author: JUSTICE NICKELS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. MICHAEL E. GOODWIN, Defendant-Appellee.
    Second District
    No. 2—89—0707
    Opinion filed January 4, 1991.

      Roger T. Russell, State’s Attorney, of Belvidere (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    G. Joseph Weller, Robert C. Cooper, and Thomas A. Lilien, all of State Appellate Defender’s Office, of Elgin, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

Defendant’s bench trial for the offense of unlawful delivery of a controlled substance (cocaine) (Ill. Rev. Stat. 1987, ch. BGVa, par. 1401(c)) began on June 14, 1989. During the State’s case in chief, defendant requested the disclosure of the name of a confidential informant who was present during the alleged transaction. After hearing the arguments of counsel and considering case law on the subject of the defendant’s right to disclosure, the trial court ordered that the confidential source be disclosed.

When the State stipulated that its witness, special agent Gary Cooper of the Illinois State Police, would refuse to reveal the confidential source, the trial court entertained defendant’s motion to strike certain testimony of the State’s witness as a sanction against the prosecution. On July 11, 1989, after considering various options, the trial court ordered stricken Cooper’s testimony regarding any activity which took place in the presence of the informant at the scene of the transaction. The trial court also granted the State leave to file an interlocutory appeal. We vacate and remand.

The State appeals from this midtrial order resulting in the suppression of its witness’ testimony, citing as authority Supreme Court Rule 604(a)(1) (107 Ill. 2d 604(a)(1)) and People v. Flatt (1980), 82 Ill. 2d 250. The State has also filed the required certificate of impairment. The State contends that the trial court erred in considering the midtrial motion for disclosure because it was untimely; alternatively, the State argues that the ruling to disclose the identity of the informant was erroneous on its merits because the informant’s role at the scene of the transaction was limited and defendant has not demonstrated the necessity of disclosure. Concluding that the trial court should not have heard the defendant’s motion to suppress the testimony of the officer because it was untimely made during trial, we must vacate the trial court’s order and remand the cause for a continuation of the trial.

The record discloses the following additional relevant facts. On February 24, 1989, defendant filed his motion for discovery which included, among other things, a request that the State provide a list of the names and the addresses of any persons having knowledge of the offense. The State generally complied with discovery which included a list of the potential witnesses (presumably not including the confidential source) and an investigative report which summarized the circumstances of the drug transaction which took place in the J. Dubbs Bar, in Belvidere, Illinois, on the evening of November 16,1988.

According to the report, Cooper was a special undercover agent who entered the bar with a confidential source who had agreed to introduce the agent to patrons of the bar to arrange for the purchase of cocaine. Cooper subsequently negotiated for the sale of cocaine with Ronnie Pease, the bartender. The report stated that, after the defendant entered the bar, there was a conversation between Pease and defendant. Pease then motioned to Cooper to meet with him at the south end of the bar. When Cooper walked over to the end of the bar, Pease advised him that he “had it” (the cocaine). The agent placed $50 on the bar, and Pease picked up the money and placed a small folded piece of paper into Cooper’s hand. Cooper returned to the other end of the bar.

The report then indicates that, approximately two minutes later, Agent Cooper returned to the south end of the bar where defendant was still seated. Accompanying Cooper was the confidential source. Cooper asked defendant if he had a “half” for his friend (the informant). Defendant said to Cooper, “Yeah man, whatever you want.” After Cooper handed him $50, defendant removed a folded piece of paper from a small plastic baggie and handed it to Cooper. The report went on to describe the contents of the folded paper as containing a white powder upon which positive field tests for cocaine were performed in the presence of other witnesses, and the report described the subsequent chain of custody of the evidence.

In April 1989, the State filed a supplemental answer to defendant’s motion for discovery and included the transcript of a grand jury proceeding which alluded to the presence of a confidential source at the scene of the drug transaction. On June 1, 1989, at a hearing initially held on defendant’s motion for a change of venue, a discussion took place regarding defendant’s request for notes taken by police officers. At that time, defense counsel indicated that he would be filing motions to obtain police notes allegedly hidden in foreign or confidential files and to get specific information regarding the confidential source. A status date was set for June 13; defense counsel stated that he would file any additional motions by that date. The record discloses that no additional motion seeking the name of the confidential source was filed prior to trial.

On June 14, 1989, defendant’s bench trial began. James O’Connor, a forensic scientist, testified regarding the testing and chain of custody of the State’s exhibit No. 1 which included a paper fold found to contain cocaine. Patrick Young, a sergeant with the Illinois State Police, also testified regarding the chain of custody of the State’s exhibit No. 1 which he had received from special agent Cooper.

Mark Henry, another special agent, testified for the prosecution regarding his involvement in the surveillance of the bar. From his car, he observed Cooper enter J. Dubbs Bar at 10:40 p.m. on November 16, 1988; he believed that Cooper was accompanied by another person but did not know the person’s name. Henry did not observe what actually transpired inside the bar.

Special agent Gary Cooper testified regarding the transactions which occurred in the bar on November 16, 1988. His testimony was substantially similar to the account of the incident found in the investigative report, and it need not be repeated here. On cross-examination, defense counsel attempted to determine who entered the bar with Agent Cooper. It was established that, at the time of the transaction, the confidential source was inside the tavern, but was initially at the opposite end of the bar. However, Cooper testified that the informant was next to him when he made the second purchase from defendant. The only persons in the bar at the time were the defendant, the bartender, the informant, and Cooper.

The court opined that if the informant were a witness, he should no longer be treated as a confidential source. The State objected to revealing the identity of the source because it maintained that he was not a direct participant in the transaction and this question should not have been raised for the first time at trial. Defendant argued that it violated the principle of fair play for the defendant not to be allowed to face his accuser; he did not file an earlier motion because he was unsure how this event transpired and because the police report was not completely clear on the matter. The State pointed out that the confidential source was mentioned in the police report.

A recess was taken to research the law on the subject. After the court reconvened and heard further arguments on the merits and the timeliness of the request to reveal the identity of the confidential source, the court concluded that the defendant was entitled to interview the confidential source as a witness.

After another recess, the State again argued that defendant should have filed a motion and sought a prior hearing on this issue. The State asked for a continuance to research-the issue further. The State’s request was granted, and the defense continued its cross-examination on matters other than the identity of the confidential source.

A hearing on the issue of the identity of the confidential, source was held on July 3, 1989. After considering the arguments of counsel regarding whether the State should be required to reveal the identity of the informant and whether the defendant’s request was timely, the trial court concluded that Agent Cooper must be required to disclose the identity of the informant. In making its ruling, the trial court took .particular note of Roviaro v. United States (1957), 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623, and People v. Perez (1974), 25 Ill. App. 3d 371.

On July 5, 1989, the State informed the court that Agent Cooper would not reveal the name or the address of the confidential informant. After defendant stated that he would consider moving to strike Agent Cooper’s testimony,, the trial court advised the State that it would consider the options of holding Cooper in contempt, striking his testimony, or dismissing the case on due process grounds. The trial court directed that Agent Cooper appear on July 11, 1989, when the trial was to resume.

On July 11, the parties stipulated that, if Agent Cooper were called to testify, he would not reveal the name or the address of the informant who was present at the tavern on November 16, 1988. Upon defendant’s motion to strike, the trial court ordered stricken the testimony of Agent Cooper insofar as it described events in the tavern which occurred in the presence of the confidential informant. The court found the failure to disclose attributable to the State and not merely to the individual witness; the court suppressed this testimony because it believed this to be the only appropriate and effective sanction for depriving the defendant of his right to compel the attendance of witnesses and face his accusers under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV) and sections 2 and 8 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §§2, 8).

On appeal, the State first argues that defendant’s request that the State’s witness disclose the identity of the informant was untimely made and, therefore, it was an abuse of discretion for the trial court to strike the testimony of Agent Cooper. The State points out that, by virtue of the investigative report provided in the State’s answer to discovery three months before trial, defendant was aware of the existence of an informer who was present in the bar at the time of the alleged drug transaction. The transcript of the grand jury proceeding also alludes to the existence of the informer, and defense counsel indicated in pretrial proceedings that he would be filing motions to obtain information regarding the confidential source.

We first examine the procedural posture of this appeal. In criminal trials, under prescribed conditions, the State has a limited right to appeal from an interlocutory order the substantive effect of which, among other things, results in the suppression of evidence. (107 Ill. 2d R. 604(a)(1); People v. McQueen (1983), 115 Ill. App. 3d 833, 836.) Pursuant to Supreme Court Rule 604(a)(1), the State may appeal a pretrial suppression order when it certifies to the trial court that the order substantially impairs the State’s ability to prosecute the case. (115 Ill. App. 3d at 836.) While pretrial orders which have a preclusive effect on the admission of evidence are generally appealable (see People v. Hatfield (1987), 161 Ill. App. 3d 401, 405), different rules apply to the appellate review of midtrial orders which result in the suppression of evidence (see People v. Flatt (1980), 82 Ill. 2d 250, 262-66, and cases interpreting Flatt, e.g., McQueen, 115 Ill. App. 3d at 836; People v. Johnson (1983), 113 Ill. App. 3d 367, 370-71; People v. Tomasello (1981), 98 Ill. App. 3d 588, 597; see also Hatfield, 161 Ill. App. 3d at 405 (and cases cited therein)). The scope of such interlocutory appeals has been circumscribed by our supreme court’s construction of Rule 604(a)(1) (People v. Young (1980), 82 Ill. 2d 234, 239, 243), and the court has shown a reluctance to allow midtrial appeals (Johnson, 113 Ill. App. 3d at 373) because of their disruptive effect on ongoing trials and the burden they place on the defendant (Young, 82 Ill. 2d at 244).

In People v. Flatt, the motion in question was a midtrial motion to suppress fingerprint evidence for failure of the State to comply with discovery orders of the court. The court held that the trial court erroneously considered the merits of defendant’s motion where it was filed and the order entered after the jury was sworn and jeopardy had attached. The Flatt court determined that, once a trial has begun, the State may appeal and challenge only (1) orders suppressing evidence entered pursuant to the provisions of section 114 — 12(c) of the Code of Criminal Procedure of 1963 pertaining to illegally seized evidence (Ill. Rev. Stat. 1981, ch. 38, par. 114 — 12(c)) or (2) the authority of the trial court to entertain a motion not authorized pursuant to section 114 — 12(c). (Flatt, 82 Ill. 2d at 264.) Thus, according to Flatt, in the first instance, the State may obtain review on the merits of a midtrial suppression order where the order granted a defense motion to suppress evidence on the ground that it was obtained illegally. (82 Ill. 2d at 263-64.) If, however, the defendant’s motion did not allege that the evidence was obtained illegally and the trial court granted the motion, the State could only seek review of the court’s authority to entertain the motion during trial; in such a case, though, the merits of the trial court’s ruling would not be considered. Flatt, 82 Ill. 2d at 263-64; People v. Johnson, 113 Ill. App. 3d at 371.

This court has defined a midtrial order “suppressing evidence,” as that term has been used in Supreme Court Rule 604(a)(1), as one in which the evidence is suppressed and denied admittance because it was illegally obtained in violation of a constitutional or statutory right, or, even though lawfully obtained, its admittance is to be denied because of a statutory prohibition or the violation of a court rule or some other ground besides the recognized rules concerning the admission of evidence. (Johnson, 113 Ill. App. 3d at 373-74.) In the present case, the testimony of the State’s witness was stricken not because it was illegally obtained, but because the trial court ordered the testimony stricken as a sanction for the State’s failure to comply with its midtrial ruling ordering disclosure of the identity of the informant. In response to the State’s continuing objection to the untimeliness of defendant’s motion to suppress, defendant has not cited to us any case wherein a defendant, in similar circumstances, who had the opportunity to obtain a pretrial ruling on his discovery motion and who, instead, brought a midtrial motion to suppress evidence that was legally obtained, was able to prevail in an interlocutory appeal.

Notwithstanding the possible merits of defendant’s request to obtain disclosure of the identity of the informant and the need for the trial court to secure compliance with its orders, our examination of Flatt and its progeny persuades us to hold that defendant’s motion was untimely and the trial court should not have considered it.

In People v. Hughes (1989), 181 Ill. App. 3d 300, this court held that it was an abuse of discretion for a trial court to grant a midtrial hearing on defendant’s motion to suppress certain statements allegedly made to the police before he was given his Miranda warnings. Section 114 — 11(g) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 11(g)) requires such a motion to be made before trial unless there was not an opportunity to do so or unless the defendant was not aware of the ground for the motion before trial. This court concluded that, where the defendant had an opportunity to file a pretrial motion and was aware of the ground for the motion, the trial court should not have entertained and granted defendant’s midtrial motion.

In the more analogous ease of People v. Tomasello (1981), 98 Ill. App. 3d 588, the trial court granted defendant’s midtrial motion to strike the testimony of certain witnesses and evidence because of the State’s violation of an Illinois statute governing the appropriate compensation to be paid detectives and investigators (Ill. Rev. Stat. 1977, ch. Ill, par. 2701). Relying on Flatt, this court determined that this was an order “suppressing” evidence because its substantive effect was to prevent evidence from being admitted. Because defendant’s motion was not based upon the constitutional grounds enumerated in section 114 — 12 of the Code, the trial court was held to have no authority to entertain the motion during the trial. Citing Flatt, the court noted that the interruption of a trial for the determination of a motion to suppress based on a collateral issue other than as authorized by section 114 — 12(c) is impermissible. (Tomasello, 98 Ill. App. 3d at 598.) The Tomasello court also observed that, where a reviewing court determines that such a motion should not have been entertained dining trial, the appropriate remedy is to vacate the order and remand the cause for a continuation of the trial. See also People v. Elbus (1983), 116 Ill. App. 3d 104 (where defendant was aware prior to trial that he did not possess all material information to which he claimed entitlement under discovery request, he may not claim surprise at trial; suppression of evidence was too harsh a sanction).

In People v. Davidson (1983), 116 Ill. App. 3d 164, 170-71, in response to the defendant’s midtrial motion, the trial court excluded handwriting exemplars perceived to implicate the defendant’s fifth amendment right against self-incrimination; similarly, the trial court excluded a witness’ testimony on the basis of the attorney-client privilege. The Davidson court determined that, since the rulings were based on allegations of illegal State conduct and the public policy against admitting such evidence as opposed to an evaluation of its reliability or relevance, the trial court was deemed to have “suppressed” the evidence and the testimony. In the first instance, the reviewing court noted that the motion did not allege that the evidence was illegally obtained and the motion could have been brought before trial; accordingly, it was deemed to involve an issue collateral to a determination of the defendant’s guilt or innocence midtrial. The appellate court vacated both orders and remanded the cause after it found both motions to be untimely and that the trial court was without authority to consider them.

In People v. Ator (1976), 37 Ill. App. 3d 304, the defendant contended that he was denied his due process and sixth amendment right to confront witnesses against him because the State failed to produce a paid informer. The defendant, who was aware of the name and address of the informer before trial, delayed until midtrial, after jeopardy attached, to bring his motion before the trial court and made no showing of circumstances which would justify the delay. The Ator court held that since defendant’s motion was untimely made, the trial court properly denied the motion to produce the informer in view of defendant’s unjustified delay. 37 Ill. App. 3d at 308.

Our review of the above cases persuades us that, in the present case, defendant’s midtrial motion was not timely made; defendant presents no satisfactory explanation to justify his delay. He was well aware of the existence of the informer before trial. The trial court’s order striking the testimony of Agent Cooper must be deemed an order suppressing the State’s evidence; the trial court should neither have heard the motion nor entered the order under these circumstances. We will, therefore, not address the merits of defendant’s motion or the trial court’s findings regarding the issue of disclosure of the informant.

The order of the circuit court is vacated and the cause remanded for a continuation of the trial.

Vacated and remanded.

INGLIS and UNVERZAGT, JJ., concur.


source: Caselaw Access Project

author: JUSTICE REINHARD

license: Public Domain

text:
    LAKE COUNTY FOREST PRESERVE DISTRICT, Plaintiff-Appellant, v. NORTHERN TRUST BANK/LAKE FOREST, N.A., as Trustee, et al., Defendants-Appellees.
    Second District
    No. 2—90—0460
    Opinion filed December 27, 1990.

      Donald T. Morrison, Joseph T. Morrison, and Kurt D. Lloyd, all of Donald T. Morrison & Associates, P.C., of Waukegan, for appellant.
    Murray R. Conzelman and Eugene M. Snarski, both of Conzelman, Snarski & Stepanich, of Waukegan, for appellees.
   JUSTICE REINHARD

delivered the opinion of the court:

Plaintiff, the Lake County Forest Preserve District (District), appeals from an order of the circuit court of Lake County dismissing its condemnation suits on the ground that they were not supported by a valid resolution.

The District filed seven separate complaints in condemnation to acquire certain properties. The condemnation actions were based on a resolution considered by the District’s board of commissioners (Board) on August 12, 1988. In a consolidated hearing, defendants, owners of the various properties, moved to dismiss the complaints pursuant to section 2 — 619(a)(2) of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 619(a)(2)), on the ground that the resolution had not received the concurrence of a majority of the Board’s total membership, as required by statute. The trial court granted the motions to dismiss. The cases have been consolidated on appeal.

The only issue in this case is whether, by failing to vote, a member of the Board concurred with 12 of 24 members of the Board voting for the resolution, thereby resulting in a valid resolution.

The District is a public agency organized under “An Act to provide for the creation and management of forest preserve districts ***.” (Ill. Rev. Stat. 1987, ch. 96%, par. 6300 et seq.) The statute authorizes the District to acquire lands by condemnation. (Ill. Rev. Stat. 1987, ch. 96%, par. 6309.) Any condemnation action must be supported by a resolution passed in accordance with section 12 of the statute, which provides the following:

“The president of the board of any district organized hereunder, shall preside at all meetings of the board and be the executive officer of the district. He shall sign all ordinances, resolutions and other papers necessary to be signed and shall execute all contracts entered into by the district and perform other duties as may be prescribed by ordinance. He may veto any ordinance and any orders, resolutions and actions, or any items therein contained, of the board which provide for the purchase of real estate, or for the construction of improvements within the preserves of the district. Such veto shall be filed with the secretary of the board within 5 days after the passage of the ordinance, order, resolution or action and when so vetoed the ordinance, order, resolution or action or any item therein contained is not effective unless it is again passed by two-thirds vote of all the members of the board. The president may vote in the same manner as the other members of the board. In the temporary absence or inability of the president, the members of the board may elect from their own number a president, pro tern.
The ‘Yeas’ and ‘Nays’ shall be taken, entered on the journal of the board’s proceedings, upon the passage of all ordinances and all proposals to create any liability, or for the expenditure or appropriation of money. The concurrence of a majority of all the members elected or appointed to the board is necessary to the passage of any such ordinance or proposal. In all other cases the ‘Yeas’ and ‘Nays’ shall be taken at the request of any member of the board and shall be entered on the journal of the board’s proceedings.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 961/2, par. 6322.

The pleadings and documents attached to the motion to dismiss reveal the following uncontested facts. On August 12, 1988, the Board held a special meeting to consider adoption of a resolution that would provide for the acquisition of certain lands known as the “Waukegan Savanna.” Seventeen of the Board’s twenty-four members were present. After speeches for and against the resolution, the Board voted on an amendment to exclude two parcels of land from the acquisition. The amendment carried by a vote of 12 “ayes,” 3 “nayes,” 1 “pass,” and Board President Donald Stronger did not vote. The Board then voted on the acquisition resolution, as amended. Twelve members voted “aye,” four voted “nay,” and again, President Strenger did not vote. The official minutes of the meeting state that “[t]he Chair ruled this motion to have failed as the President maintained that it would take 13 votes to pass.” The recorded roll call vote shows that Strenger did not vote on any of the matters put to a vote at the meeting. He did not sign the resolution, nor did he ever veto it.

The District subsequently adopted 72 separate ordinances to acquire parcels of land within the Waukegan Savanna. The District has acquired, by agreement with the owners, approximately 220 acres of land pursuant to the resolution. Because the District was unable to agree on compensation with the owners of certain parcels of land, it filed, on August 17, 1989, the condemnation suits that are now on appeal before us. Defendants moved to dismiss the suits pursuant to section 2 — 619 of the Code asserting that the resolution of August 12, 1988, was invalid because it had not received the concurrence of a majority of all the members of the Board.

On January 30, 1990, all seven cases were consolidated for a hearing and a ruling on the identical motions to dismiss. In an April 2, 1990, order, the trial court held that the resolution had not received the majority concurrence required by statute. It therefore dismissed the complaints.

The District contends that the supreme court’s decision in Prosser v. Village of Fox Lake (1982), 91 Ill. 2d 389, 438 N.E.2d 134, requires the reversal.of the trial court. In Prosser, a trustee of the village brought suit against the village alleging that two ordinances which set the rates for compensating the village president and trustees violated the Illinois Municipal Code (Municipal Code) (Ill. Rev. Stat. 1979, ch. 24, par. 3 — 11—17). Under section 3 — 11—17 of the Municipal Code, the concurrence of a majority of all members on the village’s board of trustees was required for the passage of an ordinance. The ordinances in question in Prosser had been considered at a meeting in which five of the six village trustees were present. Each proposal received three “aye” votes and one “nay” vote. The other trustee did not vote, relying on advice of counsel that his vote was not necessary for passage. Both ordinances were designated “approved,” signed by the acting president, attested to by the village clerk and published as prescribed by statute. The supreme court held that the ordinances were valid because they received the concurrence of a majority of all the members of the board of trustees: the three trustees who voted “aye” and the nonvoting trustee. (Prosser, 91 Ill. 2d at 396, 438 N.E.2d at 136.) The court’s reasoning is the following:

“The effect of voting to ‘abstain,’ or to ‘pass,’ or voting ‘present’ or of refusing to vote when present at a meeting depends on whether ‘the affirmative vote’ of a majority or ‘the concurrence’ of a majority, of either the quorum or of all members then holding office, is required for passage. If ‘the affirmative vote’ of a majority of either standard is required (e.g., Ill. Rev. Stat. 1979, ch. 24, par. 11 — 74—6), then nothing less than a majority of ‘yea’ or ‘aye’ votes will result in passage. An attempt to vote to ‘abstain’ or in any manner other than ‘yea’ or ‘nay,’ or a failure to vote shall be considered to have the effect of a ‘nay’ vote. Where the ‘concurrence’ of a majority is required for passage, the holding in most of the jurisdictions where the issue has been considered is that a vote of ‘pass,’ ‘present,’ or ‘abstain’ or a failure to vote when present constitutes an acquiescence or concurrence with the members of the majority who did vote on the question involved. This is described in The Law of Local'Government Operations: ‘It is a general rule that those members present at a meeting consisting of a quorum must vote against a proposal in order to defeat it. If members are present and refuse to vote, they are deemed to have consented to the majority decision.’ (Rhyne, The Law of Local Government Operations sec. 5.6, at 77 (1980). (See also Annot., 63 A.L.R.Sd 1072, 1083 (1975); Froehlich, Effect of Council Members Voting ‘Abstain,’ ‘Pass,’ or ‘Present,’ 59 Ill. Municipal Rev. 15 (June 1980).) This holding of a majority of jurisdictions developed from the common law rule pertaining to elections announced in Rex v. Foxcroft (1760), 2 Burr. 1017, 1021, 97 Eng. Rep. 683, 685: ‘Whenever electors are present, and do not vote at all (as they have done here,) “they virtually acquiesce in the election made by those who do.” ’ ” 91 Ill. 2d at 395, 438 N.E.2d at 136.

Thus, the rule set forth in Prosser is that when a statute requires the concurrence of a majority and a member passes, abstains or does not vote, then that member will be deemed to have concurred with the majority of those who voted.

Applying the rule in Prosser to this case, the resolution as amended received the concurrence of the majority of all the members of the board, as required by statute, and was therefore valid. The vote was 12 “ayes,” 4 “nays,” and Strenger did not vote. By not voting, Strenger concurred with the majority, the 12 “aye” votes, and therefore, the resolution received the concurrence of a majority of all the members of the Board, 13. Under the Prosser rule, if Strenger did not want the resolution to pass, he would have had to vote “nay.” By not voting, he concurred.

The trial court held that Prosser is distinguishable on its facts because there the nonvoting trustee’s conduct indicated that he would have voted in favor of the ordinances, whereas, in this case, President Strenger’s comment that the vote was inadequate to pass the resolution, combined with his decision not to cast an “aye” vote, indicates that he did not support the resolution. Defendants similarly attempt to distinguish Prosser and argue that Prosser did not announce a rule of law but held only that the circumstances in that case indicated that the nonvoting trustee supported the ordinances.

This distinction is unpersuasive. In Prosser, the Illinois Supreme Court adopted a rule for determining the significance of the failure of a member to vote when a concurrence of a majority is needed for passage, a situation which has often created problems in determining the existence of a majority necessary for municipal action (56 Am. Jur. 2d Municipal Corporations §170 (1971)). Several jurisdictions have required actual affirmative votes of more than one-half the total number of members, regardless of any abstentions from voting. (See Annot., 63 A.L;R.3d 1072, 1090 (1975).) However, other jurisdictions, emphasizing the duty of members to cast a vote, have taken the position that when a majority of those members present and actually voting, but less than a majority of the total number of members, are in favor of a resolution and when there are other members present but not voting, those who abstain will be considered as having voted with the majority, creating a majority of the entire membership. (Annot., 63 A.L.R.3d at 1091.) In Prosser, the Illinois Supreme Court chose to follow the latter authority. Furthermore, Prosser contains no limiting language which constrains the decision to the facts of that case.

The record clearly shows that Stronger failed to vote rather than vote “nay.” Under the rule announced in Prosser, Strenger is deemed to have concurred with the majority of those voting. Thus, the resolution was valid, and the motions to dismiss should have been denied.

Defendants make two other cursory arguments. They claim that this court should give deference to the interpretation given to the statute by the Board itself when it voted to uphold the Board president’s decision that the resolution failed on this occasion and made the same ruling on another date. They also argue that a letter containing an informal opinion of the Illinois Attorney General’s office supports the view that 13 “aye” votes are required to pass this resolution. These contentions are meritless. Even were we to interpret the Board’s action following the vote as an administrative interpretation of the statute, we pay it no deference because of the supreme court’s definitive decision in Prosser. Nor do we conclude that the informal opinion of the Attorney General’s office is contrary to our result or the decision in Prosser. The opinion merely states, however, that such a resolution as here must have a majority of all members of the Board concur in the action rather than a majority of a quorum of the Board, a question not at issue in the instant case.

While the rule in Prosser may at first glance seem to be confusing and result in illogical outcomes, local governing bodies are urged to examine their respective enabling statutes and determine if the affirmative vote of a majority or the concurrence of a majority is required. If the concurrence of a majority is required, then members should be aware that under Prosser their abstaining from or failing to vote will be deemed as a concurrence with the majority of those voting.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded.

Reversed and remanded.

UNVERZAGT, P.J., and DUNN, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    BRIAN G. EVANS, Petitioner-Appellant, v. CORPORATE SERVICES, Respondent-Appellee. .
    Second District
    No. 2—90—0398
    Opinion filed December 28, 1990.

      Randall K. Reese and William E. Gottfred, both of Reese & Reese, of Rockford, for appellant.
    August M. Mangoni and Louis G. Atsaves, both of August M. Mangoni, Ltd., of Chicago, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Petitioner, Brian G. Evans, appeals from an order of the circuit court of Winnebago County dated March 15, 1990, vacating, on jurisdictional grounds, its prior default judgment of September 13, 1989, assessing certain attorney fees and costs against respondent, Corporate Services. The trial court vacated the prior judgment as void because the notice provisions of section 19(g) of the Workers’ Compensation Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(g)) were not followed, and the court considered those provisions jurisdictional. Petitioner contends that substantial compliance with the notice provisions of section 19(g) was sufficient to confer jurisdiction and that respondent failed to exercise due diligence and to present a meritorious defense in obtaining the vacatur. We affirm for the reasons that follow.

The record discloses that petitioner had received a worker’s compensation award in the amount of $8,343.08, and the award was affirmed by the Industrial Commission on June 28, 1989. The parties agree that the decision of the Commission became final on July 24, 1989. On August 15, 1989, petitioner filed an application for judgment on the award in the circuit court pursuant to section 19(g) of the Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.19(g)), alleging that respondent had refused to pay the award and requesting attorney fees and costs as provided by statute. At the time the application was filed, respondent had not yet paid the amount of the award. In his application, petitioner represented that he had attached “certified” copies of the award and decision of the Industrial Commission.

Petitioner’s proof of service stated that notice of the application for judgment was sent by mail on August 15, 1989, to Corporate Services, its attorney, Louis G. Atsaves, and the Illinois Industrial Commission. Personal service was also attempted on the corporate respondent through the sheriff’s department by delivery of the notice to Regina Ver Kuilen, an employee who was entrusted with the insurance matters of the respondent.

At the hearing set for September 13, 1989, when petitioner presented the application, respondent failed to appear. Petitioner claimed that, at the time the application was filed, respondent had refused to pay the award. However, petitioner acknowledged that, after the filing of the application and after service “appropriately” made, respondent sent a check for the amount of the award. Petitioner claimed, nevertheless, that, under section 19(g) of the Act, he was entitled to attorney fees in the amount of $2,328.14 for the arbitration proceedings, $500 in attorney fees for the application process, and costs in the amount of $60. The trial court granted petitioner’s request for a default judgment, awarding those sums specifically sought at the hearing and totalling $2,888.14.

In November 1989, petitioner instituted garnishment proceedings against the First National Bank & Trust, presumably respondent’s bank; he stated on the affidavit for garnishment that the judgment was unpaid in the amount of $2,828.14 on the principal, $20 in costs, and $40 in interest. While the bank acknowledged receipt of the garnishment summons, the record does not indicate that such summons was ever issued to respondent. By order entered November 28, 1989, the trial court ordered garnishee to turn over the sum of $2,888.14 to petitioner.

On January 31, 1990, respondent, through its attorney, Louis G. Atsaves, filed a petition to vacate the judgment of September 13 pursuant to section 2 — 1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1401). The petition alleged that the judgment was void for lack of jurisdiction when it was entered because service of .notice was inadequate and no certified copy of the decision of the Commission had been presented pursuant to section 19(g) of the Act. Respondent further alleged that it had a meritorious defense to the application for judgment in that it had never refused to pay the award, and the payment was in fact made in full. The petition alleged due diligence, and it was supported by various affidavits stating that no notice from the Industrial Commission was ever received by respondent, its agents or attorneys.

Section 19(g) of the Act states in pertinent part:

“[E]ither party may present a certified copy of the award of the Arbitrator, or a certified copy of the decision of the Commission when the same has become final, when no proceedings for review are pending, providing for the payment of compensation according to this Act, to the Circuit Court of the county in which such accident occurred or either of the parties are residents, whereupon the court shall enter a judgment in accordance therewith. In a case where the employer refuses to pay compensation according to such final award or such final decision upon which such judgment is entered the court shall in entering judgment thereon, tax as costs against him the reasonable costs and attorney fees in the arbitration proceedings and in the court entering the judgment for the person in whose favor the judgment is entered, which judgment and costs taxed as therein provided shall, until and unless set aside, have the same effect as though duly entered in an action duly tried and determined by the court ***.
Judgment shall not be entered until 15 days’ notice of the time and place of the application for the entry of judgment shall be served upon the employer by filing such notice with the Commission, which Commission shall, in case it has on file the address of the employer or the name and address of its agent upon whom notices may be served, immediately send a copy of the notice to the employer or such designated agent.” Ill. Rev. Stat. 1987, ch. 48, par. 138.19(g).

On March 15, 1990, the trial court granted respondent’s petition and vacated the prior default judgment. The court stated that section 19(g) was not followed and that it was a statutory measure that was jurisdictional. The court further specified that the defect lay in the failure of the Industrial Commission to send notice to the respondent despite the personal service from petitioner.

We first address whether respondent could properly bring its petition to vacate the default judgment on jurisdictional grounds. Contrary to the assertions of petitioner that respondent has failed to meet the requirements imposed by section 2 — 1401 such as due diligence in bringing its petition to vacate, we point out that a void judgment, order or decree may be attacked at any time or in any court, either directly or collaterally (R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309), without any showing of diligence or a meritorious defense (Sawant, 111 Ill. 2d at 309; Francisco v. Francisco (1980), 83 Ill. App. 3d 594, 596). A court has inherent authority to expunge void acts from its records. (Dahl v. Grenier (1984), 126 Ill. App. 3d 891, 893-94; Ill. Rev. Stat. 1987, ch. 110, par. 2— 1401.) A judgment or order is void where it is entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular order or judgment (Potenz Corp. v. Petrozzini (1988), 170 Ill. App. 3d 617, 618), or where the order is procured by fraud (Vulcan Materials Co. v. Bee Construction Co. (1981), 101 Ill. App. 3d 30, 40). Where, as here, the petition sought to attack the judgment on jurisdictional grounds, we find that respondent’s petition was properly brought before the trial court.

We next consider whether the trial court had jurisdiction to enter judgment on petitioner’s application pursuant to section 19(g) of the Act. The rendering of a judgment on an award under section 19(g) of the Act is not a perfunctory duty, but a judicial act, and as such must necessarily be predicated upon jurisdiction of the subject matter and the parties. (Fico v. Industrial Comm’n (1933), 353 Ill. 74, 79.) The jurisdiction exercised by the circuit courts under the Workers’ Compensation Act is a special statutory jurisdiction, and the parties seeking a hearing in the circuit court under the Act must comply with all the conditions prescribed. (Peter H. Clark Lodge No. 183, I.B.P.O.E. of W. Elks v. Industrial Comm’n (1971), 48 Ill. 2d 64, 68; Beasley v. Industrial Comm’n (1990), 198 Ill. App. 3d 460, 464.) Where the court is exercising a special statutory jurisdiction, such jurisdiction is never presumed. (Fico, 353 Ill. at 79.) The requirements for the circuit court’s subject-matter jurisdiction under the Act demand strict compliance, and proof of the court’s jurisdiction must affirmatively appear in the record. Arrington v. Industrial Comm’n (1983), 96 Ill. 2d 505, 508-09.

In order to permit the speedy entry of judgment on an award, section 19(g) of the Act provides in absolute terms that, upon presentation of a certified copy of an award or decision to the circuit court, and where no proceedings for review are pending, the court shall render a judgment in accordance therewith. (Ahlers v. Sears, Roebuck Co. (1978), 73 Ill. 2d 259, 268; Ill. Rev. Stat. 1987, ch. 48, par. 138.19(g).) The circuit court’s inquiry, however, is limited to a determination of whether the requirements of section 19(g) have been met. Ahlers, 73 Ill. 2d at 268; McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 223.

The legislature has seen fit to make the presentation of a certified copy of the final award or decision a condition precedent to the entry of judgment. We believe that the language of the statute is plain and that there is no room for construction. A certified copy of a document is one signed and certified as a true copy by the officer to whose custody the original is entrusted. (People v. Fiddler (1968), 102 Ill. App. 2d 319, 325, rev’d on other grounds (1970), 45 Ill. 2d 181.) No such certified copy appearing to have been filed with petitioner’s application and made part of the record, we conclude that a threshold requirement of the statute has not been followed. Therefore, the trial court was without authority to enter judgment on the award; the default judgment entered on September 13 was void, and the trial court properly vacated it.

In view of our determination, we do not need to consider the issue whether petitioner’s attempted service of process was also sufficient under the statute. We observe, however, that even if petitioner could have established the jurisdiction of the trial court to hear the matter, he would not necessarily prevail in this appeal on the merits. One of the purposes of the statute is to compensate a claimant who is compelled to incur additional expenses by reason of the refusal to pay an award by allowing him court costs and attorney fees. (Franklin v. Wellco Co. (1972), 5 Ill. App. 3d 731, 734.) Proof of payment or tender of payment is a complete defense to a claim for judgment and attorney fees and costs (Board of Education of High School District No. 502 v. Industrial Comm’n (1923), 308 Ill. 445, 450), but where anything is properly due the employee under the final award at the time application for judgment is made, then the circuit court should enter judgment as provided in section 19(g) (Voorhees v. Industrial Comm’n (1964), 31 Ill. 2d 330, 332). However, the statute itself gives no authority to allow reasonable attorney fees and costs to be taxed against the party owing compensation unless that party refuses to pay the compensation, or some installment thereof, when it becomes due. McMurray v. Peabody Coal Co. (1917), 281 Ill. 218, 224, 226; see also Board of Education, 308 Ill. at 451; Franklin, 5 Ill. App. 3d at 735.

Here, the record does not affirmatively establish that the respondent ever refused to pay the award so that petitioner was compelled to incur additional expenses. It is not contested that the petitioner was paid in full sometime in August 1989 before the hearing was had. Under these circumstances, it would seem unfair and unreasonable to tax respondent with attorney fees and costs. To conclude otherwise would mean that, the day after an award became final, without making a demand for payment, a petitioner could immediately file an application for judgment and automatically obtain fees and costs without even affording the respondent a reasonable time to make payment. This harsh result does not appear to be contemplated by the statute.

For the reasons stated, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

INGLIS and NICKELS, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES T. BLACK, Defendant-Appellant.
    Third District
    Nos. 3—89—0416, 3—90—0286 cons.
    Opinion filed January 7, 1991.

      Swengel & Swartz, of Henry (Eric S. Swartz, of counsel), for appellant.
    Joseph Navarro, State’s Attorney, of Ottawa (Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the defendant, James Black, was convicted of the charge of criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 13(1)) and sentenced to a term of seven years’ imprisonment. He appealed. While his appeal was pending, he filed a post-conviction petition. A hearing was held on the petition. We delayed determination of the direct appeal until the conclusion of the post-conviction proceeding. Subsequently, the trial court denied his prayer for relief. He also appeals that order. We have consolidated these appeals for disposition. We affirm.

On April 7, 1989, the defendant appeared in court with his attorney, Deborah Dunn, and waived his right to a jury trial. At that time, the defendant’s trial was reconsolidated with that of a codefendant, Jeffrey Parcher, despite a prior severance order. Parcher was found guilty of criminal sexual assault in a bench trial. He also appealed his conviction, and we affirmed the trial court in People v. Parcher (3d Dist. 1990), No. 3 — 89—0432 (unpublished order under Supreme Court Rule 23).

At trial, the victim testified she was at home on the evening of August 18, 1988, when she received a phone call from Parcher asking if she would like to go riding around in his truck. She agreed to go and, shortly thereafter, joined Parcher, the defendant, and a third male subject in Parcher’s track. The victim indicated she had known Parcher for about a month prior to the phone call but that she had never been out alone with him or ever on a date with him. At the time, she considered Parcher a friend, but not a boyfriend. She further testified she knew the defendant for approximately three or four years; she used to baby-sit the defendant’s children. The four proceeded to drive around for awhile and eventually dropped off the third male.

The defendant, the victim, and Parcher then drove to the Streator Country Club. There, the defendant and Parcher wanted to go swimming. The defendant climbed a fence and sneaked into the pool area. Parcher and the victim followed suit. The defendant and Parcher then proceeded to jump into the pool and take their clothes off. The nude men then swam to where the victim was standing outside the pool. Parcher grabbed her ankles and she fell into the pool.

After falling into the pool, Parcher held the victim as the defendant tried to unzip her pants. After straggling with the victim, the defendant pulled her pants down, pulled her tampon out and threw it to the side of the pool, pried her legs apart, and placed his penis into her vagina. The defendant then stated it was Parcher’s turn whereby Parcher proceeded to place his penis into her vagina. The victim immediately left the pool area and went to her sister’s house.

Tara Dimming, the victim’s sister, testified the victim came to her home on August 19, crying, upset, and wet. She stated the victim told her that she was raped.

After reporting the alleged rape, the victim was taken to the hospital where a rape kit was prepared. The Joliet lab concluded seminal material taken from the victim could have come from Parcher and the defendant or just the defendant. Also included in the rape kit was a brief medical history of the victim which included statements she made about the assault to the examining physician. The State did not use these statements at trial. The defendant, meanwhile, failed to request this information from the State and failed to subpoena the hospital for the records.

The report showed the victim stated that one of the guys involved in the assault she has “gone with a couple of times.” She also stated both men were drunk. At trial, the victim stated she did not date Parcher. She also did not testify to both men being drunk.

Parcher testified he met the victim at a party in May of 1988. On that occasion, they went for a ride in his truck and engaged in sexual intercourse. They subsequently saw each other about every other week and continued to engage in sexual intercourse.

Regarding the incident at the pool, Parcher stated that he, the victim, and the defendant stopped at the pool to go swimming. He and the defendant proceeded to get undressed. Laughingly, they pulled the victim into the pool, whereupon she and Parcher began kissing. The defendant then approached the two and joked about removing the victim’s clothes. She permitted the defendant to do so but became angry when he removed her tampon. Parcher then swam off but could see the defendant feeling the victim’s breasts and hear him calling her names. The defendant then gave up and sent the victim over to Parcher. The victim was crying, so he started kissing her but stopped when she asked him to. She then left but came back to get her purse and a ride to her sister’s house.

In addition, a defense witness, Brian Crouch, testified he previously dated the victim and that she admitted sleeping with Parcher. This charge was vehemently denied by the victim in rebuttal.

The defendant first argues he is entitled to a new trial due to a discovery violation committed by the State. He specifically contends the State’s failure to produce a medical report containing statements made by the victim violated his right to due process. He alleges the statements could have been used to impeach the victim and as such were necessary to him in his defense. He therefore concludes the State’s failure to produce the document resulted in his being prejudiced.

The trial court, after the defendant presented these arguments at his post-conviction petition hearing, denied his prayer for relief. The trial court found no constitutional violation and found the evidence would not have changed the outcome of the trial.

A prosecutor’s failure to disclose evidence which the defense might have used to impeach a witness is error. (People v. King (1985), 140 Ill. App. 3d 937, 486 N.E.2d 978.) However, such suppression of evidence amounts to a constitutional violation only if it deprives the defendant of a fair trial. (United States v. Agurs (1976), 427 U.S. 97, 49 L. Ed. 2d 342, 96 S. Ct. 2392.) Evidence is material only if there is a reasonable probability that had the evidence been disclosed, the result of the proceeding would have been different. (People v. Olinger (1986), 112 Ill. 2d 324, 493 N.E.2d 579, citing United States v. Bagley (1985), 473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375.) The undisclosed evidence must be evaluated in the context of the entire record to determine if it creates a reasonable doubt that did not otherwise exist. People v. King (1985), 140 Ill. App. 3d 937, 486 N.E.2d 978.

The defendant suggests the trier of fact, in this case the trial court, was deprived of the opportunity to assess the degree of the impeachment of the victim’s credibility. We disagree. The defendant, by coupling the testimony of Brian Crouch with Parcher’s testimony, sufficiently presented this boyfriend/girlfriend impeachment angle to the trial court without success.

We find no reasonable probability that this evidence would have changed the outcome of the defendant’s trial, since the evidence overwhelmingly supported the decision of the trier of fact and the minor inconsistencies contained within the report cast very little doubt upon the credibility of the victim. Apparently, the defendant’s use of the victim’s statements would be to show that she described her relationship with Parcher at trial somewhat differently than what she said at the hospital and to the investigator following the incident. The testimony of Crouch, however, allows for a similar impeachable inference to be made, and the failure to produce the other statements is not prejudicial error.

The defendant next asserts his waiver of a jury trial was not voluntarily made due to the improper advice of his trial counsel. The trial court found the defendant’s jury trial waiver to be knowingly and understandingly made and was a matter of sound trial strategy.

The record shows at the hearing on his post-conviction petition the defendant testified he was advised by Dunn to not proceed to a jury trial in order to prevent the State from informing the jury of his prior convictions. He was also advised that if he proceeded to a bench trial, he would not have to testify and the State would then be unable to divulge the prior convictions. The defendant alleges he was not told he could proceed to a jury trial and still not testify. The defendant also testified he was told that if he proceeded to a jury trial and was found guilty, he would be given the maximum sentence of 15 years. The defendant essentially maintains Dunn, an attorney with no prior jury trial experience, made gross misrepresentations to the defendant thereby coercing him into waiving his right to a jury trial.

Dunn testified she could not recall the specifics of the conversation between herself and the defendant regarding the decision to waive a jury trial. In addition, she stated she had no personal knowledge of the trial court’s sentencing practices.

Dunn also explained the reasoning behind the decision to waive the jury trial. She noted at the time the defendant waived the jury trial, codefendant Parcher had a jury demand on file. Since Parcher was not waiving a jury trial, the two jury trials were going to be severed. Dunn, due to certain factors, found it advantageous to have Parcher’s testimony at the defendant’s trial. She therefore believed to ensure the availability of Parcher’s testimony the defendant should waive a jury trial.

Furthermore, she questioned the defendant’s credibility in a jury trial setting. She related she would have a difficult time explaining why the defendant, a married man, would leave his wife and children at home in the middle of the night to go carousing with three teenagers (one being his children’s babysitter), the fact that the defendant pulled down the victim’s pants and pulled out her tampon, and that he had thought about having sex with her. Dunn believed the best available defense was to accept Parcher’s testimony relating to the events on the night in question and to use the testimony in an attempt to exonerate the defendant.

For a jury waiver to be valid, it must be knowingly and understandingly made. (Ill. Rev. Stat. 1989, ch. 38, par. 103 — 6.) However, there is no precise formula for determining whether a jury waiver is knowingly and understandingly made because the decision to do so necessarily depends upon the facts and circumstances of each case. People v. Crespo (1983), 118 Ill. App. 3d 815, 455 N.E.2d 854.

Here, the defendant asserts he was prejudiced by the advice of trial counsel. He argues trial counsel never told him that he could request a jury trial and still not have to testify, thereby precluding the State from introducing his prior convictions. The defendant, citing People v. Correa (1985), 108 Ill. 2d 541, 485 N.E.2d 307, argues the appropriate standard in reviewing trial counsel’s conduct is whether the advice was within the range of competence demanded of attorneys in criminal cases.

However, the United States Supreme Court in Hill v. Lock-hart (1985), 474 U.S. 52, 88 L. Ed. 2d 203, 106 S. Ct. 366, found the two-part Strickland test to be the appropriate standard measure in determining the effectiveness of counsel in guilty plea settings as well as trial proceedings. Under Strickland, the defendant is required to prove: (1) that his counsel’s performance fell below an objective standard of reasonableness; and (2) that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984), 466 U.S. 668, 687-88, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068.) In essence, prejudice must be proved. Strickland, 466 U.S. at 693, 80 L. Ed. 2d at 697, 104 S. Ct. at 2067-68.

In the instant case, the defendant suggests Dunn failed to satisfy the Strickland test by allegedly failing to tell him that he could proceed to a jury trial without having to testify. The record discloses, however, the decision to waive a jury trial was based on sound trial strategy and satisfied the Strickland test.

For these reasons, the judgment of the circuit court of La Salle County is affirmed. .

Affirmed.

BARRY and McCUSKEY, JJ., concur.


text:
      In re MARRIAGE OF AMY JO BALZELL, n/k/a Amy Jo Naqvi, Plaintiff-Appellant, and GREGORY A. BALZELL, Defendant-Appellee.
    Third District
    No. 3-90-0148
    Opinion filed January 15, 1991.

      Sandra M. Pellegrino and William E Morris, both of Peoria, for appellant.
    Susan Butler, of Morton (Anthony P. Corsentino, of counsel), for appellee.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The marriage of petitioner Amy Balzell (Amy) and respondent Greg Balzell (Greg) was dissolved by a judgment of the circuit court of Peoria County. Amy appeals, contending the court erred (1) in finding this case to involve an initial custody determination rather than a modification of a custody judgment and (2) in finding that their only child, Chantel Balzell (Chantel), had no custodial preference. Greg cross-appealed the trial court’s awarding grandparent visitation, contending he was not given proper notice and an opportunity to be heard on the issue.

Amy and Greg were married on August 20, 1983. Chantel was born on December 13, 1983. Greg and Amy separated on November 8, 1984. On August 13, 1985, Amy filed a petition for dissolution of marriage. A temporary child support hearing was held on September 24, 1985. There, the court entered an order directing Greg to pay child support on a biweekly basis in an amount equal to 20% of his net income. A hearing was also held on October 31, 1985, at which time the court entered a judgment of dissolution of marriage. In the judgment, the court noted that Chantel has resided with her mother since the date of separation. The court also reserved ruling on all issues except the marital status of the parties. On May 5, 1987, the court dismissed the case for want of prosecution.

Pursuant to an agreement entered into by Greg and Amy on June 18, 1987, Amy turned custody of Chantel over to Greg. The agreement allowed Greg to take custody of Chantel for a period of 30 days. It was further agreed that after the 30-day period expired, Amy was to decide whether to give Greg full custody of Chantel. On November 6, 1987, Greg filed a petition for temporary relief alleging that he had custody of Chantel from June 19, 1987, and that Amy had left the State of Illinois. The petition also requested that he be awarded temporary custody of Chantel and that his child support payment obligations be abated. Amy subsequently filed a motion to dismiss claiming the court did not have jurisdiction.

A hearing on the motion to dismiss and petition for temporary relief was held on December 11, 1987. By agreement, an order was entered providing that the parties were to share joint temporary custody of Chantel, pendente lite, in alternating periods of four months for each party.

On September 23, 1988, Greg filed a petition for modification and review. The petition alleged that “a material change in circumstances has now occurred and factors now exist to make the aforementioned split custody provision inappropriate.” An order was entered on March 13, 1989, granting Greg’s petition to modify and directing that temporary custody of Chantel shall remain with Greg subject to Amy’s right to visitation.

After a four-day trial, the trial court issued its memorandum of decision on June 26, 1989. The court, after evaluating the case according to the factors found in section 602 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 101 et seq.), found Chantel to have no preference as to custody and found it to be in her best interest to award custody to Greg. Amy appeals.

Amy first contends the trial court improperly applied the best interests of the child standard found in section 602 of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 602.) Amy claims the matter before the trial court was not a first instance custody proceeding subject to section 602 but, rather, was a modification of custody proceeding subject to section 610. Section 610 requires, inter alia, the petitioner prove there are changed circumstances warranting a modification of an existing custody arrangement. (See Ill. Rev. Stat. 1989, ch. 40, par. 610.) Amy argues the June 26, 1989, order amounts to a post-decree modification of a September 24, 1985, order which Amy alleges granted her permanent custody of Chantel. Under this theory, the temporary support order became a permanent custody order. Since judicial discretion to make post-decree modifications of custody is limited to situations where, by clear proof, there has been a material change of conditions or the parent with custody has been shown to be unfit, and since, according to Amy, neither circumstance was demonstrated during the trial, she argues the trial court abused its discretion in awarding custody to Greg.

Greg, on the other hand, contends Amy is engaging in a not-so-creative semantic exercise in suggesting a temporary child support order is actually a child custody order. Greg claims the matter before the court on September 24, 1985, was a temporary child support order and had nothing to do with custody. He further notes if Amy truly believed the September 24, 1985, order had given her permanent custody of Chantel, she would never, by agreement, have stipulated for the entry of a consent order awarding both parties the temporary joint custody of Chantel on December 11,1987.

We will not disturb the trial court’s determination of custody unless it is against the manifest weight of the evidence or is manifestly unjust. (In re Marriage of Dali (1989), 191 Ill. App. 3d 652, 548 N.E.2d 109.) In the instant case, we cannot accept Amy’s characterization of the September 24, 1985, order as a permanent custody order. It was a temporary child support order. In addition, the record reveals the parties had an ongoing dispute as to custody. During the pendency of this dispute, the trial court entered various orders modifying the temporary custodial, residential, and visitation arrangements. There is nothing in the September 24, 1985, order to suggest a temporary or permanent custodial arrangement had been decided by the trial court. Accordingly, because we find the instant case to constitute an initial custody proceeding, the trial court properly applied section 602 of the Act.

Amy next argues the trial court’s finding Chantel had no custodial preference was against the manifest weight of the evidence. Amy asserts the trial court erred in failing to specifically ask Chantel whether she had a custodial preference and in assuming Chantel had no custodial preference due to her response that she enjoyed staying with her mother in Virginia and her father in Illinois. Amy claims Chantel, in an interview with a Prince George County (Virginia) social worker, expressed a preference for living with her mother and visiting her father.

Greg argues there is no requirement for a trial court to ask such a question and the more sensitive courts do not ask that question but obtain an inference from the totality of the child’s statements. Even if Chantel unequivocally indicated a preference for living with Greg or Amy, this preference, while entitled to consideration, would not be binding on the trial court. (In re Marriage of Kush (1982), 106 Ill. App. 3d 233, 236, 435 N.E.2d 921, 923.) Under these circumstances, therefore, the trial court did not err in failing to specifically ask Chantel whether she preferred to live with her father or her mother.

There is a strong and compelling presumption in favor of the trial court’s determination of custody. (Cooper v. Cooper (1986), 146 Ill. App. 3d 943, 497 N.E.2d 805.) This is. so because the trial court is in a better position to evaluate the credibility, temperaments, personalities, and capabilities of both parents through the proceedings. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 715, 463 N.E.2d 773, 778.) The record shows both parents to be good parents and that Chantel enjoys a good relationship with both. The trial court noted such and ruled that, in its opinion, awarding custody to Greg was in Chantel’s best interest. Under all of the circumstances in the instant case, we cannot say the award of custody to Greg was against the manifest weight of the evidence.

In addition, Greg contests the trial court’s awarding grandparent visitation rights to Amy’s parents. He argues visitation privileges can be extended to grandparents only when it is shown that special circumstances beyond mere mutual affection exist to justify an order awarding such visitation. He further notes the grandparents did not intervene in the case and that he, therefore, was not given proper notice as required by section 607(b) of the Act. (Ill. Rev. Stat. 1989, ch. 40, par. 607(b).) Amy counters, asserting Greg testified that if he had custody it would facilitate Chantel continuing her strong relationship with her grandparents, whereas now, on appeal, he argues that he wasn’t given notice of any grandparent visitation.

There are only two ways for a trial court to award grandparent visitation: (1) when there are special circumstances; and (2) when a grandparent petitions the court under section 607(b) of the Act. In the instant case, no special circumstances have been established to warrant the granting of grandparent visitation rights, and the grandparents failed to petition the court under section 607(b). We, therefore, reverse the trial court judgment on this matter and affirm the trial court judgment in all other respects.

Reversed in part; affirmed in part.

GORMAN and SLATER, JJ., concur.