author: JUSTICE KNECHT

text:
      In re MARRIAGE OF WILLIAM A. LENKNER, Petitioner-Appellant, and GAIL I. LENKNER, Respondent-Appellee.
    Fourth District
    No. 4—92—0171
    Opinion filed February 11, 1993.

      Robert I. Auler, of Auler Law Offices, of Urbana, for appellant.
    Glenn A. Braden, of Braden Law Office, of Neoga, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

William Lenkner appeals the denial of his petition to modify an award of maintenance. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) William alleges the circuit court abused its discretion in denying his petition due to his former spouse’s alleged failure to make a good-faith effort to achieve financial independence, and due to a public policy in favor of encouraging rehabilitation of dependent former spouses. We find the trial court’s denial of William’s petition was well within its exercise of discretion and affirm.

Gail and William Lenkner were married on May 14, 1966. No children were born to this marriage; however, William adopted Gail’s natural child, Darrell, who reached the age of majority prior to the dissolution. On April 24, 1984, William filed for dissolution of marriage. In his petition for dissolution, William alleged the parties had entered into an oral agreement regarding maintenance, property division, debts, and attorney fees. With respect to maintenance, William represented the parties had agreed he would pay $600 monthly to Gail. Of the $600, $459 was to be considered maintenance and $141 was to be applied to the mortgage payments on the marital home. The agreement further provided for increases or decreases in maintenance based upon increases and decreases in William’s salary. Gail would be permitted to continue residence in the marital home. She would be required to pay the real estate taxes and insurance. Gail filed her appearance, waived a bifurcated hearing, and agreed to the entry of the judgment of dissolution. The judgment was entered on May 15, 1984, incorporating the parties’ agreement.

In January 1987, William unilaterally terminated the maintenance and mortgage payments. On June 12, 1987, Gail filed a petition for a rule to show cause and requested William be ordered to pay the arrearage in the maintenance and mortgage payments. William counter-petitioned to terminate maintenance, alleging there had been a material change in circumstances in that Gail had become employed, and alleging Gail had had sufficient time to rehabilitate herself (Ill. Rev. Stat. 1987, ch. 40, par. 510). William additionally requested the marital home be sold and the proceeds divided. The circuit court characterized the Lenkners’ marriage as one involving a modest standard of living on the middle-income salary of William while Gail basically stayed at home. At the time of dissolution William agreed to pay Gail maintenance which varied according to his income, consented to her use of the family residence, and agreed to pay the mortgage. The court found that even though Gail was now employed, she was in need of additional support in order to maintain or reestablish a standard of living similar to that enjoyed at the time of the dissolution and William’s ability to pay maintenance had increased. The court ordered William to pay the arrearage and increased future maintenance payments to $572 per month, commensurate with William’s increase in salary. The court denied William’s petition in most respects, but determined the maintenance would no longer be variable according to increases or decreases in William’s salary.

On August 5, 1991, William filed another petition for modification of maintenance. (Ill. Rev. Stat. 1989, ch. 40, par. 510(a).) William alleged that Gail, as the recipient of an award of permanent maintenance, is under an affirmative obligation to seek appropriate training and skills to become financially independent. William further alleged Gail failed to make good-faith efforts toward the goal of financial independence during the seven years she has been receiving maintenance.

William and Gail were married for 18 years. During the marriage, William attended college and received a degree in electrical engineering. Gail worked as a bookkeeper and dispatcher on occasions during the marriage, but was not employed at the time of the dissolution. William is seven years younger than Gail. At the time of the dissolution, Gail was 48. She is now 56 years old. At the modification hearing, William testified he is a minimum of 10 years from retirement, earns between $55,000 and $60,000 per year, and is not economically burdened by making the maintenance payments. William seeks termination of his maintenance obligation because he feels it is time for Gail to be self-sufficient. She testified that since the dissolution she has taken a typing course as well as a computer course. Gail has worked at a series of full- or part-time jobs, holding down two jobs on at least one occasion. She is currently employed full-time and has a weekly net income of $163. Two witnesses testified on behalf of Gail regarding her attempts to seek employment, and the difficulties which a 56-year-old woman faces in the job market.

The circuit court denied the petition to terminate maintenance, finding Gail had made an effort, though not entirely successful, to find employment of a more economically rewarding nature. The court noted the real estate provisions of the dissolution order geographically limited Gail’s employment search to the east central Illinois area. Although the court endorsed the Illinois public policy in favor of encouraging the dependent spouse to become self-sufficient, it rejected William’s argument his maintenance obligation should be terminated on this basis, finding Gail has continued in self-motivated efforts of rehabilitation. This appeal followed.

The awarding and modification of maintenance rests within the sound discretion of the trial court, and we will not disturb its judgment absent an abuse of discretion. (In re Marriage of Carpel (1992), 232 Ill. App. 3d 806, 828, 597 N.E.2d 847, 829.) The circuit court carefully considered William’s arguments and rejected them as the facts indicated it would be inappropriate to terminate maintenance under existing law.

We reject William’s contention he is not required to demonstrate a change in circumstances in order to succeed in his petition to modify maintenance. Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510(a)) specifically states a maintenance award may only be modified upon a showing of a substantial change in circumstances. This provision is applicable when the modification sought is actually termination of the maintenance obligation. (In re Marriage of Whiting (1989), 179 Ill. App. 3d 187, 192, 534 N.E.2d 468, 471.) William alleges case law establishes the proposition that the payor spouse is relieved of demonstrating changed circumstances where he alleges the recipient spouse has failed to make a good-faith effort to achieve financial independence. This is incorrect. The payor spouse is not relieved of demonstrating changed circumstances; rather, the lack of good-faith effort to achieve financial independence may, if proved, constitute the changed circumstances necessary for modification. This distinction is important due to the burden of proof. The burden of establishing changed circumstances is on the party seeking relief. (In re Marriage of Logston (1984), 103 Ill. 2d 266, 287, 469 N.E.2d 167, 176; In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 326, 522 N.E.2d 738, 742.) Thus, where the payor spouse alleges the dependent former spouse has failed to meet the affirmative obligation to make a good-faith effort to achieve financial independence, the payor spouse bears the burden of proving the lack of good-faith effort. We therefore reject William’s contention he is not required to demonstrate a substantial change in circumstances, and continue our analysis to determine whether the trial court erred in finding William failed to meet this burden.

William alleges Gail failed to make a good-faith effort to become financially independent because she has not pursued education or training to enhance her earning power. William cites In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229, in support of his contention the Act places an affirmative duty upon the dependent former spouse to seek education or training. We find Mittra factually distinguishable from the present case and hold that the dependent former spouse does not have an affirmative obligation, in every case, to seek education or training.

Mittra came before us not on appeal from the denial of a petition to modify, but on appeal from the initial award of indefinite maintenance. We affirmed the award of indefinite maintenance, but cautioned the dependent former spouse that she was under an affirmative obligation to make a good-faith effort to seek appropriate training and skills to become financially independent in the future. (Mittra, 114 Ill. App. 3d at 634-35, 450 N.E.2d at 1234.) Raj and Mindira Mittra were married for 23 years. Mindira had a master’s degree from a foreign university. She had, however, never been employed in her field. At the time of the dissolution, Mindira was employed as a teacher’s aide, earning $226 per month. (Mittra, 114 Ill. App. 3d at 629, 450 N.E.2d at 1231.) In the property settlement Mindira was awarded an expensive home and $50,000 in other assets, some of which v/ere income producing. She was additionally awarded $1,800-per-month indefinite maintenance. Mittra, 114 Ill. App. 3d at 629-30, 450 N.E.2d at 1230-31.

In Mittra, it was appropriate to require Mindira to seek training or skills in order to enhance her earning potential. Mindira earned a monthly net income of $226 per month and received $1,800 per month in maintenance. Thus, exclusive of any income she may have received from investments, only 11% of her monthly income was attributable to her earnings. Conversely, Gail earns $163 per week, or $676 monthly and receives $572 in maintenance. Some 54% of Gail’s monthly income is attributable to her earnings. Moreover, the educational background of Mindira, the petitioner in Mittra, made it likely that, with some education to adapt her degree to American standards, she could obtain employment earning substantially more than $226 per month.

Gail does not have the benefit of a college education or master’s degree. While Gail has tried to update her skills by taking two community college courses, this has not increased her earning power. Thus, the amount of education Gail would be required to undertake in order to increase her earning power is significantly greater than in the case of the petitioner in Mittra. Simply put, our cautionary language in Mittra was a warning to the petitioner, i.e., she could not remain employed in a job earning only $226 per month and expect to continue to receive $1,800 per month in maintenance, when her educational background indicated that with a minimal amount of adaptation, she could obtain more lucrative and potentially self-supporting employment.

The Act does not specifically state the dependent former spouse has an obligation to seek education or training. Rather, this duty stems from one of the factors employed by the circuit court in determining the amount and duration of the maintenance. Section 504(b) provides several factors to be considered in determining the amount and duration of a maintenance award. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) Section 504(bX2) provides one of these factors is the amount of time necessary for the dependent former spouse to acquire education or training necessary to procure employment. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)(2).) Section 504(b)(2) accompanied the introduction of rehabilitative maintenance to Illinois in 1977. Inherent in the concept of rehabilitative maintenance is the optimal goal that after a period of renewing or developing skills, or reentering the job market, the dependent former spouse will be able to become self-sufficient through his or her own income. Thus, section 504(b)(2) “creates an affirmative obligation on the part of the spouse seeking maintenance to seek employment, where plausible, and this reflects one of the most important changes brought about by this Act.” (Ill. Ann. Stat., ch. 40, par. 504(b)(2), Historical and Practice Notes, at 529 (Smith-Hurd 1980).) It is noteworthy that the historical and practice notes provide the dependent former spouse’s duty is to seek employment, where possible. The notes do not state the spouse must obtain education or training.

The obligation to seek education or training has not been placed on the dependent former spouse in every situation. In In re Marriage of Callaway (1986), 150 Ill. App. 3d 712, 716, 502 N.E.2d 366, 369, the appellate court held the dependent former spouse had an obligation to seek and accept appropriate employment. Gregory and Muriel Callaway were married for 29 years. (Callaway, 150 Ill. App. 3d at 713, 502 N.E.2d at 367.) Although Muriel had only an eighth-grade education and had never worked outside of the home, the court did not place an obligation upon her to obtain education or training. (Callaway, 150 Ill. App. 3d at 716, 502 N.E.2d at 369.) Gail has slightly more education than Muriel and has been employed outside the home. However, the situations of both women are similar in that both were married for a lengthy period of time, were primarily homemakers during the marriage, are lacking in advanced education or training, and were unemployed at the time of the dissolution of their respective marriages.

On several occasions, the appellate court has found a dependent former spouse to have complied with the affirmative obligation under the statute by seeking and accepting appropriate employment. In In re Marriage of Martin (1992), 223 Ill. App. 3d 855, 863, 585 N.E.2d 1158, 1164, we held the circuit court erred in denying the dependent former spouse’s petition to extend maintenance. Howard and Linda Martin were married only Mlz years. (Martin, 223 Ill. App. 3d at 856, 588 N.E.2d at 1159.) They had lived lavishly during the marriage. Linda had foregone a right to receive maintenance from her former husband in order to marry Howard and had only been employed for less than three years of her life prior to marrying Howard. The Martin marriage was dissolved when Linda was in her late forties. Linda completed the last three weeks of a five-week real estate course and became licensed to sell real estate. However, she earned only $3,800 in a time span covering a year. (Martin, 223 Ill. App. 3d at 857-58, 585 N.E.2d at 1160-61.) Reversing the circuit court and rejecting Howard’s arguments to the contrary, we found Linda’s employment efforts to be adequate. Martin, 223 Ill. App. 3d at 863, 585 N.E.2d at 1164.

Similarly, in In re Marriage of Courtright (1989), 185 Ill. App. 3d 74, 77, 540 N.E.2d 1027, 1029, the appellate court held the dependent former spouse had met her affirmative obligation under the Act by maintaining employment. John and Marie Courtright were married for 29 years. (Courtright, 185 Ill. App. 3d at 75, 540 N.E.2d at 1028.) Reversing the circuit court’s determination that Marie failed to meet her obligation under the Act because she had not obtained her teaching certificate, the appellate court found Marie had been employed at a series of jobs since the dissolution and there was no evidence in the record she had ever refused employment. Marie’s decision not to obtain her teaching certificate was merely a conscious decision not to teach, which did not weigh against her because she had maintained other employment. (Courtright, 185 Ill. App. 3d at 77, 540 N.E.2d at 1029-30.) The appellate court did not find Marie had an obligation to seek education or training, but found her efforts to find suitable employment fulfilled her obligations under the Act.

Likewise, in In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 269-70, 511 N.E.2d 156, 166, we affirmed an award of indefinite maintenance, without placing an obligation on the dependent former spouse to seek education or training. Kenley and Eloise Wade were married for over 20 years before they separated. (Wade, 158 Ill. App. 3d at 259, 511 N.E.2d at 159.) Eloise was 50 years old and had been absent from the work force for 15 years. Although she had a desire to return to school to obtain her nursing degree, we noted she had the funds neither to obtain this training, nor to support herself. However, we acknowledged her employability would be greatly enhanced if she were to obtain this training. Notably, we did not place a duty to obtain this training upon Eloise. Rather, we cautioned her she had an obligation to seek appropriate employment and to make a good-faith effort toward becoming financially independent. Wade, 158 Ill. App. 3d at 269, 511 N.E.2d at 166.

These cases indicate it is not appropriate, regardless of age, ability, inclination, former educational experience, and with no guarantee of success, to place a duty on a dependent former spouse to seek education or training. Where the circumstances of the dependent former spouse indicate such education or training is likely to successfully enable the dependent former spouse to obtain more lucrative employment, it is reasonable to place an obligation on the spouse to obtain such training or education. However, where the dependent former spouse’s circumstances indicate mandatory education or training would be little more than an exercise in futility, it is appropriate to charge the dependent former spouse with the obligation to seek and accept appropriate employment.

In the present case, due to Gail’s age, lack of formal education experience, lack of guarantees of success, and the improbability she could greatly enhance her earning potential by embarking upon an educational or training program, it is inappropriate to place an obligation upon Gail to seek training or education. The appropriate obligation, as in Courtright and the other cases discussed in this opinion, is one of seeking and accepting appropriate employment. We find the circuit court correctly determined Gail had complied "with this duty. Gail has been consistently employed since the dissolution. She has, on at least one occasion, held a full-time job as well as a part-time job, and on another occasion held two part-time jobs. William alleges Gail failed to fulfill her obligations under the Act because she quit a job at which she earned minimum wage and which was located 28 miles from her home. Had Gail quit this job and refused to seek other employment, William’s argument would be more persuasive. However, the record indicates Gail immediately sought and accepted other employment, suffering no decrease in wages.

Additionally, other factors weigh in favor of continuing Gail’s maintenance. The circuit court characterized the Lenkners’ marriage as one in which William earned the income while Gail fulfilled the role of a homemaker. Upon filing for dissolution, William agreed to pay maintenance to Gail. Significantly, the agreement made by William and Gail did not provide the maintenance was to be time limited or that it was to decrease based upon Gail’s employment status. Rather, when making the agreement, the parties actually contemplated the maintenance was to increase when William’s salary increased. The maintenance payments combined with the income Gail is able to earn provides Gail with a yearly income of $15,350, 40% of the income she enjoyed when married to William in 1984. Even "with the maintenance payments, Gail’s standard of living has decreased significantly due to the dissolution.

Moreover, the record does not indicate Gail was ever informed she had a duty to seek training or education in order to continue receiving this maintenance. An award of maintenance may properly be terminated where it is conditional upon the dependent former spouse’s attendance at an institution of higher learning. (In re Marriage of McGory (1989), 185 Ill. App. 3d 517, 541 N.E.2d 801.) In McGory, the court in October 1983 ordered James to pay indefinite maintenance to Sandra so long as the she was enrolled as a full-time student in college-level classes, with a review scheduled after four years. In October 1987, James petitioned for termination of maintenance. The evidence indicated Sandra had not been a full-time student since 1984. Moreover, Sandra did not work between 1983 and 1987. In 1987 she earned $2,200 in an unsuccessful business venture. The circuit court granted James’ petition to terminate maintenance. (McGory, 185 Ill. App. 3d at 519-20, 541 N.E.2d at 802.) The appellate court affirmed, finding Sandra had not made a diligent effort to either seek a degree or employment. (McGory, 185 Ill. App. 3d at 521, 541 N.E.2d at 803.) The present case is unlike McGory. Unlike the award of maintenance to Sandra, the award of maintenance to Gail was not conditional upon Gail’s pursuit of education. Moreover, while Sandra was not diligent in searching for employment, Gail has consistently sought and accepted employment since the dissolution.

William next argues that the circuit court abused its discretion in denying his petition to terminate maintenance due to a public policy in favor of encouraging financial independence of the dependent former spouse. William alleges the circuit court’s denial of his petition perpetuates dependence. The record reflects the circuit court stated it endorsed the policy toward the rehabilitation of a dependent former spouse, particularly where the spouse has not undertaken efforts toward her rehabilitation or employment. However, it found the evidence did not indicate a need to limit further maintenance to encourage Gail to become self-supporting through education or enhanced efforts toward more lucrative employment because Gail had continued in self-motivated efforts of rehabilitation.

The optimal goal of rehabilitative maintenance is to provide for a severance of economic relationships between the former spouses wherever possible. However, we have recently stated that the goal of becoming financially independent is not required in all cases. (In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 1050, 569 N.E.2d 1097, 1101.) In Hensley, the dependent former spouse was the custodian of the couple’s children. She elected to work part-time rather than full-time in order to have time to be the homemaker for the children. Although the arrangement did not permit the dependent former spouse to become financially independent, we held her employment, plus acting as a homemaker for her children, was fully equivalent to obtaining appropriate employment and placing the children in day care. Hensley, 210 Ill. App. 3d at 1052, 569 N.E.2d at 1102.

Moreover, the goal of financial independence is derived from section 504(b)(2) of the Act, which states one factor to be considered in determining the amount and duration of the maintenance is the time necessary for the dependent former spouse to obtain sufficient education or training to secure employment. (Ill. Rev. Stat. 1989, ch. 40, par. 504(b)(2).) However, this is only one factor in a list of seven. (See Ill. Rev. Stat. 1989, ch. 40, par. 504(b).) Employment or potential employment of the spouse is only one fact to be considered in making decisions regarding maintenance. (Carpel, 232 Ill. App. 3d at 830, 597 N.E.2d at 864.) Another factor to be considered is the standard of living established during the marriage. (Ill. Rev. Stat. 1989, ch. 40, par. 504(bX3).) Marriage is a partnership, not only morally but financially. Spouses are coequals and homemaker services must be recognized as significant when the economic incidents of divorce are determined. The former homemaker should not be penalized for having performed his or her assignment under the agreed-upon division of labor within the family. It is inequitable upon dissolution to saddle the former homemaker with the burden of his or her reduced earning potential and to allow the wage-earning former spouse to continue in the advantageous position he or she reached through their joint efforts. (Carpel, 232 Ill. App. 3d at 829, 597 N.E.2d at 563-64.) Thus, the dependent former spouse is entitled to continue to live in some approximation to the standard of living established during the marriage unless the payor spouse’s financial situation, the duration of the marriage, or other factors indicate otherwise. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 1087, 412 N.E.2d 1336, 1343-44.) The optimal goal of the maintenance act is for the dependent former spouse to become financially independent. However, under circumstances involving former spouses with grossly disparate earning potentials, this goal is often not achievable in light of the dependent former spouse’s entitlement to maintain the standard of living established during the marriage. Hence, the goal of financial independence must be balanced against a realistic appraisal of the likelihood the spouse will be able to support herself in some reasonable approximation of the standard of living established during the marriage. Carpel, 232 Ill. App. 3d at 829, 597 N.E.2d at 863.

Ronald and Susan Carpel were married for 17 years. Susan worked while Ronald finished school. After Ronald finished school, Susan worked only occasionally as a substitute teacher. During the marriage, Ronald developed a law practice. At the time of the dissolution, Ronald earned a six-figure income, and continued to earn a six-figure income after the dissolution. Susan was awarded time-limited maintenance of $750 per month for four years. At the end of the four years, Susan petitioned the court for an extension and increase of maintenance. The court denied Susan’s petition because she had not found a full-time job in the four years she had been receiving maintenance. We reversed, recognizing that Ronald possessed the skills which he developed during the marriage and continued to earn a six-figure income, while it would be unlikely for Susan to ever fully regain the career opportunities she lost during the marriage. Additionally, Ronald’s expert testified a person with Susan’s skills could only expect to earn $14,000 to $19,000 per year in central Illinois. We stated if the circuit court found Susan had been dilatory or directly at fault for not obtaining suitable employment, it could offset the amount she could have earned from the maintenance award; however, the circuit court erred in completely denying her petition to extend and increase maintenance. Carpel, 232 Ill. App. 3d at 830, 597 N.E.2d at 864.

Similarly, in In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 660-61, 409 N.E.2d 321, 328, the appellate court discussed the relationship between the goals of financial independence and maintaining the standard of living established during the marriage. James and Lilyan Simmons were married for 16 years. Lilyan did not forego educational or employment opportunities during the marriage, and at the time of the dissolution, she was employed, and her earnings coupled with her investment income provided her with a monthly net income of $1,254. (Simmons, 87 Ill. App. 3d at 658, 409 N.E.2d at 326.) The appellate court affirmed the award of indefinite maintenance, but reduced it from $530 to $248.50 per month due to Lilyan’s overstatement of her reasonable needs and James’ inability to pay a higher sum. (Simmons, 87 Ill. App. 3d at 661, 409 N.E.2d at 328-29.) Rejecting James’ argument that the circuit court erred in awarding indefinite maintenance, the appellate court recognized that the Act, wherever possible, seeks to terminate financial entanglement of the former spouses; however, the Act was not intended to change the test for the propriety of maintenance by eliminating consideration of the standard of living established during the marriage. (Simmons, 87 Ill. App. 3d at 659, 409 N.E.2d at 327.) Finding Lilyan could not match the earning power of James, the court concluded, “[a] former wife unable to meet her own needs should not be expected to shift for herself without assistance from her former spouse, if he is in a position to provide it, simply because society is finally willing to recognize that women are entitled to privileges equal to those enjoyed by men.” (Simmons, 87 Ill. App. 3d at 660, 409 N.E.2d at 328.) The court determined that although Lilyan had a monthly income of $1,254 per month, she required an additional $302 per month to meet her needs. (Simmons, 87 Ill. App. 3d at 658-59, 409 N.E.2d at 326-27.) However, the court determined that James was financially able to pay only $195 per month. The court stated:

“In some failed marriages, the parties are fortunate enough to have resources adequate to satisfy both of their reasonable needs in full. The spouse seeking maintenance would therefore be awarded the whole difference between her resources and her reasonable needs. But the Simmonses, like most divorced couples, do not have enough to go around. Living apart costs most couples more than living together. The court is unable to provide both parties with the standard of living they enjoyed during the marriage; one or both have to take a cut. The court must apportion the deficit.” (Simmons, 87 Ill. App. 3d at 661, 409 N.E.2d at 328.)

Although the court indicated that it might reach a different result in other cases, in this case the court determined the parties should “share equally the cost of the failure of the marriage.” Accordingly, the court ordered James to pay maintenance of $248.50, which was $53.50 more than he could afford to pay while still meeting his reasonable needs and $53.50 less than Lilyan required in order to meet her reasonable needs. (Simmons, 87 Ill. App. 3d at 661, 409 N.E.2d at 329.) For a thought-provoking discussion on the effects of dissolution of marriage on dependent former spouses, see Rutherford and Tishler, Equalizing the Cost of Divorce Under the Uniform Marriage & Divorce Act: Maintenance Awards in Illinois, 23 Loy. U. Chi. L.J. 459 (1992).

Carpel and Simmons indicate that while the goal of financial independence remains, financial independence is to be measured in terms of the standard of living established during the marriage. Where there is a disparity in the earning powers of the former spouses, and the dependent former spouse cannot earn an income sufficient to become financially independent at the standard of living established during the marriage, the dependent former spouse may be entitled to continue to receive maintenance, if the payor spouse is in a position to provide it, even though this does not accomplish the goal of severing the economic ties of the former spouse.

Applying Carpel and Simmons to the present case, we find a great similarity between the Carpel and Lenkner situations. The Carpels were married for 17 years, while the Lenkners were married for 18 years. Both women worked while their husbands were in school and worked only occasionally after their husbands graduated. Like Susan, Gail cannot match the earning power of her former husband and is employable at a fraction of his income. We, therefore, find as in Carpel, by balancing the goal of financial independence against the dependent former spouse’s entitlement to maintain a standard of living similar to that established during the marriage, the circuit court properly determined Gail’s maintenance should not be terminated based on public policy grounds. Moreover, Simmons indicates the balancing test must also be employed in the case of marriages in which the spouse seeking maintenance did not forego educational or employment opportunities during the marriage, but simply cannot match the earning power of her former husband. We additionally note that Gail, since the dissolution, has lived at a standard significantly lower than that established during the marriage.

For the foregoing reasons, the judgment of the circuit court of Coles County is affirmed.

Affirmed.

McCULLOUGH and COOK, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McMORROW

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BRUCE ANDRAS et al., Defendants-Appellants.
    First District (4th Division)
    Nos. 1—88—1375, 1—88—2526 cons.
    Opinion filed December 23, 1992.
    Rehearing denied March 24,1993.

      Michael J. Pelletier and Gordon Berry, both of State Appellate Defender’s Office, and Randolph N. Stone, Public Defender (Ira Chur gin, Assistant Public Defender, of counsel), both of Chicago, for appellants.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Gael O’Brien, and Laurie Page, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE McMORROW

delivered the opinion of the court;

Defendants Marc Johnson and Bruce Andras were each charged with one count of murder and two counts of attempted murder and aggravated battery. They were tried simultaneously before separate juries. Johnson was found guilty of all charges and sentenced to concurrent terms of 28 years for murder and 19 years for each attempted murder conviction. Andras was convicted of two counts of attempted murder for which he was sentenced to concurrent terms of 21 years’ imprisonment. On appeal, Johnson contends that his post-arrest statement should have been suppressed because the police failed to scrupulously honor his invocation of the right to remain silent. Andras contends that the State engaged in improper cross-examination of him and his alibi witness, and that he was denied a fair trial by numerous improper prosecutorial remarks in closing and rebuttal arguments.

The charges arose from a May 19, 1987, drive-by shooting in which Eddie Mercado was killed and Nicky Lanzarin and Luis Rodriguez were injured. Evidence was presented at trial that the defendants and the victims were members of rival gangs, the Latin Kings and the Cobras. Earlier in the evening of May 19, an altercation occurred between members of the two gangs. Johnson and Andras were among those involved, and eventually a fight broke out in which Johnson sustained a cut on his lip. Later that night, Johnson and Andras secured guns, stole a burgundy Chevrolet and drove around looking for members of the Cobras and their affiliates, the Disciples. Johnson was driving and, according to Andras’ statement, he was in the back seat wearing a red devil mask over his head. A third defendant, who was tried separately, was in the front passenger’s seat. At approximately 11 p.m. they turned onto Mozart Avenue, where Lanzarin lived. Several members of the Cobras were congregated in front and in the vicinity of Lanzarin’s house. Johnson stopped the car briefly, and he and Andras opened fire. Eyewitnesses testified that gunfire erupted from both the driver’s and passenger’s sides of the car and that shots were also fired through the rear window as the car began moving down the street.

The responding police officers received a report of a car matching the description given by eyewitnesses to the shooting a short distance from the scene. When they arrived at the car’s location, they observed that the rear window was broken out and saw three men, one of whom an officer recognized as Johnson, running in a gangway toward an alley. After a chase, Andras was apprehended in a second-floor apartment. Johnson was arrested approximately one hour later when he drove up to his house.

Neither defendant contends that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. Therefore, we will discuss the remainder of the evidence only to the extent necessary and relevant to the issues presented.

Johnson filed a pretrial motion to suppress an inculpatory statement he made approximately nine hours after his arrest. The motion alleged that the police (a) failed' to advise him of his constitutional rights; (b) obtained the statement by physical and mental coercion; (c) continued interrogation of him after he elected to remain silent; and (d) refused to allow him to consult with an attorney.

The substance of Johnson’s statement was testified to at trial by Assistant State’s Attorney Cawley (ASA Cawley). When questioned by Cawley, Johnson at first denied any involvement in the shooting, claiming that he had been at the beach with his girl friend. After further conversation, however, Johnson admitted that he was the driver of the car and that when he and Andras saw the rival gang members on the street, they opened fire.

At the hearing on the motion to suppress, Officer Marquez testified that he and Officers Kurz and Scalise arrested Johnson at approximately 2 a.m. on May 20, 1987. Marquez advised Johnson of his Miranda rights, reading them from a preprinted card, before transporting him to the fourteenth district police station. Johnson stated that he did not want to talk to the officers, but he did not request an attorney. None of the three officers attempted to question Johnson on the way to the police station. When they arrived at the station, Marquez took Johnson to a holding room where he was handcuffed to a ring on the wall and left alone for 30 to 40 minutes, at which time tactical officers arrived to transport him to Area 5 headquarters.

Officers Kurz and Scalise each testified that the holding room is at the rear of and accessible only through the tactical office. They remained in the tactical office working on reports the entire time Johnson was in the holding room. Neither officer spoke to Johnson, nor did anyone enter the holding room during the 30 minutes Johnson was detained there.

Detective Dorsch testified that Johnson was brought into Area 5 headquarters at approximately 3 a.m. and placed in an interview room. Between 3 and 5 a.m., when Johnson was taken out for approximately 30 minutes to appear in several lineups, Dorsch entered the room only once, and only to observe Johnson’s physical appearance. At 11 a.m., Dorsch told Johnson that he and ASA Cawley wanted to talk to him about the shootings. ASA Cawley advised Johnson of his Miranda rights, which Johnson stated he understood, and Dorsch informed Johnson that he had been identified in the lineups. Following a 45-minute conversation, ASA Cawley asked Johnson if he would agree to put his statement into writing. Johnson declined and, for the first time, stated that he wanted a lawyer. Johnson was not asked to sign a form acknowledging receipt of his Miranda rights. Dorsch denied that Johnson asked for an attorney either before or during the interview.

ASA Cawley testified that when he arrived at the police station at approximately 6:15 a.m., he spoke to Dorsch and other detectives and some witnesses. Dorsch informed him that he had not spoken with Johnson. At 11 a.m., Dorsch and Cawley met with Johnson. Cawley advised Johnson of his Miranda rights and asked if Johnson was willing to discuss the shooting. When, at the conclusion of the conversation, Johnson refused to give a written statement and requested counsel, Cawley and Dorsch immediately left the room. He had no further contact with Johnson. He did not take notes during the conversation with Johnson, but he composed a summary of it in his felony review folder afterward.

Johnson testified that none of the arresting officers advised him of his Miranda rights, nor did they ask him any questions. When he arrived at the fourteenth district police station, the sergeant on duty told him that he had 20 minutes to tell them, the police, about the shooting. The sergeant then punched him in the mouth, causing a cut and swelling of his lip. The sergeant also showed him a photograph of a man whose face was mutilated and warned him that the same would happen to him if he did not tell the sergeant what he wanted to hear. Johnson did not see the sergeant again after that encounter. He remained handcuffed in the room for a few hours, after which he was taken to the lockup for a few more hours and then to the Area 5 headquarters.

On the way to Area 5, the transporting officers, one of whom was Officer Scalise, told him that they knew he was the driver of the car used in the shooting, and advised him to make it easy on himself by telling them what they wanted to hear. He did not respond. He was placed in an interview room at Area 5 and handcuffed to the wall. Dorsch came in an hour later and, without advising him of his rights, began to question him. Johnson asked for an attorney, but Dorsch ignored the request and continued questioning him for three to five minutes. Johnson told Dorsch that he had not been involved in the shooting. Approximately 45 minutes later, Dorsch returned with Cawley and they began to question him. No Miranda warnings were given. Johnson requested an attorney at the outset of the conversation and again midway through it, but Cawley and Dorsch did not respond to his requests. It was not until the third time he asked for counsel that questioning stopped.

Sergeant Berry and Detective Herigodt both testified that Berry was the only sergeant on duty at the fourteenth district police station when Johnson was brought in and that they were together in Berry’s office the entire time Johnson was in custody there. The arresting officers testified that Johnson had a scab on his lip when they arrested him. The rest of the police officers and Cawley also testified that the cut did not appear to be a fresh injury.

Johnson has not pursued, on appeal, his pretrial claim that he was physically abused by the police. He has also recanted his assertion that the arresting officers did not advise him of his constitutional rights. He contends, however, that his statement should have been suppressed because his invocation of the fifth amendment right to remain silent was not scrupulously honored by the police. He asserts that his statement was the product of repeated efforts by the police to undermine his resolve to remain silent.

In Michigan v. Mosley (1975), 423 U.S. 96, 104, 46 L. Ed. 2d 313, 321, 96 S. Ct. 321, 326, the United States Supreme Court held that “the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ ” The factors the Court considered in determining that Mosley's invocation of the right to remain silent had been honored included that a significant amount of time had elapsed between interrogations; that the subsequent interrogation was by a different officer; and that it was prefaced by a fresh set of Miranda warnings. In Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682, the Court held that “interrogation” is not limited to express questioning but also includes words and actions on the part of the police which the police know or should know are reasonably likely to elicit an incriminating response from the accused.

The first “interrogation” of which Johnson complains is the alleged statements by the officers who transported him to Area 5 headquarters that they knew he was the driver of the car used in the shooting and that he should make it easy on himself by telling them what they wanted to hear. He argues that these remarks were an attempt to elicit an incriminating statement from him and thereby constituted the “functional equivalent” of interrogation (Rhode Island v. Innis (1980), 446 U.S. 291, 64 L. Ed. 2d 297, 100 S. Ct. 1682), in violation of his previously invoked right to remain silent.

As noted above, according to Johnson’s written motion to suppress and his suppression hearing testimony, he was not advised of his rights when he was arrested, and he did not say anything to the police officers. As the trial court observed, Johnson made no claim at the suppression hearing that he had invoked his right to remain silent at the time of his arrest.

For the first time on appeal, Johnson argues that Marquez’ testimony that Johnson said that he did not want to talk to the officers established that he did, in fact, invoke his right to remain silent when he was arrested, and that the police subsequently failed to honor that decision. The trial court did not err in denying the motion to suppress on a ground not presented to it. Johnson’s failure to raise this assertion in the trial court constitutes waiver. People v. Coleman (1989), 129 Ill. 2d 321, 544 N.E.2d 330 (where testimony regarding a statement by defendant was objected to only on foundational grounds and defendant did not seek exclusion of the statement in his motion to suppress, the trial court did not err in allowing the testimony, and the issue of the alleged violation of his right to counsel was waived on appeal); People v. Womack (1991), 216 Ill. App. 3d 540, 576 N.E.2d 385 (defendant’s failure to allege in his motion to suppress that the police did not honor his right to remain silent constituted waiver of the issue on appeal).

Further, the only evidence in the record that the officers who transported Johnson to Area 5 advised him to make it easy on himself by telling them what they wanted to hear is Johnson’s testimony. He argues that a defendant’s uncontradicted testimony, if not inherently improbable, may not be ignored. (People v. Jordan (1954), 4 Ill. 2d 155, 122 N.E.2d 209.) In Jordan there were no eyewitnesses to the crime with which the defendant was charged, and the defendant’s version of the incident was uncontradicted, and partially corroborated, by the State’s evidence. The court thus held that the jury improperly disregarded the defendant’s testimony. Johnson’s reliance on Jordan is misplaced. From our review of defendant’s testimony in its entirety, we find numerous portions which were either in conflict with other testimony or which were inherently improbable.

For example, Johnson testified that the sergeant on duty at the fourteenth district police station punched him and threatened to mutilate his face if he did not confess within 20 minutes. Five officers testified, in substance, that Johnson had a scab on his lip when he was brought in to the police station, and that no one punched, threatened or even spoke to him the entire time he was in custody there. Johnson himself additionally testified that he never again saw the sergeant who he claimed had demanded the confession, and that no one else questioned him. Although he has abandoned that claim on appeal, it was part of the entire version of events related by Johnson, the credibility of which was the issue before the trial court.

Johnson further testified that he was held at the fourteenth district police station and the lockup for a total of four or five hours after his 2 a.m. arrest. He also claimed that Detective Dorsch came to the interview room to question him approximately one hour after his arrival at Area 5, and that the conversation with Cawley took place 30 to 45 minutes later. Thus, according to Johnson’s testimony, he arrived at Area 5 between 6 and 7 a.m.; Dorsch questioned him between 7 and 8 a.m., and the conversation with Cawley occurred a short while later. In contrast, the police officers testified that Johnson was at the fourteenth district for no more than 30 to 45 minutes. Dorsch testified that Johnson arrived at Area 5 at 3 a.m.; that he was taken to lineups between 5 and 6 a.m.; and that he was alone in the interview room between 6 and 11 a.m. Cawley testified that Johnson was already in the interview room when he arrived at Area 5 at 6:15 a.m., and that their conversation began at 11 a.m.

Regarding the transfer to Area 5, Johnson’s testimony that one of the transporting officers was Officer Scalise was contradicted by Scalise and Marquez. They both testified that Johnson was transported by two tactical officers whose names they did not know.

Where a defendant’s testimony is contradicted, contains inconsistencies or is inherently improbable, the trial court is not bound to accept it. (People v. Warren (1965), 33 Ill. 2d 168, 210 N.E.2d 507; People v. Carlton (1975), 26 Ill. App. 3d 995, 326 N.E.2d 100.) Johnson’s testimony regarding the events between his arrest and his statement was contradicted on numerous points by the other witnesses. Further, his assertion, which he maintained throughout the trial and until this appeal, that neither the police nor ASA Cawley ever advised him of his rights was inherently improbable.

Since Johnson persisted in his assertion that he was not advised of his rights and that he said nothing at all to the arresting officers, the questions of (a) whether the transporting officers advised Johnson to make it easy on himself by confessing, (b) whether that alleged remark constituted “interrogation,” and (c) whether that alleged interrogation was a police attempt to undermine his resolve to remain silent were neither argued to nor specifically addressed by the trial court. However, from the court’s remarks on the allegations which were asserted in the motion and in argument by defense counsel, it is apparent that the court did not find Johnson’s account of his prestatement custody to be credible. Questions concerning the credibility of witnesses at a suppression hearing are best resolved by the trial judge, whose determination will not be disturbed unless it is contrary to the manifest weight of the evidence. (People v. Jackson (1992), 233 Ill. App. 3d 1089, 599 N.E.2d 1192.) In view of the conflicting testimony summarized above, the trial court’s rejection of defendant’s version of the events between his arrest and his statement. was not against the manifest weight of the evidence.

Johnson maintains, however, that Dorsch’s denial that he interrogated him is belied by Cawley’s trial testimony that before he spoke to Johnson, Dorsch told him that Johnson was asserting an alibi, and by the sidebar admission of the prosecutor that Johnson made an exculpatory statement to Dorsch. Once again, in light of Johnson’s assertion that he never said anything to any police officers prior to his arrival at Area 5, Johnson may not now argue that his statement should have been suppressed on a ground, i.e., that the alleged questioning by Dorsch constituted improper interrogation because of Johnson’s earlier expressed election to remain silent, which was not presented to the court at the suppression hearing. People v. Coleman, 129 Ill. 2d at 340-41.

Moreover, while the statements made at trial indicate that Johnson made an exculpatory remark to Dorsch, the record does not establish when it was made or that it was in response to questioning by Dorsch as opposed to being volunteered by Johnson. Dorsch testified that he had contact with Johnson twice before his statement: the first time to check on Johnson’s physical condition, and the second time to take him to lineups. The remarks made at trial regarding an exculpatory statement do not rule out the possibility that Johnson asserted his noninvolvement in the shooting on one of those occasions. Notably, defense counsel did not request reconsideration of the motion to suppress following these remarks at trial.

However, even assuming arguendo that Dorsch questioned Johnson, and that the issue was properly raised and preserved for review, we do not believe that Johnson’s statement to Cawley was the end product of repeated police efforts to wear down his resistance and make him change his mind. The Miranda decision (Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602) did not establish a per se proscription against the renewal of questioning by the police after the suspect’s initial request to remain silent. The voluntariness of a later statement is determined by examining the totality of circumstances leading to it. Relevant circumstances include whether there was a significant time lapse between interrogations, whether different officers conducted the interrogations and whether the subsequent interrogation was prefaced by a fresh set of Miranda warnings. Michigan v. Mosley (1975), 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321; People v. Easley (1992), 148 Ill. 2d 281, 592 N.E.2d 1036; People v. Gray (1991), 212 Ill. App. 3d 613, 571 N.E.2d 489.

In this case, it is undisputed that the arresting officers did not question Johnson and that he did not make his statement until nine hours later. His testimony that, in the interim, two officers attempted to elicit an incriminating statement from him lacked credibility; but even the single remark concerning “making it easy on himself,” which Johnson attributes to them, does not, in our view, rise to the level of “interrogation.” (See People v. Cooney (1985), 136 Ill. App. 3d 989, 996, 484 N.E.2d 802 (officer’s advice to suspect “to get it off his chest and to be a man” did not render his subsequent statement the product of duress).) The alleged questioning by Dorsch, who had not been present at Johnson’s arrest, would have occurred, at a minimum, two hours after his arrest and, according to Johnson, lasted only three to five minutes. Credible testimony in the record established that Cawley readvised Johnson of his rights before their conversation, and that when Johnson requested counsel, all communication with him immediately ceased. The evidence does not support Johnson’s claim that the police attempted to wear down Johnson’s resistance or undermine his right to remain silent.

With respect to Johnson’s contention that Dorsch failed to advise him of his rights and ignored his request for an attorney, we note again that Dorsch denied questioning Johnson prior to 11 a.m.; that both Dorsch and Cawley unequivocally testified that Johnson was advised of his rights prior to that conversation; and that Johnson did not request an attorney until Cawley asked for a written statement from him. For the reasons stated above, the trial judge was entitled to disbelieve Johnson’s testimony to the contrary. People v. Jackson, 233 Ill. App. 3d at 1091.

In sum, we find no error in the trial court’s denial of Johnson’s motion to suppress his statement. Accordingly, defendant Johnson’s conviction is affirmed.

We turn then to the issues raised by defendant Andras. Andras contends that reversible error occurred in the State’s improper cross-examination of him and another defense witness. Citing People v. Nuccio (1969), 43 Ill. 2d 375, 253 N.E.2d 353, and People v. Wallenberg (1962), 24 Ill. 2d 350, 181 N.E.2d 143, Andras asserts that the State made improper and unsupported insinuations which resulted in prejudice to him.

Andras first argues that the State improperly insinuated in its cross-examination of him and of alibi witness Cecilia Serbia that Serbia had a strong bias to testify falsely because her boy friend was a member of the same gang to which Andras belonged, without any proof of such gang affiliation.

On direct examination, Serbia testified that she and Andras and a mutual friend, Elizabeth Cordova, were together the entire evening of the shooting in front of Cordova’s house, which was around the corner from Serbia’s apartment building. On cross-examination, Serbia stated that she met Andras through her boy friend, who was a friend of Andras. The prosecutor later asked whether Cordova’s street was “Latin King turf.” Defense counsel objected and requested a sidebar conference during which the court ruled that the question lacked foundation. Subsequently, over objection by defense counsel, the State was allowed to elicit from Serbia that she was aware of the presence of gangs in the area. However, objections to the State’s questions as to whether the Latin Kings controlled the area were sustained. The prosecutor then asked whether Serbia herself was a member of a gang. The court again sustained defense counsel’s objection and instructed the jury to disregard the question. The court called a second sidebar following the objection to the State’s question whether Serbia’s boy friend was a gang member, and admonished the prosecutor that while bias was a permissible topic of inquiry, he, the prosecutor, had “to be prepared to make good.” The State then terminated that line of questioning.

Andras then testified in his own behalf. On direct examination, he acknowledged that he was a member of the Latin Kings. On cross-examination, the State asked Andras whether Serbia’s boy friend was also a member of the Latin Kings. Andras stated “[n]ot to my knowledge. Not my organization.” Andras also stated that Cordova’s street was not Latin King territory. No objections were made to these questions.

In People v. Nuccio (43 Ill. 2d 375, 253 N.E.2d 353), the State engaged in lengthy and detailed cross-examination of defense witnesses regarding alleged misconduct of and threats to the victim by the defendant prior to the offense for which he was on trial. Believing the questions to be proper, provided that the State was prepared to prove the accusations in rebuttal, defense counsel interposed very few objections. However, the State failed to call any witnesses in rebuttal to substantiate the accusations, despite its representations that it would do so. The supreme court held that, in contrast to certain cases cited by the State in which the challenged evidence was “brief and of little significance,” the record before it contained “substantial numbers of unsupported insinuations which, if considered, could have seriously impeached the credibility of the defendant and his witnesses.” (43 Ill. 2d at 396.) In People v. Wallenberg (24 Ill. 2d 350, 181 N.E.2d 143), the State asked a defense witness if he had been convicted of robbery, but made no attempt, after the witness’ denial, to prove the conviction. The Wallenberg court held that the interrogation was improper, but ruled that the misconduct was not prejudicial because the question was later stricken and the trial judge was not improperly influenced by it.

In the case before us, the challenged portion of the cross-examination of Serbia consisted of seven questions. A few of the State’s questions regarding Serbia’s general knowledge of neighborhood gang presence were allowed, but the objections to specific questions regarding her and her boy friend’s gang membership were sustained, and the jury was instructed to disregard the questions. Pursuant to admonitions by the trial court, the State then discontinued that line of inquiry. Since the court sustained Andras’ objections to the challenged questions, there was no admitted evidence for the State to rebut. Further, it was undisputed that gangs existed in Serbia’s neighborhood, that Andras was a member of the Latin Kings, and that the Latin Kings were rivals of the gang to which the victims belonged. Indeed, there can be no question that the jury was fully cognizant that the shooting was gang-related since, aside from the police witnesses, the State’s other witnesses were all admitted gang members.

Thus, while we agree with Andras, and the trial court, that the State ventured into a line of questioning for which it lacked evidentiary support, the questioning was neither so extensive nor the insinuations so significant as to prejudice Andras. Finally, any impropriety in the State’s cross-examination was cured by the court’s rulings sustaining defense counsel’s objections and its instructions to the jury to disregard the questions.

Andras also contends that the prosecutor improperly cross-examined Serbia regarding her alleged refusal to speak to him prior to trial. The prosecutor elicited from Serbia that she did not notify the police that Andras was with her on the night of the shooting. He then asked whether she had ever called him to tell him he was prosecuting the wrong person, to which defense counsel’s objection was sustained. In a series of questions to which no objections were made, the prosecutor elicted that he met Serbia in the presence of Andras’ attorney outside the courtroom just before she testified. He then asked if she had refused to talk to him. Defense counsel objected and requested a sidebar conference at which he argued that the question was improper because it created a false impression that she refused to speak to the prosecutors when, in fact, the State had been supplied with Serbia’s address but made no previous attempt to interview her. The court ruled that if the prosecutor elicited from Serbia that she refused to speak to him, the court would take judicial notice, and allow defense counsel to argue, that the State was supplied with her name and address in advance of trial. Following the sidebar, the State did not repeat the question. Upon completion of Serbia’s testimony, the court declined to take judicial notice of Serbia’s prior availability to the State, noting that Serbia did not admit that she refused to speak with the prosecutor and that the State abandoned its questioning on that point.

Andras maintains that prejudice resulted both from the State’s question and the court’s refusal to take judicial notice of Serbia’s prior availability. He argues that although Serbia did not answer the State’s question, the question itself informed the jury that she had refused to speak with the prosecutor before testifying; and that defense counsel was unable to rehabilitate Serbia because she could not testify that the State had, but did not take, the opportunity to interview her prior to trial. Andras argues that it is improper to cross-examine a witness by way of unsupported insinuations of misconduct when no appropriate testimony is offered to support the insinuations.

Once again, People v. Nuccio (43 Ill. 2d 375, 253 N.E.2d 353) and People v. Wallenberg (24 Ill. 2d 350, 181 N.E.2d 143) are distinguishable, in that both cases involved accusations of prior criminal misconduct. Declining to speak to the prosecutor before testifying did not constitute misconduct. Thus, we do not agree with Andras’ argument that the question was improper on the ground that it insinuated misconduct.

Further, as with the line of inquiry regarding gang membership, the State did not repeat the question after the sidebar conference. Since no response was given to the question, we cannot say that the trial court’s declination to inform the jury that the State had been given Serbia’s name and address was an abuse of discretion.

Moreover, contrary to Andras’ assertion, the court’s decision did not prevent defense counsel from attempting to rebut any “misimpression” that Serbia refused to speak with the prosecutors. The State elicited from Serbia, without objection, that she had not contacted anyone from the State’s Attorney’s office prior to trial. On the basis of this testimony, defense counsel could have asked her whether she had been contacted by anyone from that office prior to the encounter outside the courtroom. A negative response coupled with her testimony, in response to the State’s question, that the prosecutor introduced himself to her only a few minutes earlier would have countered any impression that she refused to cooperate with the State. No such line of inquiry was pursued on redirect examination.

Andras also contends that the entire cross-examination on Serbia’s failure to notify authorities concerning Andras’ alibi was improper. Since, as noted above, no objections were made to the questions of whether she contacted the police or anyone from the State’s Attorney’s office, the issue has been waived.

In any case, it is permissible to use prior silence to discredit a witness’ testimony as long as it is shown that the witness had an opportunity to give information and, under the circumstances, a reasonable person would have come forward with the information. (People v. Knott (1991), 224 Ill. App. 3d 236, 586 N.E.2d 479.) Numerous cases have held that where a witness is a friend of the accused and had knowledge of the friend’s arrest, evidence that the witness failed to give exculpatory information is admissible to impeach the witness. E.g., People v. Knott, 224 Ill. App. 3d at 254-55; People v. Conley (1989), 187 Ill. App. 3d 234, 543 N.E.2d 138; People v. Taylor (1986), 141 Ill. App. 3d 839, 491 N.E.2d 3.

In the present case, Serbia testified that she met Andras six months before the shooting and saw him at least once a week. She, Andras and a mutual friend spent almost six hours together on the evening of the shooting. She learned of Andras’ arrest the following day, but did not tell anyone that Andras was with her until defense counsel called her eight months later. The State’s questioning of Serbia regarding her failure to provide information which might have exonerated Andras was permissible to impeach her alibi testimony.

People v. Watson (1981), 94 Ill. App. 3d 550, 418 N.E.2d 1015, on which Andras relies, is distinguishable because, there, the alibi witness testified that she did not learn the date of the crime until five months after the defendant’s arrest. The court held that the State failed to establish a foundation for her impeachment, but ruled that other evidence rendered the error harmless. Defendant also cites People v. Ortiz (1990), 207 Ill. App. 3d 1, 565 N.E.2d 228, for the proposition that because Serbia was not a member of Andras’ family, it was error for the prosecutor to cross-examine her about her failure to contact authorities. That was not the holding in Ortiz. The Ortiz court merely noted that witnesses may have difficulties contacting authorities about an accused’s innocence. However, the court stated the general rule allowing cross-examination to attempt to impeach an alibi witness and held that the rule was particularly applicable in that case, where the alibi witnesses were members of the Ortiz family.

Andras further contends that it was improper for the prosecutor to ask him whether certain State witnesses were “wrong” in their testimony. People v. Barnes (1989), 182 Ill. App. 3d 75, 537 N.E.2d 949.

In Barnes, the court held that a prosecutor is prohibited from asking a defendant his opinion of the veracity of witnesses who have testified against him because such questions invade the province of the jury to determine the credibility of witnesses, and because forcing the defendant to call the State’s witnesses liars demeans him in the eyes of the jurors.

We agree with the principles stated in Barnes and that the State questions were improper. As Andras acknowledges, however, defense counsel objected to only one of the questions, thereby waiving the impropriety of the preceding questions. Also, when counsel did object, the trial court promptly sustained the objection and instructed the jury to disregard both the question and Andras’ answer, thus curing the impropriety.

Andras’ final contention is that he was denied a fair trial by the cumulative effect of numerous improper remarks by the prosecutors in closing and rebuttal arguments. In an extensive argument on this issue, Andras cites no fewer than 20 instances of allegedly improper argument within the following general categories: that the main theme of the State’s arguments was that in order to believe the defense the jury had to find that all the State’s witnesses were lying; and that the prosecutors improperly vouched for the credibility of the State’s witnesses and interjected their personal thoughts into argument, made insinuations unsupported by the evidence, and appealed to the jury’s sympathy for the deceased and his family.

A review of closing arguments reveals that defense counsel made no objections to the State’s closing argument. During rebuttal argument defense counsel objected to two isolated comments regarding trial testimony. Those objections were sustained. He also objected to a remark he asserts was an unsubstantiated insinuation. With respect to that remark, the trial court sustained the objection and, in a lengthy narrative, admonished the jury that the comment was not to be considered for any purpose during deliberations. Further, that insinuation was the only prosecutorial remark pointed to in Andras’ post-trial motion as being improper.

It is fundamental to our adversarial system that counsel object to errors at trial. The failure to do so operates as a waiver of the right to a review of the alleged errors on appeal. The rationale underlying these rules is that a timely objection gives the trial court the opportunity to prevent or correct any errors by sustaining an objection and instructing the jury, and that a defendant should not gain the advantage of obtaining a reversal through his failure to act. People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233; People v. Center (1990), 198 Ill. App. 3d 1025, 556 N.E.2d 724.

The plain error doctrine provides a limited exception to the waiver rule. (People v. Carlson, 79 Ill. 2d at 577-78.) The purposes of the doctrine are to correct serious injustices and to preserve the integrity of the judicial process even though the error has not been properly preserved for review. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461; People v. Carlson, 79 Ill. 2d at 576.) The plain error exception is applied where the evidence is closely balanced or the error was of such magnitude as to have affected substantial rights and deprived the defendant of a fair and impartial trial. (People v. Carlson, 79 Ill. 2d at 576-77.) Whether or not the improper remarks were objected to at trial, a reviewing court will not reverse a conviction unless the remarks were so prejudicial that real justice has been denied or that the verdict likely resulted from the error. People v. Carlson, 79 Ill. 2d at 577.

Applying these principles to the instant case, we conclude that defendant waived, by his failure to object, any error based on the alleged improper remark and that reversal is not warranted under the plain error doctrine. First, Andras gave a detailed confession of his involvement in the shooting. Having fully reviewed the transcripts of the hearing on his motion to suppress the confession and of the trial proceedings, we see no evidence that his confession was involuntary or that he had some motivation to confess falsely, as was present in People v. Mullen (1990), 141 Ill. 2d 394, 566 N.E.2d 222 (defendant’s confession indicated he feared gang retaliation, and, due to numerous conflicts in testimony, the evidence was closely balanced), on which Andras relies. In addition to his confession, there was strong circumstantial evidence linking Andras to the shooting. That evidence included that he was involved in an altercation with some members of the victims’ gang earlier in the evening and that he was apprehended by the police after he was observed running from the car used in the shooting with defendant Johnson, who was positively identified by several witnesses as the driver of the car. Further, a review of the voluminous record of this case, consisting of two supression hearings and the trial itself, convinces us that Andras received a fair and impartial trial. Moreover, since the jury did not find Andras guilty of murder, we cannot say that the prosecutors’ arguments so prejudiced the jury against him that, but for the remarks, the verdict likely would have been different.

We do not intend our holding to suggest that improper prosecutorial argument will be tolerated by the courts. As stated in People v. Starks (1983), 116 Ill. App. 3d 384, 396, 451 N.E.2d 1298, 1306, “[a] consistent and intentional course of prosecutorial misconduct is not condoned simply because a reviewing court concludes that that misconduct has failed to achieve its obvious purpose of denying a defendant a fair trial.”

While prosecutors are permitted wide latitude in their closing arguments, the arguments must be based upon the evidence or reasonable inferences from it. (People v. Morgan (1991), 142 Ill. 2d 410, 568 N.E.2d 755; People v. Smith (1990), 199 Ill. App. 3d 839, 557 N.E.2d 596.) At the same time, a defendant may not complain of remarks which are provoked or invited by the defense. People v. Lyles (1985), 106 Ill. 2d 373, 478 N.E.2d 291; People v. Smith, 199 Ill. App. 3d at 854.

In this case, certain of the prosecutors’ remarks exceeded the scope of appropriate argument. The State’s repetitious argument that the defense theory was that the State’s witnesses were all liars who were engaged in a conspiracy against him was a sardonic and exaggerated characterization of the defense case. However, the State stopped short of arguing that in order to believe Andras, the jury would have to find that all of the State’s witnesses were lying. Thus, the argument did not rise to the level of reversible error. See People v. Knott (1991), 224 Ill. App. 3d 236; People v. Siefke (1990), 195 Ill. App. 3d 135, 551 N.E.2d 1361; People v. Hunley (1989), 189 Ill. App. 3d 24, 545 N.E.2d 188.

Further, since Andras denied any involvement in the shooting or confessing to it, and portions of his testimony strongly suggested that the police manufactured certain evidence against him, the argument was not entirely lacking an evidentiary basis. We also note that in his own summation, defense counsel countered the State’s remarks by arguing the absurdity of the notion that police officers and lawyers are always truthful, and his strong suggestions that portions of their trial testimony were recently fabricated. It is our belief that defense counsel’s argument and the trial court’s admonitions to the jury that arguments are not to be considered as evidence minimized any prejudice the State’s remarks otherwise may have caused. Similarly, we do not believe that the other unobjected-to comments of which Andras now complains were sufficiently prejudicial as to either have deprived him of a fair trial or affected the verdict.

Finally, the prosecutor’s remarks concerning the present and future suffering of the mother of the deceased victim, Mercado, as a result of his death were invited by and a direct response to defense counsel’s comment on the tragedy of the shooting and the grief it caused the deceased’s mother. Also, since the jury did not find defendant guilty of Mercado’s murder, the remarks obviously did not affect the verdict.

In conclusion, because defense counsel’s failure to object to the State’s arguments or to raise them as error in his post-trial motion precluded the trial judge from preventing or correcting any improprieties, the issue of prosecutorial misconduct has been waived. Additionally, for the reasons discussed, we hold that the comments, even where improper, did not individually or cumulatively deprive Andras of a fair trial or contribute to his convictions for attempted murder so as to warrant reversal on the basis of plain error.

Consequently, defendant Johnson’s convictions of murder and attempted murder, and defendant Andras’ convictions of attempted murder, are affirmed.

Affirmed.

JIGANTI, P.J., and JOHNSON, J., concur.

       Justice McMorrow participated in the disposition of this case prior to her becoming a member of the Supreme Court of Illinois.


author: JUSTICE SLATER

text:
      In re MARRIAGE OF NANCY LEE SCHMIDT, Petitioner-Appellee, and GLENN WILBUR SCHMIDT, JR., Respondent-Appellant.
    Third District
    No. 3—92—0364
    Opinion filed January 28, 1993.

      Glenn Schmidt, of Vienna, appellant pro se.

    Susan Tibbits, of Prairie State Legal Services, Inc., of Peoria, for appellee.
   JUSTICE SLATER

delivered the opinion of the court:

The petitioner, Nancy Lee Schmidt, filed a petition for dissolution of marriage against the respondent, Glenn Wilbur Schmidt, Jr. The court granted the dissolution and the respondent appeals.

The record shows that the petitioner filed an action for dissolution of marriage while the respondent was incarcerated in the Vandalia Correctional Center. The respondent filed a motion to proceed in forma pauperis and for appointment of counsel. The court approved his in forma pauperis motion but denied his request for counsel. The respondent then filed a motion requesting that the cause be dismissed or continued until his release from incarceration on May 10, 1995. The court denied the motion. An evidentiary hearing was subsequently held without the respondent, and a judgment of dissolution of marriage was entered. The judgment reserved the issues of child custody, child support, visitation, and responsibility for medical bills.

On appeal, the respondent argues that he did not receive a fair hearing because he was denied his right to counsel and his right to attend the hearing. We disagree.

It is well settled that the respondent has no right to counsel in a noncriminal matter under the sixth amendment of the United States Constitution. The amendment states in pertinent part:

“In all criminal prosecutions, the accused shall *** have the Assistance of Counsel for his defence.” (Emphasis added.) (U.S. Const., amend. VI.)

Further, Illinois courts have addressed the issue of whether an indigent has a constitutionally protected right to counsel in a civil action under the Illinois Constitution. In Rosewell v. Hanrahan (1988), 168 Ill. App. 3d 329, 331, 523 N.E.2d 10, the court stated that “[t]he due process clause protects individuals from actions by the State, not actions by individuals.”

In the instant case, the civil action was not brought by the State, but by the respondent’s wife. We therefore find that neither the United States Constitution nor the Illinois Constitution provides the respondent with a right to counsel in this matter.

We also note that the respondent has failed to show that he had a statutory right to counsel, nor are we aware of any such provision. We therefore hold that he was not denied his right to counsel.

Regarding the respondent’s right to be present at the hearing, we note that the Illinois Marriage and Dissolution of Marriage Act (Act) does not require both parties to be present in court for a judgment of dissolution of marriage to be entered. (Ill. Rev. Stat. 1991, ch. 40, par. 401.) The Act also allows the entry of a bifurcated judgment which reserves issues. Ill. Rev. Stat. 1991, ch. 40, par. 401.

The respondent claims that there are issues in dispute and he must be present to fairly address these issues. However, he made no effort to attend the hearing by petitioning for an order of habeas corpus ad testificandum. Additionally, the court reserved ruling on major issues such as custody, support, visitation, and medical expenses. We therefore find that the respondent’s rights were not violated as a result of his absence from the hearing.

Based on the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.

Affirmed.

BARRY and STOUDER, JJ., concur.


author: JUSTICE BARRY

text:
      In re MARRIAGE OF WILLIAM E. SCHLOSSER, Petitioner-Appellant, and MARY L. SCHLOSSER, Respondent-Appellee.
    Third District
    No. 3—92—0213
    Opinion filed January 26,1993.

      Carl F. Reardon, of Reardon, Orr & Dvorak, Ltd., of East Peoria, for appellant.
    • Lisa M. Olivero, of Peru, for appellee.
   JUSTICE BARRY

delivered the opinion of the court:

The marriage of petitioner William E. Schlosser and respondent Mary L. Schlosser was dissolved by the circuit court of Putnam County on September 14, 1988. The matter proceeded to a phase II hearing for maintenance and distribution of marital property on October 16, 1990, and judgment was entered thereon on January 24, 1992. William filed a post-trial motion for a rehearing and other relief. On February 14, 1992, the court denied the relief requested, but entered an order clarifying certain aspects of the January 24 order. William appeals from the orders entered on January 24 and February 14, 1992. We affirm.

William initially takes exception with the circuit court’s distribution of marital assets and debts. By statute, the division of marital property must be in “just proportions” after consideration of all relevant factors. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) “Just proportions” does not mean mathematical equality, and there is no requirement that the trial court recite the specific factors the court relied upon in reaching its distribution decision. We have repeatedly stated that the trial court is vested with broad discretion in apportioning marital property, and that the court’s property distribution may be reversed on appeal only upon a showing of an abuse of discretion. An “abuse of discretion occurs only when no reasonable man could take the view adopted by the trial court.” In re Marriage of Eidson (1992), 235 Ill. App. 3d 907, 911, 601 N.E.2d 298, 301.

In this case, the court’s phase II order, as modified, provides for William’s payment to Mary of $300 per month for three years for a total of $10,800 as maintenance in gross and a lump sum property award of $7,000. The lump sum payment, according to the January 24 order, represented Mary’s share of marital property consisting of William’s “50% interest in a tenant farming operation, his *** 50% partnership interest in the cattle that he has been grooming on behalf of a certain witness that testified in Court, and various marital and household furniture, furnishings, fixtures and appliances which are still located in the marital home where [William] resides.” William posits that testimony at the phase II hearing established that the parties actually had a negative net worth of $21,000, consisting of marital assets worth $12,000, less an outstanding farm debt to which the parties stipulated in the amount of $33,000. Thus, he argues, the court’s award to Mary of 58% of the marital assets and none of the marital debts is inequitable.

In fact, the value of the marital estate, particularly the value of William’s farming interests, was a matter of considerable dispute in the trial court. Mary introduced evidence tending to establish that William owned a 50% partnership interest in certain cattle, which William denied. There was also contradictory evidence on the profitability of the farming operation at the time of the dissolution of marriage in 1988. William’s tax returns were admitted into evidence and tend to support Mary’s contention that William’s claimed debts as of July 1988 were inflated or “paper deductions” which did not translate into actual marital indebtedness. The factual issues presented by the parties’ conflicting testimony were resolved by the trial court for reasons expressed in its order of February 14, 1992, denying William’s motion for post-judgment relief. There, the court concluded, “The motion is *** denied, based on the evidence and the court’s conclusion that the plaintiff was not a credible witness when testifying about his financial condition.”

The credibility of witnesses is particularly within the purview of the trier of fact. Where, as here, disputed evidence may be resolved on the basis of witness credibility, this court should be loathe to disturb the trial court’s factual finding. It is apparent to us that the trial court in this case did not find credible evidence of marital indebtedness. Based on our review of the record on appeal, we cannot say that the trial court’s finding entitling Mary to a lump sum property award of $7,000 without assigning her any part of William’s claimed indebtedness from the farm operation is so unreasonable as to be an abuse of the court’s discretion. Accordingly, we affirm the court’s property distribution order.

Next, William charges error in the trial court’s award of maintenance to Mary. An award of maintenance is governed by section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 504). The factors to be considered are whether the spouse seeking an award:

“(1) lacks sufficient property, including marital property apportioned to [her], to provide for [her] reasonable needs, and
(2) is unable to support [herself] through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or
(3) is otherwise without sufficient income.” (Ill. Rev. Stat. 1991, ch. 40, par. 504(a).)

The statute further provides that maintenance may be “in gross or for fixed or indefinite periods of time,” and from the income or property of the paying spouse after consideration of “all relevant factors.” The statute then recites a seven-item, nonexclusive list of relevant factors bearing on the issue of spousal maintenance. Ill. Rev. Stat. 1991, ch. 40, par. 504(b).

William contends that the only factor considered by the trial court in this case was Mary’s inability to support herself through appropriate employment. Were this true, we would agree that the court erred; however, our review of the record supports Mary’s position that, although not recited in its January 24 order, the court also considered substantial evidence that she lacked sufficient property to provide for her reasonable needs or was without sufficient income. Thus, we find no merit to William’s argument that the court’s award of maintenance was unauthorized in this case.

William’s argument in the alternative is that the court erred in making the maintenance award nonmodifiable. In its phase II order of January 24, the court characterized its sum-certain maintenance award both as “nonmodifiable” and as “rehabilitative maintenance.” However, in its February 14, 1992, “clarification” of the January 24 order, the court specifically stated that the award was “in gross.” By definition, an award of maintenance in gross is a fixed sum in the nature of a property settlement and is nonmodifiable. (In re Marriage of Freeman (1985), 106 Ill. 2d 290, 297, 478 N.E.2d 326, 329.) In Freeman, the court interpreted the legislative intent of section 504(b)’s reference to maintenance in gross. The court stated:

“If maintenance in gross were no different than periodic maintenance, the amendment stating that maintenance may be in gross would have added nothing to the meaning of section 504(b). We believe this requires us to give the phrase ‘maintenance in gross’ the meaning which ‘alimony in gross’ has traditionally had in Illinois, a nonmodifiable sum certain to be received by the former spouse regardless of changes in circumstances. Walters v. Walters (1951), 409 Ill. 298[, 99 N.E.2d 342].” (106 Ill. 2d at 298.)

Maintenance in gross is not an inflexible device and may be paid in periodic installments and made terminable upon express conditions.

In this case, after considering evidence of the duration of the marriage, the standard of living during the marriage, tax consequences of the property division and other relevant factors as required by section 504, the court awarded Mary a nonmodifiable maintenance award in the sum of $10,800 payable in monthly installments of $300 over a period of three years. The court did not attach any conditions for termination of payments before the three-year period expires. Thus, it is apparent that the court intended its award to be “maintenance in gross,” rather than “rehabilitative,” as clarified in the court’s order of February 14. Because the legislature has specifically authorized such awards (see Freeman, 106 Ill. 2d 290, 478 N.E.2d 326) and the record establishes that the court gave due consideration to relevant factors in rendering its decision, we find no error in the court’s decision to award Mary “maintenance in gross” payable periodically and in the amount as specified in the January 24 order.

Lastly, William argues that the trial court erred in failing to consider evidence of his own inability to pay maintenance (Ill. Rev. Stat. 1991, ch. 40, par. 504(bX6)). Again, however, our review of the record on appeal does not support William’s position that the court’s determination was contrary to the evidence. The tax returns submitted for 1986 through 1989 indicate a steady increase in William’s income following his 1987, predissolution bankruptcy proceedings. As aforesaid, the court did not find credible William’s claims of indebtedness. In our opinion, the court did not abuse its discretion in rejecting William’s position that maintenance should not be awarded based on his inability to pay.

For the reasons stated, we affirm the orders of the circuit court of Putnam County.

Affirmed.

STOUDER and SLATER, JJ., concur.


text:
    ROBERT FOLEY, Plaintiff-Appellant, v. THE CITY OF LA SALLE, Defendant-Appellee.
    Third District
    No. 3—92—0430
    Opinion filed February 18,1993.

      Aplington, Kaufman, McClintock, Steele & Barry, Ltd., of La Salle (Raymond R. Nolasco, of counsel), for appellant.
    John A. Hayner, of Ottawa, for appellee.
   JUSTICE SLATER

delivered the opinion of the court;

Plaintiff Robert Foley was injured when he fell after stepping into a rut while chasing a fly ball during a softball game. Plaintiff filed a complaint against defendant City of La Salle (the city) alleging that its failure to properly maintain the softball field and its failure to warn the plaintiff of the existence of the rut constituted willful and wanton conduct. The trial court granted the city’s motion for summary judgment and plaintiff appeals. We affirm.

Our review of the pleadings, depositions and affidavits reveals the following facts. Hegler Park is owned and operated by the city. Plaintiff, who is an experienced baseball and softball player, was playing left field as a member of a team participating in the fall softball league at Hegler Park. On September 28, 1988, plaintiff injured his knee when his foot caught in a rut while he was attempting to catch a fly ball in left field. Plaintiff described the rut as 6 to 12 inches wide, but he did not know how deep or long it was. Prior to September 28, plaintiff had seen tire tracks in the outfield which could have been caused by vehicles associated with a city-sponsored celebration known as La Salle Fest. The affidavits of two members of plaintiff’s softball team indicated that they had observed ruts in the outfield on September 28 and the ruts corresponded with similar ruts they had observed at La Salle Fest. In addition, post holes which had been dug for the erection of a fence during La Salle Fest were unfilled and unrepaired on September 28, according to plaintiff and one of his teammates. These holes were located just beyond the infield playing area.

La Salle Fest took place on September 9 and 10 of 1988. Food stands, booths, a beer garden and a stage were set up on and around the softball field. John Stegen, the park maintenance crew chief, testified that some food trailer stands were located in deep left field near a temporary fence. Two beer trucks had also been located at the edge of the outfield. Stegen was not concerned about possible damage to the outfield area because the summer of 1988 had been very hot and dry and the ground was hard. Plaintiff similarly testified that it had been a very dry summer and the ground in the outfield was hard. Stegen stated that after La Salle Fest ended he raked the entire softball field, including left field, and he did not see any holes, ruts or tire marks. According to Stegen, he or members of his crew inspected the softball field regularly. If crew members found a hole or a rut, they were instructed to fill the hole and to report it to Stegen.

Ruth Spayer, the park and recreation director for the city, testified that park employees are directed to walk through the park, including the outfield, every day to pick up debris and check for anything out of the ordinary. Park employees were not specifically instructed, however, concerning inspection of the outfields. The summer maintenance crew at Hegler Park usually consisted of three students working part time, supervised by Stegen, who also worked part time. The students returned to school in the fall, and in September of 1988 maintenance work was performed by Stegen and one part-time employee.

According to Spayer, during La Salle Fest a stage was set up on the dirt infield of the softball diamond. A flatbed truck was located between second and third base. A temporary snow fence was erected around the outer limits of the infield, to protect the stage and sound equipment from the extreme dust that year. Food booths consisting of self-contained trailers were set up along the outer limits of the outfield, near a temporary snow fence and a series of electric light poles. The beer garden was located approximately in center field, surrounded by a double temporary snow fence. The beer trucks entered the park from the northwest corner, crossing from right field to center field. Spayer did not know what route the trucks took when they left the park. As indicated earlier, the trial court granted the city’s motion for summary judgment.

A motion for summary judgment should be granted when the pleadings, depositions, admissions and affidavits on file show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1005(c); Addison v. Whittenberg (1988), 124 Ill. 2d 287, 529 N.E.2d 552.) In determining whether a triable issue exists, the pleadings, depositions, admissions and affidavits must be construed against the movant and in favor of the opponent. (Addison, 124 Ill. 2d 287, 529 N.E.2d 552.) The existence of factual questions will not preclude summary judgment unless those facts are material to the litigation. (Quinton v. Kuffer (1991), 221 Ill. App. 3d 466, 582 N.E.2d 296.) A trial court’s ruling on a motion for summary judgment is subject to de novo review by this court. Farmers State Bank v. National Bank (1992), 230 Ill. App. 3d 881, 596 N.E.2d 173.

As a local public entity, the city is entitled to the protection provided by the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (Ill. Rev. Stat. 1987, ch. 85, par. 1— 101 et seq.). Section 3 — 106 of the Act provides that the city is not liable for an injury where that liability is based on the existence of a condition of property used for recreational purposes unless the city is guilty of willful and wanton conduct. (Ill. Rev. Stat. 1987, ch. 85, par. 3 — 106.) Plaintiff’s complaint alleged that the city was guilty of willful and wanton conduct in failing to warn him of the existence of the rut and in failing to repair and maintain the left field area when it knew or should have known of the existence of the rut.

The Act defines willful and wanton conduct as a deliberate intention to cause harm or a course of action which shows an utter indifference to or conscious disregard for the safety of others. (Ill. Rev. Stat. 1987, ch. 85, par. 1 — 210.) In Burke v. 12 Rothschild’s Liquor Mart, Inc. (1992), 148 Ill. 2d 429, 593 N.E.2d 522, the supreme court examined the meaning of the term “willful and wanton” under Illinois law. The court stated that willful and wanton conduct approaches the degree of blame associated with intentional harm, because the defendant deliberately inflicts a highly unreasonable risk of harm upon others in conscious disregard of that risk, (Burke, 148 Ill. 2d at 448, 593 N.E.2d at 530.) The court noted that the Restatement of Torts avoids using the term “willful and wanton,” instead characterizing such conduct as “reckless.” Quoting the Restatement, the court explained the differences between reckless conduct and mere negligence:

“ ‘[Reckless misconduct] differs from that form of negligence which consists in mere inadvertence, incompetence, unskillfulness, or a failure to take precautions to enable the actor adequately to cope with a possible or probable future emergency, in that reckless misconduct requires a conscious choice of a course of action, either with knowledge of the serious danger to others involved in it or with knowledge of facts which would disclose this danger to any reasonable man. It differs not only from the above-mentioned form of negligence, but also from that negligence which consists in intentionally doing an act with knowledge that it contains a risk of harm to others, in that the actor to be reckless must recognize that his conduct involves a risk substantially greater in amount than that which is necessary to make his conduct negligent. The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference in kind.’ Restatement (Second) of Torts §500, Comment g, at 590 (1965).” (Burke, 148 Ill. 2d at 449-50, 593 N.E.2d at 531.)

The supreme court adopted the Restatement’s view that there is a qualitative difference between negligence and willful and wanton conduct. Burke, 148 Ill. 2d at 450, 593 N.E.2d at 531.

After construing the pleadings, depositions and affidavits against the city and in favor of the plaintiff, we do not believe that the city’s acts or omissions can properly be characterized as willful and wanton conduct. The evidence shows that the conduct of the city and its employees in either failing to discover the rut or in failing to repair it or warn of it was, at most, due to inadvertence, incompetence or unskillfulness. The deposition testimony of Stegen and Spayer regarding the city’s policy of inspection of the park was uncontroverted. There is no evidence that this policy was consciously disregarded in the face of a known danger. While the circumstances suggest that the city may have been negligent, its conduct did not involve “a risk substantially greater in amount than that which is necessary to make [its] conduct negligent.” Restatement (Second) of Torts §500, Comment g, at 590 (1965); see Brown v. Chicago Park District (1991), 220 Ill. App. 3d 940, 581 N.E.2d 355 (failure to remove mirror from public showers was not willful and wanton conduct); Majewski v. Chicago Park District (1988), 177 Ill. App. 3d 337, 532 N.E.2d 409 (failure to inspect football field or to remove or warn of broken glass was not willful and wanton conduct); Lester v. Chicago Park District (1987), 159 Ill. App. 3d 1054, 513 N.E.2d 72 (improper repair of holes and ruts in softball field was not willful and wanton conduct).

Plaintiff, relying on Harding v. City of Highland Park (1992), 228 Ill. App. 3d 561, 591 N.E.2d 952, also contends that because the complaint alleges independent negligence by the city in creating the defect and allowing it to remain, section 3 — 106 does not apply and the city is liable even if it is merely negligent. This issue was not presented to or considered by the trial court and is deemed to be waived. (Harbor Insurance Co. v. Arthur Andersen & Co. (1986), 149 Ill. App. 3d 235, 500 N.E.2d 707.) In any event, Harding does not support plaintiff’s position. Harding held that lack of actual or constructive notice of a dangerous condition does not preclude a municipality’s liability for negligence where it caused the condition. The Harding court was construing section 3 — 102 of the Act, which concerns a municipality’s liability for negligence. Harding has no bearing upon a case alleging liability for willful and wanton conduct under section 3 — 106.

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

Affirmed.

BRESLIN and LYTTON, JJ., concur.