text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MELANIE CREWS, Defendant-Appellant.
    Fourth District
    No. 4—89—0048
    Opinion filed November 9, 1989.

      Michael B. Metnick, Diana N. Cherry, and Richard D. Frazier, all of Metnick & Barewin, of Springfield, for appellant.
    John F. Dahlem, State’s Attorney, of Virginia, for the People.
   JUSTICE GREEN

delivered the opinion of the court:

On October 17, 1988, the circuit court of Cass County entered judgment on jury verdicts returned finding defendant Melanie Crews guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9—1(a)(1)) and solicitation (Ill. Rev. Stat. 1987, ch. 38, par. 8—1(a)). The court subsequently sentenced her to 30 years’ imprisonment for murder and six years’ imprisonment for solicitation, the sentences to run concurrently.

Defendant now appeals, contending: (1) the jury was not properly instructed regarding solicitation, accountability, and first degree murder; (2) section 8—5 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 8—5) prohibits convictions for both inchoate and principal offenses and, therefore, her conviction for solicitation to commit murder must fall; and (3) the trial court abused its discretion in sentencing defendant. We affirm the conviction and sentence for first degree murder in full but vacate the conviction and sentence for solicitation.

During the trial of this cause, several witnesses testified on behalf of the State that, as early as June or July 1987, defendant expressed her unhappiness with her marriage to her husband, Mark Crews. One person stated defendant told her she wanted out of the marriage, but Mark Crews would not agree to a divorce. Numerous witnesses who worked with defendant at a nursing home in Virginia, Illinois, testified defendant approached them in late 1987 or early 1988 and asked them if they would help her “get rid” of her husband. Witnesses stated she asked them if they had any poisons or drugs which she could use to poison Mark Crews’ milk shakes. Many also indicated defendant had asked them if they knew of any hit men she could hire to help her “get rid of” her husband.

David Shoemaker testified defendant told him Mark Crews had been beating her and their small son, and she had tried to place poison in his milk shakes. Shoemaker said defendant talked with him frequently about getting him to help her kill her husband. He said she gave him a .357 magnum pistol after Thanksgiving 1987 and told him he could have her husband’s gun collection if he helped her kill him. Shoemaker further testified she threatened both him and his family if he did not cooperate with her.

Shoemaker testified defendant called him the evening of January 19, 1988, and told him, “If you don’t want anything to happen to your kids, you will do it tonight.” He drove to the Crews’ residence and accompanied Mark Crews to a shed to look at a motorcycle. Shoemaker said defendant went with them and stood behind him, encouraging him to “do it now.” Shoemaker stated he removed the pistol from the waistband of his pants and pulled the trigger. Mark Crews’ body was found in the shed behind his house. The parties stipulated he had died from a gunshot wound to the back of the head. The evidence indicated the bullet which killed Crews had come from the .357 magnum pistol which police removed from David Shoemaker’s residence.

The testimony of several witnesses corroborated Shoemaker’s testimony. One co-worker indicated defendant told her on January 19, 1988, that Shoemaker was coming to their house that night to kill her husband, Mark Crews. She said defendant informed her she was not sure if the “job” had been completed yet because she had not yet spoken with Shoemaker. However, the co-worker stated defendant later approached her, put her finger to her head and said Shoemaker had shot her husband. Another co-worker testified defendant told her on January 20, 1988, that Shoemaker had been to her house the night before to “finish the job,” and the shooting had occurred in a “little house” behind her residence.

Defendant denied she had asked others for poisons or drugs or for assistance in helping her kill her husband. She specifically denied asking David Shoemaker to kill her husband. She stated the last time she saw her husband was when he left with someone the evening of January 19, 1988, to go down to a farm to look at a dirt bike. She did acknowledge she lived apart from Mark Crews for one month in 1986. In addition, she stated she and Mark had discussed the possibility of a divorce during 1986 and 1987, but Mark would not agree to one.

Following presentation of the evidence, an informal jury instruction conference was held, and the court allowed, without defense objection, numerous Illinois Pattern Jury Instructions, Criminal (2d ed. 1981) (IPI Criminal 2d) offered by the State. Among those instructions were IPI Nos. 6.02 and 5.03, which stated as follows:

“To sustain the charge of Solicitation, the State must prove the following propositions:
First: That the Defendant commanded, encouraged, or requested David Shoemaker to commit First Degree Murder; and
Second: That the Defendant did so with the intent that the offense of First Degree Murder be committed.
If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.
If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty.”

(See, e.g., IPI Criminal 2d No. 6.02.) And:

“A person is legally responsible for the conduct of another person when, either before or during the commission of an offense, and with the intent to promote or facilitate the commission of that offense, he knowingly solicits, aids, abets, agrees to aid, or attempts to aid the other person in the planning or commission of the offense.” (Emphasis added.) IPI Criminal 2d No. 5.03, at 40.

Defendant was charged by information with, and the jury found her guilty of, committing the crimes of solicitation and first degree murder (by accountability). Defendant maintained in her post-trial motion and again maintains on appeal the court erred in tendering both IPI Criminal 2d Nos. 5.03 and 6.02 to the jury because the use of the word “solicits” in IPI Criminal 2d No. 5.03 caused the jury to believe it had to find defendant guilty of first degree murder by accountability if it found her guilty of the crime of solicitation and found the person who was solicited to kill the victim did so.

We understand defendant’s argument to be that a solicitation within the meaning of section 5—2 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 5—2) and IPI Criminal 2d No. 5.03 concerning accountability differs from the type of solicitation which is the basis of the inchoate offense of solicitation described in section 8—1(a) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 8—1(a)) and IPI Criminal 2d No. 6.02. Thus, according to defendant, the jury was improperly and confusingly instructed in a manner to indicate that a solicitation of the type involved in the inchoate offense of solicitation was a sufficient basis to find the defendant guilty of murder by accountability.

Defendant relies upon People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840, where an accused was charged with murder, attempt (murder), and solicitation to commit murder. The proof of the accused’s guilt of murder arose entirely from a theory of accountability because of having solicited another to kill the victim. The accused was acquitted of the first two charges but convicted of solicitation. On appeal, he asserted that his conviction was invalid because the verdicts were inconsistent and he had been twice placed in jeopardy. The supreme court answered the contention the verdicts were inconsistent on the basis that even if the person solicited to kill the victim was conclusively shown to have killed the victim and that made the verdicts logically inconsistent, the verdicts were legally consistent.

The Hairston court also examined the double jeopardy question beginning with the words:

“Bottomed upon a premise that the proof necessary to convict him of the principal crimes was identical with the proof necessary to convict him of solicitation, defendant next contends that the verdicts were inconsistent and that he has been placed in double jeopardy. While we believe the single prosecution here forecloses any claim of exposure to double jeopardy and that the problem is instead largely one of inconsistent verdicts, even if it were considered otherwise it is manifest that the claim of double jeopardy has no merit.” (Emphasis added.) (Hairston, 46 Ill. 2d at 357, 263 N.E.2d at 847.)

Clearly the supreme court was correct in holding that when defendant was charged with both murder, attempt (murder), and solicitation to commit murder and tried in a single prosecution, he was not placed twice in jeopardy. If the law were otherwise, an accused could not properly be charged with and tried on a principal offense and an included offense in the same prosecution.

After making the foregoing explanation of why the Hairston defendant was not placed in double jeopardy, the supreme court further concluded that no double jeopardy resulted from the dual charges of solicitation to commit murder and murder because the inchoate offense of solicitation involved somewhat different conduct than the solicitation which is an element of accountability. The court stated:

“While the use of the word ‘solicit’ in the accountability statute would appear to be grammatically out of harmony with its purport, we are constrained to remark that section 5—2 (accountability) and section 8—1 (solicitation) relate to different conduct and as a consequence entail different elements of proof. Section 5—2, in its full context, contemplates an accessorial act which ‘promotes’ or ‘facilitates’ another person in ‘the planning or commission’ of an offense; section 8—1, on the other hand, encompasses only conduct whereby an accused ‘commands, encourages or requests another’ to commit an offense.” Hairston, 46 Ill. 2d at 359, 263 N.E.2d at 848.

We deem the foregoing explanation to be dictum which does not control our decision here. Defendant cites no other authority for drawing that distinction between the inchoate offense of solicitation and the type of solicitation which is an element of criminal accountability. We are unaware of any such authority. A highly respected text on criminal law, in describing the inchoate offense of solicitation, states that, with exceptions not applicable here, “if A solicits B to commit a crime and B then proceeds to commit the crime in response to A’s solicitation, then A is liable as an accomplice for the crime.” (2 W. La Fave & A. Scott, Substantive Criminal Law §6.1, at 14 (1986).) We hold proof that (1) defendant committed the inchoate offense of solicitation by commanding, encouraging, or requesting Shoemaker to kill her husband; (2) defendant did so with the intent to “promote or facilitate” the killing; and (3) in response thereto, Shoemaker killed defendant’s husband, taken together, was sufficient to prove all of the necessary elements of defendant’s guilt by accountability of the offense of first degree murder. The questioned instructions so indicated and were proper.

After trial, defendant presented, without objection by the State, both written and oral statements made by members of the jury after rendition of its verdicts which revealed the jurors did, in fact, raise questions during deliberations concerning the tendered instructions. The juror who filed the written statement wrote it was his “understanding [that], if [the] *** jury found Melanie Crews guilty of solicitation, then [it] had to find her guilty of murder.”

Defendant suggests the existence of these statements provides support for her argument because, here, the alleged confusion resulting from these instructions was not merely speculative but real. As we have indicated, the instructions given were proper. They indicated the jury could find defendant was guilty by accountability of first degree murder if she committed the offense of solicitation of Shoemaker, and in response, he committed a first degree murder of defendant’s husband. Accordingly, the statements do not indicate the jury was confused. Moreover, while not raised by the State on appeal, we are compelled to hold a jury may not impeach its own verdict through affidavit or testimony which reveals its misunderstanding of instructions tendered. (See Chalmers v. City of Chicago (1982), 88 Ill. 2d 532, 431 N.E.2d 361.) Accordingly, we could not consider these statements even if they did indicate confusion on the part of jurors.

Next, defendant maintains her conviction for solicitation to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8—1(a)) must be vacated because section 8—5 of the Code prohibits convictions for both the inchoate and principal offenses. (Ill. Rev. Stat. 1987, ch. 38, par. 8—5.) Since defendant was, in fact, convicted of the principal offense, here first degree murder, she claims her conviction for solicitation must fall. We agree.

We recognize a conflict exists between the First and Fifth District Appellate Courts of this State regarding this particular issue. In People v. Columbo (1983), 118 Ill. App. 3d 882, 455 N.E.2d 733, defendants were convicted of three counts of murder, conspiracy, and solicitation. Like defendant here, the defendants in Columbo claimed they could not be convicted of both solicitation and murder because section 8—5 of the Code prohibited convictions for both the inchoate and principal offenses. Relying on Hairston (46 Ill. 2d 348, 263 N.E.2d 840), and People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, the first district rejected defendants’ argument and upheld the convictions.

However, in People v. Davidson (1987), 160 Ill. App. 3d 99, 514 N.E.2d 17, the fifth district vacated the defendant’s convictions for solicitation and conspiracy after she had also been convicted in the trial court of murder by accountability in addition to those two crimes. That court rejected the reasoning of the Columbo court and concluded the plain language of section 8—5 of the Code mandated a vacation of the convictions for solicitation and conspiracy.

We agree with Davidson. At all times involved here, section 8—5 of the Code has stated: “No person shall be convicted of both the inchoate and the principal offense.” (Ill. Rev. Stat. 1987, ch. 38, par. 8—5.) Columbo failed to recognize section 8—5 of the Code.

Defendant additionally argues her solicitation conviction should be reversed due to errors made in instructing the jury as to that offense. However, because we vacate the solicitation conviction as aforementioned, we need not address that issue here.

Defendant’s final argument is that the trial court abused its discretion in sentencing her to 30 years’ imprisonment for her first degree murder conviction. She claims her sentence is disproportionately high, considering the trial court (1) admitted only one statutory aggravating factor “remotely” applied; (2) acknowledged several statutory mitigating factors applied; (3) failed to consider other applicable mitigating factors; and (4) stated defendant was a “model citizen” except for “this one aberration.”

In sentencing the defendant here, the court acknowledged it had received two to three dozen letters from various people, which were all favorable to the defendant. It further revealed it had read reports submitted by defendant which indicated “she [had gone] through hell with [Mark] Crews.” It stated that, in sentencing defendant, it would consider all evidence presented, reports filed, arguments made, and the applicable factors in aggravation and mitigation.

With regard to the statutory aggravating and mitigating factors in particular, the court noted defendant had no prior history of criminal activity, that her criminal conduct was the result of circumstances unlikely to recur and that her character and attitude revealed she was unlikely to commit another crime. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—5—3.1(a)(7), (a)(8), (a)(9).) It further stated the only aggravating factor which even “remotely” applied was that a more severe sentence was necessary to deter others from committing the same crime. (Ill. Rev. Stat. 1987, ch. 38, par. 1005—5—3.2(a)(7).) The court continued, though, and stated other nonstatutory, aggravating factors existed under the circumstances which it needed to consider. It indicated the crime was not a sudden one but, rather, had been premeditated by defendant for a year or more. Furthermore, defendant sought others to help her commit the crime and threatened or coerced the perpetrator into committing the crime. Finally, the court commented defendant had shown no remorse for the death of her husband. The court then sentenced defendant to 30 years in prison for her conviction for first degree murder.

We have reviewed the evidence submitted with regard to sentencing, including the testimony of witnesses who testified on behalf of defendant, the sentencing memorandum filed by her and letters sent to the court. Portions of the sentencing memorandum itself detailed a marriage during which Mark Crews mentally, physically and sexually abused the defendant. A narrative filed by defendant revealed Crews frequently ridiculed and embarrassed her in front of others and treated her as his slave. The narrative also indicated he often humiliated her, degraded her feelings, and forced her to perform certain utterly degrading acts.

The narrative further revealed Crews was jealous of the progress defendant had made at her job and in her weight loss, so much so he would force her to eat against her will so she would become fat. It further indicated he frequently punched her and pushed her around, especially if she did not immediately comply with his demands. Finally, she said that, in 1987, he began forcing her to participate in reenacting sadistic sexual acts he had seen in movies he had rented. She indicated this involved lewd language accompanied by tying her and sexually abusing her vaginally, anally, and orally while coercing her by the presence of a nearby loaded shotgun which he threatened to use. Defendant’s narrative revealed she had tried to leave Crews in the past, but she reluctantly returned when Crews put a gun to her head and threatened to kill her if she did not return.

The testimony of several witnesses corroborated some of the factual circumstances of this abusive relationship. Police reports filed in 1986 further detailed complaints made by defendant concerning her husband’s violent behavior and her fear of him. Witnesses who testified and others who wrote letters on her behalf described defendant as a caring, compassionate person who was a hardworking nurse and loving mother to her four-year-old son.

Defendant claims that, based on the foregoing, the court clearly erred in failing to apply other statutory mitigating factors, including the fact substantial grounds existed which tended to excuse or justify her criminal conduct and that her imprisonment would cause substantial hardship to her dependents. (Ill. Rev. Stat. 1987, ch. 38, pars. 1005—3.1(a)(4), (a)(11).) She further argues that, because of the substantial evidence presented in mitigation, her sentence was excessive and inconsistent with the purposes of the Code.

In setting forth the reasons for the sentence imposed, a trial court need not recite, and assign a value to, each fact presented at the sentencing hearing. (People v. Meeks (1980), 81 Ill. 2d 524, 411 N.E.2d 9.) It is presumed the court considered all evidence offered in mitigation absent some statement to the contrary. (People v. Bradney (1988), 170 Ill. App. 3d 839, 525 N.E.2d 112.) Even if we ourselves may have chosen to impose a more lenient sentence had we been in the position of the trial court here, we emphasize we cannot on review replace the trial court’s judgment with that of our own simply because our decision might have been different. Rather, where, as here, a sentence falls within the statutory range and the court has not erred in the selection of information to consider, we can properly alter the severity of a sentence only when it constitutes an abuse of discretion by the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) Based on the totality of the circumstances present here, we cannot conclude the trial court abused its discretion in sentencing defendant to 30 years in prison for her conviction for first degree murder.

For the reasons stated, defendant’s conviction and sentence for first degree murder are affirmed, and defendant’s conviction and sentence for solicitation are vacated.

Affirmed in part; vacated in part.

McCULLOUGH, P.J., and SPITZ, J., concur.


source: Caselaw Access Project

author: JUSTICE SPITZ

license: Public Domain

text:
      In re C.P. et al., Minors (The People of the State of Illinois, Petitioner-Appellee, v. Phil Phillips, Respondent-Appellant).
    Fourth District
    No. 4—89—0089
    Opinion filed November 9, 1989.

      Mark S. Morthland, Assistant Public Defender, of Decatur, for appellant.
    Lawrence R. Fichter, State’s Attorney, of Decatur (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Respondent Phil Phillips appeals from an order of the circuit court of Macon County finding him to be an unfit parent and terminating his parental rights to his five minor children, S.P., C.P., T.P., P.P., Jr., and J.P. We affirm for the following reasons.

The record reveals that a petition was filed on December 18, 1980, alleging that S.P., one-year old son of respondent Phil Phillips, was “a neglected minor in that his environment is injurious to his welfare.” S.P. was adjudicated a neglected minor by order dated May 18, 1981, and on the same date an order was entered removing S.P. from the custody of his parents. A second petition was filed on December 9, 1985, alleging that respondent’s other four children (ages one, two, three, and four years) were in an injurious environment in that these minors’ father, the respondent, caused the mother great bodily harm by striking her in the face. The petition further alleged that this violent act created a substantial risk of physical injury to the children because they were present at the time. On March 12, 1986, an order was entered declaring C.P., T.P., P.P., Jr., and J.P. to be abused minors and directing their removal from the custody of their parents.

On February 5, 1987, the mother, Rose Phillips, surrendered her parental rights as to all five of her children and consented to their adoption. On August 24, 1988, a supplemental petition was filed alleging the respondent to be an unfit person “because: he has failed to make reasonable efforts to correct the conditions which were the basis for the removal of the minors from the respondent father.” (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(m).) Another supplemental petition was filed on the same date, for the remaining minor S.P., alleging two counts against the respondent. The first count was the same as the previous petition for the other children. The second count alleged that the respondent was unfit, having failed to make reasonable progress toward the return of the minor to the respondent father since the adjudication of S.P. as a neglected minor.

A consolidated hearing concerning these allegations was held on January 11, 1989. At the hearing, Jo Lee McElrath testified she served as a child welfare specialist with the Illinois Department of Children and Family Services (DCFS). She explained her duties included overseeing placement of the respondent’s five children, formulating objectives for respondent that would enable him to regain responsibility for his children and attending administrative case reviews. She also testified she had been working with the Phillips children from 1985 until the time of the hearing. During 1987 and 1988, there was improved parent-child bonding. Her primary concern was the failure of respondent to provide housing for the children. Respondent was living with his parents, and the children could not live there. In July 1988, approval had been given for two of the children to be returned to respondent, but he never obtained a residence in which the children could reside. In the event respondent obtained housing and two children were returned to him, within two or three weeks public aid would begin to assist them financially. At the time, respondent was only receiving $149 per month as township assistance. Even though respondent’s visitation with the children was unsupervised, in this witness’ estimation these children would be too much of a task for the' respondent if he were responsible for them all, because they were too difficult to control. Respondent needed counseling to help him control his temper.

Eleanor J. Bridgeman, a case worker supervisor of the Social Adjustment and Rehabilitation Program at the Youth Advocate Program, testified she worked with the Phillips family from April 1982 until January 1987. During this time she spent 447¾ hours on the case. She worked with the family to improve parenting and discipline techniques. Bridgeman disclosed that in addition to her services, two homemakers were dispatched from the preteen program between October of 1984 and the end of December 1986, working a combined total of 644½ hours to assist the Phillips family. Bridgeman personally supervised the office visits, which were scheduled on a weekly basis. From August 1986 to January 1987, respondent did not participate in these visits. During the visits he kept, respondent made a lot of progress in learning how to discipline the children and learning that each child had special needs. However, since he had not participated in these visits for four months at the time the Department terminated the youth advocate service, the witness did not believe respondent was making reasonable progress at the time the service was terminated. Bridgeman or a homemaker also accompanied the family on visits to doctors to make sure she was aware of the doctor’s findings.

The State’s next witness was psychologist Dan Hocking. He testified he had evaluated and tested the respondent and had recommended that, on the basis of his evaluation, the respondent should be involved in weekly counseling and vocational training. Hocking examined and tested respondent on March 3 and 9, 1987. As a result of these tests, Hocking recommended respondent become involved in an ongoing program of weekly visits with a clinician. Hocking also suggested that the respondent should be monitored to establish that he was not abusing drugs or alcohol, that respondent participate in some type of vocational training, and that any increase in contact with the children or responsibility for the children be done gradually so respondent’s capabilities of handling this extra stress could be evaluated. In addition, if respondent attempted to assume responsibility of all the children, constant ongoing supervision and assistance such as a homemaker would be sufficient to allow respondent to be successful. Finally, Hocking recommended having Phillips evaluated by a psychiatrist to determine whether a mild antidepressant medication would be helpful.

Mary Wade Powell, a psychotherapist who practices with her husband William, testified the respondent had been referred to her for counseling by DCFS. Although a weekly schedule of appointments was set up, respondent kept only two appointments with Powell. During her two counseling sessions with the respondent, Powell encouraged the respondent to make an effort to find gainful employment so he could rent living quarters large enough to accommodate at least some of his children. She further testified respondent failed to secure employment because his hair was too long and there was no work. He indicated he could not rent a place to live on the money provided by the township. Powell agreed that the respondent seemed to place greater significance on his hairstyle than his desire to have custody of his children and that he did not attribute his hair length to any religious conviction. Powell attempted to schedule additional appointments but was unable to do so because she and respondent had difficulty making telephone contact with each other.

The State’s next witness was Agnes Clem, a licensed foster parent who cared for T.P. and C.P. for the past three years and two years, respectively. According to Clem, when C.P. and T.P. returned from a visit with their father in December of 1987, C.P.’s mouth and nose were swollen, and when she asked T.P. what had happened, T.P. told her that her daddy had hit C.P. in the mouth, “because he wouldn’t stop yelling.”

Mary Beth Hudson, another licensed foster parent, testified she was presently a foster parent to J.P., currently age seven. On occasion, when J.P. returned from visits with his father, there would be evidence of corporal punishment. On one occasion, J.P. had a black eye from being hit in the head with a toy. On another occasion, J.P. told Hudson respondent struck him with a belt. She observed three welt marks across the lower part of his back and the top of his “butt.” On yet another occasion, J.P. told Hudson his father had washed his mouth out with Comet for using profane speech. Hudson also testified that according to J.P. the respondent would sometimes make the children put their noses against a wall and kind of lean forward and bend down, as a form of discipline.

At the conclusion of the State’s case in chief, counsel for the respondent moved for a directed finding as to all counts. After hearing arguments by counsel, the motion was denied.

Respondent testified that although he did not have physical custody of his children, he had been allowed unsupervised visitation with his children at the house of Lori Nicholson, his girlfriend. Respondent had sought counseling at the Decatur Mental Health Center in 1984 or 1985. Later he went to Mary Powell and was subsequently referred to William Powell. In addition to seeing Mary Powell on two occasions, respondent has seen William Powell eight times. Phillips disclosed that the counseling sessions with William Powell were not as profitable for him as the sessions previously attended at the Decatur Mental Health Center. However, respondent admitted he had not seen William Powell for the 2½ months prior to the hearing. He testified that as a result of an automobile accident, he incurred a debt on which $1,100 was owed at the time of the hearing. To satisfy this debt, respondent made monthly payments of $120. Periodically, respondent does odd jobs to supplement the $149 monthly township payment. The money he earns from odd jobs is applied to this debt. Phillips stated that if he knew that cutting his hair would secure employment for him, he would cut his hair. He also testified he has never beaten his children with a belt, although he did wash out his son’s mouth with a bar of soap for using profane language and he has smacked them on the rear once or twice. Respondent also testified his father is blind and his parents do not want respondent’s children living in their home. Respondent’s testimony also revealed that he is not interested in any temporary work because he wants full-time work. He has no disabilities, physical or mental, that would prevent his employment at manual labor.

Lori Nicholson testified that since April of 1988 the respondent’s visits with his children have been conducted in her home. Originally, the visits were conducted every Saturday, but more recently they have been every other Saturday. The visits last from 10 a.m. until 4 p.m. She stated she has never seen the respondent hit his children. He disciplines them by sitting them on the couch or standing them in the corner. She accompanied respondent when he looked for employment at several places. Nicholson opined that the respondent is capable of caring for all of his children. She stated Phillips’ children are no more wild or unruly than other children.

Following the hearing, the court found the allegations had been proved by clear and convincing evidence. The respondent was found unfit within the meaning of section l(D)(m) of the Illinois Adoption Act (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D)(m)) in that he failed to make reasonable efforts to correct the conditions which were the bases for the removal of the minors and he failed to make reasonable progress toward the return of the minors within 12 months of the April 2, 1981, adjudication of neglect. The parental rights of respondent were terminated. DCFS was appointed as guardian of the minors with full power to consent to adoption. In so finding, the court noted that the respondent made little effort to benefit from the counseling sessions required. The court was especially disturbed by respondent’s failure to cut his hair so as to make himself more desirable on the job market. The court pointed out that “the department has made every effort it can make in order to reunite this family ***, but it just hasn’t come to be.”

In this appeal, respondent contends the trial court erred by basing its judgment upon the financial inability of the respondent to obtain housing for his children. He cites In re Paul (1984), 101 Ill. 2d 345, 461 N.E.2d 983, as a basis for this proposition. In Paul the court concluded that a finding of parental unfitness could not be based upon a mother’s failure to correct the situation that brought about the child’s removal in the first place where the mother could not afford corrective eyeglasses for the child. The Illinois Supreme Court held that poverty standing alone is not an adequate basis for terminating parental rights. However, in Paul the only basis for terminating parental rights discussed was the failure of the parent to correct the condition which was the basis for the child’s removal, whereas in the case at bar there is the additional consideration of whether the respondent has failed to make reasonable progress toward the return of the children.

In In re R.M.B. (1986), 146 Ill. App. 3d 523, 496 N.E.2d 1248, this court recognized that a parent with minimum ability might make limited progress toward the return of the child. On the other hand, the courts must not allow the child to live indefinitely with the lack of performance inherent in a foster home. This appears to be the plight of the children in the instant case. For almost eight years the children have been without a permanent home and the security such a home provides.

In In re Boolman (1986), 141 Ill. App. 3d 508, 511-12, 491 N.E.2d 1, 3, this court discussed the statutory requirement that a parent must make reasonable progress toward the return of the child within 12 months after an adjudication that the minor was neglected, holding that “reasonable progress” is constituted by “a minimum measurable or demonstrable movement toward that goal.” In the case at bar no movement has been discernible over the past seven years and nine months.

The respondent argues that the testimony reveals he is an interested parent since he continued to make regular visits, supervised and unsupervised, with his children. We do not accept that argument. In Boolman, this court noted that, although parents do visit their children, “their refusal to face their shortcomings [is] a sufficient basis for the trial court to conclude that they [have] not made ‘reasonable progress’ toward the return of the child.” (Boolman, 141 Ill. App. 3d at 512, 491 N.E.2d at 3.) The respondent’s visits with his children do not enable him to meet the “reasonable progress” standard when he has failed to make progress in other areas, such as providing housing for his children.

Respondent also argues the State’s evidence fell short of the clear and convincing standard and therefore should be reversed. We disagree. While parental rights and responsibilities are matters of deep human importance and will not be lightly terminated, the parental rights of a nonconsenting parent may be terminated if the parent is adjudicated unfit for one or more of the grounds listed in section 1(D) of the Act. (Ill. Rev. Stat. 1985, ch. 40, par. 1501(D); Ill. Rev. Stat. 1985, ch. 37, par. 705-9(3); Paul, 101 Ill. 2d 345, 461 N.E.2d 983.) In order for the trial court to find parental unfitness, there must be clear and convincing evidence to support such a finding. (Paul, 101 Ill. 2d 345, 461 N.E.2d 943.) However, the question on review is whether the finding of the trial court is against the manifest weight of the evidence. (In re Boolman, 141 Ill. App. 3d 508, 491 N.E.2d 1.) It is not the function of the reviewing court to reweigh the evidence or reassess the credibility of the witnesses. (See Gibson v. State Farm Mutual Automobile Insurance Co. (1984), 125 Ill. App. 3d 142, 465 N.E.2d 689.) Great deference is given to the findings of the trial court since the judge had the opportunity to view the witnesses and evaluate the testimony. (In re R.M.B., 146 Ill. App. 3d 523, 496 N.E.2d 1248.) For the finding to be against the manifest weight of the evidence, the opposite result must be clearly evident from a review of the evidence. Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329.

Under the facts of this case, it cannot be said that the trial court’s ruling was based upon the respondent’s financial shortcomings alone or is against the manifest weight of the evidence. Accordingly, the order of the circuit court of Macon County is affirmed.

Affirmed.

McCULLOUGH, P.J., and STEIGMANN, J., concur.


author: JUSTICE STEIGMANN JUSTICE GREEN,

text:
      In re MARRIAGE OF LYNDEN HARPER, Petitioner-Appellant, and TERRY J. HARPER, n/k/a Terry J. Palumbo, Respondent-Appellee.
    Fourth District
    No. 4—89—0326
    Opinion filed November 9, 1989.
    GREEN, J., dissenting.
    Thorpe Facer, of Allen & Korkowski & Associates, of Rantoul, for appellant.
    L. Keith Hays, Jr., of Monticello, for appellee.
   JUSTICE STEIGMANN

delivered the opinion of the court;

A judgment of dissolution of marriage was entered in February 1986, dissolving the marriage between these parties. A marital settlement agreement was incorporated within the judgment of dissolution. In that marital settlement agreement, the parties agreed to joint custody of their minor child, and they further agreed that neither would request child support from the other “at this time.”

In February 1989, petitioner filed a petition to set child support, and a hearing thereon was conducted in March 1989. At the hearing, the trial court noted that it had received and considered detailed financial affidavits of the parties as well as the testimony presented at the hearing; the trial court thereafter fixed child support payments in the sum of $50 every two weeks.

Petitioner appeals, alleging (1) the trial court erred in setting child support payments below the recommended statutory minimum without, as required by section 505(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)), providing written findings for departing from those guidelines, and (2) the trial court erred in ordering child support in the amount of only 11% of respondent’s net income.

We disagree and affirm.

The record makes clear that petitioner at no time called to the attention of the trial court its alleged failure to make express findings explaining the reasons for its departure from the recommended statutory minimum percentage. In the absence of petitioner’s having done so, we decline to address this issue for the first time on appeal. Were we to do so, this case might be remanded with directions to the trial court to provide written findings in accordance with section 505(a). The trial court might then make those findings, certify them back to this court, and we might then find them to be entirely appropriate. It is even possible that plaintiff initially might have chosen not to pursue this appeal based upon the trial court’s findings. The point is that judicial resources were wasted by plaintiff’s appeal of this issue. This waste of resources could have been avoided had plaintiff, at the time the trial court rendered its decision or within 30 days thereafter, but asked for the written findings to which he claims to be entitled. (See In re Marriage of Rodriguez (1989), 131 Ill. 2d 273, 279 (“The general rule is that questions not raised in the trial court are deemed waived and cannot be argued for the first time on appeal”).) Instead plaintiff brings this appeal.

We disagree with the dissenting opinion that our holding contravenes the provisions of Supreme Court Rule 366(b)(3)(ii) (107 Ill. 2d R. 366(b)(3)(ii)) by, in effect, requiring the filing of a post-trial motion in this nonjury civil proceeding. Instead, we view petitioner’s first argument as an attack on the procedures employed by the trial court in reaching and explaining its judgment, not an attack on the judgment itself. Petitioner’s second argument attacks the judgment and, consistent with Rule 366(b)(3)(ii), we consider that argument on its merits later in this opinion.

To say that Rule 366(b)(3)(ii) does not require a post-trial motion in a nonjury civil trial to preserve an issue for appeal is not to say that no objection need ever be raised or called to the attention of the trial court to preserve for appeal alleged procedural deficiencies. In criminal cases, both a timely objection and a timely post-trial motion are required to preserve trial issues for appeal. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1129-30, cert, denied (1988), 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) Rule 366(b)(3)(ii) eliminates the requirement for a post-trial motion in nonjury civil cases, but does not eliminate the requirement for a timely objection to an alleged procedural error, especially where, as here, that error could have been easily corrected by the trial court.

In the present case, the first time the trial judge will have this alleged procedural error called to his attention is when he receives a copy of this opinion. We cannot believe that this state of affairs was intended by the Illinois Supreme. Court when it promulgated Rule 366(b)(3)(ii).

As a last matter, we note that our holding is in no way inconsistent with the Committee Comments to section 63.3(1) of the former Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 68.3(1)), the precursor to Supreme Court Rule 366(b)(3)(ii). (See Ill. Ann. Stat., ch. 110, par. 68.3(1), Committee Comments, at 270 (Smith-Hurd 1968).) Those comments speak of no formal action being necessary to preserve for appeal “the issue of the sufficiency of the evidence.” (Ill. Ann. Stat., ch. 110, par. 68.3(1), Committee Comments, at 270 (Smith-Hurd 1968).) The argument that a trial judge has not explained in writing his reasons for deviating from statutory child support guidelines has nothing to do with the argument that the evidence is not sufficient to support the child support determination the trial judge made.

As to the second issue raised on appeal, our careful examination of the record reveals that the court was fully apprised of the financial circumstances between the parties and fully considered all of the points now being argued on appeal. We are satisfied that the determination of child support payments made by the trial court in this case does not demonstrate any abuse of the trial court’s discretion. In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316.

The judgment is affirmed.

Affirmed.

LUND, J., concurs.

JUSTICE GREEN,

dissenting:

As indicated by the majority, I cannot agree that the petitioner waived any error in the judgment fixing child support by not taking action in the circuit court raising the issue that the award was less than that required by statutory guidelines unless appropriate findings were made. I recognize the general rule set forth in Rodriguez and cases cited therein. However, the issue waived in Rodriguez concerned the standing of a party which should have been raised before judgment. The same is true of the errors involved in cases cited in Rodriguez. Here, the alleged error in the judgment could not have been raised until the judgment was entered and, thus, could be raised only by a post-trial motion. At all times pertinent, Supreme Court Rule 366(b)(3)(ii) provided that, in civil cases tried without a jury, “[njeither the filing of nor the failure to file a post-trial motion limits the scope of review.” 107 Ill. 2d R. 366(b)(3)(ii).

In nonjury civil cases I deem the relationship between the general rule requiring error to be raised in the trial court to preserve the issue for review and Supreme Court Rule 366(b)(3)(ii) to be such that in those cases error first occurring in a final order appealed need not be raised in the trial court in order to be reviewable. The cited wording of the foregoing rule was taken from section 68.3(1) of the former Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 68.3(1)). The comments of the joint committee which recommended the adoption of that legislation stated the language of section 68.3 made “clear that in non-jury cases no formal action is necessary to preserve for review the issue of the sufficiency of the evidence.” Ill. Ann. Stat., ch. 110, par. 68.3(1), Committee Comments, at 270 (Smith-Hurd 1968).

We agree that because of Supreme Court Rule 366(b)(3)(ii), no post-trial motion is necessary in a civil nonjury case to preserve for review the issue of the sufficiency of the evidence to support the judgment on appeal. That is significant in two aspects here. First, that interpretation of Rule 366(b)(3)(ii) makes clear that the rule’s effect is not limited to making unnecessary the citing of error in a post-trial motion when that issue has already been raised in the trial court. Clearly, the rule enables a party to raise certain issues on review for the first time. Secondly, the issue in dispute here is closely related to the question of the sufficiency of the evidence. The issue can be accurately stated in terms that the evidence is insufficient to support the judgment absent findings.

The majority would limit the application of Supreme Court Rule 366(b)(3)(ii) to issues raised before judgment in the trial court or errors of substance, as distinguished from procedure, which appear for the first time in the final judgment. I would agree that the raising of many matters, such as that involved here, in the trial court would save judicial time and resources. Perhaps Rule 366(b)(3)(ii) should be amended to so provide. However, to make a dividing line between those matters which must be raised by post-trial motion and those that do not depending upon whether the error is one of procedure or of substance creates the problem of deciding in which category a claim of error fits. In any event, neither the wording of Rule 366(b)(3)(ii) nor case precedent called to our attention makes such an exception. I conclude that existing Illinois law does not require the issue in dispute here to have been raised in the circuit court to be before us.

I would either remand to the circuit court to make findings, as the majority suggests as an appropriate procedure if the issue was before us, or reverse and remand to the circuit court for the court to make an appropriate order. If the latter procedure was adopted, the circuit court would be in a position to change its judgment if it decided it could not make sufficient findings to support the present judgment.


author: JUSTICE LUND

text:
      In re MARRIAGE OF VANESSA BUSH, Petitioner-Appellee and Cross-Appellant, and GARRY TURNER, Respondent-Appellant and Cross-Appellee.
    Fourth District
    No. 4—88—0716
    Opinion filed November 9, 1989.

      Darrell L. Hartweg, of Luedtke, Hartweg & Turner, of Bloomington, for appellant.
    Thomson & Weintraub, of Bloomington (Alan I. Weintraub, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This appeal follows the dissolution of the marriage of the parties, doctors Vanessa Bush and Garry Turner, on January 21, 1985. The hearing for custody, temporary child support, and visitation was held April 28, 1986. During the next two years, petitioner Bush filed four rules to show cause and hearings were held. The trial court entered its final order on September 20,1988.

The parties dispute the trial court’s finding as to respondent’s status in a medical partnership and the inclusion of goodwill in the valuation of the partnership, with eight other issues involving the parties’ son, Alan, and relating to child support, custody, and visitation.

The parties, both physicians, were married in 1982. Petitioner, now 33 years old, began her medical career as an emergency room physician at Brokaw Hospital in Normal, Illinois. Respondent, a 34-year-old anesthesiologist, began his medical career at Anesthesia Associates, a medical partnership in Bloomington, Illinois. He is now a partner there.

The parties have one child, Alan V. Turner, born October 10, 1984. Petitioner testified respondent physically and mentally abused her before and during her pregnancy. The parties separated eight days after Alan’s birth. Petitioner lived with her parents in Chicago during her six weeks of maternity leave and returned to the parties’ home in Bloomington in early December 1984. She and respondent lived in the marital home until January 18, 1985, but never reconciled. The petitioner filed for dissolution in Livingston County on December 12, 1984. The circuit court of Livingston County entered the decree of dissolution of marriage on January 21, 1985, on the ground of mental cruelty.

Petitioner continued to work as an emergency room physician at various hospitals in central and northern Illinois. In May 1986, petitioner married Lawrence Webster, also a physician. She and Alan moved to Dr. Webster’s home in Decatur in June 1986. Various babysitters, some of them live-ins, cared for Alan while petitioner worked part time at Brokaw Hospital in Normal. In May of 1987, petitioner, Lawrence Webster, and a third party purchased Decatur Urgent Care Center. Petitioner began working at the Decatur Urgent Care Center in October 1987. She is still employed there, and her monthly gross salary is $7,200 per month. Dr. Webster’s gross salary is also $7,200 per month.

Respondent continues to work for Anesthesia Associates. His estimated gross salary for 1987 was approximately $299,739, or $24,978 per month. Respondent has not remarried.

On April 28, 1986, the circuit court of Livingston County held a hearing on petitioner’s petition for temporary custody and child support and on respondent’s petition for temporary visitation. The court’s temporary order provided for joint temporary custody, with primary physical custody remaining with petitioner. Respondent was to pay $1,000-per-month child support: $800 directly to petitioner and $200 to a uniform gift to minor or other similar account. The order provided respondent with temporary physical custody on alternate Wednesdays through Sundays and visitation on certain holidays and birthdays. The order also included elaborate instructions on transporting the child for visitation, as the parties could not reach agreement on the matter. On its own motion, the Livingston County circuit court ordered the case transferred to McLean County on November 6,1986.

During the two years between issuance of the temporary and final orders, respondent paid $4,833 to petitioner as temporary child support. By March of 1988, temporary child support arrearages totalled $12,567. Petitioner filed several rules to show cause during the same period. Respondent admitted he did not make temporary child support payments as ordered and gave five reasons for refusing to pay, none related to ability to pay. First, he alleged petitioner denied him visitation rights as he did not know the whereabouts of his son for seven weeks following petitioner’s marriage to Lawrence Webster. Second, respondent cited two brief confrontations between himself and petitioner in August and September of 1986. Testimony from each party indicates respondent had the child pursuant to court-ordered visitation. There was confusion or disagreement over the length of the child’s stay with his father on each occasion, and petitioner entered respondent’s home uninvited to remove the child. Physical confrontations resulted. The third reason given for refusing to pay child support was petitioner never told respondent how she intended to use the monies to support the child. Next, respondent claimed he should not pay temporary child support because he had custody of Alan eight days each month and contributed directly to Alan’s support during those days. Finally, respondent refused to pay temporary child support because he believed all the child’s needs were already being met.

Respondent did establish a $1,600 certificate of deposit (CD) in the child’s name in 1986, pursuant to the court’s order that he place $200 per month in trust. He established an irrevocable trust for the child in August 1987. He testified petitioner refused to serve as co-trustee.

At a hearing in March 1988, the court found temporary child support arrearages of $12,567. The court declined to hold respondent in contempt of court for his failure to make payments, but ordered him to establish a trust fund for the child of $12,567.

The court entered its final order on September 20, 1988. The court awarded joint custody, physical custody to remain with petitioner during the school year. During the school year, Alan will visit his father on alternate weekends and will live with his father for approximately two months each summer. During summer visitation, petitioner has absolutely no visitation rights. This visitation schedule will begin when the child enters kindergarten. Until then, the visitation schedule established under the temporary order remains in effect. The court ordered respondent to obtain a $100,000 life insurance policy “to guarantee payment of child support” and to name as beneficiary the trust he had been directed to establish for temporary child support arrearages. The court ordered respondent to establish a trust fund on behalf of the child of $18,767. This amount included temporary child support arrearages, the CD, and monies in the trust fund respondent had already established pursuant to the temporary order.

Respondent is to pay $800 per month from Anesthesia Associates directly to petitioner for child support. He is to continue to contribute to the trust fund according to the following formula: “Respondent’s payments into the trust fund shall be in an amount equal to 20% of his net income as defined by statute less the cost of the $100,000 life insurance policy premium *** and the $800 per month cash support payments to petitioner ***.” The court found respondent in contempt of court for failing to pay $225 in temporary child support between March and June of 1988. Respondent was sentenced to seven days in jail, but could purge himself by paying $225 immediately to petitioner. Finally, the order divided marital property between the parties. The dispute involving property division relates to respondent’s partnership status in Anesthesia Associates and valuation of the partnership interest. Respondent contends a partnership interest did not exist at the time of the January 21, 1985, dissolution.

Dr. Gilbert Causey, one of the founders of Anesthesia Associates, testified that the partnership’s usual practice is to hire an anesthesiologist for one year as an employee with a guaranteed salary for that year. During the employee’s first year of employment, partnership for the employee is discussed among the partners. All previous employees were offered partnership during the first year and began their second years with the firm as partners, earning a guaranteed salary plus a percentage of the partnership’s net profits for the year. Each entered a “standard written contract” designed for new partners. Upon leaving the partnership, former partners are entitled to their percentages of accounts receivable.

Respondent began working for Anesthesia Associates on August 1, 1983. He was hired as an employee of the partnership with a guaranteed first-year salary of $90,000. Anesthesia Associates discussed partnership with respondent during his first year, but did not offer him partnership as both sides had doubts about his remaining with the firm. Respondent and the partnership orally agreed respondent would remain for a second year (August 1984 through August 1985) as an employee, to allow the partnership additional time for evaluation. Respondent’s guaranteed salary for his second year of employment was $100,000. If his earnings exceeded the $100,000 guaranteed salary during that second year, respondent was additionally entitled to 16% of the partnership’s net profits for the year. Had respondent left the partnership during his second year, Dr. Causey testified respondent would not have had access to additional partnership funds.

Dr. Causey testified there was no written agreement between Anesthesia Associates and respondent detailing the terms of respondent’s second year of employment. Dr. Causey did testify that the partnership drafted a partnership contract for respondent toward the end of his first year of employment. This written contract shows a guaranteed salary for the second year of $100,000 plus 16% of net profits for earnings over $100,000. The contract was never signed by the partnership or by respondent because the partners did not want respondent to have access to the firm’s accounts receivable. Respondent was not listed on the partnership’s 1983 tax return, but was listed as a partner on the firm’s 1984 tax return. Dr. Causey testified respondent was listed in 1984 because of the net profit percentage agreement that covered respondent’s second year of employment. Respondent received schedule K-l for 1984, the partner’s share of income, credits, and deductions. Respondent also received 16% of the partnership’s net profits from September through December 1984 because his earnings exceeded $100,000 for the year.

Dr. Causey testified he believed respondent did not become a partner until the end of his second or beginning of his third year of employment, August or September 1985. At that time, he became 100% vested in the partnership’s accounts. His profit percentage increased to 17.5% of the partnership’s net profits.

The trial court found respondent was a partner on the date of the dissolution of the marriage, January 25, 1985, which fell during respondent’s second year with Anesthesia Associates, stating:

"It is apparently true that a written partnership agreement was never agreed upon or executed by the parties, but I do find that he did act like a partner, he did receive schedule K-l as if he was a partner, and the only reason that the partnership agreement was not executed was because there was some uncertainty on his part as to whether he was going to stay in town, and the parties had reached an agreement to what was going to happen in the event that he didn’t, and that was the only reason why he did not get a *** written partnership agreement.”

Respondent argues this finding was against the manifest weight of the evidence.

“Manifest weight has been defined as that weight which is clearly evident, clear, plain and indisputable. [Citations.] We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of fact, have come to a different conclusion. [Citations].” Laroia v. Reuben (1985), 137 Ill. App. 3d 942, 946, 485 N.E.2d 496; 499.

The trial court was in the best position to hear the testimony and, most importantly, to evaluate the credibility of the witnesses. We find the decision of the trial court, that respondent was a partner in Anesthesia Associates on the date of the dissolution of the marriage, was not contrary to the manifest weight of the evidence.

Respondent next argues the trial court erred in valuing his interest in Anesthesia Associates.

Goodwill has been accepted as a proper consideration in determining the value of a marriage dissolution party’s interest in professional partnerships or corporations. (In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 73, 507 N.E.2d 900, 907 (a law practice); In re Marriage of Rubinstein (1986), 145 Ill. App. 3d 31, 36-37, 495 N.E.2d 659, 662-63 (a medical corporation); In re Marriage of White (1981), 98 Ill. App. 3d 380, 384, 424 N.E.2d 421, 424 (a dental corporation).) In Stone, the court states:

“A number of courts have adopted a method for valuation of a partnership or professional practice which includes consideration of:
(a) Fixed assets which include cash, furniture, equipment, supplies and library;
(b) Other assets, including properly aged accounts receivable, costs advanced with due regard for their collectibility; work in progress partially completed but not billed as a receivable, and where completed but not billed;
(c) Goodwill of the practitioner in his business as a going concern; and
(d) Liabilities of the practitioner related to his business.” Stone, 155 Ill. App. 3d at 72, 507 N.E. 2d at 906-07.

Respondent’s expert was Charles Dunbar, accountant for Anesthesia Associates for 25 years. Dunbar valued respondent’s interest in Anesthesia Associates on January 25, 1985, at $68,358, which was 16% of the tangible assets of Anesthesia Associates. He relied on the terms of the unsigned written agreement in making the valuation. He did not consider or include goodwill because, under the terms of the agreement, had respondent been a partner and withdrawn from the firm, he would have been entitled only to his percentage of cash and receivables, not to goodwill.

Petitioner’s expert witness was Dennis Knobloch, a certified public accountant. He valued respondent’s interest in Anesthesia Associates on January 25, 1985, at $179,307. He included goodwill ($141,284) in his valuation.

The trial court found respondent’s interest in Anesthesia Associates on January 25, 1985, was $101,500. Respondent argues this was erroneous; petitioner argues the figure is arbitrary and against the manifest weight of the evidence. However, the testimony from the two experts presented conflicting opinions which could well justify the court’s decision fixing valuation less than the $179,307 and higher than the erroneous (because of the failure to include goodwill) $68,358. We affirm the trial court’s valuation of respondent’s partnership interest.

We now turn to the issues involving child support, custody, and visitation. Petitioner argues the trial court abused its discretion when it ordered respondent to place child support arrearages in a trust fund for the child. We agree. The law in this State is clear: “[P]ast-due installments of child support are the vested right of the designated recipient; thus, the court lacks the authority to modify those amounts that have already accrued.” (In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 914, 483 N.E.2d 692, 698; see also In re Marriage of Burrows (1984), 126 Ill. App. 3d 752, 757, 467 N.E.2d 987, 991; Jones v. Meade (1984), 126 Ill. App. 3d 897, 902, 467 N.E.2d 657, 661; In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 512, 436 N.E.2d 228, 235.) The court’s order, requiring respondent to establish a trust fund with the arrearages, was not legally justified under the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 503(g), 510), and deprived petitioner of a vested right.

If the temporary child support arrearages have been put into trust, the monies are to be taken out of trust and paid immediately to petitioner. If respondent has not yet established this trust, he is to be ordered to immediately pay petitioner the $12,567 owed as temporary child support.

Petitioner argues the trial court erred on March 15, 1988, when it did not find respondent in contempt for his refusal to pay temporary child support as ordered. Petitioner argues this decision was against the manifest weight of the evidence and urges this court to reverse and find respondent in contempt. We decline to do so. Enforcement of support payments by contempt is in the sound discretion of the court. (Welch v. Welch (1950), 340 Ill. App. 639, 92 N.E.2d 355 (abstract of opinion).) While section 505(b) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505(b)) provides for the use of contempt proceedings, because of the complexities of dissolution matters, we are reluctant to change a fact finder’s determination as to the use of this power. The trial court’s decision to deny a contempt finding at this juncture of the case was not against the manifest weight of the evidence. “Whether the person charged is in wilful contempt and whether a sanction is to be imposed are factual matters to be determined by the trial court from the evidence presented to it.” As a reviewing court, we will not disturb the trial court’s decision unless contrary to the manifest weight of the evidence or an abuse of discretion. In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 420, 464 N.E.2d 795, 807.

The next issue raised on appeal by both parties concerns the child support award. The trial court’s order for child support required payment of $800 per month from Anesthesia Associates to petitioner. Additionally, respondent was to make payments into an already established trust fund. The payments into the trust were to be for an amount equal to 20% of respondent’s net income as defined by statute (Ill. Rev. Stat. 1987, ch. 40, par. 505), less the costs of the $100,000 life insurance policy premiums and the $800-per-month cash support payments made to petitioner. Respondent argues the child support award is excessive because it is far more than the amount necessary to meet the child’s reasonable and necessary support needs, particularly in light of each parent’s separate abilities to financially care for the child. Petitioner argues the award is insufficient because, according to her calculations, $800 per month is only 6% of respondent’s monthly net income.

In making child support awards, trial courts are to consider the following factors:

“(a) [T]he financial resources of the child;
(b) the financial resources and needs of the custodial parent;
(c) the standard of living the child would have enjoyed had the marriage not been dissolved;
(d) the physical and emotional condition of the child, and his educational needs; and
(e) the financial resources and needs of the non-custodial parent.” Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(2).
“The amount of an award of *** child support is a matter within the sound discretion of the trial court, and the award will not be disturbed on appeal absent an abuse of discretion. Such an abuse of discretion occurs only where no reasonable man would take the view adopted by the trial court. In re Marriage of Dwan (1982), 108 Ill. App. 3d 808, 812.” In re Marriage of Adams (1988), 174 Ill. App. 3d 595, 617, 528 N.E.2d 1075, 1088.

The trial court’s overall award of 20% of respondent’s net income was excessive for a child of such tender years and, as such, constituted an abuse of discretion. Additionally, the use of a trust as a reservoir for that portion of the 20% not directly paid to petitioner was improper. The trial court believed respondent should not be required to pay 20% of his net income directly to petitioner. There is testimony that respondent’s net monthly income is approximately $13,000, or $156,000 annually. An award of 20% of respondent’s income is approximately $30,000 per year, or more than the average income of most Americans. We have great reservation about finding one four-year-old boy entitled to such a sum. Presumably, the trial court felt the same and devised the formula involving the $800 monthly cash payment, the life insurance policy, and the trust, in order to moderate the cash amount paid for support but yet comply with the guideline figure. We now hold that where the individual incomes of both parents are more than sufficient to provide the reasonable needs of the parties’ children, taking into account the life-style the children would have absent the dissolution, the court is justified in setting a figure below the guideline amount.

The court must clearly state the basis for setting a figure below the guidelines, as required by the statute. However, a reasonable basis exists where both parties have more than enough income to provide for a child, and an award of 20% of the noncustodial parent’s income exceeds the bounds of anything the child can reasonably need or desire. Certainly, there will be instances where a high child support figure will be warranted. If the situation involved high medical expenses or, when the boy gets older, he is sent to an expensive, private grammar school, a child support figure approaching 20% of respondent’s income might be justified. This is not such a case. There is no evidence of unmet needs, and the arguments of both parties devolve into a dispute over life-style.

Our courts have recognized that in fixing child support, or in modifying child support, a court must consider the standard of living the child would have enjoyed absent parental separation and marital dissolution. (See In re Marriage of Bussey (1984), 128 Ill. App. 3d 730, 734, 471 N.E.2d 563, 566, aff’d (1985), 108 Ill. 2d 286, 483 N.E.2d 1229; In re Marriage of Leva (1983), 125 Ill. App. 3d 55, 57, 460 N.E.2d 1179, 1180-81; In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 417, 464 N.E.2d 795, 805; In re Marriage of Fair-child (1982), 110 Ill. App. 3d 470, 477, 442 N.E.2d 557, 562.) Despite the requirement that a court consider a child’s station in life, the courts are not required to automatically open the door to a windfall for children where one or both parents have large incomes. A large income does not necessarily trigger an extravagant life-style or the accumulation of a trust fund. A large increase in income will not necessarily result in an equal change in one’s life-style. There are other rational options for an individual with a large income than just conspicuous consumption. The wealthy person may prefer personal frugality, or the enrichment of others through charitable giving, or simply deferring income through tax-delay investments, in order to build an estate. Keeping in mind the fact that this case involves incomes for both mother and father which are far above average, we know of no rule of law requiring excessive child support so that the child (or the custodial parent) can diminish the accumulation of an estate by the noncustodial parent. We are not required to equate large incomes with lavish life-styles. Neither are the courts required to provide opulence and excess as an award for child support simply because it exists for one of the parties.

In the instant case, petitioner’s argument for a 20% award is centered on respondent’s income. The evidence in the record of the typical expenditures for Alan tend to support an award closer to the $800 figure set by the court. In sum, the court has the leeway to set an award below the guideline figure in a case such as this. Alan’s needs are provided for, and then some. Nevertheless, the noncustodial parent must provide support for his child. The court must accommodate the reasonable needs of the child with the available means of the parents. (See In re Marriage of Rundle (1982), 107 Ill. App. 3d 880, 883, 438 N.E.2d 229, 231.) The Act was not intended to create windfalls but, rather, adequate support payments for the upbringing of the children. We remand this issue to the trial court for determination of a reasonable specific monthly support amount.

Additionally, we hold it was improper to order the creation of a trust in this case. The court’s ruling leaves the impression that an attempt was being made to comply with the 20% guideline. The statutory provision allowing creation of a trust is section 503(g) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(g)), which states:

“The court if necessary to protect and promote the best interests of the children may set aside a portion of the jointly or separately held estates of the parties in a separate fund or trust for the support, maintenance, education, and general welfare of any minor, dependent, or incompetent child of the parties.”

Section 503 is the property division provisions of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503), while section 505 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 505) provides for child support and the enforcement thereof. Section 505 does not provide for trusts.

We agree that a trust may be appropriate where a parent has shown unwillingness to pay support as ordered by the court. (In re Marriage of Bates (1986), 141 Ill. App. 3d 566, 571, 490 N.E.2d 1014, 1017; In re Marriage of Rochford (1980), 91 Ill. App. 3d 769, 782, 414 N.E.2d 1096, 1106-07.) However, the present case is somewhat similar to the Bates case, where regardless of the filing of five petitions for rule to show cause, the trust was not allowed. We hold the facts in the present case do not establish the special circumstances justifying the use of section 503(g). We believe, unless respondent has severe emotional problems, the contempt powers will be adequate to enforce future support payments.

We also condemn the trust because it did not allow the use of the corpus during minority. This is not in compliance with the provisions of section 503(g), and appears to be an unlawful court-ordered inheritance. We further note the contributions to the trust were to be from current income, rather than from property.

Both parties appealed the award of joint custody, and each argued for sole physical custody. Section 602.1 of the Act sets forth the criteria for an award of joint custody. Either party can move for an award of joint custody, or the court can make the award on its own motion. Custody is determined pursuant to the terms of a joint parenting agreement or order. The parents are to determine the terms of the agreement, which specifies each parent’s powers, rights, and responsibilities for the care of the child and for major decisions such as education, health care, and religious training. The agreement is to establish a procedure for dispute resolution and periodic review of its terms. If the parents are unable to formulate such an agreement, the court shall decide the terms of a joint custody arrangement. (Ill. Rev. Stat. 1987, ch. 40, par. 602.1(a).) Neither the court nor the parties formulated such an agreement here.

“The propriety of such an arrangement is dependent upon the following: the best interests of the child, agreement of the parents and their mutual ability to cooperate, geographic distance between the parents, desires of the child if of a suitable age, and the relationships previously established between the child and his parents. Since joint custody requires extensive contact and intensive communication, it cannot work between belligerent parents. Scott, Joint Child Custody — An Exception, 64 Chicago Bar Record 406 (1983).

This court, in the case of In re Marriage of Manuele (1982), 107 Ill. App. 3d 1090, 1094, 438 N.E.2d 691, 694, discouraged the awarding of joint custody, specifically noting that such orders are usually unworkable and should be rarely entered. *** Finally, we noted that unless parents have an unusual capacity to cooperate, substantial disagreement shall arise, ultimately resulting in harm to the child.” In re Marriage of Drummond (1987), 156 Ill. App. 3d 672, 679-80, 509 N.E.2d 707, 712-13.

We reversed the joint custody award made in the Drummond case because there was no joint parenting agreement or order, mediation between the parties failed, testimony indicated the parties were unwilling to cooperate with each other, and the trial court failed to consider geographic distance between the parties (one lived in Illinois, the other in Texas).

The award of joint custody in this case was manifestly an abuse of discretion. The parties have repeatedly exhibited hostility toward each other, sometimes resulting in physical confrontation. Counsel for both parties agreed at oral argument that there is little chance of the parties ever overcoming their mutual feelings of animosity. Most importantly, the record clearly indicates the parties have been unable, since Alan’s birth, to cooperate on matters involving their son. Joint custody will only insure continuing litigation. See In re Marriage of Pool (1983), 118 Ill. App. 3d 1035, 455 N.E.2d 887.

The record in this case indicates that the petitioner is the proper custodial parent. She has been the child’s primary physical custodian since his birth. The trial court indicated that for the immediate future, this relationship should continue, thus clearly indicating a preference on the issue of custody. We conclude custody must be awarded to petitioner.

Because this cause will be remanded, one purpose being the determination of proper visitation, we find it necessary to comment on the trial court’s previous order granting the respondent uninterrupted visitation for two months during the summer. The child is of tender years. The mother has basic custody for 10 months a year. The parties live approximately 50 miles apart. An excellent highway exists between the cities of Decatur and Bloomington. There is no justification for denying the custodial parent some contact with her son during the two-month visit with respondent.

This is one more case involving child custody and visitation which brings us distress. It is sad when parties with at least above-average degrees of intelligence (which we assume graduates of medical school have) lose the ability to make reasonable decisions when it comes to child custody and visitation. Our years of handling such cases have proved the main result of the conflict is unnecessary damage to the child or children, the most valuable and continuing asset of the marriage relationship.

In summary, we affirm the trial court’s findings relating to property distribution. We reverse the order of joint custody and mandate an award of custody to the petitioner mother. We reverse the provision allowing two months’ uninterrupted visitation with respondent father and direct the trial court to provide for changes in visitation consistent with the dictates of this opinion. The trial court may, if it deems necessary, have additional hearings relating to the visitation issue. We reverse the trial court’s order creating a trust and order an additional hearing for purposes of fixing child support consistent with the dictates of this opinion. We reverse the trial court’s order relating to vested unpaid child support, and mandate an order directing respondent to pay the arrearage forthwith.

Affirmed in part; reversed in part; and remanded with direction.

KNECHT and SPITZ, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANK L. HAGEN, Defendant-Appellant.
    Fourth District
    No. 4—89—0328
    Opinion filed November 9, 1989.
    Thomas R. Appleton, of Morse, Giganti & Appleton, of Springfield, for appellant.
    Donald M. Cadagin, State’s Attorney, of Springfield (Kenneth R. Boyle, Robert J. Biderman, and Gwendolyn W. Klingler, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE SPITZ

delivered the opinion of the court:

Defendant Frank Hagen pleaded guilty to operating a motor vehicle with obstructed, or tinted, front side windows in violation of section 12 — 503(a) of the Illinois Vehicle Code (Code) (Ill. Rev. Stat. 1987, ch. 95½, par. 12—503(a)). The trial court denied defendant’s motion to dismiss alleging that section 12—503(a) is unconstitutional in that it violates the equal protection clause of the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution of 1970. (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2.) Defendant now appeals.

On December 17, 1988, defendant was stopped and ticketed for operating a motor vehicle with tinted front side windows in violation of section 12—503(a) of the Code. (Ill. Rev. Stat., 1988 Supp., ch. 95½, par. 12—503(a).) At trial, defendant testified that he was a self-employed gunsmith and gun dealer and that he often carried guns in his car. Defendant tinted the front side windows of his car to prevent passersby from looking inside the vehicle and seeing the gun boxes. Before he tinted the windows, defendant questioned both the District 9 State Police and the Vehicle Inspection Department of the Secretary of State about the legality of tinted film. Defendant was advised that if one could read a driver’s license through the tint, the vehicle was legal. Defendant stipulated to the facts alleged, was convicted of the offense, and fined $50.

Defendant argues that section 12—503(a) of the Code is unconstitutional because it violates the equal protection clauses of the United States and Illinois Constitutions. The statute, as amended in Public Act 82—122, effective January 1, 1982 (1981 Ill. Laws 858, 859), stated in pertinent part:

“Windshields must be unobstructed and equipped with wipers. (a) No person shall drive a motor vehicle with any sign, poster, window application, reflective material or nonreflective material upon the front windshield, sidewings or side windows immediately adjacent to each side of the driver which materially obstructs, obscures or impairs the view from both within or without the vehicle. A tinted film may be used along the upper portion of the windshield if such material does not extend more than 6 inches down from the top.” (Ill. Rev. Stat. 1983, ch. 95½, par. 12—503(a).)

Public Act 82—122 replaced the words “other nontransparent” (material) in section 12—503(a) (compare Ill. Rev. Stat. 1979, ch. 95½, par. 12—503(a)) with “window application, reflective material or nonreflective” (material). Also added to the act in 1982 was subsection (f) of section 12—503, which read in pertinent part:

“Paragraphs (a) and (b) of this Section shall not apply to:
(1) Motor vehicles manufactured prior to January 1, 1982; ***.” (Ill. Rev. Stat. 1983, ch. 95½, par. 12—503(f).)

The statute as amended in Public Act 85—1144, effective July 29, 1988 (1988 Ill. Legis. Service 1023, 1025 (West); 1988 Ill. Laws 1106, 1109), states in pertinent part:

“Windshields must be unobstructed and equipped with wipers. (a) No person shall drive a motor vehicle with any sign, poster, window application, reflective material, nonreflective material or tinted film upon the front windshield, sidewings or side windows immediately adjacent to each side of the driver. A nonreflective tinted film may be used along the uppermost portion of the windshield if such material does not extend more than 6 inches down from the top of the windshield.” (Emphasis added.) (Ill. Rev. Stat., 1988 Supp., ch. 95½, par. 12—503(a).)

Public Act 85—1144 replaced the words “which materially obstructs, obscures or impairs the view from both within or without the vehicle” with “or tinted film.” Section 12—503, as rewritten in Public Act 82—122, also includes subsection (f), which relates the amendment back to cars manufactured on or after January 1, 1982.

The purpose of the prohibition against tinted windows is to protect the safety of law enforcement personnel who stop and approach a vehicle. Tinted windows prevent law officers from perceiving any dangers or problems inside the vehicle. Defendant accepts this as a valid State objective. However, Defendant claims that the 1988 amendment to section 12—503 cannot pass an equal protection analysis because subsection (f), limiting the statute’s application to cars manufactured on or after January 1, 1982, bears no rational relationship to the objective of protecting law officers. Defendant argues that a 1978 car with tinted windows is no less dangerous than defendant’s 1987 car with tinted windows. Thus, section 12—503 violates equal protection principles by treating similar conduct differently, depending upon the age of the car one is driving. We disagree.

Unless a classification infringes upon inherently fundamental rights, or involves suspect distinctions such as race, religion, or alienage, it will be presumed valid and need only be rationally related to a legitimate State interest. (City of New Orleans v. Dukes (1976), 427 U.S. 297, 49 L. Ed. 2d 511, 96 S. Ct 2513.) Under this rational basis test, the burden of rebutting the presumptive validity of the classification is on the one challenging the constitutionality of the legislation. If there can be any possible rational basis for the classification in the legislation, the statute must be upheld. (Illinois Housing Development Authority v. Van Meter (1980), 82 Ill. 2d 116, 122, 412 N.E.2d 151, 154.) A statute is not unconstitutional merely because it affects one class and not another as long as members of the same class are treated equally. In re Marriage of Galvin (1981), 94 Ill. App. 3d 1032, 419 N.E.2d 417.

The Illinois legislature determined that cars manufactured on or after January 1, 1982, shall not have tinted film upon the front windshield, sidewings, or side windows immediately adjacent to each side of the driver. The legislature could have proscribed tinted film on the windows on all cars, but instead rationally chose to relate the amendment back to the date of the 1982 amended statute. In doing so, the legislature could have thought that a greater number of cars manufactured after 1981 were currently in use and thus posed more of a threat than the fewer number on the road manufactured prior to 1982. The legislature might have thought that tinted film on windows became popular only during the past few years so that few cars manufactured prior to 1982 had the film installed on them and as such posed less of a threat. However, the legislature probably used the 1982 date simply because the 1988 amendment was intended to clarify the intent of the legislature when it amended the statute in 1982. The legislature amended section 12—503 in 1982 to include the prohibition against any “window application, reflective material or nonreflective material” that materially obstructs a driver’s view. The 1988 amendment simply clarified this prohibition by substituting the words “or tinted film” for “which materially obstructs, obscures or impairs the view from both within or without the vehicle.”

The United States Supreme Court has upheld the validity of “grandfather clauses” such as the one involved in the present case. In United States R.R. Retirement Board v. Fritz (1980), 449 U.S. 166, 66 L. Ed. 2d 368, 101 S. Ct. 453, the United States Supreme Court ruled constitutional a grandfather provision in the Railroad Retirement Act of 1974 (see 45 U.S.C.S. §231 et seq. (1981)) which preserved windfall benefits for some but not others. The clause had a cut-off date similar to the one involved in the present case. The Court stated that Congress need not give a reason for enacting a statute, especially when line drawing is involved. The decision as to where to draw the line is a difficult one and is best left to the wisdom of the legislature.

In the present case, the legislature decided that the year 1982 was the correct place to draw the line. When the legislature, clarified subsection (a) of the act in 1988 by inserting the words “or tinted film,” it decided this clarification should relate back to the original amendment date. In doing so, the Illinois legislature could have thought that this would reasonably reach the greatest number of cars on the road that posed a threat.

In City of New Orleans v. Dukes (1976), 427 U.S. 297, 49 L. Ed. 2d 511, 96 S. Ct. 2513, the Supreme Court upheld an ordinance which banned street vendors with less than eight years of continuous sales from working in a certain area. The Court found no violation of equal protection and stated that legislatures may implement programs a step at a time so as to only partially ameliorate a perceived evil at first and defer complete elimination until the future. Here, the Illinois legislature decided to ameliorate tinted windows a step at a time by attacking what it saw as the most immediate threat, cars manufactured after 1981. Whether this decision by the legislature is wise or the best course chosen is not a proper subject of judicial inquiry. We therefore hold that section 12—503 of the Illinois Vehicle Code is not violative of the equal protection clause of either the Constitution of the United States or the Illinois Constitution of 1970.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McCULLOUGH, PM., and KNECHT, J., concur.