text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CURTIS B. MITCHELL, Defendant-Appellant.
    Fifth District
    No. 5—88—0473
    Opinion filed July 19, 1990.

      Daniel M. Kirwan, of State Appellate Defender’s Office, of Mt. Vernon, and Lori L. Mosby, of State Appellate Defender’s Office, of Springfield, for appellant.

      John Knight, State’s Attorney, of Greenville (Kenneth R. Boyle, Stephen E. Norris, and Ellen Eder Irish, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE CHAPMAN

delivered the opinion of the court:

The defendant, Curtis B. Mitchell, was charged with aggravated criminal sexual assault and armed robbery. After a jury trial the defendant was found guilty of aggravated criminal sexual assault and not guilty of armed robbery. On appeal the defendant contends that he was denied a fair trial by the admission of certain hearsay statements, by improper questioning by the State’s Attorney, and by misstatements by the prosecutor during closing arguments. The defendant also argues that certain aspects of the aggravated criminal sexual assault statute violate due process. We affirm.

Since the defendant does not challenge the sufficiency of the evidence, we will relate only those portions of the evidence adduced at trial that are necessary to understanding and resolving defendant’s claims of error. The victim, D.G., testified that she knew the defendant as a neighbor, and that he and another man, Winford Brown, had come by her apartment on March 17, 1988, to introduce themselves. The following afternoon the defendant and Brown returned to her apartment and fixed the antenna wire on her stereo. Around 4 p.m. D.G. asked her visitors to leave because she was going to her brother’s apartment next door, where she remained until 9:45 p.m. At 9:30 that evening the defendant came to D.G.’s brother’s apartment and asked her to go to a nightclub with him, but she refused. D.G. further testified that shortly after 10 p.m. the defendant returned to her apartment, wanting to talk. She allowed him to enter, and he stayed until about 10:30 p.m., when she asked him to leave because she was tired. At approximately 11:40 p.m. the defendant knocked on D.G.’s door and asked for a tape he had left in her apartment. D.G. asked the defendant to wait at the door, but he followed her inside, brandished a knife, threatened the lives of her and her children, and sexually assaulted her. D.G. also stated that defendant scratched her face with the knife and that the fingers of her left hand were cut when she tried to grab the knife. After the assault, the defendant made the victim give him the money she had in her purse.

The defendant testified that he and Winford Brown went to D.G.'s apartment on March 17 and he attempted to repair the antenna wire on her stereo. As the defendant and Brown were leaving the apartment, D.G. told him to come back later. The defendant stated that he went back to D.G.’s apartment shortly after 1:30 a.m., March 18, and she and he engaged in consensual sexual intercourse. According to the defendant, later that day, when he returned to fix her stereo, D.G. asked the defendant for $150. He told her that he did not have the money. The defendant further testified that about 6:30 p.m. on March 18 he went to the home of Patty Telford to help move a piano. At approximately 9 p.m., the defendant drove with Telford, Mark Macon, and a man he knew as “Beau” to store the piano. They then returned to Telford’s house, where the defendant stayed until approximately midnight. The defendant then dropped Mark Macon off and arrived home at 12:30 a.m., March 19. The defendant denied assaulting D.G. on the evening of March 18.

Lisa Davis, whom the defendant lived with, testified that she woke up between 10 and 10:30 p.m. on March 18 and the defendant was not home. The defendant came home around 10:45 p.m. and left shortly thereafter. Defendant returned around 11:30 or 11:45 p.m. and told Davis to tell anyone who came for him that he had been home all evening.

Mark Macon testified that he was with the defendant and some other people on March 18 when they helped to move the piano. He and the defendant went to Patty Telford’s house while it was still light outside. They waited for a while for more help to arrive and then moved the piano to a storage shed in Highland, Illinois. After-wards, Macon, “Beau” and the defendant got a 12-pack of beer and rode around in the country for a while. After finishing the beer, they drove back to Greenville, dropped “Beau” off at Telford’s house, and then the defendant dropped Macon off at his house. During the course of the direct examination, Macon was repeatedly asked about the times of the events of that evening. He stated that he didn’t know what time he and the defendant arrived at Telford’s house, nor when they arrived in Highland, nor when they finished moving the piano into the storage shed, nor when they arrived back in Highland. Macon also testified that he didn’t know what time the defendant dropped him off at home, although it was late. Defense counsel then asked:

“Q. You don’t know any specific time, Mark?
A. Yeah, I don’t know a specific time. It was somewhere between 12:00 and quarter-after, twenty-after. Because everybody at my house was sleeping and they usually go to sleep.
Q. What time do they usually go to sleep?
A. 10:30,11:00 o’clock, 12:00 o’clock, just different hours.”

Richard Koonce testified that he also helped move the piano, along with the defendant, Mark Macon, and others. He testified on direct examination that they arrived in Highland around 9 p.m., although later, he stated that they were finished moving the piano by 9 p.m. Koonce testified that he arrived back at Telford’s house around 10 p.m. and stayed there until 11 p.m. The defendant and Macon got to Telford’s shortly after he did and left 5 or 10 minutes later. On cross-examination Koonce agreed that he could have arrived back in Greenville by 9:15 or 9:30 p.m, but that he really didn’t know.

John (“Beau”) Gillin testified that he had helped move the piano and that he rode back to Greenville with the defendant and Macon. He stated that he didn’t know what time he got back to Greenville. On cross-examination, Gillin agreed that he could have arrived in Greenville between 8:30 and 9 p.m., but he did not know.

Sergeant Paul Omelson of the Greenville police department testified that at approximately 12:41 a.m. on March 19, 1988, he was dispatched to investigate a possible armed robbery. He was informed that the suspect, possibly named Curtis, had left the scene on foot. Upon arriving at the scene, Omelson met J.R., the victim’s brother, who told him that a short black man he knew only as Curtis had raped, robbed and cut his sister. J.R. pointed out the apartment in which he believed the defendant lived. Defense counsel’s hearsay objection to J.R.’s statements was overruled.

Dr. Thomas Dawdy testified that he examined the victim after she was brought to the hospital emergency room. Dawdy testified over objection that D.G. told him that a man came to her apartment and told her that if she wouldn’t go out with him, he would take what he wanted. The man forced her at knife-point to have oral and vaginal sex and threatened to kill her if she told anyone. He then demanded money from her and left the apartment. Dawdy further testified that his examination of the victim revealed scratches on her forehead and chin, an abrasion on her lip, and two cuts on her left hand which required suturing.

In addition to the above-related testimony, there was evidence presented concerning the presence of semen on the victim and her clothing which could have come from the defendant, as well as evidence of a bloodstain on the defendant’s jeans which was not the defendant’s blood, but could have come from the victim. Furthermore, some clothing taken by the police from the closet of the bedroom where the defendant slept matched the description given by the victim of clothing worn by the defendant during the assault.

The State contends at the outset that the defendant has waived any errors which he claims occurred at trial by either failing to object or by failing to include them in his post-trial motion. (See People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, cert. denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) We agree that the defendant has failed to properly preserve the alleged errors; nevertheless, we will examine defendant’s contentions to determine whether they rise to the level of plain error (107 Ill. 2d R. 615(a)).

The defendant first contends that it was error to allow Sergeant Omelson to testify to the hearsay identification of the defendant by the victim’s brother, J.R. The State argues that Sergeant Omelson’s testimony was not offered for the truth of the matter asserted (i.e., that a short black man had attacked and robbed J.R.’s sister) but was instead merely an explanation of the officer’s investigatory procedure. This was necessary, according to the State, to explain why Omelson went to the defendant’s apartment after arriving on the scene instead of immediately going to the victim’s apartment. Testimony regarding investigatory procedures is not hearsay where the purpose of the testimony is limited to showing why the police officer acted as he did. (People v. Brown (1983), 113 Ill. App. 3d 625, 632, 447 N.E.2d 1011, 1016.) It would appear that while the testimony of Sergeant Omelson that J.R. pointed out the defendant’s apartment was therefore not hearsay, we question whether J.R.’s description of the defendant as the assailant and the fact that he knew him as Curtis fall within the ambit of the hearsay exception. Nevertheless, even if the statements were hearsay, we find no reversible error. The admission of hearsay identification testimony constitutes plain error only where it serves as a substitute for courtroom identification or is used to strengthen and corroborate a weak identification. Such evidence is harmless error where it is merely cumulative or is supported by a positive identification and other corroborative circumstances. (People v. Miles (1988), 176 Ill. App. 3d 758, 764, 531 N.E.2d 891, 894; People v. Coleman (1974), 17 Ill. App. 3d 421, 428, 308 N.E.2d 364, 369.) In the instant case, the victim’s identification of the defendant was clear and unequivocal; indeed, defendant admits in his brief that identification was not at issue. We find no plain error.

The defendant next contends that the testimony of Dr. Dawdy concerning the victim’s account of the assault was inadmissible. The defendant acknowledges that section 115 — 13 of the Code of Criminal Procedure of 1963 provides that statements by victims of sex offenses to medical personnel for purposes of diagnosis and treatment are admissible. That section provides:

“In a prosecution for violation of Section 12 — 13, 12 — 14, 12— 15 or 12 — 16 of the ‘Criminal Code of 1961’, statements made by the victim to medical personnel for purposes of medical diagnosis or treatment including 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 shall be admitted as an exception to the hearsay rule.” Ill. Rev. Stat. 1989, ch. 38, par. 115-13.

Defendant argues, however, that the testimony regarding statements made by the assailant as he entered the apartment and those concerning the armed robbery exceeded the statutory hearsay exception. We agree with the defendant that the testimony about the statement made by the assailant as he entered the apartment (that if she would not go out with him he would take what he wanted) was not “reasonably pertinent to diagnosis or treatment.” (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 13.) We do not believe, however, that the defendant was sufficiently prejudiced by the admission of this statement to overcome the waiver rule. (Cf. People v. Gant (1974), 58 Ill. 2d 178, 181-86, 317 N.E.2d 564, 567-69 (testimony by treating doctor that victim told him assailant threatened her and that she knew him was admissible).) Similarly, while the testimony that the assailant demanded money from the victim after the attack was also not pertinent to diagnosis or treatment, we find no plain error, particularly in view of the fact that the defendant was acquitted of the armed robbery charge.

The defendant next contends that the prosecutor improperly questioned him concerning the veracity of the State’s witnesses. During cross-examination of the defendant the following exchange occurred:

“Q. [State’s Attorney]: Why did you tell Lisa Davis when you got home that night to lie about where you had been?
A. [Defendant]: I did not tell Lisa Davis to lie about where I have been.
Q. She’s lying about that?
A. Apparently she is.
* * *
Q. What about these black underwear with the zippers in front? Do you own a pair of those?
A. No, I don't.
Q. You heard the victim testify you had a pair of those on?
A. Yeah, I remember hearing something about it.
Q. Lisa Davis, whom I assume slept with [sic] regularly for the last seven or eight months, she said you had a pair of those?
A. I don’t have a pair.
Q. Well, I guess she’s lying, isn’t she?
A. I guess she is. I don’t have a pair.
Q. And, the victim is lying, aren’t they — isn’t she?
A. Yes, they are.
Q. Really, everybody that’s testified so far is lying, aren’t they?
A. Apparently they don’t know what they’re talking about.”

This court has repeatedly stated that it is improper to question a defendant regarding his opinion of the truthfulness of other witnesses because such questions intrude on the jury’s function of determining the credibility of the witnesses. (See People v. Hopkins (1982), 107 Ill. App. 3d 422, 426, 437 N.E.2d 722, 726; People v. Dowd (1981), 101 Ill. App. 3d 830, 844, 428 N.E.2d 894, 904; People v. Best (1981), 97 Ill. App. 3d 1083, 1086-87, 424 N.E.2d 29, 32.) While the questioning here was improper, we do not find that it rises to the level of plain error in view of the strong evidence of defendant’s guilt. See People v. Richardson (1985), 139 Ill. App. 3d 598, 601, 487 N.E.2d 716, 718; Hopkins, 107 Ill. App. 3d 422, 437 N.E.2d 722; Dowd, 101 Ill. App. 3d 830, 428 N.E.2d 894; Best, 97 Ill. App. 3d 1083, 424 N.E.2d 29; People v. Foster (1980), 80 Ill. App. 3d 990, 994, 400 N.E.2d 462, 466; People v. White (1977), 52 Ill. App. 3d 517, 521-22, 367 N.E.2d 727, 732.

The defendant next refers to four statements made by the prosecutor during the course of his closing argument which the defendant characterizes as prosecutorial misconduct. The defendant first complains that two statements, set forth below, misstated the evidence with regard to the defendant’s alibi defense.

“I was going to talk to you about Mark Macon, the nephew of Mitchell’s brother-in-law. He never mentioned a time. He couldn’t come up with any times.
* * *
And, I don’t remember all the times he [the defendant] recited, but he didn’t get done at Patty Telford’s ’till 1:00 in the morning or something, and Officer Omelson got to his house at 12:41 a.m.”

The defendant notes that Mark Macon stated that the defendant dropped him off at home between midnight and 12:20 a.m., and argues that the prosecutor inaccurately portrayed Macon as a witness who was unable to remember sufficient details to corroborate the defendant’s alibi defense. The record shows that Macon was repeatedly asked about the times of various events of March 18 and was unable to remember. Macon finally stated that he remembered that the defendant dropped him off between 12 and 12:20 because everyone at Macon’s house was asleep and they usually went to sleep at “10:30, 11:00, 12:00, just different hours.” Therefore, while the prosecutor’s statement that Macon “never mentioned a time” was inaccurate, we believe that it can be viewed as a general comment on the witness’ imprecise memory. We find no plain error.

The prosecution’s statement that the defendant said he didn’t leave Telford’s house until 1 a.m. was also inaccurate, but was introduced with the phrase “I don’t remember all the times he recited” and was further qualified when the prosecutor said that the defendant left Telford’s at “1:00 in the morning or something.” Moreover, at the beginning of his closing argument the prosecutor cautioned the jury to disregard any mistakes he might make recounting the evidence and to rely on their memories.

“Closing arguments are similar to our opening statement. The attorneys both get a chance to tell you what we feel we have proven in this case. It’s not evidence. If I say something that’s inconsistent with what you heard from the witness stand, go on your own memories, disregard what I say. The same way with Mr. Craig. We are going to argue the evidence, but there’s been a lot of evidence and we may make some mistakes. Please forgive us, rely on your memories.”

Such a statement does not, of course, act as a general disclaimer which allows an attorney to distort or misrepresent the evidence; we will not hesitate in reversing a conviction where a prosecutor’s remarks deprive the defendant of a fair trial. (See, e.g., People v. Nevitt (1988), 174 Ill. App. 3d 326, 349-50, 528 N.E.2d 307, 324; People v. Linscott (1987), 159 Ill. App. 3d 71, 511 N.E.2d 1303, appeal allowed (1987), 117 Ill. 2d 549, 517 N.E.2d 1091.) A prosecutor is allowed wide latitude in closing arguments, however (People v. Marshall (1988), 165 Ill. App. 3d 968, 979, 521 N.E.2d 538, 545), and even improper comments do not constitute reversible error unless they result in substantial prejudice (People v. Collins (1985), 106 Ill. 2d 237, 276, 478 N.E.2d 267, 284, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267). We do not believe that the prosecutor’s equivocal statement concerning the time the defendant left Tel-ford’s house resulted in substantial prejudice. See People v. Pauley (1983), 117 Ill. App. 3d 486, 494-95, 453 N.E.2d 958, 964.

The defendant next complains of a remark made by the prosecutor while he was recounting the testimony of Dr. Dawdy, who examined the victim after the assault. After relating to the jury that semen had been found on the victim’s panties and that, according to the defendant, the victim had been wearing different panties when they engaged in consensual sexual relations, the prosecutor asked: “So, how does he [the defendant] explain the presence of sperm on those panties you have here that the Doctor took off her that day?” Defendant contends that this statement misinformed the jury that the defendant had the burden of disproving the State’s evidence. We disagree.

The theme of the prosecutor’s closing argument was that the jury should view the testimony and evidence as pieces of a puzzle that would match either the defendant’s or the victim’s version of what happened. The prosecutor would remind the jury of a particular item of evidence or a particular witness’ testimony and rhetorically ask whether that evidence matched the victim’s or the defendant’s “picture” of the events of March 18. Viewed in the context of the entire closing argument, the question posed by the prosecutor was not an attempt to shift the burden of proof to defendant, but was rather meant to point out that such evidence was inconsistent with the defendant’s version of the facts. A prosecutor may properly comment on the strength of the evidence (People v. Emerson (1987), 122 Ill. 2d 411, 434, 522 N.E.2d 1109, 1118, cert. denied (1988), 488 U.S. 900, 102 L. Ed. 2d 235, 109 S. Ct. 246), and remarks which merely question the validity and believability of defendant’s alibi are not improper (People v. Uzelac (1988), 179 Ill. App. 3d 395, 405, 534 N.E.2d 1250, 1256). The situation in this case is far removed from that in People v. Harbold (1984), 124 Ill. App. 3d 363, 464 N.E.2d 734, cited by defendant, where the court reversed a defendant’s conviction because the prosecutor repeatedly told the jury that the defendant had failed to prove he was not guilty. We find no error.

The last statement which the defendant cites as error occurred during the prosecutor’s rebuttal of the defendant’s closing argument. The State’s Attorney stated:

“And, ladies and gentlemen, I submit to you that every one of you heard her testimony, and you heard her difficulty in getting it out. She has visible scarring of her mind over this whole thing, and she has visible bruising of her memory. And, those things are just as traumatic to that victim as anything that Doctor could have seen that night. And, don’t you for a minute in your jury room forget it.”

The defendant contends that this statement improperly appealed to the jury’s emotions by inviting them to consider the impact of the crime on the victim. We disagree. Upon examining the record it is clear that the statement that defendant complains of was invited by the remarks of defense counsel during his closing argument. Defense counsel argued:

“We want to notice also that the Doctor left out some things in his testimony. And, by your observation you could have noticed some things. [D.G.] was not bruised anywhere. There was no testimony. All that veracity [sic] and all that hassle, no bruises, no marks. There were no scars pointed out to you on the witness stand about [sic] the severity of cuts.”

On rebuttal, the prosecutor stated, immediately prior to the remarks of which the defendant complains:

“Then let’s talk just a minute about Dr. Dawdy’s testimony with respect to [D.G.]. Ladies and gentlemen, it is ludicrous to even mention that [D.G.] didn’t have any visible bruises or show you any scars. You read those instructions all you want. The State does not have to prove he left a scar on the victim, or that he visibly bruised her. That’s not what he’s charged with, and the State does not have to prove that.
Ladies and gentlemen, the Doctor’s testimony was very clear. His penis left the trail, and his knife left a trail. Just because those weren’t still visible when she sat here in the courtroom means nothing in this case.”

A defendant may not claim prejudice from comments which were provoked or invited by the arguments of defense counsel. (People v. Richardson (1988), 123 Ill. 2d 322, 356, 528 N.E.2d 612, 625, cert. denied (1989), 489 U.S. 1100, 103 L. Ed. 2d 943, 109 S. Ct. 1577; People v. Piscotti (1985), 136 Ill. App. 3d 420, 441, 483 N.E.2d 363, 378.) Moreover, the prosecutor may comment upon the credibility of the witnesses (Richardson, 123 Ill. 2d at 356, 528 N.E.2d at 625; People v. Tannahill (1987), 152 Ill. App. 3d 882, 888, 504 N.E.2d 1283, 1287-88), the violence of the crime and its evil results (People v. Albanese (1984), 104 Ill. 2d 504, 521, 473 N.E.2d 1246, 1253; Piscotti, 136 Ill. App. 3d at 442-43, 483 N.E.2d at 379), and the trauma suffered by the victim (Tannahill, 152 Ill. App. 3d at 888, 504 N.E.2d at 1288). We find no error.

Defendant also argues that even if any single error does not require reversal, their cumulative effect denied him a fair trial. We have carefully reviewed the record and find that while the defendant did not receive a perfect trial, he did receive a fair one.

Finally, defendant argues that his right to due process was violated because: (1) the jury was not instructed on the mental state necessary to convict a defendant of aggravated criminal sexual assault; (2) the aggravated criminal sexual assault statute is overbroad because it fails to limit its reach to those acts done for the purpose of sexual gratification or arousal and thereby punishes innocent as well as culpable behavior; and (3) the aggravated criminal sexual assault statute requires no mental state while the less culpable offense of aggravated criminal sexual abuse requires an intentional or knowing touching done for the purpose of sexual gratification or arousal.

The defendant’s argument that failing to instruct the jury regarding the mental state necessary to find him guilty of aggravated criminal sexual assault violated his right to due process is unpersuasive, particularly since he did not tender such an instruction. Criminal sexual assault is a general intent offense in which the mental state of intent, knowledge, or recklessness is implied. (People v. Terrell (1989), 132 Ill. 2d 178, 207-11, 547 N.E.2d 145, 157-59; People v. Williams (1989), 191 Ill. App. 3d 269, 275, 547 N.E.2d 608, 612.) Failing to include the implied mental state in the jury instructions defining criminal sexual assault is not error. (Williams, 191 Ill. App. 3d at 275, 547 N.E.2d at 612-13; People v. Avila (1989), 180 Ill. App. 3d 345, 353, 535 N.E.2d 1027, 1032; People v. Casey (1989), 179 Ill. App. 3d 737, 743, 534 N.E.2d 1036, 1039-40; People v. Terry (1988), 177 Ill. App. 3d 185, 192-93, 532 N.E.2d 568, 574; People v. Leonard (1988), 171 Ill. App. 3d 380, 384-85, 526 N.E.2d 397, 400, cert. denied (1989), 490 U.S. 1008, 104 L. Ed. 2d 162, 109 S. Ct. 1647; People v. Ortiz (1987), 155 Ill. App. 3d 786, 791-92, 508 N.E.2d 490, 494; see also People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141.) With regard to the defendant’s two remaining contentions, we note that these arguments have previously been considered and rejected both by this court (People v. Ramsey (1989), 190 Ill. App. 3d 723, 546 N.E.2d 1108) and by the Illinois Supreme Court (People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145). Accordingly, we find no error.

For the above-stated reasons, we affirm the defendant’s conviction for aggravated criminal sexual assault.

Affirmed.

RARICK and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE WELCH

license: Public Domain

text:
    GREGORY FIRKUS, Petitioner-Appellee, v. TRUDY J. FIRKUS (now Guerra), Respondent-Appellant.
    Fifth District
    No. 5-89-0453
    Opinion filed July 19, 1990.

      Jerold H. Goldenhersh, of Belleville, for appellant.

      James M. Drazen, of Troy, for appellee.
   JUSTICE WELCH

delivered the opinion of the court:

Gregory Firkus and Trudy J. Firkus (now, Guerra) (hereinafter, husband and wife) received a judgment of dissolution of marriage in August 1981; wife was awarded custody of the minor child. In November 1988 attorney Lance Ferguson filed on behalf of wife a verified petition to remove child from State which was heard by the Madison County circuit court on February 2, 1989. At the close of wife’s evidence, the court granted a directed verdict in favor of husband, denying the petition.

On March 1, 1989, attorney Jerold Goldenhersh filed on behalf of wife an unverified, post-trial motion to reconsider. No formal entry of appearance or request for substitution of counsel was made at this time. Subsequently, all hearing notices from the clerk’s office were sent to attorneys Ferguson and Goldenhersh, as well as husband’s attorney. On March 6, 1989, attorney Ferguson sent a letter to the court requesting that wife’s petition to increase child support, pending since February 1988, be set on the next available docket. Ferguson also sent husband’s attorney a letter on the same date inquiring as to possible settlement of the parties’ disputes. Shortly thereafter, husband’s attorney requested that the court set husband’s pending petition for modification of visitation.

On March 21, 1989, attorney Ferguson filed a motion to withdraw as attorney for wife stating that attorney Goldenhersh had informed him on February 27, 1989, that he had been retained by wife to represent her and that she later confirmed this to him. Ferguson sent a copy of this motion to husband’s attorney along with a cover letter indicating that his proposed settlement outlined in a letter of March 17, 1989, had been sent to wife without comment and that he expected attorney Goldenhersh would be contacting him about the proposal.

The court set all pending matters for April 13, 1989. Husband’s attorney, however, sent a letter to attorney Ferguson on March 28, 1989, demanding compliance with an earlier discovery request. Attorney Goldenhersh filed interrogatories, a demand for production and a motion to accelerate time for compliance with discovery for the April 13, 1989, hearing, as well as a motion to continue same. The court allowed Ferguson’s motion to withdraw as counsel for wife on April 13, 1989, but upon wife’s motion filed by attorney Goldenhersh, continued to May 11, 1989, the post-trial motion and to June 7, 1989, all other pending motions.

At the May 11, 1989, hearing, husband’s attorney made an oral motion to strike wife’s post-trial motion on the grounds that attorney Goldenhersh was not an attorney of record at the time he filed same. There was no notice to attorney Goldenhersh of the oral motion to strike. The court ordered counsel for both parties to submit written argument as to the issue of “attorney of record.” On June 9, 1989, the court granted husband’s motion to strike on the grounds that the post-trial motion was unverified, thus failing to comply with section 2 — 605(a) of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 605(a)), and because the post-trial motion was filed prior to the filing of Ferguson’s motion to withdraw as counsel and without a substitution of counsel or entry of appearance by attorney Goldenhersh. Wife appeals from the June 9, 1989, order striking her post-trial motion to reconsider.

On appeal we are asked to determine whether the court below erred in striking the post-trial motion to reconsider based on the reasons stated in the order. As grounds for reversal, wife states that husband’s written argument in support of the motion to strike did not provide any authority and that the court erred in interpreting applicable rules and cases.

The first issue we will address is whether the post-trial motion to reconsider was required to be verified. Section 2 — 605(a) of the Civil Practice Law provides in pertinent part as follows:

“(a) Any pleading, although not required to be sworn to, may be verified by the oath of the party filing it or of any other person or persons having knowledge of the facts pleaded. *** If any pleading is so verified, every subsequent pleading must also be verified, unless verification is excused by the court.” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 605(a).)

Section 105 of the Illinois Marriage and Dissolution of Marriage Act provides that the provisions of the Civil Practice Law shall apply to all proceedings under the act except as otherwise provided in the act. Ill. Rev. Stat. 1987, ch. 40, par. 105.

Wife argues that husband waived her failure to verify the post-trial motion by failing to object to the motion either orally or in his written argument to the court and that had he so objected wife could have asked the court to excuse the verification requirement and allow her to swear to the allegations of the motion in open court at the post-trial motion hearing as authorized by section 2 — 605(a). Husband argues, however, that he did object orally at the hearing, and since we have not been provided with a transcript of that hearing, we cannot find that verification was not required on the basis of waiver or that wife was not afforded an opportunity to request that verification of the motion be excused. The appellant has the duty to present the reviewing court with a complete record on appeal; any doubts arising from the incomplete record are therefore resolved against the appellant, and those issues which depend for resolution upon facts not in the record mandate affirmance. Daniels v. City of Venice (1987), 162 Ill. App. 3d 788, 791, 516 N.E.2d 701, 703.

In any event this court is of the opinion that failure to verify the post-trial motion should not have served as grounds for striking same. Section 2 — 605 of the Civil Practice Law may not be used to require that pleadings governed by the Illinois Marriage and Dissolution of Marriage Act be verified. (See Ill. Ann. Stat., ch. 110, par. 2—605, Historical and Practice Notes, at 136 (Smith-Hurd 1983), citing In re Marriage of Sreenan (1980), 81 Ill. App. 3d 1025, 402 N.E.2d 348.) In Sreenan, a case involving a post-dissolution petition for allocation of college expenses of the parties’ nonminor child, the court noted that under the Illinois Marriage and Dissolution of Marriage Act petitions for dissolution of marriage are required to be verified under section 403 thereof, but there is no corresponding requirement, as there was in the section of the Civil Practice Act corresponding to section 2 — 605, that post-decree petitions be verified. (Sreenan, 81 Ill. App. 3d at 1028, 402 N.E.2d at 350.) We further note that section 609 of the Illinois Marriage and Dissolution of Marriage Act, which gives the court authority to grant leave to the custodial parent before or after judgment to remove the minor child from the State of Illinois, does not require a verified petition for leave to remove. (Ill. Rev. Stat. 1987, ch. 40, par. 609.) Nor do petitions to modify or enforce a judgment of dissolution require verified pleadings. (Ill. Ann. Stat., ch. 40, par. 511, Supplement to Historical and Practice Notes, at 215 (Smith-Hurd 1990).) Although in the instant case the petition for leave to remove was verified and the motion to reconsider was not, we do not further believe that section 2 — 605(a) should require verification of this post-trial motion, especially considering the purpose thereof, to raise to the court’s attention possible errors made in its decision and to afford an opportunity for their correction (In re Marriage of Sanborn (1979), 78 Ill. App. 3d 146, 150, 396 N.E.2d 1192, 1196).

Certain motions such as to strike or to dismiss a complaint are not considered pleadings in the cause of such character requiring a verification. (Opalka v. Yellen (1973), 14 Ill. App. 3d 779, 781, 303 N.E.2d 265, 267; McWane Cast Iron Pipe Co. v. Aetna Casualty & Surety Co. (1954), 3 Ill. App. 2d 399, 402, 122 N.E.2d 435, 436; Graff v. Arlington Seating Co. (1949), 337 Ill. App. 285, 85 N.E.2d 862 (abstract of opinion). But see Capitol Records, Inc. v. Vee Jay Records, Inc. (1964), 47 Ill. App. 2d 468, 197 N.E.2d 503.) In Capitol Records, the court disregarded paragraphs of defendant’s unverified motion to strike which controverted any facts pleaded by plaintiff’s verified complaint for temporary injunction, properly treating the motion to strike as an answer. (Capitol Records, 47 Ill. App. 2d at 477, 197 N.E.2d at 508.) In motions brought pursuant to section 2 — 615 of the Civil Practice Law, however, the defendant attacks the legal sufficiency of all or part of the complaint or asks that immaterial matter be stricken, necessary parties be added or designated misjoined parties be dismissed. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 615.) In contrast, pleadings are designed to allege or deny facts material to the proof of the case or set up affirmative defenses. A review of the statements in the post-trial motion to reconsider indicates recitation of matters of record, such as the date of the hearing and oral order denying the petition, and arguments of law in support of reversing the order, to wit, that the court erred in its decision by failing to properly consider the testimony or the applicable law as applied to the facts, and failed to properly exercise discretion in this regard. Verification of statements in the motion reflecting matters readily apparent in the record before the court should properly have been excused by the court. We therefore find that the court should have treated the motion to reconsider not as a pleading in the cause of such character requiring verification.

We next decide whether the trial court erred in determining that the post-trial motion should be stricken because attorney Goldenhersh was not the “attorney of record” at the time he filed the motion to reconsider. Husband argued in his memorandum to the court that, based on Supreme Court Rule 13(c)(2) (107 Ill. 2d R. 13(c)(2)), an attorney cannot enter his appearance in a case without leave of the court unless another attorney is substituted and, therefore, Goldenhersh was without authority to file the motion to reconsider until attorney Ferguson was allowed to withdraw nearly six weeks later. Rule 13(c)(1) requires that an attorney “shall file his written appearance or other pleading before he addresses the court unless he is presenting a motion for leave to appear by intervention or otherwise.” (Emphasis added.) (107 Ill. 2d R. 13(c)(1).) Rule 13(c)(2) provides that an attorney may not withdraw his appearance for a party without leave of court and notice to all parties of record, and, unless another attorney is substituted, he must give reasonable notice of the time and place of the presentation of the motion for leave to withdraw by personal service or certified mail and in the notice shall advise said party that to insure notice of any action, he should retain other counsel. (107 Ill. 2d R. 13(c)(2).) Rule 13, which was adopted in July 1982, represented the supreme court’s attempt to deal with the troublesome problem of when and under what circumstances an attorney for a party can withdraw. (Ill. Ann. Stat., ch. 110A, par. 13, Historical and Practice Notes, at 32 (Smith-Hurd 1985).) Under paragraph (c) of this rule, an attorney’s written appearance on behalf of a client before any court in this State binds the attorney to continue to represent that client in that cause until the court, after notice and motion, grants leave for the attorney to withdraw, and this is true whether a final judgment has been entered in the cause or the contract of employment has been carried out. Ill. Ann. Stat., ch. 110A, par. 13, Committee Comments, at 31 (Smith-Hurd 1985).

The only cases which have, to date, interpreted Rule 13’s withdrawal provisions concern the situation in which an attorney has decided to withdraw from representation of a client, not, as in the instant case, where the client has fired the attorney and seeks the substitution of another attorney. As the committee comments noted above and cases which interpret Rule 13 indicate, the concern is for the client’s continued representation and full notice and opportunity to contest withdrawal if he or she so desires. See, e.g., In re Marriage of Santa Cruz (1989), 179 Ill. App. 3d 611, 621, 534 N.E.2d 636, 642 (trial judge had no authority to allow counsel leave to withdraw and then immediately enter altered visitation order before party was notified of withdrawal and was able to secure other representation); In re J.M (1988), 170 Ill. App. 3d 552, 568, 524 N.E.2d 1241, 1251, (father was deprived of right to counsel at dispositional hearing in violation of statute where he was not present at hearing when appointed counsel filed motion for leave to withdraw or notified of the hearing on the attorney’s motion by personal service or certified mail and was not notified of the dispositional hearing in a proceeding involving a minor requiring authoritative intervention).

Cases since July 1982 which have dealt with the client’s right to discharge his attorney do not rely on or even discuss Rule 13. The general rule applied by the courts is that a client has the right to discharge his attorney at will (Ellerby v. Spiezer (1985), 138 Ill. App. 3d 77, 81, 485 N.E.2d 413, 416), and that once an attorney is discharged, a court cannot continue to recognize him against the wishes of his former client. (Meeker v. Gray (1986), 142 Ill. App. 3d 717, 724, 492 N.E.2d 508, 513.) In Gray, the defendant alleged error in that an attorney who had entered his appearance on the defendant’s behalf some five years earlier had never obtained an order recognizing his withdrawal. The court found no prejudice to defendant who had never paid or agreed to pay this attorney and who represented in his answer that he wished to represent himself. (Gray, 142 Ill. App. 3d at 724, 492 N.E.2d at 513.) Rule 13 does provide that an attorney’s motion to withdraw may be denied by the court if the granting of it would delay the trial of the case or would otherwise be inequitable. (107 Ill. 2d R. 13(c)(3).) This limitation expressed in Rule 13 would necessarily impact on both the attorney’s right to withdraw from the case as well as the client’s right to discharge and replace her attorney. See In re Marriage of Milovich (1982), 105 Ill. App. 3d 596, 616, 434 N.E.2d 811, 827 (a valid reason is necessary to discharge an attorney after trial has commenced).

We simply do not read subsections (c)(1) and (c)(2) of Rule 13 to be mutually exclusive, and therefore find that attorney Goldenhersh became an attorney of record even if attorney Ferguson was not allowed to withdraw until the motion to withdraw was heard. We believe Goldenhersh became an attorney of record at the time he filed the post-trial motion on behalf of the wife, Rule 13(c)(1) requiring the filing of an entry of appearance “or other pleading.” In fact we take judicial notice of the fact that a party may be represented by more than one attorney or more than one law firm at the same time. That is what occurred in this case until Mr. Ferguson was granted leave to withdraw from representing wife on April 13, 1989. Although wife had considered her contract with Ferguson ended when she hired Goldenhersh, the court could not take cognizance of the termination until Ferguson was granted leave of court to withdraw. While Rule 13 dictates that leave must be granted to withdraw from representation, leave is not required to enter one’s appearance, nor is an attorney prohibited from entering his appearance if another attorney had previously represented the client.

In addition, Supreme Court Rule 11 provides that “[i]f a party is represented by an attorney of record, service shall be made upon the attorney.” (Emphasis added.) (107 Ill. 2d R. 11(a).) Husband’s concern about confusion as to proper notification when more than one attorney appears on record for a party is misplaced. When more than one attorney appears for a party, service of a copy upon one of them is sufficient. (107 Ill. 2d R. 11(c).) The record indicates that this rule was complied with by husband’s attorney by delivery of papers to attorney Ferguson prior to the entry of the order of withdrawal and that Ferguson properly turned them over to his client after being notified that his authority to act for his client had been re-yoked. We also note that the circuit clerk’s office sent notices of hearings to both attorneys Ferguson and Goldenhersh. We find the court’s ruling that an attorney cannot become “of record” until the prior attorney is granted leave to withdraw to be an unreasonable interpretation of Rules 11 and 13, especially prejudicial to a party who, as in the instant case, desires to substitute attorneys during a period when time to act is limited.

Because of our finding that verification of the post-trial motion was not required and that attorney Goldenhersh should have been considered an “attorney of record” at the time said motion was filed with the court below, we hold that the trial judge erred in striking wife’s motion. Accordingly, the decision of the circuit court of Madison County is reversed and this cause is remanded for further proceedings consistent with the court’s order herein.

Reversed and remanded.

CHAPMAN and HOWERTON, JJ., concur.


author: JUSTICE HARRISON JUSTICE HOWERTON

text:
    TAMEKA STEVENSON, a Minor, by her Guardian, Magna Bank, Plaintiff-Appellee, v. HAWTHORNE ELEMENTARY SCHOOL et al., Defendants (Louella D. Stevenson, Indiv. and as Mother and Next Friend of Tameka Stevenson, a Minor, Intervenor-Appellant).
    Fifth District
    No. 5—89—0112
    Opinion filed July 23, 1990.

      HOWERTON, J., dissenting.

      Gary L. Smith, of Deffenbaugh, Loewenstein, Hagen, Oehlert & Smith, of Springfield, and Don Cary Collins, of Belleville, for appellant.
    Edward F. Brennan and Douglas B. McKechan, both of Brennan, Cates & Constance, of Belleville, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of St. Clair County which appointed the trust department of Magna Bank, N.A. (Magna Bank), as guardian of the estate of Tameka Stevenson and ordered the bank to prosecute a personal injury action on her behalf. For the reasons which follow, we affirm.

The litigation which gave rise to this appeal commenced when Henry Stevenson brought an action in the circuit court of St. Clair County in his capacity as next friend of his daughter, Tameka Stevenson, to recover damages for personal injuries which Tameka sustained when she was hit by a school bus while crossing the street. After Henry Stevenson filed his complaint, Louella Stevenson, Tameka’s mother and Henry’s ex-wife, filed a separate personal injury action on behalf of Tameka based on the same accident. When Mr. Stevenson learned of the second action, he petitioned for appointment of a guardian of Tameka’s estate pursuant to the Probate Act of 1975 (Act) (Ill. Rev. Stat. 1987, ch. lHP/a, par. 1 — 1 et seq.). In that petition, Mr. Stevenson requested that the court-appointed guardian be a bank. Louella Stevenson, in turn, filed a motion for leave to intervene in the original case brought by Mr. Stevenson and to be given the right to prosecute that action as Tameka’s next friend. She also asked that the circuit court deny Mr. Stevenson’s petition for appointment of a bank as Tameka’s guardian.

A hearing on these motions was conducted on January 20, 1989. At that hearing, Louella Stevenson’s attorney made an oral request for a continuance so that his client could appear personally and give evidence. That motion was denied, and the hearing proceeded. At the conclusion of the hearing, the circuit court denied both Louella Stevenson’s motion for leave to intervene and Henry Stevenson’s petition for appointment of a guardian. On its own motion, however, the court appointed Magna Bank as guardian of Tameka’s estate and directed the bank to prosecute the personal injury action on her behalf. Louella Stevenson now appeals. We have jurisdiction pursuant to Supreme Court Rule 304(b)(1) (107 Ill. 2d R. 304(b)(1)).

On this appeal, Louella Stevenson first contends that the circuit court’s order appointing Magna Bank as guardian must be set aside because she was denied the opportunity to appear at the guardianship hearing and present evidence. Mrs. Stevenson has cited no authority, however, which indicates that a hearing was even required. The circuit court’s appointment of Magna Bank as the guardian was authorized by section 11 — 5(a) of the Probate Act (Ill. Rev. Stat. 1987, ch. IIOV2, par. 11 — 5(a)), which provides that “on its own motion, the court may appoint a guardian of the person or estate, or both, of a minor whenever it appears necessary or convenient.” Although section 11 — 10.1 of the Probate Act (Ill. Rev. Stat. 1987, ch. IIOV2, par. 11 — 10.1) does appear to contemplate a hearing where a party has petitioned for appointment of a guardian, nothing in the Act suggests that a hearing is necessary where, as here, the guardian is appointed by the court on its own motion.

In any case, a hearing was held here, and Louella Stevenson does not dispute that she received notice of that hearing within the period specified by section 11 — 10.1(a) of the Probate Act (Ill. Rev. Stat. 1987, ch. llOVz, par. 11 — 10.1(a)). Louella Stevenson was represented at that hearing by her attorney. Mrs. Stevenson’s attorney did not make his request for a continuance so that his client could appear personally and give evidence until the hearing was underway. Whether that continuance should have been granted rested with the sound discretion of the circuit court (see Delgatto v. Brandon Associates, Ltd. (1989), 131 Ill. 2d 183, 195, 545 N.E.2d 689, 695), and no abuse of discretion is apparent here.

Another argument raised by Louella Stevenson is that the procedure followed by the circuit court in appointing the bank as guardian of Tameka’s estate was so deficient that she was denied due process of law under the State and Federal constitutions. She also claims that the circuit court erred in denying her motion for leave to intervene pursuant to section 2 — 408 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 408). We doubt that this second argument is even properly before us, for an order denying intervention cannot be appealed unless the trial court has made “an express written finding that there is no just reason for delaying enforcement or appeal” as required by Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)). (Monticello College v. Scott (1973), 13 Ill. App. 3d 133, 299 N.E.2d 778.) No such finding was entered or requested in this case. Jurisdictional problems aside, however, we think that these two argumerits are so completely without foundation that they merit no discussion.

Finally, Louella Stevenson contends that the circuit court erred in appointing Magna Bank as Tameka’s guardian because she had been awarded custody of Tameka when her marriage to Mr. Stevenson was dissolved, and under the standards set forth in the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 101 et seq.), she is therefore the person who should have been permitted to prosecute the personal injury action on Tameka’s behalf. This argument must also fail. The proceeding before us concerns the appointment of a guardian under the Probate Act, not a custody dispute under the Illinois Marriage and Dissolution of Marriage Act. The standards set forth in the Illinois Marriage and Dissolution of Marriage Act are not mandatory in guardianship proceedings. Accordingly, in a proceeding under the Probate Act, a court may make an initial guardianship determination without reference to the standards set forth in the Illinois Marriage and Dissolution of Marriage Act. In re Adoption of Scheidt (1980), 89 Ill. App. 3d 92, 97, 411 N.E.2d 554, 558.

The Probate Act plainly authorizes the appointment of a guardian to represent a minor in legal proceedings. (Ill. Rev. Stat. 1987, ch. llO1^, pars. 11 — 5(a), 11 — 13(d).) Nothing in the Act suggests that the guardian or next friend must be the custodial parent. Section 11 — 3(a) of the Act (Ill. Rev. Stat. 1987, ch. IIOV2, par. 11— 3(a)) states simply:

“A person who has attained the age of 18 years and is a resident of the United States, is not of unsound mind, is not an adjudged disabled person as defined in this Act and has not been convicted of a felony, is qualified to act as guardian of the person and, if he is a resident of this State, as guardian of the estate. One person may be appointed guardian of the person and another person appointed guardian of the estate.”

The Act also provides that the circuit court has the authority “to appoint or allow any person as the next friend of a ward to commence *** any proceeding in his behalf.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 1103/2, par. ll-13(d).

Under Illinois law, the determining question in a guardianship proceeding is the best interests and welfare of the minor (In re Marriage of Russell (1988), 169 Ill. App. 3d 97, 102, 523 N.E.2d 193, 197), not who has custody of the child. Just because a person has custody of a minor does not necessarily mean that it will be in the best interests of the minor to have that person prosecute a claim on the minor’s behalf. A parent who is skilled at child rearing may be wholly unsuited to take responsibility for maintaining a legal action to obtain redress for the child’s injuries.

Concern has been expressed that appointing someone other that the custodial parent as guardian of the child’s estate for purposes of maintaining a legal action will intrude upon the prerogatives of the custodial parent. What is at issue here, however, is not the prerogatives of the custodial parent, but the best interests of the child. Through the Probate Act (Ill. Rev. Stat. 1987, ch. IIO1^, par. 1 — 1 et seq.), the legislature has established a system for insuring that the best interests of the child will be protected in litigation involving the child’s rights. If that system is flawed, that is something for the legislature and not this court to correct.

Under the laws that presently exist, a guardianship determination will not be disturbed unless the trial court has clearly abused its discretion or its decision is against the manifest weight of the evidence. (In re Marriage of Russell (1988), 169 Ill. App. 3d 97, 103, 523 N.E.2d 193, 197.) Pursuant to this standard, no basis exists for disturbing the circuit court’s order appointing Magna Bank as the guardian of the estate of the minor child. Accordingly, that order is affirmed.

Affirmed.

CHAPMAN, J., concurs.

JUSTICE HOWERTON

dissenting:

I cannot join this decision, because, I believe, it is marked with a twofold defect.

First, this decision restricts the plenary authority of the custodial parent granted to her by a circuit court pursuant to the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 608(a)).

Second, it rewards the winner of a race to the courthouse with a preference and penalizes the loser: The preference granted to the winner is freedom from the burden of persuasion; the penalty assessed to the loser is not being able to act as next friend, unless the burden of persuasion has been undertaken and met.

I

The question of who is to initiate a lawsuit for a child, a parent who has custody or a noncustodial parent, should not be determined under the Probate Act (Ill. Rev. Stat. 1987, ch. llOVa, par. 11 — 5), but rather should be determined under section 608(a) of the Illinois Marriage and Dissolution of Marriage Act. Ill. Rev. Stat. 1987, ch. 40, par. 608(a).

Section 608(a) of the Illinois Marriage and Dissolution of Marriage Act grants full authority to the custodial parent to determine the child’s upbringing. Usage here of the term “full” to describe the boundaries of the custodial parent’s authority is fair, because the Act grants authority to the custodial parent and places limitations on that authority only on motion of the noncustodial parent and hearing by the court. Plenary, a term most apt in the circumstances of this case, is an acceptable substitute for the term “full.”

Section 608(a) provides:

“Except as otherwise agreed by the parties in writing at the time of the custody judgment or as otherwise ordered by the court, the custodian may determine the child’s upbringing, including but not limited to, his education, health care and religious training, unless the court, after hearing, finds, upon motion by the noncustodial parent, that the absence of a specific limitation of the custodian’s authority would clearly be contrary to the best interests of the child.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 608(a).

In contrast, guardianship proceedings brought under the Probate Act determine whether it is in the best interests of a child to appoint someone to have authority over the child or his estate.

In this case, the mother already had authority over the child; she had been awarded custody.

The issue here, therefore, is not that addressed by the majority, namely: whether someone should be appointed Tameka’s guardian; rather, the issue is whether imposing limitations on the authority of her mother is in Tameka’s best interests.

There are no Illinois cases on this issue; however, I believe included within the language of section 608(a), “determine the upbringing of the child,” is the implicit authority which gives the custodial parent the right to initiate litigation on behalf of the child. See Montoya v. Bebensee (Col. 1988), 761 P.2d 285; Rhoades v. Rhoades (1975), 188 Colo. 423, 535 P.2d 1122.

This implicit authority is found by the conferral of substantial authority upon the custodial parent by the statute (Ill. Ann. Stat., ch. 40, par. 608, Historical and Practice Notes, at 55 (Smith-Hurd Supp. 1990); Dymek v. Nyquist (1984), 128 Ill. App. 3d 859, 469 N.E.2d 659), and also from the fact that the statute is designed to promote privacy and to prevent the noncustodial parent from intruding upon the prerogatives of the custodial parent. See Ill. Ann. Stat., ch. 40, par. 608, Historical and Practice Notes, at 81 (Smith-Hurd 1980).

This design serves the best interests of the child by shielding the custodial parent from harassment by the noncustodial parent. So, too, the statute augments the finality of custody judgments without jeopardizing the child’s welfare. See Ill. Ann. Stat., ch. 40, par. 608, Historical and Practice Notes, at 81 (Smith-Hurd 1980).

Section 608(a) of the Marriage and Dissolution of Marriage Act, in contrast to section 11 — 5 of the Probate Act, focuses on the full, plenary authority of a custodial parent and allows a limitation on that authority only when it is clearly in the best interests of the child. The sweep is broader, for here, more is encompassed than a child’s estate, a child’s rights; instead, encompassed is the full panoply of childhood itself. The goal is that a healthy adult will molt from childhood. The path selected is one of discouraging interferences on the part of the noncustodial parent so as to foster stability and peace for the child. Section 608(a) announces a policy of reluctance to upset the equilibrium that has been struck by a judgment awarding custody.

A custodial parent, I would hold, has plenary authority over a child, that should include the right to initiate legal action.

A custodial parent, therefore, should have the exclusive right to bring a lawsuit as next friend for the child unless: (1) the custodial parent agrees that the noncustodial parent should bring the lawsuit as next friend; or (2) the noncustodial parent shows to a court in an evidentiary hearing that it is in the best interests of the child that the noncustodial parent bring the lawsuit.

II

If a court proceeds under the Probate Act, then the question of who bears the burden of persuasion depends on a “race to the courthouse.”

The parent who files first bears no burden of persuasion. Instead, the parent who objects and who seeks to displace the other as next friend bears the burden of proving that it is in the best interests of the child that she proceed. Thus, if the custodial parent has lost the race to the courthouse, she will bear the burden of persuading the court that it is in best interests of the child that she act as next friend, notwithstanding that another court already has found it in the best interests of the child that she be given the plenary authority to determine the child’s upbringing. Under the rule announced by the majority, the noncustodial parent will win when the evidence is evenly balanced, a win predicated on winning the race to the courthouse.

This is tilted. It is tilted away from the intent of the Illinois Marriage and Dissolution of Marriage Act. I do not believe the legislature intended this result.

On the other hand, if the court were to choose to proceed under the Illinois Marriage and Dissolution of Marriage Act, then the burden of persuasion always would be on the noncustodial parent, for that act, in effect, says that the custodian may determine the child’s upbringing, unless the court finds on motion by the noncustodial parent that it would be in the best interests of the child to place a limitation on the custodian’s authority. Thus, if this procedure were adopted, when a court was faced with a choice, the noncustodial parent would bear the burden and the custodial parent would get the benefit. The custodial parent would win when the evidence is evenly balanced, a sort of preference to which the parent who already has been given custody by a court justifiably is entitled.

This, too, is tilted, but in the direction of harmony, stability and towards the intent of the Illinois Marriage and Dissolution of Marriage Act.

Either the custodial parent must get this preference, this benefit of bearing no burden and winning all cases where the evidence is evenly balanced, or the party who files first must get it. The scales must be tilted in favor of one or the other. There is no alternative. Just as a circuit court must choose, so must we.

It does not seem to me to be an answer to the fact that we are called on to tilt the scale one way or the other to say, as does the majority, that

“what is at issue *** is not the prerogatives of the custodial parent, but the best interests of the child. [And,] [t]hrough the Probate Act [citation], the legislature has established a system for insuring *** the best interests of the child ***. [And,] [i]f that system is flawed, that is something for the legislature and not this court to correct.” 200 Ill. App. 3d at 996.

This is no answer, because both the Probate Act and the Illinois Marriage and Dissolution of Marriage Act are law; both look like they apply; both are to be read in pari materia; we must decide this case presented to us, which necessarily and unavoidably forces us to choose one approach or the other; to say “let the legislature fix it” just diverts attention from the fact that we have opted for the Probate Act over the Illinois Marriage and Dissolution of Marriage Act, and placed upon the custodial parent the burden of persuading a court that the best interests of the child require her to act as next friend, even though another court has said the best interests of the child require her to have custody, to have plenary authority over the child.

Lastly, I think the type of hearing that was held here was insufficient, because no evidence was taken. I would hold that a full evidentiary hearing should be afforded before a court can determine the best interests of a child.

I respectfully dissent.

       Justice Welch participated in oral argument. Justice Chapman was later assigned to this case in substitution for Justice Welch, and Justice Chapman has read the briefs and has listened to the tape of oral argument.