author: JUSTICE LUND

text:
    MARILYN K. KENNELL, Indiv. and as Adm’r of the Estate of Michelle Kay Kennell, et al., Plaintiffs-Appellants, v. CLAYTON TOWNSHIP, Defendant-Appellee (Estate of Chester Gerdes, Defendant).
    Fourth District
    No. 4—92—0254
    Opinion filed December 31, 1992.

      William R. Kelly, of Peoria, for appellants.

      Jay S. Judge, Kathryn M. James, and Kristine A. Karlin, all of Judge & James, Ltd., of Park Ridge, for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This is an appeal by plaintiffs Marilyn K. Kennell, individually and as administrator of the estate of Michelle Kay Kennell, and Cheryl A. Pisel and Larry J. Pisel, individually and as administrators of the estate of Cheri Ann Pisel, from an order of the circuit court of Wood-ford County directing a verdict in favor of defendant Clayton Township (Township) in a wrongful death cause of action based on immunity of the Township under section 2 — 201 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (111. Rev. Stat. 1989, ch. 85, par. 2 — 201). Defendants originally included the Township road commissioner; however, dismissal occurred upon suggestion on the record of his death.

Facts

Cheri Ann Pisel and Michelle Kay Kennell, sole occupants of the Pisel family auto, died as a result of a one-car accident which took place at 5:15 p.m. on March 24, 1989. The accident occurred on Clayton Township Road 2400 E and the location of an abandoned rail crossing which crossed the road at a 45-degree angle. While rails had been removed and blacktop substituted, a rise in the road resulting from the rail crossing still existed. Cheri was 16 years of age and a newly licensed driver. Upon motion for directed verdict, the trial court ruled:

“I conclude that, whether what happened here was a decision not to remove this hump in the road after the tracks were removed or whether it was simply the lack of a decision, the function of the road commissioner in determining to do the work or not, or to not even think about it, was a discretionary function, and thus immune from liability under Section 2 — 201 of the Act.”

While defendant emphasizes the distance the auto traveled after loss of control as evidence of excessive speed, we find the trial court’s dismissal was based solely on the argument on section 2 — 201 of the Act. For purposes of this appeal, the question of speed, an issue not determined below by the fact finder, is of no relevance.

Verdicts should be directed only where all the evidence, when viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict, based on that evidence, could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.

Lack Of Evidence Of Proximate Cause

While the trial court ruled based upon section 2 — 201 of the Act and upon the theory of a discretionary decision, after an examination of the trial record, we feel compelled to affirm because of the absence of evidence of proximate cause.

The evidence established that the accident victims were in a motor vehicle, driving north on an oil and chip country road. The driver was young and recently licensed. There was good visibility, and the road was straight without other traffic. Exhibits indicate there was an elevation in the road caused by an abandoned rail crossing. The crossing was at an angle, but photograph exhibits fail to indicate a particularly substantial rise. All warning signs for the crossing had been removed. The rails had been removed, and the surface was blacktopped. There was no expert testimony as to whether the rise was dangerous or any evidence of other accidents at the location of the rise.

There were two eyewitnesses to this accident, a father and son who lived across the road from each other. Their residences were located just north of the elevation where the rail crossing had been. Both men were standing in the son’s yard, on the east side of the road. The father, Harold Moritz, testified that he noticed the Pisel car approaching the rise from the south. He watched the car as it crossed the rise and continued on for some distance beyond. He noticed nothing unusual about the car’s motion, and he had no opinion as to the speed of the vehicle. When the car was “far beyond” the rise, he turned around to continue attending to his chores. He then heard tires squealing and the car’s engine revving. He ran around the barn, and saw dust flying and the tires and hood flying off the car.

Richard Moritz testified that he merely glanced at the Pisel car as it approached the old crossing from the south. He did not watch the car go over the rise. Like his father, he was unable to form an opinion as to speed of the vehicle. He looked up when he heard tires squealing. He saw the Pisel vehicle sliding down the road sideways, then shoot into the ditch and become airborne.

The testimony of the Moritzes failed to establish that the rise in the roadway was the cause of the accident. Proximate cause is “any cause which, in natural or probable sequence, produced the injury complained of.” (Illinois Pattern Jury Instructions, Civil, No. 15.01 (3d ed. 1992).) Without evidence of proximate cause, liability is not established. Liability for personal injuries cannot be predicated on mere speculation, conjecture, or surmise, but must be based upon facts established by competent evidence fairly tending to prove it. (Tompkins v. Twin Oaks Dairy, Inc. (1968), 91 Ill. App. 2d 88, 94, 234 N.E.2d 403, 406; 28 Ill. L. & Prac. Negligence §241, at 213 (1957).) A directed verdict is proper when there is insufficient evidence to create a factual question. (Derrico v. Clark Equipment Co. (1980), 91 Ill. App. 3d 4, 9, 413 N.E.2d 1345, 1350.) The evidence failed to establish proximate cause.

Tort Immunity Act

Regardless of our finding of absence of sufficient evidence of proximate cause, we consider it beneficial to address the tort immunity issue. The issue involves joint consideration of sections 2—109, 2—201, and 3—102(a) of the Act. Section 2 — 109 provides: “A local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.” (Ill. Rev. Stat. 1989, ch. 85, par. 2—109.) Section 2—201 provides:

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

Section 3 — 102(a) provides:

“Except as otherwise provided in this Article, a local public entity has the duty to exercise ordinary care to maintain its property in a reasonably safe condition for the use in the exercise of ordinary care of people whom the entity intended and permitted to use the property in a manner in which and at such times as it was reasonably foreseeable that it would be used, and shall not be liable for injury unless it is proven that it has actual or constructive notice of the existence of such a condition that is not reasonably safe in reasonably adequate time prior to an injury to have taken measures to remedy or protect against such condition.” Ill. Rev. Stat. 1989, ch. 85, par. 3—102(a).

The question to be answered is whether section 3 — 102(a) of the Act imposed a duty upon the Township to remove the rise in the roadway, or whether the decision to do so was one for the road commissioner, thus triggering the immunity of both sections 2 — 201 and 2— 109 of the Act.

We first confront plaintiffs’ argument that because the road commissioner is no longer a party to this action, the purpose behind section 2 — 201 of the Act does not exist and section 2 — 109 of the Act has no effect. No authority is cited for this argument, and we find none. We find the argument spurious, and also find no logic in saying a public entity, otherwise immune, loses that immunity because the employee allegedly performing an act or omission is not made a party defendant or is no longer a party because of death. A contrary decision would lead to circumvention of section 2 — 109 immunity and section 2 — 201 immunity benefits, whereby plaintiffs would simply elect not to make the employee a party defendant. If the alleged wrongdoing relates to a discretionary act of an employee, there is immunity for both the employee and the public entity, regardless of whether the employee is a party defendant.

Plaintiffs’ second contention is that the duty of local governments codified in section 3 — 102(a) of the Act cannot be avoided by invoking the immunity provided through section 2 — 109. This argument misconceives the nature of the relationship between these two sections.

The common law extended immunity to local governmental entities engaged in governmental or discretionary functions, but held them liable for negligence in the performance of ministerial functions. It has been recognized that it is part of the ministerial duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for public travel. (Blackaby v. City of Lewiston (1932), 265 Ill. App. 63, 71; Lehigh Valley Transportation Co. v. City of Chicago (1908), 237 Ill. 581, 583-84, 86 N.E. 1093, 1093.) Discretionary acts are those which are unique to the particular public office and involve the exercise of judgment. (See Lusietto v. Kingan (1969), 107 Ill. App. 2d 239, 244, 246 N.E.2d 24, 27.) On the other hand, ministerial acts are those which are performed in a prescribed manner, in obedience to the mandate of legal authority, without regard to the exercise of discretion as to the propriety of the acts being done. Larson v. Darnell (1983), 113 Ill. App. 3d 975, 977, 448 N.E.2d 249, 250-51.

The Act was an effort by the legislature to restore common law municipal immunity abolished by the Illinois Supreme Court in Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 163 N.E.2d 89. Thus, while the Act codifies the common law, it does not create any new duties. Greeson v. Mackinaw Township (1990) , 207 Ill. App. 3d 193, 203, 565 N.E.2d 695, 701, appeal denied (1991), 139 Ill. 2d 595, 575 N.E.2d 914; Hannon v. Counihan (1977), 54 Ill. App. 3d 509, 512, 369 N.E.2d 917, 919.

Section 3 — 102(a) of the Act, therefore, applies only to the performance of ministerial duties. There is absolute immunity in the performance of discretionary functions, as set forth in sections 2 — 109 and 2 — 201 of the Act. Contrary to plaintiffs’ argument, there is simply no conflict between the provisions of section 3 — 102(a) and those of sections 2 — 109 and 2 — 201 of the Act.

Since there is absolute immunity as to the performance of discretionary or governmental functions, we must decide whether the issue of removal of the rise in the road involved a ministerial act or a discretionary act. We recognize that township road commissioners are not typical employees. They are elected officials and, under section 6 — 201.8 of the Illinois Highway Code (Code), “[h]ave general charge of the roads of his district, [to] keep the same in repair and to improve them so far as practicable.” (Ill. Rev. Stat. 1989, ch. 121, par. 6—201.8.) Their functions are set forth in sections 6—201.1 through 6—201.19 of the Code (Ill. Rev. Stat. 1989, ch. 121, pars. 6—201.1 through 6—201.19). These sections establish the considerable authority and discretion of the commissioner, which include laying out, altering, and widening township roads. Ill. Rev. Stat. 1989, ch. 121, par. 6-201.2.

The amended complaint alleges the Township maintained a hazardous condition on its roadway — a sudden and abrupt hump where railroad tracks had been removed on an otherwise totally flat and level highway. According to plaintiffs, this was a failure to comply with the duty dictated by section 3 — 102(a) of the Act. Our examination of the evidence confirms that the oil and chip country road involved was straight and unobstructed as to visibility, and it was basically level.

We have found no case law, statute, rule, or regulation (nor have plaintiffs cited any) imposing a duty upon a governmental entity or a public official to remove rises in roadways. It is settled law that a township has no common-law duty to widen roads, smooth gravel, erect signs, or mow weeds. A duty only arises when a public improvement is actually undertaken. (Havens v. Harris Township (1988), 175 Ill. App. 3d 768, 771, 530 N.E.2d 284, 285; Bowen v. City of Harvey (1987), 164 Ill. App. 3d 637, 639, 518 N.E.2d 203, 205.) It must be noted that the Township did not create the allegedly hazardous condition in this case. The rise in the road existed prior to removal of the railroad tracks.

In Lusietto (107 Ill. App. 2d at 240-41, 246 N.E.2d at 25), plaintiff’s decedent was killed when her car ran off the road after striking a large pothole in a State highway which was under the jurisdiction of defendant in his capacity as maintenance supervisor. Plaintiff sued, claiming defendant had allowed the pothole to exist in the roadway for a long period of time and had failed to repair it or warn of its existence. Plaintiff prevailed in the trial court, and defendant appealed. The appellate court reversed, holding that defendant owed no duty to plaintiff’s decedent individually and, in addition, that defendant’s duties were governmental in character and required the exercise of discretion and judgment as to which holes to fill and which would be filled first. Considerations such as available manpower, equipment, and finances limit these decisions. (Lusietto, 107 Ill. App. 2d at 244, 246 N.E.2d at 27.) This case illustrates the fact that, depending upon the situation, what might be considered a repair can be a discretionary matter.

The Havens case is another example of discretionary action which ' is immunized by the Act. In that case, plaintiff’s minibike collided with a truck on a narrow, twisting, rural, gravel road in defendai# township. Plaintiff alleged the width and grade of the road, and failure to mow weeds and have warning signs, combined to make the road unsafe. The trial court dismissed the complaint for failure to state a cause of action. Plaintiff appealed, claiming the township breached its duty to keep the road in a reasonably safe condition, warn of the dangerous condition of the roadway, and mow and trim weeds and brush alongside the roadway. The appellate court affirmed, stating that, absent a statutory or common-law duty, it is in the discretion of the township to decide whether road improvements such as mowing weeds, widening roads, smoothing gravel, and erecting signs are necessary. These are matters of judgment and discretion for which there is absolute immunity under the Act. The court found that to make the road safer under plaintiff’s standards, the township would have to change the character of the road itself. This would be an improvement which the township was not bound to do. Havens, 175 Ill. App. 3d at 770, 530 N.E.2d at 285.

Removing the rise in the roadway in the instant case may fairly be characterized as an improvement, in that its removal would change the character of the road as in Havens. It would appear, under existing case law, the removal of the rise would be a discretionary matter for the Township. However, we are not prepared to hold there is never a duty to remove elevations in roadways, no matter how steep or dangerous. After reviewing the evidence in the instant case as to the significance of the rise, we conclude that removal of this particular rise in the road was a discretionary matter with the road commissioner and that the trial court was correct in holding that there was immunity from liability under sections 2 — 109 and 2 — 201 of the Act.

The doctrine holding employees immune from liability when making discretionary decisions was originally termed one of quasi-judicial immunity and rests on the principle that the decision maker, like judges, should be free from liability when making decisions based upon best perceptions of public needs. (Kelly v. Ogilvie (1965), 64 Ill. App. 2d 144, 147, 212 N.E.2d 279, 281, aff’d (1966), 35 Ill. 2d 297, 220 N.E.2d 174.) Such a doctrine, of course, should not allow a public servant to ignore all dangerous conditions when determining proper maintenance of property available for public use.

The existence of a duty ultimately depends upon choices between competing policies. (Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612; see also DiBenedetto v. Flora Township (1992), 153 Ill. 2d 66 (Miller, C.J., concurring).)

“In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant.” Gouge v. Central Illinois Public Service Co. (1991), 144 Ill. 2d 535, 542, 582 N.E.2d 108, 112.

Evidence in this case failed to establish that the elevation in the roadway constituted an unreasonably dangerous condition. The policy underlying the decisions in Havens, Bowen, Lusietto, and DiBenedetto recognizes the problem of placing the burden of certain road improvements on governmental bodies.

Under the circumstances here, we hold the decision to remove the rise created by the railroad right-of-way was discretionary; thus, the Township had immunity under the Act.

The orders of the trial court granting the Township’s motion for directed verdict and denying plaintiffs’ motion to reconsider are affirmed.

Affirmed.

STEIGMANN, P.J., and KNECHT, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    THE PEOPLE ex rel. ALICE MARILYN GRAHAM, Petitioner-Appellant, v. DENNIS E. ADAMS, Respondent-Appellee.
    Fourth District
    No. 4—92—0424
    Opinion filed February 4, 1993.

      Michael W. Ochoa, of Springfield, for appellant.
    Thomson, Mann, Mann, Mitchell & McNeely, P.C., of Jacksonville (John A. Mann, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This case involves the application of the child support guidelines provided by section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)), as required by the Illinois Parentage Act of 1984 (Parentage Act) (Ill. Rev. Stat. 1991, ch. 40, par. 2501 et seq.). After determining that respondent was the father of the petitioner’s son, who was born on February 21, 1979, the court ordered a judgment for back support payments in the amount of $34,000 in favor of the Illinois Department of Public Aid and for the benefit of the minor son. Respondent was further ordered to provide comprehensive health and medical coverage and to pay 80% of the child’s uninsured health care needs. Child support payments of $400 per month were ordered. This amount equaled approximately one-fourth the amount provided under the guidelines.

Petitioner appeals, contending (1) the trial court erred in setting the child support payments based solely upon the current needs of the child, and (2) it was error to set the support amount at an amount greatly below the guideline.

Three statutory provisions are involved. Section 14 of the Parentage Act (Ill. Rev. Stat. 1991, ch. 40, par. 2514) requires the application of the guidelines set forth in section 505(a) of the Marriage Act. Section 3 of the Parentage Act provides:

“Relationship and Support Not Dependent on Marriage. The parent and child relationship, including support obligations, extends equally to every child and to every parent, regardless of the marital status of the parents.” (Ill. Rev. Stat. 1991, ch. 40, par. 2503.)

Section 505(a)(2) of the Marriage Act provides:

“The above guidelines shall be applied in each case unless the court, after considering evidence presented on all relevant factors, finds a reason for deviating from the guidelines. Relevant factors may include but are not limited to:
(a) the financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.
If the court deviates from the guidelines, based on consideration of the factors in paragraphs (2)(a) through (2)(e) of subsection (a) of this Section, or any other relevant factor, it shall make express findings as to its reason for doing so.” Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2).

Our support laws, as cited in this opinion, recognize that a child from a nonmarital relationship has the same rights as a child born to a marriage relationship. However, in this case, the custodial mother not only cares for respondent’s son, but also two other children (not by respondent) and is expecting another (not by respondent). She has received public aid payments for much of the time since the birth of the first child and currently supports her family on approximately $1,600 per month. The amount of support provided under the guidelines (20% of respondent father’s income) totals $1,600 per month. If the trial court had followed the guidelines, ordering $1,600 in child support per month, it would appear that respondent would actually be supporting his son, petitioner, and the other three children.

We acknowledge that petitioner is a licensed practical nurse and, if employed after the last child is born, could earn approximately $1,600 per month. It is also possible that the father of the then expected child will aid in support for that child. The likelihood of the father, or fathers, of the middle two children paying support is not good.

Our supreme court, in a marriage dissolution case, has rejected a “needs-based” analysis in determining child support because limiting a child’s support to his “ ‘shown needs’ is to read the ‘standard of living the child would have enjoyed had the marriage not been dissolved’ consideration completely out of the statute. A child is not expected to have to live at a minimal level of comfort while the noncustodial parent is living a life of luxury.” In re Marriage of Bussey (1985), 108 Ill. 2d 286, 297, 483 N.E.2d 1229, 1234.

In Rawles v. Hartman (1988), 172 Ill. App. 3d 931, 527 N.E.2d 680, it was determined that even though the advanced education provision of section 513 of the Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 513) is not included in section 505 of the Marriage Act or referred to in section 14 of the Parentage Act, the obligations of section 513 of the Marriage Act as to education expense extends to the father of a nonmarital child. Rawles includes the following statement:

“The State may not invidiously discriminate against illegitimate children by denying them substantial benefits accorded legitimate children; once the State posits a judicially enforceable right on behalf of children to needed support from their natural fathers, there is no constitutionally sufficient justification for denying such an essential right to a child simply because its natural father has not married his or her mother. For a State to do so is illogical and unjust. Gomez v. Perez (1973), 409 U.S. 535, 539, 35 L. Ed. 2d 56, 60, 93 S. Ct. 872, 875.” (Rawles, 172 Ill. App. 3d at 936-37, 527 N.E.2d at 683.)

Section 14(a)(1) of the Parentage Act provides for courts making custody and visitation provisions, thus allowing fathers rights previously prohibited. (Ill. Rev. Stat. 1991, ch. 40, par. 2514(a)(1).) Consideration of children born of a nonmarital relationship no longer is governed by rules from the Dark Ages, and we see no reason that they be considered differently from those of marital birth. The comments from Bussey should equally apply to the nonmarital issue.

However, we must confront the realities of life as illustrated in this case. Petitioner may, by now, have three children other than respondent’s son to support. We know of no duty on the part of respondent to support either petitioner or her other children. If the guidelines are to be strictly followed in this case, respondent will either be supporting others in the family or his son will have to, for expenditure purposes, be treated differently than the other family members. A payment by respondent to petitioner of a sum of $1,600 would evidently terminate public aid payments for the entire family. However, as stated in Bussey (108 Ill. 2d at 297, 483 N.E.2d at 1234), “A child is not expected to have to live at a minimal level of comfort while the noncustodial parent is living a life of luxury.”

Regardless of respondent’s lack of financial obligation to petitioner and three of her children, a payment of the guideline amount of 20% would likely result in his supporting the entire family. We note that this problem could also arise in marriage dissolution cases where the custodial parent remarries, has additional children, and has a substantially lower standard of living.

The problem of providing one child in a family unit with a different economic status than the other children cannot be ignored. Are we to suggest one child should dress better, have better playthings, go to a better school, have an auto — all in contrast to siblings? Dire social ramifications could well result.

When a trial court is confronted with a case such as this, a balancing test is necessary. Using the balancing test term is not a cop-out on our part. We are aware of the burden we are placing on the trial courts. Those courts, because of their fact-finding ability, are best suited to make this type of determination. The balancing test requires consideration of all factors as set forth in section 505(a)(2) of the Marriage Act, with an adjustment to and possibly less emphasis on section 505(a)(2)(c) (Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2)(c)).

We hold that while a child support payment decision cannot be decided on only a “needs” basis, the child’s need is a relevant factor in determining support under section 505(a)(2) of the Marriage Act. However, other relevant factors must be considered, and those include the social problems surrounding one sibling having more than others, the visitation (or relationship) with the noncustodial parent, and the extent payments by the noncustodial parent actually benefit those who are not directly entitled to the support benefit. The assessment of medical expenses and arrearage, as was done here, is definitely relevant. As facts develop, other relevant factors will probably arise and can be identified by the trial courts.

We are not determining whether the child support payments of $400 per month are sufficient or insufficient. We are deciding that the issue of current support must be remanded for further hearing and application of the balancing test. Express findings will be necessary to sustain a variance from the statutory guidelines. The trial court’s finding was as follows:

“Based upon all relevant circumstances, application of the minimum guidelines set forth in Section 505 of the Illinois Marriage and Dissolution of Marriage Act is inappropriate; and, child support should be awarded in a sum less than that due to the needs of the minor and the substantial income of DENNIS ADAMS.”

This was not an “express” finding of reasons for deviation from the guidelines. The trial court’s determination on remand, coupled with express findings, should not be reversed unless made arbitrarily without the employment of conscientious judgment. In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 414, 555 N.E.2d 1114, 1120.

We are not suggesting a custodial parent must segregate child support payments from other family income. Many family expenses are for the benefit of all members of the household. Also, the custodial parent is often contributing to the child’s support from income other than the child support payments received.

The judgment for arrearage and the decision as to medical expenses are affirmed. The current support order is reversed and remanded for further hearing consistent with the dictates of the opinion.

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

KNECHT and COOK, JJ., concur.


author: PRESIDING JUSTICE STEIGMANN

text:
    CAROL CUSAMANO, Plaintiff-Appellant, v. NORRELL HEALTH CARE, INC., Defendant-Appellee.
    Fourth District
    No. 4—92—0248
    Opinion filed December 23, 1992.
    Rehearing denied February 19, 1993.

      Julie L. Galassi, of Hasselberg & Rock, of Peoria, for appellant.
    William F. Trapp, of Brown, Hay & Stephens, of Springfield, and John G. Parker and William J. Holley II, both of Paul, Hastings, Janofsky & Walker, of Atlanta, Georgia, for appellee.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In October 1991, plaintiff, Carol Cusamano, sued defendant, Norrell Health Care, Inc., seeking $40,000 in damages and rescission of a franchise agreement between plaintiff and defendant. Plaintiff based her claim on defendant’s precontract, allegedly fraudulent misrepresentations that violated the Franchise Disclosure Act of 1987 (Act) (Ill. Rev. Stat. 1991, ch. 121½, par. 1701 et seq.). The franchise agreement contained an arbitration clause under which the parties agreed to submit all questions “arising out of or in relation to” the agreement to arbitration. In November 1991, defendant filed a motion to dismiss, arguing that plaintiff must submit her claim to arbitration. In February 1992, the trial court granted defendant’s motion, and plaintiff appeals.

We vacate and remand.

I. Background

Defendant operates a temporary health care employment service based in Atlanta, Georgia. In October 1988, plaintiff and defendant signed a franchise contract under which plaintiff would open and operate a franchise office for defendant in central Illinois. In short, this contract required plaintiff to spend at least $500 to purchase office space, furnishings, and equipment, and provided that defendant would pay plaintiff 40% of the gross profits from the office. The contract did not provide for any further compensation, nor did it set a suggested or required maximum that plaintiff could spend to open the franchise.

During the first few months, plaintiff claims that she spent close to $40,000 to open the franchise office, and that the 40% commission did not provide her with even “a minimal income.” As a result, plaintiff sued to recover the $40,000 and rescind the contract. Plaintiff in effect claimed that the franchise contract should be rescinded because defendant did not provide her with a disclosure statement, thereby violating the Act. (Although she did not cite the particular section, we note that section 5(2) of the Act requires a person offering or selling a franchise to provide the prospective franchisee a disclosure statement. See Ill. Rev. Stat. 1987, ch. 121½, par. 1705(2).)

Plaintiff also alleged in her complaint that defendant fraudulently induced her to sign the franchise agreement by providing her -with a sample commission statement that grossly overestimated the amount of expected earnings. She claimed that the statement defendant provided her reflected commission earnings out of a company-run office, not an agency office of the type she would open. Because company offices use different accounting methods than agency offices to determine profits and commission, she argued that defendant’s providing that commission statement to her as a sample constituted a fraudulent misrepresentation, entitling her to rescission and damages pursuant to the Act.

Defendant filed a motion to dismiss, arguing that plaintiff must submit her claim to arbitration in Atlanta, Georgia, pursuant to an arbitration clause in the contract. The trial court conducted a hearing on this motion and granted it. Plaintiff appeals, arguing that she cannot submit her claim to arbitration because a Georgia arbitrator would have no authority to enforce Illinois law, upon which she bases her complaint.

II. Analysis

The pertinent part of paragraph 21 of the franchise agreement between plaintiff and defendant reads as follows:

“(a) Any dispute or disagreement between the parties arising out of or in relation to this Agreement, and any extension[,] modification^] or renewal thereof, shall be settled by arbitration in Atlanta, Georgia[,] under the rules then obtaining of the American Arbitration Association, and any judgment upon the award of the arbitrator may be entered in any court having jurisdiction.”

As a preliminary matter, we note that in Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr (1988), 124 Ill. 2d 435, 530 N.E.2d 439, the Illinois Supreme Court clarified whether a court or an arbitrator should initially determine if a party must submit a claim to arbitration. When the claim clearly falls within or clearly does not fall within the scope of the arbitration clause, the trial court should initially decide the arbitrability issue. (Donaldson, 124 Ill. 2d at 445, 530 N.E.2d at 443.) However, “when the language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator.” (Emphasis added.) (Donaldson, 124 Ill. 2d at 447-48, 530 N.E.2d at 445.) The Donaldson court reasoned that “ ‘[wjhether the party seeking arbitration is right or wrong is a question of contract application and interpretation for the arbitrator, not the court, and the court should not deprive the party seeking arbitration of the arbitrator’s skilled judgment by attempting to resolve the ambiguity.’ ” Donaldson, 124 Ill. 2d at 448, 530 N.E.2d at 445, quoting Gold Coast Mall, Inc. v. Larmar Corp. (1983), 298 Md. 96, 107, 468 A.2d 91, 97.

Whether a party must submit a claim to arbitration depends entirely upon whether the parties have agreed to do so. (Rauh v. Rockford Products Corp. (1991), 143 Ill. 2d 377, 387, 574 N.E.2d 636, 641.) In Rauh, the Illinois Supreme Court clarified this point as follows:

“The parties to an agreement are bound to arbitrate only those issues which by clear language and their intentions expressed in the language show they have agreed to arbitrate. [Citations.] That is, arbitration agreements cannot be extended by construction or implication.” Rauh, 143 Ill. 2d at 387, 574 N.E.2d at 641.

Several Illinois courts have held that claims of precontract fraud in the inducement must be submitted to arbitration, even though they call the entire contract into question, unless the claim specifically attacks the arbitration clause. (See Nelson v. Roger J. Lange & Co. (1992), 229 Ill. App. 3d 909, 911, 594 N.E.2d 391, 392-93; Diersen v. Joe Keim Builders, Inc. (1987), 153 Ill. App. 3d 373, 376, 505 N.E.2d 1325, 1327; J & K Cement Construction, Inc. v. Montalbano Builders, Inc. (1983), 119 Ill. App. 3d 663, 670-72, 456 N.E.2d 889, 895-96.) In the present case, plaintiff claims that defendant’s precontract fraud induced her to sign the contract. However, as opposed to the parties in Nelson, Diersen, and J & K Cement, who challenged the contracts in those cases based on common-law contract doctrine, plaintiff here challenges the contract based on the Act. Thus, we must determine whether plaintiff must submit her statutory claim of precontract material misrepresentation to arbitration.

In order to address this issue, we must first decide whether the Act automatically becomes part of every franchise contract to which it applies. (See Ill. Rev. Stat. 1991, ch. 121½, pars. 1706, 1710.) We hold that it does. If we held otherwise, the arbitrator would have no authority arising out of the contract to enforce it and the circuit court should proceed to hear plaintiff’s claim. The antifraud provisions of the Act apply automatically when the offeree is domiciled in Illinois (see Ill. Rev. Stat. 1991, ch. 121½, par. 1706), and the registration requirements automatically apply when the franchisee is domiciled in Illinois (see Ill. Rev. Stat. 1991, ch. 121½, par. 1710). Because plaintiff (the offeree-franchisee in this case) was domiciled in Illinois, the Act automatically became a part of the franchise contract in this case, regardless of any choice of law provision that might indicate that Illinois law does not otherwise apply to the contract.

Although not necessary to this holding, we note that paragraph 20(b) of the contract between the parties bolsters this conclusion because it contains the following provision:

“(b) It is the intention of the parties that this Agreement comply with the provisions and requirements of all applicable laws. This Agreement shall be deemed to contain and shall be construed so as to contain and be consistent with all mandatory provisions and requirements of applicable laws, which provisions and requirements are hereby incorporated herein by reference.”

The requirements of the Act therefore are clearly a part of the contract at issue in this case. The question thus is not whether plaintiff has a right to pursue her statutory claim, but rather where she must pursue it.

Plaintiff argues that she had to bring her claim in Illinois circuit court because a Georgia arbitrator does not have the authority to enforce Illinois statutory remedies. The First District Appellate Court has recently agreed. In Barter Exchange, Inc. v. Barter Exchange, Inc. (1992), 238 Ill. App. 3d 187, 192, that court held that only the circuit court can decide a claim that the Act was violated, thereby voiding the franchise contract because the franchisor’s compliance with the Act was a condition precedent to forming a valid franchise contract in this State. Because the defendant in Barter admitted that it violated the Act by not registering with the Attorney General, the court held that a condition precedent to enforcing the contract did not exist. (Barter, 238 Ill. App. 3d at 194.) The court then held that the absence of this condition precedent rendered the contract subject to rescission (Barter, 238 Ill. App. 3d at 194), which implicitly invalidated the arbitration agreement within that purported contract. Thus, without an agreement to arbitrate, the plaintiff did not need to submit its claim to arbitration.

However, the Act does not provide grounds by which a plaintiff-franchisee can deny that a contract exists; instead, it provides grounds by which a plaintiff-franchisee can rescind a contract. (See Ill. Rev. Stat. 1991, ch. 121½, par. 1726.) The remedy of rescission presumes that a valid contract exists; it does not negate that a contract ever existed. (See Felde v. Chrysler Credit Corp. (1991), 219 Ill. App. 3d 530, 542, 580 N.E.2d 191, 199 (“rescission means the cancellation of a contract and restoration of the parties to their initial status” (emphasis added)).) Accordingly, we respectfully disagree with the decision of the First District Appellate Court that compliance with the Act is a “condition precedent” to a franchise contract. Instead, we hold that because a suit brought under the Act to rescind a franchise contract does not challenge the existence of the contract, the question of rescission can go to arbitration.

The court in Barter also added that a defendant-franchisor’s ability to compel arbitration would allow “unscrupulous franchisors” to avoid the requirements of the Act by allowing them to establish themselves out of State and to sign franchise agreements with Illinois residents without complying with the Act. The Barter court feared that when a case arose under the Act, these unscrupulous franchisors could then “invoke the arbitration agreement, compel arbitration, and remove the case to their home States for resolution.” (Barter, 238 Ill. App. 3d at 195.) Presumably, doing so would not only “deny Illinois courts the opportunity to interpret, construe and apply the *** Act to foreign franchisors,” but it would also allow the unscrupulous franchisor to slip past the requirements of the Act. Barter, 238 Ill. App. 3d at 195.

We do not find persuasive the concerns expressed in Barter. In our view, the arbitrator — even a Georgia arbitrator — can provide the relief plaintiff requested in this case because, as we have held, the requirements of the Act become a part of every franchise contract to which it applies — especially when, as here, the parties specifically incorporate “all applicable laws” into the contract.

Moreover, if, as the Barter court conceded, Illinois indeed views arbitration as a favored means of settling disputes (see Ill. Rev. Stat. 1991, ch. 10, par. 102(a); Barter, 238 Ill. App. 3d at 192), then we should not presume that the arbitrator will collude with the defendant to help defendant avoid the requirements of the Act. Instead, we should presume that the arbitrator not only possesses the competence, but also the inclination, to grant all appropriate relief warranted under the Act. In Gilmer v. Interstate/Johnson Lane Corp. (1991), 500 U.S. 20, 30-31, 114 L. Ed. 2d 26, 39-40, 111 S. Ct. 1647, 1654, the United States Supreme Court recently rejected an attack on arbitration and wrote the following:

“Such generalized attacks on arbitration ‘res[t] on suspicion of arbitration as a method of weakening the protections afforded in the substantive law to would-be complainants,’ and as such, they are ‘far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.’ [Citation.] ***
[Petitioner] *** speculates that arbitration panels will be biased. However, ‘[w]e decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious and impartial arbitrators.’ [(Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985), 473 U.S. 614, 634, 87 L. Ed. 2d 444, 460, 105 S. Ct. 3346, 3357-58.)]”

If the arbitrator does not address a particular issue at all, plaintiff can then file suit in the circuit court. See Ryherd v. General Cable Co. (1988), 124 Ill. 2d 418, 426-28, 530 N.E.2d 431, 435 (prior arbitration of contractual claim between two parties does not collaterally estop plaintiff from bringing a retaliatory discharge claim not addressed by the arbitrator, even though both claims involved essentially the same facts).

When the parties choose arbitration in their contract, the party later seeking to avoid arbitration should not be allowed to do so by merely alleging that no contract (and, implicitly, no arbitration agreement) exists. Indeed, the result in Barter could effectively end arbitration of contractual disputes in Illinois because almost any plaintiff can find some theory or claim upon which to allege that no contract existed, thereby avoiding arbitration. Because plaintiff here has not specifically alleged that defendant fraudulently induced her to sign the arbitration agreement, we give full credit to the clause of the franchise contract that states “[a]ny dispute or disagreement between the parties arising out of or in relation to this Agreement *** shall be settled by arbitration.” See Nelson, 229 Ill. App. 3d at 911, 594 N.E.2d at 392-93; Diersen, 153 Ill. App. 3d at 376, 505 N.E.2d at 1327; J & K Cement, 119 Ill. App. 3d at 670-72, 456 N.E.2d at 895-96.

We believe our conclusion consistent with the views expressed by the United States Supreme Court in Southland Corp. v. Keating (1984), 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852. In Southland, the Supreme Court reversed a California State court decision that claims asserted under the California Franchise Investment Law (Cal. Corp. Code §31000 et seq. (West 1977)) are arbitrable, and in so doing the Court discussed its view of the effect of the California court’s ruling on arbitration, as follows:

“Plainly the effect of the judgment of the California court is to nullify a valid contract made by private parties under which they agreed to submit all contract disputes to final, binding arbitration. The [F]ederal [Arbitration] Act permits ‘parties to an arbitrable dispute [to move] out of court and into arbitration as quickly and easily as possible.’ Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 22[, 74 L. Ed. 2d 765, 784, 103 S. Ct. 927, 940] (1983).
Contracts to arbitrate are not to be avoided by allowing one party to ignore the contract and resort to the courts. Such a course could lead to prolonged litigation, one of the very risks the parties, by contracting for arbitration, sought to eliminate.” Southland, 465 U.S. at 7, 79 L. Ed. 2d at 10, 104 S. Ct. at 856.

We further question the decision in Barter because it conflicts with the Gilmer and Southland decisions of the United States Supreme Court, which held that whenever a contract involving interstate commerce contains an arbitration clause employing broad language (like the clause in the present case), the Federal Arbitration Act (9 U.S.C. §1 et seq. (1988)) requires that a plaintiff must submit to arbitration any claim — including a statutory claim — that arises out of the relationship established by the contract. Gilmer, 500 U.S. at 26, 114 L. Ed. 2d at 37, 111 S. Ct. at 1652; Southland, 465 U.S. at 13-16, 79 L. Ed. 2d at 13-16, 104 S. Ct. at 859-61.

In Southland, the plaintiff filed a class-action lawsuit on behalf of 800 7-Eleven franchisees against Southland (which owns the 7-Eleven franchise operation), alleging, among other things, fraud, misrepresentation, and failure to disclose under the California Franchise Investment Law. (Southland, 465 U.S. at 4, 79 L. Ed. 2d at 8, 104 S. Ct. at 855.) Southland petitioned to compel arbitration pursuant to the following arbitration clause in all its franchise agreements:

“ ‘Any controversy or claim arising out of or relating to this Agreement or the breach hereof shall be settled by arbitration ***.’” (Southland, 465 U.S. at 4, 79 L. Ed. 2d at 8, 104 S. Ct. at 855.)

The California Supreme Court held that this clause did not include the plaintiff’s statutory claim because the California Franchise Investment Law “require[d] judicial consideration of claims brought under that statute.” (Southland, 465 U.S. at 5, 79 L. Ed. 2d at 9, 104 S. Ct. at 855-56.) The California Supreme Court thus adopted the position that plaintiff here advocates: arbitration is not the proper forum for statutory claims.

Invoking the supremacy clause of the United States Constitution, the United States Supreme Court reversed, holding that the Federal Arbitration Act preempts any State law that denies enforcement of an arbitration clause in any contract involving interstate commerce, even when the claim at issue is a statutory claim based on the public policy of the State. (Southland, 465 U.S. at 16, 79 L. Ed. 2d at 15-16, 104 S. Ct. at 861.) The Court explained its holding as follows:

“The California Supreme Court interpreted [the California Franchise Investment Law] to require judicial consideration of claims brought under the state statute and accordingly refused to enforce the parties’ contract to arbitrate such claims. So interpreted the California Franchise Investment Law directly conflicts with §2 of the Federal Arbitration Act and violates the Supremacy Clause.
In enacting §2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration. *** Congress has thus mandated the enforcement of arbitration agreements.” Southland, 465 U.S. at 10, 79 L. Ed. 2d at 11-12, 104 S. Ct. at 858.

Justice Stevens argued in partial dissent that the Court should have given the States the right to implement “certain substantive state policies that would be undermined by enforcing certain categories of arbitration clauses.” (Southland, 465 U.S. at 18, 79 L. Ed. 2d at 16, 104 S. Ct. at 862 (Stevens, J., concurring in part and dissenting in part).) Justice Stevens explained further that it was not clear that Congress intended to entirely displace State authority on which claims are subject to arbitration, and he argued that the Court should give deference to States which want to implement policies that only a court can litigate. (Southland, 465 U.S. at 20, 79 L. Ed. 2d at 18, 104 S. Ct. at 863 (Stevens, J., concurring in part and dissenting in part).) The majority tacitly rejected this position by instead holding that the Federal Arbitration Act requires that a plaintiff must submit to arbitration any claim arising out of or in relation to a contract that involves interstate commerce and contains a broad arbitration clause.

In Gilmer, the Supreme Court addressed the apparent conflict between Southland — which held that the plaintiffs must submit their statutory claim to arbitration — and a prior case, Alexander v. Gardner-Denver Co. (1974), 415 U.S. 36, 53-54, 39 L. Ed. 2d 147, 161, 94 S. Ct. 1011, 1022—which contained dicta stating that an “arbitrator has authority to resolve only questions of contractual rights,” not statutory rights. Alexander also contained language that strongly doubted the competence and propriety of an arbitrator’s addressing and applying statutory rights. (See Alexander, 415 U.S. at 56-57, 39 L. Ed. 2d at 163, 94 S. Ct. at 1024.) Nonetheless, the Gilmer Court upheld Southland and rejected any implication from the dicta in Alexander that an arbitrator does not have the authority or competence to resolve statutory claims, as long as the arbitration clause covers such claims. Gilmer, 500 U.S. at 35, 114 L. Ed. 2d at 43, 111 S. Ct. at 1657.

Because the contract in the present case clearly involves interstate commerce, and because plaintiff raises essentially the same claim as did the plaintiff in Southland (although based on an Illinois statute, not a California statute), Southland controls our result. (See Yates v. Doctor’s Associates, Inc. (1990), 193 Ill. App. 3d 431, 549 N.E.2d 1010; Konewko v. Kidder, Peabody & Co. (1988), 173 Ill. App. 3d 939, 528 N.E.2d 1.) The trial court thus correctly held that plaintiff must initially submit her claim to arbitration.

Although Southland requires this result, we want to ensure that plaintiff has a chance to present her statutory claims under the Act. We earlier held that the Act is part of the contract in the present case. However, we realize that the Georgia arbitrator (or any arbitrator, for that matter) might choose not to accept our interpretation of the contract. Moreover, as previously noted, in cases where it is unclear whether the claim falls within the arbitration clause, the arbitrator should initially decide if the claim is arbitrable. Donaldson, 124 Ill. 2d at 447-48, 530 N.E.2d at 45.

III. Conclusion

For the reasons stated, we vacate the trial court’s order dismissing plaintiff’s complaint and direct that the circuit court proceedings be stayed until the parties have arbitrated this matter. If the arbitrator decides that plaintiff’s claims under the Act are not arbitrable and therefore refuses to address those claims, then the circuit court should lift the stay and proceed with this case. However, if the arbitrator decides that plaintiff’s claims under the Act are arbitrable — in effect, accepting this court’s holding that the Act is part of the contract between the parties — and makes a decision based thereon (regardless of what ultimate decision the arbitrator reaches), then the circuit court should dismiss the present action.

Our remand will provide defendant the benefit of its bargain by allowing it to arbitrate all claims arising out of the agreement, but will not preclude plaintiff from bringing her claims under the Act in circuit court if the arbitrator does not address them.

Vacated and remanded with directions.

KNECHT and LUND, JJ., concur.


author: JUSTICE GREEN

text:
      In re MARRIAGE OF BRENDA DIANNE HACKER, Petitioner-Appellant and Cross-Appellee, and ROBERT H. HACKER, Respondent-Appellee and Cross-Appellant.
    Fourth District
    No. 4—92—0190
    Opinion filed December 17, 1992.
    Rehearing denied February 2, 1993.

      Lori S. Cowdrey and Charles J. Gramlich, both of Gramlich Law Offices, P.C., of Springfield, for appellant.

      James Alexander Pappas, of Springfield, for appellee.
   JUSTICE GREEN

delivered the opinion of the court:

On August 16, 1990, the circuit court of Sangamon County entered a bifurcated judgment dissolving the marriage of petitioner Brenda Dianne Hacker and respondent Robert H. Hacker, reserving contested issues of child support and property distribution. On December 19, 1991, the circuit court entered the second-half of the bifurcated judgment from which petitioner appeals and respondent cross-appeals. Petitioner contends the court erred in (1) awarding respondent as his nonmarital property his contribution to the marital home; (2) failing to award her a greater share of the marital estate and deferring payment of her share for an allegedly unreasonable period of time; and (3) denying her request that respondent pay a portion or all of her attorney fees. Respondent contends the court erred in (1) dividing his tax-deferred compensation proceeds based on a present cash value, and (2) awarding the parties joint custody of their three minor children.

The joint custody award provided that the physical custody of the three young children would shift between the parents on a weekly basis subject only to special provisions for holiday and summertime visitation. Considering the ages of the children and the financial resources of the parents, we determine this arrangement was error. We also find error in the distribution of the marital estate. We must remand for correction of these errors. At that time, the correction may best be made by making other adjustments to the determination of custody and the other aspects of the December 19, 1991, order. Accordingly; we reverse that order except in regard to petitioner’s request for attorney fees and remand for further proceedings.

Because the aspect of the joint custody order shifting the children from one parent to another weekly is at the heart of our concern, we consider that question first. Section 602.1(c) of the Illinois Marriage and Dissolution of Marriage Act (Act) sets forth the criteria for an award of joint custody in these words:

“The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:
(1) the ability of the parents to cooperate effectively and consistently with each other towards the best interest of the child;
(2) The residential circumstances of each parent; and
(3) all other factors which may be relevant to the best interest of the child.” Ill. Rev. Stat. 1991, ch. 40, par. 602.1(c).

The evidence established that the parties were married on September 17, 1983, and had three children, now ages three, five, and seven. Petitioner is 30 years old, earning an annual gross salary of $28,000 as a registered nurse. Petitioner worked full-time as a registered nurse throughout the marriage. Respondent is 36 years old, earning an annual salary of $36,000 as a systems analyst for the Illinois Department of Revenue. Petitioner testified regarding respondent’s alleged bad temper with the children and his excessive methods of discipline. Respondent testified regarding petitioner’s long work hours, and alleged indifference toward the needs of the children. Each party presented corroborating witnesses, testifying they believed that party was a fit and good parent.

This court has set aside joint custody orders entered pursuant to section 602.1 of the Act in the cases of In re Marriage of Bush (1989), 191 Ill. App. 3d 249, 547 N.E.2d 590, and In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 509 N.E.2d 707, where the evidence indisputedly showed that the parents had too much animosity to be able to cooperate. Here the evidence is not the same as there. The circuit court could have concluded that both parties were reasonably loving and capable parents who were sufficiently able to cooperate even though each party attempted to prove the other was less capable.

Neither party requested joint custody. The court initiated the idea as it is empowered to do by section 602.1(b) of the Act (Ill. Rev. Stat. 1991, ch. 40, par. 602.1(b)). The decision to order joint custody was not necessarily erroneous but the decision to have the children live with one parent one week and another the next week was error. No testimony concerning the workability of such a program was presented. We conclude the constant shifting would obviously be detrimental to the minor children, who were seven, five, and three years of age at the time of the decree. Moreover, each home would have to make arrangements and undergo many of the same expenses that would arise if the children were there on a permanent basis. On remand, the court must reconsider the custody arrangement. We are not prohibiting a joint custody order, but the order must give some permanency to the physical custody of the children and not attempt to equalize the time the children spend with each parent.

We now turn to the portions of the decree concerning property. Initially, petitioner maintains the trial court erred in awarding respondent $14,800 from the equity in the marital residence as his non-marital property. The parties purchased it in July 1983, approximately two months prior to their marriage. The title to the marital residence was placed in joint tenancy in his name and her maiden name. The parties lived in that home throughout the marriage. At the time of the hearing, the estimated market value of the marital residence was $85,500 with a mortgage balance of $39,400. There is no dispute that prior to the parties’ marriage, respondent paid the entire down payment for the purchase of the marital residence, totaling approximately $14,800, with a check drawn from an account held solely in his name. Petitioner, however, maintains that all the equity in the marital residence was marital property and respondent was not entitled to be reimbursed for the $14,800 down payment when he failed to trace the down payment to nonmarital funds by clear and convincing evidence, and failed to rebut the presumption that the down payment was a gift to the marital estate.

At the hearing respondent testified that prior to the parties’ marriage he sold his nonmarital residence and placed the proceeds of that sale in a bank account held solely in his name. Initially, respondent testified he sold his nonmarital residence for $14,866.50, which he used entirely for the down payment of the parties’ marital residence. Respondent claimed petitioner contributed nothing to the down payment of the marital residence. However, the evidence later showed he sold his nonmarital residence for $8,951.82. Respondent then explained that, in addition to the sale proceeds he used his income tax refunds he accumulated prior to the parties’ marriage to make the $14,866.50 down payment on the marital home. Respondent’s bank statements for the account held solely in his name were introduced into evidence, indicating that on June 27, 1983, he had a balance of $15,832.51, and on July 27, 1983, he had a balance of $2,407.55. In addition, respondent introduced into evidence the check he used to pay the down payment of the marital residence, which was drawn from the account he held prior to the parties’ marriage.

Respondent also testified that he did not intend to make his down payment to the marital residence a gift to the marital estate. On cross-examination, respondent testified that he and petitioner bought the marital residence in contemplation of marriage and intended to live there after their marriage. Respondent admitted he never told petitioner he intended to be reimbursed the $14,800 in the event the marriage did not last, and he did not have any reservations about the amount of money he contributed to the marital residence. As part of the property distribution the court “awarded [respondent] as non-marital property his down payment proceeds contributed to the marital residence of $14,800.”

Initially we note:

“The court, in reviewing a division of property, is not justified in substituting its discretion for that of the trial court. [Citation.] In determining whether the trial court abused its discretion in dividing property subsequent to dissolution proceedings, the question is whether the trial court acted arbitrarily without the employment of conscientious judgment or exceeded the bounds of reason and ignored recognized principles of law so that substantial injustice resulted.” In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 268, 511 N.E.2d 156, 165.

Section 503(c)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides as follows:

“When marital and non-marital property are commingled by contributing one estate of property into another resulting in a loss of identity of the contributed property, the classification of the contributed property is transmuted to the estate receiving the contribution ***.” (Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(1).)

Section 503(c)(2) of the Act provides for reimbursement for contributions that were transmuted, as follows:

“When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which [1] is not retraceable by clear and convincing evidence, or [2] was a gift ***.” (Emphasis added.) Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(2).

The Illinois Supreme Court in In re Marriage of Rogers (1981), 85 Ill. 2d 217, 223, 422 N.E.2d 635, 638, stated, regarding property owned by both spouses, that:

“[A] marital residence owned by both spouses, even if one spouse has furnished all of the consideration for it out of non-marital funds, will be presumed ‘in fact’ as marital property, absent convincing rebutting evidence.”

This court in In re Marriage of Nagel (1985), 133 Ill. App. 3d 498, 478 N.E.2d 1192, noted that when title to the marital residence is taken in joint tenancy, a presumption arises that the marital residencé was intended to be a gift to the marital estate, and absent evidence to rebut the presumption, the contributor of nonmarital funds to the marital residence is not entitled to reimbursement.

Respondent maintains that his nonmarital contribution to the marital residence could not have been transmuted to marital property under section 503(c)(1) of the Act, because a marital estate did not exist when the parties purchased the marital residence two months prior to their marriage. Consequently, respondent claims he was entitled to reimbursement without having to rebut a presumption of a gift to the marital estate. We disagree. In the case of In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 393 N.E.2d 1065, the appellate court concluded that real estate, there purchased less than two months prior to the parties’ marriage in contemplation of marriage with the intent of using it as the marital residence, was marital property. The Stallings court noted as significant that all the equity in the marital residence, other than the down payment, which was furnished from the funds of the wife, resulted from payments and improvements made with marital funds.

Here, similar to Stallings, the marital residence was purchased in contemplation of marriage, and all the equity in the home, other than the down payment, was accumulated with marital funds. Consequently, even though the marital residence was purchased prior to the marriage, it was part of the marital estate and pursuant to section 503(c)(1) of the Act, the nonmarital funds contributed by respondent to purchase the marital home commingled the properties and transmuted his contribution into marital property. In order for respondent to be entitled to reimbursement he must trace his contribution by clear and convincing evidence and offer evidence sufficient to rebut the presumption of gift.

The evidence at the hearing indicates that only $8,051.82 of the down payment could be traced to the sale proceeds from respondent’s nonmarital residence. Respondent’s bank statements established he had sufficient funds in his account to pay for the down payment; however, as petitioner points out, there appear to have been some deposits in that account from checks from Memorial Medical Center, where she was employed as a registered nurse. In any event, we conclude the evidence was insufficient to rebut the presumption that respondent’s contribution to the marital residence was a gift to the marital estate.

The only evidence offered by respondent to rebut the presumption of gift was his testimony that at the time the parties purchased the marital residence he did not intend to make a gift of his contribution. Respondent admitted he never told petitioner that he expected to be reimbursed for his contribution in the event of a breakup. The evidence also indicates that the mortgage payments for the house and the real estate taxes were automatically deducted from the parties’ joint bank account, and that both parties paid household expenses and home improvements.

The instant case is similar to Nagel, where that respondent claimed he overcame the presumption of gift by testifying that the lending institution required both parties’ names on the deed, and that he had not intended to make a gift to the marital estate of his contribution to the marital residence by placing the residence in joint tenancy. This court disagreed and affirmed the order of the circuit court finding that respondent failed to negate the presumption of gift by clear and convincing evidence. Accordingly, here respondent failed to offer evidence sufficient to rebut the presumption that the marital residence was a gift to the marital estate, and therefore he was not entitled to be reimbursed for his contribution to the marital residence.

Next, petitioner challenges the court’s distribution of the marital estate. In dividing the parties’ property, the court awarded various items of personal property to each party as his or her nonmarital property and as his or her share of the marital property. The parties’ greatest asset was the marital home, which had approximately $45,600 in equity. As already discussed, the court awarded respondent as nonmarital property his down payment to the marital residence. In addition, the court awarded respondent possession of the marital residence. The court divided $30,800, the remaining equity in the residence, by awarding petitioner $12,500, necessarily leaving respondent approximately $18,300 as his share in the equity The court ordered that petitioner’s share in the equity “plus statutory interest shall be paid if and when the residence is sold but in no event later than 15 years from date of Judgment in this cause.”

The parties’ second greatest asset was respondent’s deferred compensation proceeds which had a present cash value of $26,401.38. The court awarded petitioner $10,000 of those proceeds, “which shall be paid at [respondent’s] option either by segregation of funds from the account or within 8 years from date of Judgment in this cause plus statutory interest.” In addition, petitioner was awarded her IRA, which had a value of $5,362.68, and respondent was awarded his pension plan, which had a value of $15,935.10.

Section 503(d) of the Act requires the court to divide marital property in “just proportions” considering all relevant factors. (111. Rev. Stat. 1991, ch. 40, par. 503(d).) “The touchstone of apportionment of marital property is whether the distribution is equitable in nature. [Citation.] Mathematical equality is not required; just proportions do not mean equal amounts.” (Wade, 158 Ill. App. 3d at 268, 511 N.E.2d at 165.) Some of the factors under section 503(d) of the Act relevant in dividing the marital property here include:

“(2) [T]he value of the property set apart to each spouse;
(4) the relevant economic circumstances of each spouse when the division of property is to become effective, including the desirability of awarding the family home, or the right to live therein for reasonable periods, to the spouse having custody of the children;
(7) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties; [and]
(11) the tax consequences of the property division upon the respective economic circumstances of the parties.” Ill. Rev. Stat. 1991, ch. 40, pars. 503(d)(2), (d)(4), (d)(7), (d)(11).

Essentially, petitioner maintains she should have been awarded a greater share of the marital estate, namely one-half of all the equity in the marital home; and that the deferred payment of her share deprived her of any means of providing a home for her children. Because we have already decided the court erred in finding that $14,800 in home equity was respondent’s nonmarital property, on remand the court will have to award petitioner a greater share in the equity on the basis that all $45,600 was marital property. A question remains as to whether the court abused its discretion in deferring payment of petitioner’s share in the equity up to 15 years, and deferring payment of her share of respondent’s deferred compensation up to eight years.

Deferred payment of equity in the marital home until the children reach majority and the home is sold has been upheld when the marital home is awarded to the custodial parent. (In re Marriage of De Bat (1984), 127 Ill. App. 3d 463, 468 N.E.2d 1348.) However, in the case of In re Marriage of Riech (1991), 208 Ill. App. 3d 301, 566 N.E.2d 826, this court deemed it an abuse of discretion for the trial court to defer partial payment of that petitioner’s interest in the marital home until the parties’ quadriplegic son no longer resided in the marital home. The Rieeh court distinguished the facts there from the usual situation where the custodial parent of a minor child had possession of the marital home and division of the equity in that home was deferred until the child reached majority. In addition, the Riech court noted that Illinois courts criticize the division of marital property where the time for payment is indefinite or involves a possibility that a party may not receive payment within his lifetime.

Here, the court’s plan involves a definite payment time, and there is no reasonable possibility that petitioner will not receive payment in her lifetime. Respondent will be solely responsible for paying the mortgage on the home and all the household expenses, likely leaving him in a financial position where he will be unable to pay petitioner a large sum of money. However, he is earning a greater income and has the benefit of living in the marital home building more equity. The court properly recognized the desirability of keeping the children in the marital home; however, even if the weekly alternating custody schedule were upheld, the children would also have needed a decent place to live while in the custody of petitioner.

The court’s payment plan leaves petitioner without a home and under the decree left her without a substantial share of the marital estate for many years. In the context of the decree that was entered, this was error. On remand the court must revise the marital division and reconsider the disposition of the house. Unless respondent is to have the major portion of the physical custody of the children, an award whereby he receives the house for an extended period is not likely to be proper unless substantial sums from the marital estate are awarded to petitioner.

On cross-appeal, respondent claims the court erred in awarding petitioner $10,000 of his tax-deferred compensation proceeds without considering the tax consequences. In particular, respondent maintains the court erred in considering the present value of the proceeds without considering the actual taxable value of the amount when withdrawn. The evidence indicates that respondent’s tax-deferred compensation plan had an account balance of $26,401.38, and that the proceeds could only be withdrawn at retirement, termination or upon a showing of hardship. Respondent testified that he did not plan to terminate his position, and he could not retire until age 56. Furthermore, respondent testified that a dissolution of marriage did not qualify as a hardship. The court ordered the $10,000 to be paid at respondent’s option of either segregating the funds from the account, or within eight years from the date of judgment.

Respondent does not claim that petitioner’s $10,000 share of the proceeds cannot be segregated into another account until respondent withdraws the proceeds. Moreover, considering respondent’s greater income and other property, including his pension plan worth approximately $15,000, the court did not abuse its discretion in awarding petitioner’s share based on a present cash value. However, we are reversing this award so that on remandment the court will have the maximum flexibility in structuring a fair division of marital property which conforms with the situation of the parties.

Last, petitioner maintains the court erred in refusing to order respondent to pay part or all of her attorney fees. Petitioner maintains that she incurred $13,928.39 in attorney fees and, because of the disparity in the parties’ income, respondent should be liable to pay some or all of those fees. Section 508(a)(3) of the Act provides that the trial court may order either party to pay a reasonable amount for attorney fees necessarily incurred by the other party in any proceeding under the Act. (Ill. Rev. Stat. 1991, ch. 40, par. 508(a)(3).) An award of attorney fees is justified where the spouse seeking the relief demonstrates (1) a financial inability to pay; and (2) the ability of the other spouse to pay. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 483 N.E.2d 1229.) Here, although there was evidence that respondent earned more money than petitioner, there was no evidence of petitioner’s inability to pay her attorney fees and respondent’s ability to pay all or a portion of those fees. In addition, the petitioner testified that prior to the dissolution of the parties’ marriage, she withdrew $2,500 in marital funds to pay a portion of her attorney fees. Accordingly, the court did not abuse its discretion in ordering each party to pay his or her own attorney fees. This portion of the decree on appeal will stand because the redivision of property we order will place petitioner in a better financial position than under the instant decree.

Accordingly, we reverse all portions of the December 19, 1991, decree except that in regard to attorney fees, which we affirm. We remand to the circuit court of Sangamon County for a rehearing at which the parties may present additional evidence. The December 19, 1991, decree made no provision for child support. As the question of custody is reopened, the court may reconsider that question.

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

STEIGMANN, P.J., and KNECHT, J., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS D. TERNEUS, Defendant-Appellant.
    Fourth District
    No. 4—92—0383
    Opinion filed December 30, 1992.
    Rehearing denied February 24, 1993.

      Daniel D. Yuhas and Lawrence J. Essig, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Norbert J. Goetten, Robert J. Biderman, and Timothy J. Londrigan, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE STEIGMANN

delivered the opinion of the court:

In January 1992, the State charged defendant, Thomas D. Terneus, with aggravated criminal sexual assault (Ill. Rev. Stat. 1991, ch. 38, par. 12—14(b)(1)). On March 24, 1992, the date the case was set for jury trial, defendant pleaded guilty as charged pursuant to an agreement that the State would recommend a sentence of 11 years in prison, to be served concurrently with a five-year prison sentence on an unrelated forgery charge. The trial court accepted defendant’s guilty plea and sentenced him as the parties agreed. The next day, the court entered a written judgment order which, in pertinent part, ordered that “defendant pay the costs of these proceedings.” On March 30, 1992, defendant filed a motion to withdraw his guilty plea. The court later conducted a hearing on that motion and denied it. Defendant appeals, arguing that the trial court (1) denied him procedural due process by entering a money judgment for costs without notice following his guilty plea, and (2) imposed an excessive sentence.

We affirm.

I. Imposition Of Costs

Section 13 of “An Act to revise the law in relation to criminal jurisprudence” (Ill. Rev. Stat. 1991, ch. 38, par. 180—3) (hereinafter the costs statute) covers costs in criminal cases and reads, in pertinent part, as follows: “When any person is convicted of an offense under any statute, or at common law, the court shall enter judgment that the offender pay the costs of the prosecution.” (Emphasis added.) Pursuant to this statute, the trial court imposed costs upon defendant shortly after he pleaded guilty and thus stood “convicted of an offense.” Defendant correctly points out that the court made no mention of the costs statute or the assessment of costs when it accepted his guilty plea and sentenced him; instead, the first indication that the court assessed costs appeared in its written order entered the next day concerning the judgment and sentence.

Defendant argues that the trial court denied him procedural due process because it entered a money judgment against him without notice. Defendant further argues that this judgment improperly modified the plea agreement reached by defendant and the State. We disagree with both claims.

A. Procedural Due Process on Imposing Costs of Prosecution

Defendant primarily cites People v. Estate of Scott (1977), 66 Ill. 2d 522, 363 N.E.2d 823, in support of his claim that imposing costs here violated procedural due process. In Estate of Scott, the trial court accepted defendant’s guilty plea to attempt (robbery) and sentenced her to probation. The State moved for judgment for costs pursuant to the costs statute (see Ill. Rev. Stat. 1975, ch. 38, par. 180—3) in the amount of $60. The trial court denied that request and held that the statutory cost scheme was unconstitutional. Estate of Scott, 66 Ill. 2d at 524, 363 N.E.2d at 824.

The State appealed, and the supreme court reversed. In the process, the supreme court rejected all constitutional objections defendant made regarding the costs statute. One of those claims was that, as here, the statute denied the defendant procedural due process because it failed to provide for a hearing prior to the entry of a judgment for costs. The court addressed this claim as follows:

“A defendant against whom such a motion is directed has the right to resist the entry of judgment on any grounds which appear to be appropriate, and defendant did so in this case. Although the statute is silent on the subject, no reason appears why the circuit court, in the event of objection to the judgment, could not conduct a hearing to the extent necessary to decide the issues, and, indeed, the circuit court did so. We hold that nothing in the statute served to deny procedural due process.” Estate of Scott, 66 Ill. 2d at 526-27, 363 N.E.2d at 825.

We find nothing in Estate of Scott which supports defendant’s argument here. We note that the costs statute leaves no discretion in the trial court because it directs that court to give judgment against the convicted offender to pay the costs of the prosecution. (Ill. Rev. Stat. 1991, ch. 38, par. 180—3; People v. Vaughn (1979), 75 Ill. App. 3d 121, 123, 394 N.E.2d 19, 20; People v. Barringer (1974), 22 Ill. App. 3d 168, 169, 317 N.E.2d 331, 332.) Thus, the costs statute required the trial court here to enter the order it did on March 25, 1992, directing defendant to pay court costs, and the court could not do otherwise.

We hold that a defendant’s notice of the requirement that the trial court impose costs upon his conviction is premised upon the well-settled doctrine of law that one is presumed to know the law and ignorance of it is no excuse. (People v. Ivy (1985), 133 Ill. App. 3d 647, 653, 479 N.E.2d 399, 403.) For example, if the law presumes that one knows that possessing a shotgun having a barrel less than 18 inches in length is illegal, and the law will reject any effort by a defendant to premise a defense to such a charge upon her claimed ignorance (Ivy, 133 Ill. App. 3d at 653, 479 N.E.2d at 403), then surely the law can and should presume that persons convicted of crimes know that they will suffer collateral consequences as a result of those convictions, such as the requirement that they pay costs of prosecution. The law is also well settled that imposing costs does not punish a defendant in addition to the sentence he receives, but is instead a collateral consequence. People v. DuMontelle (1977), 49 Ill. App. 3d 187, 192, 364 N.E.2d 95, 99, rev’d on other grounds (1978), 71 Ill. 2d 157, 374 N.E.2d 205 (“[i]n contrast to fines which are punitive, costs of prosecution are purely compensatory”).

Finally, we note that Supreme Court Rule 402(a) (134 Ill. 2d R. 402(a)) does require a trial court to inform a defendant who is offering to plead guilty of the minimum and maximum sentences prescribed by law. However, that rule does not require the trial court to inform a defendant of collateral consequences, such as paying the costs of prosecution. “It is well settled that a trial court is not responsible for advising an accused of the civil or collateral consequences of a guilty plea. [Citations.] Thus, the court’s failure to admonish defendant of the revocation of his driving privileges is of no consequence ***.” People v. Smith (1989), 188 Ill. App. 3d 387, 392, 544 N.E.2d 413, 416; see also People v. Thomas (1968), 41 Ill. 2d 122, 125-26, 242 N.E.2d 177, 178-79 (discussing statutory predecessor to Rule 402 which required the trial court to “fully explain[ ] to the accused the consequences of entering [a guilty] plea” before accepting that plea (Ill. Rev. Stat. 1957, ch. 38, par. 732) and holding that the trial court need not inform the guilty-pleading defendant of collateral consequences in order to comply with that statute); People v. Jenkins (1970), 128 Ill. App. 2d 351, 355, 262 N.E.2d 105, 107.

Based on the foregoing authority, we hold that defendants pleading guilty to criminal charges are on notice that the trial court must and will impose costs. We further hold that a trial court need not admonish a defendant who has offered to plead guilty that the court will impose costs if it accepts that guilty plea.

Considering the above holdings, we reject defendant’s claim in the present case that he was denied procedural due process because the trial court did not specifically provide for a hearing before it imposed costs. We first note that defendant never asked for such a hearing, even though both his motion to withdraw his guilty plea and the hearing thereon occurred after the trial court entered its written order imposing court costs. Second, defendant nowhere explains the nature of the hearing to which he claims to be entitled. After all, if the imposition of costs is mandatory, as we have previously noted, then requiring the trial court to routinely conduct a hearing on that issue is to require a nugatory act. We cannot permit the limited judicial resources of this State to be so expended.

B. Defendant’s Claim That Imposing Costs Improperly Modified the Plea Agreement

Defendant next argues that the trial court’s imposition of costs “in effect improperly modified the plea agreement reached between the defendant and the prosecution.” In Barringer, the court rejected the defendant’s argument that the trial court failed to comply with Supreme Court Rule 402(d)(1) (see 50 Ill. 2d R. 402(d)(1)) “ ‘when it modified the plea agreement by insisting that the sentence include the defendant’s payment of court costs.’ ” (Barringer, 22 Ill. App. 3d at 168, 317 N.E.2d at 331.) The appellate court held that the trial judge committed no impropriety by “merely inserting] the condition that the defendant pay the court costs” because “the trial judge was not only authorized but required to have the defendant pay the court costs.” (Barringer, 22 Ill. App. 3d at 169, 317 N.E.2d at 332.) Defendant argues that the Barringer court erred in its conclusion and that we should decline to follow it. We are unpersuaded.

Because we earlier held that the law places all defendants on notice that they will be assessed costs upon conviction, we reject defendant’s argument that “the trial court’s action in modifying the plea agreement by adding a judgment for costs without notice was error.” Barringer was decided correctly, and we follow it without reservation.

II. Defendant’s Claim That His Sentence Was Excessive

Defendant last argues that his 11-year prison sentence is excessive. In support, he argues that (1) his sentence is “nearly double the minimum sentence for the offense” of which he was convicted, and (2) the trial court gave his prior nonviolent criminal history too much weight. Defendant also argues that other defendants have received lesser sentences from other courts for factually similar offenses. We reject all of these arguments.

The short answer to all of defendant’s arguments is that his 11-year prison sentence is precisely what he bargained for, thus es-topping him from challenging this sentence on appeal. (People v. Willer (1985), 132 Ill. App. 3d 63, 64-65, 476 N.E.2d 1385, 1387.) We also note that the State’s Attorney’s factual basis for defendant’s guilty plea revealed that his victim was a one-month-old child for whom defendant was babysitting when he performed an act of sexual penetration on the child by inserting some object repeatedly into the child’s rectum, causing it to bleed. The prosecutor also stated that defendant told a fellow inmate in the Macon County jail that he masturbated to ejaculation while inserting this object into the victim’s rectum. The record also reveals that defendant had two convictions for forgery and two convictions for driving while license revoked.

However, we choose to address defendant’s claims on the merits because of the authority he cites in support. Defendant concedes that a reviewing court will not disturb a sentence on appeal unless the trial court has abused its sentencing discretion (People v. Cox (1980), 82 Ill. 2d 268, 275, 412 N.E.2d 541, 545; People v. Harris (1989), 187 Ill. App. 3d 832, 843, 543 N.E.2d 859, 865). Defendant nonetheless primarily bases his claim that his sentence was excessive upon a comparison of his case with several other reported decisions of defendants convicted of aggravated criminal sexual assault who received less severe sentences than defendant received. Defendant argues that “[i]n light of the aforementioned cases, which are factually similar and in some instances more severe than in the instant case, the sentence imposed here is excessive.”

Defendant finds support for this novel analytical approach in Harris (187 Ill. App. 3d at 844-46, 543 N.E.2d at 866-67), which defendant accurately describes as follows:

“In Harris, the appellate court considered a claim of excessiveness and found it imperative to review other similar cases to determine whether the circumstances there dictated a contrary result. (Harris, 543 N.E.2d at 866-867.) A review of the cases analyzed in Harris compels the conclusion that a contrary result is necessary here and that the sentence indeed was excessive.”

With all due respect to our sister court, we reject the Harris analytical approach to claims that a sentence is excessive.

In Harris, the court first noted the restraints imposed by the Illinois Supreme Court upon reductions of prison sentences by appellate courts (Harris, 187 Ill. App. 3d at 843-44, 543 N.E.2d at 865) but then found the appellant’s 25-year sentence excessive, vacated it, and remanded for resentencing. In reaching its conclusion that the sentence was excessive, the court cited seven other aggravated criminal sexual assault cases which it described as involving similar facts but in which “the sentences have not even closely paralleled the sentence imposed here.” (Harris, 187 Ill. App. 3d at 845, 543 N.E.2d at 866.) However, nowhere in Harris does the court explain the authority for this analytical approach — of comparing other sentences imposed in allegedly similar cases — when an appellate court determines whether the trial court in the particular case on appeal has abused its discretion by imposing an excessive sentence.

In People v. Wilson (1991), 143 Ill. 2d 236, 250-51, 572 N.E.2d 937, 944, the supreme court rejected the claim of a defendant, convicted of reckless homicide, that his three-year prison sentence was excessive. In doing so, the supreme court wrote the following:

“The determination of the appropriate sentence to impose in a given case is a matter within the sound discretion of the trial judge and his decision will not be overturned absent an abuse of that discretion. (People v. James (1987), 118 Ill. 2d 214, 228[, 514 N.E.2d 998, 1004].) After carefully reviewing the record of the sentencing hearing, we conclude that the trial judge properly considered appropriate factors in mitigation, such as defendant’s background and his rehabilitative potential, and that the sentence adequately reflects the seriousness of the offense. Defendant’s sentence was less than the five-year statutory maximum for the offense. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—8—1(a)(6).) We thus find no abuse of discretion in the trial judge’s sentencing of defendant.” Wilson, 143 Ill. 2d at 250-51, 572 N.E.2d at 944.

In People v. Steppan (1985), 105 Ill. 2d 310, 323, 473 N.E.2d 1300, 1307, the supreme court similarly rejected the appeal of a convicted burglar, who argued that his sentence was excessive, and wrote the following:

“As this court has repeatedly emphasized, a reviewing court should not substitute its judgment or preference as to punishment for that of the sentencing court. The trial court is ordinarily best situated to tailor a sentence or other disposition to the needs of the case. It balances the appropriate factors in imposing sentence, and the exercise of this discretion should not be altered upon review absent abuse of that discretion.” (Emphasis added.)

In the above two quotations, the Illinois Supreme Court does not even hint that an appellate court could appropriately compare the allegedly excessive sentence in the case before it with sentences reported in totally unrelated cases. Instead, both of these excerpts reveal that the supreme court continues to emphasize its theme that appellate courts ought not second-guess trial courts as to what constitutes an appropriate sentence in a given case. Until and unless the supreme court specifically authorizes appellate courts to engage in a Harris-like comparative analysis of what other defendants received in allegedly similar cases, we decline to do so.

We add that we do not soon expect any such authorization from the supreme court because the analytical approach taken in Harris is erroneous. That approach (and the argument made by defendant in the case before us) implies that the lesser 'sentences imposed in the seven cases cited in Harris were appropriate and that the 25-year sentence imposed in Harris was not. We disagree with that implication and note with approval the dissenting opinion of Justice Green in a similar context in which the majority opinion spoke of the “appearance, and oftentimes the fact” of “inequities” arising from disparate sentences. (People v. Cox (1979), 77 Ill. App. 3d 59, 62, 396 N.E.2d 59, 63.) Justice Green appropriately noted that “[n]o indication has been shown of a legislative intent to lessen disparity of sentences by equating all sentences to those that would be imposed by the most lenient trial courts or approved by the most lenient courts of review.” Cox, 77 Ill. App. 3d at 77, 396 N.E.2d at 73 (Green, J., dissenting), rev’d (1980), 82 Ill. 2d 268, 412 N.E.2d 541.

Furthermore, the oft-cited standard of review of sentences appropriately recognizes that no two cases are ever truly “the same,” despite how similar they might at first appear. The written words of the record rarely if ever fully capture the intricacies that work into the sentencing court’s judgment, including but not limited to that court’s direct observations of the defendant’s demeanor, as well as the victim’s pain and ability to cope.

Finally, the “sample” of appellate court opinions used by the Harris court in an attempt to justify its sentence reduction is skewed because it fails to include appeals by defendants convicted of aggravated criminal sexual assault whose excessive sentence claims were rejected by appellate courts in orders entered pursuant to Supreme Court Rule 23 (134 Ill. 2d R. 23). The appellate court decides a significant percentage (and probably a majority) of criminal cases in Rule 23 orders, particularly when the defendant claims on appeal that he received an excessive sentence. Thus, if the Harris court had considered every case of aggravated criminal sexual assault in which a claim of excessive sentence were raised had been considered by the Harris court, it might not have found the 25-year sentence before it on appeal nearly so egregious after all.

Harris is further skewed because not all defendants who might have received a sentence similar to that in Harris or in the present case appeal their sentences. The result of the Harris approach is to reward defendants who “comb the books” to find a handful of cases presenting lesser sentences for the same statutory offense, thus enabling those defendants to then argue that the lesser sentences they found become the effective maximum sentences a trial judge can impose without expecting a remand for resentencing.

We note that our rejection of the Harris analysis is fully consistent with decisions predating Harris from the Second and Third District Appellate Courts. In People v. Conaway (1981), 101 Ill. App. 3d 202, 204, 427 N.E.2d 1302, 1304, the third district affirmed the trial court’s refusing to consider lesser sentences imposed on another defendant who had pleaded guilty to delivery of controlled substances (as had the defendant in Conaway) and whose convictions arose from the same ongoing undercover investigation. In People v. Brown (1982), 103 Ill. App. 3d 306, 309, 431 N.E.2d 43, 46, the second district rejected defendant’s challenge to his sentence imposed in Du Page County, claiming it was disparate from sentences imposed in Kane County for similar offenses. The Brown court wrote the following:

“The disparity between the sentences imposed *** by the trial court in Kane County and the sentences imposed by the trial court in Du Page County in this case is no indication that the Du Page County sentences were excessive any more than it is an indication that the sentences imposed in Kane County were insufficient.” (Brown, 103 Ill. App. 3d at 309, 431 N.E.2d at 46.)

Although Harris was decided many years after Brown and Con-away, the Harris court neither discusses nor acknowledges those decisions.

In conclusion, we adhere to the views this court expressed in People v. Sanchez (1989), 189 Ill. App. 3d 1011, 1018-19, 546 N.E.2d 268, 273 (citing with approval the views expressed by then-appellate court Justice Heiple in People v. King (1981), 102 Ill. App. 3d 257, 259-61, 430 N.E.2d 292, 294-95):

“In short, a sentence is supposed to fit both the crime and the criminal and to take into account the interests of the public in the administration of criminal justice. There is no basis in the law for a claim that two defendants involved in the same offense must receive the same sentence.”

We add that there is even less basis for such a claim when the defendants who allegedly received disparate sentences were not involved in the same offense.

III. Conclusion

For the reasons stated, we affirm the judgment of the circuit court.

Affirmed.

KNECHT and COOK, JJ., concur.