text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONNA KRUSZYNA, Defendant-Appellant.
    Second District
    No. 2 — 91—0279
    Opinion filed May 24, 1993.
    Rehearing denied July 20, 1993.

      G. Joseph Weller and Thomas A. Lilien, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Thomas E Baker, State’s Attorney, of Woodstock (William L. Browers and Lawrence M. Bauer, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendant, Donna Kruszyna, appeals the revocation of her conditional discharge for aggravated battery, contending (1) that the order of revocation must be reversed if her conviction for a subsequent offense of disorderly conduct is reversed, and (2) that she was denied due process of law at the revocation hearing. We reverse.

On January 31, 1990, the McHenry County State’s Attorney filed a three-count information against defendant, charging her with aggravated battery, resisting a peace officer, and assault. The aggravated battery count alleged that defendant caused bodily harm to Andrew Oparyk, a police officer, by kicking him in the groin on December 28, 1989.

Represented by the public defender, defendant pleaded guilty to aggravated battery on July 27, 1990. The other two counts were dismissed, and defendant was sentenced to six months’ conditional discharge, with a condition of four days’ incarceration.

On November 16, 1990, the State filed a petition to revoke defendant’s conditional discharge based upon her arrest for disorderly conduct on August 1, 1990. Following a jury trial, defendant was convicted of disorderly conduct and sentenced on December 4, 1990. That conviction is the subject of another pending appeal.

On December 5, 1990, defendant was summoned to respond to the petition to revoke her conditional discharge on the aggravated battery. The public defender who represented her on the disorderly conduct charge was appointed again. Defense counsel entered a denial and asked for a hearing date. The following exchange took place:

“THE COURT: The only proof you are going to have is the fact there is a certified copy of conviction. I don’t know what your defense is going to be.
MR. COOK [Defense counsel]: I have to speak with my client, Judge.
THE COURT: Are you going to come in and tell me she didn’t do it when she’s been convicted? That’s great.
The 7th, at 9 o’clock. Come back here Friday.”

A hearing on the petition was set for December 7.

On December 7, defense counsel informed the trial court that he had talked with defendant and that she would admit to the petition. The trial court accepted the admission. The proceedings on the petition were as follows:

“MR. COOK [Defense Counsel]: We continued it to today, and we are ready to — we are ready for a — to enter a plea or admit now to the petition.
I’ve spoken with Donna. If you remember, I wanted a few days to speak with her, and she would admit to the petition to revoke her conditional discharge, and we ask for a presentence investigation to be done and come back to court for sentencing.
THE COURT: All right. Give me an order. Defendant admits. Leave given to withdraw denial of the Defendant. Defendant now admits violating probation. Presentence ordered.”

Following a sentencing hearing on February 7, 1991, the trial court sentenced defendant to three years’ imprisonment.

Defendant first contends that the order revoking her conditional discharge must be reversed in the event that her conviction of disorderly conduct is reversed on appeal. Defendant correctly states the law (see People v. Hannah (1975), 31 Ill. App. 3d 1087, 1090; accord People v. Lopez (1979), 72 Ill. App. 3d 713, 717), and the State does not contest defendant’s assertion. This issue is moot based on the disposition entered in this appeal.

Secondly, defendant asserts that the revocation must be vacated in any event because defendant was not accorded due process of law at the revocation hearing. Defendant argues that the trial court accepted her admission summarily, without offering admonitions or making inquiries. We reverse.

The State first submits that defendant waived this issue for purposes of review because she failed to object at the hearing or to file a post-hearing motion raising the issue. Alternatively, the State argues that defendant’s claim must fail because she was entitled only to minimal due process at her hearing to revoke conditional discharge. We disagree with both of the State’s contentions.

Generally, both an objection at trial and a written post-trial motion raising an issue are necessary, in both jury and nonjury cases, to preserve an alleged error for review. (People v. Enoch (1988), 122 Ill. 2d 176, 186.) Enoch has been held to apply to probation revocation proceedings as well as to trials. (People v. Turner (1992), 233 Ill. App. 3d 449, 452.) However, Enoch announces several exceptions to the waiver rule, including plain error. Enoch, 122 Ill. 2d at 189-90.

Under Supreme Court Rule 615(a), or the “plain error” rule, a reviewing court may elect to consider errors that have not been properly preserved for review, if those errors affect substantial rights and fundamental fairness requires that errors be corrected. (134 Ill. 2d R. 615(a); People v. Brantley (1976), 43 Ill. App. 3d 616, 617-18.) In the case at bar, defendant alleges due process deprivations affecting her constitutional rights. Therefore, we elect to review those alleged errors under Rule 615(a). 134 Ill. 2d R. 615(a); People v. Cox (1990), 197 Ill. App. 3d 239, 241-42.

Defendant has the right to the same due process safeguards at a proceeding to revoke a conditional discharge as she would have at a hearing to revoke probation or supervision. (People v. Pennacchio (1991), 214 Ill. App. 3d 195, 198-99; Ill. Rev. Stat. 1991, ch. 38, par. 1005 — 6—4.) Although a probationer is entitled to due process of law at a probation revocation hearing (Gagnon v. Scarpelli (1973), 411 U.S. 778, 36 L. Ed. 2d 656, 93 S. Ct. 1756), it is well established that only “minimum requirements” of due process need be applied. (People v. Beard (1974), 59 Ill. 2d 220, 225; People v. Acevedo (1991), 216 Ill. App. 3d 195, 200.) This rule is based on the qualitative difference between a criminal prosecution and the revocation of probation. (People v. Grayson (1974), 58 Ill. 2d 260, 264-65.) A probation revocation hearing is not a proceeding in which guilt or innocence is to be determined. “It takes place only after the defendant has already been convicted, sentenced to probation, and then has violated the conditions of the probation.” People v. Allegri (1985), 109 Ill. 2d 309, 313.

Defendant acknowledges that Supreme Court Rule 402, which prescribes the actions to be taken prior to the trial court’s acceptance of a guilty plea, is not applicable to a revocation proceeding. (People v. Beard (1974), 59 Ill. 2d 220, 225-27.) Nevertheless, she asserts that the trial court should minimally have determined whether: (1) defendant knew the specific allegations in the petition; (2) defendant was aware of her right to a hearing with counsel present; (3) defendant’s admission was not based on any promises or coercion; and (4) defendant understood the consequences of her admission. People v. Followell (1987), 165 Ill. App. 3d 28, 31.

The State contends that Followell should be held to its facts and is not applicable to the case at bar. In Followell, five years had passed since the revocation petition had been filed. The defendant had been placed under supervision for drug treatment, and the reviewing court was uncertain whether the defendant had been coerced to “confess” to the contents of the petition. Given the lapse in time, the reviewing court was concerned that the defendant had not been questioned to determine whether he had read the charge and knew what specific allegations had been made.

It is true that in the instant case the petition was filed on November 16, 1990, and defendant admitted the petition on December 7, 1990, a time span of less than a month. However, the last time defendant received any admonitions or inquiries from the trial court was at her plea hearing on July 27, 1990, which occurred more than four months before the revocation hearing. It is arguable that the same concerns expressed by the Followell court are appropriate here.

We need not decide whether Followell applies to the facts before us, however, because even under a less stringent standard, we find that defendant was not afforded minimal due process. Due process at a probation hearing requires that the probationer have notice of the alleged violations and that the revocation follows a hearing at which the probationer had an opportunity to be heard, present evidence, confront witnesses, and be represented by counsel. (Acevedo, 216 Ill. App. 3d at 201.) In other words, due process requires a fair determination that the acts which formed the basis for the revocation petition did occur and that fairness be accorded a defendant during the proceedings. People v. Allegri (1984), 127 Ill. App. 3d 1041, 1046, aff’d (1985), 109 Ill. 2d 309; People v. Saucier (1991), 221 Ill. App. 3d 287, 291; Cox, 197 Ill. App. 3d at 243.

Applying these principles to the case at bar, we conclude that defendant’s revocation hearing was fundamentally unfair. Defendant was represented by counsel, the same public defender who represented her on the charge of disorderly conduct which was the underlying basis for the petition to revoke. Arguably, she had notice of the violation of her conditional discharge, having been tried and convicted on the disorderly conduct charge only three days before the hearing. However, the opportunity to be heard can hardly be said to have been afforded defendant, as she was never even addressed by the trial court. We are unable to find any case that stands for the proposition that due process requirements are met at a revocation hearing where the trial court addresses no comment whatsoever to the defendant.

The cases advanced by the State are distinguishable on this point. In Pennacchio, where revocation of supervision was reversed because the prosecutor failed to make promised recommendations to the trial judge, the trial court explained to the defendant before his admission that he was not bound by the agreement reached between the two parties. He then asked the defendant if he intended to admit the allegations contained in the petition to revoke his court supervision. When the defendant responded in the affirmative, the court asked him if he understood that by admitting the violation of the terms of the court supervision he waived his right to a hearing and that all that remained was for the court to decide the penalty to be imposed. Again, the defendant responded that he understood. The court then asked the defendant if he was freely and voluntarily admitting that he violated the terms of his court supervision. The defendant answered in the affirmative. Pennacchio, 214 Ill. App. 3d at 197-98; see also, e.g., Allegri, 109 Ill. 2d 309 (where the defendant’s insanity defense was rejected by the trial court); Acevedo, 216 Ill. App. 3d 195 (where the defendant was in the midst of a contested hearing when he agreed to stipulate); People v. Clark (1987), 157 Ill. App. 3d 371 (where the trial judge informed the defendant that the proceeding was a probation revocation hearing, the maximum possible penalty, and that defendant had the right to an attorney and to a contested hearing); People v. Hoyt (1984), 129 Ill. App. 3d 331 (where the defendant was admonished that by admission she was effectively waiving her right to a hearing at which she could present and confront witnesses and was also admonished as to resentencing).

The State maintains that defendant also had notice of the consequences that would follow her admission, arguing that at her arraignment on February 5, 1990, and at her plea hearing on July 27, 1990, defendant was informed of the possible penalties if found guilty on the aggravated battery charge. On both occasions defendant acknowledged that she understood the possible sentences. At the plea hearing, she also acknowledged that her attorney advised her of the consequences of her plea to the aggravated battery. At that hearing the same judge who presided at her admission to the petition to revoke found that defendant knowingly understood and comprehended the nature of the charges against her, including the possible penalties for those charges.

The State relies on People v. Foehrer (1990), 197 Ill. App. 3d 754, for support. That reliance is misplaced. The Foehrer court found that “a review of the entire record supports the conclusion that defendant was afforded due process of law and entered a voluntary admission.” (Foehrer, 197 Ill. App. 3d at 758.) The reviewing court found the record in that case to be “sufficient,” despite the trial court’s failure to inquire of the defendant about any promises or coercion, and “adequate,” even though the possible penalties were explained to him only at the time of his original guilty pleas. (Foehrer, 197 Ill. App. 3d at 757.) Otherwise, the record revealed that the defendant was advised that he had the right to a hearing, the right to confront witnesses, the right to testify and the right to call witnesses on his own behalf; the trial court also explained the basis of the petition to revoke defendant’s probation, to which defendant indicated his understanding. Foehrer, 197 Ill. App. 3d at 756.

The fundamental difference between the case at bar and Foehrer is that, here, not a single word of admonishment or inquiry was addressed to defendant. We find, therefore, that defendant’s right to minimal due process at her revocation hearing was violated. We reverse the trial court’s order revoking defendant’s conditional discharge and remand the cause for a new hearing on the petition to revoke conditional discharge.

Reversed and remanded.

McLAREN and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE COLWELL

license: Public Domain

text:
    STATE BANK OF LAKE ZURICH, Plaintiff-Appellant, v. WINNETKA BANK, as Trustee, Defendant (Jack A. Lofstrom et al., Defendants; Spancrete of Illinois, Inc., et al., Defendants-Appellees).
    Second District
    Nos. 2 — 92—0626, 2 — 92—0678 cons.
    Opinion filed May 24, 1993.

      Richard Lee Stavins, of Robbins, Salomon & Patt, Ltd., Mark J. Rose, and Peter J. Miller & Associates, all of Chicago (Peter J. Miller, of counsel), for appellant.
    Richard W. Laubenstein, of DiMonte & Lizak, of Park Ridge (Alan L. Stefaniak, of counsel), and Sidney H. Mathias, of Mathias & Schmarak, P.C., of Arlington Heights, for appellee Theodore Brickman Company.
    Gene A. Eich, of Morton Grove, for appellee Ewing-Doherty Mechanical, Inc.
    Maria G. Arias-Chapleau and Douglas M. Reimer, both of McDermott, Will & Emery, of Chicago (Douglas C. Tibble, of counsel), for appellee Spancrete of Illinois, Inc.
   JUSTICE COLWELL

delivered the opinion of the court:

Plaintiff, State Bank of Lake Zurich (State Bank), initiated this action to foreclose its mortgage on certain real property located in North Barrington, Illinois. Numerous contractors were joined as defendants, who in turn filed counterclaims to foreclose their mechanic’s liens on the property. Theodore Brickman Company (Brickman), Ewing-Doherty Mechanical, Inc. (Ewing), and Spancrete of Illinois (Spancrete) are the only such defendants involved in this appeal. After a bench trial, the circuit court of Lake County held the mechanic’s lien claims of these remaining contractors stood equally with each other and had priority over State Bank’s mortgage lien. State Bank appeals, contending (1) State Bank has priority over Brickman’s mechanic’s lien because the bank’s mortgage was recorded before Brick-man entered into its construction contract, and (2) State Bank is in parity with Spancrete and Ewing since it paid for the bulk of the enhancement to the property. We affirm.

Jack A. Lofstrom purchased a parcel of real estate located at 12 South Wynstone Drive in North Barrington for a price of $154,500 sometime early in 1988. Lofstrom was the president and sole director and shareholder of S.G. Royal, Ltd., a corporation involved with developing several residential properties. S.G. Royal, Ltd., was incorporated in 1980 and dissolved in 1991.

Construction on this property began between March and May 1988. Several documents in the record indicate S.G. Royal, Ltd., acted as general contractor in commencing the construction at 12 South Wynstone Drive, although no written contract exists. Ewing contracted in writing to perform sewer and plumbing work on April 14, 1988, and Spancrete orally contracted for labor and installation of concrete materials around this time. Spancrete’s contract was put in writing on May 4, 1988. Brickman later contracted with S.G. Royal, Ltd., on August 1,1988, to provide landscaping materials and labor.

In March 1988, Lofstrom asked State Bank for a $600,000 construction loan to build a luxury home on this lot. State Bank issued a letter of commitment for the amount requested to “Jack A. Lofstrom, President, S.G. Royal, Inc.” In May 1988, Lofstrom transferred title of the property to Winnetka Bank, as trustee of a land trust with Lofstrom as beneficiary. A note dated June 10 indicates that Lofstrom borrowed $600,000 from State Bank, and the bank in turn received a mortgage as security on the property. Lofstrom personally guaranteed the note. The mortgage provided that the total amount of indebtedness was to be paid as a single payment due June 10, 1989. In addition, the mortgage document provides in paragraph 2:

“Any advances made by the mortgagee to the mortgagor *** at any time before the release and cancellation of this Mortgage, but at no time shall this Mortgage secure advances on account of said original Note together with such additional advances, in a sum in excess of $none provided that nothing herein contained shall be considered as limiting the amounts that shall be secured hereby *** in accordance with covenants contained in this Mortgage.”
The mortgage further states:
“The mortgagor covenants:
(c) This mortgage contract provides for additional advances which may be made at the option of the Mortgagee and secured by this mortgage, and it is agreed that in the event of such advances the amount thereof may be added to the mortgage debt and shall increase the unpaid balance of the note hereby secured by the amount of such advance and shall be a part of said note indebtedness under all of the terms of said note and this contract as fully as if a new such note and contract were executed and delivered.”

This mortgage was recorded in Lake County on June 29, 1988. Lofstrom testified that he knew at the time that he borrowed the money that this amount was not going to be enough to complete the project. Lofstrom’s understanding was that in the event additional funds became necessary, State Bank would lend the requisite amount as part of the previous transaction.

The parties established a construction loan escrow agreement on June 24, 1988, in order to provide money for payouts to be used to construct the luxury home on the property. This document designated S.G. Royal, Ltd., as the general contractor and Jack Lofstrom, beneficiary of Winnetka Bank, as the owner. State Bank agreed to deposit $588,000 of the $600,000 loan into this account. Payments by State Bank from the construction loan escrow were made to S.G. Royal, Ltd.

Lofstrom requested that State Bank loan him additional funds in September 1988 to complete construction of the project. Lofstrom asked State Bank to advance him 80% of the new current appraisal of $1,750,000 to make the payout and complete the project. State Bank agreed to lend Lofstrom additional funds in the amount of $340,000. The June note was stamped “paid by renewal,” and the bank executed a new note dated September 21, 1988, in the amount of $940,000, which encompassed the original $600,000 loan amount and the additional $340,000. This note was also personally guaranteed by Jack A. Lofstrom. An additional mortgage indicating this indebtedness, also dated September 21, was recorded in Lake County on October 12, 1988. The record indicates that the June mortgage was never marked cancelled or released, nor was a release deed ever prepared or recorded. The loan documents show, however, that the bank did not actually receive any money at this juncture and was still owed the full balance of $600,000.

Brickman, Ewing, and Spancrete all performed as agreed under their contracts with S.G. Royal, Ltd. Lofstrom subsequently defaulted on loan payments, and State Bank filed its original complaint to foreclose on its September 21 mortgage in the amount of $940,000. State Bank’s first amended complaint also only referred to the September mortgage; however, State Bank’s second amended complaint alleged it was suing to foreclose on its June 10 mortgage as modified by the September 21 mortgage. Brickman, Ewing, and Spancrete filed counterclaims to foreclose their mechanic’s liens.

State Bank sought priority over Briekman’s mechanic’s lien by alleging the June 1988 mortgage predated Brickman’s contract with S.G. Royal, Ltd., on August 1, 1988. State Bank contended that the recording date on the June mortgage was the proper reference for determining priority of Brickman’s lien and the mortgage lien. State Bank argued that the September mortgage was a modification and renewal of the June loan and thus the two mortgages were part of the same transaction. Since the June mortgage, recorded on June 29, predated Brickman’s contract on August 1, State Bank claimed it had priority over Brickman’s lien.

At trial, Peter J. McDaniel, loan officer for State Bank at the time of the transaction, testified he prepared both the June and September loan documents. McDaniel acknowledged that his letter to Sharon Ruane, the processor on the construction escrow on this project, referred to the September mortgage as the “new mortgage document.” McDaniel said the bank had prepared a new note and mortgage rather than a loan modification agreement in connection with the loan increase because this was the bank’s typical practice when the principal balance was increased. McDaniel noted the September note indicated in the upper righthand corner that it is a renewal or extension of the June note. He further stated that the September mortgage does not refer to the June mortgage because it was not the bank’s intention to release the June mortgage. McDaniel testified that with a loan of this type, where there were additional advances, the bank would not release any of the recorded liens until the loan was paid off in full. He said the bank considered the September transaction to be an extension of the June mortgage.

McDaniel admitted that State Bank’s letter to Lofstrom on March 10, 1989, regarding default on the construction loan only referred to the September loan. McDaniel also stated the June note showed a zero balance as of October 10, 1988. McDaniel said that the bank stamped the June mortgage as paid by renewal on October 26, 1988, but that the bank did not actually receive any money at the time the note was renewed. McDaniel testified that State Bank made inspections of the construction site at 12 South Wynstone Drive. He acknowledged that the reports and accompanying pictures indicated the foundation and the first-floor framing were completed as of June 27, 1988, two days before the June mortgage was recorded.

Don Russell Stetsinger, a State Bank loan officer, testified that the total amount owed to the bank at the time of trial was $1,473,227.34, comprised of unpaid principal of $940,000 and accrued interest of $450,744.70.

State Bank stipulated at trial that both Ewing’s and Spancrete’s claims predate the bank’s mortgage and thus have priority over State Bank’s claim. However, State Bank argued that it should be in parity with Ewing and Spancrete since State Bank paid substantial monies towards the completion of the improvements upon the property after the recordation of its mortgage as evidenced by its checks issued from the loan escrow account.

The trial court found in its judgment of foreclosure and sale that State Bank’s September note was not merely a renewal or modification of the June note. Rather, State Bank’s advancement of the additional $340,000 was new consideration which rendered the September document a new and independent note. Since the September note was only secured by the mortgage recorded October 12, 1988, the trial court determined that only this mortgage may be foreclosed.

The trial court also found that S.G. Royal, Ltd., was a separate entity from Jack Lofstrom and that S.G. Royal, Ltd., acted as the general contractor on the job. Thus Brickman was a subcontractor under S.G. Royal, Ltd., whose contract predated State Bank’s mortgages and afforded Brickman a valid and subsisting prior lien upon the subject premises for $238,341.18.

The trial court found that a substantial sum from both the June and September loan proceeds went into improvements for the subject premises, but rejected State Bank’s claim that this gave the mortgage priority over Ewing’s and Spancrete’s mechanic’s liens. The court determined that State Bank, which had the burden of proof, did not produce evidence at trial from which the court could determine what amount of the loan proceeds was used to pay for improvements constructed upon the premises. The trial court awarded Ewing $36,533.63 and found the company’s claim had priority over State Bank’s mortgage. The trial court’s judgment of foreclosure and sale awarded Spancrete a mechanic’s lien for $9,342 plus interest. Ewing’s and Spancrete’s mechanic’s liens were found to have absolute priority over the entire mortgage lien of State Bank, with the exception of a superior priority lien of $23,257 awarded to State Bank in recognition of certain services it performed to maintain the property. The trial court also found the mechanic’s lien claims of Ewing and Spancrete on a parity with each other. State Bank filed a timely appeal.

State Bank contends its mortgage lien had priority over Brick-man’s mechanic’s lien because the mortgage was recorded before the date of Brickman’s contract. The Mechanics Lien Act (Act) (HI. Rev. Stat. 1991, ch. 82, par. 1 et seq.) provides in section 1 as follows:

“Any person who shall by any contract or contracts, express or implied, with the owner of a lot or tract of land, or with one whom the owner has authorized or knowingly permitted to contract, to improve the lot or tract of land or to manage a structure thereon, or to furnish material, fixtures, apparatus or machinery, *** and has a lien upon the whole of such lot or tract of land and upon adjoining or adjacent lots or tracts of land of such owner ***. *** This lien attaches as of the date of the contract.” Ill. Rev. Stat. 1991, ch. 82, par. 1.

The effective date of the mortgage is the date of its recording. (111. Rev. Stat. 1991, ch. 110, par. 15 — 1301.) The effective date of a mechanic’s lien claim is the date of the contract. (111. Rev. Stat. 1991, ch. 82, par. 1.) State Bank recorded the June mortgage on June 29, 1988, and the September mortgage on October 12, 1988. Brickman contracted with S.G. Royal, Ltd., on August 1, 1988. State Bank alleges its claim dates back to June 29, since the September mortgage was a modification and renewal of the June mortgage which is a valid and subsisting lien as of the date it was recorded.

Illinois case law supports State Bank’s argument. In Whirlpool Corp. v. Bank of Naperville (1981), 97 111. App. 3d 139, plaintiff filed an action to recover damages from alleged conversion by the bank of certain property in which plaintiff claimed to have a security interest superior to that of the bank. On October 4, 1973, debtor executed a security agreement with the defendant bank in exchange for a commitment to receive advances of cash or credit. The description of collateral to serve as security for the loan did not include inventory, but the description of collateral in financing statements filed in January 1974 did include inventory. On October 18, 1974, plaintiff filed a financing statement which covered certain collateral made by plaintiff and sold to debtor. On September 2, 1975, debtor executed a new note and security agreement to the bank which included inventory in its description of collateral. After the debtor defaulted, the bank seized the goods in February 1977 and sold them. The bank stated at the time that it based its action on the September 1975 agreement. At trial, the bank relied on the 1973 agreement and the January 1974 financing statement and contended its perfected security interest was superior to that of plaintiff. The trial court entered judgment for plaintiff. On appeal, this court held: “The fact that the Bank required a new agreement from the debtor *** and furnished fresh consideration is not dispositive. Merely taking the new note even with an advance of additional cash did not extinguish the old obligation *** where, as the debtor testified here, the new note was given in renewal and not in payment.” (Emphasis added.) (Whirlpool Corp., 97 Ill. App. 3d at 142.) Indeed, the ordinary practice of lending institutions is that where a note is given in renewal of another note and not in payment, the renewal does not extinguish the original debt or change the debt except that it postpones the time for payment. Heritage Bank v. Bruti (1986), 141 Ill. App. 3d 107, 109; Community Bank v. Meister Brothers, Inc. (1973), 12 Ill. App. 3d 1004, 1008; Continental Illinois National Bank & Trust Co. v. Cardwell (1936), 287 Ill. App. 227, 246.

Although a renewal note may in some cases operate as payment of and a discharge of the original note, the evidence must indicate the parties intended that the new note should serve as payment of the outstanding note. (Heritage Bank, 141 Ill. App. 3d at 109; see also Lurie v. Newhall (1947), 333 Ill. App. 173.) Here, the evidence indicates the parties did not intend the September note and mortgage to be a new and separate transaction which extinguished the June note. The June mortgage was never cancelled or released, and the language therein provides for additional advances at the option of the mortgagee. The face of the June note was stamped “paid by renewal,” and the September note specifically states it is a renewal of Cl No. 34737, the June note. Both loans were to be paid in full on June 10, 1989. The testimony of State Bank loan officers also established that when a balance of a loan is increased, a new note and mortgage are typically executed. The trial court erroneously concluded that the September mortgage was a new and independent mortgage. Accordingly, we find the September mortgage was a renewal or modification of the June mortgage and the June mortgage was a valid and subsisting lien on the subject property.

This finding is not dispositive, however, since we find that Brick-man has priority under the provisions in section 21 of the Act relating to subcontractors. Section 21 of the Act provides that every subcontractor that provides materials and services for the contractor shall have a lien for the value thereof to the same property from the same time as provided for in the original contractor’s lien. (Ill. Rev. Stat. 1991, ch. 82, par. 21.) Brickman’s counterclaim alleged that it is entitled to a mechanic’s lien against the premises for $184,550.10 plus interest and that such lien is a first and prior lien on the subject premises. Brickman contended that, as a subcontractor, its contract related back to the original agreement between the owner and S.G. Royal, Ltd., as general contractor. Brickman alleged that the evidence of construction completed as of June 27, 1988, indicated the contract between the owner and S.G. Royal, Ltd., preceded both the September and June mortgages of State Bank and thus gave Brickman priority over State Bank’s lien claim since the mortgage was not recorded until June 29. The escrow agreement, dated June 24, 1988, evidenced a contract between S.G. Royal, Ltd., designated as general contractor, and Jack Lofstrom as beneficiary of trustee Winnetka Bank. The evidence indicated that construction of the property commenced in April 1988 and had progressed quickly by June 27 according to the on-site inspection by State Bank. The amount of construction completed before the first mortgage was recorded on June 29 indicated a prior contract existed between the owner and general contractor.

State Bank contends that Briekman’s contract makes it unclear whether Brickman made its agreement with Lofstrom or with S.G. Royal, Ltd. State Bank further contends that, whether the contract was made with Lofstrom or S.G. Royal, Ltd., both parties are deemed by law to be the owner, making their agreement with Brickman a general contract which does not relate back. See Ill. Rev. Stat. 1991, ch. 82, par. 21.

The record revealed that S.G. Royal, Ltd., had constructed 15 to 20 single-family residences since its incorporation in 1980. S.G. Royal, Ltd., had a construction superintendent on the subject premises on a daily basis and carried builder’s risk insurance. Prior to the recording of the mortgage on June 29, 1988, S.G. Royal, Ltd., had also entered into numerous subcontracts with various tradesmen starting in April 1988 before the mortgage was recorded. S.G. Royal, Ltd., maintained bank accounts in its own name and did not comingle its assets with Lofstrom. All checks issued from the construction loan escrow, other than those made out to subcontractors, were made payable to S.G. Royal, Ltd. Moreover, numerous documents, including the escrow agreement which was prepared by McDaniel, the statements of payouts, the correspondence between the parties, as well as the testimony at trial all indicate that S.G. Royal, Ltd., is the general contractor.

State Bank cites to a line of cases which holds that when an owner proceeds with construction under the name of a corporate construction company which is really the owner operating under a corporate name, the contractors are not subcontractors but are original contractors because the construction company is, in the eyes of the law, deemed to be the owner for mechanic’s lien purposes only. These cases address the concern that a corporation not be used or created as a device to avoid an individual’s obligation to workmen established by a mechanic’s lien. (Illinois Interior Finish Co. v. Poenie (1934), 277 Ill. App. 554, 566.) However, the cases cited by State Bank involved either sham corporations formed specifically for construction of a particular project or formed to perpetrate fraud. Here, S.G. Royal, Ltd., remained a corporation in good standing from 1980 to 1991 and was not formed merely for the 12 South Wynstone Drive project.

All of these factors form a distinction between Lofstrom and S.G. Royal, Ltd. The evidence overwhelmingly supports the trial court’s finding that Brickman was a subcontractor whose construction contract related back to the owner’s original contract with S.G. Royal, Ltd., and gave Brickman’s subcontractor lien priority in time to the filing of the plaintiff’s mortgage.

In its final contention, State Bank acknowledges it does not have priority over Ewing and Spancrete since both Ewing and Spancrete contracted with S.G. Royal, Ltd., before the June mortgage was recorded. However, State Bank argues its lien stands in parity with these mechanic’s lien claims since it paid substantial monies towards the completion of the improvements upon the property after the recordation of its mortgage. Section 16 of the Act provides in relevant part:

“No incumbrance upon land, created before or after the making of the contract *** shall operate upon the building erected, or materials furnished until a lien in favor of the persons having done work or furnished material shall have been satisfied, and upon questions arising between incumbrancers and lien creditors, all previous incumbrances shall be preferred to the extent of the value of the land at the time of making of the contract, and the lien creditor shall be preferred to the value of the improvements erected on said premises ***.” (Ill. Rev. Stat. 1991, ch. 82, par. 16.)

State Bank argues that since it paid $940,000, or approximately 90%, of the cost of the improvements, the bank contends it will suffer 100% of the loss if not given priority over these remaining subcontractors.

The priority of claims as between a subcontractor and a mortgagee is a function of the priority as between (1) the date of recording of the mortgage, i.e., the date when the subcontractor is considered to have constructive notice, and (2) the date of execution of the underlying construction contract pursuant to which the materials or services were provided by the subcontractor. (Firstsouth, F.A. v. La Salle National Bank (N.D. Ill. 1991), 766 E Supp. 1488, 1489; Du Page Bank & Trust Co. v. Du Page Bank & Trust Co. (1984), 122 Ill. App. 3d 1015, 1018.) Generally, the priority of a contractor’s lien must be based on its strength as a contributor to the enhanced value of the property. (Moulding-Brownell Corp. v. E.C. Delfosse Construction Co. (1940), 304 Ill. App. 491, 500.) In Detroit Steel Products Co. v. Hudes (1958), 17 Ill. App. 2d 514, the court determined that since the materialman’s contract antedated the mortgage recording, the language of section 16 as it relates to proof of enhancement was clearly inapplicable and the entire claim of the materialman, properly perfected under the Act, had absolute priority both as to land and improvements. (Detroit Steel Products Co., 17 Ill. App. 2d at 518-19.) Similarly, Ewing’s and Spancrete’s contracts predated the recording of State Bank’s June mortgage.

The priority of their properly perfected mechanic’s lien claims made evidence of enhancement immaterial. We find that Spancrete and Ewing both obtained their mechanic’s liens before State Bank recorded its first mortgage in June, and section 16 of the Act does not limit their absolute priority over State Bank’s lien.

We note that the object and purpose of the Act is to protect those who in good faith furnish material or labor for the construction of a building. (Daily v. MidAmerica Bank & Trust Co. (1985), 130 Ill. App. 3d 639, 641.) The statute is strictly construed as to the requirements which bring one within the statute, but this strict construction applies only to the requirements upon which the right to a lien depends and is not used to invalidate a lien which had properly attached. DuPage Bank & Trust Co., 122 Ill. App. 3d at 1019-20.

Affirmed.

McLAREN and BOWMAN, JJ., concur.


author: JUSTICE BOWMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Y. PARK, Defendant-Appellant.
    Second District
    No. 2 — 91—0969
    Opinion filed May 28, 1993.
    Rehearing denied July 20, 1993.

      Sherman C. Magidson, of Magidson & Sullivan, of Chicago, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE BOWMAN

delivered the opinion of the court:

A jury convicted defendant, Y. Park, of committing criminal sexual assault upon his minor daughter (111. Rev. Stat. 1989, ch. 38, par. 12 — 13(a)(3)), and the court sentenced him to six years’ imprisonment. On appeal defendant claims that numerous evidentiary errors and ineffective assistance of counsel deprived him of a fair trial.

Defendant was charged by indictment with four counts of criminal sexual assault. Counts I, II, and III alleged that on or about October 21, 1990, defendant committed various acts of sexual penetration on his daughter, S.P. Count IV charged that “on or about between July, 1989 and October, 1990,” defendant placed his penis into the victim’s vagina. Ultimately, a jury acquitted defendant as to the first three counts of the indictment but found him guilty on count IV.

The following, as related at trial, are the facts underlying the charges. Fourteen-year-old S.P. testified that her father began sexually abusing her, in the form of fondling, when she was about 10 years old and the family was living in Cook County. He had initiated oral sex with her in 1988, before her twelfth birthday. S.P. indicated that her father demanded oral sex activities from her as a condition of allowing her various privileges, such as going to the mall or the movies.

According to S.P.’s testimony, the first time her father had sexual intercourse with her was late in June 1990, after the family had moved to Hawthorne Woods. Her mother was entertaining guests in the kitchen, and the other family members were on the lower level of the house. S.P. had gone upstairs to her bedroom. Her father followed her into the room and closed and locked the door. Various sex acts then occurred, including penile penetration which took place as her father lay on the floor.

S.P. related another incident which she said occurred late in the summer of 1990. It was on a Sunday afternoon while her mother was out. This time she went to her father’s bedroom at his request. Her father turned up the volume on the TV set because her brother’s room was right next door. Again, penile penetration occurred.

S.P. claimed to have been sexually assaulted again in August 1990, when her father, who was a doctor, took her to his office for a school physical examination. There were no patients in the office at the time. Following the examination, her father asked her to get on the examining table, where he removed her clothes, performed various sex acts, including sexual intercourse. The school report of this physical was signed by defendant as both the physician and parent. The form had been signed and dated in July, rather than August when, according to S.P., the examination had been done. S.P. explained that she had received the form early in July and that her father signed it the day she received it. However, they did not actually go to her father’s office for the necessary shots until August. Also, it was brought out on cross-examination that defendant had two offices, both of them located in Cook County. S.P. testified she had been examined and assaulted at the Lawrence Street office, while the physical examination report form contained the Division Street office address under defendant’s signature. S.P. indicated that Division Street was the office where her father spent most of his hours and where he normally signed reports. Defendant denied that the report was filled out at either office. He testified he filled it out at home. He also testified that he did not actually give S.P. a physical examination before filling out the form, but filled it in from his own knowledge.

The next incident S.P. testified about occurred in October 1990. Her mother was in New York at the time. On October 20 her father gave her permission to go to her high school homecoming celebration on the condition that she see him the next day. Sometime after 10:30 p.m. the next evening, at her father’s request, S.P. went to his bedroom. She turned up the volume on the television and got into the bed. Her father performed cunnilingus, digital penetration, and penile penetration on her. At home that night, but in different parts of the house, were S.P.’s brothers, ages 13 and 17, and her sister, age 17.

On Thursday, November 8, 1990, S.P. ran away from her parents’ home and went to the home of a friend, Rachelle Ko. When asked at trial why she ran away, S.P. responded initially that her father was making sexual advances toward her. The State’s Attorney then asked why she ran away on the particular day that she did. After stating that she had not had her period for the last two months and that she was afraid she was pregnant, S.P. added that, at the time, she felt if she stayed any longer, her father “would have an opportunity” since her mother was planning a trip out of the country. The witness also testified that her father was the only person with whom she had engaged in sexual relations. S.P.’s testimony regarding her period was impeached when the doctor who examined her after she was found testified that S.P. was just coming off her menstruation.

While she was at Rachelle Ko’s house, S.P. wrote the following letter to her father:

“Dear Father—
I am writing to you to accomplish a few things. You may understand why I ran away and what I’m running away from. Since I kept trying to talk to you in person, I learned you’d never listen to me and only think of yourself. Now that I’m gone and you seem concerned, hopefully, you’ll listen. I don’t care if you tell Mom everything. I’m sick of lying to her. You and Mom should have never of had kids. You know nothing about how to raise children. You don’t molest, rape, beat, pressure, or force things on your children. I think you know that’s wrong. I don’t hate you; I just don’t love you anymore. You have a problem; you’re very sick in the head. You should seek psychological help. You don’t have to make things worse. You can help yourself become a better person to father your children. You still have four kids that need to be fathered. I know I wasn’t the only one you touched. I saw you touch others. I’m so ashamed. I’m trying to live with my sick, infested body because of you. I’m telling you now that I will never come back to live with you and Mom. Don’t try to find me because you will only regret doing so. I can have your doctor’s license suspended and have a court order against you for what you did. I guess you will still bother my friends even though they don’t know anything. Believe me, it BETTER STOR Don’t assume your life won’t be ruined because I have made sure it will be if you don’t stop. All I want is for you to leave me alone. Don’t worry, I won’t ask anything from you. You have minus one daughter. I’m sorry I have to make you hate me. It was and is the only way to make you stop touching (hurting) me.
Your ex-daughter,
[S.P.]
P.S. — Hopefully, you’ve thought about your ‘problem.’ You better leave [S.] alone. I suppose now that you won’t have daughters to Molest and RAPE, you’ll turn to your patients or other young girls. Don’t try IT! You’ll only regret it. I’ll make sure. There’s an easy solution: talk about it with a psychologist.”

S.P. showed the letter to Rachelle Ko on Sunday.

On Monday the police came to Rachelle Ko’s home looking for S.P., who had been reported missing by her parents. S.P. hid in the basement and Rachelle Ko lied to the police, telling them S.P. wasn’t there. Rachelle Ko then went out. When she returned, S.P. was gone. Rachelle Ko testified that later that evening she found S.P.’s duffel bag in the basement, looked through it, and found the letter to S.P.’s father. She took the letter and had it photocopied. Then she called the police, showed the original letter to the responding officer, and gave him the photocopy. She replaced the original in S.P.’s duffel bag. Rachelle Ko figured that, after S.P. was found, the police could use the letter as evidence.

S.P. arrived at the home of another friend around 1 a.m. Tuesday. Her parents located her there, and picked her up and drove her home. The next day, after reading the missing person report on S.P. and S.P.’s letter to her father, Officer Graham of the Hawthorne Woods police department interviewed S.P. at her high school. Defense counsel elicited from the officer that S.P. stated to him that she had been sexually molested by her father.

S.P. was subsequently admitted to the pediatric ecology program at Mt. Sinai hospital. The program deals with various issues of child maltreatment. It is a multidisciplinary program in which teams of specialists evaluate children admitted to the unit. The final diagnosis for each child is based on input from the various members of the team. Dr. Sharon Ahart, a pediatrician specializing in child maltreatment, was codirector of the program. Dr. Ahart interviewed S.P. after she was admitted.

During direct examination, Dr. Ahart was allowed to testify, over objection, as to S.P.’s responses to questions asked during the interview. S.P. indicated that her father had penetrated her vaginally, tried to penetrate her anally, and had put his penis in her mouth. S.P. also responded that no one else had touched her in these places and that she had not been sexually active.

In addition to an interview, Dr. Ahart conducted a complete physical and genital examination of S.P. While this examination revealed that S.P. no longer had a hymen, the doctor had no information about any injuries which might have accounted for its absence. Dr. Ahart testified that, on a virginal child, an adult speculum cannot be inserted into the vaginal area. With S.P., however, she was able to very easily insert and dilate such speculum, which meant the vaginal area had been stretched out.

Based on all the information she herself gathered from both the interview and the physical examination of S.P., along with all the input from the other specialists evaluating S.P.’s case, Dr. Ahart formed the opinion that S.P. had been sexually abused.

The defendant, testifying in his own behalf, denied his daughter’s allegations. He attempted to establish that S.P.’s running away and her accusations against him were prompted by resentment directed at the control he and Mrs. Park exercised over her social conduct, especially as it related to her boyfriend, John Payne. During cross-examination of S.P., defense counsel had brought out that Dr. and Mrs. Park were strict disciplinarians who wanted to approve the young men their daughters dated. S.P. admitted she broke her parents’ rules from time to time and that she was punished, by either her mother or her father, for doing so. She testified that she would be grounded almost all of the time and, if her parents were angry enough, they would punish her physically as well. S.P. remembered being asked during an interview at Mt. Sinai hospital how she got along with her mom and dad. She had responded that she had done a lot of things to make them angry and that they were not very happy at the moment. Finally, S.P. testified that she was afraid for the friends who helped her when she ran away because her parents threatened to have them sent to jail. In other testimony, counsel explored the allegation that S.P. had said she wanted to run off to New York and become a dancer. During his direct examination, defendant indicated that S.P. might have lied about him in an attempt to protect John Payne.

As noted above, the jury acquitted defendant of the charges set forth in the first three counts of the indictment but found him guilty on count IV. After he was sentenced, defendant timely filed this appeal. After thoroughly and carefully examining the record, we are of the opinion that significant errors were made in the proceedings below, by both trial counsel and the trial court. Cumulatively, those errors were sufficient to require a new trial.

Defendant contends that he received ineffective assistance of counsel in that trial counsel (1) failed to tender or request limiting instructions with regard to evidence of offenses other than those charged, (2) elicited testimony from other witnesses which improperly corroborated S.P.’s story, and (3) failed to voice a proper objection to S.P.’s letter to her father. Defendant concludes that, as a result of counsel’s errors, he did not receive a fair trial.

To establish ineffective assistance of counsel the defendant must show that counsel’s performance was defective in that it fell short of an objective standard of reasonableness and that such performance prejudiced the defense to the extent that defendant was deprived of a fair trial. (People v. Caballero (1992), 152 Ill. 2d 347, 349, citing Strickland v. Washington (1984), 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064; People v. Odie (1992), 151 Ill. 2d 168, 172.) To establish the requisite prejudice defendant must show that, except for counsel’s errors, there is a reasonable probability his trial would have had a different result. (People v. Jackson (1992), 149 Ill. 2d 540, 553.) These principles guide our review of trial counsel’s effectiveness.

We address first defendant’s claim that trial counsel failed to deal properly with evidence of other offenses. Defendant was convicted only on count IV. That count charged that defendant assaulted S.P. “on or about between July, 1989 and October, 1990” in that he penetrated her vaginally. At trial the State introduced evidence of an ongoing course of sexual abuse by defendant, starting well before 1989 and taking place in both Cook and Lake Counties. S.P. testified that the situation with her father began in the form of fondling when she was 10 years old, that he initiated oral sex with her in 1988, and that he had demanded oral sex in return for granting her various privileges. After stating that she and defendant had sex “possibly four” times while the family lived in Hawthorne Woods, S.P. related three specific instances when defendant had sexual intercourse with her, one of which took place in Cook County. At no time did defense counsel request or tender an instruction to the jury as to the use of evidence of other offenses. Defendant asserts that the jury, therefore, might have based its decision on evidence of other offenses rather than evidence of the crime charged.

Evidence of other offenses is not admissible to establish a defendant’s propensity to commit the offense charged. (People v. Lindgren (1980), 79 Ill. 2d 129, 137; People v. Cregar (1988), 172 Ill. App. 3d 807, 821.) On the other hand, as defendant acknowledges, when sex crimes are involved, prior acts between the same parties are generally admissible to show the relationship and familiarity between the parties and to corroborate the complaining witness’ testimony as to the act relied upon for conviction. (See People v. Morgan (1987), 152 Ill. App. 3d 97, 103; People v. Bradley (1984), 128 Ill. App. 3d 372, 381.) In this case, however, the jury was never apprised that these were the only purposes for which it could use the other crimes evidence.

The jury heard evidence of a variety of offenses by defendant, beginning years before the time of the crime charged. Due to the extensive time span alleged in count IV, and the general nature of much of the testimony, the jury was not even presented with a clear-cut basis for differentiating between evidence of the crime charged in count IV and evidence of other offenses. Also, while some of the other offenses occurred in Lake County, which is where the charged crime occurred, others took place in Cook County. Without an instruction as to the purposes for and limitation on the use of evidence of other crimes, the potential was created for great confusion on the part of the jury. In that confusion the jurors could have mistakenly focused on an offense other than what was alleged in count IV.

In a close case, as this one was, we think reasonable counsel would have recognized the vital importance of stressing to the jury that it was hearing evidence of other crimes and of making sure the jury was aware of the limited purposes for that evidence. It follows that counsel should have asked the court to give a limiting instruction at the time the evidence was admitted or, at the very least, should have tendered an appropriate instruction at the close of all the evidence. Absent such an instruction, the evidence of other offenses may have been given far greater weight than it deserved, all of it supporting S.P., and thus may have unfairly tipped the scale in S.P.’s favor. Counsel’s failure to seek a limiting instruction was a critical mistake.

Counsel erred also in eliciting testimony which reinforced S.P.’s claim that her father had sexually abused her. On cross-examination Rachelle Ko testified that she told her mother S.P. was coming to stay at their house because she had been raped by her father. Under further questioning, Ko added that S.P. told her as far back as the spring of 1990 that her father had raped her. Also on cross-examination, Officer Graham said that he based his conclusion that S.P. was in need of medical attention on the fact that S.P. told him she had been sexually molested by her father. Defendant asserts that, by inviting this testimony, counsel essentially provided corroboration of S.P.’s story. He urges that the jury may have been unfairly swayed by hearing S.P.’s version of events repeated over and over again. The State responds that the jury knew this was S.P.’s claim with or without the testimony of Ko and Graham. Further, according to the State, the statements were made in the context of counsel’s attempt to discredit Ko’s motives and the reasonableness of Graham’s belief in S.P.’s statements.

We have examined the testimony of both Ko and Graham. While it may be true that the jury ultimately heard S.P.’s claim from S.P. herself, we do not think this fact rendered the other witnesses’ testimony harmless. On the contrary, as we will discuss further in a moment, the evidence here was closely balanced. While there was some corroboration of S.P.’s version, even that evidence was not without flaws. Nevertheless, the jury first heard both Ko and Graham say that S.P. told them defendant had sexually molested her and then heard S.P. herself repeat the exact same story. We agree with defendant that where there is no evidence against defendant except that found in the accusation of the victim, there is a danger that the jury’s verdict was the result of hearing the victim’s version more than once. (People v. Salas (1985), 138 Ill. App. 3d 48, 54-55; People v. Andino (1981), 99 Ill. App. 3d 952, 957; People v. Jacobs (1977), 51 Ill. App. 3d 455, 459.) In this case defense counsel’s actions created that danger.

The State’s argument that counsel was merely trying to discredit the witnesses is not persuasive. In light of the essentially balanced evidence, it was essential to avoid or prevent the introduction of any evidence that even appeared to corroborate S.P.’s story. The State does not demonstrate that it was necessary to elicit testimony regarding the identity of the alleged perpetrator in order to discredit the testimony of either Ko or Officer Graham. The risk ereated by counsel far outweighed any benefit to be gained from inviting the challenged testimony.

Defendant also claims that counsel should have objected to the admission of the letter S.P. wrote to her father. We note that counsel did object on the ground that the letter was a copy and not the original writing. He also objected to publication of the letter by having S.P. read it into the record. However, defendant insists that counsel should have objected to any admission of the letter on grounds that it was self-serving. Defendant argues that the letter was improperly offered to bolster S.P.’s testimony by showing that on a prior occasion the witness made a consistent statement about the matter in issue.

Evidence of statements made by a witness prior to trial is inadmissible for the purpose of corroborating that witness’ testimony at trial. (People v. Hayes (1990), 139 Ill. 2d 89, 138; People v. Shum (1987), 117 Ill. 2d 317, 340.) However, prior consistent statements are admissible to rebut a charge or inference that the witness is motivated to testify falsely or has recently fabricated her in-court testimony. (Hayes, 139 Ill. 2d at 138; Shum, 117 Ill. 2d at 340-41.) This exception does not apply here. S.P.’s letter was not offered in an effort to rehabilitate S.P. as a witness. On the contrary, it was identified, offered, admitted, and published to the jury during direct examination of the State’s witnesses. As we see it, counsel failed to make the fundamental objection that the letter was offered only to corroborate S.P.’s testimony and, therefore, was inadmissible. As a result, the jury was exposed to still another repetition of S.P.’s own story, thus increasing the danger that the jury’s verdict resulted from hearing the victim’s version over and over again. Counsel’s failure to object added to the weight of the prejudice against defendant in this trial.

This was an extremely close case. We note first of all that the jury acquitted defendant of counts I, II, and III, counts which encompassed charges and a time frame similar to those found in count IV. With regard to count IV, S.P. accused defendant of sexually abusing her. Defendant denied that he ever had sexual contact with his daughter. Although the evidence left little doubt that S.P. had engaged in sexual relations, the evidence supporting S.P.’s claim that she had been sexually abused was far less reliable. It is true that Dr. Ahart testified to sexual abuse, but the doctor’s conclusion rested in large part on what she had been told by S.P. herself. In addition, there was no effective corroboration of S.P.’s testimony that her father was the one who abused her. Finally, defendant had introduced evidence that S.P.’s accusations sprang from resentment toward her parents’ control and discipline. In the final analysis, the evidence boiled down to a matter of the complaining witness’ word against the word of the defendant. Hence, it was imperative that the jury be presented only with proper evidence and that it be aware of how to use that evidence. As a result of counsel’s errors the jury may have focused on conduct of defendant which was not even the subject of the charge against him. And/or the jury may have perceived the needless and improper repetition of S.P.’s story as valid and significant corroboration of her own testimony. Under either or both of these scenarios, in a case as close as this one, the shift in the weight of the evidence would be not merely prejudicial, but devastating to defendant. We conclude that there is a reasonable probability in this case that, but for counsel’s errors, defendant’s trial would have had a different result. Defendant, therefore, was deprived of a fair trial. People v. Jackson (1992), 149 Ill. 2d 540, 553.

The errors just discussed were not the only ones made in the proceedings below. The trial court also made a telling error which contributes to the grounds for reversal of this case. Specifically, the trial court should not have admitted the letter S.P. wrote to her father. Although defendant failed to object to the actual admission of the letter and, thus, has not preserved the error for review (People v. Enoch (1988), 122 Ill. 2d 176, 186), in a case like this, where the evidence is so closely balanced, the issue may be reviewed as a matter of plain error. (134 Ill. 2d R. 615(a); People v. Psichalinos (1992), 229 Ill. App. 3d 1058, 1065.) We have already determined that the letter was self-serving, cumulative of S.P.’s testimony, and inadmissible as a prior consistent statement. The court nevertheless admitted it despite the prejudice to defendant from the repetition of S.P.’s story. The error was heightened when the court allowed the State to publish the letter to the jury over defendant’s objection, particularly since the 14-year-old complaining witness herself read the letter into the record. Once again, the error was significantly prejudicial to defendant.

The State posits that S.P.’s letter was admissible under an exception which allows reports relevant to a police investigation where that investigation forms an integral part of the narrative of the arrest. (See People v. Johnson (1982), 104 Ill. App. 3d 572.) In Johnson, a police officer testified that he stopped defendant, in part, on the basis of a radio report of another crime. That information was essential to the jury’s understanding of why the defendant was stopped. The letter itself in this case was not essential to show how the police investigation of defendant began since the record contains an abundance of testimony about the letter.

Both S.P. and Rachelle Ko testified as to how the letter came about. S.P. said she had not left the letter at her home because she did not want her mother to find it. Referring to the postscript to the letter warning the defendant he “better leave [S.] alone,” defense counsel specifically asked S.P. if S. had told her that defendant was molesting her. Rachelle Ko explained how she photocopied the original letter, then called the police officer and gave him the photocopy, figuring the police could use the letter as evidence. Finally, Detective Graham of the Hawthorne Woods police department testified that reading the letter and the missing person report on S.P. prompted him to go to S.P.’s high school and talk to her. In our view, the cumulative testimony about the letter was sufficient for the jury to understand why the police began an investigation. The prejudicial effect of the letter itself outweighed any need for its admission into evidence, and even more particularly any need for its publication to the jury on this issue.

The record of this case reveals that errors were made by both the trial court and defense counsel. Due to the closely balanced nature of the evidence, none of these mistakes can be characterized as harmless. While we do not determine whether any single flaw, by itself, would require reversal, we are convinced that, collectively, the errors were sufficient to deprive defendant of a fair trial.

We will briefly address an additional issue raised by defendant since it may come up again on retrial. Over counsel’s objection the court admitted Dr. Ahart’s testimony regarding S.P.’s statements that her father had sexually molested her. Defendant characterizes the doctor’s revelations as inadmissible hearsay which improperly corroborated S.P.’s own testimony, similar to the disclosures elicited from Rachelle Ko and Officer Graham. We find that the doctor’s testimony was admissible.

Statements by victims of sex offenses to medical personnel for purposes of diagnosis or treatment are admissible as an exception to the hearsay rule. (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 13; People v. White (1990), 198 Ill. App. 3d 641, 654-56; People v. Roy (1990), 201 Ill. App. 3d 166, 177-78.) The statute provides that such statements may include the following: “descriptions of the cause of symptom, pain or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 13.) The statements challenged by defendant were made during an interview with S.P. Dr. Ahart specifically testified that she interviewed S.P. in order to determine a treatment program. The doctor had explained that S.P. was admitted to a program in which she would be evaluated by teams consisting of doctors, child development specialists, child psychologists, social workers, nurses, and child care workers. A diagnosis would be made only after all the teams completed their assessments. In the context of this comprehensive approach to evaluation, the statement of a 14-year-old girl that her father had abused her was most certainly reasonably pertinent to diagnosis and treatment. Considering all the circumstances of this case, the statements were admissible under the statutory hearsay exception.

For all of the foregoing reasons, defendant’s conviction is reversed, and this matter is remanded for a new trial.

Reversed and remanded.

McLAREN and GEIGER, JJ., concur.


author: JUSTICE KNECHT

text:
      In re MARRIAGE OF JOAN L. JARVIS, f/k/a Joan L. Dempsey, Petitioner-Appellant, and CHARLES W. DEMPSEY, Respondent-Appellee.
    Fourth District
    No. 4 — 92—0713
    Argued April 14, 1993.
    Opinion filed June 3, 1993.

      Lawrence E. Johnson and Reid J. Rozen (argued), both of Lawrence E. Johnson & Associates, P.C., of Champaign, for appellant.
    M. Eugene Wright (argued), of Danville, for appellee.
   JUSTICE KNECHT

delivered the opinion of the court:

Joan Jarvis, formerly known as Joan Dempsey, appeals from the judgment of the circuit court of Vermilion County, ordering the distribution of marital assets. (111. Rev. Stat. 1991, ch. 40, par. 503(d).) Jarvis alleges the trial court erred in (1) awarding the family business to respondent, Charles Dempsey, without ordering offsetting payments to her; (2) awarding her assets and maintenance, rather than a greater share of the assets; and (3) apportioning assets although not provided with sufficient evidence to value the business. We disagree and affirm.

I. Facts

Jarvis and Dempsey were married in 1972. Jarvis filed a petition for dissolution of marriage on May 8, 1991. The marriage was dissolved on June 16, 1992. Hearings on the issue of distribution of assets and maintenance were held between October 1991 and April 1992. At hearing in October 1991, Dempsey testified he was 54 years old. At hearing in November 1991, Jarvis testified she was 56 years old. No children were born to or adopted by the parties; however, Jarvis had three children from a prior marriage.

Dempsey was employed by General Motors (GM), during most of the 20-year marriage and for about the 10 years preceding it. Jarvis had been employed as a bookkeeper at various companies during the marriage. Jarvis testified she was employed at Case Power and Equipment as a bookkeeper when the parties married. She worked at Case for three years, and could not recall her salary. She then worked in the payroll department at Peterson’s for three years, earning about $150 per week. She next worked for Galaxy Homes, doing bookkeeping and showing rental apartments for two years, earning $150 to $200 per week. She thereafter worked for 6V2 years as a bookkeeper for Interstate Lumber, earning more than $200 per week. More recently she tended bar for three years, earning $250 per week. In 1986, Jarvis was hospitalized for six to eight days for a chronic lung disease. After she was released from the hospital she worked as a bookkeeper at Klayer Ag Service, earning $7.50 an hour and working 20 to 60 hours per week. In 1988, Jarvis earned $13,755 working at Klayer.

In 1989, Jarvis and Dempsey purchased a tavern from the estate of Jarvis’ father. The purchase price was $55,000, which included the tavern, everything in the tavern, and the realty on which the tavern was located. Jarvis and Dempsey obtained a bank loan to finance the purchase of the tavern. The parties opened the tavern in April 1989. Dempsey was involved in the day-to-day operations of the tavern, and Jarvis took care of the books. Between April 1989 and September 1991, Jarvis kept the books for the business and assisted in cleaning and closing the tavern at night. In September 1990, Dempsey retired from his job at General Motors. Dempsey testified he retired pursuant to an agreement with Jarvis that he would do so in order to run the tavern. Dempsey took a real estate course and obtained his realtor’s license in December 1990 or January 1991. In May 1991, Jarvis filed a petition for dissolution.

Beginning in September 1991, Jarvis worked in the tavern on Wednesday and Thursday nights and took care of the ordering. When asked if, after the opening of the tavern, she had been offered a bookkeeping job by Clint Hawkins and Ron Osterbur at WACO, Jarvis initially responded in the negative, but then admitted she had been offered such a position, but stated the offer was made in a kidding manner because Hawkins and Osterbur knew she could not go back to work.

At the time of the dissolution proceedings, the parties still owed over $45,000 on the tavern loan. Dempsey had sold only one home, earning $1,152. The testimony was unclear regarding the gross income received by the parties from the tavern, partially due to their practice of paying personal expenses out of the tavern account and “holding out.” The parties “held out” money by placing a portion of the cash received in the operation of the tavern in a box, and did not report the cash in the box as income. In rendering its decision, the trial court noted Jarvis’ “bookkeeping practices appear suspect at best, and her memory, as well as her production of documents in support of her claims were selective from the beginning of the case to the end.”

The parties had elected for the tavern to be treated as a subchapter S corporation, with each party being a 50% shareholder. Thus, each party reports half the tavern’s net income as income, and each party is responsible for the taxes on his or her own share of the income received from the tavern. In 1989 the parties reported a $13,477 net loss from the tavern. In 1990 the parties initially reported a $3,720 net loss from the tavern; however, during the pendency of the dissolution proceedings Jarvis arranged for an amended return to be filed reflecting gross income of $18,740 from the tavern. In 1991, the parties reported receipt of gross income of $38,650 from the tavern.

Jarvis submitted a financial affidavit setting forth her monthly expenses as $1,856.55, including $196.20 for the mortgage payment on the marital residence, and $510.03 for her car payment.

On June 16, 1992, the court filed its supplemental order of dissolution, resolving the issues of distribution of assets and maintenance. In the judgment order, as modified by the court’s ruling on Jarvis’ post-trial motion, the court awarded Jarvis the marital residence ($53,500); the furniture, furnishings and appliances in her possession; a 1987 Cadillac (worth $8,400), six cemetery graves ($905 value), and her individual retirement account (IRA) ($9,578); and half of the pretax and penalty value of Dempsey’s 401(K) plan ($12,101.81). The court further (1) ordered Dempsey to pay Jarvis $12,101.81 — half the pretax and penalty value of his 401(K) plan — within 41 days of the ruling on the post-trial motion (Jarvis was not required to pay the 10% penalty or income taxes which will be due if Dempsey withdraws money from the 401(K) to pay Jarvis $12,101.81); and (2) awarded her one-third of Dempsey’s CM pension, subject to proportionate change when Dempsey’s pension is redetermined at age 62 and subject to proportionate increase for any increase in benefit under the plan. (In reaching the one-third amount, the trial court determined the pension had been earned over 30 years, 20 of which the parties were married. The court found two-thirds of the pension was the marital portion of the pension. The court awarded Jarvis 50% of the marital portion (two-thirds) of the pension, which amounts to one-third of the total pension benefits.) The court also (3) ordered Dempsey to execute a qualified domestic relations order providing for payment of a portion of his GM pension to Jarvis and execute documents providing Jarvis would retain her right of survivorship under the plan; (4) awarded Jarvis permanent maintenance of $500 per month; and (5) ordered Dempsey to pay Jarvis additional maintenance in the form of her insurance premiums and health coverage. Jarvis was ordered to pay the balance of the loan for her Cadillac ($4,590.31).

The court awarded Dempsey the tavern, fixtures and real estate (worth $55,000), and ordered him to pay the mortgage on that real estate ($45,895) and all business debts. The court awarded Dempsey his 1989 Chevrolet pickup (worth $9,650) and ordered him to pay the debt on his pickup ($779.45). The court awarded Dempsey half of his 401(K) plan (worth $12,101.82); two-thirds of his GM pension (one-third of the pension as his nonmarital property, and one-third as his share of the marital portion of the pension); any furniture, furnishings and other property in his possession; his IRA ($9,578); and 14 shares of GM stock ($516.32 value). Dempsey was also ordered to pay the mortgage on the marital home awarded to Jarvis ($1,967.54). Each party was ordered to pay the debts he or she incurred after they separated.

II. Analysis

A. Distribution of Income-Producing Property

Jarvis alleges the trial court erred in awarding the income-producing property to Dempsey, as part of his share of the marital assets, without ordering him to make offsetting payments to her. The trial court set forth its reasons for awarding the tavern to Dempsey as follows:

“The Court has considered all of the factors set forth in Section 503. It is clear that both parties made substantial contributions to the acquisition of the tavern, both in terms of money spent and in terms of personal efforts expended in the day[-]to[-]day operation of the business. On the one hand, Mrs. Dempsey invested a large portion of her inheritance in order to obtain the tavern, which had been owned and operated by her family for many years. On the other hand, the Court is convinced that Mr. Dempsey did in fact retire from his position at General Motors so he could concentrate on running the business. The main concern of the Court, quite frankly, is to preserve the tavern as a reliable source of income in order to arrive at a realistic plan for both parties in the future, while providing a sensible and equitable division of the marital estate. The Court is persuaded that Mr. Dempsey is more likely to be able to run the business successfully than Mrs. Dempsey. The Corner Lounge is accordingly awarded to Mr. Dempsey; he is ordered to pay all outstanding debts associated with the business, and to indemnify Mrs. Dempsey and hold her harmless thereon.”

When it is necessary to award income-producing assets to one spouse, the trial court may effect an equitable distribution of property by authorizing offsetting payments to the other spouse. (In re Marriage of Schroeder (1991), 215 Ill. App. 3d 156, 163, 574 N.E.2d 834, 838.) This is not to say that ordering offsetting payments is the only method of effecting an equitable distribution. Rather, as in the present case, an equitable distribution may be attained by awarding the spouse who does not receive the income-producing assets a greater share of the total net marital assets.

In the present case, each party was awarded half of the marital portion of the pension and the household goods in his or her possession. Each party was ordered to pay his or her own debts incurred after the dissolution. Of the remaining marital assets Jarvis was awarded the house ($53,500), Cadillac ($8,400), cemetery plots ($905), her IRA ($9,578), and half of the pretax and penalty balance of the 401(K) plan ($12,101.81). The only marital debt Jarvis was ordered to assume was the loan on the Cadillac ($4,590.31). Thus, Jarvis received net marital assets in the amount of $79,894.50

In contrast, Dempsey received the business ($55,000), pickup ($9,650), stock ($516.32), his IRA ($9,578), and half of the pre-tax and penalty portion of the 401(K) plan ($12,101.82). Dempsey was ordered to pay, marital liabilities in the amount of $48,641.96, which includes the tavern loan ($45,895), residence mortgage ($1,967.54), and pickup loan ($779.45). Thus, Dempsey received net marital assets of $38,204.15. Additionally, Dempsey is responsible for any business debts. Moreover, if Dempsey withdraws money from the 401(K) plan to give Jarvis her $12,101.82 share, he will be responsible for the 10% penalty and income tax.

Jarvis’ $79,894.50 portion of the net marital assets is significantly larger than Dempsey’s $38,204.15 portion. This award adequately compensated Jarvis for the award of the income-producing assets to Dempsey, and offsetting payments were not required in order to obtain an equitable distribution of the property.

Moreover, apparently recognizing Jarvis’ property award would not provide for all of her needs, the trial court ordered Dempsey to pay maintenance of $500 per month, and “additional maintenance” in the amount of Jarvis’ insurance premiums, which are currently $379 per month. Thus, out of Dempsey’s $1,492.92 net monthly pension benefits, $497.64 is paid to Jarvis as her share of the marital portion of the pension, and $879 is paid to or on behalf of Jarvis for maintenance and additional maintenance. This leaves a balance of $116.28 retained by Dempsey. As a result of the distribution of assets, Jarvis has a home in which to live, without paying rent or mortgage payments, while Dempsey must pay for alternate living arrangements. Clearly, the court intended for Dempsey to use the income generated by his efforts at the tavern to cover the difference between his reasonable needs and the $116.28 per month in pension benefits he retains.

B. More Property Instead of Maintenance

Jarvis alleges the trial court erred in its allocation of marital assets and maintenance to her, rather than simply awarding her a larger portion of the net marital assets — presumably including the tavern — and less or no maintenance. In support of her position, Jarvis sets forth the proposition that when one spouse has a disproportionately larger earning potential, there is a preference for providing the other party with a larger share of the marital assets, rather than an award of maintenance. This is an accurate statement of the law; however, we do not believe its application to this case requires an allocation of more marital assets to Jarvis. Moreover, the evidence at trial did not establish Dempsey had an earning potential which was disproportionately greater than that of Jarvis.

Although Jarvis alleges Dempsey has a greater earning potential than she, and she is prevented from working due to her health, this allegation is not supported by the evidence. Jarvis testified she suffered from emphysema. According to Jarvis, her physician told her in 1989 that she could not work, and she should therefore apply for social security disability. Jarvis applied for and was denied disability. She had not since asked her physician whether she is able to work. Jarvis presented no medical testimony in support of her position that her emphysema prevents her from being employed. Nor did she, during the course of her own testimony, explain why her emphysema would impede her ability to work as a bookkeeper. In fact, Jarvis testified she had been doing the bookkeeping and ordering for the tavern, assisting in cleaning the tavern, and working at the tavern two nights a week.

Neither did the evidence establish Dempsey had a disproportionately larger earning potential than Jarvis. The evidence established Dempsey became licensed to sell real estate in January 1991, and earned a total of $1,152 through selling real estate on a part-time basis. Jarvis had worked as a bookkeeper for a number of years, earning $13,755 in her final year of employment. In light of Jarvis’ employment experience, we do not believe her earning power is disproportionally lower than that of Dempsey. Thus, as the evidence did not establish disproportionate earning power or an inability of Jarvis to maintain employment due to her emphysema, Jarvis’ argument that the trial court should have awarded her more of the net marital assets necessarily fails. The cases relied upon by Jarvis do not convince us otherwise.

Jarvis cites Hollensbe v. Hollensbe (1988), 165 Ill. App. 3d 522, 519 N.E.2d 40, in support of her argument. Hollensbe is distinguishable. In Hollensbe, the trial court determined it would make an award of maintenance in lieu of an equitable distribution of property. The appellate court reversed, noting maintenance may be awarded where the equitable distribution of property is inadequate to provide for the spouse’s needs; however, maintenance may not be awarded instead of an equitable distribution of property. (Hollensbe, 165 Ill. App. 3d at 527, 519 N.E.2d at 43.) In the present case, maintenance was not awarded in lieu of an equitable distribution of property. Rather, Jarvis was awarded maintenance in addition to receiving the larger share of the net marital assets.

Jarvis also cites In re Marriage of Emery (1989), 179 Ill. App. 3d 744, 534 N.E.2d 1014, in support of her position. Earl and Louise Emery were aged 59 and 55, respectively, at the time their le^-year marriage was dissolved. (Emery, 179 Ill. App. 3d at 745, 534 N.E.2d at 1015.) At the time of dissolution, Earl was employed earning $480 per week. Louise was awarded custody of the Emerys’ minor child. Louise presented medical testimony that she could not have a job which would require her to sit or stand for eight hours per day, or to lift heavy objects. Louise was awarded 47% of the total marital assets. A portion of the marital assets awarded to Louise included one third of Earl’s pension. The trial court found Louise was entitled to maintenance, but instead awarded her one-third of Earl’s pension as property in lieu of maintenance; in doing so, the court essentially considered the pension twice in dividing the marital property and again in considering it an award of maintenance. This essentially reduced her proportionate share of the marital assets to 21.3%. This court noted Louise, due to her medical condition, lack of vocational skills, and child care responsibilities, was unable to match Earl’s earning potential. (Emery, 179 Ill. App. 3d at 749, 534 N.E.2d at 1017.) Accordingly, we reversed and remanded for a redistribution of property, and an award of maintenance if appropriate. Emery, 179 Ill. App. 3d at 752, 534 N.E.2d at 1019.

The present case is distinguishable from Emery. Unlike the trial court in Emery, the trial court in this case did not consider marital assets twice — both in making the distribution of marital property, and awarding them as property in lieu of maintenance. Rather, Jarvis received both marital assets and maintenance. Moreover, the trial court awarded Jarvis significantly more assets and maintenance than were awarded by the trial court to Louise. Emery does not support Jarvis’ contention she should have been awarded more of the net marital assets.

Nor does In re Marriage of Campise (1983), 115 Ill. App. 3d 610, 450 N.E.2d 1333, cited by Jarvis, support her argument. Jasper and Theresa Campise were married for 27 years. At the time of dissolution Jasper worked full-time as a police officer, and part-time for National Broadcasting Company, earning net income of $2,094 per month. Theresa had been unemployed for 14 years, due to a back problem which prevented her from sitting in one position for any extended period of time. (Campise, 115 Ill. App. 3d at 612-13, 450 N.E.2d at 1335.) Theresa had no education beyond high school. The court awarded $5,924.50 in marital assets, plus half of the profits from the sale of an Arizona home to Jasper, and between $6,074.50 and $7,074.50 in marital assets, plus half of the profits from the sale of the Arizona home to Theresa. (Campise, 115 Ill. App. 3d at 613, 450 N.E.2d at 1335-36.) Thus, Theresa either received slightly more, or slightly less, than 50% of the marital assets. The court additionally awarded Theresa 40% of Jasper’s pension benefits, which he had not yet begun to draw, but which would provide Theresa with an income of $534 per month once Jasper retired. The court also awarded Theresa temporary maintenance. The appellate court reversed, finding in light of Theresa’s age, length of marriage, poor health, educational background, and lack of vocational skills, and Jasper’s full- and part-time employment, the trial court erred in the distribution of property and award of maintenance limited to five years. The appellate court remanded, instructing the trial court to retain jurisdiction and review the need for maintenance after five years. (Campise, 115 Ill. App. 3d at 615, 450 N.E.2d at 1337.) The appellate court also urged the trial court to consider awarding Theresa the Arizona home instead of an interest in Jasper’s pension benefits. Campise, 115 Ill. App. 3d at 617, 450 N.E.2d at 1337-38.

The present case is distinguishable from Campise. Dempsey, unlike Jasper, does not have either full- or part-time steady employment. While he currently earns income through his work at and ownership of the tavern, if this asset were awarded to Jarvis, he would no longer receive this income. Moreover, Jarvis, unlike Theresa, has not been absent from the workforce for 14 years. Additionally, the testimony did not establish Jarvis could not work due to her emphysema.

Finally, Jarvis cites In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 411 N.E.2d 238, in support of her position. Albert and Edith Aschwanden were married for 25 years and were 51 and 46, respectively, at the time of dissolution. (Aschwanden, 82 Ill. 2d at 32-34, 411 N.E.2d at 239-40.) In the three years prior to dissolution Albert earned between $81,300 and $116,024 per year. At the time of the dissolution Edith earned $6,000 per year, working 22 hours per week as a dental assistant. Edith testified she could not work more hours per week due to a back ailment, for which she had received three operations. The trial court awarded Edith 22% of the marital assets and temporary maintenance of $15,000 per year. (Aschwanden, 82 Ill. 2d at 33-37, 411 N.E.2d at 239-41.) The supreme court affirmed this court’s reversal of the distribution of property and maintenance. The court noted Edith’s station and health left her with little opportunity to maintain the standard of living to which the Aschwandens had become accustomed or to acquire significant amounts of assets or income in the future. (Aschwanden, 82 Ill. 2d at 37, 411 N.E.2d at 241.) Thus, the matter was remanded to the trial court for a redistribution of marital assets. The court stated “if sufficient marital property is found, an award of maintenance may be unnecessary. If there is not sufficient marital property, however, maintenance should be considered.” Aschwanden, 82 Ill. 2d at 38, 411 N.E.2d at 242.

The present case is distinguishable from Aschwanden. Jarvis was awarded more than half the net marital assets, as opposed to the 22% of marital assets awarded to Edith. Moreover, in Aschwanden, the evidence established Albert had an earning power 13.6 to 19.3 times greater than Edith. That is not the case here. The testimony in Asch vjanden additionally established Edith was earning the most she could, whereas here, Jarvis has not sought, and may have actually refused, employment.

C. Valuation of the Business

Jarvis alleges the trial court erred in making an award of the tavern because it lacked proper evidence upon which to value the business. Specifically, Jarvis alleges the trial court should have considered the market value of the business. We note, however, Jarvis stipulated to the value of the business, never informed the trial court she wished to raise an issue regarding its value, and chose not to present any evidence of its market value.

As a general rule, each party bears the obligation to raise issues and present evidence he or she wishes the court to consider. A party’s failure to raise an issue results in the waiver of that issue. Likewise, it is not the basis for reversal that a party elected not to present certain evidence at trial but alleges on appeal that the trial court might have reached a different conclusion had the party chosen to present such evidence. “Reviewing courts have refused to reverse and remand dissolution cases wherein the complaining spouse (1) presented no evidence on the value of the parties’ assets despite the presentation of such evidence by his spouse [citations]; (2) stipulated to the valuation evidence [citation]; or (3) gave or suggested the valuation evidence [citations].” In re Marriage of Deem (1984), 123 Ill. App. 3d 1019, 1023, 463 N.E.2d 1317, 1321.

In the present case, Jarvis and Dempsey, in their financial affidavits, agreed the value of the tavern was $55,000 subject to a lien in excess of $45,000. The trial court received testimony that the parties paid $55,000 for the tavern in 1989. Jarvis never testified to any other valuation of the tavern or amount of the loan, nor did she indicate to the court that she took issue with Dempsey’s valuation of the tavern or loan. Finally, although five hearings were held on the ancillary issues over a six-month period, Jarvis never sought to introduce evidence regarding the market value of the business.

Essentially Jarvis would have us reverse because she now alleges that if she had another chance she would introduce different evidence. As the appellate court stated in In re Marriage of Gluszek (1988), 168 Ill. App. 3d 987, 993, 523 N.E.2d 126, 130:

“As a court of review, we cannot continue to reverse and remand dissolution cases where a party had an adequate opportunity to introduce evidence but failed to do so. A party should not be able to benefit on review from his failure to introduce evidence at trial. (In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54, 448 N.E.2d 545, 550.) ‘Remanding cases such as the one before us would only protract the litigation and clog the trial courts with issues which should have been disposed of at the initial hearing.’ Smith, 114 Ill. App. 3d at 54-55, 448 N.E.2d at 550.”

As the parties agreed upon the value of the business, and the trial court was presented with the financial records and tax returns of the business, we find the trial court had sufficient evidence of the value of the business to be able to make an equitable distribution of the assets. Therefore, Jarvis will not be heard to complain she wished she would have introduced other evidence, but chose not to.

III. Conclusion

The judgment of the circuit court of Vermilion County is affirmed.

Affirmed.

LUND and GREEN, JJ., concur.