author: JUSTICE HARRISON

text:
      In re MARRIAGE OF MARY E. TAYLOR, n/k/a Mary E. Valdes, Petitioner-Appellant, and PAUL E. TAYLOR, Respondent-Appellee.
    Fifth District
    No. 5—88—0662
    Opinion filed December 12, 1989.

      Jack A. Strellis, of Strellis, Faulbaum & Field, of Waterloo, for appellant.
    Kris F. Reitz, of Traughber & Reitz, Ltd., of Columbia, for appellee.
   JUSTICE HARRISON

delivered the opinion of the court:

On September 9, 1987, the respondent, Paul Taylor, filed a petition seeking to modify a judgment of dissolution of marriage entered by the circuit court of Monroe County on May 23, 1979. On March 28, 1988, the circuit court granted the respondent’s prayer for relief. The petitioner, Mary Taylor, subsequently filed this appeal. We affirm.

The May 1979 judgment of dissolution awarded respondent, inter alia, one-half of the equity in the marital residence, and awarded petitioner, inter alia, maintenance of $500 per month and 40% of respondent’s retirement benefits. On January 22, 1981, petitioner and respondent entered into an oral agreement. The alleged terms of this agreement were that the respondent transferred his interest in the marital residence to petitioner in consideration for petitioner’s releasing him from future payments.

On April 4, 1987, respondent retired from his employment with the Federal civil service, and he began receiving his pension benefits from his former employer later that summer. Upon his discovery that his former wife was receiving a significant portion of his pension benefits, and based upon his belief that he was entitled to all of those benefits, respondent filed this action on September 9, 1987, seeking modification of the judgment of dissolution to release him from the judgment’s provision requiring him to provide 40% of his pension benefits to petitioner.

In its order of March 28, 1988, the circuit court, based on the testimony of the parties given at a hearing on March 7, 1988, determined that both petitioner and respondent intended for the oral agreement entered into between the parties in January of 1981 to release respondent from his obligation to provide any and all future payments to petitioner, including the payment of pension benefits. The court then modified the judgment of dissolution to conform to the oral agreement, relieved the respondent of his obligation — effective retroactively to January 22, 1981 — to provide a portion of his pension benefits to petitioner, and ordered the petitioner to notify the Federal government that she was no longer entitled to share in those benefits.

The petitioner contends on this appeal that: (1) the trial court erred in finding that it could modify, through an order entered eight years after the judgment of dissolution, property rights awarded in that judgment absent fraud or duress; and (2) the trial court’s determination that the parties had entered into an oral agreement which divested the petitioner of pension benefits was against the manifest weight of the evidence.

The petitioner initially contends that the trial court erred in finding that it could modify, through an order entered eight years after the judgment of dissolution, property rights awarded in that judgment absent fraud or duress. The lower court modified the judgment to conform to an oral agreement entered into between the parties in January of 1981. We disagree with petitioner’s contention that the trial court lacked the authority to modify the judgment, and we hold that the circuit court’s determination to modify the judgment was not erroneous.

Both of the issues in this cause center around the oral agreement reached between the parties in January of 1981. Both parties are in accord that they entered into an agreement, although the parties differ in their interpretations of the terms of the agreement. Although the agreement was not reduced to writing, the intended effect of the agreement — to finalize the severance of the relationship between the parties — was sworn to by both petitioner and respondent at the hearing on March 7, 1988. At that hearing, respondent testified that “I gave this property for all future indebtedness. I asked her three times. I believed her to be a very honest person, and we shook hands on it, and she agreed that freed me from all future debts whatsoever.” Petitioner testified, “I thought it would be good if we severed all ties, and this house was all we had left.”

As the appellate court noted in Ewert v. Ewert (1963), 41 Ill. App. 2d 161, 166, 190 N.E.2d 147, 149, “[w]here the parties, subsequent to the entry of a decree, attempt to compromise their differences, the court may adopt the agreement of the parties and modify its decree to conform thereto, as it thinks fit.” We hold that the parties’ valid agreement to modify vests the trial court with the authority to modify the dissolution decree to conform to the agreement reached between the parties. By giving effect to the agreement between the parties, we also give effect to the law’s interest in encouraging settlements as a means of promoting judicial economy. (See McCracken Contracting Co. v. R.L. DePrizio & Associates, Inc. (1984), 122 Ill. App. 3d 680, 683, 462 N.E.2d 682, 685 (“[a]s an effective means of promoting judicial economy, settlements are generally encouraged and favored by the courts”).) Were we to hold otherwise, litigants to dissolutions would be discouraged from entering into settlements since the sense of finality that a settlement provides would be lost.

Finally, we cannot ignore the fact that, although the parties’ formal method of agreement admittedly lacked the drafting skills that a competent attorney could have provided, both petitioner and respondent freely entered into this agreement and each relied upon it for over six years. Subsequent to the agreement, respondent discontinued paying his monthly maintenance to petitioner, and petitioner sold the marital residence for $65,000, retaining $48,000 from the sale after payment of the mortgage. In our opinion, it would have been grossly inequitable if the trial court had not modified the dissolution decree to conform to the agreement reached between the parties.

Since we have determined that the trial court did not err when it modified the judgment of dissolution, we next examine petitioner’s second contention on this appeal: that the trial court’s finding that the parties’ oral agreement divested petitioner of pension benefits was against the manifest weight of the evidence. The modification of a divorce decree rests within the sound discretion of the trial court, and courts of review will not disturb the lower court’s findings unless the evidence clearly so requires. (Nordstrom v. Nordstrom (1976), 36 Ill. App. 3d 181, 184, 343 N.E.2d 640, 643.) In Daggett v. Doggett (1977), 51 Ill. App. 3d 868, 871, 366 N.E.2d 985, 987-88, we restated the axiom that

“the findings of a trial judge will not be disturbed and his opinion substituted by that of a court of review unless the holding of the trial judge is manifestly against the weight of the evidence. [Citations.] Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to assess their credibility, and to weigh the evidence and determine the preponderance thereof.”

Since both parties stipulated at trial to the existence of an oral agreement between petitioner and respondent, the real issue here is whether sufficient evidence existed for the circuit court to determine that the parties’ agreement—which unquestionably precluded future payments of maintenance from respondent to petitioner—also precluded the payment of pension benefits to petitioner. Since the respondent testified that this indeed was the intention of the parties, and since, after hearing the testimony and evaluating the demeanor and credibility of the witnesses, the circuit court determined that the preponderance thereof favored respondent’s account of this term of the agreement, we are unable to say that the circuit court’s determination is against the manifest weight of the evidence, and we therefore affirm the circuit court’s judgment on this issue.

For the foregoing reasons, we affirm the judgment of the circuit court of Monroe County.

Affirmed.

GOLDENHERSH and HOWERTON, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GOLDENHERSH

license: Public Domain

text:
      In re MARRIAGE OF LINDA S. DALL, Petitioner-Appellee, and GERALD H. DALL, Respondent-Appellant.
    Fifth District
    No. 5—89—0042
    Opinion filed December 14, 1989.

      Richard W. Sterling, of Belleville, and Michael J. Costello, of Springfield, for appellant.
    Eric M. Rhein, of Kuehn, Rhein & Trentman, of Belleville, for appellee.
   JUSTICE GOLDENHERSH

delivered the opinion of the court:

The marriage of petitioner, Linda S. Dali, and respondent, Gerald H. Dali, was dissolved by a judgment of the circuit court of Clinton County. Respondent appeals, contending the trial court erred (1) in awarding custody of the couple’s only child, Edward Jerome (E.J.), to petitioner, and (2) in making certain distributions of marital property. We affirm.

Petitioner and respondent were married on August 17, 1979. Their only child, E.J., was born on July 15, 1981. Respondent has three children from a previous marriage. Petitioner has a set of twins, Darren and Damon Cooper, from a previous marriage. Respondent’s children from the previous marriage never lived with the parties. The twins did live with the parties until Damon was 15 and Darren was 16.

Respondent was sheriff of Clinton County throughout the parties’ marriage. Petitioner was employed in a variety of State jobs throughout the parties’ marriage. Petitioner first left the marital home in mid-August 1985, living in Springfield, Illinois, until August 1, 1986, when the parties reconciled. During this period of time, E.J. stayed in Carlyle with his father. On March 24, 1987, petitioner filed a petition for dissolution seeking the permanent custody of E.J. On April 14, 1987, respondent filed a pleading seeking custody. Respondent filed a counterpetition for dissolution.

On November 2, 1987, the case was tried on the custody issue only by agreement of the parties. Both parties took the position that the other parent was a proper and fit custodian, but that it was in E.J.’s best interest that his custody should be awarded to each of them respectively. The original trial judge, Judge Dennis L. Berkbigler, entered an order awarding permanent custody of E.J. to petitioner. On November 20, 1987, respondent filed a post-trial motion seeking a reversal of the custody award alleging error at the November 2, 1987, hearing and “newly discovered” physical abuse evidence of E.J. by his maternal half-brothers, Darren and Damon Cooper. Respondent then refused to physically turn over custody of E.J. to petitioner. On December 1, 1987, petitioner filed a petition for physical custody, child support, and contempt. On December 2, 1987, respondent filed a motion for appointment of a guardian ad litem (guardian) alleging sexual abuse of the minor son by his maternal half-brothers. A guardian was appointed. Respondent also filed a motion to reconcile on December 2,1987.

On December 31, 1987, respondent filed a motion seeking psychiatric examination of petitioner. On April 21, 1988, the guardian requested the mental examination of both petitioner and respondent and also of E.J. That same day, the guardian recommended that physical custody of E.J. be removed from respondent and placed with the Segers, E.J.’s baby sitters since he was six weeks old. Limited visitation was set for both parents, and Dr. Tomkins, a psychologist, was appointed to perform psychological examinations on respondent, petitioner, and E.J.

On May 11, 1988, respondent sought and received a change of venue from Judge Berkbigler. Thereafter, Judge Edward C. Eberspacher was assigned to the instant case.

On July 22, 1988, respondent filed a petition to modify the custody award pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 610) again alleging sexual abuse of E.J. by his maternal half-brothers. On August 22, 1988, the case was called on all issues, excluding custody. Respondent attempted to relitigate the custody issue which the trial court refused to allow. Respondent then sought a hearing on a motion for supervised visitation, alleging “newly discovered” abuse of E.J. by petitioner. This motion was unverified, unsupported by affidavit, and unspecific as to the nature of the alleged abuse. The trial court refused to hear the motion for supervised visitation under the circumstances and proceeded on the remaining issues.

On August 25, 1988, a judgment of dissolution was entered fully and finally adjudicating all issues between the parties, but staying the custody award to petitioner to allow respondent the opportunity to seek further stay of the custody award supported by this newly discovered evidence. On August 26, 1988, respondent filed a motion to modify custody pursuant to section 610 of the Act (Ill. Rev. Stat., 1987, ch. 40, par. 610) alleging sexual abuse of E.J., not only by his maternal half-brothers, but also by petitioner.

On September 1, 1988, a hearing was conducted on respondent’s motion for supervised visitation. The father’s expert psychologist, Dr. A.R. James, testified as to E.J.’s discussions with him that petitioner had sexually abused him by performing acts of fellatio and intercourse upon the child. The expert was unable to render an opinion within a reasonable degree of medical certainty whether petitioner had performed these acts or whether respondent had suborned E.J. to falsely accuse petitioner. Nonetheless, it was the expert’s opinion that some type of sexual abuse had occurred, but the expert was unsure who the perpetrator was. Dr. James testified that the child's mental state was suffering because of the custody battle. The trial court then granted a stay of custody and placed the child with the Department of Children and Family Services (the Department) in Joliet for a period of 90 days. The trial court also appointed a board-certified child psychologist, Dr. Karen Brody, to examine E.J. and entered a no contact order against both the parties. This order prohibited the parties from visiting E.J., making telephone calls to E.J., or sending letters to E.J.

Dr. Brody filed her report on October 20, 1988, in which she concluded that she was unable to reach an opinion within a reasonable degree of medical certainty whether E.J. had been the subject of sexual abuse and, if so, by whom. On October 7, 1988, and again on October 27, 1988, petitioner filed pleadings seeking a modification of the August 25, 1988, order which stayed custody of E.J. On December 2, 1988, the case was called for trial on all parties’ pleadings seeking a modification of the trial court’s August 25, 1988, order relating to custody. Ultimately, the trial court denied both parties’ petitions to modify. Guardianship of E.J. by the Department was terminated, and the Department was ordered to deliver the physical custody of E.J. to petitioner within five days.

Respondent’s first issue on appeal is whether the trial court erred in awarding custody of E.J. to petitioner. First, respondent contends that the trial court did not consider what was in the best interest of E.J. and did not consider E.J.’s desire to live with respondent. Specifically, respondent criticizes the trial court for refusing to interview E.J. in camera. Finally, respondent argues that the award of custody to petitioner was against the manifest weight of the evidence.

In determining custody, the primary consideration is the best interest and welfare of the child. (Cooper v. Cooper (1986), 146 Ill. App. 3d 943, 945, 497 N.E.2d 805, 806; In re Marriage of Stuart (1986), 141 Ill. App. 3d 314, 317-18, 490 N.E.2d 243, 246.) Section 602(a) of the Act requires the trial court to require the following in determining custody in accordance with the best interest of the child:

“(a) The court shall determine custody in accordance with the best interest of the child. The court shall determine all relevant factors including:
(1) the wishes of the child’s parent or parents as to his custody;
(2) the wishes of the child as to his custodian;
(3) the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest;
(4) the child’s adjustment to his home, school and community;
(5) the mental and physical health of all individuals involved; and
(6) the physical violence or threat of physical violence by the child’s potential custodian, whether directed against the child or directed against another person but witnessed by the child.” (Ill. Rev. Stat. 1987, ch. 40, par. 602(a).)

We will not disturb the trial court’s determination of custody unless it is against the manifest weight of the evidence or is manifestly unjust. Cooper, 146 Ill. App. 3d at 945, 497 N.E.2d at 806; Stuart, 141 Ill. App. 3d at 318, 490 N.E.2d at 246.

In attempting to show that custody should not have been awarded to petitioner, respondent points to the trial court’s refusal to interview E.J. in camera. Respondent contends that the only evidence by which the child’s desires as to whom his custodian would be was that given by the Segers, the temporary guardians of E.J. Respondent contends that it was wrong for the trial court not to take into consideration E.J.’s desire to stay in Carlyle with his father.

A review of the transcript indicates that respondent’s own paid expert, Dr. James, E.J.’s psychologist, concluded that an vh camera interview would be harmful to E.J. The transcript also reflects that E.J. did, in fact, desire to live with his father in Carlyle. This is not unusual, as most seven-year-olds would rather remain in their own home or at least in the city where they have grown up, rather than be forced to move to a different location. Petitioner was clear that if she was granted custody, E.J. would move to Springfield with her. However, even if E.J. had unequivocally indicated a preference for living with his father during an in camera interview, this preference, while entitled to consideration, would not be binding on the court. Cooper, 146 Ill. App. 3d at 951, 497 N.E.2d at 809; see also In re Marriage of Kush (1982), 106 Ill. App. 3d 233, 236, 435 N.E.2d 921, 923.

Respondent also contends that the trial court failed to consider the relationship between E.J. and his maternal half-brothers compared to the relationship between E.J. and his paternal siblings. (See section 602(a)(3) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 602(a)(3)).) We agree with respondent that the testimony reflected that E.J. enjoyed a better relationship with his paternal half-siblings rather than his maternal half-siblings. Much of the testimony in the instant case centered around sexual abuse charged by E.J.’s maternal half-brothers. The Department conducted an investigation which “indicated” both of petitioner's twin teenage sons in sexually abusing E.J. However, no charges were filed against the twins. Expert child psychologists were unable to determine whether E.J. had, in fact, been abused. Respondent’s own psychologist, Dr. James, believed that E.J. had been sexually abused, but was unable to determine who had been the perpetrator. It must also be noted that neither respondent’s children nor petitioner’s children were living with their respective parents at the time of this custody battle, and that section 602(a)(3) is but one criterion to consider in determining custody.

We next address respondent’s contention that the trial court erred in ordering a complete prohibition of any contact between E.J. and either parent. On August 25, 1988, the trial court entered a judgment of dissolution of marriage adjudicating all rights of the parties and dissolving the marriage. In addition, because of general allegations of abuse raised by respondent, the trial court stayed the custody order awarding petitioner custody. E.J. was then left in the temporary custody of the Segers. On September 1, 1988, the trial court conducted a hearing to give respondent the opportunity to support allegations of abuse. At this time, the trial court was aware of the guardian’s report which recommended joint custody. In the alternative, if joint custody was impossible, the guardian recommended that petitioner be awarded custody, “subject to the liberalest possible visitation” with respondent. The guardian also included in his report his findings that a series of “bizarre incidents” had occurred between the parties including “threats to life and limb, acts of vandalism, and fires at the residences occurring under suspicious circumstances.” The guardian believed that either one or the other party “was responsible for most, if not all, of such occurrences.” However, the guardian was not in possession of any unimpeachable evidence which could identify the responsible party. The court was also aware of the report of the trial court’s first appointed psychologist, Dr. Rachel Tomkins, which recommended that petitioner be given custody with equal visitation time for respondent. This recommendation was based in large part on Dr. Tomkins’ opinion that petitioner is the more cooperative party. Dr. Tomkins also found petitioner to be “the better parent, in that she is more able to keep her needs separate from those of her son and doesn’t involve E.J. in her struggle with her husband.” Dr. Tomkins could not determine whether E.J. had been sexually abused, but recommended that Darren and Damon Cooper be kept away from E.J. unless such visits were supervised. In addition to these reports, the trial court heard testimony from respondent’s expert, Dr. James, who determined that E.J. had, in fact, been sexually abused, but could not determine who the perpetrator was. Dr. James did believe that E.J. had been coached to make statements concerning alleged abuse by the twins.

The Department’s case worker, Greg Hazen, testified that Darren and Damon Cooper had been indicated as sexual abusers of E.J. The allegations against petitioner had not been fully investigated at this point. The allegations were made on August 3, 1988, through the Department hot line. As of September 1, 1988, petitioner had not been interviewed by the Department concerning these allegations. The trial judge was also in receipt of several letters by the Segers that expressed their concern over E.J.’s emotional well-being because of the custody dispute. The Segers advised the trial judge of E.J.’s desire to remain in Carlyle with his father. At the close of the September 1, 1988, hearing on the motion to stay custody, the trial court ordered that the Department be made guardian of E.J. for 90 days. In explaining his order, the trial judge stated:

“The testimony of Dr. James, however, convinces me that either the mother is practicing perverted sexual practices on her child, which is an idea abhorrent to me as the Court, or that the father is suborning the perjury of the child and corrupting the emotional and mental health of the child, which is an equally abhorrent concept to me. Coupled with that is my conclusion that the current custodians, temporary custodians, through the various documents that they have filed and have been admitted, have unrealistically, wholly unrealistically adopted the father’s position that a reconciliation is possible in this case. And the evidence establishes to my satisfaction that they’re permitting visitation outside the scope of the visitation as has previously been ordered by the Court to the father. And I believe that it is in the best interest of the child that he be wholly removed from the Segers, he be wholly removed from the mother, he be wholly removed from the father, that he be placed in the custody of the Department of Children and Family Services and placed in foster care in a county outside of Sangamon County and Clinton County for a period of 90 days.
The Court appoints as its own expert a child psychiatrist with forensic experience, Dr. Karen Brody, Peoria. And I will state for the record at this time that I conversed with Dr. Brody this morning during these proceedings when I excused myself and advised counsel that I had a telephone call that related to this proceeding that I had to take, that Dr. Brody has agreed to act as the Court’s expert in this matter. I will direct that she examine the record, common law record in this case, including the various admitted exhibits which I will provide her personally, with a cover letter, and I will of course provide a copy to both counsel so counsel will know what documents it is that I’m providing to Dr. Brody.
I order preparation of the report of proceedings of this hearing, the evidentiary portions only, for her review. I order the parties to make themselves available at her offices at 120 Northeast Glen Oak, Suite 300, Peoria, Illinois, 61603 at such times and dates as I shall advise your counsel. And if Dr. Brody feels it necessary to examine anyone else, I will tell counsel frankly that it is my intention to issue subpoenas for them if necessary and make those other persons available.
I’m going to order the Department of Children and Family Services not to disclose the whereabouts of the child to the parties, and there is to be no contact between the parties and the child until further order of the court; direct, indirect, personal, telephone or in any other fashion.
I do not do this lightly. I am a father; I have three children under the age of 12. There is only one thing I can imagine that is worse than the order that I have just entered, and that is that I should allow one of you to continue to either sexually abuse the child or mentally abuse the child. I don’t know which one of you is lying, but one of you is lying. And I will have my own expert to assist me in finding the truth before I enter an order in a matter as serious to the future and well-being of a child of this society as this.”

An unedited review of the trial court’s oral order at the close of the hearing indicates that the trial judge was aware that his directive to place E.J. in the custody of the Department incommunicado was harsh. It also indicates that it was done with much thought as to what was in the best interest of E.J. Just as there is a strong and compelling presumption in favor of the trial court’s determination of custody (In re Marriage of Stuart (1982), 141 Ill. App. 3d 314, 490 N.E.2d 243), so, too, we find a strong and compelling presumption in favor of the trial court’s determination to place E.J. with the Department incommunicado. This presumption exists because the trial court is in a better position to evaluate the credibility, temperaments, personalities, and capabilities of both parties through the months of proceedings. See Cooper, 146 Ill. App. 3d at 951, 497 N.E.2d at 810; In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 715, 463 N.E.2d 773, 778.

In the instant case, even the experts could not agree whether E.J. had, in fact, been sexually abused or whether respondent had suborned E.J. to commit perjury. The trial court was attempting to make this determination by investigating further and by keeping E.J. away from both parties, as well as E.J.’s temporary custodians, who had long ago taken sides with respondent. Under all these circumstances, we cannot say that the trial court abused its discretion in ordering that E.J. be placed in the custody of the Department. Instead, we applaud the trial judge for putting the interest of E.J. at the forefront of this litigation, something the parties were unable to do.

Finally, we address respondent’s contention that the trial court’s award of custody to petitioner was against the manifest weight of the evidence. We have already addressed respondent’s main contention that the trial court failed to consider E.J.’s preference regarding custody as is required under section 602(a)(2) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 602(a)(2)). After custody had been granted to petitioner on November 19, 1987, respondent immediately began alleging incidents of sexual abuse. The first allegations focused on E.J.’s maternal half-brothers as the perpetrators. The second series of allegations centered on petitioner as the perpetrator. In order to change the initial custody award, clear and convincing evidence that a change in circumstances has occurred since the initial determination is required. (Ill. Rev. Stat. 1987, ch. 40, par. 610(b).) Clear and convincing evidence does not require the degree of proof necessary to convict a person of a criminal offense, but it requires more than a preponderance of the evidence. In re Marriage of Wechselberger (1983), 115 Ill. App. 3d 779, 786, 450 N.E.2d 1385, 1389.

In the instant case, in addition to the guardian’s report and Dr. Tomkins’ report that respondent had suborned E.J. to make false allegations of sexual abuse by his maternal half-brothers, respondent’s own expert could not conclude who, in fact, was the perpetrator. The board-certified child psychologist could not discern the perpetrator. We find, as did the trial court, that the new evidence produced by respondent to support allegations of sexual abuse did not meet the requisite clear and convincing standard. We now need only decide whether the initial determination by the trial court to award petitioner custody is supported by the evidence.

From the record, we cannot say granting custody of E.J. to petitioner is against the manifest weight of the evidence. Originally, both parties agreed that the other was the fit parent, but each thought he or she would be a better custodial parent. Each party directs our attention to instances he or she feels is improper conduct on the part of the other spouse. For example, petitioner points out that respondent has exposed E.J. to firearms from a very young age and that respondent has taken E.J. on sheriff-related work, including viewing a drowning victim. Petitioner contends this puts E.J. at risk both physically and emotionally. On the other hand, respondent contends that petitioner has done a bad job with the twins by her first marriage and that these children are undisciplined and have had numerous traffic arrests. Respondent wants better discipline for E.J. There are allegations of alcohol abuse by each party against the other throughout the transcript. Suffice it to say, neither parent is perfect. The evidence suggests that both parents have different parenting skills with each having his or her own strengths and weaknesses. The guardian and the court-appointed psychologist both found that petitioner should be the custodial parent. Furthermore, there was evidence that petitioner was the primary care-giver during most of E.J.’s short life. As a sheriff, respondent is involved in a job which requires irregular hours and the possibility of being called away any time day or night. Under all these circumstances, we cannot say that the award of custody to petitioner was against the manifest weight of the evidence.

The final issue we are asked to consider is whether the trial court made just distributions of certain items of marital property. Specifically, respondent contends that the jointly held savings account was not divided proportionately, that a lump sum award of $6,000 to petitioner was unnecessary, that ordering respondent to sell his pickup truck was an abuse of discretion, and, finally, that the award of part of respondent’s pension benefits to petitioner was an abuse of discretion. We disagree.

The trial court is required to distribute marital property in an equitable manner taking into account all relevant factors. (In re Marriage of Kopec (1982), 106 Ill. App. 3d 1060, 1063, 436 N.E.2d 684, 687.) The distribution of marital property rests with the sound discretion of the trial court, and its decision will not be reversed absent an abuse of discretion. In re Marriage of Fleming (1980), 80 Ill. App. 3d 1006, 1008, 400 N.E.2d 625, 627.

Respondent cited no case law for any of his propositions that the trial court erred when distributing marital property. Respondent’s apparent argument is that the distribution is manifestly unfair. We note that this was both party’s second marriage. They obviously both came into the marriage with acquisitions of personalty and pensions. We agree with respondent that there are some gaps in the record as to why the trial court ruled as it did. However, we find that in looking at the record as a whole, we cannot say the trial court erred. No award of alimony was made nor was respondent ordered to pay petitioner’s attorney fees. Of great consequence was the evidence that petitioner had contributed 33,000 premarital dollars to the parties’ marital home. This fact can explain the $6,000 cash award to petitioner, the pension award, as well as the savings account distribution. Likewise, we find no error in the trial court’s order to force respondent to sell his pickup truck, in light of the fact that respondent was supplied with a county car which could also be used for personal business. We hold, therefore, that the settlement was fair and that the trial court did not abuse its discretion in this case.

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

Affirmed.

HARRISON and HOWERTON, JJ., concur.


author: JUSTICE CHAPMAN

text:
    SHERYL ROSE AUGENSTEIN, a Minor, by Rebecca Augenstein, her Mother and Next Friend, Plaintiff-Appellee, v. JAMES PULLEY, Defendant (Floyd Steinmetz, Defendant-Appellant).—PAT SAMPLES, Special Adm’r of the Estate of Gilbert Lee Allen, Deceased, Plaintiff-Appellee, v. JAMES PULLEY, Defendant (Floyd Steinmetz, Defendant-Appellant).—FLOYD EDWARD STEINMETZ, Plaintiff and Counterdefendant-Appellant, v. JAMES STEVEN PULLEY et al., Defendants and Counterplaintiffs-Appellees (Floyd Edward Steinmetz, as Father and Next Friend of Matthew Steinmetz, et al., Plaintiffs).
    Fifth District
    No. 5—88—0255
    Opinion filed December 14, 1989.

      Charles E. Schmidt, of Mitchell, Brandon & Schmidt, of Carbondale, for appellant.
    Donald V. Ferrell, of Jelliffe, Ferrell & Morris, of Harrisburg, for appellee James Pulley.
    Paul Thomas Austin, of Paul Thomas Austin & Associates, of Marion, for appellee Pat Samples.
   JUSTICE CHAPMAN

delivered the opinion of the court:

This case is a consolidation of three separate cases arising from an auto accident involving two vehicles that occurred August 30, 1985. On that date Floyd Steinmetz drove his white Ford LTD sedan to Marion, Illinois, with his two sons to pick up a pizza. Steinmetz picked up the pizza and was traveling back home south on Route 37 when the collision occurred.

The driver of the other vehicle, 16-year-old James Pulley, had received his driver’s license just two weeks earlier. James Pulley borrowed his parents' red Ford Escort, and he and Gilbert Lee Allen were picking up their dates for the evening. They drove first to Sheryl Augenstein’s home, south of Marion off Route 37. Sheryl joined James and Gilbert, and then the three of them traveled north on Route 37, intending to pick up another young lady. The collision occurred while they were on their way to Marion, Illinois.

Route 37 is a two-lane paved road. As one approaches the scene of the accident traveling southbound, the direction Steinmetz was traveling, the road curves gently to the left. Just north of the curve there is a slight crest of a hill. At the curve the road dips slightly. The posted speed limit is 55 miles per hour. It is undisputed that both vehicles were traveling at lawful speeds and that the impact occurred about four-tenths of a mile north of the curve. The testimony, however, was in conflict as to just how the accident happened.

As a result of the head-on collision between the two vehicles Gilbert Lee Allen was killed. Sheryl Augenstein and James Pulley sustained personal injuries. The cars sustained property damage. Floyd Steinmetz and his two sons, Matthew and Joey, suffered personal injuries. Each of the parties filed separate claims against the respective drivers in three separate lawsuits, which were consolidated for trial. The jury returned a verdict for all plaintiffs and found both defendants negligent. The jury next considered the issues of contributory negligence and contribution, and found that both drivers were each 50% at fault. Floyd Steinmetz filed this appeal.

The main issue at trial concerned which of the vehicles was in the proper lane of traffic just prior to the accident. Because of this dispute testimony regarding the location of the pizza box in the Steinmetz vehicle at the time of the accident was significant. Counsel for James Pulley presented evidence that the pizza was in the front of the car, implying that it fell and that when Floyd Steinmetz attempted to retrieve it his vehicle veered into the oncoming lane of traffic.

Errors on appeal are urged with regard to the reconstruction evidence presented at trial and the disallowance of certain testimony directly impacting upon the credibility of a witness who testified as to the location of the pizza. The errors urged can be divided into four groups: (1) the court’s barring Steinmetz’ counsel from describing evidence in opening statement and during closing argument regarding the credibility of William Campbell; (2) the court’s ruling on an alleged judicial admission by Pat Samples’ counsel; (3) the court’s allowing Dr. Orthwein to testify as to the point of impact of the vehicles and the court’s considering Dr. Orthwein’s testimony in ruling on the motions for directed verdict; and (4) the court’s instructing the jury that they had to find Floyd Steinmetz at least 1% at fault during the contribution phase of its deliberations. Floyd Steinmetz contends that the cumulative effect of these errors requires reversal of the judgment of the trial court. In the alternative, Floyd Steinmetz argues that the trial errors denied him a fair trial, and he asks that the cause be reversed for a new trial.

On the day of the accident Floyd Steinmetz was traveling with his sons Matthew, age 12, and Joey, an infant. All three were riding in the front seat of the car. Matthew testified at trial that his father put the pizza in the back seat of the car before driving home. Matthew stated that he saw the other car prior to the accident and that it was in his father’s lane.

Floyd Steinmetz testified that after picking up the pizza in Marion, Illinois, he placed it on the back floorboard behind the driver’s seat. On cross-examination, a portion of the Steinmetz deposition was read and Floyd Steinmetz acknowledged that the testimony therein was true. A question posed at the deposition was whether it was possible that one of Floyd Steinmetz’ boys was holding the pizza while they drove. Mr. Steinmetz replied, “could be. My boy Matthew might have been holding it, but usually we put it in back.”

Floyd Steinmetz testified that it started misting rain as he and his boys headed home after getting the pizza. He testified that he had his windshield wipers and his headlights on. He stated that as he reached the peak in the road on Route 37, just north of where the collision occurred, car lights appeared from nowhere. When he noticed the lights, the other car was in his lane. He tried to turn the steering wheel, but the cars hit and the wheel was jerked out of his hand.

James Pulley testified that he recalled turning on his windshield wipers as he turned onto Route 37. He testified that that was the last thing he remembers prior to the accident. State troopers Roger Walker and Dennis Tregoning testified that they spoke with James Pulley about one hour after the accident. Officer Walker declared that James did not say that he had veered into the oncoming lane of traffic prior to the accident, but that he did tell him that he was reaching to turn on the wipers and at some point the accident occurred. Officer Walker also spoke with Floyd Steinmetz after the accident. Mr. Steinmetz told Officer Walker that as he looked up, he saw a car coming over into his lane of traffic, and that he simultaneously attempted to pull to the right to get out of the way.

Floyd Steinmetz’ statement of what happened just prior to the collision was supported by post-occurrence witnesses. Franklin Lokerse testified that his house is located east of Route 37 adjacent to where the accident occurred. He was in his driveway some 150 feet away when he heard the vehicles collide. He immediately rushed to the scene, and upon approaching Steinmetz’ car, Lokerse testified that Mr. Steinmetz made the statement: “I couldn’t get away from him.”

Imogene Benton, another post-occurrence witness who came upon the accident scene, testified that she approached the Steinmetz car and that its driver kept saying: “I tried to get out of his way, moved over, tried to get out of his way, and he just kept coming.”

In support of Floyd Steinmetz’ theory that the pizza was not in the front seat, and was not a link in the causal chain, his sister took the witness stand. She testified that she viewed the two automobiles the day after the accident and observed the pizza box on the floorboard behind the driver’s seat. Contrary to her observation, William Campbell testified that he observed the pizza box on the front floorboard. It is with regard to Mr. Campbell’s testimony that we are asked to address the first issue on appeal.

Campbell stated that he heard the collision, went to the scene, and arrived after Floyd Steinmetz was out of his car. Campbell testified that he asked Steinmetz what happened and that Steinmetz told him the pizza fell on the floorboard and when he reached to pick it up, “there was nothing he could do.” Campbell admitted that he never told the investigating officers of Steinmetz’ comment about the pizza. At trial he stated that the person to whom he initially mentioned the comment was his wife. This testimony was impeached by a statement in Campbell’s deposition which read: “I ain’t even told my wife.” Campbell revealed Floyd Steinmetz’ comment about a year after the accident and a year prior to trial.

Approximately one year before the trial, William Campbell was arrested due to his involvement in a fight. H.L. Pulley, James Pulley’s father, was one of the jailors on duty when Campbell was brought to the jail. While at the jail Campbell told Pulley of the comment he allegedly heard Floyd Steinmetz make. Steinmetz argues on appeal that if Campbell’s testimony were accepted, and if the jury believed that the pizza was in the front seat, then perhaps the jury believed that Steinmetz was distracted by the pizza and was partially responsible for the accident. Steinmetz’ counsel argues that in his opening statement, the court erroneously limited his ability to comment on the credibility and bias of William Campbell. The dialogue that took place at trial regarding this issue was:

“MR. SCHMIDT: The evidence will show that H.L. Pulley knows Mr. Campbell because when Mr. H.L. Pulley was a Marion Police Officer and William Paul Campbell was going up [sic], he had some little problems and — .
MR. FERRELL: Your honor, I object, and I have a motion to make.
THE COURT: Okay. I’m going to sustain the objection. Hold the motion until he finishes.
MR. FERRELL: Yes, sir.
THE COURT: Go ahead. I don’t want any discussion of any problems with the police.
MR. SCHMIDT: Okay.
THE COURT: You’re to disregard any of that. There’s no evidence of that.”

During closing arguments the court sustained James Pulley’s counsel’s objection to any reference of William Campbell being incarcerated. The discourse was as follows:

“What do we know about Paul Campbell? *** We know that he was in jail and the first time — .
MR. FERRELL: I object to that, your honor. There’s no evidence of that. I move that be stricken.
THE COURT: Sustained. Strike the reference to the jail. He wasn’t in jail.”

Floyd Steinmetz’ attorney argues he was precluded from arguing that H.L. Pulley became acquainted with Campbell due to Campbell getting into trouble with the law, and furthermore, that he was barred from telling the jury that Campbell first related his story regarding the accident while at the jail where H.L. Pulley was a jailor. Floyd Steinmetz argues on appeal that the trial court erred in restricting his opening statement and closing argument in such fashion.

Considerable latitude must be afforded counsel in opening statement or closing argument. (Northern Trust Co. v. Skokie Valley Community Hospital (1980), 81 Ill. App. 3d 1110, 1124, 401 N.E.2d 1246, 1258.) In the instant case, during opening statements, the court admonished counsel that there was to be no discussion of any problems William Campbell had with the police. The court did not prohibit counsel from arguing that William Campbell became acquainted with H.L. Pulley while at the jail where Pulley was a jailor. The court properly excluded reference to William Campbell being in jail or being in trouble with the police. Such evidence was not presented at trial, and comments referring to such evidence were properly excluded. No statement should be made in counsel’s opening remarks to the jury which counsel does not intend to prove or cannot prove. Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 197, 246 N.E.2d 269, 272.

In addition, the trial court properly sustained counsel’s objection during closing argument which barred any reference to William Campbell having been in jail. We recognize that counsel in closing statement may be vigorous and eloquent and make fair comment upon the evidence. (Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 641-42, 360 N.E.2d 1324, 1332, citing Darling v. Charleston Community Memorial Hospital (1964), 50 Ill. App. 2d 253, 336, 200 N.E.2d 149, 190, aff’d (1965), 33 Ill. 2d 326, 211 N.E.2d 253, cert, denied (1966), 383 U.S. 946, 16 L. Ed. 2d 209, 86 S. Ct. 1204.) But this does not give him the right to argue facts not in evidence. (Schwedler v. Galvan (1977), 46 Ill. App. 3d 630, 642, 360 N.E.2d 1324, 1332.) At trial, the only evidence as to William Campbell’s incarceration was his statement that he “was up there [at the jail] when he went into a fight, and I was getting ready to go up, and I’d asked him, I said, ‘how’s Jimmy doing now?’ ” Mr. Campbell was never asked if he had been arrested or if he had been incarcerated. Although in closing argument counsel may properly draw inferences from the evidence, he may not create his own evidence. (Champion v. Knasiak (1974), 25 Ill. App. 3d 192, 203, 323 N.E.2d 61, 71.) We hold, therefore, that the trial court did not err in sustaining the objection to any references of William Campbell’s incarceration.

We next address the allegation raised by Floyd Steinmetz on appeal that Pat Samples’ attorney made a judicial admission during opening statement which is binding on Samples’ case. The remark made during Samples’ attorney’s opening statement was:

“I think it’s clear, the evidence will show that the accident did, in fact, occur in the southbound lane. The red car did, in fact, stray over into the southbound lane.”

Samples’ attorney, Mr. Austin, argues on appeal that there was no clear and unequivocal testimony as to how the accident occurred. Attorney Austin maintains that the statement made by him merely reflected what he thought the evidence would show.

It is true that a clear admission of a material fact by counsel in opening statements is binding upon his client. (Standard Management Realty Co. v. Johnson (1987), 157 Ill. App. 3d 919, 924, 510 N.E.2d 986, 990.) However, what constitutes a judicial admission must be decided under the circumstances in each case, and before a statement can be held to be such an admission, it must be given a meaning consistent with the context in which it is found. Standard Management Realty Co., 157 Ill. App. 3d at 925, 510 N.E.2d at 990.

Attorney Austin’s opening statement described his theory of how the accident occurred. Mr. Austin prefaced his belief that the vehicle driven by James Pulley drifted into the oncoming lane of traffic with the phrase: “I think it’s clear, the evidence will show.” Floyd Steinmetz cites Stone v. City of Arcola (1989), 181 Ill. App. 3d 513, 536 N.E.2d 1329, as authority in arguing that the clear admission of material fact in opening statement by Samples’ attorney was binding on Samples as a judicial admission. Stone v. City of Arcola is distinguishable from the instant case in that counsel in Stone admitted in his opening remarks: “Now, the City has retained liquidated damages and actually, according to the counterclaim, we have also withheld in payments $6,338.” (Stone, 181 Ill. App. 3d at 532, 536 N.E.2d at 1341.) Counsel in that case did not preface his admission with a qualifier or otherwise acknowledge that his remarks were based on his belief of what he felt the evidence would show. Counsel’s statement in that case is clearly distinguished from the statement of counsel in the instant case that he believed the evidence would show that the red car was in the southbound lane. We find that no judicial admission was made by Samples’ attorney in his opening statement.

The next issue on appeal concerns the propriety of admitting into evidence the testimony of an accident reconstruction expert, Dr. William Orthwein. At trial, prior to Dr. Orthwein’s testimony, Floyd Steinmetz called State trooper Roger Walker as a witness. Officer Walker, an Illinois State trooper for 19 years, arrived at the scene of the accident before either vehicle was moved. Prior to examining the scene, he had worked on approximately 3,500 traffic accident cases, 200 of which he investigated as a reconstruction officer. Officer Walker testified as to his observations of the position of the vehicles and the debris in the roadway. It wasn’t until after Dr. Orthwein was recognized as a reconstruction expert and testified as to his opinion regarding the point of impact of the vehicles that Officer Walker was tendered as an accident reconstruction expert. The court also recognized the State trooper as a reconstruction expert, whereupon Officer Walker gave his opinion that the impact occurred in the southbound lane of traffic.

James Pulley called Dr. William Orthwein, a mechanical engineer, as a witness. An offer of proof was made, and objections were entertained by the court concerning whether or not to allow the doctor to testify as a reconstruction expert since there was eyewitness testimony as to point of impact. The court overruled the objections, stating that notwithstanding the eyewitness testimony as to the point of impact, Dr. Orthwein’s testimony would be admitted. The court reasoned:

“[N]ow whether the jury wants to believe him or not is up to them. They have the other version before them. *** The mass difference in these two vehicles travelling at the same speed in a curve and the principles of physics acting upon these vehicles to reconstruct the point of impact relative to the gouge marks and where they ended up, it is necessary that the jury have somebody to explain these principles to them.”

At trial Dr. Orthwein testified that he reviewed the reconstruction police report, State trooper Tregoning’s report, and photographs of the accident scene, and based upon these items he came to certain conclusions and formed certain opinions. Dr. Orthwein was asked on direct examination whether he had an opinion, based upon his expertise as an engineer, as to where with reference to the center line the two vehicles came into contact with one another. Dr. Orthwein testified that in his opinion the collision occurred in the northbound lane, which would be east of the center line, subject to an error factor of 38 inches either way.

Floyd Steinmetz contends that the opinion testimony of Dr. Orthwein should have been excluded because of the rule against reconstruction testimony being used as a substitute for eyewitness testimony and because the testimony did not involve an issue that was beyond the ken of the average juror. Plank v. Holman (1970), 46 Ill. 2d 465, 264 N.E.2d 12; McGrath v. Rohde (1972), 53 Ill. 2d 56, 289 N.E.2d 619.

We will discuss the law on the admissibility of reconstruction testimony in some detail because of our concern that a rule of exclusion is too often applied solely because of the presence of eyewitnesses and because of our further concern that the courts have created exceptions to the limited rule of admissibility for reconstruction testimony that are unnecessary if the problem is viewed in the overall context of opinion evidence.

Opinion testimony, while more frequently used in modern times, is certainly no newcomer to the law. In 1902 Learned Hand published an article (Hand, Historical & Practical Considerations Regarding Expert Testimony, 15 Harv. L. Rev. 40 (1901-02) (hereinafter Historical)) in which he traced the development of opinion evidence in general. Judge Hand pointed out:

“It is common learning today that originally and indeed for many years the jury had no witnesses present before them at all. They went about before or during the trial informing themselves as they might of the facts at issue. Not until the middle of the fifteenth century was even the practice of summoning witnesses well settled as an incident to the trial, and it was still later that any compulsory process became available.” (Historical, 15 Harv. L. Rev. at 44.)

Hand then examined the problem which confronted, and continues to confront, jurors who must decide cases involving questions of specialized knowledge. Judge Hand found that early courts utilized the practice of impaneling a special jury whose members were experts in the subject matter of the case that they were to decide. (Historical, 15 Harv. L. Rev. at 42.) This practice continued for approximately 300 years (1350-1650). (Historical, 15 Harv. L. Rev. at 43.) Judge Hand didn’t suggest this as a practical solution to modern day concerns, although the practice may be reflected in the present-day use of regulatory commissions. The next, and overlapping, historical development was the utilization by the court, for its elucidation, of witnesses skilled in a particular area. (Historical, 15 Harv. L. Rev. at 44.) This procedure was used by judges who had some question before them that required expert knowledge in various fields, e.g., grammarians skilled in Latin or merchants familiar with the practice of using promissory notes. (Historical, 15 Harv. L. Rev. at 43.) The court would apparently receive the expert’s assistance, make determinations based upon that evidence, and then deliver its finding as a fact to the jury. Historical, 15 Harv. L. Rev. at 46.

The next logical step was to allow an expert to express his opinion directly to the jury. Judge Hand found that this procedure was clearly established by the early 1800’s. Historical, 15 Harv. L. Rev. at 49.

Dean Wigmore has also traced the development of opinion evidence in general, and has been critical of rules of exclusion:

“The opinion rule day by day exhibits its unpractical subtlety and its useless refinement of logic. Under this rule we accomplish little by enforcing it, and we should do no harm if we dispensed with it. We accomplish little, because, from the side on which the witness appears and from the form of the question, his answer, i.e., his opinion, may often be inferred. We should do no harm, because, even when the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if desirable, on cross-examination. Add to this the possibility that under illiberal application of the rule and illiberal practice as to new trials, a single erroneous ruling upon the single trifling answer of one witness out of a dozen or more in trial occupying a day might overturn the whole result and cause the absurdly unjust effect of double expense of time, money, and effort. Add, finally, the utter impossibility of a consistent application of the rule, and the consequent uncertainty of the law, and we understand how much more it makes for injustice rather than justice. It has done more than any one rule of procedure to reduce our litigation towards a state of legalized gambling.” 7 Wigmore, Evidence §1929, at 39 (Chadbourn rev. 1978).

While Wigmore’s recommendation of abolishing the rule has been referred to (see State Farm Mutual Automobile Insurance Co. v. Short (1970), 125 Ill. App. 2d 97, 105-06, 260 N.E.2d 415, 419), it has obviously not been adopted. In fact, and particularly with regard to reconstruction testimony, it has been studiously ignored.

The courts’ reluctance to allow reconstruction testimony has not been without critical comment.

“In any given trial, what is fact and what is opinion depends upon which statement is specific enough to allow the jury to draw their own inferences from facts. The statement: ‘He was driving carelessly’, may be held to be opinion when compared with the statement: ‘He was driving on the wrong side of the road;’ and that statement may seem like opinion when compared with ‘He was driving on the left side of the road on a two-lane highway going north.’ Speaking of ‘compared to what,’ query: Which would be more reliable in a contest over a disputed accident — (1) an expert opinion based on skid marks, extent of vehicle damage, final position of vehicles on highway, and, in a proper case, an expert’s speed estimate of 35 m.p.h., or (2) lay eyewitness testimony that the vehicle was going ‘fast’? Still, there ought to be limits to trial by expert.
Nonessential reconstruction testimony may waste time and presents a specter that the very presence of the expert will unduly impress the jury far beyond the value of his testimony without corresponding benefit of adding anything worthwhile or helpful.” Burns, Evidence: The Role of Reconstruction Experts in Witnessed Accident Litigation, 22 De Paul L. Rev. 7, 14 (1972).

We will now turn from our brief review of the commentators to an examination of cases. At common law every witness was prohibited from giving his opinion. (Carter v. Boehn (1776), 3 Burr. 1905.) This absolute rule was in line with the rules of evidence on the competency of witnesses who must generally have personal knowledge of the subject matter of their testimony. (2 Wigmore, Evidence §§652, 657 (Chadbourn rev. 1979).) The original rule may seem unduly restrictive in today’s complex society when it seems that even the most simple cases have at least one expert witness, but as a basic principle it does make good sense. Why should a witness be allowed to state, “I think (or in my opinion) the horse ran away with the wagon” if he wasn’t there, wasn’t able to see, hear or be brushed by the breeze created by the rapidly moving wagon? This absolute rule was liberalized, and it became the practice to permit the use of expert testimony, but such testimony was limited to subjects where only persons with special skill and knowledge were capable of making correct judgments. (Yarber v. Chicago & Alton Ry. Co. (1908), 235 Ill. 589, 85 N.E. 928.) Implicit in the relaxation of the rule was an additional factor: the expert’s knowledge must have been of assistance to the fact finder in its resolution of the dispute. (2 Wigmore, Evidence §557 (Chadbourn rev. 1979).) In the earlier cases this assistance was allowed only so far, e.g., an expert was not permitted to give an opinion on the ultimate issue in the case because it was felt that this invaded the province of the jury. Keefe v. Armour & Co. (1913), 258 Ill. 28, 101 N.E. 252.

The original absolute rejection of expert testimony and its later gradual, begrudging acceptance may have had more than a strict evidentiary basis. It may also have been a reflection of popular attitudes that existed toward experts at the time and still exist today: “One who can take something you already know and make it sound confusing.” (Anon., quoting Webster’s New World Dictionary of Quotable Definitions 186 (E. Brussell 2d ed. 1988).) This suggestion is supported by a line from a 1920 supreme court opinion, Opp v. Pryor, wherein the court said that “all too often a lawyer can easily find an accomodating expert because the expert’s opinion simply is a natural expected result of employment.” Opp v. Pryor (1920), 294 Ill. 538, 545-46,128 N.E. 580, 583.

Whatever the reason or reasons for the rejection and/or limitation to non-ultimate issue conclusions, the restrictive rules were relaxed in Miller v. Pillsbury Co. (1965), 33 Ill. 2d 514, 211 N.E.2d 733. In Miller, a case arising out of a vehicular collision involving three trucks, there were no eyewitnesses qualified to testify. The court affirmed the admission of expert evidence as to the point of impact, and declared that expert reconstruction testimony should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering, and other sciences beyond the ken of the average juror. The Miller court recognized that permitting reconstruction experts to testify would entail some conflict with the ultimate issue prohibition, but reasoned that since the jury could accept or reject the testimony, their province was not invaded.

The more liberal rule of Miller was restricted in Plank v. Holman (1970), 46 Ill. 2d 465, 264 N.E.2d 12, where the court after quoting from Miller stated: “However, reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available.” (Plank, 46 Ill. 2d at 470, 264 N.E.2d at 15.) The absolute prohibition in the above sentence is immediately followed by: “Whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror.” (Emphasis added.) (Plank, 46 Ill. 2d at 471, 264 N.E.2d at 15.) The meaning of these two sentences is somewhat unclear. The first appears to restrict Miller to its facts, e.g., in the presence of eyewitness testimony reconstruction evidence is impermissible; but, the second sentence conditionally approves reconstruction testimony if it is necessary to rely on knowledge beyond the ken of the average juror.

Plank was followed in 1972 by McGrath v. Rohde (1972), 53 Ill. 2d 56, 289 N.E.2d 619, which cited and quoted the sentences referred to above and then went on to hold that the trial court properly excluded the expert testimony because, “[t]he questions for the jurors here [do] not require a scientific knowledge beyond that of typical jurors.” (Emphasis added.) McGrath, 53 Ill. 2d at 61, 289 N.E.2d at 623.

After McGrath the appropriate meaning to be ascribed to these two sentences was left to the appellate courts for the next several years and, not surprisingly, different results were reached. Some courts paid greater deference to the first quoted sentence from Plank and forbade reconstructionists if eyewitness testimony was available. (National Bank v. Pickens (1972), 8 Ill. App. 3d 58, 61, 289 N.E.2d 64, 66; Misch v. Meadows Mennonite Home (1983), 114 Ill. App. 3d 792, 799, 449 N.E.2d 1358, 1363; Trillet v. Bachman (1981), 96 Ill. App. 3d 477, 481, 421 N.E.2d 580, 584.) Most of these cases offer little discussion of the principles beyond a citation to Plank and Mc-Grath.

Other courts made reference to the Plank and McGrath cases, but then recognized various exceptions to the general rules laid down therein. Several of these exceptions are as follows: an exception permitting the testimony because the factual issue was not precisely addressed by the eyewitness testimony (People v. Wolfe (1983), 114 Ill. App. 3d 841, 848, 449 N.E.2d 980, 986); an exception allowing expert testimony for the injuries sustained in the second impact (Seward v. Griffin (1983), 116 Ill. App. 3d 749, 761-62, 452 N.E.2d 558, 568); an exception allowing expert opinion if the eyewitness testimony was sufficiently confusing (Ketchum v. Dura-Bond Concrete, Inc. (1989), 179 Ill. App. 3d 820, 831, 534 N.E.2d 1364, 1371); an exception where there was lack of reliable eyewitness testimony (People v. McDermott (1986), 141 Ill. App. 3d 996, 1007, 490 N.E.2d 1293, 1300); an exception where the expert was not actually recreating the entire accident, but was only testifying as to the point of impact (Kassela v. Stonitsch (1978), 57 Ill. App. 3d 817, 823, 373 N.E.2d 608, 613); an exception where the expert did not explicitly recreate the accident, but testified to his calculations of braking, stopping, skidding distances, braking effects and braking time (Burke v. Toledo, Peoria & Western R.R. Co. (1986), 148 Ill. App. 3d 208, 213, 498 N.E.2d 682, 686; Jamison v. Lambke (1974), 21 Ill. App. 3d 629, 635, 316 N.E.2d 93, 97; Finfrock v. Eaton Asphalt Co. Inc. (1976), 41 Ill. App. 3d 1020, 1023, 355 N.E.2d 214, 217); an exception where there was no eyewitness other than the defendant (Fakhoury v. Vapor Corp. (1987), 154 Ill. App. 3d 531, 537, 507 N.E.2d 50, 54); and an exception where there was only one eyewitness (Ralston v. Plogger (1985), 132 Ill. App. 3d 90, 99, 476 N.E.2d 1378, 1384).

The above list is a sampling of exceptions to the general rule of reluctant admissibility of reconstruction evidence, but the development has not all been toward the creation of exceptions. The courts have also engrafted additional restrictions: “[Reconstruction [testimony] may not be used to impeach otherwise credible [eyewitness] testimony.” (Emphasis added.) (National Bank v. Pickens (1972), 8 Ill. App. 3d 58, 61, 289 N.E.2d 64, 66; see also Whitman v. Lopatkiewicz (1987), 152 Ill. App. 3d 332, 338-39, 504 N.E.2d 243, 247.) The most stringent restriction is found in Iverson v. Iverson: “The testimony of a reconstruction expert, however, should never be used as a substitute for eyewitness testimony.” (Emphasis added.) (Iverson v. Iverson (1977), 56 Ill. App. 3d 297, 304-05, 370 N.E.2d 1135, 1142.) The reader might want to compare the above-quoted language from Iverson with the court’s statement in People v. Wonders (1985), 130 Ill. App. 3d 1, 4, 473 N.E.2d 976, 979: “However, in cases where eyewitness testimony is available, the trial judge may in his discretion admit accident reconstruction testimony.” (Emphasis added.)

After one has fought his way through the myriad of exceptions only to stumble upon the additional restrictions, it is no wonder that such esteemed experts on evidence as Cleary and Graham have commented that “there appears to be a certain amount of confusion as to when reconstruction testimony may be received when eyewitness testimony is available.” (E. Cleary & M. Graham, Handbook of Illinois Evidence, §703.2, at 477 (4th ed. 1984).) In fact, Cleary and Graham’s calculated understatement of the degree of confusion can be likened to the first mountain man who stumbled upon the Grand Canyon and exclaimed, “Golly, a gully!”

Perhaps the most extensive analyses on this point are to be found in the cases of Abramson v. Levinson (1969), 112 Ill. App. 2d 42, 250 N.E.2d 796, cert, denied (1970), 398 U.S. 950, 26 L. Ed. 2d 290, 90 S. Ct. 1868, and Dauksch v. Chamness (1973), 11 Ill. App. 3d 346, 296 N.E.2d 592. The Abramson case listed four factors which should be demonstrated before there is a ruling in favor of admissibility:

“1. The expert has the necessary expertise as a result of education, training and experience in the specific area about which he expresses an opinion,
2. The area of inquiry should require the employment of principles of physics, engineering or other science or scientific data beyond the ken of the average juror,
3. The opinion of the expert cannot be naked, but must come clothed in evidentiary facts in the record, the inferences reasonably arising therefrom and must be elicited by hypothetical questions containing substantially all of the undisputed facts in evidence relating to the issue about which an opinion is sought, and
4. There must be a need apparent from the record in the case for scientific knowledge, expertise and experience which will aid the jury to a correct and a just result.” Abramson, 112 Ill. App. 2d at 50, 250 N.E.2d at 800-01.

Dauksch refers only to three prerequisites for admissibility:

“The trial judge must, for instance, determine whether expert reconstruction testimony or opinion is necessary, that in order to arrive at a just verdict the jury must be assisted by testimony regarding knowledge of physics or the sciences beyond their ordinary ken, that the proffered witness is sufficiently possessed of the requisite qualifications as an expert and that there are sufficient physical data upon which he may base his conclusions and opinions.” Dauksch, 11 Ill. App. 3d at 352, 296 N.E.2d at 596-97.

It would appear that requisites two and four in the Abramson case could be merged into the first-named requisite in Dauksch. It would further appear that the third requisite in each case, evidentiary facts ih the record, has been weakened by the supreme court’s decision in Wilson v. Clark (1981), 84 Ill. 2d 186, 417 N.E.2d 1322. (See Coffey v. Hancock (1984), 122 Ill. App. 3d 442, 451, 461 N.E.2d 64, 71.) There would thus appear to be two major prerequisites necessary: appropriate qualifications of the expert and a requirement that the jury may be assisted by testimony regarding knowledge beyond that which they would ordinarily have.

These requirements do not seem significantly different from the general rule on the admissibility of expert testimony and yet the courts have often either applied a special rule to reconstruction testimony where eyewitnesses are available or have paid lip service to the rule and then created an exception to it.

An examination of the dichotomy of the treatment of experts that exists between medical malpractice and vehicular accident cases might be of some assistance in determining why this apparent confusion in the cases has arisen. In most, if not all, medical malpractice cases there are eyewitnesses to the significant events. Doctors, nurses, other hospital personnel, and in some instances, family members describe what they saw, heard or felt. Yet in medical malpractice cases expert testimony is not only permitted, it is mandated to establish deviation from the standard of care except in certain limited circumstances. (Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d 301, 304-05.) In an automobile case, on the other hand, if there is eyewitness testimony, an expert’s opinion is not only not mandated, it is very often prohibited. Why is there such a difference in treatment? We submit that in the medical malpractice situation the experts, who are generally medical doctors, traditionally have had a great deal of additional training beyond that of the fact finder and there is really no serious question as to their qualifications. The qualifications of the witnesses in reconstruction situations have not always been of the same caliber, particularly in regard to academic credentials. Many reconstruction experts are police officers who have no particular training in the field of physics, and the courts’ reluctance to accept their testimony has been based at least in part on the witnesses’ inability to provide expertise in a truly scientific field. (Deaver v. Hickox (1967), 81 Ill. App. 2d 79, 87, 224 N.E.2d 468, 471.) The other difference between the two types of cases lies in the degree of complexity of the subject matter. In medical malpractice situations, it is extremely rare that the fact finder would not be assisted by the expert’s explanation. In contrast, a more fundamental reason for the exclusion of reconstruction testimony has been the courts’ feeling that jurors are well aware of driving situations and do not require the assistance of experts in reaching their decisions. (Payne v. Noles (1972), 5 Ill. App. 3d 433, 283 N.E.2d 329.) The fact, however, that some witnesses may not be properly qualified as experts or that some opinions may not assist the fact finder does not justify a slavish adherence to a rule that excludes reconstruction evidence in all cases in which there is eyewitness testimony.

One further point that needs to be addressed is the question of whether or not an expert’s testimony is admissible if it will be of assistance to the jury as opposed to whether it must be necessary for them to reach their decision. This question was decided in Merchants National Bank v. Elgin, Joliet & Eastern Ry. Co. (1971), 49 Ill. 2d 118, 273 N.E.2d 809, with the majority holding that the proper requirement was that the testimony should be admissible if it would be of assistance to the jury.

While Merchants National Bank apparently relaxed the rule against the admissibility of reconstruction testimony, the defendant cites the later case of Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 392 N.E.2d 1, for the proposition that reconstruction testimony is still not a favorite of the courts in cases involving eyewitnesses, and we acknowledge that proposition. We also note, however, that Peterson is a fairly fact-specific holding. The court held: “Because we believe that the speed of an automobile is not a matter beyond the ken of the average juror [citation], we hold that the circuit court erred in admitting reconstruction testimony.” (Peterson, 76 Ill. 2d at 359, 392 N.E.2d at 3.) This holding has obviously not changed the result in Merchants National Bank.

We hold, therefore, that the admissibility of reconstruction evidence is to be determined upon the rules announced by the supreme court for opinion evidence. Is the expert qualified in the field, and will his testimony aid the fact finder in the resolution of the dispute? If the answer to these two questions is in the affirmative, then the testimony is admissible. The presence or absence of eyewitnesses thus becomes not the sole criterion for the determination of admissibility of reconstruction testimony, but only one of the criteria, and it obviously applies only to the second of the questions dealing with the admissibility of the testimony. When the review of the cases is reexamined with this analysis in mind, it becomes apparent both that the results would have been identical, and that they would be based not upon any new rule (or exception to one) extending admissibility, but instead on a return to the general rule on the admissibility of opinion evidence.

In this as in other evidentiary matters the trial court must be granted discretion in its ruling. We find no error in the judge’s ruling in this case. The expert, Dr. Orthwein, was properly qualified and, as the trial court pointed out, his testimony could be of assistance to the fact finder. Therefore it was properly admitted.

We next address a procedural issue raised by Floyd Steinmetz. During the pretrial phase of this case the trial judge directed that each plaintiff would be required to prove his or her own case. Although the cases were consolidated, they were actually presented as five separate cases to the same jury. The cases were presented in the following order: (1) Floyd Steinmetz v. James Pulley and Henry Pulley; (2) Pat Samples, as administrator of the estate of Gilbert Lee Allen, v. James Pulley and Floyd Steinmetz; (3) Sheryl Augenstein v. James Pulley and Floyd Steinmetz; (4) James Pulley v. Floyd Steinmetz; (5) Henry Pulley v. Floyd Steinmetz.

Floyd Steinmetz filed a motion for directed verdict at the close of each of the cases of Gilbert Lee Allen and Sheryl Augenstein. The trial court determined that all motions for directed verdict would be presented after all the evidence was concluded. When Steinmetz’ counsel argued for a directed verdict as to those two plaintiffs, he requested that the court disregard the testimony of Dr. Orthwein since it was not presented until after the Augenstein and Allen cases had been presented. The court denied all motions for directed verdicts.

Floyd Steinmetz argues that the trial court failed to follow the procedural rules it had established, namely, that each plaintiff would be required to prove his or her own case. He argues that the trial court improperly considered Dr. Orthwein’s testimony in making its decision regarding the motions for directed verdicts in the Augenstein and Allen cases. Counsel for Pat Samples, the administrator of the estate of Gilbert Lee Allen, argues that Steinmetz was completely aware that all evidence presented would be used in consideration of all cases. Samples’ counsel makes specific reference to the record where the trial court and counsel for the parties discussed how the evidence presented in each case would be used in reference to the other cases:

“MR. GIAMANCO: At some time in the early afternoon we will be putting our aspect of the case on with respect to liability. I don’t intend to call a number of these witnesses again and ask them the same questions, but on the record I’d like, outside the presence of the — Well, in the presence of the jury I’d like to adopt the testimony of those witnesses.
THE COURT: Fine. I think you should, and I think Mr. Austin should.
MR. AUSTIN: It’s my intention — Do we adopt it all? The direct examination, the cross examination? Or is it just adopted for us by operation of law?
THE COURT: I think it’s adopted for you by operation of law.”

Counsel for James Pulley asserts that since Floyd Steinmetz did not object to the court considering the evidence in each case as to every other case he waived his objection. At the close of all the evidence a hearing was conducted to consider the motions for directed verdicts. The court at that time stated:

“Now I want the record to show, and all of you to understand, due to the fact that the court on its own motion has since trifurcated the issues in this case, and that we’re adopting evidence of other attorneys, and the jury is going to be instructed to consider all of the evidence, that I am going to consider all of the evidence in this case as to each and every party.”

Counsel for Floyd Steinmetz took exception to the court considering Dr. Orthwein’s testimony as to the Augenstein and Allen cases. While we agree that in order to preserve an issue for appeal, objection must be made in the trial court (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 324 N.E.2d 417), Floyd Steinmetz did object to the consideration of Dr. Orthwein’s testimony in his motion for directed verdicts. We therefore will address the substantive issue of whether the court acted improperly in considering Dr. Orthwein’s testimony in determining the motions for directed verdicts.

It is well recognized that consolidation is permitted under section 2—1006 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1006). Inherent in the power to consolidate is the authority to integrate evidence at a joint trial in the interest of convenience and economy. (Colgan v. Rae-Ann Electric Co. (1980), 91 Ill. App. 3d 386, 392, 414 N.E.2d 1343, 1347.) The record reflects that the parties were aware that all of the evidence would be considered with regard to each case. Furthermore, as the integration of evidence in a consolidated trial is permissible, we hold that the trial court did not act improperly in considering the testimony of Dr. Orthwein in making its decision with regard to the motions for directed verdicts.

The final issue for our consideration is whether the trial court erred in instructing the jury that defendant Floyd Steinmetz had to be found at least one percent at fault for the accident during the contribution phase of deliberations. At the close of all of the evidence and after closing arguments were given by counsel, the jury first deliberated on the issue of liability. The jury found in favor of each of the plaintiffs and against each of the defendants. Instructions were then given to the jury for their determination of contribution and reduction of damages. In addressing the jury’s consideration of James Pulley’s contribution claim against Floyd Steinmetz, the judge stated: “I submit to you that in this case you must reduce those damages at least one percent.” The jury thereupon retired for deliberation on the issues of contribution and contributory negligence. Proceedings were then held out of the hearing and presence of the jury, and counsel for Floyd Steinmetz objected to the court’s instruction.

Counsel for James Pulley claims Floyd Steinmetz waived his objection to the instruction since objection was not made until after the jury retired to deliberate. The statement made by the judge in his instruction to the jury was made in the presence of the jury without prior notice to the attorneys. Floyd Steinmetz’ attorney may well have thought that it would be disadvantageous to object in the jury’s presence. The objection was specifically made by counsel immediately after the jury retired to deliberate, and, under the circumstances, we consider that sufficient.

In support of the trial judge’s instruction, counsel for James Pulley argues that the only way the jury could make a finding of zero percent contributory negligence would be if there had been a prior consistent verdict finding one defendant not guilty as to the claims of negligence of the other defendant, which obviously did not occur. The purpose of jury instructions is to convey to the jurors the correct principles of law applicable to the evidence which has been submitted to them. (LeMaster v. Chicago Rock Island & Pacific R.R. Co. (1976), 35 Ill. App. 3d 1001, 1019, 343 N.E.2d 65, 80.) The test is whether, taken as a whole, the instructions are clear enough so as not to mislead and whether they fairly and accurately state the applicable law. People v. Falley (1937), 366 Ill. 545, 551, 9 N.E.2d 324, 327; Friedman v. Park District (1986), 151 Ill. App. 3d 374, 388, 502 N.E.2d 826, 837.

Floyd Steinmetz’ concern is that the instruction conveyed the false impression that he was liable on the contribution claim and comparative fault issue before the jury had the opportunity to consider that aspect of the case. We are not persuaded that he was prejudiced by the court’s remark. Here the jury initially retired to deliberate the issue of liability of the parties. Verdicts were returned against both defendants. The jury was thereafter instructed to assess percentages of fault. The judge’s remark was made after the court read the instruction about an assessment of Floyd Steinmetz’ contributory negligence. The jury was instructed as to how they should determine and assess contributory negligence as to both Floyd Steinmetz and James Pulley. The instructions taken as a whole fully informed the jury of the applicable law of the case. The verdict could not have been based on any misunderstanding because Floyd Steinmetz could not be found zero percent contributorily negligent where the verdicts found liability against each defendant. We find no cause for reversal here.

Therefore the judgment of the trial court is affirmed.

Affirmed.

WELCH and HARRISON, JJ., concur.