author: PRESIDING JUSTICE FREEMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL A. HETZEL, Defendant-Appellant.
    First District (3rd Division)
    No. 1—86—3331
    Opinion filed March 22, 1989.

      Daniel E. Radakovich, of Chicago, for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Inge Fryklund, Eileen Rubin, Andrea K. Muchin, and Thomas M. Davy; Assistant State’s Attorneys, of counsel), for the People.
   PRESIDING JUSTICE FREEMAN

delivered the opinion of the court;

After a bench trial, defendant, Michael A. Hetzel, was convicted of murder and armed violence in connection with the death of a 27-year-old woman in Lyons, Illinois. The trial court sentenced defendant to concurrent terms of imprisonment of 30 years for murder and 15 years for armed violence. Defendant appeals and asserts that the trial court erred in denying his pretrial motion to suppress statements, since defendant was denied his Miranda rights, and that the trial court erred and abused its discretion in quashing a subpoena served on a witness.

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

The following evidence was adduced at the hearing on defendant’s motion to suppress. Lyons police officer John Flanagan testified that on the morning of May 31, 1986, he and his partner, Lieutenant Donald Kroft, approached defendant, then 16 years old, and his parents, Albert and Patricia Hetzel, at the cemetery where funeral services for the victim were being held. At the request of the officers, defendant and his parents arrived at the police station that day at 12:30 p.m., where they met with Flanagan, Kroft, and juvenile officer Frank Krall. At the officers’ request, defendant’s parents signed a juvenile release form granting the police permission to speak with defendant outside of the presence of his parents. Flanagan then read Miranda warnings to defendant and his parents, all three of whom signed a waiver of Miranda rights form. Patricia Hetzel then asked Flanagan if they needed a lawyer. Flanagan responded, “[Tjhat’s what all of these rights were about,” and told the Hetzels that it was at their discretion as to whether they wanted to obtain a lawyer.

The officers then spoke with Patricia Hetzel for 20 to 30 minutes outside the presence of defendant and Albert Hetzel. The officers then spoke with defendant for approximately two hours. During that time, defendant agreed to submit to a polygraph test. The police then spoke with Albert Hetzel, outside the presence of his wife and defendant, for approximately 10 minutes. The officers then told defendant’s parents that there were discrepancies in defendant’s stories and that defendant had agreed to submit to a polygraph examination.

On June 4, 1986, defendant and his parents again went to the police station at the police’s request. Flanagan, Kroft, Krall, defendant and his parents were present in the sergeant’s office where a discussion of the polygraph test was conducted. Flanagan read aloud a juvenile release consent form printed by the John Reid Company, which conducts polygraph examinations. Defendant signed the consent form, which his parents, Flanagan, and Kroft witnessed. Defendant’s parents signed the form in another place, since defendant was a juvenile, and Flanagan and Kroft also witnessed the parents’ signatures. Albert Hetzel requested and was given a copy of the consent form.

On June 5, 1986, at the police’s request, defendant and his parents again went to the police station. The Hetzels then followed, in their own ear, Officers Flanagan and Kroft to the John Reid Company in Chicago, where they arrived around 11 a.m. Defendant went with Mark Reid, the polygraph examiner, into an interview room. Defendant’s parents remained in the reception room. Flanagan and Kroft went for coffee and returned to the Reid office at noon. Around 12:23 p.m., Mark Reid told Flanagan and Kroft that defendant had failed the polygraph test and confessed to the murder. Reid Company president Joseph Buckley then spoke with the officers. Subsequently, Buckley witnessed defendant’s confession with Mark Reid. Reid then told the officers that defendant told Buckley substantially the same story he had told Reid earlier.

Around 1:08 p.m., a formal confession was obtained from defendant in the presence of Mark Reid, a Reid Company secretary, and Flanagan. Prior to taking the statement, Flanagan read defendant his Miranda, rights from a Reid Company form. Defendant orally waived his rights and also signed a written waiver. There was no lock on the door of the interview room, and defendant was not handcuffed.

Around 2 p.m., Buckley informed Flanagan that defendant had declined an offer of food or drink. Flanagan offered defendant food or drink at 3:30 p.m., and defendant again declined. Around 4:24 p.m., Reid gave defendant Miranda rights before handing him a typewritten copy of his confession, prepared by the Reid Company secretary from her shorthand notes taken during defendant’s confession. Mark Reid read aloud the statement, in the presence of defendant, the secretary who had prepared the statement, and Flanagan. Defendant looked on his own copy, making corrections where necessary. Defendant then signed each page of the corrected written confession.

The police then told defendant he was under arrest. Flanagan asked defendant if he wanted to speak with his parents, and defendant declined. Around 5 p.m., Flanagan told Albert and Patricia Het-zel that defendant was under arrest. Flanagan admitted that around 4 p.m., defendant’s parents had requested to see Lieutenant Kroft. Between 5 and 5:12 p.m., Flanagan again asked defendant if he wanted to see his parents, and defendant again responded that he did not.

The police then drove defendant to the police station. Defendant was not handcuffed. While in the car, Flanagan “verbally reminded” defendant of his Miranda rights. From the station, the police ordered a pizza and cola for defendant at defendant’s request. Albert and Patricia Hetzel then arrived. Defendant was asked if he wanted to see his parents, and he stated he did not, since he was eating. Defendant agreed to speak to an assistant State’s Attorney, who the police indicated was on his way to the station. Before the State’s Attorney arrived, however, an attorney telephoned the station and spoke with defendant. Thereafter, defendant told police his family had hired an attorney and he would not speak further to the police. When the State’s Attorney arrived and identified himself to defendant, defendant declined to talk to him. Later, defendant’s attorney arrived at the station, spoke with defendant, and left. Defendant was asked by police if he wanted to speak to his parents, and at this point he responded that he did.

Lyons police officer Frank Krall testified that, as a juvenile officer, he was present during the May 31, 1986, interview of defendant to ensure that nothing was “done wrong,” since defendant was a juvenile. Krall ensured that defendant was advised of his Miranda rights, as an adult would have been.

Mark Reid testified that on June 5, 1986, he interviewed defendant for 20 minutes and then conducted the polygraph examination, which lasted 20 to 25 minutes. Reid did not give defendant Miranda warnings prior to or during the polygraph test, and defendant made no admissions during that time. The examination ended around 11:50 a.m. By noon, Reid determined that there were discrepancies in defendant’s answers. Reid then went into a second interview room, where defendant had been transferred after the test, and told defendant the results of the test indicated that defendant caused the death of the victim. Reid spoke with defendant for 20 to 25 minutes longer without giving him Miranda warnings. During this time, defendant made admissions to Reid regarding his commission of the murder.

Reid further stated that around 12:20 p.m., he told Flanagan and Kroft that defendant confessed to the crime. Reid and Joseph Buckley went to the room where defendant was, and defendant repeated to Buckley what he previously had told Reid. Reid and Buckley then returned to the room where Kroft and Flanagan were and told the officers of their conversation with defendant. It was then determined that a formal statement would be requested of defendant.

During cross-examination and redirect examination, Reid stated that he checked on defendant at least twice between 1:30 and 4:15 p.m., asking defendant if he needed to use the washroom or wanted food or drink, and that defendant declined. Defendant did not ask to see his parents during that time. Once when Reid looked in on him, defendant was asleep. Reid never told defendant he was free to go; however, defendant never asked to leave. Reid never told defendant that his parents wanted to talk to him.

Lyons police officer Donald Kroft testified to his participation in the investigation. Kroft admitted that no Miranda warnings were given to defendant on June 4, 1986, and none were given on June 5, 1986, until 1:08 p.m.

Albert Hetzel testified that on May 31, 1986, when his wife asked Flanagan if they needed a lawyer, Flanagan responded that in his opinion, they would only be wasting their money. Albert Hetzel also stated that he attempted four times to speak to the police while defendant was being interviewed at the Reid Company on June 5, 1986, apparently in an attempt to see defendant. First, at 12:50 p.m., he told the Reid receptionist he wanted to speak to Flanagan. The receptionist stated that Flanagan was in conference and she would get the message to him. Thirty to forty-five minutes later, Hetzel told a receptionist that he wanted to talk to Kroft, whom he had just seen in the hallway. The receptionist looked but did not see Kroft. One to one and one-half hours later, Hetzel told a receptionist he wanted to see Flanagan or Kroft. The receptionist stated that she would get a message to the officers. Finally, one hour later, around 4 p.m., Hetzel told a Reid employee of his desire to see Flanagan. The employee told Hetzel that the interview should be finished in 15 minutes.

Albert Hetzel stated that he did not see defendant at Reid after defendant was interviewed; he saw him next at the police station later that night. On cross-examination, Albert Hetzel stated that between May 31, 1986, and June 4, 1986, he and his wife discussed getting an attorney and were aware that they could get an attorney. They did not bring an attorney to the meeting on June 4, 1986. Patricia Hetzel testified and stated, as did her husband, that on May 31, 1986, Flanagan had responded to her question of whether they needed an attorney, that they would only be wasting their money.

At the close of the hearing, the trial court denied defendant’s motion to suppress. The court noted that defendant and his parents were given Miranda warnings on May 31, 1986, and indicated they understood their rights. Further, the court found that defendant’s mother knew she was entitled to an attorney, despite the alleged comment by Officer Flanagan that retaining counsel would be a “waste of money.” The court found that there was no custody until after defendant made admissions regarding the murder. The court concluded that defendant’s statements were voluntarily and intelligently made.

At trial, the victim’s parents and spouse testified, in addition to the investigating police officers. Defendant’s confession was read into the record through the testimony of Officer Flanagan. The statement indicated that defendant killed the 27-year-old victim by stabbing her. Defendant had gone to the home of the victim, who lived next door to him, to return videocassette tapes he had borrowed from the victim and her husband. The victim knelt down to place the returned tapes under the television set. As she attempted to get up, she fell back and her hand grabbed onto the inner part of defendant’s left leg. She stated she was sorry and was sure that no one would ever do that to defendant. Defendant stated that her words hurt his feelings, and he thought she meant he was not attractive. He took a knife that he carried in his pocket and stabbed the victim to death.

Defendant testified at trial and asserted that the victim had grabbed his penis. Defendant testified that when she stated she was sure no one would ever do that to him, he was thinking about an incident which had occurred when he was in first grade, when a teacher used to fondle him when she helped him get ready to go home.

At the close of trial the court found defendant guilty of murder and armed violence. At the sentencing hearing, the defense called Dr. Gaspero, a clinical psychologist who testified to his belief that the actions of defendant toward the victim came as a “rage reaction” as revenge on the teacher who had sexually abused defendant when he was in first grade.

On appeal defendant initially contends that the trial court erred in denying his motion to suppress statements. Defendant asserts that under the “totality of the circumstances,” his confession was not voluntarily given. Defendant asserts that Mark Reid acted as an agent of the police in questioning defendant on June 5, 1986, and that Reid improperly questioned defendant without giving him Miranda warnings. Defendant also contends he was denied his Miranda rights when he spoke with Reid president Buckley after confessing to Mark Reid. Further, the police were told of defendant’s statements before defendant was given Miranda warnings. In addition, defendant asserts that during the interview with Reid, he was never advised that he was free to leave or that he could request that the polygraph examination be stopped. Further, defendant was kept separated from his parents once the interview began.

In Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, the United States Supreme Court held that a defendant must be advised of his constitutional rights to remain silent and to an attorney when he is subject to custodial interrogation. The Court defines “custodial interrogation” as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 16 L. Ed. 2d at 706, 86 S. Ct. at 1612.

In Oregon v. Mathiason (1977), 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711, the Court stated, “Miranda warnings are required only where there has been such a restriction on a person’s freedom as to render him ‘in custody.’ It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.” (Emphasis in original.) (Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719, 97 S. Ct. at 714.) In Mathiason, the Court held that Miranda warnings were not required where the defendant voluntarily agreed to meet a police officer at the State patrol office to discuss a burglary. The defendant was questioned by the officer in a room with the door closed and admitted to the burglary after brief questioning.

Further amplification of the principles set forth in Miranda and Mathiason was given by the Supreme Court in California v. Beheler (1983), 463 U.S. 1121, 77 L. Ed. 2d 1275, 103 S. Ct. 3517, where the Court found that the defendant’s constitutional rights were not violated where the defendant voluntarily agreed to accompany the police to the station and where the police specifically told the defendant that he was not under arrest. While at the station, the defendant voluntarily spoke with the police regarding a murder, and no Miranda warnings were given. The questioning lasted 30 minutes, after which time the defendant was told his statement would be evaluated by the District Attorney, and the defendant was free to go home. The defendant was arrested five days later and advised of his Miranda rights. He then gave a taped confession in which he admitted that his first statement to the police was voluntarily given. The Court reiterated the constitutional requirements set forth in Miranda, and explained that, as set forth in Mathiason, “Although the circumstances of each case must certainly influence a determination of whether a suspect is ‘in custody’ for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” Beheler, 463 U.S. at 1125, 77 L. Ed. 2d at 1279, 103 S. Ct. at 3520, quoting Mathiason, 429 U.S. at 495, 50 L. Ed. 2d at 719, 97 S. Ct. at 714.

In the instant case, we must determine whether defendant was subject to custodial interrogation prior to receiving Miranda warnings, that is, during his interview and testing by the Reid Company employees prior to the time that a formal statement was taken in the presence of the police. Defendant asserts that the Reid employees served as agents of the police in questioning defendant, and therefore, defendant was entitled to his Miranda warnings before being questioned by them. The threshold question, however, is whether defendant was in custody while being questioned by the Reid employees. The trial court’s denial of the motion to suppress defendant’s statements cannot be reversed unless contrary to the manifest weight of the evidence. People v. Argo (1985), 133 Ill. App. 3d 421, 478 N.E.2d 873.

The Illinois Supreme Court, in People v. Wipfler (1977), 68 Ill. 2d 158, 368 N.E.2d 870, addressed the question of whether a defendant was subject to custodial interrogation, applying the standards set forth in Miranda. The court found that the defendant, a high school student, was not in custody under Miranda where he was not under arrest and voluntarily went to the police station, where he voluntarily answered questions of the police. The court found the evidence showed that “regardless of defendant’s subjective beliefs, he was not, and would not have been, forbidden to leave.” Wipfler, 68 Ill. 2d at 170.

In view of Wipfler and based upon the standards set forth by Miranda and its progeny, we find that defendant in the instant case was not in custody when he gave his statements to Reid and Buckley. Defendant’s freedom of movement was not restricted to such a degree as it would be if he were under arrest or otherwise subject to police coercion as contemplated by Miranda. Defendant was asked, after receiving Miranda warnings on May 31, 1986, whether he would be willing to submit to a polygraph examination, and he stated that he would. The police also told defendant’s parents on that day that defendant had agreed to submit to a polygraph examination. Several days later, defendant and his parents agreed to go to the police station and, while there, voluntarily signed a consent to a polygraph examination form.

Defendant and his parents voluntarily went to the police station again the next day, June 5, 1986, and then proceeded to the polygraph examiner’s office, traveling in their own automobile, while the police arrived there in a police vehicle. Once at the private office, defendant met the polygraph examiner and went into an interview room with him. Defendant’s parents remained, throughout the interview, in the reception room of the examiner’s office. The police left the office for a short time and then returned and waited in a separate room within the office area. Defendant was not handcuffed or otherwise physically restrained. Officer Flanagan testified that there were no locks on the door of the interview room.

Albert Hetzel testified that he attempted to see his son, by asking to speak to the police officers, his first attempt occurring around 12:50 p.m. Further, defendant was not told that his parents wanted to see him. Defendant, however, never asked to leave the room, nor did he request to see his parents. Officer Kroft testified that defendant was free to leave the Reid office after speaking to Reid and Buckley. Officer Flanagan also stated that defendant was free to leave the Reid office after he spoke with Reid and Buckley, although Flanagan later testified that if defendant had requested to leave some time after 12:23 p.m., Flanagan possibly would not have let him leave.

Under these circumstances, we find that defendant was not in custody, and therefore, Miranda warnings were not required prior to the time the police were present to take a formal statement from defendant. The trial court’s denial of defendant’s motion to suppress is supported by the manifest weight of the evidence.

Defendant cites People v. Baugh (1974), 19 Ill. App. 3d 448, 311 N.E.2d 607, cert. denied (1975), 421 U.S. 920, 43 L. Ed. 2d 789, 95 S. Ct. 1587, in which the court found that statements by the defendant given at the victim’s home in response to questions by the victim’s attorney were improper products of custodial interrogation, obtained before Miranda warnings were given. (Baugh, 19 Ill. App. 3d at 450-51.) First, the court found that the defendant was in custody as defined in Miranda since the defendant was under arrest and police officers were present at the questioning. Further, the court found that the defendant had been subjected to questions which constituted interrogation initiated by law enforcement officers, as set forth in Miranda. The court stated that counsel for the victim “acted as a police instrumentality” in questioning the defendant while he was under arrest. (Baugh, 19 Ill. App. 3d at 450-51.) Defendant also cites People v. Turner (1973), 56 Ill. 2d 201, 206-07, 306 N.E.2d 27, in which the supreme court referred to a polygraph examiner as an “agent of the police” where the examiner, aware that the defendant was mentally retarded, continued to question him after he requested an attorney.

In both Baugh and Turner, the issue for the courts’ determination was whether the statements of the defendants were voluntarily given. In both cases, the courts found that the defendants were “in custody” under Miranda and therefore were entitled to full Miranda warnings before being questioned. In the instant case, however, we need not address the issue of the waiver of Miranda rights or the voluntariness of defendant’s confession, since we have found that defendant was not in custody and therefore not subject to Miranda.

Defendant also contends that the trial court erred and abused its discretion in quashing a subpoena upon one of defendant’s former teachers. At the hearing on the motion of an attorney representing the school district where the teacher was employed, defendant’s attorney made an offer of proof regarding the relevance of producing the teacher in the instant case. Counsel stated that the victim’s actions and words reminded defendant of his being fondled by a teacher in first grade. Counsel admitted that defendant was unsure which teacher was involved, and that it might have been defendant’s regular first grade teacher or a special education teacher or one who sometimes helped the regular teacher. Defense counsel stated his desire to call one of the first grade teachers to allow defendant to view her in order to determine if she was the one who had fondled him. If defendant made a positive identification, counsel would seek leave to call the woman as a witness. The trial court granted the motion to quash the subpoena, stating that it would not subject the woman to a violation of her reputation, and further, that whether defendant could identify the woman was not relevant. Defendant contends that the trial court’s denial of an opportunity for defendant to view the witness violated defendant’s sixth amendment right to have compulsory process for obtaining a witness in his favor.

The United States Supreme Court in Washington v. Texas (1967), 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920, stated that the sixth amendment right to compulsory process and fundamental fairness at a criminal trial is violated where a defendant is denied the opportunity “to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense.” (Washington v. Texas, 388 U.S. at 23, 18 L. Ed. 2d at 1025, 87 S. Ct. at 1925; see also Roviaro v. United States (1957), 353 U.S. 53, 63-64, 1 L. Ed. 2d 639, 646-47, 77 S. Ct. 623, 629-30.) The court for the Seventh Circuit stated subsequently, “[u]nless the witness denied to the defendant could have produced relevant and material testimony for his defense, there is no constitutional violation.” (United States v. DeStefano (7th Cir. 1973), 476 F.2d 324, 330.) This court also has stated that a trial court need not issue compulsory process upon a person who is not a material witness in the case. People v. Levinson (1979), 75 Ill. App. 3d 429, 394 N.E.2d 509, cert. denied (1980), 449 U.S. 992, 66 L. Ed. 2d 288, 101 S. Ct. 527; People v. Savaiano (1973), 10 Ill. App. 3d 666, 669, 294 N.E.2d 740, 742-43.

We find no constitutional violation, error, or abuse of discretion by the trial court’s quashing of defendant’s subpoena to produce and call to the stand defendant’s former teacher in the instant case. Defense counsel admitted that he was not certain that the teacher sought to be subpoenaed was the person involved in the alleged incident while defendant was in first grade. Further, counsel’s offer of proof failed to indicate that the witness’ testimony would be relevant and material to the defense. Counsel stated that her testimony could corroborate the opinion of the psychologist, that defendant’s actions were triggered by the incident with the teacher in first grade. Defense counsel argued that defendant’s identifying the teacher was relevant to the defense regarding mitigation.

Under these circumstances, we find that the trial court properly held that defendant would be allowed to testify as to the incident in first grade, but that he would not be allowed to testify that the woman involved was or might have been the teacher defense counsel sought to subpoena. Defendant’s identification of the teacher was not relevant to the defense. If the4 defense theory of the case was to focus on the mental state of defendant when he did the acts causing the death of the victim in the instant case, then defendant’s own testimony regarding his state of mind and the testimony of the psychologist who interviewed him would be relevant and material. However, we cannot find that an identification of the teacher by defendant or the testimony of the teacher would be relevant or material to the instant case. Further, as noted by the trial court, the potential harm to the teacher, were such an identification and testimony allowed, would be great.

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

Judgment affirmed.

RIZZI and WHITE, JJ., concur.


source: Caselaw Access Project

author: JUSTICE RIZZI

license: Public Domain

text:
    RUTH TAXY et al., Plaintiffs-Appellants, v. JULIA WORDEN et al., Defendants-Appellees.
    First District (3rd Division)
    Nos. 1—87—0583, 1—87—2333, 1—87—2686 cons.
    Opinion filed March 22, 1989.

      Davis, Barnhill & Galland and Sidley & Austin, both of Chicago (George F. Galland, Jr., and Lee J. Schwartz, of counsel), for appellants.
    Winston & Strawn, of Chicago (Dan K. Webb, Steven F. Molo, and George C. Lombardi, of counsel), for appellees.
   JUSTICE RIZZI

delivered the opinion of the court:

Plaintiff-appellant Donald G. Worden appeals from a judgment of the circuit court of Cook County regarding the valuation of his stock in the three defendant corporations, Continental X-Ray Corporation, Alphatek Corporation and Allied Fabrication Corporation. Plaintiffs-appellants Ruth Taxy and CXR Corporation, in conjunction with plaintiff Worden, appeal from a judgment regarding the entry of a supervisory order and the appointment of a guardian ad litem with respect to the subject trust. On appeal, plaintiff Worden argues that the trial court committed crucial errors in the valuation proceedings of his shares in the three defendant corporations and that the resulting valuation was against the manifest weight of the evidence. Plaintiffs Worden, Tkxy and CXR Corporation further argue that the trial court erred in (1) imposing a “supervisory order” requiring the various procedures be followed in the conduct of meetings of the subject trust and (2) appointing a guardian ad litem to protect the interest of “unborn heirs” of the trust and in awarding him attorney fees and costs. We affirm.

The three defendant corporations, Allied Fabricating, Alphatek and Continental X-Ray (collectively operating companies) are closely held corporations. Allied Fabricating is a sheet metal company, Alpha-tek manufactures X-ray processors and Continental X-Ray manufactures X-ray equipment. The principal shareholders, directors and officers in the operating companies were plaintiff Donald Worden (Donald) and defendants Julia Worden (Julia) and Patrick Fitzgerald (Fitzgerald).

Prior to 1987, the operating companies leased working premises from a fourth corporation, CXR Corporation (CXR). All four companies were founded by the now deceased J. Loyal Worden. Worden’s will provided for the creation of the “J. Loyal Worden Testamentary Trust.” The trust agreement provides that (1) life-long friend and business associate Ruth Taxy (Taxy) is the life beneficiary; (2) children Donald and Julia are the remaindermen; and (3) Taxy, Donald and Julia are the trustees. The trust owns 45% of the shares of CXR and Taxy owns the remaining 55%.

Donald, Julia and Fitzgerald ran the operating companies following Loyal’s death. Taxy was an officer and employee of the operating companies. In 1985, however, a dispute arose. Donald was relieved of his duties as an officer and employee of the operating companies and Taxy’s association with the operating companies was terminated. Furthermore, Julia and Fitzgerald planned to move the operating companies out of the real estate owned by CXR.

On March 16, 1986, Donald, Taxy, CXR and the trust filed a lawsuit. The five-count amended complaint alleged that (1) the actions of Julia and Fitzgerald constituted a breach of the shareholders’ agreement to run the companies on a joint basis; (2) the actions of Julia and Fitzgerald constituted a breach of their fiduciary duties; (3) Donald, Taxy, CXR and the trust were entitled to injunctive relief against certain imminent corporate actions soon to be carried out by Julia and Fitzgerald; (4) Donald, Taxy, CXR and the trust were entitled to a preliminary injunction maintaining Donald’s and Ruth’s status in the operating companies; and (5) injunctive relief, in the alternative, should be granted, thereby selling or dissolving the operating companies.

Following the testimony of expert appraisers and the introduction of other evidence, the trial court issued an order (1) requiring Donald to sell his shares in the operating companies back to those corporations; (2) setting an aggregated price of $876,000 for those shares and allowing interest on that price from November 25, 1986; (3) allowing the shares in Alphatek to be purchased through two future installment payments; and (4) refusing to allow Donald his expert appraiser’s expenses. Further, the trial court issued an order both appointing a guardian ad litem, for the unborn heirs of the trust and awarding the guardian $25,110.70 in attorney fees and costs. Finally, the trial court issued a supervisory order with respect to Donald, Taxy and CXR entering and continuing the guardian ad litem’s petition for the appointment of a substitute trustee and governing the conduct of any trustee meetings held by Donald, Julia and Taxy. This appeal followed.

Donald first argues that the trial court committed error in its valuation proceedings and that its valuation was clearly erroneous. To support this conclusion, Donald asserts that (1) the value the trial court reached was too low; (2) the trial court erred in appointing William McMillian, the court-appointed appraiser; (3) the trial court should not have allowed installment payments for his shares in Alpha-tek; (4) the trial court deprived him of eight months’ interest required by statute; and (5) the trial court erred in denying him expert witness expenses.

The Illinois Business Corporation Act provides:

“(a) In either an action for dissolution *** or in an action which alleges the grounds for dissolution *** but which does not seek dissolution, the Circuit Court, in lieu of dismissing the action of ordering dissolution, may retain jurisdiction and:
(1) Appoint a provisional director;
(2) Appoint a custodian; or
(3) In an action by a shareholder, order a purchase of the complaining shareholder’s shares as provided in subsections
(f) and (g) below.
(g) Either the corporation or any shareholder or group of shareholders may, any time after the filing of an action for dissolution ***, petition the court to purchase the shares of a complaining shareholder and, unless the court finds such procedure to be inequitable, the court shall determine the fair value of the shares as of such date as the court finds equitable. In so doing, the court shall follow the procedures set forth for appraisal of shares under Section 11.70 and shall thereafter dismiss the action.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 32, par. 12.55.

We initially note that the term “fair value” is not defined in the statutes. Furthermore, case law on this issue clearly establishes that no precise and exact rules for determining the fair market value of stock exists. Instead, “fair value” is determined by an exercise of the court’s judgment after consideration of all relevant factors. Ahlenius v. Bunn & Humphreys, Inc. (1934), 358 Ill. 155, 168, 192 N.E. 824, 829. As delineated in Stewart v. D.J. Stewart & Co. (1976), 37 Ill. App. 3d 848, 346 N.E.2d 475, relevant factors may include:

“(a) The nature of the business and the history of the enterprise from its inception.
(b) The economic outlook in general and the condition and outlook of the specific industry in particular.
(c) The book value of the stock and the financial condition of the business.
(d) The earning capacity of the company.
(e) The dividend-paying capacity.
(f) Whether or not the enterprise has goodwill or other intangible value.
(g) Sales of the stock and the size of the block of stock to be valued.
(h) The market price of stocks of corporations engaged in the same or a similar line of business having their stocks actively traded in a free and open market, either on an exchange or over-the-counter.” (37 Ill. App. 3d at 856, 346 N.E.2d at 481.)

Finally, the importance and weight given to each of these factors rests within the discretion of the trial court under the circumstances of each case. 37 Ill. App. 3d at 856, 346 N.E.2d at 481; see also Independence Tube Corp. v. Levine (1988), 178 Ill. App. 3d 282.

The record indicates that, at trial, evidence was introduced as to the value of Donald’s stock. William G. McMillian, the court-appointed appraiser, testified as to his opinion of the value of the stock. McMil-lian stated that there are basically three accepted methods of valuing the shares of a corporation. The first method, the liquidation method, bases the value of the stock on the premise that the corporation is being liquidated. McMillian rejected this method as inappropriate and inaccurate because, not only were the operating companies not being liquidated, but the value of companies being liquidated, as a whole, is greater than the value of their liquidated assets. The second method, the income method, was also rejected. This method bases the value of a corporation upon a projection of earnings into the future. This method would produce an inaccurate valuation because the operating companies had not in the past done the type of forecasting on which this analysis depended and the earnings of the operating companies had been too erratic in the past. The third method, the comparable or market approach, was the method used by McMillian. With this method, the value of the operating companies was based upon the “price earnings ratio of comparable public companies.” This method requires a working knowledge of operations and conditions of the company being valued as well as a knowledge of the price-to-earnings ratio of comparable companies.

McMillian testified that in arriving at the value of Donald’s stock, he took a weighted average of earnings over several years and gave the greatest weight to the most recent years. He then multiplied the weighted earnings by the price-to-eamings ratio. After this calculation and method was applied to the operating companies, McMillian arrived at the following valuation: $156,888 for Continental stock; $173,350 for Alphatek stock and $77,946 for Allied Fabricating stock. Therefore, according to McMillian, the total value of Donald’s stock was $408,184.

Donald also offered the testimony of his own expert appraiser, William Raidt. Unlike McMillian, Raidt used the income method. According to Raidt, the principle approach within the income method is the direct capitalization method, which is based on the current year’s or most recently reported year’s actual financial performance, capitalized at a multiple selected in recognition of the historic pattern of growth of the companies. Raidt did not take into consideration the salaries paid to Donald, Fitzgerald, Julia and Paul Kupsco, another officer of the corporation. However, Raidt stated that not expensing the salaries of officers is tantamount to assuming that those officers do not exist as far as salary expense is concerned. This also substantially increased the value of the companies.

After several other calculations, Raidt arrived at a “primary earnings” figure and a “compound annual growth rate” for primary earnings; he then multiplied the “primary earnings” by the compound annual growth rate of “primary earnings.” This calculation was done for the year of 1985 as opposed to a weighted average of several years. This “primary earnings” calculation, according to Raidt, resulted in the “fair market value of the equity.” Finally, in reaching his valuation of Donald’s stock, Raidt took into consideration an alleged “pact of unanimity” between Donald, Fitzgerald and Julia wherein all actions would be taken by unanimous approval of the three regardless of the size of their respective interests in the companies. The sum reached by Raidt of $1,789,586 represented Donald’s combined interest in the operating companies, that is, $1,132,364 for Continental, $486,101 for Alphatek and $171,111 for Allied Fabricating. Raidt also gave a lower figure of $1,659,380, representing the reduction of Kupsco’s interest on a pro rata share basis and a reallocation of the difference among the interest of Donald, Julia and Fitzgerald.

Following the introduction of this evidence, the trial court concluded that the value of Donald’s stock in the three corporations was $876,000. The trial court arrived at this value by considering all relevant evidence presented by the experts. In fact, the trial court stated:

“The valuation of an interest in a close corporation is not an exact science, but involves many subjective and complex determinations. In a somewhat related area, it should be noted that the Internal Revenue Service recognizes that no general formula is established but that where market quotations are not available, all financial data as well as all relevant factors must be considered in reaching the fair value of stock for estate tax and gift tax purposes.
The respective weight to be given the various factors is particularly a matter for the trial judge under the circumstances.”

The court continued by delineating the three principal disputes between the parties. First of all, with respect to the alleged “pact of unanimity,” the trial court concluded that although the evidence indicated that Donald, Julia and Fitzgerald generally discussed and made policy decisions together, such actions were not unusual in closely held corporations. The court stated that it did not find that such a pact of unanimity existed or that even if one did, it could forever bind the parties. Secondly, with respect to the valuation of the stock wherein Donald’s appraiser included the salaries of Donald, Julia and Fitzgerald in their entirety as a part of the profits of the corporations, the court noted that if it were to include the salaries as part of the profits of the corporations, it would have to find that Donald, Fitzgerald and Julia performed absolutely no duties as executives of the corporations, when the evidence was clearly to the contrary. Moreover, such a conclusion falsely increased the value of the various corporations. The court gave no weight to the dividends or the lack thereof in light of the fact that close corporations seldom declare dividends, thus making this factor bear little practical effect upon the valuation of a corporation.

Finally, the court noted that although Donald was the son of the founder and performed viable services for the companies, it did not consider Donald’s expectation of continued employment with the companies a valid factor in determining the value of his shares in that it did not believe that Donald had any vested or absolute right to a continuation of his employment, an enhanced salary or increased or enhanced perquisites.

Based upon this, we cannot say the trial court’s valuation of the stock was in error. The trial court was equipped with adequate information upon which to base its appraisal. The trial court weighed the testimony of the independent court appraiser against the testimony presented by plaintiff’s appraiser. The trial court also reviewed extensive documentation and exhibits revealing the value and worth of the companies involved. We therefore conclude that the trial court’s valuation reflects careful consideration of all the evidence presented and that its judgment was not against the manifest weight of the evidence thereby requiring reversal.

Donald next argues that the trial court erred in appointing McMillian as the appraiser. It is Donald’s position that McMillian acted as an expert witness for the appellees rather than as an independent appraiser. Donald further argues that McMillian’s appointment was improper because McMillian had, in the past, worked for a company in which a partner of the law firm retained by the appellees had stock. We disagree.

Section 11.70(f) of the Business Corporation Act clearly provides:

“(f) The jurisdiction of the court in which the proceeding is commenced *** is plenary and exclusive. The court may appoint one or more persons as appraisers to receive evidence and recommend decision on the question of fair value." (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 32, par. 11.70(f).)

Nothing in the record indicates that McMillian acted as an expert for the appellees and not as an independent appraiser. In arriving at his valuation, McMillian gathered information, independent of any influence from either of the parties, and applied that information to the theory that his research indicated would give the most fair and accurate valuation of Donald’s stock. Donald has not directed us to any evidence to the contrary. Moreover, the record indicates that (1) Mc-Millian never discussed this case with the partner of appellees’ firm; (2) the partner was in no way involved in this case; and (3) McMil-lian’s affiliation with the company in which the partner had an interest ended three years prior to the inception of this case. Accordingly, we find that the trial court properly appointed McMillian to serve as the appraiser and that no impropriety existed in that appointment.

Donald further argues that the court erred in allowing installment payments to Donald for his stock in Alphatek. Section 12.55(f) allows for the shareholder to receive payment for his stock in “cash or in installments.” (Ill. Rev. Stat. 1987, ch. 32, par. 12.55(f).) This procedure applies in instances where the shareholder is seeking to be brought out. Section 12.55 is silent as to whether installment payments are permissible when the corporation is seeking the buyout. However, section 12.55 gives the trial court discretion to act in a manner deemed equitable in conducting valuation proceedings. Donald does not adequately demonstrate that he has been prejudiced by the allowance of installment payments or that the trial judge abused his discretion and acted inequitably in allowing such. Accordingly, the trial court’s decision will not be disturbed.

We furthermore find that the trial court did not err in allowing statutory interest from the judgment date of November 25, 1986. Donald argues that section 12.55(g) of the Business Corporation Act (BCA) adopts the procedure of section 11.70(g) of the BCA, which provides that the court’s judgment valuing the shares “shall include an allowance for interest ***, from the date on which the corporate action giving rise to the right to dissent is approved to the date of payment.” (Ill. Rev. Stat. 1987, ch. 32, par. 11.70(g).) Therefore, we should hold that interest in a section 12.55(g) proceeding runs from the date of the event giving the corporation the right to purchase the shares to the date of payment. We disagree.

Section 11.70(g), upon which Donald relies, provides for the payment of interest from the date on which corporate action giving rise to the dissent is approved. It applies in proceedings commenced by a shareholder exercising his right to dissent and compelling a corporation to purchase his shares. (Ill. Rev. Stat. 1987, ch. 32, par. 11.70(g).) A shareholder’s right to dissent comes into existence following the occurrence of one of several corporate actions delineated in section 11.65 of the BCA. (Ill. Rev. Stat. 1987, ch. 32, par. 11.65.) A section 12.55(g) proceeding, on the other hand, is commenced by .a corporation upon the occurrence of an event giving the corporation the right to compel the shareholder to sell his shares. Section 12.55 makes reference to various sections of 11.70 merely for identifying the manner in which proceedings for the appraisal of shares are to be conducted.

As Donald correctly argues, section 11.70(g) presupposes that (1) the dissenting shareholder sought the buyout and (2) an adjudication of a right to dissent occurred and a precise date giving rise to that right can be determined. However, neither of these events occurred in the instant case. The statutes are clear as to the different procedures to be followed when a corporation seeks to buy out a shareholder and when a shareholder seeks to be brought out by a corporation. We believe that if the legislature had intended for the same procedure to be applied when a corporation seeks a buyout as when a shareholder seeks to be bought out, it would have clearly stated such. Accordingly, we find that the trial court properly allowed Donald interest only from the date of judgment.

We further find that the trial court did not err in denying Donald fees for his expert appraiser. Section 11.70(h) of the Business Corporation Act provides:

“The court, in an appraisal proceeding commenced under subsection (e), shall determine all costs of the proceeding, including the reasonable compensation and expenses of the appraisers, if any, and experts employed by any party, but shall exclude the fees and expenses of counsel for any party. If the fair value of the shares as determined by the court materially exceeds the amount which the corporation offered to pay for those shares, or if no offer was made, then all or any part of such expenses may be assessed against the corporation.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 32, par. 11.70(h).

The allowance of appraiser fees in this instance is discretionary, not mandatory. The statute clearly states that “expenses may be assessed.” (Ill. Rev. Stat. 1987, ch. 32, par. 11.70(h).) In the case at bar, the court clearly informed the parties that an independent court appraiser would be appointed and that the operating companies would bear the cost of that appraiser’s fees. It further informed the parties that if any party desired to hire an additional appraiser, each party would have to bear that expense. In fact, the court stated:

“The cost of the appraisal will be borne by the petitioning shareholders. In the event that either dissent or majority shareholders wish to appoint or select independent appraisers, they have a right to do so; however, that will be at their cost.”

At no time did Donald object to the court’s statement or move the court for clarification. Therefore, we conclude that Donald was well aware of the fact that he would have to bear the expénses of an additional appraiser and will not now be allowed to request that he be granted fees for such.

Next, Donald, Taxy and CXR (collectively plaintiffs) argue that the court erred in entering the “supervisory order.” Plaintiffs argue that the supervisory order caused plaintiffs Worden and Taxy to (1) administer the trust in a manner at variance with the trust instrument and (2) open CXR Corporation’s records to inspection by a non-shareholder and hostile litigant. We disagree.

Absent proof of fraud, abuse of discretion or bad faith, a trustee’s exercise of discretion is not subject to interference by the court. Thus, a court is not in the position to substitute its judgment for that of the trustee if the trustee’s acts are within the bounds of reasonable judgment. (Flanagan State Bank v. BroMenn Healthcare (1986), 140 Ill. App. 3d 137, 150, 487 N.E.2d 1180, 1188.) However, this does not mean that a trust or trustee is not subject to supervision by the courts. This is so even if a trust or other document provides that the instrument shall not be accountable to any court. (In re Estate of Thomson (1986), 139 Ill. App. 3d 930, 935, 487 N.E.2d 1193, 1197.) Moreover, “[w]here great discretion is vested in the trustee the exercise of such discretion is subject to the control of a court of chancery.” Maquire v. City of Macomb (1920), 293 Ill. 441, 453, 127 N.E. 682, 687.

In the instant case, the order that plaintiffs object to provides:

“2. Pending further order of the court, all meetings of the trustees of the J. Loyal Worden Testamentary Trust shall proceed in the following fashion:
A. Meetings shall be held in or near Cook County, Illinois upon 5-day notice to all trustees accompanied by a proposed agenda of the meetings;
C. The minutes of all meetings shall be transcribed by a Certified Shorthand Reporter, the cost of which shall be paid by the trust.
3. Julia Worden shall be given full and complete access to all trust documents and documents of CXR Corporation, for purposes of inspection and copying.
4. Julia Worden shall be included as a co-signator on all bank accounts of the trust.
5. All transactions and business which may effect [sic] the value of the trust estate shall be made or implemented only after a vote is taken at a meeting of the trustees at which the transaction or business decision was discussed.”

Contrary to plaintiffs’ claims that this order causes them to administer the trust in variance with the trust agreement and opens up the company’s books to a nonshareholder, it is clear that the only purpose of this order is to supervise the conduct of the trustees’ meetings. The court, being well aware of the hostility between the parties as litigants and as trustees of the same trust, and in response to the guardian ad litem’& motion for a substitute trustee, was merely attempting to keep the same trustees in place as well as supervise the manner in which orderly business of the trust could be conducted. This order does not in any way dictate what the substance of the meeting should be or how business should be conducted. It merely takes notice of the fact that the trustees are in the midst of hostile litigation and that the trust will not benefit if some of the trustees attempt tojireeze out one of the other trustees. In light of the administrative and ministerial nature of this order, we do not agree with plaintiffs that the trial court erred in entering this order.

Finally, plaintiffs argue that the trial court erred in appointing a guardian ad litem and in awarding him attorney fees and costs. Plaintiffs assert that there was no showing of the need for such an appointment and that no showing was made of how the guardian or his attorney’s work benefited anyone. Plaintiffs conclude that, therefore, there should not have been an appointment or compensation resulting from the appointment. We disagree.

Section 2 — 501 of the Illinois Code of Civil Procedure allows for the appointment of a guardian ad litem (guardian) to represent the interest of unborn heirs. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 501.) The court is empowered to appoint a guardian whenever the court deems it “necessary for the proper and complete determination” of an unborn heir’s future interest, legal or equitable, in any property, real or personal. (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 501.) The court’s power of appointment is discretionary and will not be overturned on review absent an abuse of that discretion.

In the instant case, the court, in appointing a guardian, was merely taking the necessary steps to protect and safeguard the interest of the unborn heirs of the J. Loyal Worden trust. (See Gunnell v. Palmer (1938), 370 Ill. 206, 211, 18 N.E.2d 202, 205-06.) It was clear to the court that a conflict of interest existed with respect to Julia. Julia was a trustee as well as an officer, director and shareholder of the operating companies. She was attempting to move the operating companies from the property that was owned by the trust. According to the other two trustees, Donald and Taxy, such a move would have been irreparably devastating to the company owned by the trust. To further complicate matters, Julia, Taxy and Donald were involved in hostile litigation regarding whether Taxy was properly relieved of her duties with the operating companies and whether Donald was receiving a “fair” price for his stock in the operating companies. In light of the obvious animosity between the parties, who were also trustees with vested personal interest in the outcome of the litigation, we cannot find that the trial court abused its discretion in appointing an impartial, disinterested person to represent the interest of the contingent beneficiaries of the trust and in awarding fees to the guardian as well as his attorney.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

McNAMARA and WHITE, JJ., concur.


author: JUSTICE McNAMARA

text:
      In re MARRIAGE OF PAULETTE SLATE, Petitioner, and FREDDIE SLATE, Respondent (Wilma Wilson, Respondent-Appellee).
    First District (3rd Division)
    No. 1—88—1584
    Opinion filed March 22, 1989.
    Michael T. Tristano, of Family Law Associates, of Chicago, for appellant.
    Tim Wakenshaw, Assistant Attorney General, of Seattle, Washington, for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner, Paulette Slate, formerly a resident of the State of Washington and now living in Illinois, had her marriage dissolved in Illinois and has sought a custody determination in the circuit court of Cook County pursuant to the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1987, ch. 40, pars. 2101 through 2126) (UCCJA), since respondent, the State of Washington, had previously appointed additional respondent, Wilma Wilson, a paternal aunt residing in Illinois, as the legal guardian of the three children. The trial court here ruled that Washington retained jurisdiction under the Interstate Compact on the Placement of Children (Ill. Rev. Stat. 1987, ch. 23, pars. 2601 through 2609), and declined to exercise jurisdiction in Illinois of the custody matter. Petitioner appeals.

The record reveals the following facts. Petitioner was married on October 21, 1980, to Freddie State in Cook County, Illinois. His whereabouts are unknown. They had three children. LaTina was born on May 27, 1978, Althea on June 22, 1980, and Marguerite on September 1, 1981. The family moved to Washington, where Freddie was stationed in the Navy.

On July 8, 1982, dependency petitions were filed in Washington alleging that the mother’s mental health and father’s unavailability due to military service resulted in the children’s dependency. During 1982 and 1983, the Washington Department of Social and Health Services (DSHS) filed reports with the Washington court describing the mother’s limited progress and inability to care for the children. Several hearings held in Washington courts determined the continued dependency of the children, who lived in Washington foster homes and sporadically visited with their parents.

On August 3, 1983, petitioner returned to Chicago to live with her mother. On August 15, 1983, the Washington DSHS asked the Illinois Department of Children and Family Services (DCFS) to conduct a home study on Wilson and another relative, whose names were submitted to Illinois on the interstate compact applications, and recommend whether or not the children could be placed in one of their homes. In early September 1983 the father received an administrative discharge from the Navy.

In November 1983, social studies were forwarded to Illinois. Problems between the two agencies regarding the home studies and recommendation for placement delayed plans. The Illinois worker was unable to provide the Washington worker with an exact date as to when they could receive the required reports. The Washington agency reported to the Washington court: “Consequently, we are unable to respond and make any recommendations for the court to consider, regarding sending the children there.”

A February 16,1984, report stated:

“The issue still needing resolution in November was financial support for Ms. Wilson. Because of financial problems in Cook County (Chicago), Aid to Dependent Children support was insufficient to meet their needs. In addition, Cook County would not supply medical coupons for children who are under the jurisdiction of another state. The only solution available was to license Ms. Wilson as a foster parent, with foster care payments and medical coupons to be paid by the State of Washington. *** Supervision of the placement will be performed by the [Illinois] Department of Children and Family Services in Cook County.”

On February 26, 1984, the children returned to Chicago and were placed with Wilson. On March 21, 1984, the Washington court found the original reasons for the removal of the children continued to exist. Supervision of the Illinois placement was to occur through the DCFS.

On August 1, 1984, the Illinois DCFS reported to the Washington DSHS that the children were doing well with Wilson. The report included information regarding petitioner’s visits with the children, requests for maternal grandparent visitation, and recommendations.

On January 31, 1985, the Illinois DCFS filed a report with the Washington DSHS indicating that the 3-, 41/2- and 6-year-old girls were doing well in the Wilson home. The mother attended therapy sporadically. She visited with the children several times or would call on the day of the visit and cancel. At times, petitioner indicated she was not willing to visit the children and was afraid to leave her home. Wilson was interested in obtaining guardianship, but would require financial assistance. The Illinois agency stated it agreed that Wilson should be appointed as guardian. In February 1985, the Washington DSHS reported to the Washington court that numerous Illinois services were being provided for petitioner “to help her stabilize, all without any measure of success. The pattern continues to be as it was, when she lived in Washington State, i.e., hospitalization, with medication and psychotherapy, with some limited stability during those times. This followed by Mrs. Slate terminating the medication and psychotherapy with subsequent severe deterioration.” The Washington agency recommended that “[a]s a result of Mrs. Slate’s severe ongoing emotional and psychological problems with Mr. Slate’s lack of interest in his children, we believe the children can best be served by permanent guardianship with their aunt, Mrs. Wilma Wilson.” DSHS noted that petitioner had “made no contact with either the children or this office.”

On March 28, 1985, the Washington court entered an order appointing Wilson as guardian until each child reached 18 years of age, or until further order of the Washington court. The frequency of visitation between the children and their parents was to be at the discretion of Wilson and to be supervised by the Illinois DCFS. The Washington DSHS was designated as the agency to supervise the guardianship, “and shall supervise in the following manner: through interstate compact procedures with the Department of Children and Family Services of the State of Illinois.”

Since the entry of the guardianship order, no dependency review hearings have been conducted by the Washington court. Continued supervision has occurred through DSHS. From February 1985 through March 30, 1988, Wilson has communicated with the Washington DSHS regarding the children’s status and stability. Washington has continued to financially support the children.

All three children attend Illinois schools. Marguerite attends a special education school in the South Metropolitan Association Early Childhood Program in Homewood-Flossmoor, Illinois. The record reveals numerous reports and materials documenting her progress in correcting speech/language delays.

On December 3, 1987, the Illinois court entered a judgment for dissolution of marriage and reserved the questions of child custody, visitation, child support and maintenance. On February 22, 1988, petitioner moved for a determination of custody. On April 25, 1988, the State of Washington filed a motion stating that the court should dismiss petitioner’s motion for an order granting custody; asking that the court direct petitioner to seek any custody or placement change through the Washington courts in a termination of guardianship proceeding; asking that should the court enter custody to the mother the guardianship should remain in full force; and asking in the alternative that the court grant custody to Wilson. The State of Washington attached an affidavit of Michael T. Mitchell, assistant Attorney General for the State of Washington, along with the Washington records.

On April 26, 1988, the Illinois court entered an order finding that the Interstate Compact on the Placement of Children (ICPC) should be strictly construed; finding that Washington has provided financial assistance since 1982 and had periodically reviewed the case since 1982; and concluding that Washington retains jurisdiction in regard to the custody, pursuant to the ICPC.

The State of Washington maintains that the ICPC and the UCCJA permit the Illinois trial court to decline jurisdiction if there are significant contacts with Washington. Washington concedes that Illinois is the “home state” under the UCCJA. (Ill. Rev. Stat. 1987, ch. 40, par. 2103.04 (State where child has lived for at least six consecutive months prior to the time involved).) Washington correctly cites In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 434 N.E.2d 400, for the proposition that the interest of the child is served when the forum has optimum access to the relevant evidence about the child and the family. There must be maximum rather than minimum contact with the State. Washington argues merely that the Illinois court had the discretion to decline to exercise jurisdiction.

Under the UCCJA, jurisdiction refers not to the due process limitations of potential subject matter or personal jurisdiction, but instead to the legislature’s discretionary limitation upon the exercise of existing jurisdiction. (Siegel v. Siegel (1981), 84 Ill. 2d 212, 417 N.E.2d 1312.) Thus, the Act permits some discretion in the trial court’s determination of its jurisdiction to ensure that litigation takes place in the forum where the ties between the State and the child and his family are the closest. In re Marriage of Kitchen (1984), 126 Ill. App. 3d 192, 467 N.E.2d 344.

The purpose of the UCCJA is to assure that the litigation regarding child custody takes place in the State with which the child and his family have the “closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of this State decline the exercise of jurisdiction when the child and his family have a closer connection with another state.” Ill. Rev. Stat. 1987, ch. 40, par. 2101.

The overall purpose of the ICPC is to facilitate the cooperation between States for the interstate placement of children. Ill. Rev. Stat. 1987, ch. 23, par. 2601.

Under the UCCJA, Illinois has jurisdiction to make an initial or modified child custody determination if it is the home State; or it is in the best interest of the child because the child and at least one parent have a “significant connection with” Illinois and there is available in Illinois “substantial evidence concerning the child’s present or future care, protection, training, and personal relationships”; or the child is physically present in Illinois. (Ill. Rev. Stat. 1987, ch. 40, par. 2104(a).) Furthermore, under section 8 of the UCCJA, Illinois may decline jurisdiction if it finds that it is an inconvenient forum because, e.g., another State was recently the home State; another State has a closer connection; or substantial evidence is more readily available there. Ill. Rev. Stat. 1987, ch. 40, pars. 2108(a), (c).

In the present case, Illinois should exercise jurisdiction to make a custody determination. The children moved to Illinois four years ago. Both parents are from Illinois. The petitioner, the parents’ extended families, the three children, and the children’s guardian all live in Illinois. Any relevant information about petitioner is in Illinois. In February 1985, the Washington agency wrote that it was no longer in contact with petitioner. All of petitioner’s contacts are in Illinois, including her mother, with whom she resides; the DCFS worker with whom she meets; her psychiatrists; her job; her Red Cross caseworker; and her attorney.

Illinois holds the relevant school records, special education records for Marguerite, medical records, friends, and the maternal and paternal relatives of the children. All home studies in the last four years have been performed by Illinois agencies. All witnesses and evidence regarding custody or visitation are in Illinois. It makes little sense to force petitioner, the children and their guardian to travel to Washington, or even to communicate through mail and telephone contact with Washington agencies, courts, attorneys, social workers and other professionals involved in making a custody decision.

Clearly, Illinois has superior access to relevant information on these children. Illinois has a closer connection with the children and everyone in their family interested in the custody action. Substantial evidence, in fact all the evidence, about the children’s present and future care, protection, training and personal relationship is in Illinois. (Ill. Rev. Stat. 1987, ch. 40, par. 2104.) Illinois is not an inconvenient forum for any party involved in the custody determination. Washington was not recently the children’s home State, and the records, history and paperwork in Washington can easily be transferred to Illinois. (See Ill. Rev. Stat. 1987, ch. 40, par. 2108.) In that regard, petitioner’s counsel assured this court, at oral argument, that petitioner will offer no objection to the introduction into evidence of any Washington records in an Illinois hearing.

In the end, we must adhere to the guiding principle of the children’s best interests, which persuades us that the forum with the greater access to relevant evidence about their future care is in Illinois. (See In re Marriage of Weinstein (1980), 87 Ill. App. 3d 101, 408 N.E.2d 952.) Illinois is the most appropriate forum to litigate any possible alteration in custody.

Washington urges that it should retain jurisdiction because “the past, current and cohesive whole of the critical information” is in Washington. The legislature directs us, however, to look at the present and future circumstances, not merely at what occurred during the period when the children were in foster care in Washington. We find that the trial court abused its discretion in declining to exercise jurisdiction in the custody matter.

In holding that Illinois should exercise jurisdiction, we emphasize that we do not intend to indicate that Wilson’s guardianship established by Washington should be destroyed. The best interests of the three children are paramount. The documents before this court indicate that the children are doing well and have lived in a stable home for four years. On remand, the Illinois trial court must consider any relevant evidence offered in the custody hearing, and this opinion is not meant to usurp the trial court’s role in that proceeding.

In view of our holding, we need not address petitioner’s other contentions.

For the foregoing reasons, the judgment of the circuit court of Cook County, declining the exercise of jurisdiction in deference to the courts of Washington, is reversed, and the cause is remanded for further proceedings consistent with the holdings contained herein.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.


text:
    BESSIE LAPIDUS, Plaintiff-Appellant, v. UNION OIL COMPANY OF CALIFORNIA, Defendant-Appellee.
    First District (3rd Division)
    No. 1—88—2472
    Opinion filed March 22, 1989.

      Raymond P. Concannon, Ltd., of Chicago (Raymond R Concannon and Michael P. Concannon, of counsel), for appellant.
    Querrey & Harrow, Ltd., of Chicago (Ellyn B. Dorf and Victor J. Piekarski, of counsel), for appellee.
   JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff Bessie Lapidus appeals from an order of the trial court granting summary judgment in favor of defendant Union Oil Company of California in this premises liability action which alleges plaintiff sustained personal injuries when she fell while walking across a defect in the driveway of defendant’s gas station.

The complaint alleges that on September 3, 1984, the 77-year-old plaintiff was “walking on or about the driveway” of defendant’s Chicago gas station at a point where the driveway “crosses over [the] public sidewalk.” Plaintiff was “caused to trip and forcibly fall to the pavement because of the presence of [a] cracked, uneven and depressed driveway” which was present due to defendant’s negligence.

Defendant’s answer admitted plaintiff had fallen, but denied the “fall was because of the presence of [a] cracked and uneven and depressed driveway.” Defendant also filed an affirmative defense stating that the sole proximate causes of plaintiff’s alleged injuries were that she “[flailed to keep a proper lookout for where she was walking” and “[flailed to notice cracks and depressions in the pavement which could or might have caused her to slip or trip.”

On October 14, 1986, plaintiff completed sworn answers to interrogatories, which included the following information:

“INTERROGATORY: State in detail where you fell.
ANSWER: Driveway of defendant’s gas station as it crosses over sidewalk area.
INTERROGATORY: State in detail what caused you to fall.
ANSWER: Defective — uneven.”

Plaintiff was admitted to the hospital with a fractured nose, fractured foot, fractured rib, concussion, abrasions, and aggravation to disc disease and osteoporosis.

On December 2, 1986, defendant answered interrogatories indicating that Chicago police officer J. Holder was present at the scene immediately after the accident. Defendant also indicated that it had taken two photographs of the gas station premises in April 1986.

On September 17, 1987, plaintiff’s deposition was taken by defendant. Plaintiff stated that at about 5 p.m. on September 3, 1984, she was walking to the park with her sister-in-law, who is now deceased, near the corner of Western and Pratt in Chicago. It was light outside and the weather was dry. She wore low-heeled shoes which were about two months old. They were walking slowly and she carried only a purse.

Interspersed throughout the deposition, plaintiff was asked about the fall itself. She could recall little about the precise details of the fall.

Plaintiff stated that she saw a driveway.

“A. *** [T]here is a sidewalk there and a driveway. And the sidewalk, it wasn’t even, between the sidewalk and the driveway.
Q. Did you fall on the sidewalk?
A. I fell forward, yes.
Q. But were you on the sidewalk when you fell?
A. I don’t remember.
I was in shock. I really couldn’t tell you.
I fell on the sidewalk near the driveway where it was uneven.
Q. So you fell on the sidewalk near the driveway, correct?
A. Yes.
I lost my footing. It happened so fast, I just fell forward.
Q. So you don’t remember whether you tripped, or whether you slipped?
A. I just fell forward.
Q. Do you know what caused you to fall forward?
A. The unevenness.
Q. Of the concrete of the sidewalk?
A. Yes.
I guess I was closer [than her sister-in-law] to the uneven part of the sidewalk. It was higher than the driveway.
Q. You said you’re not sure whether you tripped or slipped; is that correct?
A. Yes. I don’t remember tripping or slipping; just falling.
Q. The only thing you remember is going forward; correct?
A. Yes.”

Later, defense counsel returned to questions about the location of the accident:

“Q. Was there a driveway near where you fell?
A. Between the sidewalk and the driveway. The sidewalk was a little higher.
Q. The sidewalk was higher than the driveway?
A. Yes. It’s uneven.
Q. Did you fall when you stepped from the sidewalk to the driveway?
A. I don’t remember. It happened so fast.
Q. So you don’t know if you were on the driveway at all when you fell; is that correct?
A. I don’t remember.”

Defense counsel also asked plaintiff to look at two photographs of the comer of Pratt and Western and identify the area where she fell. Plaintiff replied that, as to either photograph, she was unable to tell from the picture where the driveway was located, or on which corner the gas station was located. Defense counsel asked, “So you can’t tell, looking at deposition exhibit no. 2 for identification, where you fell, correct?” Plaintiff replied, “I can’t tell from those pictures.”

On May 16,1988, plaintiff filed an affidavit which stated:

“When we reached an area where the public sidewalk meets with the gas station driveway, my left foot went into a depression located in the driveway and I fell forcibly onto the driveway.
Immediately after I fell I saw that the area where I had stepped was not level in that the gas station driveway was lower than the sidewalk creating a depression in the surface.”

The trial court granted defendant’s motion to strike the affidavit due to its contradiction of the deposition testimony. The trial court also granted defendant’s motion for summary judgment.

Plaintiff contends that the trial court erred in granting summary judgment in favor of defendant. We agree. A motion for summary judgment should not be granted where there exist genuine issues of material fact. (Amin v. Knape & Vogt Co. (1986), 148 Ill. App. 3d 1075, 500 N.E.2d 454.) The trial court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the motion’s opponent. (Fearon v. Mobil Joliet Refining Corp. (1984), 131 Ill. App. 3d 1, 475 N.E.2d 549.) If the facts allow for more than one conclusion or inference, including one unfavorable to the moving party, the motion for summary judgment should be denied. The right of the moving party to summary judgment must be clear and free from doubt. Amin v. Knape & Vogt Co., 148 Ill. App. 3d 1075, 500 N.E.2d 454.

Plaintiff’s June 1986 complaint alleges that she fell while “walking on or about the driveway” where it “crosses over [the] public sidewalk.” Plaintiff’s answer to an interrogatory states she fell on the “driveway of defendant’s gas station as it crosses over sidewalk area.” In her deposition, plaintiff repeatedly describes the difference in height between the driveway and sidewalk, causing her to fall to the pavement.

“[Tjhere is a sidewalk there and a driveway. And the sidewalk, it wasn’t even, between the sidewalk and the driveway.
I fell on the sidewalk near the driveway where it was uneven.
I guess I was closer to the uneven part of the sidewalk. It was higher than the driveway.
Between the sidewalk and the driveway. The sidewalk was a little higher. *** It’s uneven.”

While it is not clear whether plaintiff’s entire body landed on the driveway, sidewalk, or on both, we do not see how that factual determination would warrant summary judgment. Plaintiff’s counsel correctly argued before the trial court that if a person fell because of an oil slick on the driveway, but actually landed 10 feet into the street, the final resting place of the body does not require a finding as a matter of law that the oil slick could not have caused the initial fall.

Some ambiguity arose during the deposition, but only in places where defense counsel reworded plaintiff’s statements, or plaintiff had difficulty understanding the questions. (See Canzoneri v. Village of Franklin Park (1987), 161 Ill. App. 3d 33, 513 N.E.2d 1101 (summary judgment not warranted, notwithstanding fact that during deposition, 76-year-old plaintiff showed some confusion as to questions regarding exact location of sidewalk where she fell).) For example, in the present case:

“A. *** [T]here is a sidewalk there and a driveway. And the sidewalk, it wasn’t even, between the sidewalk and the driveway.
Q. Did you fall on the sidewalk?
A. I fell forward, yes.
I fell on the sidewalk near the driveway where it was uneven.
Q. So you fell on the sidewalk near the driveway, correct?
A. Yes.
Q. Do you know what caused you to fall forward?
A. The unevenness.
Q. Of the concrete of the sidewalk?
A. Yes.”

Statements made by plaintiff herself, however, are quite clear. Fair-minded persons could draw differing inferences from the facts presented.

Considering the entire record before us in a light most favorable to plaintiff, we conclude that defendant’s right to summary judgment is not clear and free from doubt. (See Canzoneri v. Village of Franklin Park, 161 Ill. App. 3d 33, 513 N.E.2d 1101.) Plaintiff need not prove her case in response to defendant’s motion for summary judgment, but need only present some factual basis which would arguably entitle her to judgment in her favor. See Lindenmier v. City of Rockford (1987), 156 Ill. App. 3d 76, 508 N.E.2d 1201.

The trial court stated that “in her deposition testimony she said she was in shock and didn’t really know what caused her to fall, which would be a Kimbrough-type situation.” Kimbrough v. Jewel Cos. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328, involved a plaintiff who fell on a ramp at a Jewel store, but did not know why she had fallen or if she had slipped on a grease spot on the ramp. Summary judgment was granted in favor of defendant due to the failure to establish any causal connection between the condition of defendant’s property and plaintiff’s fall. Unlike Kimbrough, plaintiff here specifically asserted a defect in the driveway, claiming that it caused her to fall. (See Canzoneri v. Village of Franklin Park, 161 Ill. App. 3d 33, 513 N.E.2d 1101.) We hold that the trial court erred in entering summary judgment for defendant.

The trial court properly struck plaintiff’s affidavit, filed after her deposition. The affidavit at least in part contradicted plaintiff’s deposition testimony. The affidavit, however, does not affect our decision, and we need not discuss that issue.

For the foregoing reasons, the judgment of the circuit court of Cook County granting summary judgment in favor of defendant is reversed and the cause is remanded for further proceedings consistent with the holdings of this opinion.

Reversed and remanded.

RIZZI and WHITE, JJ., concur.