author: JUSTICE RAKOWSKI

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DUNCAN WESTFIELD, Defendant-Appellant.
    First District (6th Division)
    No. 1—89—0793
    Opinion filed December 21, 1990.

      Randolph N. Stone, Public Defender, of Chicago (Kyle Wesendorf, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, David R. Butzen, and Michele I. Lavin, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Following a bench trial, defendant Duncan Westfield was found guilty of criminal sexual assault, criminal sexual abuse and unlawful restraint, with the two lesser charges merging into the criminal sexual assault charges. Defendant was sentenced to five years’ imprisonment. The issues raised on appeal are whether defendant was proved guilty beyond a reasonable doubt and whether the trial court imposed the burden of proof on defendant.

The evidence presented at trial established that about 11 p.m. on June 26, 1988, complainant, a 34-year-old homeless woman, went to Lincoln Park in Chicago. As she sat down on a seat near the statue of Abraham Lincoln, she saw defendant nearby holding a bottle in his hand. When he started to talk to her, complainant told him to go away. She then noticed that defendant’s pants were open. At this point defendant tried to drag complainant behind the statue. She resisted, he ran away and she returned to the seats near the statue. About 20 to 30 minutes later complainant started to walk away from the statue when she again saw defendant standing by the bushes down around the statue. As complainant started to run away, she tripped and fell and defendant caught her. The two struggled and defendant held her down with one hand while he touched her vaginal area with the other hand. When complainant started to scream, defendant put one hand over her mouth. He then pulled down her pants and “started putting his fist back and forth up in my [complainant’s] vagina.” As complainant continued to struggle with defendant, she grabbed a chain from his neck, which she later gave to the police when she was taken to the station. Complainant testified that sometime during the struggle two men, who complainant “figured” were policemen, came up to them and told defendant to leave complainant alone, at which point defendant fled from the scene. Complainant told the two men that defendant had raped her. Another officer then arrived in a car, and he said that he was going to go after defendant and that complainant should wait. A while later the police returned with defendant, whom complainant identified as her assailant. Complainant stated that at the time of the incident she was on the second or third day of her period and she was still bleeding.

Police officer James Boyle testified that he was off duty and driving in the vicinity of the park when he heard a woman scream for help. He entered the park in his car and drove with the headlights turned on until he saw defendant and complainant “tussling” on the ground. When the officer came within about 75 feet of them, defendant began to run away and complainant followed after him, telling him to stop. The officer followed alongside complainant, keeping defendant in sight. The officer testified that when he asked complainant what happened, she replied, “[H]e hurt me, please help me, stop him.” The officer followed defendant through the park until defendant eventually responded to the officer’s order to stop. Shortly thereafter other officers arrived in a squadrol and defendant was placed inside. Complainant was then taken to the squadrol, where she identified defendant as her assailant. Officer Boyle then retraced the path he observed defendant run in search of a shirt he saw defendant discard while being pursued by the officer. The officer testified that when he found the shirt, it appeared to have a dark brown “mucous type fluid” which he thought was “clotted blood, and that the fluid was moist.” The officer further testified that when he went to retrieve the shirt, he heard two men speaking from behind some nearby bushes. When the officer asked who they were, one of the men stated that they had given that information to another police officer. After the officer returned to the police station, he interviewed complainant, during which she gave him a gold chain and hat she had taken from her assailant. When the officer placed the shirt, hat and chain on a table near the cell in which defendant was placed, defendant volunteered that those items belonged to him.

Police officer Daniel Healy testified that after defendant was in custody at the police station and had been advised of his rights, defendant said, “I am not a rapist.” Defendant had not yet been advised of the charges against him.

Defendant testified that he was 26 years old and worked for the Chicago Park District as a landscape maintenance laborer. He stated that about 11 p.m. on the date of the incident he went to a restaurant in the Lincoln Park area to visit a friend who worked there, but upon learning that his friend had already left, defendant went to a nearby store and purchased a bottle of wine. He then went to the park near the statue of Lincoln, where he saw complainant, whom he asked what she was doing in the park at that time of night. After complainant mumbled something, defendant told complainant that he was trying to be nice to her, and she responded by cursing at him. Defendant stated that he was about to go home, but his conscience bothered him so he decided to give complainant some money for food. As he tried to hand her the money, complainant snatched a chain he was wearing around his neck and ran. Defendant followed after her, and they both fell to the ground. Complainant started yelling for help, and defendant heard a man’s voice from some nearby trees tell defendant to let go of her. Defendant then saw a car enter the park. When the man in the car approached defendant, he thought that the man was a detective. According to defendant, he knew that he was going to be searched so he panicked, because he had a “reefer” in his pocket, and ran around the statue, took the “reefer” out of his pocket and took off his sweatshirt in order to give his pursuer a decoy. Defendant testified that he never sexually assaulted complainant and he never removed or pulled down her pants.

Lydine Holloman testified that she became acquainted with defendant several .years earlier as an employee with the Chicago Park District, and that she saw him on a daily basis. She stated that defendant was “one of the best young men [she] worked with during [her] years with the park district.” She also testified that he was an honest and nonviolent person.

Nettie Mae Carter also testified as a character witness. Carter is affiliated with the church defendant attends and has known him since he was six years old. She stated that his reputation for being honest and nonviolent was excellent.

Police officer Ralph Sikorski testified that when he interviewed defendant at the police station, he asked defendant how complainant got his chain, and defendant responded that he did not know. The officer also stated that defendant never told the officer that complainant took a chain from his neck.

The parties entered into a stipulation concerning the testing of blood found on defendant’s clothing and the blood type of defendant and complainant. Defendant had type A blood and complainant had type 0 blood. It was also determined that the stains on defendant’s shirt were bloodstains. The stipulation provided that although the bloodstains were most likely type A blood, it was also stipulated that the possibility could not be ruled out that it was type 0 blood or a combination of type A and type 0.

In finding defendant guilty the trial court stated as follows:

“The court has heard the conflicting testimony of both the victim and the defendant. There has been no explanation offered to the Court as to why the pants of Mr. Westfield [defendant] were unzipped as corroborated by Officer Boyle who happened upon the scene. The defendant testified himself he had no idea as to why there was blood, be it the victim’s or his, on his sweatshirt, and there has been no explanation as to why, after having agreed, according to the detective, to answer questions in the police station, that there was no mention made of the victim snatching chains from Mr. Westfield’s [defendant’s] neck.
While the Court is cognizant of evidence showing the defendant to be a person presumably of good moral character prior to this incident and being a person who had a reputation for being honest and trustworthy and non-violent, the Court nonetheless, having considered all the evidence, is persuaded that the victim here is, to be believed, that her story was credible and corroborated, and the Court believes sufficient to warrant a finding of guilty as to the three charges that are before the Court.”

Defendant first contends that the evidence was insufficient to establish guilt, arguing that because it is a sexual assault case complainant’s testimony must be clear and convincing or it must be corroborated. We disagree. Recently, in People v. Roy (1990), 201 Ill. App. 3d 166,185, 558 N.E.2d 1208, the court stated:

“[TJhere is no additional requirement that in a case in which a sex offense is charged the State must, in addition to proving the defendant guilty beyond a reasonable doubt, demonstrate either the evidence is substantially corroborated or the victim’s testimony is clear and convincing. The testimony of no other category of crime victim is held to be automatically suspect or to require additional proof beyond the statutory requirements.”

We adhere to the view expressed in Roy and review the evidence in this case accordingly. People v. Evans (1990), 199 Ill. App. 3d 330, 335, 556 N.E.2d 904.

In determining whether the evidence was sufficient to support defendant’s conviction, we are guided by the general rule that a reviewing court will not reverse a conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of guilt. (People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461.) This reasonable doubt test should be applied in reviewing the sufficiency of evidence in all criminal cases. People v. Pintos (1989), 133 Ill. 2d 286, 291, 549 N.E.2d 344.

Viewing the evidence in the light most favorable to the prosecution (People v. Pintos, 133 Ill. 2d 286), cognizant that conflicting testimony is to be resolved by the trier of fact (see People v. Murray (1989), 188 Ill. App. 3d 488, 544 N.E.2d 1008), we find that the State’s evidence was not so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. Complainant testified that when defendant first approached her, she observed that his pants were unzipped. The next time he approached, she attempted to flee, but tripped and fell. Defendant caught complainant, put his hands over her mouth, pulled down her pants and put his fist “back and forth” in her vagina. Complainant stated that she had her period at the time. Officer Boyle testified that he saw complainant and defendant “tussling” on the ground, but that as he approached them, defendant got up and ran. When he finally apprehended defendant, he observed that defendant’s pants were unzipped. A chemical analysis of stains on defendant’s shirt established that the stains were blood, and although the blood was most likely defendant’s blood type, it could not be ruled out that the blood type could have been that of complainant or of both defendant and complainant. The evidence was sufficient for the trial court to find defendant guilty beyond a reasonable doubt.

Defendant next contends that he is entitled to a new trial because the trial court’s statement made before entering a finding of guilty indicates that the court imposed the burden of proof on defendant. Defendant cites the following statement of the court to support his claim:

“There has been no explanation offered to the Court as to why the pants of Mr. Westfield were unzipped as corroborated by Officer Boyle who happened upon the scene. The defendant testified himself he had no idea as to why there was blood be it the victim’s or his, on his sweatshirt, and there has been no explanation as to why, after having agreed, according to the detective, to answer questions in the police station, that there was no mention made of the victim snatching chains from Mr. Westfield’s neck.”

Before addressing the merits of defendant’s claim, we note the State’s comment that defendant waived the issue by failing to raise it at trial or in a post-trial motion. Because of the fundamental importance of a fair trial and the practical difficulties in objecting to the conduct of the trial court, the waiver rule is applied less rigidly when the judge’s conduct is the basis of objection. (People v. Barrow (1989), 133 Ill. 2d 226, 260, 549 N.E.2d 240; People v. Cobbins (1987), 162 Ill. App. 3d 1010, 1028, 516 N.E.2d 382.) Therefore, we will address the merits of defendant’s claim.

In order for the comments by a judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he was harmed by them. (People v. Freeman (1989), 182 Ill. App. 3d 731, 734, 538 N.E.2d 681 (jury trial); People v. Carrasquilla (1988), 167 Ill. App. 3d 1069, 1079, 522 N.E.2d 139 (bench trial).) We do not find that the comments challenged by defendant in the instant case were either prejudicial or harmful to defendant. After reviewing the entire record, we hold that the trial court based its finding of guilt on the evidence presented by the State and not, as defendant contends, on the basis of defendant’s failure to present certain evidence. While defendant accurately quoted the court’s comments regarding defendant’s failure to explain certain matters, he neglected to quote the comments that followed wherein the court stated: In a bench trial, it is the function of the trial court to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Colson (1989), 187 Ill. App. 3d 423, 432, 543 N.E.2d 282.) The trial court’s comments in the instant case indicate that the court properly performed these functions and based its finding of guilt on the evidence presented by the State. Consequently, we conclude that the challenged comments made by the court did not constitute reversible error so as to award defendant a new trial.

“Having considered all the evidence, [the court] is persuaded that the victim here is to be believed, that her story is credible and corroborated, and the Court believes sufficient to warrant a finding of guilty as to the three charges that are before the Court.”

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

Judgment affirmed.

McNAMARA and EGAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE EGAN

license: Public Domain

text:
      In re MARRIAGE OF MARGO KRUPP, Petitioner-Appellee, and DAVID J. KRUPP, Respondent-Appellant.
    First District (6th Division)
    No. 1—89—2169
    Opinion filed December 21, 1990.

      Schiller, Du Canto & Fleck, Ltd., of Chicago (Robert W. Wilcher and Sarane C. Siewerth, of counsel), for appellant.
    Beermann, Swerdlove, Woloshin & Barezky, of Chicago (Howard A. London, of counsel), for appellee.
   JUSTICE EGAN

delivered the opinion of the court:

The respondent, David J. Krupp, appeals from the judgment of the circuit court on his petition to modify and decrease an award of permanent maintenance to his former wife, Margo Krupp. After a trial the judge ordered maintenance payments reduced by one-half, to $2,500 a month for an indefinite period, retroactive to December 15, 1987. The respondent then filed a motion for reconsideration of the modification and for the first time asked that maintenance be abated or, alternatively, that maintenance be reduced further and that the reduced payments be for a “brief, fixed period of time.” The respondent also appeals from the order denying his motion to reconsider. He asks in this court that we reverse the trial court and instruct it to enter an order abating maintenance. In his reply brief he asks alternatively that we reverse the order and remand it. to the trial court with instructions to award a nominal maintenance for a short, fixed period of time.

The facts are essentially uncontested. The respondent and petitioner married on September 20, 1953, and divorced on October 31, 1984. At the time of dissolution, the petitioner was 53 and the respondent was 58 years old.

Although the petitioner had earned a college degree from New York University before her marriage, she was not gainfully employed outside the home during most of her married life. Rather, she concentrated primarily on raising the couple’s two children, who were emancipated at the time of dissolution.

The petitioner first sought work outside the home after the couple moved to Chicago. From January 1975 to September 1976, she worked as the program director for the North Shore YWCA. From October 1976 to July 1978, she worked as director of development for the Roger Baldwin Foundation of the American Civil Liberties Union. From July 1978 to September 1979, she was director of special events for WTTW/Channel 11. From October 1979 to May 1982, she was director of development and communications for Chicago Youth Centers. The petitioner turned her paychecks over to the respondent until sometime during her employment with the Chicago Youth Centers. The highest salary the petitioner earned at this time was approximately $34,000 a year; however, back surgery in December 1981 precluded her from working full time and the respondent testified that she was never fully employed at this salary for any appreciable length of time.

The respondent testified that he paid approximately $5,000 to $6,000 in uncovered medical bills for his wife’s surgery. In June 1982, the petitioner began her own corporation which was known as Margo Krupp, Inc., through which she did consulting work just before the dissolution of the marriage.

The respondent began practicing law two years after the couple married. From February 1965 to September 30, 1983, he was a partner in a Chicago law firm which was originally known as Devoe, Shadur, Mikva & Plotkin; the firm later became known as Krupp & Miller and then Miller, Shakman, Nathan & Hamilton (Miller). In October 1983, the respondent shared offices with and paid rent to Greenberger, Krauss & Jacobs Chartered (Greenberger). Although he was technically held out as “of counsel” by the firm, he was substantially in practice for himself from October to December 1983. During this period, he reported a loss of $6,307 and capital expenditures of $6,500 for office furniture and equipment.

The parties’ taxable income from employment and savings during the last six years in which they filed joint tax returns was as follows:

Margo’s Interest Dividend Self-Employ- Schedule E
Year Wages Income Income ment Income Income
1978 $17,771 $ 167 0 0 $78,857
1979 24,115 425 $ 3 $1,123* 93,985
1980 31,431 2,000 0 0 121,365
1981 34,192 2,109 0 0 125,094
1982 15,951 3,671 0 83 125,531
1983 2,000 5,740 256 -6,307 132,896

The parties’ disposable income after payment of income and social security taxes was as follows: $61,187 in 1978; $72,402 in 1979; $89,487 in 1980; $97,707 in 1981; $96,465 in 1982; $93,078 in 1983.

By 1984, the couple lived comfortably in a four-bedroom condominium, owned a 1980 Buick, owned a one-third interest in a small sailboat and belonged to the East Bank Club. They entertained and traveled, but the respondent testified that, in later years, most of their travel was business related. The couple contributed approximately $4,000 to charity each year. They contributed $2,700 per year to support the respondent’s mother and loaned their daughter $11,500 in 1982 and 1983. They also made retirement contributions to IRA’s and a Keogh plan totalling $28,900. The respondent testified that he borrowed funds to meet various obligations. Specifically, he borrowed funds to help pay for certain living expenses such as the petitioner’s medical expenses and the children’s education. The couple paid their son’s college and graduate school tuition and room and board at Yale apparently from 1975 until 1982. The petitioner testified that the couple’s lifestyle cost more than he earned. In 1983 and 1984, he withdrew more than his share of income from the law firm which, in turn, depleted his capital account. The respondent estimated that the petitioner earned more than $40,000 during the last four years of their marriage which she deposited into her own accounts. At the time of dissolution, the respondent owed $50,000 in loans he had taken out on several insurance policies.

In 1984, the year of dissolution, the petitioner continued her consulting work through Margo Krupp, Inc.; the respondent became officially employed by Greenberger. On her separately filed tax return, the petitioner reported total income of $12,873 which included $10,000 in maintenance payments and $945 in dividends; she reported no income from employment of any kind, reporting instead a loss of $900 from Margo Krupp, Inc. The respondent reported $150,500 in wages from Greenberger and $114,382 in Schedule E income from Miller of which he received all but $32,000 in 1983. He paid approximately $105,299 in Federal and State income taxes and FICA in 1984. He also paid the petitioner $10,000 in maintenance and $3,000 in legal fees. For three months, he continued to make payments of $746 per month as principal, interest and taxes on the couples’ jointly owned condominium in which they both lived until a few weeks before entry of the order of dissolution. He also continued to fund the petitioner’s checking account until the beginning of October. The respondent reported $41,393 as his net cash flow from the practice of law in 1984.

A lengthy and detailed marital settlement agreement was specifically incorporated into the judgment for dissolution. Under its terms the respondent agreed to pay the petitioner permanent maintenance of $60,000 annually, payable in the sum of $5,000 each month. The respondent testified that the parties directly negotiated this figure between themselves. Payments were to continue until either the respondent’s death or the petitioner’s death, cohabitation or remarriage. The parties specifically provided that the terms of maintenance were predicated on the represented income of the parties, the style of living established during the marriage and the potential of each party for acquiring future assets. The petitioner retained the right to occupy the couple’s condominium until it was sold, paying associated maintenance fees; the respondent was obligated to pay the mortgage. The petitioner agreed to quitclaim her interest in the condominium to the respondent upon its sale so that he could partially shelter the anticipated capital gains with the $125,000 life-time exemption under the Internal Revenue Code. In so doing, the respondent bore the burden of the capital gain realized in the sale of the unit.

The respondent also agreed to maintain four life insurance policies for the petitioner’s benefit until he met his obligations under the agreement. He further agreed to maintain term life insurance for the petitioner’s benefit which he received through Greenberger and to replace as much of it as he could obtain for the premium charged to the firm should he ever leave the firm.

The petitioner received marital assets totalling $210,623.18 including $40,161.95 in bank accounts and securities, $5,461.23 in an IRA account and $165,000 in cash from the sale of the condominium which was paid to her at the closing in early 1985. She also received a 1980 Buick and certain household goods and furnishings.

The respondent received. marital assets totalling $169,698.52 and $24,000 in nonmarital property inherited from his mother as well as the parties’ one-third interest in a sailboat. Of the marital property allocated to the respondent, $12,095.54 was in IRA accounts, $31,500 was invested in the Keogh plan of his former firm of Miller and $65,000 represented his interest in the sale proceeds of the condominium. The agreement provided that the respondent would receive $11,964 in receivables from Miller and the monies, receivables and unbilled time which were credited to his account at the firm of Greenberger.

In the years following the dissolution, the petitioner’s earned and taxable income rose steadily. In 1985, she reported $75,434 in total income of which $2,000 was earned through her consulting firm and $60,000 was maintenance. The petitioner did consulting work for the law firm Sidley & Austin (Sidley) for about IV2 years. She testified that the respondent was fully aware of her position, the hours she worked and the wages she was paid. She estimated that she earned approximately $25,000 in 1985 and $30,000 in 1986. On November 3, 1986, she became the director of practice development for the law firm, Schiff, Hardin & Waite (Schiff). She received a fixed salary of $55,000 per year, major medical insurance and an opportunity to participate in a retirement plan. She was hired to work in what she described as the new field of legal marketing. As director, she helped lawyers develop marketing strategies to retain and expand their legal business. She estimated that about 10 to 12 other people perform similar jobs for other law firms in the Chicagoland area. Of these professionals, most are her junior by 10 to 15 years; only one other is approximately her age.

In 1986, she reported $100,528 in total income of which $24,440 represented income from her corporation for services performed for Sidley; $7,404 represented wages earned from Schiff and $60,000 was maintenance. In 1987, the petitioner reported earning $125,031 in total income of which $55,393 represented wages earned from Schiff; $1,318 represented Schedule E income; and $60,000 was maintenance. Pay stubs from Schiff indicated that the petitioner earned $31,204.34 in gross income for the first 4V2 months of 1988. As of February 2, 1989, the petitioner’s salary at Schiff increased from $61,000 to $64,000 a year.

On the other hand, the respondent’s earned and taxable income fluctuated in the years following dissolution. In May 1985, he became a contract partner at Greenberger, billing his personal time at $200 an hour; he was still paid as an employee of the firm. He reported $197,151 in total income in 1985 of which $151,628 represented earned income from Greenberger and $25,267 was income earned from Miller which was reportable in 1985 but which was actually received in 1984. He paid $65,830 in maintenance and insurance premiums for the petitioner’s benefit. In 1986, he reported $140,441 in total income of which $131,968 represented earned income from Greenberger and $5,482 was income earned from Miller reportable in 1986 but actually received in 1985. He paid $65,593 in maintenance and insurance premiums for the petitioner’s benefit.

In May 1987, he voluntarily left Greenberger to practice law as a sole practitioner. In June 1987, he began renting office space from Neal, Gerber & Eisenberg (Neal) paying $1,000 in monthly rent. Although his secretary was on Neal’s payroll, he reimbursed the firm for her services in the amount of approximately $25,000 to $26,000 plus insurance.

The respondent remarried in September 1987. He continued to practice primarily commercial and corporate transactional litigation. He testified that his earnings were down in 1987 and he did not anticipate a prosperous year; business was poor. In October 1987 he had merely four active files, only one of which was substantial. Although the respondent admitted grossing approximately $180,000 in salary during the first six months of 1987, he claimed that he had no receivables during the last couple of months before October 1987. He earned $167,304 in gross receipts for the year. He reported earning $182,176 in gross wages from Greenberger and $57,423 in net income from his sole practice. He paid $66,814 in maintenance and insurance premiums for the petitioner’s benefit.

In 1988, the respondent continued renting office space and services from Neal as a sole practitioner. As of July 12, 1988, he reportedly received $52,925.73 in cash receipts and incurred expenses total-ling $17,759.24 from his law practice.

On March 1, 1988, the respondent became an income partner at Neal with a guaranteed draw computed at an annual rate of $160,000; he had no guaranteed bonus. He accepted the partnership at a compensation level below his 1987 income because that income had been based primarily on one large case in which his involvement had ended. He did not have a continuing client base; most of his business came from referrals within the legal profession. He had not previously been nor did he anticipate becoming involved in any comparably lucrative matters.

The director of administration of Neal testified that the respondent became an equity partner at the firm on January 1, 1989, earning a draw of $11,750 per month or $141,000 a year against a 2.5% share of the firm’s profits. If the firm were to experience a loss for the year, the petitioner would not receive any compensation beyond his draw. There were no projections for the firm’s 1989 calendar year regarding partnership distributions as of the date of the last evidentiary hearing.

As of December 1987, the petitioner’s assets had grown to $280,885.42 (from $210,623.18 in 1984), which included $120,000 of equity in her mortgage-free condominium. On July 21, 1988, her assets totalled $311,446.82 and included marketable securities with a then-current market value of $44,445 (up from $35,249.50 in 1987), money market and checking accounts with a total balance of $133,817.53 (up from $115,138.36 in 1987) and IRA accounts totalling $13,184.29 (up from $10,497.66 in 1987). Again, this total included $120,000 of equity in her Chicago condominium.

As of December 1987, the respondent’s assets apparently totaled $176,209.17 including a Keogh Plan and IRA deposits of $68,199 and $70,000 of equity in his condominium; his liabilities included a $40,000 mortgage and an estimated tax liability of $40,000 which was due in April 1988. His monthly expenses totalled $5,045.93. (A list of the respondent’s assets and liabilities as of mid-December 1987 was marked and admitted as Exhibit No. 17 but was not included among the exhibits anywhere in the record. The only evidence in the record regarding the respondent’s assets and liabilities as of 1987 consists of his tax returns, his general testimony and a reference by the trial court in its opinion. We can find no evidence in the record of the growth of the respondent’s assets as of July 1988.)

The respondent first moved to modify maintenance pursuant to section 510(a) of the Marriage and Dissolution of Marriage Act, which permits modification upon finding a substantial change in the circumstances of the parties on December 1, 1986. (Ill. Rev. Stat. 1985, ch. 40, par. 510(a).) The respondent essentially alleged that the petitioner’s employment which generated $55,000 in income in 1986 constituted a substantial change in circumstances from her financial situation at the time of dissolution. He also argued that, while the petitioner’s income had increased steadily to the point where she was self-sufficient, his income had decreased since dissolution.

The trial judge conducted hearings on the respondent’s petition at the end of which the judge denied the petitioner’s motion for a finding in her favor. The respondent was granted permission to reopen the proofs and hearings continued. On March 7, 1989, the judge issued her findings of fact and rendered a decision modifying the maintenance award.

The judge found that the maintenance provision of the settlement agreement and judgment for dissolution was modifiable based on a substantial change in the parties’ circumstances. She was especially persuaded by the petitioner’s improved financial condition. She specifically found that the petitioner’s consulting business had produced $2,000 in income in 1983 and a loss in 1984. However, since dissolution, the petitioner had steadily improved her financial position having secured full-time employment, most recently earning $64,000 in salary a year. Despite testimony regarding the petitioner’s age and the fact that her position constituted a relatively new endeavor in marketing, the judge found that the record did not reflect a “frailty” in her position. Recognizing that the petitioner’s income was now augmented by her maintenance, the judge concluded that the change in the petitioner’s income constituted a substantial change that necessitated modification in maintenance. She further acknowledged that the petitioner’s income was greater than the respondent’s income after taxes and maintenance payments but found it inappropriate to give too much weight to the comparison in light of the length of the marriage and the disparity in the parties’ ability to produce income in the future. The judge also acknowledged that the petitioner had no mortgage or rental expenses; that she received income-producing assets in the original settlement; that her investments produced income and dividends which had increased in value and that she did not need to diminish her assets to live. However, the judge concluded that she knew more about the respondent’s ability to pay maintenance than she did about the petitioner’s need for it. The judge believed that the petitioner’s failure to offer specific evidence of her need for maintenance was consistent with the petitioner’s legal theory that the maintenance provision of the judgment was non-modifiable because it had been characterized as permanent. The judge further believed that neither termination of maintenance nor indefinite maintenance was consistent with the parties’ intentions. Given the fact that the petitioner’s income had nearly doubled and given the paucity of information about her expenses, the judge found it appropriate to reduce maintenance payments from $5,000 a month to $2,500 a month.

On April 17, 1989, the judge held hearings on the respondent’s motion for reconsideration. The respondent argued that the judge had misapplied the factors which section 504 of the Marriage and Dissolution of Marriage Act required the trial court to consider in granting maintenance awards. He contended that the petitioner had failed to present any evidence of her expenses, of her inability to meet her expenses and of her need for maintenance and, therefore, was not entitled to any maintenance. Rejecting the respondent’s contention, the judge held that, in the final analysis, the respondent had the burden of proof which he failed' to meet. Although the respondent proved a substantial change in circumstances, he did not prove that the petitioner no longer required some maintenance to live in the style to which she had become accustomed during the marriage. The respondent now maintains that the judge’s decision was against the manifest weight of the evidence.

Section 510(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510(a)) provides that ■any judgment regarding maintenance can be modified only upon showing a substantial change in the circumstances of the parties. Under this provision, an award of maintenance may be modified regardless of whether it is characterized as permanent or temporary as long as it does not explicitly preclude such modification. (See In re Marriage of Arvin (1989), 184 Ill. App. 3d 644, 651, 540 N.E.2d 919; see also In re Marriage of Bryant (1990), 206 Ill. App. 3d 167, 171.) This provision also applies to situations in which a party seeks to terminate (or abate) an award of maintenance. (In re Marriage of Whiting (1989), 179 Ill. App. 3d 187, 192, 534 N.E.2d 468; see also Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483, 488, 509 N.E.2d 729.) We reject the petitioner’s argument that the settlement agreement by its terms precludes termination (or abatement). The agreement provides that maintenance shall terminate upon the occurrence of certain events. That language does not mean that maintenance may not be terminated if her financial condition becomes such that it is no longer needed.

We will first consider the respondent’s contention that the petitioner was not entitled to any maintenance because she failed to prove her need for it. The party seeking modification of maintenance has the burden of demonstrating that a substantial change of circumstances has occurred. (Ill. Rev. Stat. 1987, ch. 40, par. 510(a); Arvin, 184 Ill. App. 3d at 651.) The judge found that the respondent demonstrated a substantial change in circumstances by comparing the petitioner’s economic position at the time of dissolution when she was not gainfully employed to her current position when she was earning $64,000 a year. The petitioner does not dispute that finding. Since the judge made that finding, the respondent argues, the burden shifts to the petitioner to establish her right to any maintenance. We interpret the respondent’s argument to be that once a judge finds that maintenance should be modified, it should be modified to zero, unless the recipient of maintenance can establish to what degree over zero the maintenance should be modified. The respondent cites no authority for such a rule other than selected language from a treatise authored by the petitioner’s counsel. (Beermann & London, Rehabilitative Maintenance in Illinois, 75 Ill. B.J. 658, 664 (1987).) That selected part of the treatise referred to maintenance for a limited period of time. It recognized that the “technical burden of proof may be on the movant” but added that the “burden can probably be satisfied by showing that the recipient spouse has the ability, and has had sufficient time and opportunity to become self-sufficient. The recipient spouse will then have to prove that he or she has satisfied the continuing obligation to attempt to become self-supporting.” (Emphasis added.) (75 Ill. B.J. at 664.) We do not find that authority, such as it is, applicable to the facts of this case. In any event, the trial judge rejected that proposed rule; so do we.

The petitioner contends that the question of a shifting burden of proof was not raised by the respondent in the trial court. The petition for modification upon which the hearing was held was just that, a petition for modification, not for termination or abatement. The petition for modification asked for an order “modifying and decreasing the amount” of maintenance. Under the pleadings the principal issue was whether there was substantial change in the petitioner’s position from the time of the dissolution order that would justify any modification. The petitioner contended that there was no such substantial change. At the hearing on the motion to reconsider, the respondent’s attorney informed the judge that the original petition for modification asked for an abatement of maintenance. He misspoke. The petitioner’s attorney at that hearing on the motion to reconsider had substituted for the petitioner’s trial counsel less than a month before the hearing. Consequently, his failure to correct the misstatement is understandable to a degree. The only reference to abatement made at the original hearing, and it was an oblique one, was made by the respondent’s attorney during his oral argument when he said that “maintenance must stop.” Later, he argued that the respondent had the burden of showing a substantial change in circumstances, that he had sustained that burden and that the petitioner had to show what her needs were. He repeated the same arguments on the motion to reconsider; the petitioner’s attorney answered the argument; and the judge addressed those arguments. Consequently, although we believe that the respondent’s suggested rule could have been advanced more clearly through the pleadings and his argument at the first hearing, we find no waiver and we deem it appropriate to address it.

Implicit in the respondent’s argument is the assumption that proof of need and proof of a change in circumstances are separate and distinct. That assumption is incorrect. The need of the recipient spouse is one of the circumstances the court is to consider in determining the original award of maintenance. Similarly, a change in the need of the recipient spouse would be a circumstance to be considered in determining whether an award should be modified; and the burden of establishing such a change in the need rests with the movant. (See In re Marriage of Garelick (1988), 168 Ill. App. 3d 321, 522 N.E.2d 738.) In sum, we do not accept the respondent’s argument that the petitioner had the burden of establishing a right to any maintenance once a substantial change of. circumstances had been established by proof that her income had increased. Nor do we accept the respondent’s argument that a conclusive presumption arose against the petitioner because of an alleged failure to produce evidence of her needs. The judge recognized that a reasonable explanation for the petitioner’s failure to produce such evidence existed because the battleline had been drawn by the petition for modification and the petitioner defended on the grounds that the dissolution agreement itself barred any modification and that there was no substantial change that would justify any modification. Moreover, we infer from the judge’s remarks that she considered the absence or paucity of the petitioner’s evidence of need adversely to the petitioner when she reduced maintenance.

We turn now to the question of whether the judge’s refusal to abate the maintenance award was against the manifest weight of the evidence. As previously noted, in determining whether and to what degree maintenance should be modified, a trial court should consider the same factors that it considers in making an initial award. (In re Marriage of Chalkley (1981), 99 Ill. App. 3d 478, 482; Garelick, 168 Ill. App. 3d at 326.) Section 504(a) of the Act authorizes the trial court to award maintenance only if it finds that the party seeking maintenance lacks sufficient property, including apportioned marital property, to provide for his reasonable needs; is unable to support himself through appropriate employment or is otherwise without sufficient income. (Ill. Rev. Stat. 1987, ch. 40, par. 504(a).) The reasonable needs of a party are determined in light of his overall circumstances which include the standard of living during the marriage. Arvin, 184 Ill. App. 3d at 651.

Under section 504(b), the maintenance award is to be in an amount “as the court deems just” after considering all relevant factors including the financial resources of the party, including marital property apportioned to him, and his ability to méet his needs independently (section 504(b)(1)); the time necessary to acquire sufficient education or training to enable the party to find appropriate employment (section 504(b)(2)); the standard of living established during the marriage (section 504(b)(3)); the duration of the marriage (section 504(b)(4)); the age, physical and emotional condition of both parties (section 504(b)(5)); the ability of the spouse paying maintenance to meet his needs while meeting those of the petitioner (section 504(b)(6)); and the tax consequences of the property division upon the economic circumstances of the parties (section 504(b)(7)). (Ill. Rev. Stat. 1987, ch. 40, par. 504(b).) No one factor is determinative. (In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 228, 543 N.E.2d 119.) Courts have wide latitude in considering what factors should be used in determining reasonable needs, and a trial court is not limited to the factors listed in the statute. (In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 657-58, 409 N.E.2d 321.) Except where the financial situation of the paying spouse, the duration of the marriage or the health of the parties indicates otherwise, the amount of maintenance should be sufficient to provide the spouse with the standard of living established during the marriage. (87 Ill. App. 3d at 660.) The amount is reduced by the amount the party has available to provide herself with the standard of living.

The respondent deems determinative the fact that the petitioner’s current income is allegedly greater than the parties’ average income during the marriage. On this basis, he claims that the petitioner, who was earning $64,000 in 1988, has the resources and income to meet her reasonable needs. His trial exhibits show that the parties had an average income of $135,900 per year during the last six years of marriage. He also points out that the value of the petitioner’s resources has increased from $210,623 to $280,885 (as of 1987) and to $311,000 (as of mid-July 1988), consisting of over $175,000 in cash and marketable securities, a two-bedroom, mortgage-free condominium valued at $120,000 and over $13,000 in IRA accounts. Ascribing a fair rate of return to the financial assets of the petitioner, the respondent argues that her salary and investments give her more than 50% of the couple’s average yearly income before taxes during the last years of their marriage. Thus, he concludes that the petitioner no longer needs maintenance. We do not agree that that conclusion has been established as a matter of law.

First, as discussed further below, we do not believe that the growth of the petitioner’s assets necessarily indicates a lack of need for maintenance. Although the court may take judicial notice of the fair earning powers of money or invested capital over a certain time period (In re Marriage of Ryman (1988), 172 Ill. App. 3d 599, 527 N.E.2d 18), the petitioner’s improved financial condition cannot be measured primarily by assets derived from the divorce settlement. (In re Marriage of McGowan (1980), 84 Ill. App. 3d 609, 405 N.E.2d 1156.) Therefore, we focus especially on the petitioner’s salary which constitutes the principal change in her position.

Contrary to the respondent’s argument, the petitioner’s increased income does not alone mandate either termination or abatement. (See Whiting, 179 Ill. App. 3d 187; Arvin, 184 Ill. App. 3d 644.) As large as her income is, there is no evidence that- it enables the petitioner to meet her reasonable needs. (Simmons, 87 Ill. App. 3d at 660.) Reasonable needs are measured by the standard of living enjoyed during her marriage. In this case, there is no evidence that the petitioner was able to comfortably satisfy her needs without maintenance.

We cannot assume that the petitioner is able to support herself in the marital lifestyle simply because her net employment and investment income exceeds 50% of the parties’ total disposable income during the last years of marriage. Living apart costs most couples more than living together. (See Simmons, 87 Ill. App. 3d at 661.) More importantly, the respondent’s calculations erroneously assume that the petitioner’s income has as much buying power today as it would have had in the last years of the marriage. Although inflation alone is not an appropriate basis upon which to increase maintenance, contrary to the respondent’s argument, we cannot ignore its role nor is there any authority compelling us to do so under the facts of this case. See Shive v. Shive (1978), 57 Ill. App.- 3d 754, 373 N.E.2d 557; see also Chalkley, 99 Ill. App. 3d at 483 n.3.

The Consumer Price Index indicates that the cost of living in the Chicago area rose by 22% between the last few years of the marriage (1981-1983) and the date of the evidentiary hearings (1987-1989). The parties’ average disposable income during the last six years of marriage was $85,055. The petitioner’s 1987 after-tax income, including $60,000 in maintenance, was approximately $80,779. There is no evidence in the record of her 1988 tax liability, but we can assume that her income was slightly higher due to an increase in salary. Therefore, we can again reasonably assume that the petitioner’s after-tax income in 1988, again including $60,000 in maintenance, was somewhere between $80,000 and $85,000. (The respondent, in fact, estimates the petitioner’s income at $78,000 in 1989 after imputing an 8% return on her cash and securities of approximately $175,000.) After adjusting the petitioner’s disposable income by the 22% increase in the cost of living since 1981-1983, we can conclude that her 1987-1988 disposable income of $80,000 to $85,000, including maintenance, is roughly equivalent to $65,000 to $69,000 in 1981-1983 dollars.

The trial court’s order decreased the petitioner’s maintenance by $30,000 per year, retroactive to mid-December 1987. This results in a net decrease in the petitioner’s income of $21,000 per year ($30,000 less approximately $9,000 in income taxes). Therefore, the petitioner’s net disposable income under the trial court’s order will be approximately $59,000 to $64,000 per year ($80,000 to $85,000 less $21,000). This is equivalent to $52,400 in 1981-83 dollars, which is 54.7% of the couple’s joint disposable income in 1981-83 (compared to the average of $95,750 per year).

The petitioner testified that she went back to work after a divorce so that she “could build up money so that later on [she would] have something to live on.” She said that the money she was getting from the respondent was not enough to support her in the lifestyle that she had spoken of; that she was no longer able to belong to the East Bank Club, she had an eight-year-old car, and she did not travel except to visit her children and her mother; and that there had been numerous changes to her lifestyle. The judge had the right to consider that testimony.

Additionally, the petitioner is obligated to refund the respondent the sum of $37,500. The repayment is being made at a rate of $2,500 per month as an offset against current maintenance and further reduces the petitioner’s available income. With this in mind, we cannot assume that the petitioner’s current income enables her to live as she did during the last few years of her marriage as measured by the parties’ income.

We believe the judge properly considered the growth of the petitioner’s assets, which increased $70,262 from the time of dissolution in 1984 to the time the respondent moved for modification in December 1987. The majority of this increase was due to the petitioner’s investment of proceeds she received under the divorce settlement. We are persuaded that, had the petitioner not received maintenance during this period, she would have had to deplete her savings rather than increase them.

The petitioner’s assets further increased an additional $30,561.40 between December 1987 and July 1988. Of this amount the respondent shows that $9,196 resulted from the appreciation of certain stocks. Therefore, we can reasonably conclude that the balance ($21,365.40) resulted from the accrual of interest and dividend income or cash deposits. Of this amount, $3,752.05 represent the petitioner’s reinvested dividend and interest income from her Kemper ($999.29) and Unibanc ($2,752.76) accounts. Thus, approximately $17,613.35 of the increase in assets as of 1988 could have resulted from cash deposits between December 1987 and July 1988. This represents an average of $2,202 per month, which is approximately only one-fourth the average sum spent on savings and retirement contributions during the final years of the marriage. Reducing the petitioner’s maintenance by $2,500 per month retroactive to December 1987 substantially affects her ability to provide for her own future security. While it is true that neither the statute nor the judgment of dissolution gives the petitioner a vested right to set aside $2,202 per month for savings, the statute does give her the right to an amount which is sufficient to provide her with the means to satisfy her reasonable needs. Future savings were an important part of the marital lifestyle, and we are not prepared to say that the petitioner has lost her right to future security because she is divorced. We recognize that the respondent is arguably nearing retirement, but we also recognize that he was awarded over eight times as much money in IRA and retirement accounts than was the petitioner at the time of dissolution. While the petitioner’s IRA accounts have grown to $10,497 as of December 1987, the respondent’s have grown to more than six times that amount.

After considering the age of both parties and the level of achievement in their “professions,” we believe the judge exercised reasonable discretion when she manifested her concern for the lesser potentiál of the wife’s earning ability to secure future savings. Therefore, we do not believe the judge erred when she implicitly concluded that the petitioner’s assets did not warrant abatement.

Of the cases cited by the respondent to support his contention that the trial court should have terminated or imposed a more modest award of maintenance for a short, fixed period of time, the most arguably persuasive is In re Marriage of Henzler (1985), 134 Ill. App. 3d 318, 480 N.E.2d 147. However, we do not find Henzler dispositive. In Henzler, the appellate court reversed the trial court’s denial of the respondent’s petition to terminate or abate his ex-wife’s maintenance of $1,000 per month where the ex-wife went from being unemployed with no income to obtaining a college degree in accounting and a job that paid a gross annual salary of $20,000 per year. We find Henzler distinguishable in several important respects. First, unlike this case, the dissolution agreement in Henzler expressly stated that maintenance was to be provided only as long as it was necessary to allow the petitioner to become self-supporting. In this case, the parties agreed to permanent maintenance. We recognize that the goal of rehabilitation is not implicit in every award of maintenance; however, we believe that the characterization of the award reflects the parties’ expectations and cannot be ignored. The trial judge properly noted that termination was not consistent with the parties' expectations. More importantly, Henzler is limited to its facts and, again unlike this case, the Henzler record contained evidence of the petitioner’s expenses including expense affidavits. Thus, the Henzler court had greater evidence from which to conclude that the petitioner had achieved self-sufficiency and economic; rehabilitation. There was also evidence from which to conclude that the future security/employability of the petitioner in Henzler was more certain than that of the petitioner in this case. For example, the Henzler petitioner was on her way to becoming a certified public accountant. There is also evidence from which to conclude that the Henzler petitioner was at least 10 years younger than the petitioner in this case.

Each of the remaining cases which the respondent cites is distinguishable. (In re Marriage of Jones (1989), 187 Ill. App. 3d 206, 543 N.E.2d 119; In re Marriage of Hackett (1986), 113 Ill. 2d 286, 497 N.E.2d 1152; In re Marriage of Pentivenga (1982), 109 Ill. App. 3d 967, 441 N.E.2d 336.) None involves proceedings for modification in which the movant must have met a specific burden of proof. More importantly, each represents instances in which the appellate court deferred to the trial court’s exercise of broad discretion and affirmed its initial award of maintenance or lack thereof. Having considered the strict standard by which we determine an abuse of discretion, we believe that each affirmance means that the trial court’s ruling was permissible and nothing more.

After considering the current circumstances of the parties, we cannot say that the trial court misapplied the factors contained in section 504(b). The parties were married approximately 31 years. The petitioner was 57 and the respondent was 63 years old in 1988. From these facts alone, we may conclude that the parties have relatively equal rights to satisfy their reasonable needs out of the available income. (See Simmons, 87 Ill. App. 3d at 661.) However, for 22 years the petitioner’s sole occupation was that of wife, mother and homemaker. Although she has now been in the work force nearly 15 years, she has been earning over $55,000 annually for only three of those years. The respondent, on the other hand, has been employed as an attorney since 1955 and has been a partner in one law firm or another for the better part of 25 years. Not only was he initially awarded over eight times the amount in savings and retirement accounts than was the petitioner, but he has earned well over $100,000 for at least the past eight years. The fact that the petitioner’s income now exceeds the after-maintenance income of the respondent cannot control, as no one factor is determinative. (Jones, 187 Ill. App. 3d at 228.) Although the respondent apparently suffered a decrease in income at the time he initially sought modification, the record indicates that he has a guaranteed income of at least $141,000 and is well able to provide the maintenance payments ordered by the court. More importantly, he makes no attempt to show a decrease in his ability to pay. (See In re Marriage of Geis (1987), 159 Ill. App. 3d 975, 984, 512 N.E.2d 1354.) Finally, there is no evidence to suggest that the respondent’s ability to produce income in the future is not greater than that of the petitioner.

This case was well tried and exhaustively briefed and argued in. this court. Like many cases of this nature, the question was a close one. (See Garelick, 168 Ill. App. 3d at 326.) The arguments advanced by the respondent are not lightly to be dismissed. But the question before a reviewing court is not what the judges of that court would have decided. To justify our interference it must be obvious that the trial judge acted arbitrarily and abused her discretion. In view of all the circumstances, we cannot say that the trial judge acted arbitrarily or without conscientious judgment or that her order either exceeds the bounds of reason or ignores recognized principles of law so that substantial injustice results. As long as reasonable persons may differ as to the propriety of the judge’s action, we cannot say she abused her discretion in refusing to abate maintenance. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.

Neither can we say that the judge abused her discretion in refusing to reduce maintenance further for an unlimited period of time. The petitioner is now 59 years old. She has been employed in a relatively new field of legal marketing and earning substantial income for only approximately three years. Although the judge did not find any insecurity in the petitioner’s position of employment, there is evidence from which to conclude that other persons who are similarly employed are far younger than she. Maintenance awards must be based on circumstances disclosed by the evidence and not on speculation. (See In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156.) The judge could have reasonably concluded that the record was speculative as to the petitioner’s future security and economic independence. The judge was in a position to evaluate and assess the financial abilities of the parties, and we will not second-guess her evaluation. See In re Marriage of Mittra (1983), 114 Ill. App. 3d 627, 450 N.E.2d 1229.

For all these reasons, the judgment of the circuit court is affirmed.

Judgment affirmed.

LaPORTA, P.J., and McNAMARA, J., concur.

      Respondent’s taxable income from Miller less unreimbursed business expenses.

      Petitioner’s income from consulting.

      Petitioner’s salary from her wholly owned corporation, Margo Krupp, Inc., which operated at a loss of $5,220 for the year.

      Loss from the respondent’s solo practice incurred during the last three months of 1983.

      Respondent’s taxable income from Miller reportable in 1983, less unreimbursed business expenses was $138,116. This amount was partially offset by a $5,220 loss from the petitioner’s corporation, resulting in the net figure of $132,896 as Schedule E Income.


text:
    VICTORINO CASTILLO, Plaintiff-Appellant, v. SALLY JACKSON et al., Defendants-Appellees. — ALBERTO JIMINEZ, Plaintiff-Appellant, v. SALLY JACKSON et al., Defendants-Appellees.
    First District (6th Division)
    Nos. 1—89—2952,1—89—2954 cons.
    Opinion filed December 21, 1990.

      Legal Assistance Foundation, of Chicago (Jeffrey B. Gilbert, Barbara A. Kahn, and Susan Wishnick, of counsel), for appellants.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and Jennifer A. Keller, Assistant Attorney General, of Chicago, of counsel), for appellees.
   JUSTICE RAKOWSKI

delivered the opinion of the court:

Plaintiffs’ cases, consolidated for review, were brought separately in the circuit court of Cook County as complaints for administrative review. Each plaintiff sought reversal of a final administrative decision of the Board of Review of the Illinois Department of Employment Security (IDES). The trial judge affirmed the decisions of the Board of Review which found plaintiffs ineligible for employment insurance benefits. Plaintiffs request that this court reverse the circuit court’s judgment.

The issue this case presents is whether plaintiffs, who applied for and established prima facie cases of entitlement to amnesty pursuant to the Immigration Reform and Control Act of 1986 (IRCA) (8 U.S.C. § 1255a (1986)), were “permanently residing in the United States under color of law” as of November 6, 1986 (IRCA’s effective date), within the meaning of the Illinois Unemployment Insurance Act (the Act) (Ill. Rev. Stat. 1987, ch. 48, par. 444).

Victorino Castillo, plaintiff in case number 1 — 89—2952, is a Mexican citizen who entered the United States illegally in 1972. Castillo was employed as a factory worker since that time, until being laid off in January of 1988. On June 23, 1987, Castillo applied for amnesty under IRCA. At this time, Castillo received authorization from the Immigration and Naturalization Service (INS) to work in the United States. On February 1, 1988, Castillo applied for unemployment benefits.

To be eligible for unemployment insurance, a claimant must have been paid sufficient wages within his “base period.” The base period in Illinois consists of the first four of the last five completed calendar quarters prior to the first day of the week in which the claimant files his claim. (Ill. Rev. Stat. 1987, ch. 48, pars. 347, 352.) Castillo’s base period thus ran from October 1, 1986, through September 30, 1987. If all of the wages Castillo had earned during his base period had been counted toward his financial eligibility, Castillo would have been eligible for benefits. However, IDES did not count the wages Castillo had earned prior to June 23, 1987, the date he applied for amnesty. The Board of Review held that prior to June 23, 1987, Castillo had been working illegally and that his application for amnesty did not give color of law to Castillo’s preapplication wages.

Alberto Jimenez, plaintiff in case number 1 — 89—2954, is a Cuban citizen, who entered this country in 1980 on a tourist visa and has remained here continuously since the expiration of the tourist visa. He became employed as an assembler in 1980. On October 28, 1987, Jimenez applied for amnesty under IRCA, and received formal work authorization from INS on February 1, 1988. On March 15, 1988, Jimenez’s employer laid him off, and Jimenez applied for unemployment benefits in the same month. Jimenez’s base period ran from October 1, 1986, through September 30, 1987.

IDES also denied Jimenez’s benefits. Jimenez was denied benefits because he applied for amnesty on a date after his base period expired, and IDES did not consider Jimenez to be residing in this country under color of law until the date of his application for amnesty. Like Castillo, if Jimenez’s wages earned after IRCA’s effective date were used as wage credits, Jimenez would have been eligible for unemployment benefits.

The facts in this case are not in dispute, and this court is not bound by the Board’s determination of questions of law. The legal effect of undisputed facts is such a legal question. (Barron v. Ward (1987), 165 Ill. App. 3d 653, 659, 517 N.E.2d 591.) Courts must, however, give substantial weight and deference to the interpretation placed on a statute by the agency charged with its administration and enforcement. Airey v. Department of Revenue (1987), 116 Ill. 2d 528, 536, 508 N.E.2d 1058.

The Act was enacted to “lighten [the] burden which now so often falls with crushing force upon the unemployed worker and his family.” (Ill. Rev. Stat. 1987, ch. 48, par. 300.) The Act is to be liberally construed in order to effectuate the legislature’s public policy of protecting against the severe economic consequences which result from involuntary unemployment. (Lipman v. Board of Review of Department of Labor (1984), 123 Ill. App. 3d 176, 179, 462 N.E.2d 798.) The eligibility of nonresident aliens for benefits is provided for in section 614 of the Act, which provides that “[a]n alien shall be ineligible for benefits *** on the basis of wages for services performed by such alien, unless the alien is an individual who has been lawfully admitted for permanent residence or otherwise is permanently residing in the United States under color of law.” (Ill. Rev. Stat. 1987, ch. 48, par. 444.) The color of law provision of the Act is an adoption of an alien eligibility category found in the Federal Unemployment Tax Act (FUTA) (26 U.S.C. §3301 et seq., §3304(a)(14)(A) (1986)). Because unemployment insurance is a cooperative Federal-State program, Federal decisions are persuasive in resolving the issue that confronts us.

In Holley v. Lavine (2d Cir. 1977), 553 F.2d 845, cert, denied sub nom. Shang v. Holley (1978), 435 U.S. 947, 55 L. Ed. 2d 545, 98 S. Ct. 1532, the court shed some light on the phrase “under color of law.” In Holley, the Second Circuit held that an otherwise deportable alien, who had moved to the United States as a child and bore six children who are United States citizens, qualified as a person residing in the United States under color of law. (Holley, 553 F.2d at 849.) The determinative factor in the court’s reasoning was a “formal letter” an INS official wrote to the plaintiff stating that “ ‘deportation proceedings have not been instituted ... for humanitarian reasons’ ” and that the “ ‘Service does not contemplate enforcing her departure from the United States at this time.’ ” (Holley, 553 F.2d at 849.) The court specifically limited its holding to the case where the plaintiff lived in this country with the knowledge or permission of the INS. (Holley, 553 F.2d at 849.) The plaintiff in Holley was a claimant for Aid to Families with Dependent Children (AFDC) benefits. In affirming the Board’s decision, the trial judge in this case specifically noted that plaintiffs in this case did not come within the parameters of Holley, because, unlike Holley, the INS had no knowledge of the plaintiffs’ presence at the time the wages at issue were earned.

The Holley court provided an insightful discussion of the phrase “under color of law.” The court stated:

“The phrase obviously includes actions not covered by specific authorizations of law. It embraces not only situations within the body of the law, but also others enfolded by a colorable imitation. ‘Under color of law’ means that which an official does by virtue of power, as well as what he does by virtue of right. The phrase encircles the law, its shadows, and its penumbra. When an administrative agency or a legislative body uses the phrase ‘under color of law’ it deliberately sanctions the inclusion of cases that are, in strict terms, outside the law but are near the border.
There is no more common instance of action ‘under color of law’ than the determination of an official charged with enforcement of the law that he, as a matter of public policy, will exercise his discretion not to enforce the letter of a statute or regulation because such enforcement would involve consequences, or inflict suffering, beyond what the authors of the law contemplated. The discretionary refusal of a prosecutor or like administrator of the law to use his enforcement powers is often not supported by specific language in a statute or other charter of authority. Yet there is a legion of adjudicated cases which recognize that the prosecutor or like enforcing official may exercise a discretionary power, virtually unreviewable by a court, not to enforce a statutory command, and not to seek the imposition of penalties or other sanctions upon a known violator.” (Emphasis in original.) Holley, 553 F.2d at 849-50.

The Second Circuit provided further discussion of the phrase in the case of Berger v. Heckler (2d Cir. 1985), 771 F.2d 1556. In Berger, the court observed “the phrase is designed to be adaptable and to be interpreted over time in accordance with experience, developments in the law, and the like. In this sense the phrase is organic and fluid, rather than prescriptive or formulaic.” (Berger, 771 F.2d at 1571.) Berger involved the “permanently residing under color of law” language found in 42 U.S.C. section 1382c(aXl)(BXii) regarding the eligibility of aliens for supplemental security income. Berger, 771 F.2d at 1558.

An examination of the cases which have construed the phrase “under color of law” with respect to aliens’ eligibility for government assistance or government-operated benefit programs reveals several different scenarios where an alien has been held to be “under color of law.” The first such scenario is that of the Holley case. In this situation, the INS has discretionally decided not to deport the alien and specifically informed the alien of this exercise of discretion. In such a situation, a fact-specific review of the alien’s case has been made. One court has somewhat restrictively held that “the phrase makes eligible those aliens who, after review of their specific factual circumstances pursuant to a specific statutory or regulatory procedure, have been granted an immigration status which allows them to remain in the United States for an indefinite period of time.” Esparza v. Valdez (D.C. Colo. 1985), 612 F. Supp. 241, 244.

Other courts, however, using the Holley decision as their starting point, have more broadly construed the phrase to encompass situations where the INS knows of an alien’s presence and, by inaction, has conferred color of law status upon an alien. In Lapre v. Department of Employment Security (R.I. 1986), 513 A.2d 10, 12, for example, the court observed “it can be seen from Holley and those cases that follow it that INS has broad discretion in deportation cases and that exercise of that discretion in deportation cases can take many forms, including a formal letter that INS has no plans to deport a particular alien or instances in which the agency simply does nothing.” In Cruz v. Commissioner of Public Welfare (1985), 395 Mass. 107, 115, 478 N.E.2d 1262, 1266, the court stated “the record and briefs suggest that during the relevant time the INS has been aware of plaintiff’s continued residence and that it could have proceeded to deport her but has not done so *** the agency’s inaction warrants the inference that the INS has acquiesced in the plaintiff’s continued presence in this country.” In Antillon v. Department of Employment Security (Utah 1984), 688 R2d 455, 459, the court held “[a]t the time he applied for unemployment benefits *** the INS knew he was in the United States *** knew where he was living *** and took no action to deport him or to act on his application for immigrant status. Antilion’s residence was therefore under color of law.” Also, in Rubio v. Employment Division (1984), 66 Or. App. 525, 529-30, 674 P.2d 1201, 1203, the court observed “[H]is residence was also under ‘color of law’ because INS knew of it and, by its routine regular extensions of his voluntary departure, had acquiesced in it. At the least INS exercised its discretion not to enforce the law; more accurately, it knowingly maintained the status quo pending outcome of claimant’s application for permanent residence.”

Where the INS has issued work authorization to an alien, numerous courts have found the alien to be present under color of law. (See Arteaga v. Industrial Comm’n (Colo. App. 1985), 703 P.2d 654; Yatribi v. Industrial Comm’n (Colo. App. 1985), 700 P.2d 929; Vazquez v. Review Board (Ind. App. 1985), 487 N.E.2d 171; but see Zurmati v. McMahon (1986), 180 Cal. App. 3d 164, 176, 225 Cal. Rptr. 374, 381.) The lack of work authorization during an alien’s base period, however, has been held to be only one factor to consider in determining whether the alien is permanently residing under color of law. Sandoval v. Colorado Division of Employment (Colo. App. 1988), 757 P.2d 1105, 1108.

Plaintiffs contend that they were permanently. residing in the United States under color of law at the time of their base periods as a result of the passage of IRCA, which became effective November 6, 1986. Plaintiffs’ argument is as follows: Section 101(a)(3)(A) of IRCA contains a “grandfather clause” that provides that employer sanctions do not apply to aliens employed prior to the effective date. (8 U.S.C.A. § 1324a (West Supp. 1987).) Thus, plaintiffs argue, they were lawfully employed after that date. Moreover, during the period of its passage until the expiration of the amnesty application period, IRCA prohibited the deportation of aliens who could make a prima facie showing of eligibility for amnesty and mandated that such aliens be granted authorization to work. (See 8 U.S.C. § 1255a (1986).) Because plaintiffs were lawfully working as of November 6, 1986, were eligible for work authorization and were protected against deportation during the time, plaintiffs contend that they were clearly under color of law at the time the wages were earned. Such a result obtains, plaintiffs argue, particularly because of the elasticity of the concept of residing under color of law as applied to the singularly comprehensive reform IRCA represents.

IDES responds to plaintiffs’ arguments by calling our attention to a number of United States Department of Labor (DOL) pronouncements and IDES administrative rules and regulations — which support IDES’ contention that plaintiffs cannot be considered permanently residing under color of law without specific knowledge of their presence at the time and some affirmative assurance by the government that they could remain in this country despite an illegal status. IDES further argues that IRCA only gave aliens such as plaintiffs the opportunity to seek legalization. IDES points out that an application must have been timely made, an applicant had to both satisfy eligibility requirements and establish continuous physical presence in the United States after IRCA’s passage, and applicants who made a prima facie showing were only temporarily not subject to deportation and granted work authorization, until such time as their entitlement to status adjustment was determined. Thus, IDES concludes, plaintiffs cannot be considered either permanently residing in this country or under color of law as of the date of IRCA’s passage.

There is a paucity of judicial or administrative decisions which have considered whether the passage of IRCA results in an alien’s becoming permanently residing under color of law as of its effective date. In Brambila v. Board of Review (1990), 241 N.J. Super. 216, 574 A.2d 992, the claimants applied for unemployment benefits. The court upheld the New Jersey Board of Review’s denial of benefits, holding that the claimants were not permanently residing under color of law at the time the agricultural work was performed. (IRCA also provides a mechanism whereby special agricultural workers can similarly apply for adjustment of status to that, of an alien lawfully admitted for temporary residence. (See 8 U.S.C. § 1160(a)(1)(B) (1986)).) In Brambila, the claimants had applied for temporary residence, but had received only employment authorization as of the date of their hearing. The court, relying on the deference accorded the Board’s decision (which had relied on a DOL letter) and adopting the position that each State employment service should not separately interpret Federal immigration law, held that IRCA did not confer color of law status to the claimants as of its passage. Brambila, 241 N.J. Super, at 221, 574 A.2d at 995.

In re: Barazas (Or. Emp. Div. 1988), No. 88 — P—843, an administrative decision, however, reaches a different result. In Barazas, the claimant was also an agricultural worker applying for adjustment of status under 8 U.S.C. section 1160. The Barazas decision held that because Congress granted individuals such as the claimant a special status as of the date of IRCA’s enactment by providing protection from deportation and providing for work authorization even if the claimant had become involuntarily known to the INS, the claimant was under color of law at that time for the purpose of establishing authorization to be employed. Barazas, (Or. Emp. Div. 1988), No. 88 — P—843, slip op. at 3.

IDES puts forth both United States Department of Labor Unemployment Insurance Letters (UIPLs) and its own regulations in support of its argument that plaintiffs were not permanently residing under color of law at the time of plaintiffs’ base periods. Under these UIPLs and regulations, the IRCA amendments to the INA would have no effect on whether plaintiffs were permanently residing under color of law. Under these UIPLs and regulations, a claimant has that status only if the INS has affirmatively exercised its discretion against deportation and granted the alien permission in writing to reside in this country indefinitely. IDES acknowledged at oral argument, however, that in practice, it considers aliens such as plaintiffs to be permanently residing under color of law as of the date the aliens apply for amnesty.

The DOL pronouncements, however, are not binding on this court, as the deference accorded an agency’s interpretation of a statute does not displace judicial analysis. (See United States v. Cartwright (1973), 411 U.S. 546, 550, 36 L. Ed. 2d 528, 533, 93 S. Ct. 1713, 1716.) Moreover, less deference is owed an agency’s regulation which interprets only under general authority, as opposed to specific grant of authority. (United States v. Vogel Fertilizer Co. (1982), 455 U.S. 16, 24, 70 L. Ed. 2d 792, 800, 102 S. Ct. 821, 827.) Here, the DOL was not specifically authorized by Congress to interpret the phrase. Moreover, a regulation which is fundamentally at odds with congressional design will not be sustained. (Vogel Fertilizer Co., 455 U.S. at 26, 70 L. Ed. 2d at 801, 102 S. Ct. at 828.) IDES’s interpretation of the phrase is not binding on this court either, as this court has authority to construe a statute contrary to the construction placed on the statute by the agency. See Illinois Consolidated Telephone Co. v. Illinois Commerce Comm’n (1983), 95 Ill. 2d 142, 153-54, 447 N.E.2d 293; P.H. Mallen Co. v. Department of Finance (1939), 372 Ill. 598, 601, 25 N.E.2d 43.

IDES further asserts that a finding that plaintiffs were permanently residing in this country under color of law is contrary to 8 U.S.C. section 1255a(h), which temporarily disqualifies aliens from receiving certain financial assistance. This section of the INA states that aliens who are in temporary lawful residence status shall not be considered to be permanently residing in the United States under color of law. This provision, however, refers only to the financial assistance programs listed, and unemployment benefits are not listed. As such, this provision of the INA does not apply to plaintiffs in this case. See Gillar v. Employment Division (1986), 300 Or. 672, 685 n.13, 717 P.2d 131,140 n.13.

A review of the case law and authority presented by the parties leads to the conclusion that plaintiffs were indeed permanently residing in this country under color of law as of IRCA’s effective date. We start by affirming the proposition expressed in Berger, that the “under color of law” concept is designed to be adaptable and to be interpreted over time in accordance with experience, developments in the law and the like. As IDES acknowledges, Congress was motivated by concerns for undocumented aliens such as plaintiffs in enacting IRCA. Congress noted that legalization of qualified aliens such as plaintiffs “would allow qualified aliens to contribute openly to society and it would help to prevent the exploitation of this vulnerable population in the work place.” H.R. 99 — 682, 99th Cong., 2d Sess. 49, reprinted in 1986 U.S. Code Cong. & Admin. News 5649, 5653.

Congress’ commitment to aliens such as plaintiffs is demonstrated by the unique protections afforded them under IRCA. Legalization of a qualified alien under IRCA is mandatory. (8 U.S.C. §1255a(a) (1986).) Also, although the application period for filing for amnesty did not begin until some time after IRCA’s effective date, aliens apprehended before the application period commenced and aliens apprehended during the first 11 months of the application period could not be deported, were to be granted authorization to engage in employment and were to be granted an “employment authorized” permit, provided they could establish a prima facie case of eligibility. (8 U.S.C. §1255a(e) (1986).) Moreover, IRCA provided that its amendment to the INA which made it unlawful to hire, recruit or refer unauthorized aliens does not apply to aliens, like plaintiffs, who were employed prior to IRCA’s effective date. It is apparent that Congress intended to and did provide special protections to aliens such as the plaintiffs in this case.

To hold against the plaintiffs in this case would result in a somewhat anomalous result. An alien who was involuntarily apprehended by the INS on the day after IRCA’s passage, being fully known to the INS, but who filed an application and established a prima facie case of eligibility, would be absolutely protected from deportation and authorized to work. Such an alien, under most of the case law, would be under color of law. Plaintiffs, however, not being apprehended by the INS, would not be under color of law. The apprehended alien, due merely to the fortuity of his apprehension, would in many factual seenarios qualify for benefits while plaintiffs would not. Such a result cannot have been intended by Congress.

To be sure, as IDES notes, the pre-IRCA cases the parties bring to our attention construing the phrase at issue have all involved fact patterns where the alien’s presence in this country was known to the relevant authorities prior to the disputed time period. IDES has not, however, brought to our attention a case which holds that the lack of such knowledge necessarily precludes a finding that an individual is under color of law. It is, moreover, important to note that the situations in Holley and the other cases the parties have brought to our attention involved an exercise of discretion which did or did not confer the status on the alien. For discretion to be exercised at all, the relevant authorities must have knowledge of the alien’s presence. The Holley court, however, indicated that an official’s exercise of discretion was only the most common instance of action under color of law. We find no authority for the proposition that INS knowledge of plaintiffs’ presence is a prerequisite to finding that plaintiffs were under color of law.

Nor do we agree that only INS may confer color of law status on aliens, as IDES urged at oral argument. This argument, again, assumes that an exercise of official discretion is the only manner in which an individual may achieve color of law status. It is Congress, after all, who is empowered by the Constitution “to establish an uniform Rule of Naturalization.” (U.S. Const., art. I, §8.) INS is an agency which Congress has created to effectuate immigration and naturalization policy. IDES has not argued, nor could it argue, that INS would be free to disregard an express directive by Congress that an individual is under color of law. Nor would INS have been free to deport aliens such as plaintiffs, or to deny them work authorization, in the event the aliens became known to INS during the period between the IRCA’s passage and the filing for amnesty. In short, there is no need for IDES to confer color of law status as this has already been accomplished by Congress in a manner that leaves IDES without discretion.

A close analysis of plaintiffs’ situations in this case reveals them to be both outside the law and inside the law. Plaintiffs were outside the law in the respect that they were undocumented aliens not present in this country pursuant to any authoritative right: “illegal aliens” in the common parlance. Yet, plaintiffs were in another sense brought within the law with the passage of IRCA as a result of IRCA’s initial protections and consequent legalization of plaintiffs. Plaintiffs were in the very class of aliens Congress sought to legitimize through IRCA, and IRCA gave plaintiffs color of law status which remained unless and until plaintiffs should fail to take advantage of the opportunity or be found ineligible. The result obtains that those such as plaintiffs, who are not wholly within and protected by the law, are among those to whom the concept “under color of law” applies. The plaintiff in Holley was able to benefit from the concept, even though she was fully outside the law, because she benefited from an exercise of discretion. Plaintiffs, both outside and inside the law as a result of congressional policy and action, should benefit from the concept as well. We are convinced that some legal protection, as plaintiffs had in this case during the relevant time period, and color of law status may co-exist.

Finally, IDES argues that because at the time plaintiffs earned the wages for the period at issue plaintiffs had received no determination of eligibility, and that even upon application, a further determination of eligibility for adjustment of status to that of permanent resident needed to be made, plaintiffs were not “permanently” residing, even if plaintiffs were under color of law. In support of this proposition, IDES relies on the case of Sudomir v. McMahon (9th Cir. 1985), 767 F.2d 1456. In Sudomir, plaintiffs, who were otherwise deportable applicants for political asylum, argued that they were eligible for AFDC benefits. Plaintiffs had been informed that they could remain in the United States until a final decision had been made on their applications, or until the INS decided otherwise. The court held that plaintiffs were not “permanently” residing, stating:

“A residence is temporary when the alien’s continued presence is solely dependant upon the possibility of having his application for asylum acted upon favorably. Aliens who have official authorization to remain indefinitely until their status changes reside permanently; asylum applicants who merely participate in a process that [merely] gives rise to the possibility of such an authorization reside temporarily.” (Emphasis in original.) Sudomir, 767 F.2d at 1462.

The fact that plaintiffs, having made their prima facie showing, are considered only “temporary” lawful residents with temporary work authorization and protection does not compel the result that they were not permanently residing in this country. In fact, FUTA itself provides that parolees admitted to the United States only “temporarily” are deemed permanently residing under color of law. (See 26 U.S.C. §3304(a)(14)(A) (1986); 8 U.S.C. §1182(d)(5) (1986).) It is thus clear that whether an alien is residing in this country permanently or temporarily is determined by the nature and not simply the title of his immigration status.

The Holley court also discussed the word “permanently” with respect to the “permanently residing” portion of the phrase. The court viewed the phrase “with an eye to” 8 U.S.C. section 1101(a)(31) (1986), which provides: “The term ‘permanent’ means a relationship of continuing or lasting nature, as distinguished from temporary, but a relationship may be permanent even though it is one that may be dissolved eventually at the instance either of the United States or of the individual, in accordance with the law.” The court concluded that the plaintiff was “permanently residing” in the United States even though “permitted to stay in the United States not necessarily forever, but only so long as *** a particular condition exists.” Holley, 553 F.2d at 851.

The Berger court indicated that an expansive approach should be taken in interpreting the “permanently residing” portion of the phrase. (Berger, 771 F.2d at 1571.) Another court has reasoned that “permanent” should be distinguished from how the words “temporary” and “temporarily” are used in the Immigration and Nationality Act. As these words are used in reference to tourists, business visitors, students and the like, the narrow view of the Sudomir court should be rejected. (See Gillar, 300 Or. at 683, 717 P.2d at 138.) The Sudomir case and its more narrow view of this portion of the phrase are distinguishable also on the grounds that Sudomir was not an unemployment benefits case, and the Sudomir plaintiffs were otherwise deportable. Here, plaintiffs resided in this country on a continual basis since their arrival over 10 years ago and have taken advantage of Congress’ offer to seek legalization of their status in this country. Plaintiffs have made a prima facie showing of eligibility. The proper conclusion is that they were permanently residing in this country during the time at issue.

Accordingly, the judgment of the circuit court of Cook County is reversed and remanded.

Reversed and remanded.

LaPORTA, P.J., and EGAN, J., concur.