here now and I want to get what I can.” She again asked to go, but defendant threatened that he would hit her. Defendant threatened to hit her three times and told her he wanted to have sex with her. She responded no, but after continued threats, she took off her pants and panties. Defendant gave her a towel to wipe her vagina so he would not catch a disease. J.H. removed her bra upon defendant’s request and defendant started licking her breasts and vagina. Defendant then had vaginal intercourse with her. After the incident J.H.’s mother telephoned the police. J.H. positively identified defendant in the police lineup held on December 15,1986.

On cross-examination, J.H. admitted that she knew where Water Tower Place was and that she and defendant were not riding the bus in that direction. She also admitted seeing the Roosevelt Hotel sign before entering it and that defendant never struck her. She stated that she knew Chicago police headquarters was located around the corner from the hotel but did not go there after the assault or tell anyone what had happened. J.H. admitted telling the police earlier that defendant had forced her off the bus, but on redirect, she testified that she so stated because she felt stupid about how she had acted. J.H. testified that she voluntarily accompanied defendant to the hotel.

I.F. also testified about an encounter with defendant. She testified that on August 11, 1986, she was walking in the Loop when a man, later identified as defendant, approached her and said that she looked like a lady named Pamela that he had just hired at Water Tower Place. He informed her that Plitt Theatres was hiring there and asked if she needed a job. She responded that she did and the two proceeded to a Burger King restaurant. Defendant told her more information about the job and that he would take her to his office, where she could fill out a resume for herself. Defendant continued by giving I.F. a lady’s name who would train her and told her that they would give her money to buy clothes until her first paycheck.

The two left Burger King and went by bus to defendant’s office to complete the resume. I.F. did not know where she was going but nevertheless exited the bus and accompanied defendant into the Roosevelt Hotel. Defendant told her it would only take a few minutes to complete her resume and then he would take her to Water Tower Place. She waited for him while he went to the desk clerk. Defendant was wearing a suit and carrying a briefcase. Defendant returned to where she was standing and hurried her to follow him. She resisted at first because she knew it was a hotel, but defendant repeated it would only take a few minutes and questioned her if she really wanted the job. Defendant “grabbed” I.F.’s arm and the two proceeded up to the room by elevator. Inside the elevator, defendant told I.F. how she would get to see free shows and shop all the time.

Once inside the room, she told defendant that she wanted to go. Defendant pushed her on the bed and had his hand on her throat and told her that if she did not cooperate he would kill her. She was crying and screaming, and he told her to shut up. He burnt her back with his cigarette and pulled off her pants while she was kicking him. He told her he had a gun in his briefcase and that if she did not cooperate he would use it. She stopped resisting and defendant began to “bite her vagina and spit blood” on her. She kept crying and screaming and he told her to shut up and that he was going to stick his penis in her. She started screaming again so defendant stopped, got off the bed and pulled up his pants. He told her that if she told anyone he would go to her school and kill her. Both then left the room, and I.F. went to her sister’s house. She told her sister what happened and took a bath. The police were called two to three hours later. On December 15, 1986, I.F. saw defendant again while walking down State Street. She ran and got the police and defendant was arrested. Later, at a police station, I.F., complainant and J.H. met for the first time.

On cross-examination, I.F. admitted that she did not tell the doctor about the cigarette burn she received. I.F. responded, however, that she omitted this information because she was more concerned with the other parts of her body. She admitted not telling anyone of the assault until she told her sister.

Officer Patricia Harrison testified for the State that she spoke with the alleged victims and arranged the police lineup. I.F. and complainant were called following defendant’s arrest because the assaults followed a pattern and it was suspected that the same defendant committed all of the attacks. On cross-examination, Officer Harrison stated that no mention of a gun or cigarette burns appears in the initial police report that was prepared regarding I.F. She also explained, however, that a page of the report was lost and, on redirect, she indicated that I.F. had repeated to her in December 1986 that those incidents had occurred.

At the close of the case, the court denied defendant’s motion for a consent instruction because the evidence was “devoid of any scintilla of anything” regarding proof of consent. The State nol-prossed two of the eight original aggravated criminal sexual assault charges and the unlawful restraint charge. The jury then found defendant guilty of aggravated criminal sexual assault, criminal sexual assault, aggravated kidnapping and kidnapping. After the court merged many of these counts, it sentenced defendant to an extended term of 60 years on two aggravated criminal sexual assault counts and a 15-year concurrent sentence on the aggravated kidnapping conviction. Because of the sentence defendant received, the State nol-prossed the charges against defendant relating to the sexual assaults on J.H. and I.F. Defendant brings this appeal.

The first issue raised on appeal is whether the circuit court properly admitted the “other crimes” evidence for purposes other than to show defendant’s character or propensity to commit crime. Prior to trial, defendant moved in limine to exclude the “other crimes” evidence. The circuit court granted this motion but reserved the right to subsequently change its ruling. Later, relying on People v. Kimbrough (1985), 138 Ill. App. 3d 481, 485 N.E.2d 1292, and People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334, the State moved the circuit court to reconsider its prior ruling. Finding the cases presented by the State persuasive, the court ruled that the “other crimes” evidence was admissible. In so doing, the court rejected defendant’s contention that People v. Barbour (1982), 106 Ill. App. 3d 993, 436 N.E.2d 667, controlled the issue.

Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant’s propensity to commit crime. (People v. McKibbins (1983), 96 Ill. 2d 176, 182, 449 N.E.2d 821, 823, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145.) Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove any purpose other than propensity to commit crime, such as modus operandi, intent, identity, motive, or absence of mistake. (McKibbins, 96 Ill. 2d at 182, 449 N.E.2d at 824; see also Kimbrough, 138 Ill. App. 3d at 484-85, 485 N.E.2d at 1296.) It is within the sound discretion of the trial court to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact; this determination will be overturned only if there exists a clear abuse of discretion. Fuller, 117 Ill. App. 3d at 1036, 454 N.E.2d at 342-43.

In resolving the issue relating to the admissibility of the “other crimes” evidence, the circuit court noted an apparent conflict existing within the divisions of the first district as indicated by the decisions in Barbour, Fuller, and Kimbrough. In Barbour, defendant was charged with a sexual assault offense and offered consent as a defense. The State offered the testimony of two other witnesses who testified to being raped by the defendant. On appeal, the appellate court held that the circuit court erred in admitting this testimony under the modus operandi exception because the acts lacked sufficient similarity. The court further held that even if sufficient similarity existed, the evidence was inadmissible on relevancy grounds because the identity of the defendant was never in issue as a result of defendant admitting that intercourse took place. (Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 672-73.) The court also rejected on relevancy grounds the State’s contention that because the two other women testified to having nonconsensual intercourse with defendant, it was then probable that in the instant case the complainant also did not give her consent. Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 673.

In Fuller and Kimbrough, the courts were faced with the same issue as the Barbour court faced. In both cases, however, and in contrast with Barbour, the courts admitted evidence of other crimes to show modus operandi even though identity of the accused was not an issue. These courts reasoned that the relevancy of modus operandi evidence is not limited to the identity of the accused, but is also relevant and admissible on the distinct issue of whether a crime was committed at all. (Fuller, 117 Ill. App. 3d at 1034, 454 N.E.2d at 341; Kimbrough, 138 Ill. App. 3d at 486-87, 484 N.E.2d at 1298.) We note that this latter proposition was first stated by Justice Simon in People v. Middleton (1976), 38 Ill. App. 3d 984, 350 N.E.2d 223, and has been frequently repeated by our appellate courts. (See People v. Clauson (1989), 182 Ill. App. 3d 268, 537 N.E.2d 1048; People v. Taylor (1987), 153 Ill. App. 3d 710, 506 N.E.2d 321; People v. Burgin (1979), 74 Ill. App. 3d 58, 392 N.E.2d 251.) Thus, contrary to defendant’s assertion, the circuit court properly questioned the persuasiveness of Barbour and followed Fuller and Kimbrough instead. See also M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §404.5 (5th ed. 1990).

In this case, the similarities between the crime charged and the other crimes were numerous. To name a few, each victim was told about a job at Water Tower Place, each was “tricked” into accompanying defendant to his “office” in order to prepare resumes, each was taken to the Roosevelt Hotel, each was young African-American, and each was molested in similar fashions. Moreover, at least two of the victims were asked the peculiar “favor” question and were offered money for clothes. These similarities establish “a substantial and meaningful link between the offenses being compared” and are “not common to most offenses of that type.” (Clauson, 182 Ill. App. 3d at 276, 537 N.E.2d at 1053.) Accordingly, the other crimes testimony in this case proved defendant’s modus operandi, which in turn was relevant to prove defendant’s guilt. No abuse of discretion has therefore been shown.

The second issue raised by defendant is whether the evidence produced at trial entitled defendant to a jury instruction on the issue of consent and the right to argue consent to the jury during his closing argument. A defendant is entitled to the benefit of any defense shown by the entire evidence, and very slight evidence upon a given theory of a case will justify the giving of an instruction. (People v. Bratcher (1976), 63 Ill. 2d 534, 540, 349 N.E.2d 31, 34.) In this case, defendant contends that because complainant’s “consent is a current running through the entire record,” the court erred in not granting his requested consent instruction. We disagree.

Nowhere in complainant’s testimony does an inference of consent to the sexual acts arise. Admittedly, complainant voluntarily accompanied defendant to the Roosevelt Hotel and into the hotel room. This voluntary action, however, occurred only as a result of defendant’s deceitful scheme which played upon complainant’s youth, inexperience and immaturity. Thus, merely because complainant consented to defendant’s actions up until the time at which she entered the hotel room with him does not mean that a jury could infer that she consented to the sexual acts which later transpired. Similarly, what transpired after the assault does not give rise to an inference of consent. Complainant testified that after the assault, defendant walked her to the nearby “L” station; that he gave her a telephone number which complainant called when she first got home; and that she did not report the assault to anyone until after unsuccessfully calling this number in an attempt to reach defendant. Again, none of these events gives rise to the inference that complainant consented or approved of what had previously transpired. Finally, as for the sexual acts themselves, the evidence is uncontradicted that complainant’s participation in the acts occurred only after defendant’s threatened use of force. Taken together, the evidence as to before, during and after the assault does not even yield slight evidence that complainant consented to defendant’s conduct. Therefore, the circuit court properly denied defendant’s request for a jury instruction on the issue of consent.

Because no evidence supported the giving of a consent instruction, it follows that the circuit court properly refused to allow defendant to argue consent to the jury during closing argument. All remarks made in closing argument must be based upon evidence presented during trial or reasonable inferences from such evidence. (People v. Uzelac (1988), 179 Ill. App. 3d 395, 534 N.E.2d 1250.) Absent slight evidence of consent, the court properly limited the content of defendant’s closing argument.

The third issue we address is whether the defendant was properly convicted of aggravated kidnapping in addition to his conviction for aggravated criminal sexual assault. As to this issue, defendant contends that because the detention of complainant was merely incidental to the underlying crime of sexual assault, his conviction for both was improper. This contention, however, ignores the asportation element of defendant’s actions and that kidnapping and sexual assault are distinct offenses requiring different elements of proof.

A person commits aggravated kidnapping in Illinois when he commits the crime of kidnapping and, in addition, inflicts great bodily harm or commits another felony upon the victim. (Ill. Rev. Stat. 1985, ch. 38, par. 10—2.) A person commits kidnapping when he knowingly by “deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will.” (Ill. Rev. Stat. 1985, ch. 38, par. 10—1(a)(3).) As these definitions indicate, kidnapping can occur, as it did here, in relation to asportation, not merely detention, when such asportation is induced by deceit or enticement and accompanied with the requisite mental state. Moreover, the definition of kidnapping demonstrates that it is totally distinct from the crime of sexual assault. This latter crime requires an act of sexual penetration by the use of force or threat of force. (Ill. Rev. Stat. 1985, ch. 38, par. 12—13(a)(1).) A plain reading of the statutes yields the conclusion that the two crimes are quite different. Accordingly, multiple convictions with concurrent sentences are proper. See People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; see also People v. Casiano (1991), 212 Ill. App. 3d 680 (kidnapping and aggravated criminal sexual assault are separate offenses).

The final issue we address is whether defendant’s extended sentence of 60 years for aggravated criminal sexual assault is excessive. A sentence imposed by a trial court will be upheld on review absent an abuse of discretion. (People v. Palmer (1989), 188 Ill. App. 3d 414, 545 N.E.2d 743.) We find that no abuse of discretion has been shown.

Defendant was convicted of aggravated criminal sexual assault, a Class X felony. (Ill. Rev. Stat. 1985, ch. 38, par. 12—14(c).) In the absence of aggravating factors, defendant’s sentence shall be between 6 and 30 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—1 (a)(3).) In the presence of aggravating factors, defendant may receive an extended-term sentence of between 30 and 60 years. (Ill. Rev. Stat. 1985, ch. 38, par. 1005—8—2(a)(2).) In this case, the circuit court considered in aggravation the statutory factors that defendant’s conduct caused or threatened serious harm, that others need to be deterred from committing similar acts, and that defendant had a history of criminal activity, including a prior Class X felony conviction and a sex offense against minors conviction. (See Ill. Rev. Stat. 1985, ch. 38, pars. 1005—5—3.2(a), (b).) The court also considered the nature of defendant’s actions, which it found “distasteful,” and the need to protect other members of society from defendant’s continuing scheme, which, according to the court, defendant “deftly executed.” No mitigating factors were found. Based on the above, no abuse of discretion has been shown. Therefore, we find that the length of defendant’s sentence is proper.

Accordingly, for the foregoing reasons, we affirm defendant’s conviction and sentence.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
      In re MARRIAGE OF WILLIAM S. KENNEDY, Petitioner and Counterrespondent-Appellant, and MARY JEAN KENNEDY, Respondent and Counterpetitioner-Appellee.
    First District (1st Division)
    Nos. 1—89—0605, 1—89—1761 cons.
    Opinion filed May 28, 1991.

      Paul J. Bargiel, of Chicago, for appellant.
    Paul R. Jenen, of Wheeling, for appellee.

       We note that William’s contention that he pays $800 per month in unallocated maintenance and child support, if true, is in excess of the trial court’s order ordering William to pay 362/3% of his monthly net income or $525, whichever is greater, unless the $800 payment includes other obligations.

   JUSTICE CAMPBELL

delivered the opinion of the court:

This is a consolidated appeal brought by petitioner/counterrespondent, William S. Kennedy, from a judgment for dissolution of marriage and from an order entered by the trial court which awarded partial payment of prospective appellate attorney fees to respondent/ counterpetitioner, Mary Jean Kennedy. On appeal, William contends that the trial court abused its discretion when it: (1) awarded 70% of the proceeds from the sale of the marital home to Mary Jean; (2) awarded monthly unallocated maintenance and support to Mary Jean in the amount of 36/s% of William’s monthly net pay or $525, whichever is greater; (3) found that William owed $3,175 in support arrearage; and (4) awarded partial attorney fees to Mary Jean for both the trial and the appeal. For the following reasons, the judgment of the trial court is affirmed.

The record sets forth the following facts. On September 20, 1984, William filed a petition for dissolution of marriage. Mary Jean filed a counterpetition. The couple had been married since April 25, 1959, and had five children. At the time the petitions were filed, three of the children were emancipated and two were minors. During the proceedings, Mary Jean remained living in the marital residence with the minor children.

On December 6, 1985, Mary Jean filed a petition for temporary maintenance and child support. Pursuant to an agreed order, entered January 15, 1986, William agreed to pay Mary Jean $600 per month in temporary maintenance and child support. Mary Jean was to be responsible for making the mortgage payments on the marital home and for paying for routine household expenses. At the time the agreed order was entered, Mary Jean had just started working full time for Palatine High School District 211 as a student supervisor, earning approximately $8,500 per year, and William was working full time as a pari-mutuel clerk at Chicago-area race tracks, earning approximately $45,000 per year.

Subsequently, on June 29, 1987, William filed a petition for modification of the temporary maintenance and support order on the grounds that one of the minor children had reached majority and that he had been released from his employment. William alleged that starting in May 1986, he had worked full time at Illini Hardware and part time at the race track, earning $32,788 that year. In May or June 1987, William was terminated from his position at Illini Hardware. He claimed that he attempted to work full time at the race track, but could not get the assignments he sought. Instead, he worked approximately five shifts per week at the race track. William explained that a shift is a series of 9 to 11 races with a duration of 5 to 5x/2 hours. Prior to any ruling on the petition for modification, William unilaterally decreased his monthly payments to Mary Jean from $600 to $300, effective July 1,1987.

The trial court ruled on William’s petition for modification on February 16, 1988, as part of its oral pronouncement regarding the judgment for dissolution and disposition of marital property. Following hearings on William’s objections to the trial court’s oral pronouncements, the trial court entered the judgment for dissolution of marriage on February 6, 1989, which included, inter alia, the following findings:

“(1) William, age 51, presently worked at Maywood Race Track, earning net monthly wages of approximately $1448.73.
(2) Mary Jean, age 49, presently worked as a student advisor for the 10-month school year, earning approximately $9000 per year gross wages or $651 net monthly wages.
(3) Mary Jean lacks sufficient property to provide for her reasonable needs and is otherwise without sufficient income to provide for her support commensurate with the standard of living established during the long-term marriage.
(4) The parties have stipulated that it is in the minor son’s best interests to be in the full care and custody of Mary Jean.
(5) The Continental Illinois Bank account in the names of Mary Jean, her father, and her brother is the property of Mary Jean’s father and is not subject to division by the court.”

Based on the trial court’s findings, the judgment for dissolution ordered that, inter alia:

“(1) Mary Jean is granted sole care, custody, control and education of the minor son; William is granted reasonable visitation rights.
(2) Commencing September 19, 1988, William is to pay Mary Jean unallocated maintenance and child support in the sum of $525 per month or 36-% percent of his monthly net income, whichever is greater. The award will be reviewable August 1992.
(3) William’s petition for modification of child support is granted retroactive to July 1, 1987 and modified from $600 per month to $525 per month for the period from July 1, 1987 through September 19, 1988. As a result, William owes temporary support arrearages for that period in the sum of $3,375.
(4) Mary Jean is to have possession of the marital home until the minor son reaches majority (August 1992) or completes high school, whichever is later; or until Mary Jean remarries or maintains a conjugal cohabitation with a male person; or until Mary Jean no longer resides in the marital home; at which time the marital home is to be listed for sale.
(5) Mary Jean is to pay the mortgage, real estate taxes, home owner’s insurance, utilities, maintenance and repairs. When the house is sold, Mary Jean is to receive credit for the amount by which she reduced the principal and the remaining proceeds are to be divided 70 percent to Mary Jean and 30 percent to William.
(6) All bank account balances are to be divided equally.
(7) Mary Jean is to receive one-half of William’s pension benefits pursuant to a formula based on duration of marriage and duration of William’s employment.
(8) William is to contribute $2369.50 toward Mary Jean’s trial attorney fees and court costs, and Mary Jean is to pay her attorney the balance of $4,719.”

William’s timely appeal from the judgment for dissolution followed. Thereafter, on April 10, 1989, Mary Jean filed a petition for prospective attorney fees for defense of the appeal. Following a hearing on Mary Jean’s petition, the trial court ordered William to contribute $2,000 toward Mary Jean’s appeal attorney fees, payable to her attorney at $100 per month without prejudice for Mary Jean to file a petition for full appellate attorney fees at the end of the appeal. William’s timely appeal from the appellate fee order followed.

Initially, William contends that the trial court abused its discretion in awarding 70% of the proceeds from the sale of the marital home to Mary Jean because, absent countervailing factors, monetary contribution by the parties to the purchase and upkeep of the marital home should be determinative of the share of the proceeds awarded. Based on the undisputed facts that William had earned the money for the downpayment on the house, he had paid the mortgage, taxes, insurance, maintenance and utility bills, plus he had made repairs and had cut the grass, William contends that he should have been awarded a greater share of the proceeds. William further argues that Mary Jean contributed only homemaking skills and whatever extra money she earned in the last five years of their marriage had been used exclusively for her own needs. In response, Mary Jean argues that William has ignored the value of her homemaker skills as well as the disparity between their current incomes and their potential for income.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)) governs the distribution of marital property. Section 503(d) provides that the court “shall divide the marital property without regard to marital misconduct in just proportions considering all relevant factors, including:

(1) the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit;
(2) the value of the property set apart to each spouse;
(3) the duration of the marriage;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
* * *
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties;
***
(9) whether the apportionment is in lieu of or in addition to maintenance;
(10) the reasonable opportunity of each spouse for future acquisition of capital assets and income; and
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1989, ch. 40, par. 503(d).

The theory of marriage advanced by the Act is one of equal partnership. Thus, section 503 was intended to recognize and to compensate the homemaker as an equal partner to the marriage whose domestic contributions have assisted in giving economic value to the marital assets. (In re Marriage of Gentry (1989), 188 Ill. App. 3d 372, 544 N.E.2d 345.) Emphasis on monetary contributions should be avoided so as to obtain the ultimate objective of division of the property in just proportions. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238; In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) Further, the trial court has broad discretion in justly apportioning the marital assets, and its decision will not be disturbed absent a showing of abuse of discretion. In this context, an abuse of discretion is established if no reasonable person would reach a similar result. In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E.2d 14.

In the present case, William correctly states the general rule of law that absent countervailing factors, monetary contributions of the parties determine the share of proceeds. However, that rule is inapplicable to the facts at bar because Mary Jean had presented evidence of countervailing factors, such as homemaking skills, to the trial court. In such a situation, monetary contribution is but one factor to be considered by the trial court. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) Further, William’s argument that the trial court’s failure to enunciate a specific finding as to Mary Jean’s homemaking contributions nullified that factor is contrary to the law. There is no requirement that the trial court set forth a finding as to all of the section 503(d) factors; it need merely consider them. (In re Marriage of Fuggiti (1985), 130 Ill. App. 3d 190, 474 N.E.2d 386.) The record clearly indicates that the trial court considered Mary Jeans’ homemaking contributions as well as other factors in reaching its determination as to the disposition of marital assets.

Mary Jean testified that from the time she and William were married in 1959 to 1981, she was a full-time homemaker. In this capacity, she took care of the couple’s five children, did all of the yard work, the laundry, the house cleaning, the shopping and the chauffeuring of the children to their various activities. In 1981, she worked two to three days per week at her brother’s printing company. She used her earnings to buy things for the children or for gifts. In 1982-83, Mary Jean worked for American Greeting Card and contributed her earnings to the family. In 1985, Mary Jean commenced working at Palatine High School District 211 as a student supervisor for the 10-month school term. Mary Jean admitted on cross-examination that she had not contributed any money toward the downpayment on the marital home and that, prior to the filing of the petition for dissolution in 1984, William had paid all the costs related to the home and had made all the necessary repairs.

The trial court also heard testimony that William and Mary Jean had been married for 29 years; that William’s net monthly earnings in 1987 were $1,448 and Mary Jean’s net monthly earnings were $651. Further, William had 28 years of experience in the hardware business and had maintained a union card for 16 years which enabled him to work shifts as a pari-mutuel clerk at Chicago-area race tracks. Although Mary Jean also had a union card, she lacked seniority status to get work at the track; her card was limited to one race track; and her contact person at the track who had helped her get some work in the past was no longer there. At the time of the trial, the couple had one minor child, custody of whom was given to Mary Jean; one emancipated child in college; and one emancipated child living at home. The minor child will reach majority on August 30, 1992.

Upon reviewing the relevant factors, the trial court entered the judgment for dissolution which included disposition of the marital assets. In reaching its decision as to the 70%/30% split in the marital home proceeds, the trial court noted the fluctuation in William’s earnings and stated:

“[B]ased upon one’s earning capacity as compared to a changed earning capacity, a considerable reduction in [William’s] earnings required a change in the concept of the division of the marital property and the unallocated maintenance and support and what [I] was really saying to [Mary Jean] was I have to reduce the amount that you are going to get because you are going to need this until you build up *** additional items but I can’t give it to you today. Since I can’t give it to you today, the best I can do is provide for you in the future so you never achieve that. We can free the husband some duty to support you rather than having permanent alimony, so we will work a division of marital assets, to-wit, the house, by giving you ten percent more [than stated in the original pronouncement] and then, I believe, that the cut in the unallocated maintenance support for the period of time was an amount fairly close but maybe less than the additional increase on the value of the house.”

Those cases relied upon by William to support his theory that the monetary contribution is the overriding factor in a determination as to distribution of marital home proceeds do not support that theory. In fact, the cases emphasize the importance of assessing all relevant factors, not just financial contributions. In re Marriage of Goforth (1984), 121 Ill. App. 3d 673, 459 N.E.2d 1374 (the appellate court modified the trial court’s order disposing of the assets on the ground that the trial court had failed to consider the husband’s contributions and had granted all of the benefits of the marriage to the wife and imposed all the burdens on the husband); (In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336 (the husband’s greater percentage share of the assets was justified in light of the husband’s greater contribution to the marital estate, the wife’s greater share of property immediately capable of producing income, and the substantial value of the property awarded to the wife); In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189 (upon reviewing all the relevant factors, the appellate court reversed the division of assets favoring the wife on the ground that, as a result of the debts assumed by the husband, the assets awarded to him had a negative value compared to a positive value of $65,620 for the assets awarded to the wife); In re Marriage of Woodward (1980), 83 Ill. App. 3d 253, 404 N.E.2d 575 (wife awarded marital home because she had contributed substantially more to the acquisition of the marital property and, due to her efforts, husband had been able to acquire a college degree, thereby increasing his future earning capacity); In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730 (the trial court properly considered all of the statutory elements and found that the husband’s greater contribution to the acquisition, preservation and appreciation in value of the parties’ business, which was the principal marital asset, precluded an equal division of the estate and supported a 60%/40% division in the husband’s favor); In re Marriage of Gustke (1979), 78 Ill. App. 3d 274, 397 N.E.2d 146 (wife properly awarded $18,000 cash plus one-half of the proceeds from the sale of the marital home on the grounds that both parties had approximately the same income, but the wife had contributed substantially more toward the purchase of the marital home.)

In the present case, in light of the parties’ long marriage, the disparity in their incomes, the fact that William will reap the benefit of the home’s appreciated value accrued during Mary Jean’s possession (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748), and the tax benefit to William for the payment of unallocated maintenance and support, we conclude that the trial court did not abuse its discretion in awarding 70% of the proceeds from the sale of the marital home to Mary Jean.

Next, William argues that the award of unallocated maintenance and child support to Mary Jean in the amount of 362/s% of his monthly net income, but not less than $525, is excessive and constitutes an abuse of discretion. In raising this argument, William does not object to having to provide support for the minor child. Rather, his argument focuses on the facts as they relate to an award of maintenance. The determination of maintenance is governed by section 504(a) of the Act, which allows an award of maintenance only upon a finding by the court that the spouse seeking maintenance lacks sufficient property to provide for his or her reasonable needs, is either unable to support himself or herself through appropriate employment, or is otherwise without sufficient income. The trial court has wide discretion in determining what needs are reasonable and must decide the issue on a case-by-case basis, considering such factors as the standard of living during the marriage, the length of the marriage, and the social position of the spouse seeking maintenance. (In re Marriage of Kristie (1987), 156 Ill. App. 3d 821, 510 N.E.2d 14.) Further, maintenance may be appropriate where a spouse is employed, but has little prospect of earning a salary commensurate with her needs. (In re Marriage of Kristie, 156 Ill. App. 3d 821, 510 N.E.2d 14.) The spouse receiving the maintenance need not consume his or her share of marital property to be entitled to maintenance. (In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418.) Like the distribution of marital property, the trial court’s award of maintenance will not be disturbed upon review absent evidence of abuse of discretion. (In re Marriage of McNeeley (1983), 117 Ill. App. 3d 320, 453 N.E.2d 748.) When the award is measured against the criteria of section 504(a), there is no abuse of discretion. In re Marriage of Kristie, 156 Ill. App. 3d 821, 510 N.E.2d 14.

In the present case, the trial court found that William’s net monthly earnings were $1,448.73 and Mary Jean’s net monthly earnings were $651. The court then calculated that Mary Jean had a monthly deficiency of $844. Although not specifically stated, this figure would have to have been based on a determination that her monthly expenses were $1,496. Regarding William, the trial court found that his monthly expenses were $500, leaving a surplus of $948.73. Based on these figures as well as other relevant section 504(a) factors, the trial court awarded Mary Jean monthly unallocated maintenance and child support of 36%% of William’s net monthly income, but not less than $525. This award is reviewable in August 1992, when the minor son reaches majority.

William’s contention that the trial court based the award on a finding that Mary Jean’s monthly expenses were in excess of $2,400 is not supported by the record. Although the court initially made such a finding, it subsequently amended its finding upon realizing that Mary Jean had included several erroneous calculations. For example, she had listed her annual $900 car insurance payment for three cars, only one of which was hers, as a monthly expense. The trial court divided $900 by 3 and then divided $300 by 12 to arrive at the monthly car insurance expense.

William further argues that Mary Jean’s monthly expenses included food, shelter and utility costs for their 25-year-old emancipated daughter and Mary Jean’s father, who were living with Mary Jean. There is no evidence in the record that Mary Jean had purchased the food for her daughter and father, or that the utility costs increased as the result of their living with Mary Jean. Of course, the fact they resided with her would not increase the monthly mortgage payment, real estate taxes or home owner’s insurance.

In addition, William argues that the trial court erred in not considering the monetary contributions made by the daughter and father to Mary Jean. The trial court heard testimony that the daughter had occasionally purchased items for the household and that Mary Jean’s name was on her father’s bank account, and concluded that there was not one “scintilla of evidence” that the father and daughter made regular monthly payments to Mary Jean. Their monetary contributions, if any, were infrequent and irregular. In our view, the record supports this conclusion.

William also argues that the trial court considered only what Mary Jean actually earned for a 10-month job at the local high school and not what she could have earned had she worked the additional two months of the year. Other than one summer when Mary Jean had worked at Arlington Park Race Track, there was no evidence that Mary Jean could find two-month’s employment at will. Regarding the race track, Mary Jean testified that although she had a union card which would enable her to work at the track, her contact at the track was no longer there. As a result, without having union seniority at that track, the likelihood was remote that she would be selected to work part-time shifts. Further, unlike William, Mary Jean was limited to working only at Arlington Park Race Track because she had never worked at any other area tracks to establish the necessary seniority.

With respect to his own monthly expenses, William argues that the trial court incorrectly determined that his monthly expenses were $500. The record supports this contention. At trial, William testified that his average monthly expenses, excluding child support, were $920. This figure was not disputed. In addition, although not raised in William’s brief, the trial court also erred in computing Mary Jean’s monthly income. In its original oral pronouncement, the trial court found that Mary Jean was paid the net amount of $390 twice a month. It then calculated the monthly net income to be $651. At the hearing on his objections to the oral pronouncement, William brought the mathematical error to the trial court’s attention, indicating that bimonthly checks of $390 would result in a monthly net of $780. The court admitted to the possibility of error, but never recalculated the amount in the final judgment.

Thus, it would appear that the operative figures for a determination of maintenance are:

William Mary Jean
Monthly Net Income $1,448.73 $ 780.00
Monthly Expenses 920.00 1,496.00
$ 528.73 (surplus) $ 716.00 (deficit)

Even with the mathematical adjustments, we do not find that the trial court abused its discretion in awarding Mary Jean maintenance in the amount of S6k% of William’s monthly net income ($1,449 x 326/s% = $531), or not less than $525. None of the property awarded to Mary Jean was income producing or readily convertible to cash; Mary Jean needed the home and the outside funds to meet monthly expenses; and William was in a financial condition to meet his own expenses and to assist Mary Jean. (In re Marriage of Coram (1980), 86 Ill. App. 3d 845, 408 N.E.2d 418.) Thus, we conclude that the record supports the trial court’s award of unallocated maintenance and child support, reviewable in August 1992, upon the minor child’s reaching majority, and the trial court did not abuse its discretion.

Next, William argues that the trial court abused its discretion in finding that William owed support arrearages to Mary Jean. William claims that there is no reasonable basis for the court to have awarded unallocated maintenance and support retrospectively. However, William offers no citation to authority to support his position. William’s failure to comply with Supreme Court Rule 341(e)(7) (134 Ill. 2d R. 341(3)(7)) regarding citation to authorities waives this argument for review by this court. In re Marriage of Wilson (1990), 193 Ill. App. 3d 473, 549 N.E.2d 1348; In re Marriage of Carey (1989), 188 Ill. App. 3d 1040, 544 N.E.2d 1293.

Finally, William contends that the trial court abused its discretion by awarding Mary Jean partial attorney fees for the trial and for the appeal when Mary Jean failed to establish his ability to pay. As a general rule, the payment of attorney fees is the primary obligation of the party for whom the services are rendered. (In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71.) However, pursuant to section 508 of the Act, upon consideration of the financial resources of the parties, the trial court, in its discretion, may order either spouse to pay a reasonable amount of the other spouse’s attorney fees and costs actually incurred at trial or to be incurred on appeal. (Ill. Rev. Stat. 1989, ch. 40, par. 508.) The spouse seeking the fees and costs must establish financial inability to pay the fees as well as the financial ability of the other spouse to pay them. (In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, 533 N.E.2d 29.) Financial inability to pay does not require a showing of destitution nor does it require the fee-seeking spouse to divest himself or herself of capital assets. (In re Marriage of Felson (1988), 171 Ill. App. 3d 923, 525 N.E.2d 1103.) Rather, financial inability exists where to enforce payment of available funds would strip the person of his or her means of support and undermine his or her economic stability. (In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 522 N.E.2d 738.) The decision regarding attorney fees is within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. In re Marriage of Einhorn (1988), 178 Ill. App. 3d 212, 533 N.E.2d 29.

Regarding the award of partial attorney fees to Mary Jean for the trial, the judgment for dissolution ordered William to contribute $2,369.50 toward Mary Jean’s attorney fees and court costs, and ordered Mary Jean to pay the balance of $4,719. The record before this court does not contain a transcript of the proceedings for the hearing on Mary Jean’s petition for attorney fees incurred for the trial. However, the trial court had before it evidence of the parties’ relative economic positions during litigation and of William’s greater ability to acquire assets in the future. Based on these considerations, the trial court found that William had a monthly earning surplus and Mary Jean had a monthly earning deficit.

On appeal, William contends that when his monthly maintenance obligation of $525 is included, his surplus is reduced to almost nothing. Although this is supported by the record, the trial court also noted that William receives annual Federal tax refunds in excess of $2,000, and, at the time of trial, was only working half a day three to four days per week. The evidence established that a full-time schedule of employment at the race track was possible. Considering that William had the ready ability to increase his income if he needed to do so by working a regular 40-hour work week, and that Mary Jean, already working full time, although on a 10-month basis, had no prospects of increasing her salary, we conclude that the trial court did not abuse its discretion in awarding partial trial attorney fees to Mary Jean.

Regarding prospective appellate attorney fees, at the hearing on Mary Jean’s petition, Mary Jean testified that her current monthly expenses were approximately the same as they had been during the trial, i.e., $1,496. She further stated that she cannot afford to pay more than $20 to $25 per month for her attorney fees of $4,719 incurred for the trial. She indicated that her total gross wages for the current year, including part-time summer employment between school terms, would be approximately $11,500. With the maintenance check of approximately $600 per month, Mary Jean would still have a monthly deficit in excess of $200.

William then testified as an adverse "witness and stated that his gross monthly wages were $2,490 or $29,880 per year. He also indicated that he had already paid his appellate attorney a $2,500 retainer, plus $400 for costs, part of which was borrowed and part of which came from his income tax refund. On direct, William testified that his IRA account of $3,200 had been garnished by Mary Jean’s trial attorney for payment of his portion of Mary Jean’s trial attorney fees of $2,369. In addition, he had incurred additional debts of $5,665 in dentist bills for himself, $200 of which will be paid by insurance; $205.80 in dentist bills for his son; $2,750 for his own trial attorney fees; a $1,200 loan; and $3,500 for his own appellate attorney.

Upon hearing all of the evidence, the trial court ordered William to contribute $2,000 toward Mary Jean’s appellate attorney fees, payable at $100 per month. In reaching this determination, the trial court stated:

“[William] contends that his net monthly income is $981 a month, and his monthly living expenses are $991. Hence he has a shortfall of $10 a month; hence he cannot make any contribution to [Mary Jean’s] prospective attorney’s fees on the appeal that he has filed.
* * *
In the meantime [Mary Jean], who has an income of some $11,500 gross, plus the $800 a month, *** which is $9,600, payable in the unallocated support and maintenance, would give her a total income, gross income of approximately $21,100, for which she has to pay the income tax on that full amount.
The $800 that [William] pays as unallocated support and maintenance of course is not taxable to him.
He lists on his payroll stub one dependent. And he lists as his expenses the $800, totally ignoring the substantial benefit that he would receive if he correctly showed the dependence of the children or somebody else that would increase the amount of money that he would have per month.
As it is, he doesn’t do this. In the last year he received a refund of $2400, which comes to about $200 a month.
It is argued that his tax refund in the future will be substantially greater because instead of using $400 as a — that may have been a non-deductible item. I don’t recall if that was plain support or support and alimony.
But in any event, it would be a greater deduction when he takes the $800 off, plus he now has the benefit of interest and real estate taxes.
There was no evidence in the course of the hearing, but in the closing arguments it was stated that this would increase his tax refund or decrease his monthly taxes for income by $383.
I have no knowledge if that is anywhere near accurate. There was no evidence as to that. But the Court was aware as to evidence provided that there was an overpayment of income tax, which would increase the amount of net income he has available for spending during the course of the year.”

Accordingly, based upon the disparity in the parties’ incomes, the disparity in their income potential and the tax benefits to William, we conclude that the trial court did not abuse its discretion in awarding partial trial and appellate attorney fees to Mary Jean.

For the aforementioned reasons, the judgments of the trial court are affirmed.

Affirmed.

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

       We note that pursuant to the judgment for dissolution, William was ordered to pay $3,375 in support arrearage, not $3,175.


author: JUSTICE O’CONNOR

text:
    THE VILLAGE OF MELROSE PARK, Plaintiff-Appellant and Cross-Appellee, v. NAUTILUS INSURANCE COMPANY, Defendant-Appellee and Cross-Appellant.
    First District (1st Division)
    No. 1—89—1484
    Opinion filed May 28, 1991.

      Baker & McKenzie, of Chicago (Francis D. Morrissey, Edward J. Zulkey, Gerald L. Maatman, Jr., and Mark H. Boyle, of counsel), for appellant.
    Miller & Meihofer, of Chicago (Sam L. Miller, Kurt C. Meihofer, and Michael W. Rathsack, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

The Village of Melrose Park (Village) brought a declaratory judgment action against Nautilus Insurance Company, its insurer for a community festival, after Nautilus refused to defend a negligence action against the Village for the death of a food vendor. The trial court granted Nautilus’ motion for summary judgment, finding that the deceased’s function as a vendor at the festival placed him in a class of persons excluded from coverage by the policy. For the reasons below, we affirm.

In the summer of 1986, the Village of Melrose Park sponsored a festival fashioned after the Taste of Chicago, called “A Taste of Melrose Park.” The Village obtained insurance for the festival from Nautilus Insurance Company, which provided coverage for bodily injuries listed in the policy’s “Description of Hazards” paragraph, which stated: “Vendors included.” The policy also contained an exclusion paragraph listing exclusions from coverage, which stated in relevant part:

“It is agreed that such insurance as is provided by this policy does not apply to and the company shall have no duty to defend any action brought to recover:
(a) Bodily Injury or Personal Injury to any person while practicing for or participating in any contest, demonstration, event, exhibition, race or show. As used in this provision, ‘any person’ shall include but not be limited to participants, attendants, mechanics, stewards, timing officials, announcers, comer men, musicians, singers, animal handlers, officials or any other person employed by or doing volunteer work for the named insured.”

The policy applied from August 29,1986, to September 1,1986.

On August 30, 1986, Joseph Mugnolo, a food vendor at the festival, was electrocuted when he touched an aluminum tent pole that was in contact with an exposed electrical wire. Mugnolo’s estate brought claims against the Village, which tendered its defense to Nautilus. After a series of letters, Nautilus refused to defend, maintaining it had no duty to defend or indemnify.

The Village brought a declaratory judgment action against Nautilus, alleging Nautilus’ duty to defend and indemnify under its policy. The Village then moved for summary judgment, which was denied. In December 1988, the trial court granted Nautilus’ motion for summary judgment, ruling that Mr. Mugnolo’s death was not covered by the Nautilus policy because, as a food vendor at the festival, Mr. Mugnolo was a participant in an event, a class of persons excluded from coverage by the policy’s exclusion paragraph. The Village appeals.

Although we agree that vendors were excluded from coverage, we disagree with the trial court’s reasoning that vendors were excluded as participants in the event. The exclusion paragraph excluded coverage for any person practicing for or participating in a “contest, demonstration, event, exhibition, race or show,” activities with elements of spectacle or direct competition, which create a higher, or different, risk from other activities associated with a community festival. Clearly, Nautilus did not intend to insure the higher or different risk, and just as clearly, vending food contains none of the inherent elements that elevate the level of risk. Thus, although vendors were participants in the festival, they were not, as the trial court implied, “part of the show,” which Nautilus did not intend to insure.

But vendors were not included in the policy coverage merely because they were not specifically excluded. The policy obligated Nautilus to defend and indemnify the Village for claims arising from injuries suffered at the festival. The Village argues that vendors were covered because they were specifically listed in the description of hazards. Nautilus responds that the inclusion of vendors in the description of hazards intended not to provide coverage for injuries to vendors, but to provide coverage for persons injured by vendors.

Nautilus’ argument appears correct. The Village obtained the Nautilus policy to insure itself against claims by festival patrons. The vendors, however, who were present at the festival to conduct their own business for their own benefit, would presumably have insured themselves. Thus, the inclusion of vendors in the description of hazards did not extend policy coverage to injuries to vendors, but rather assured that the Village was covered for claims brought by third parties for injuries caused by vendors. Accordingly, Nautilus was not obligated to defend or indemnify the Village for the claims brought by Mugnolo’s estate.

The Village also argues, without merit, that Nautilus was estopped to deny coverage because it failed either to seek a judicial determination of its rights and duties, or defend the underlying action with a reservation of rights. Although the Village brought the declaratory judgment action, Nautilus actively sought, through a motion for summary judgment, an adjudication of its rights and duties. That the Village brought the action is irrelevant; it is the fact of the declaratory judgment that is of legal import, and not the identity of the party initiating the proceeding. Ayers v. Bituminous Insurance Co. (1981), 100 Ill. App. 3d 33, 35 n.1, 424 N.E.2d 1316. See also County of Massac v. United States Fidelity & Guaranty Co. (1983), 113 Ill. App. 3d 35, 446 N.E.2d 584.

Reading the policy as a whole, we conclude that there was no intent to provide coverage for injuries to vendors. We therefore hold that Nautilus correctly refused to defend, but express no opinion concerning the Village’s liability or the ability of the Mugnolo estate to otherwise recover from the Village. Accordingly, we affirm.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


text:
    WILLIAM N. WILSON et al., Plaintiffs-Appellants, v. BELL FUELS, INC., et al., Defendants-Appellees.
    First District (1st Division)
    No. 1—89—2763
    Opinion filed May 28, 1991.

      William M. Freeman & Associates, Ltd., of Lansing, and David A. Novoselsky & Associates, of Chicago (William M. Freeman, David A. Novoselsky, and Linda A. Bryceland, of counsel), for appellants.
    Ray, Robinson, Hanninen & Carle, of Chicago (Duane C. Weaver, of counsel), for appellees Kelly Leasing Company and Charlene Troch.
    No brief filed for appellee Bell Fuels, Inc.
   JUSTICE BUCKLEY

delivered the opinion of the court:

This appeal arises from the circuit court’s grant of summary judgment in favor of defendants Charlene Troch (Mrs. Troch), operator of the boat, and Bell Fuels, Inc. (Bell Fuels), and Kelly Leasing Co. (Kelly Leasing), owners of the boat in the personal injury action brought by Mr. and Mrs. Wilson. Plaintiffs, Mr. and Mrs. Wilson, filed the original complaint against defendants alleging negligence; more specifically, that Mrs. Troch was negligent both in operating the boat and failing to instruct Mr. Wilson on safety procedures for docking the boat. Plaintiffs appeal from the circuit court’s ruling, contending that the circuit court erred in entering summary judgment in favor of defendants by (1) ruling that plaintiffs could not establish that defendants’ negligence proximately caused Mr. Wilson’s injuries, (2) failing to consider whether the conduct of Mrs. Troch in failing to take appropriate measures to protect Mr. Wilson proximately caused Mr. Wilson’s injuries, and (3) failing to allow adequate time for discovery.

On February 8, 1987, Mrs. Troch invited the Wilsons to go for a sightseeing ride on the “Road Pilot,” a fiberglass, twin engine 32-foot Carver boat. The Wilsons accepted, and Mr. Wilson changed into crepe-soled loafers in anticipation of the boat ride. Prior to this ride, both of the Wilsons had been on a boat a few times. The boating excursion began at about 2 p.m. It was a clear, sunny, calm afternoon. Mrs. Troch untied two of the lines which secured the boat to the dock while Mr. Wilson untied the third. Once on the boat, the Wilsons and Mrs. Troch proceeded to the flying bridge area. Mrs. Troch sat in front of the controls, Mr. Wilson sat on her right, and Mrs. Wilson to her left.

After smoothly pulling away from the dock, Mrs. Troch drove the boat around and pointed out various sights to the Wilsons. Throughout the ride, Mrs. Troch was consistently driving the boat at four to six miles per hour. Thereafter, Mrs. Troch approached the dock at Lot 38, the site of the Trochs’ future home. As Mrs. Troch maneuvered the boat toward the dock, Mr. Wilson volunteered to tie a line to the dock. Mr. Wilson asked Mrs. Troch where her husband stands while docking the boat. Mrs. Troch replied that he stands on the bow. At that point, Mr. Wilson descended the ladder from the flying bridge, went down onto the bow and stood midway between the bow and the windshield of the cabin near the center cleat on an abrasive-coated area. A metal railing extends from the bow to midship around the perimeter of the boat which is about 25 inches high. Mr. Wilson testified that the railing came about two to three inches above his knee. Mr. Wilson stood on the deck of the boat while Mrs. Troch ran the boat at “dead slow” with no power. Mrs. Troch did not use the throttle as she was docking the boat. Mrs. Troch testified in detail how she guided the boat into the dock at a 45 degree angle and then turned the bow and the stern by putting the starboard engine in forward and the port engine in reverse to allow the boat to coast into the dock.

Mr. Wilson remained standing in the same place near the cleat. Mrs. Troch had no unusual difficulty maneuvering the boat the last 50 feet into the dock. There was no wind and the water was calm. Mrs. Wilson was still seated next to Mrs. Troch when they both turned back to make sure the stern was into the dock. When Mrs. Troch turned back to face the bow, she noticed Mr. Wilson was no longer standing on the boat.

Mr. Wilson testified that from the time he left his seat next to Mrs. Troch until his last memory of being on the boat, he did not notice any changes in speed or direction of the boat and does not recall feeling any movement that would suggest the boat hit the dock. Mr. Wilson does not remember if he attempted to climb over the rail or jump from the boat.

Mrs. Wilson testified that she thought Mrs. Troch was docking the boat in a normal fashion by bringing the boat in slowly, making sure the bow and the stern moved closer to the dock. Mrs. Wilson stated that from the “feel” of the water, the procedure was not smooth. She later clarified this statement by saying that she realized Mrs. Troch was docking the boat and that the boat would not be traveling at the normal rate of speed and that Mrs. Troch would have to eventually stop the boat.

There is no evidence that the boat ever came into contact with the dock. For example, no one heard, felt or saw anything that would suggest the boat came into contact with the dock. Likewise, there is no physical evidence from the boat that indicates it made any relevant contact with the dock.

When Mrs. Wilson discovered her husband was no longer on the boat, she descended the ladder from the flying bridge and attempted to exit the boat off the stern. The boat, however, according to Mrs. Wilson’s own testimony, was parallel to the dock, but was two to three feet away from it. When Mrs. Wilson finally exited the boat, she found her husband unconscious and lying on the dock. Mr. Wilson had blood coming from his ears, mouth, and nose.

The circuit court found that there was no negligence on the part of Mrs. Troch and granted defendants’ motions for summary judgment. Summary judgment should be granted when the pleadings, depositions and affidavits on file clearly show that no issue exists as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2—1005(c).) In deciding whether a material fact exists, the pleadings, depositions, admissions, exhibits and affidavits on file must be construed strictly against the movant and liberally in favor of the opponent. (Purtill v. Hess (1986), 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871.) Where the evidence before the court in a motion for summary judgment shows that at trial a verdict would have to be directed, summary judgment is proper. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) The nonmovant need not prove his case at the summary judgment stage; he must, however, show a factual basis to support the elements of his claim. (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1059, 473 N.E.2d 444, 451.) Thus, facts, not conclusions, must be presented. Lesser v. Village of Mundelein (1975), 36 Ill. App. 3d 433, 437, 344 N.E.2d 29, 33.

The plaintiffs allege Mrs. Troch was negligent. In order to prevail on a claim of negligence, the plaintiffs must offer enough evidence to show that defendants’ negligence was arguably the proximate cause of Mr. Wilson’s injuries. (McCormick v. Maplehurst Win ter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 98, 519 N.E.2d 469, 473.) Negligence can be shown by circumstantial evidence, and a plaintiff can rely on reasonable inferences which can be drawn from the facts. (Mort v. Walter (1983), 98 Ill. 2d 391, 396, 457 N.E.2d 18, 21; Monaghan v. DiPaulo Construction Co. (1986), 140 Ill. App. 3d 921, 924-25, 489 N.E.2d 409, 411.) Inferences and liability for negligence cannot be based on mere speculation, guess, surmise or conjecture. Monaghan, 140 Ill. App. 3d at 924-25, 489 N.E.2d at 411.

The plaintiffs contend that Mrs. Troch negligently operated and maneuvered the boat in a manner which either caused the boat to change direction and/or speed or caused the boat to hit the dock, thus resulting in Mr. Wilson being catapulted from the boat. It is clear, however, from Mrs. Troch’s, Mr. Wilson’s and Mrs. Wilson’s deposition transcripts that none of these eyewitnesses could testify that Mr. Wilson was catapulted from the boat to the dock either as a result of the boat coming in contact with the dock or from some movement of the boat during the docking maneuver.

First, none of the witnesses saw the boat come into contact with the dock or heard anything that would suggest such contact. Mrs. Troch testified that the boat was running at a “dead slow speed” and that she did not even use the throttle. There was no wind and the water was calm. Even more telling is Mrs. Wilson’s testimony that immediately after learning of her husband’s absence from the boat, she descended the ladder from the flying bridge and attempted to disembark the boat at the stern. The stem of the boat, however, was two to three feet away from the dock. The only reasonable inference which can be drawn from this testimony is that the boat did not come into contact with the dock. Second, Mrs. Troch and Mrs. Wilson agree that there was no sudden movement of the boat, and Mr. Wilson has no recollection of what happened after the boat was about five feet away from the dock.

In order to prevail at summary judgment stage, plaintiffs are required to show some evidence of what caused Mr. Wilson to sustain his injuries. The grant of summary judgment, therefore, was proper because plaintiffs have failed to produce evidence of an element of their claim, specifically, that Mrs. Troch’s alleged negligence proximately caused Mr. Wilson’s injuries.

Plaintiffs contend that the issue of proximate cause is properly a question of fact for the jury; normally this is true. Proximate cause becomes a question of law, however, when the material facts are undisputed and there can be no difference in judgment of reasonable men as to the inferences to be drawn from them. (Merlo v. Pub lic Service Co. (1942), 381 Ill. 300, 317, 45 N.E.2d 665, 675; Holbrook v. Peric (1984), 129 Ill. App. 3d 996, 1000, 473 N.E.2d 531, 535.) The material facts in this case are undisputed. The record is devoid of any evidence as to why or how Mr. Wilson sustained his injuries. There is nothing in the record from which it can be inferred that any action by Mrs. Troch in operating the boat proximately caused Mr. Wilson’s injuries. The element of proximate cause is established only when defendant’s conduct is shown with reasonable certainty to have caused plaintiff’s injury. (Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 338, 504 N.E.2d 243, 246.) In the case at bar, the issue of proximate cause was a question of law, properly determined by the circuit court.

Illinois courts support the conclusion reached by the circuit court. In Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill. App. 3d 95, 100, 468 N.E.2d 477, 482, the court found that plaintiff’s statement that the carpet “ ‘[mjust have gone up a little bit that I tripped over it,’ ” indicated that the plaintiff did not know with certainty the cause of her fall. The plaintiff’s allegations were based solely on the speculation that something must have been wrong with the carpet. Since mere conjecture or surmise is insufficient to establish a genuine issue as to negligence, the court affirmed the grant of summary judgment. (Koukoulomatis, 127 Ill. App. 3d at 101, 468 N.E.2d at 482; see also Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 817, 416 N.E.2d 328, 333.) The case at bar is directly analogous to the above case. Plaintiffs assert that Mrs. Troch must have done something wrong because neither of the Wilsons knew with any certainty why or how Mr. Wilson sustained his injuries. Plaintiffs must present bona fide facts to withstand a motion for summary judgment; the Wilsons cannot hide behind equivocations and conjecture and expect to prevent the entry of summary judgment. See Wainscott v. Penikoff (1936), 287 Ill. App. 78, 4 N.E.2d 511.

In Snell v. Village of University Park (1989), 185 Ill. App. 3d 973, 978, 542 N.E.2d 49, 52, the plaintiff asserted that the circumstantial evidence, including the close proximity of a defective curb to the location of the accident, the way the plaintiff fell and the position of the body after the fall, supported a reasonable inference that the defective curb caused the decedent to fall and suffer injuries. The record indicated that none of the witnesses testified that the decedent or her bicycle came into contact with the curb, and in fact, three of the witnesses stated that she did not strike the curb. The court held that the evidence failed to support the conclusion that the curb caused the fall. (Snell, 185 Ill. App. 3d at 977, 542 N.E.2d at 53.) In the instant case, the testimony of the three eyewitnesses indicates that there was no contact between the boat and the dock and no noticeable change in speed, direction or sound. The evidence fails to support an inference of probability, rather than possibility, that Mrs. Troch’s actions proximately caused Mr. Wilson’s injuries. Snell, 185 Ill. App. 3d at 977, 542 N.E.2d at 52.

Plaintiffs assert that expert testimony establishes the existence of a genuine issue of material fact. The experts used by plaintiffs, however, fail to properly reconstruct the actions of Mrs. Troch in docking the boat and reach conclusions wholly contrary to eyewitness testimony.

Robert Ricard, an accident reconstruction expert hired by plaintiffs, attempted to reconstruct Mrs. Troch’s maneuvering of the boat at the time of Mr. Wilson’s accident. Ricard performed two dockings of the Road Pilot. On the approach of both dockings, Ricard placed the gear shift levers in the ahead position with no power being applied with the throttle. Then, in order to achieve what Ricard claims to be a “safe speed approach,” he intermittently placed the gear shift levers in neutral.

As is clear from Ricard’s experiment, he failed to perform his reconstruction of the docking in accordance with deposition testimony relating to the boat’s speed being at dead slow and the port engine being in reverse while keeping the starboard engine in neutral. Further, there is no proof that the boat pivoted as concluded by Ricard based on his reconstruction. In fact, Mrs. Troch’s and Mrs. Wilson’s testimony reveals that the boat did not move at the time of Mr. Wilson’s accident. According to Mrs. Troch, the stem was approximately two to three feet away from the dock when the women turned to look at the stern, and when Mrs. Wilson descended the ladder to alight from the boat, she testified she could not do so because the stem remained two to three feet from the dock.

The rest of plaintiffs’ experts’ testimonies are similarly based on conjecture, speculation and guess. For instance, Robert Piziali, another of plaintiffs’ experts, concluded that Mr. Wilson’s body motion was consistent with “an unexpected deceleration of the boat, such as due to an impact or a sudden change in the direction of the bow of the boat.” The record is devoid of any evidence of the boat coming in contact with the dock or any sudden change in direction or speed.

An expert’s opinion is only as valid as the basis and reasons for the opinion. (McCormick v. Maplehurst Winter Sports, Ltd. (1988), 166 Ill. App. 3d 93, 100, 519 N.E.2d 469, 474.) When there is no factual support for an expert’s conclusions, his conclusions alone do not create a question of fact. (Wells v. Great Atlantic & Pacific Tea Co. (1988), 171 Ill. App. 3d 1012, 1016, 525 N.E.2d 1127, 1130.) There is no factual support that the boat hit the dock or that there was an unexpected deceleration of the boat. The circuit court, thus, correctly gave no weight to these experts’ affidavits because their conclusions are contrary to the testimony of the three people on the boat.

Similarly unpersuasive is the testimony of the treating physician, Dr. Settecase, who opined that Mr. Wilson’s injuries were consistent with a severe head-first impact of high velocity and inconsistent with a fall from a standing or jumping position. Likewise, Settecase’s affidavit fails to establish that Mrs. Troch’s alleged negligence proximately caused Mr. Wilson’s injuries.

The remaining experts, Messrs. Kost, Littell, Vernicek, and Ms. Freeman, do not come to any conclusions or imply Mrs. Troch was negligent. Additionally, the measurements and photographs relied on by these experts were taken no less than four months after the accident occurred. In Schwartz v. Peoples Gas Light & Coke Co. (1962), 35 Ill. App. 2d 25, 32-33, 181 N.E.2d 826, 830, the court held that the condition of an object even one month later is not competent evidence, direct or circumstantial, of its condition at the time in question and any conclusions drawn from an inspection after such time has lapsed are purely speculative. Lastly, Mrs. Wilson’s affidavit in which she characterizes her husband as a careful man is diluted by the lack of any evidence that Mrs. Troch was negligent. See McInturff v. Chicago Title & Trust Co. (1968), 102 Ill. App. 2d 39, 48-49, 243 N.E.2d 657, 662.

Relying on Williams v. Alfred N. Koplin & Co. (1983), 114 Ill. App. 3d 482, 448 N.E.2d 1042, plaintiffs assert that Mrs. Troch should have warned Mr. Wilson of the potential dangers of standing on the deck while she was docking the boat. Williams, however, is clearly not analogous. In Williams, the defendants voluntarily shoveled a path down the center of a stairway and left snow remaining next to the handrails. Plaintiff slipped and fell while walking down the shoveled portion of the stairway. (Williams, 114 Ill. App. 3d at 483-84, 448 N.E.2d at 1044-45.) The court stated that no liability exists where there is no duty, but liability can arise from negligently performing a voluntary undertaking. (Williams, 114 Ill. App. 3d at 486, 448 N.E.2d at 1046.) The only voluntary undertaking in the case at bar is Mr. Wilson’s volunteering to tie a line to the dock, which has nothing to do with Mrs. Troch’s alleged duty to warn.

Plaintiffs also contend that Mrs. Troch owed a duty to warn Mr. Wilson about the dangers of docking a boat. A thorough search of the relevant case law in Illinois has uncovered no cases concerning a boat owner’s duty to warn. An analogy, however, can be drawn from cases which treat a person who is invited upon private land of another as a social guest and therefore, a licensee. “A landowner owes a licensee only the limited duty to warn the licensee of concealed defects that are known to the owner ***.” (Dowen v. Hall (1989), 191 Ill. App. 3d 903, 907, 548 N.E.2d 346, 348.) Thus, a “licensee must avoid open or obvious danger at his peril.” (Lorek v. Hollenkamp (1986), 144 Ill. App. 3d 1100, 1103, 495 N.E.2d 679, 681.) A reasonable adult would recognize the dangers of standing on a boat at any time, especially when someone is attempting to dock the boat. Plaintiffs have failed to prove that Mrs. Troch had a duty to warn Mr. Wilson.

Finally, plaintiffs contend that the circuit court erred in not allowing adequate time for discovery. A trial judge, however, has wide discretion in controlling the scope of discovery. (Continental Illinois National Bank & Trust Co. v. Eastern Illinois Water Co. (1975), 31 Ill. App. 3d 148, 154, 334 N.E.2d 96, 102.) Supreme Court Rule 201(c)(1) allows the trial judge the power to “deny, limit, condition or regulate the taking of discovery in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage or oppression.” (134 Ill. 2d R. 201(c)(1).) Plaintiffs had over 21k years in which to develop their case, including an additional opportunity to view and take pictures of the boat. This was ample time in which to conduct discovery, yet plaintiffs only obtained testimony from various experts which was cumulative and unpersuasive. After reviewing the amount of time allowed plaintiffs, we find that the evidence does not indicate that the circuit court abused its discretion in hearing and ruling on defendants’ motions for summary judgment.

For the reasons stated above, the summary judgment granted by the circuit court of Cook County is affirmed.

Affirmed.

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