author: JUSTICE COLWELL

text:
    CURTIS HINES et al., Plaintiffs-Appellees, v. ROBERT TURLEY et al., Defendants-Appellants.
    Second District
    Nos. 2 — 92—1194, 2 — 92—1195 cons.
    Opinion filed June 28, 1993.

      William Y. Franks, of Waukegan, Jed Stone, of Law Offices of Jed Stone, Ltd., of Chicago, and Law Offices of Josette Skelnik, of Elgin (Josette Skelnik, of counsel), for appellants.
    John T. Jursich, of North Chicago, for appellees.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendants, Robert Turley et al., appeal the trial court’s order finding that grounds existed to dissolve the Mount Sinai Institutional Baptist Church (Mount Sinai) and to appoint a liquidating receiver. This appeal is proper under both Supreme Court Rule 307(a)(2) (134 Ill. 2d R. 307(a)(2)), as an interlocutory appeal from an order appointing a receiver, and Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)), as a final order appointing a liquidating receiver for a corporation. Defendants allege on appeal that: (1) plaintiffs lacked standing to bring an action seeking dissolution of Mount Sinai; (2) the trial court’s finding that Mount Sinai was unable to carry out its corporate purposes violated the first amendment’s prohibition against civil courts’ involvement in religious matters; and (3) the trial court’s findings that grounds existed to dissolve Mount Sinai were against the weight of the evidence. We reverse.

Mount Sinai Institutional Baptist Church, Inc., is a not-for-profit religious corporation located in North Chicago, Illinois. It was incorporated in 1984 but has a church history going back to at least the 1960’s. Soloman Smith has served as pastor at Mount Sinai since 1970. The stated purpose of the church is the advancement of the kingdom of God. Mount Sinai approved and adopted a constitution on June 7, 1989, whose bylaws are at issue in this case.

A schism formed at Mount Sinai sometime in 1989-90 between those members who supported Reverend Soloman Smith and those who opposed him. The problems worsened due to disagreements over Smith’s plan to use church funds to build a school. Some members opposed placing a mortgage on the paid-off church building to raise construction funds. The Smith detractors soon made efforts to remove Smith as pastor, as well as remove several deacons and members of the trustee board who supported Smith. These actions initiated this court’s involvement in the church’s affairs. In Mount Sinai Institutional Baptist Church et al. v. Ruby Ware et al., 90— CH — 259, Judge Emilio Santi issued an order finding there were irregularities in these “ousters” of the Smith supporters. He declared these actions null and void, returned those ousted to office, and directed new elections to be had in conformance with the church bylaws. In so doing, Judge Santi considered evidence of church membership and approved a list which declared certain voters eligible at said election. The order also stated that the preliminary injunction entered on plaintiffs’ previous complaint remained in full force and effect. Judge Santi later entered another order which declared the results of these elections, including the retention of Reverend Smith. All plaintiffs and defendants in the case at hand were elected to the Mount Sinai board of trustees in October 1990 and declared so in Judge Santi’s order.

The Smith detractors expressed dissatisfaction with these results and declared the church bylaws to be violative of Baptist doctrine. These detractors also attempted to dismiss the church’s attorney, John Jursich, because his action in filing the case in court was allegedly against Baptist doctrine.

A complaint for temporary restraining order, preliminary injunction and permanent injunction was filed on April 25, 1991, by Curtis Hines, Ereal Lewis, Ralph McLean, Dannie Williams, Michael Taylor, and Fred Turman against named defendants and Mount Sinai. The complaint alleged that defendants Robert Turley, Eddie Freeman, Al Atkins, James Robinson, and Johnnie Henderson were trustees of Mount Sinai and had misused church funds on items not approved by the board of trustees and in violation of Illinois law and the bylaws and customs and usage of the church. Specifically, the complaint alleged that a check for $14,000 to Reverend Carsie Barnes and a check for $1,300 to Linda Platt had not been approved by a majority of the board of trustees. The complaint attached Judge Santi’s order from October 1990 as an exhibit. The trial court entered an order restraining defendants from paying any of the church’s money to Reverend Barnes, but in all other respects, plaintiffs’ prayer for relief was denied. Plaintiffs filed an amended complaint for a temporary restraining order, preliminary injunction, and permanent injunction and for damages on May 29, 1991. Plaintiffs then filed a second amended complaint on July 10, 1991, which sought the entry of an order dissolving the church and appointing a liquidating receiver instead of injunctive relief. The trial court struck certain paragraphs of this complaint, and plaintiffs then filed a third amended complaint on August 13, 1991. The trial court entered an order striking certain paragraphs of the third amended complaint and ordered that Mount Sinai be dropped as plaintiff in the case. Attorney John Jursich thereafter withdrew as counsel for Mount Sinai but remained as counsel for plaintiffs.

Plaintiffs filed a fourth amended complaint on October 15, 1991. Mount Sinai was not named as a plaintiff, but the six previous individuals remained as party plaintiffs. The fourth amended complaint alleged that a major schism had developed in the church, with approximately one-half of the membership following the ministry of Pastor Soloman Smith and approximately one-half opposed to Smith. Plaintiffs further alleged that the defendants signed checks at the request of the members opposing Smith and without the approval of the board of trustees. Specifically, plaintiffs alleged that an unlawful meeting was held on March 8, 1991, at which payment of $14,000 to Carsie Barnes and $1,400 to Linda Platt was authorized. Plaintiffs alleged the issuance of these checks was fraudulent and that the corporate assets were being misapplied and wasted.

The complaint further alleged that the church was unable to carry out its purposes because the worship services were frequently disrupted by loud singing and yelling from the Smith detractors in the congregation. In addition, the dissidents reduced Smith’s salary to $1 a week, required him to pay rent and utilities, and removed the pastor’s sign from his parking space. In light of these actions, plaintiffs prayed that an order be entered dissolving Mount Sinai and appointing a liquidating receiver to collect assets of the church. Plaintiffs asked that the assets of the church be distributed to other not-for-profit corporations after the payment of all bills.

Defendants filed a motion to dismiss or strike this complaint. Defendants also filed a motion for involuntary dismissal pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 619), alleging that the plaintiffs were no longer members or trustees of the church and therefore had no standing. Defendants attached an affidavit from Anna Smith, the Mount Sinai secretary-clerk, who stated that an individual miist be in good financial standing, making a monthly contribution of at least $15 a month, in order to be an active member of the church. Ms. Smith stated that the church records revealed that none of the plaintiffs were active members of the church after October 15, 1991.

With respect to defendants’ motion to dismiss, the court entered an order on November 27, 1991, in which plaintiffs were given 14 days to add Mount Sinai as a party to the cause of action and to file a response to the defendants’ motion. Attorney John Henderson entered his appearance on behalf of Mount Sinai as a party plaintiff on December 11, 1991. Mount Sinai was later allowed to adopt the plaintiffs’ fourth amended complaint as its complaint.

At the January 14, 1992, hearing on defendants’ motion for involuntary dismissal, the trial court found that plaintiffs Michael Taylor and Dannie Williams had abandoned their memberships at Mount Sinai and thus had no standing in this action. The trial court also struck paragraph 5(a)(vi) and all of paragraph 6 of the fourth amended complaint but found the remaining allegations stated a cause of action. Defendants filed an answer to the fourth amended complaint. Attorney William Franks entered his appearance for Mount Sinai as defendant and adopted this pleading. Defendants’ answer alleged as affirmative defenses that: (1) none of the plaintiffs were members of the church in good standing, (2) that the church was able to carry out its purposes, (3) the plaintiffs’ claim was nonjustifiable under the first amendment, and (4) Mount Sinai is a congregational church whose member body determined the issues of church policy and that the plaintiffs were dissident members who had lost control within the church.

At the June 1, 1992, hearing on the fourth amended complaint, Anna Smith, the church clerk, testified she had been a member of Mount Sinai for 12 years. She often would take the minutes of church meetings and testified she attended meetings where members of the church voted 78 to 2 to pay Reverend Carsie Barnes approximately $14,000 and voted 87 to 2 to pay Linda Platt $1,400.

Plaintiff Ereal Lewis testified he had been a member of Mount Sinai since 1983 and had served on the board of trustees until August 26, 1991. Lewis said that starting in 1990 there were several disruptions during the services. Often people in the audience would erupt in loud singing at the moment when Reverend Smith would move to the pulpit to speak. Smith’s voice could not be heard when these disruptions occurred. Lewis saw these disruptions occur six to eight times throughout the year.

Lewis stated he had not received notice nor attended any board of trustees meetings after a meeting he attended in August 1991. Lewis admitted he had not paid monthly dues to Mount Sinai since approximately August 1991 and had not attended the church services there. Lewis acknowledged that he and the five other plaintiffs had met specially to hire Henderson as the attorney for the church.

Reverend Soloman Smith testified that he had been the pastor at Mount Sinai since 1970. Smith said the church body approved a purchase of land on which Smith planned to build a school. However, he could not secure approval for the school from the church body. Soon after, disruptions began at Sunday services and other meetings. After a prayer meeting on March 28, 1990, several members rushed to the front of the church and then forced themselves into Smith’s study, demanding to talk with him. On April 1, 1990, Smith rose to the pulpit to talk and was interrupted by about 15 people who burst out singing when singing was not scheduled. The singing continued for about 20 minutes, and Smith dismissed the service and called the police.

The singing occurred again the following week at worship services. After Smith dismissed the service, church members started shouting back and forth. On April 22, 1990, one member got up during services and made an announcement without approval from the pastor that the church was going to have a meeting to straighten out the church. On July 15, 1990, another church member told Smith there would be no prayer service as scheduled and asked Smith for the keys to Smith’s office. The trouble resumed shortly after Judge Santi’s October 1990 order and the church’s subsequent vote to retain Smith.

Smith testified that at a quarterly business meeting on March 8, 1991, there was a motion to fire attorney Jursich and fire Turman as trustee and to vacate the entire deacon board. At a meeting on March 15, 1991, the men voted out of office in the court-ordered October 1990 election were put back in office by some of the Smith detractors. Smith also received a letter from several members in March or April 1991 asking him to resign. In April 1991, several members took Smith’s name off the church van and removed his sign from the pastoral parking space. In June, Smith’s salary was reduced to $1 per week, and he was informed he would have to pay utilities if he wished to stay in the parsonage. In May 1991 when Smith approached the pulpit to speak, several people yelled that he was not the pastor. The microphones and lights were turned off, and a group of men gathered around him at the altar. Someone called the police and the service ended.

On July 7, 1991, a church member announced a call meeting to terminate Smith as the pastor. Smith did not attend this meeting but instead waited in the parking lot. A vote of 94 to 0 was taken in favor of removing Smith. Smith attempted to preach that following Sunday but was stopped by several deacons standing near the altar. On July 21 Smith was ordered not to go into the pulpit. When he approached the pulpit and sat down, the police were called and Smith was escorted out and taken to jail. Smith was charged with criminal trespass which was later dismissed.

Smith acknowledged that Baptist churches were organized on the principle that the body of the church governs and that the majority of members rule. He said that although the matters regarding the administration of the church were usually submitted to the body of the church for decisions, bills which came into Mount Sinai for payment were to be considered and voted on by the board of trustees. Smith testified that the attendance at Sunday services is less than it was in November 1989. Smith said he now has a fellowship at Mount Moriah Christian Center.

Plaintiff Fred Turman testified that he has been a member of Mount Sinai since 1971. He had served as a deacon and on the board of trustees. Turman affirmed that a special meeting notice was sent out for August 26, 1991, to be attended by all trustees at the home of one of the plaintiff trustees. Only the six plaintiffs here attended this meeting. The plaintiffs decided at that time to make the church a party to litigation as plaintiff and hire J. John Henderson as its attorney.

Turman said a motion was made and carried at a March 8, 1991, meeting to terminate him from the trustee board. However, Turman believed he was still currently a member of Mount Sinai. He could not recall attending services at Mount Sinai since June 1991 but believed his dues were paid through September or October 1991.

Defendant Albert Atkins testified he was a trustee and financial secretary at Mount Sinai. As such, he was authorized to sign checks for the corporation and had done so since 1986. Atkins stated that at the January 1991 trustees meeting, the trustees asked Reverend Smith to see if Reverend Carsie Barnes would accept a lower payment of $6,800. Smith never got back to the trustees, who proceeded to pay Barnes approximately $14,000. Atkins said the only bills the trustees generally presented to the congregation for approval were those which exceeded $1,000 and were not for ordinary expenses. Atkins said the bills paid in 1991 were not taken to the congregation for approval because Smith would not let them have a church meeting while the church was in litigation before Judge Santi.

Atkins said the congregation was angry about attorney Jursich’s bill, which had exceeded $1,000 and had been paid without being submitted to the church for approval. Atkins said the Mount Sinai Church body hired Franks as its attorney at the quarterly meeting on June 7, 1991, by a vote of 54 to 0. Atkins believed none of the plaintiffs in this case was a trustee at that time. The parties then stipulated at trial that, at the June 7, 1991, meeting, a member named James Spriggs had motioned that all trustees engaged in taking the trustees to court without church approval (the plaintiffs here) be removed from office. The motion was carried by a vote of 84 to 34.

Atkins testified that he attended a call meeting on February 10, 1992. The subject of the meeting was the termination of Turman’s, McLean’s, Hines’, and Lewis’ memberships. There was no written notice of this meeting. Atkins said the March 8, 1991, meeting at which Turman was terminated as trustee was announced from the pulpit two weeks before the meeting.

Defendant Eddie Freeman stated he had been a member of Mount Sinai for about 15 years and a trustee for 7 years. He said the board of trustees regularly met from January to June 1991 although no notices were sent regarding these meetings. Judge San-ti’s approved voting list was never used at any meetings that Freeman attended. Freeman stated that he was on the finance committee and, to his knowledge, the trustees had never paid a bill which was unauthorized by the church body.

Defendant Robert Turley testified he has been a member of Mount Sinai for about 15 years and a trustee since 1986 or 1987. He served as treasurer from 1988 to 1991. He agreed that at the board meeting on January 15, 1991, the board members recommended that Reverend Barnes be paid a total of $6,800 for his services.

James Spriggs testified he has been a member of Mount Sinai since 1960. He was present at the July 12, 1991, meeting where Smith was terminated as pastor. Spriggs admitted he was part of the group opposed to Smith and that he had made a motion at the June 7, 1991, quarterly meeting to reduce Smith’s salary to $1 per week. Spriggs said his opposition to Smith was based on ecclesiastical principles, primarily, that Smith, contrary to Baptist doctrine, refused to bring issues of how the church was to be run to the members of the church body. Spriggs was also upset that Smith would speak in tongues for long periods of time without a translator so that the congregation could not follow what was going on.

Several additional witnesses testified as to the disturbances at the services caused by those opposed to Smith. Smith was recalled and testified that when the disturbances began in 1990, all of the activities at the church declined. Smith said only a few children remained in Sunday school at the time he left in July 1991. At the close of the plaintiffs’ evidence, defendants moved for a directed verdict which was denied.

Defendants presented Bill Mayfield, who testified he is a member of Mount Sinai and serves on the bylaws committee. He stated that the church recently ratified a new set of bylaws and had conducted elections under the new laws.

Hazel Moore, a member of Mount Sinai, testified that a committee was formed in March 1992 to search for a pastor for the church. The decision on the new pastor was to be made by the church.

The trial court’s August 31, 1992, order determined that plaintiffs’ claim to membership in Mount Sinai was based on a strained application of the bylaws since plaintiffs admittedly had not worshipped or contributed to the church since around the time Smith left in July or August 1991. However, the court found this fact did not impair their standing since there was no competent authority at Mount Sinai to declare plaintiffs’ membership ended.

The trial court noted that it knew of no other reported case which involved a church dispute requesting dissolution of the church and distribution of its assets. However, the court found this case falls within the category of cases pertaining to property rights between factions of a church and is similar to Jones v. Wolf (1979), 443 U.S. 595, 61 L. Ed. 2d 775, 99 S. Ct. 3020, where the Supreme Court approved the “neutral principles approach” in church disputes. The trial court found it need not decide whether the church’s constitution and bylaws are compatible with Baptist doctrine because these organic instruments constitute the rules which the congregation chose to be bound by before the dispute arose. Since the court need not decide that issue, nor Smith’s suitability as pastor, the court concluded there is no question of church doctrine preventing the exercise of jurisdiction over this church dispute and that this case may be decided by references to “neutral principles.”

The trial court noted that section A-4 of the church bylaws provided that termination of the pastor’s office “shall be voted on in a Regular Church Business Meeting. Notice of such meeting and its purpose having been read from the pulpit on two consecutive Sunday’s [sic].” Under these provisions, the court found Smith’s dismissal on July 12, 1991, violated the provisions in this section. The court also found the removal of the plaintiffs from their trustee positions on June 7, 1991, violated section D-l of the church bylaws, which provided that “one-third of the Trustee Board shall be elected annually.” The removal of Fred Turman and the deacon board on March 8, 1992, violated the bylaws which state the church has the power, for good and sufficient cause, to remove any officers, but such vacancies shall be filled only after public notice has been given. The trial court found defendants here were among the Smith detractors and engaged in some of these acts.

The court concluded that it must determine whether the purposes of this not-for-profit church corporation are frustrated such that it should be dissolved. The court noted that the church, purportedly represented on both sides of the case, also purported to be independent of the parties. The court distinguished three entities in this case: (1) the association of persons bound by their support for Smith (plaintiffs); (2) the association of persons bound together by their opposition to Smith (defendants); and (3) the incorporated institution of the church. The court concluded that the natural persons on both sides of the case failed and refused to operate this not-for-profit corporation according to its charter and bylaws and thus deprived it of any corporate effect. Since no lawfully empowered or willing persons were operating it according to its charter and bylaws, the court found the corporate structure of the church had been abandoned by its members and therefore its purposes were frustrated. The court also struck the appearances of both Henderson and Franks, who purported to represent the church as a corporation. In doing so, the court aligned the corporation as a defendant.

At hearing on the status of attorney Franks’ future participation in the case and for suggestions as to the appointment of a receiver, the trial court determined that defendants could appeal this order of August 21, 1992, under Supreme Court Rule 307(a) (134 Ill. 2d R. 307(a)) once the judge appointed a receiver. Nominations were taken and the trial court appointed a receiver. Both the individual defendants and Mount Sinai as defendant filed a notice of interlocutory appeal and the causes were consolidated for this appeal.

We initially address plaintiffs’ motion accompanying this case which prays that this court strike section IV of defendants’ reply brief. Plaintiffs contend that defendants erroneously based this argument on the Religious Corporation Act (Ill. Rev. Stat. 1991, ch. 32, par. 163m et seq.) since the Religious Corporation Act has never been an issue in this cause. Defendants object to plaintiffs’ motion, stating that plaintiffs cited to section 108.35(c) of the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1991, ch. 32, par. 108.35(c)), which relates to the removal of “directors” from a corporation. Defendants note that Mount Sinai has no directors. Defendants contend that, although incorporated under the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1991, ch. 32, par. 101.01 et seq.), the church’s form of government more closely follows that covered in the Religious Corporation Act, in which the role of “trustees” rather than “directors” is described and defined. Defendants state their argument is based in section IV and is a legitimate response to the claims raised by plaintiffs and is permissible under Supreme Court Rule 341(g) (134 Ill. 2d R. 341(g)).

First, it must be noted that plaintiffs’ cite to “Ill. Rev. Stat. 1991, ch. 38, par. 108.35(c)” is a scrivener’s error since chapter 38 contains, in part, the Illinois Code of Criminal Procedure. Assuming then, that plaintiffs intended to cite to “Ill. Rev. Stat. 1991, ch. 32, par. 108.35(c),” we deny plaintiffs’ motion to strike since defendants’ response was a permissible assertion in response to plaintiffs’ argument that section 108.35(c) of the General Not For Profit Corporation Act is the appropriate provision in determining whether Mount Sinai was able to carry out its corporate purposes.

On the merits, defendants first argue the trial court erred in denying defendants’ motion for involuntary dismissal of the plaintiffs’ fourth amended complaint because the plaintiffs lacked standing to bring an action seeking dissolution of Mount Sinai. Here, the trial court acknowledged that the plaintiffs’ claim to con-tinned membership in Mount Sinai is based on a strained application of the bylaws and ad hoc procedures not authorized by the bylaws. Michael Taylor and Dannie Williams, in fact, were found to lack standing by a previous court order on January 14, 1992. However, the trial court concluded this does not impair the remaining plaintiffs’ standing since no competent authority existed at Mount Sinai to declare their membership ended. The trial court based its decision on the fact that no one was currently operating the corporation according to its charter and bylaws, thus depriving its acts of any corporate effect. However, this finding is not dispositive of the standing issue, since plaintiffs’ memberships at Mount Sinai could have lapsed without any authoritative action by defendants. Under the General Not For Profit Corporation Act, the following individuals may bring an action for involuntary judicial dissolution of a corporation in certain circumstances: (1) the Attorney General; (2) a member entitled to vote or a director if the corporation is unable to carry out its purposes; and (3) a creditor. (Ill. Rev. Stat. 1991, ch. 32, par. 112.50.) The Mount Sinai bylaws state in section 9 that the voting membership of the church “shall consist of all adults, active and in good financial standing; and of person [sic] eighteen (18) years of age.” (Emphasis added.) The bylaws also provide in section 8 that “[e]ach adult member shall be financially responsible for not less than $15 donation per month toward the current expenses of the church.”

In addition, the bylaws provide in section 4(b):

“Members who have absented themselves from the activities of the church and who manifest no interest in the church for a period of ninety (90) days and of whom no satisfactory information can be gained may upon recommendation of the Pastor, Deacons, Deaconess, and Counselors be placed on an inactive list. Any person whose name appears upon the inactive list shall not be counted as a voting member.”

The trial court found no evidence that these plaintiffs were ever placed on an inactive list and concluded they maintained standing to bring this suit. However, earlier in the discussion of its finding, the trial court noted that Turman, McLean, and Lewis had not abandoned their membership, but “[t]here is no evidence in the record to show that they are anything but at the least inactive members.” The trial court found the evidence as to Hines was “equivocal” and therefore insufficient to establish a lack of standing.

A person seeking to invoke the jurisdiction of the court must have some real interest in the cause of action or a legal or equitable right, title or interest in the subject matter of the controversy. (Weihl v. Dixon (1977), 56 Ill. App. 3d 251, 253.) The standing doctrine assures that issues are presented to a court only by parties who have a sufficient personal stake in the outcome of the controversy. (Harris Trust & Savings Bank v. Duggan (1983), 95 Ill. 2d 516, 527.) We find that the manifest weight of the evidence ' adduced at trial indicated that plaintiffs were no longer “active” members of Mount Sinai in good financial standing. All four plaintiffs testified at the hearing on January 14, 1992, that they had not attended worship services or any other activities at Mount Sinai since July 1991. All four were now attending Mount Moriah Church. Although three of the plaintiffs had donated money to Mount Sinai in the first half of 1991, none were currently making their $15-a-month donations to the church as provided in the bylaws. Although plaintiffs all testified they had not resigned their positions as trustees, they had not attended trustee meetings at Mount Sinai since July 1991. We are aware of the hostile atmosphere which undoubtedly prevailed against these plaintiffs at Mount Sinai; however, this does not dissuade us from finding that plaintiffs here had effectively relinquished their memberships at Mount Sinai and were, at best, inactive or nonvoting members as of the filing of the fourth amended complaint on October 15, 1991. As such, plaintiffs could not bring an action for involuntary judicial dissolution under section 112.50 of the General Not For Profit Corporation Act. (Ill. Rev. Stat. 1991, ch. 32, par. 112.50.) We find the trial court erred in ruling that plaintiffs had standing and therefore reverse the trial court’s decision in this case.

Even if we were to find that plaintiffs had standing, they would still not prevail since we find that the trial court lacked jurisdiction to rule on whether Mount Sinai could carry out its purposes since the court’s decision on that issue violated the first amendment’s prohibition against civil courts’ involvement in religious matters. The court’s authority to resolve disputes is narrowly circumscribed by the first amendment’s guarantee that the right to the free exercise of religion will not be abridged. (U.S. Const., amend. I; Serbian Eastern Orthodox Diocese for the United States of America & Canada v. Milivojevich (1976), 426 U.S. 696, 710, 49 L. Ed. 2d 151, 163, 96 S. Ct. 2372, 2381.) With the exception of certain types of church property disputes, Illinois courts have generally refused to decide cases that require a judicial interpretation of religious doctrine or church law. As the Supreme Court stated: “[e]ven when rival church factions seek resolution of a church property dispute in the civil courts there is substantial danger that the State will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs.” (Milivojevich, 426 U.S. at 709, 49 L. Ed. 2d at 163, 96 S. Ct. at 2380.) However, where doctrinal controversy is not involved in a church dispute, mandatory deference to religious authority is not required by the first amendment, and the court may choose from a variety of approaches in resolving the dispute. St. Mark Coptic Orthodox Church v. Tanios (1991), 213 Ill. App. 3d 700, 713.

A court must play limited roles in adjudicating church property disputes and may decide such a case if it can do so using neutral legal principles. Under the “neutral principles of law” approach, the court objectively examines pertinent church characteristics, constitutions and bylaws, deeds, State statutes, and other evidence to resolve the matter the same as it would a secular dispute. (Jones v. Wolf (1979), 443 U.S. 595, 602, 61 L. Ed. 2d 775, 784, 99 S. Ct. 3020, 3025; St. Mark Coptic Orthodox Church, 213 Ill. App. 3d at 713.) This approach has been recognized and, where appropriate, applied in Illinois. See, e.g., Aglikin v. Kovacheff (1987), 163 Ill. App. 3d 426, 431; Grace Evangelical Lutheran Church v. Lutheran Church — Missouri Synod (1983), 118 Ill. App. 3d 151, 156.

In Jones, the Supreme Court held that “a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.” (Jones, 443 U.S. at 604, 61 L. Ed. 2d at 785, 99 S. Ct. at 3026.) The Supreme Court additionally noted that neutral legal principles allow a church to “specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy.” (Jones, 443 U.S. at 603, 61 L. Ed. 2d at 785, 99 S. Ct. 3025.) The Jones Court recognized, however, that application of neutral legal principles to a church property dispute could produce erroneous results. The Court noted that a trial court would need to examine documents such as a deed or corporate bylaws of a church and such documents could incorporate religious concepts in provisions concerning church property. Thus, the trial court must take special care to scrutinize the documents in purely secular terms, without relying on religious precepts. Jones, 443 U.S. at 604, 61 L. Ed. 2d at 785, 99 S. Ct. at 3026.

One advantage of the neutral principles approach is that it is flexible and may be applied to all forms of religious organization and polities, which are specific forms of church government. (St. Mark Coptic Orthodox Church, 213 Ill. App. 3d at 714.) Mount Sinai’s polity is congregational, defined by the Supreme Court as a congregation which is strictly independent of other ecclesiastical associations and, where church governance is concerned, owes no obligation to any higher authority. (Watson v. Jones (1872), 80 U.S. 679, 722, 20 L. Ed. 666, 674.) Thus, if the church is congregational, the court must defer to the decision of the local church governance.

Here, the trial court elected to apply the neutral principles approach, finding it need not decide whether the church’s constitution and bylaws are compatible with Baptist doctrine or other ecclesiastical issues, since there were no questions of church doctrine preventing the exercise of jurisdiction over Mount Sinai’s dispute. In disputes over church control where the congregation itself is divided into conflicting factions, it has been held that the courts may determine which faction controls the property, without infringement upon the first amendment. Courts achieve this result by principles of statutory and common law to determine who has legal control over any particular corporation or association. (Aglikin, 163 Ill. App. 3d at 432.) The case at bar is a control dispute, a controversy among the members of the church over the control of the church itself. However, the exact issue at trial, whether the trial court could properly find that Mount Sinai could not carry out its purposes and thus order its dissolution, has not been specifically addressed by Illinois courts.

Based upon our review of the record, we determine the trial court erred in applying the neutral principles approach to the case at bar. The evidence at trial indicated that the church bylaws were violated due to unapproved votes, meetings, and disturbances; however, these factors do not override the fact that the underlying dispute, i.e., who will be the pastor at Mount Sinai, is an ecclesiastical matter which is not within this court’s purview.

The issue of who is to be pastor of a church was addressed in Simpson v. Wells Lamont Corp. (5th Cir. 1974), 494 F.2d 490. In Simpson, a pastor and his wife sued their former Methodist church, alleging that his removal as pastor and his family’s eviction from the church parsonage violated his Federal civil rights and the first, thirteenth, fourteenth, and fifteenth amendments to the United States Constitution. The district court granted summary judgment to defendants, finding they were merely instruments of the church-instituted eviction. (Simpson, 494 F.2d at 492-93.) The United States Court of Appeals for the Fifth Circuit stated that “a congregation’s determination as to who shall preach from the church pulpit is at the very heart of the free exercise of religion” and that Congress did not vest the courts with jurisdiction to settle purely ecclesiastical disputes. (Simpson, 494 F.2d at 492.) Similarly, we find in the case at hand that a decision to affirm dissolution of Mount Sinai would require precisely the kind of searching inquiry into religious matters which our courts are forbidden to undertake. A mere finding that the defendants and other dissidents at Mount Sinai violated the bylaws and customs of the church, without regard to the basis of the violations and the congregation’s doctrinal positions, would not be sufficient to permit dissolution of the church.

This case is before the court essentially due to a dispute over who is to be pastor of Mount Sinai. Given the ecclesiastical nature of this dispute, the plaintiffs’ claims would fail regardless of our finding that they did not possess standing to bring this suit.

For the foregoing reasons, we reverse the decision of the circuit court of Lake County.

Reversed.

UNVERZAGT and WOODWARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE GREEN

license: Public Domain

text:
    LILLIE M. DAVIS, Petitioner, v. THE HUMAN RIGHTS COMMISSION et al., Respondents.
    Fourth District
    No. 4 — 92—0546
    Argued May 14, 1993.
    Opinion filed June 30, 1993.

      Joseph C. Honan, of Normal, and George F. Taseff (argued), of Bloomington, for petitioner.
    Roland W. Burris, Attorney General, of Springfield (Rosalyn B. Kaplan, Solicitor General, and Brian F. Barov, Assistant Attorney General (argued), of Chicago, of counsel), for respondents.
   JUSTICE GREEN

delivered the opinion of the court:

On January 23, 1986, petitioner Lillie M. Davis, acting pursuant to section 7 — 102(A)(1) of the Illinois Human Rights Act (Act) (Ill. Rev. Stat. 1985, ch. 68, par. 7 — 102(A)(1)), filed a charge with the Department of Human Rights (Department) alleging she was discharged from employment by her employer, Illinois State University (University), because she was black. On April 27, 1988, the Department filed a complaint with the Human Rights Commission (Commission) against the University making the same allegation. After hearing evidence, an administrative law judge (ALJ) entered an order on May 3, 1990, finding that the stated reasons for petitioner’s discharge were a pretext and recommending the University be found guilty of racial discrimination. After hearing argument, a three-member panel of the Commission, with one member dissenting, issued an order on February 25, 1992, rejecting the recommendation of the ALJ and dismissing the complaint. (In re Davis (Feb. 25, 1992), _ Ill. Hum. Rights Comm’n Rep. _ (HRC No. 1986 — CF—1435).) Petitioner has taken administrative review to this court. (Ill. Rev. Stat. 1991, ch. 68, par. 8 — 111(A)(1).) We affirm.

The United States Supreme Court has set forth a three-part analysis involving the allocation of the burden of proof in cases dealing with claims of employment discrimination brought under title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq. (1988)). (McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817; Texas Department of Community Affairs v. Burdine (1981), 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089.) This approach was adopted by the Illinois Supreme Court in analyzing claims of employment discrimination brought under the Act. Zaderaka v. Illinois Human Rights Comm’n (1989), 131 Ill. 2d 172, 545 N.E.2d 684.

The initial burden of proof is carried by the employee to establish a prima facie case of racial discrimination. The necessary facts to establish a prima facie case vary depending on the individual factual situations. (McDonnell Douglas, 411 U.S. at 802 n.13, 36 L. Ed. 2d at 677 n.13, 93 S. Ct. at 1824 n.13.) Here, the parties do not dispute the Commission’s finding that petitioner established a prima facie case of racial discrimination. The evidence indicated that Davis was (1) a black female; (2) hired by the University as a learner building service worker in the learner program on October 1, 1984; (3) subsequently certified as a probationary building service worker; (4) allegedly qualified for the position of building service worker; and (5) discharged from her position on August 28, 1985.

If the employee establishes a prima facie case, a rebuttable presumption arises that the employer unlawfully discriminated against the employee and the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee’s discharge. (McDonnell Douglas, 411 U.S. at 802, 36 L. Ed. 2d at 678, 93 S. Ct. at 1824.) The employer need not persuade the trier of fact that it was actually motivated by its articulated reasons for discharging the employee, but “must clearly set forth, through the introduction of admissible evidence, the reasons for the [employee’s] rejection. *** If the [employer] carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.” Burdine, 450 U.S. at 255, 67 L. Ed. 2d at 216, 101 S. Ct. at 1094-95.

Here, the ALJ and the Commission concluded that the University had articulated legitimate, nondiscriminatory reasons for discharging petitioner. Those reasons were (1) poor productivity, and (2) unsatisfactory attendance. Burdine clearly indicates that the employer does not have the burden of persuading the trier of fact it was actually motivated by the articulated reasons for the discharge, but that a sufficient showing is made “if the [employer’s] evidence raises a genuine issue of fact as to whether it discriminated against the [employee].” (Burdine, 450 U.S. at 254-55, 67 L. Ed. 2d at 216, 101 S. Ct. at 1094.) As we will explain, we deem the evidence was sufficient here to meet this standard.

Thus, the issue before the trier of fact was whether, more likely than not, the University’s stated reasons for firing petitioner were a pretext for a racially motivated discharge. (McDonnell Douglas, 411 U.S. at 805, 36 L. Ed. 2d at 679, 93 S. Ct. at 1826.) “This [issue] merges with [the employee’s] ultimate burden of persuading the trier of fact that the employer unlawfully discriminated against [the employee]. [Citation.] This ultimate burden remains at all times with [the employee].” (Zaderaka, 131 Ill. 2d at 179, 545 N.E.2d at 687.) The employee may establish pretext in one of two ways: “[Esther directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Burdine, 450 U.S. at 256, 67 L. Ed. 2d at 217, 101 S. Ct. at 1095.

Before we discuss the evidence in this case, we must also discuss the standard of review. As we have mentioned in the past, the Act has an unusual provision with regard to standards of review. (See Sherman v. Human Rights Comm’n (1990), 206 Ill. App. 3d 374, 385, 564 N.E.2d 203, 211; Carver Lumber Co. v. Human Rights Comm’n (1987), 162 Ill. App. 3d 419, 424, 515 N.E.2d 417, 421.) Section 8A — 103(E)(2) of the Act directs that the “Commission shall adopt the hearing officer’s findings of fact if they are not contrary to the manifest weight of the evidence.” (Ill. Rev. Stat. 1991, ch. 68, par. 8A — 103(E)(2).) However, that is of no great significance to us because we are directed to sustain the findings of the Commission unless its findings are contrary to the manifest weight of the evidence. (Ill. Rev. Stat. 1991, ch. 68, par. 8 — 111(A)(2).) Thus, here where the findings of the two bodies differ, we give deference to the findings of the Commission.

The following facts were undisputed: (1) petitioner, a black female, was hired by the University on October 1, 1984, as a building service worker in the learner program; (2) the learner program is a six-month training program where a new employee is introduced to the campus and the general nature of the work, which is general cleaning and housekeeping; (3) at the end of the learner program, the supervisor determines whether the employee is ready to be certified for a regular position, and if so, the employee must complete a six-month probationary period; (4) while in the learner program, petitioner’s training supervisor was Gordon Brady; (5) on March 15, 1985, while in the learner program, Davis received a written form titled “Reasons for Oral Warning,” which essentially stated that her attendance was unsatisfactory because she had used “sick leave on 5 occasions in last 3V2 months”; and (6) on March 21, 1985, the University issued a written document certifying petitioner as a probationary employee, as recommended on March 6, 1985, by Brady, Charles Gose, petitioner’s foreman, and Phil Keefauver, petitioner’s supervisor, upon completion of the learner program by petitioner.

The following facts were also undisputed: (1) petitioner worked as a probationary employee under the supervision of Gose until she was laid off on May 10, 1985; (2) on July 16, 1985, petitioner was called by the University to continue as a probationary employee and was assigned to the 11 p.m. to 7 a.m. shift at the Milner Library under the supervision of Herman Kruse; (3) on August 27, 1985, petitioner received another written form titled “Reasons for Oral Warning,” which was prepared by Kruse, and under the category of “Unsatisfactory Performance” Kruse had checked (a) “Poor productivity,” (b) “Excessive time on assignments,” and (c) “Failure to follow oral instructions,” and in addition Kruse wrote the following remarks:

“[Petitioner] is sarcastic & insubordinate at times. She does not listen or follow instructions well. Her attitude needs to improve^] Quality of work is good but she is slow & needs to do more: Her attendance is not acceptable”;

(4) on August 28, 1985, Aubrey McCannell, the superintendent of building services, discharged petitioner; and (5) on September 18, 1985, the University issued petitioner a written “Dismissal Notice During Probationary Period,” which stated the reasons for her discharge as follows:

“Failure to demonstrate the ability and the qualifications necessary to furnish satisfactory service. Civil Service Rule 11.7(a). Unsatisfactory work performance: (1) poor productivity; (2) unsatisfactory attendance.”

McCannell testified that he decided to terminate petitioner’s employment upon the basis of a written “three-month” evaluation of petitioner prepared by Kruse. He admitted that Kruse had petitioner under his supervision for only five weeks and did not know whether Kruse had spoken to Gose, petitioner’s former supervisor, prior to making the report. He also stated Kruse had told him he, Kruse, was having difficulty getting petitioner to quicken her pace of work. McCannell also mentioned that Brady had indicated to him that petitioner should either be transferred from where she was working or discharged.

Brady testified that (1) he recommended petitioner become a probationary employee; (2) this did not necessarily mean she was proficient in her work but that she had the ability to go ahead and learn; (3) while employees are in the learning phase of their work, they are not told how fast they should work; (4) emphasis is placed on employees being thorough and completing their work during working hours; (5) he was unaware of petitioner having any problems prior to her layoff; (6) shortly after petitioner started working under Kruse, Kruse talked to Brady about petitioner’s “attitudes and things on the job”; (7) Kruse never mentioned anything to him about discharging petitioner; (8) he denied that Kruse wanted to “get rid” of petitioner because she was a black female; (9) petitioner never complained to him about any remark from Kruse regarding black employees hired through the learner program; and (10) he recommended to McCannell that petitioner be fired because she did not follow instructions.

Brady also testified that (1) he never told petitioner he was recommending a discharge nor did he give her an oral warning; (2) he was aware of petitioner’s attitude problems and she had told him this arose because she was a single parent; (3) he considered that petitioner had good reason for her attendance problem so he recommended she be certified as a probationary employee; (4) petitioner had spoken to him about her lack of speed and that her co-workers were becoming displeased with having to help her; and (5) in his opinion, absences of petitioner during her probationary period should not have been considered in the three-month evaluation upon which her dismissal was based, nor should a vacation day or a day when petitioner failed to properly punch the time clock if that clock was, in fact, out of order at that time. The three-month evaluation had indicated that petitioner had six absences during her probation period and subsequent work. In Brady’s opinion only one of those days should have been considered, and that one day would not constitute an unsatisfactory attendance record.

Petitioner had testified Kruse had told her that the only reason she was hired was because she was a black female and accused her of feeling that her co-workers were a “bunch of jerks.” She also testified that Kruse had .told a joke in her presence which was demeaning both as to race and gender. Kruse testified denying all of those charges. Petitioner also stated that the University had a rule that those working together go from floor to floor and quit at the same time. However, on one occasion Kruse instructed another employee to go to the next floor to start work there when petitioner had not completed her work on the floor on which they had been working. When petitioner completed the work and was putting her equipment away, Kruse turned off the lights, which upset her. Apparently she talked to Brady the next day and he then talked to Kruse. Petitioner testified that Kruse questioned her about speaking to Brady and talked harshly to her, indicating she had a “bad attitude.” Kruse admitted he had this conversation with petitioner but denied yelling at or being angry with her.

Kruse also testified that (1) he told Brady that petitioner would not listen or follow instructions; (2) he thought petitioner worked too slowly; (3) usually employees learn to work rapidly in two or three weeks; (4) he had spoken to petitioner about his complaints before giving her a warning letter; (4) he had prepared the three-month evaluation letter before he gave her the warning letter; (5) he was instructed to make the evaluation; (6) no one else helped him prepare the evaluation; and (7) he felt petitioner was sarcastic and insubordinate but denied he had a personality problem with her. The record indicates that in making his evaluation, Kruse did not deem petitioner’s absences as being unacceptable.

We need not recite the testimony of petitioner in detail because, to the extent that it contradicts that of the other witnesses, the Commission could have disregarded it. As to whether petitioner was able to keep up with the work, .a co-worker, Carol Jean Stout, testified she had worked with petitioner and observed that petitioner was not one of the faster workers but that petitioner worked as rapidly as she did. On the other hand, another co-worker, Don Fitzgerald, testified that as time went on petitioner became unhappy with her shift, said she was tired, and steadily lowered the speed of her work.

The Commission could reasonably conclude from the evidence that discussion concerning petitioner’s work had been going on from soon after she started working under the supervision of Kruse. However, her discharge took place very rapidly and without opportunity being given to her to correct deficiencies in her work. The evidence indicated that the document upon which Kruse made his evaluation had been amended to make a statement concerning petitioner’s absences. Furthermore, the emphasis of the University on the absences of petitioner seems quite spurious in view of the record. The foregoing factors were evidence from which the Commission could have inferred a discriminatory motive on the part of the University (see Brown v. Trustees of Boston University (1st Cir. 1989), 891 F.2d 337, 346; Lowry v. Whitaker Cable Corp. (W.D. Mo. 1972), 348 F. Supp. 202, 210), but the Commission did not make such an inference.

As we have indicated, the parties agree petitioner made a prima facie case. However, McCannell sufficiently articulated as a reason for firing her that her productivity was not good. Despite the emphasis placed by the Commission. on petitioner’s absences, even if the evidence did not support that ground as a sufficient stated reason for discharge, the evidence in regard to productivity carried the day in countering the prima facie case. The evidence of petitioner’s perceived poor attitude and poor productivity also sufficiently supported the determination of the Commission that the University did not discriminate in violation of the Act. That determination was not contrary to the manifest weight of the evidence.

Accordingly, we affirm.

Affirmed.

STEIGMANN, P.J., and COOK, J., concur.


author: JUSTICE COOK

text:
      In re MARRIAGE OF CYNTHIA L. DECKARD, Petitioner-Appellee, and STEPHEN BRUCE DECKARD, Respondent-Appellant.
    Fourth District
    No. 4 — 92—0854
    Opinion filed June 29, 1993.

      Fuller, Hopp, McCarthy, Quigg & Byers, of Decatur (Glenn O. Fuller, of counsel), for appellant.
    Wayne L. Bickes and Kurt B. Bickes, both of Bickes & Bickes, Ltd., of Decatur, for appellee.
   JUSTICE COOK

delivered the opinion of the court:

Cynthia L. Deckard (Cynthia) petitioned for leave to remove minor children from the State, pursuant to section 609(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 609(a)). The trial court granted the petition on August 13, 1992; since that time Cynthia and the children have resided in Georgia. Respondent Stephen Bruce Deckard (Stephen) appeals. We affirm.

The parties have two children, Shaun, born October 30, 1977, and Christopher, born January 4, 1982. A judgment dissolving the parties’ marriage was entered August 7, 1987. The judgment adopted an oral marital settlement agreement reached by the parties, and awarded joint custody, with Cynthia to have physical custody during the school year, Stephen to have physical custody during the summer, and each to have visitation while the other had physical custody. Both parties have remarried.

Cynthia testified she married Danny Lee Davis (Danny) June 18, 1992. Danny was working in Georgia at the time of the hearing and did not testify. The Davises have a daughter, Sara, born in 1988. Shaun and Christopher have a close relationship with Sara, and a good relationship with Danny. While Danny lived in Decatur, he worked as a carpenter for Kelly Construction Company, but he was laid off' in 1991. After the layoff Danny was unable to find employment in the Decatur area, other than odd jobs. His unemployment benefits eventually ran out. In addition to his employment with Kelly Construction, Danny had done carpentry work in Decatur for a contractor friend, Bill Long, who in March 1992 relocated his business to Gainesville, Georgia. Danny had lived in Gainesville before he met Cynthia. In May 1992 Long offered Danny full-time work in Gaines-ville. Danny declined, stating he would try to stick it out in Decatur a little longer. In July 1992 Long again offered Danny work in Gaines-ville, and this time Danny accepted. Danny earns $12 per hour in Gainesville; he previously earned $11 per hour working for Kelly Construction in Decatur.

Cynthia gave up working as a hairdresser after Sara was born, because of an arthritic condition in her hands. She received public aid for about a year. She worked at Cub Foods in 1989, but gave up that work when she was transferred to a night shift. Since that time Cynthia has sold crafts at craft shows, clearing approximately $3,000 per year. She has not had a job offer in Georgia, but has a job possibility through a friend. She has visited the schools the children would be attending, and collected the documents necessary for the children to enroll. Danny has rented a home in the Gainesville area.

Stephen testified he has two stepsons, ages 14 and 17, by his present marriage, and his stepsons have a close relationship with his sons. Stephen has regularly paid child support and exercised visitation. He opposes the move because it would result in his not seeing his sons as often. Stephen loves his sons, and regularly takes them hunting, fishing, and camping. These activities take place in the spring and fall, as well as the summer. Shaun and Christopher have many relatives in the Decatur area, but none other than the Davises in Georgia. Stephen is concerned that Christopher is shy and lacks self-confidence. Stephen would like to monitor that situation, but cannot do so if the boys move to Georgia.

The trial court entered a written order in which it made extensive findings. Among those findings was that the standard of living for Cynthia and the boys had deteriorated because of Danny’s unemployment. The trial court also took judicial notice that Decatur had one of the highest unemployment rates in the State of Illinois. The trial court felt it was impossible for the Davises to maintain two residences, one in Georgia and one in Illinois. The trial court found that it would be best to keep Shaun, Christopher, and Sara together, that it was in the best interests of the boys that they remained with Cynthia, and that Cynthia should be granted leave for the move. The trial court awarded visitation so that the children would continue to be with Stephen during the entire summer vacation (an expansion of the previous order), and gave Stephen the entire Christmas and spring vacations as well. Cynthia was to be responsible for the children’s transportation at the summer and Christmas vacations, but Stephen was to be responsible for transportation at the spring vacation. It is not clear whether the order terminated the previous order awarding joint custody, but Stephen’s time with Shaun and Christopher during the summers was now described as visitation, rather than physical custody.

Under section 609(a) of the Act, the burden is on the custodial parent to show that removal of the child from the State is in the best interests of the child. (In re Marriage of Davis (1992), 229 Ill. App. 3d 653, 660, 594 N.E.2d 734, 739.) A trial court’s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 328, 518 N.E.2d 1041, 1046; Davis, 229 Ill. App. 3d at 660, 594 N.E.2d at 739.) A mere desire to move to another State, without more, is insufficient to show the move is in the best interest of the child, but a court should not confine its consideration only to the direct benefits a child may receive from removal. Davis, 229 Ill. App. 3d at 661, 594 N.E.2d at 740; In re Marriage of Carlson.(1991), 216 Ill. App. 3d 1077, 1081-82, 576 N.E.2d 578, 580-81 (enhancement of general quality of life of mother); In re Marriage of Creedon (1993), 245 Ill. App. 3d 531, 535.

The supreme court has refused to take a one-sided approach to these questions, and has indicated that each determination must be made on a case-by-case basis. (Eckert, 119 Ill. 2d at 326, 518 N.E.2d at 1045; see Creedon, 245 Ill. App. 3d at 534-35.) In Eckert the supreme court stated:

“There are *** several factors which may aid a trial court in determining the best interests of the child. The court should consider the proposed move in terms of likelihood for enhancing the general quality of life for both the custodial parent and the children. [Citations.] The court should also consider the motives of the custodial parent in seeking the move to determine whether the removal is merely a ruse intended to defeat or frustrate visitation. [Citations.] Similarly, the court should consider the motives of the noncustodial parent in resisting the removal. [Citations.] It is also in the .best interests of a child to have a healthy and close relationship with both parents, as well as other family members. Therefore, the visitation rights of the noncustodial parent should be carefully considered. [Citations.] Another factor is whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed.” Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.

_

Stephen argues Cynthia’s evidence was not sufficient to prove removal of the boys was in their best interests, in part because they were not called as witnesses or examined in camera. Cynthia responds the boys were in the physical custody of Stephen at the time of the hearing, which was held during the summer, and he chose not to bring them to the hearing. Cynthia also points out that Stephen objected, on the basis of hearsay, to things which were said at a meeting where she and Stephen discussed the matter "with the boys. Conscientious parents may choose not to subject their children to testifying, either in court or in camera (see Creedon, 245 Ill. App. 3d at 534) and should not be forced to do so where such testimony would be unnecessary. If the boys’ testimony would have supported his position, Stephen could have called them as easily as could Cynthia. Her failure to call them does not weigh against her. (Myre v. Kroger Co. (1988), 176 Ill. App. 3d 160, 167, 530 N.E.2d 1122, 1126.) Although not an issue on this appeal, we note that children’s statements as to whom they prefer as a custodian, or where they desire to live, are admissible under the state-of-mind exception to the hearsay rule. In re Marriage of Gustafson (1989), 187 Ill. App. 3d 551, 556, 543 N.E.2d 575, 578; In re Marriage of Stuckert (1985), 138 Ill. App. 3d 788, 790-791, 486 N.E.2d 395, 396-97; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §803.4, at 631 (5th ed. 1990).

Stephen complains Danny did not testify and further that it is not clear that employment was not available for Danny in the Decatur area. Stephen objected on the basis of hearsay to Cynthia’s testimony about Danny receiving a job offer from Long, and what Long said to Danny in a telephone conversation on July 16 or 17. He also objected, on the basis of foundation for her knowledge, to Cynthia’s answer to the question of what did she know about jobs available to her in Georgia. The trial court overruled both objections, and neither ruling is raised as an issue on appeal. These issues are important in leave to remove cases because their resolution may determine whether a party is required to go to the expense of producing witnesses from a faraway State. (See Davis, 229 Ill. App. 3d at 662, 594 N.E.2d at 740 (letters from prospective employers not objected to); In re Marriage of Shelton (1991), 217 Ill. App. 3d 26, 37-40, 576 N.E.2d at 862, 869-71 (Chapman, J., dissenting) (hearsay testimony that petitioner’s new husband was employed in Florida, had been unable to find work in Illinois, had been injured, and that teachers’ salaries in Florida are $24,000).) The issue may be one of personal knowledge, rather than hearsay (M. Graham, Cleary & Graham’s Handbook of Illinois Evidence §602.1, at 301 (5th ed. 1990)), and it is possible that a wife may have personal knowledge of her husband’s job offers, salaries in another State, and the like. Stephen has not shown otherwise.

Stephen also complains there was no description of the Davis home in Georgia, no testimony that the boys had ever visited the area, and no testimony about physical facilities or curriculum of the schools in Georgia. There was testimony the home was located in the country, about 10 miles from Gainesville, in a hilly area, near mountains and three miles from a recreational lake. Cynthia testified she had visited the schools, but she was not asked whether she had visited the home. The trial court was entitled to conclude, based on the testimony, that there was not much difference between the home and schools in Georgia and those in Decatur. Stephen may understandably have been reluctant to ask Cynthia about those things on cross-examination, but he cannot, on appeal, equate slight testimony on Cynthia’s part with testimony in his favor. The major emphasis of Stephen’s argument is not that the trial court’s decision is contrary to the manifest weight of the evidence, but that there was not sufficient evidence upon which a decision could be based. We reject that argument. Cynthia presented some evidence on each element of her case, and if Stephen disagreed with that evidence he was required to present his own evidence in rebuttal. (See Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 154-55, 407 N.E.2d 43, 45.) We would reach the same result even if Cynthia’s testimony were hearsay. Hearsay evidence, if admitted without objection, is to be considered and given its natural probative effect. (People v. Collins (1985), 106 Ill. 2d 237, 263, 478 N.E.2d 267, 278.) The same is true where hearsay is objected to, but the objection is not preserved on appeal.

The trial court found the Davises could not afford to maintain two homes, and that the boys’ quality of life would be improved with Danny employed. Stephen argues Danny’s recent employment history is very unstable, and that if “his past employment history is any indication, it will not be long until he returns to Decatur to seek yet another job.” Stephen suggests that Cynthia either remain in Georgia without Shaun and Christopher (but with Sara), or return to Decatur with the boys. In response to the trial court’s finding that the boys had undergone economic hardship first because of Danny’s unemployment, and then because of the expenses of two households, Stephen suggests Cynthia should seek additional employment. The trial court found, however, that Cynthia has been unable to work as a hair stylist because of her arthritis. Cynthia testified that working as a grocery clerk would be a major impediment to the time she could spend with Shaun and Christopher. The trial court might logically prefer an arrangement where Cynthia could be at home with her children to one where she could not. Davis, 229 Ill. App. 3d at 662-63, 594 N.E.2d at 740; Shelton, 217 Ill. App. 3d at 34, 576 N.E.2d at 868.

It is important to note Stephen concedes that Cynthia is not acting on the basis of any improper motive in seeking removal.

It is significant that most of Stephen’s activities with his sons are outdoor activities, which can be well accommodated during the summer. A large block of visitation in the summer may not always be a satisfactory substitute for shorter, more regular periods of visitation. Because Stephen already had summer visitation in this case, it was possible to continue that visitation after the move to Georgia and in fact to expand it. In addition Stephen was given the entire Christmas and spring vacations, whereas he had only half of those periods before. Stephen complains that the number of his visitation days has been reduced by 29%, but the fact the number of days of visitation has been reduced is not dispositive. What is important is “whether, in a given case, a realistic and reasonable visitation schedule can be reached if the move is allowed.” Eckert, 119 Ill. 2d at 327, 518 N.E.2d at 1045-46.

Even if we were to give more weight to the. number of visitation days, we have difficulty understanding Stephen’s argument that his days (or overnights) have been reduced from 138 to 98. Total overnights under the original order appear to have been about 108 nights (59 in summer, 39 on weekends, 10 during vacations). Total overnights under the new order would appear to be about 112 nights (92 in summer, 20 during vacations). The extensive visitation provided by the new order also allows continued contact between the boys and their relatives in Decatur. The extensive visitation would give Stephen some opportunity to monitor Christopher’s situation, and the trial court could properly have found that Cynthia could adequately deal with any problem. No visitation schedule is perfect. No visitation schedule can approximate the relationship which exists between a father, mother, and children in an intact marriage, but this schedule does about as much as can be hoped for.

In In re Marriage of Berk (1991), 215 Ill. App. 3d 459, 463-64, 574 N.E.2d 1364, 1368, the custodial parent told the trial court that she would move to Canada with her new husband in any event, and a denial of her petition for leave to remove would accordingly result in a change of custody, despite the strong preference against modification of custody expressed in section 610 of the Act. (Ill. Rev. Stat. 1991, ch. 40, par. 610.) The appellate court responded:

“Custodial parents and their spouses must remember that they do not make decisions in a vacuum. Decisions must be made in an environment in which the best interests of the children are paramount. This State’s courts are in place to protect the children’s interests and will not be intimidated or threatened by ‘irrevocable’ actions of parents. Karen has made her choice to move to Humboldt. She must now live with the consequences of that decision. The presumption of section 610 of the Act is not applicable here. The preservation of the existing family unit is an element to be considered in determining the best interests of the children, but it is only one of many elements. We do not conclude that the court’s decision was against the manifest weight of the evidence in light of this argument.” (Berk, 215 Ill. App. 3d at 465, 574 N.E.2d at 1368.)

Based on Berk, Stephen argues that Cynthia “has chosen to become involved with a man who feels free to move about the country looking for his next temporary job, and [Cynthia] herself has chosen to be taken care of by her new husband, rather than advancing her own education and employment opportunities.” It is certainly true that courts should not be intimidated by “irrevocable” actions of parents, but as Berk recognizes, preservation of the existing custodial arrangement is entitled to some consideration. We disagree with any implication that a noncustodial parent is free to marry whomever he wants to, but a custodial parent is not. (See Creedon, 245 Ill. App. 3d at 535-36.) Our decision today is not inconsistent with the second district’s decision in Berk. First, Berk affirmed the decision of the trial court, as we do here. Also, the move there was not based on economic necessity, the move was to another country, the contemplated visitation was much less than here, and the court in Berk may have been concerned that the custodian was not that familiar with her intended spouse — or may have factored in the custodial parent’s attitude, in light of the weight it attached to other testimony before it.

Stephen argues that in Davis this court reversed a trial court order granting leave to remove a child to Georgia, and that decision should be followed here. In Davis, however, the father had custody of two minor boys, the wife had custody of the minor daughter, and the siblings would have been separated by the move. A custody order which separates children is usually not in their best interests. (In re Marriage of Slavenas (1985), 139 Ill. App. 3d 581, 587, 487 N.E.2d 739, 742.) Here the boys will be separated from their half-sister if they are not allowed to move. If they are allowed to move, they will be separated from Stephen’s stepsons, but the trial court could have found the boys’ relationship with their half-sister was closer than that with Stephen’s stepsons. Also in Davis there was no showing the custodial parent’s boyfriend was unable to find suitable employment locally, the visitation afforded by the trial court’s order was substantially less, and the record did not support the claim of enhanced income by the move. Although not considered significant for purposes of the Davis decision, the custodian there at one point had denied visitation to the noncustodian.

Here there was more than a mere desire for Cynthia to be with her husband in Georgia. The trial court could properly have found there was a legitimate economic reason for the move, that Cynthia did not act on the basis of any improper motive, and that reasonable visitation was provided. The trial court’s decision was not contrary to the manifest weight of the evidence.

Affirmed.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE LABEL PRINTERS, Plaintiff-Appellant, v. JOHN C. PFLUG, Defendant-Appellee.
    Second District
    No. 2 — 92—0957
    Opinion filed July 9, 1993.

      David J. Chroust and Susan B. Tatnall, both of Drendel, Schanlaber, Horwitz & Tatnall, of Aurora, for appellant.
    James F. Mahoney, of Griffith & Jacobson, of Chicago, for appellee.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Plaintiff, The Label Printers, a partnership, appeals the order of the circuit court granting attorney fees to defendant, John C. Pflug, as damages for a preliminary injunction which was reversed on appeal. The issue on appeal is whether a defendant who is not obliged to pay attorney fees may seek compensation for the fees as damages pursuant to section 11 — 110 of the Code of Civil Procedure (735 ILCS 5/11-110 (West 1992)).

The facts underlying this appeal were supplied in our previous opinion regarding this cause. (The Label Printers v. Pflug (1991), 206 Ill. App. 3d 483.) Plaintiff sought a preliminary injunction to enforce a restrictive covenant in its contract with defendant. Defendant was a former employee who started working with National Data Label (NDL) in competition with plaintiff. In a lengthy opinion, this court determined that during defendant’s employment with plaintiff he did not acquire any confidential information which would give plaintiff a protectable interest and thus the issuance of the preliminary injunction was against the manifest weight of the evidence. We reversed the order granting the preliminary injunction. 206 Ill. App. 3d at 497.

Defendant then filed a petition before the circuit court to seek $15,771.21 in attorney fees for procuring the reversal of the order.

During the hearing on defendant’s petition for fees, defense counsel introduced a seven-page daily breakdown of his fees. He had an attorney familiar with appellate law testify that the fees were reasonable. However, the attorney witness testified that a 60-to 90-minute period was a reasonable time for completing a Supreme Court Rule 303(g) (134 Ill. 2d R. 303(g)) docketing form; defense counsel billed three hours over two days for filling out the form. The attorney witness also admitted that he could not tell whether some particular entries were reasonable because defense counsel frequently lumped several tasks into five- or six-hour totals.

Defense counsel’s records show that he billed the matter to “NDL/Pflug.” Defense counsel admitted that he billed the matter to NDL and that NDL had paid the bill in full. NDL was paying for defense counsel’s expert witness. Defendant produced no evidence of a subrogation agreement, and NDL did not appear as a party to the action.

The trial court granted defendant’s petition for fees. The trial court then granted plaintiff’s motion to dismiss the remaining action in which it sought a permanent injunction. Plaintiff filed a timely notice of appeal.

Plaintiff raises the following issues: (1) whether defendant failed to establish a prima facie case that he suffered damages as a result of the preliminary injunction; (2) whether the court could grant damages which were suffered by a person who was not a party to the action; (3) whether defendant proved the fees were reasonable when the items performed were lumped together in the billing statement; and (4) whether defendant proved his fees were reasonable and necessary.

Article XI of the Code of Civil Procedure permits the circuit court to enter a preliminary injunction prior to the entry of a final judgment of a permanent injunction. (735 ILCS 5/11 — 101 et seq. (West 1992).) However, section 11 — 110 provides:

“In all cases where a temporary restraining order or a preliminary injunction is dissolved by the circuit court or by the reviewing court, the circuit court, after the dissolution of the temporary restraining order or preliminary injunction, and before finally disposing of the action shall, upon the party claiming damages by reason of such temporary restraining order or preliminary injunction, filing a petition under oath setting forth the nature and amount of damages suffered, determine and enter judgment in favor of the party who was injured by such temporary restraining order or preliminary injunction for the damages which the party suffered as a result thereof, which judgment may be enforced as other judgments for the payment of money. However, a failure so to assess damages as hereinabove set out shall not operate as a bar to an action upon the injunction bond.” 735 ILCS 5/11-110 (West 1992).

Plaintiff contends that because defendant neither paid nor is liable for attorney fees, he has suffered no damages and thus cannot collect fees pursuant to section 11 — 110.

Ordinarily, each party to a litigation is responsible for his own attorney fees. However, a court may shift the fees if a statute authorizes the court to order the losing party to pay the prevailing party’s fees. (State Farm Fire & Casualty Co. v. Miller Electric Co. (1992), 231 Ill. App. 3d 355, 359.) The statutory provision must be strictly construed. Carson Pirie Scott & Co. v. Department of Employment Security (1989), 131 Ill. 2d 23, 49.

Here, section 11 — 110 does not authorize the payment of fees. Rather, it allows the party aggrieved by the wrongful entry of a preliminary injunction to receive the damages he suffered as a result of the entry of the preliminary injunction. Several Illinois cases have affirmed the awarding of attorney fees as such damages, and plaintiff does not contest the general principle that the fees necessary to obtain a dissolution of a preliminary injunction may be included in the damages resulting from the issuance of the injunction. However, the provision in section 11 — 110 must be strictly construed. (Stocker Hinge Manufacturing Co. v. Darnell Industries, Inc. (1983), 94 Ill. 2d 535, 543; Emerson Electric Co. v. Sherman (1986), 150 Ill. App. 3d 832, 835.) Only those fees arising from actions seeking reversal or dissolution of the preliminary injunction are recoverable. If the preliminary injunction dissolves on its own terms or as a result of a final judgment, the defendant is not entitled to damages or fees. (Stocker Hinge, 94 Ill. 2d at 543; House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 50.) A temporary injunction may be wrongfully issued although the plaintiff prevails in his suit on the merits, and the temporary injunction may rightfully issue although the plaintiff does not sustain his suit on the merits. Schien v. City of Virden (1955), 5 Ill. 2d 494, 503.

The court must discriminate between those services rendered relative to the dissolution and those rendered in the cause generally. (House of Vision, Inc. v. Hiyane (1969), 42 Ill. 2d 45, 52; Kolin v. Leitch (1953), 351 Ill. App. 66, 72.) The defendant may recover damages for attorney fees if he has paid the fee or has become liable to pay the fees. (Lambert v. Alcorn (1893), 144 Ill. 313, 329.) However, defendant has produced no authority to suggest that a defendant suffers damages when his fees are gratuitously paid by a third party.

An individual is not entitled to recover for the value of services that he has obtained without expense, obligation, or liability. (Peterson v. Lou Bachrodt Chevrolet Co. (1979), 76 Ill. 2d 353, 362.) Because defendant’s representation was provided as a gratuity, he cannot recover the fees as damages. (76 Ill. 2d at 362.) Since the injunction statute provides only for the recovery of damages and does not provide for the shifting of fees, defendant cannot recover the fees.

Defendant argues that we should apply the collateral source rule. Under this rule, the amount recoverable for tortious personal injuries is not decreased when the injured party has been wholly or partly indemnified for the loss by proceeds from insurance where the tort-feasor did not pay the insurance premiums. This rule is justified on the basis that the wrongdoer should not benefit from the expenditures made by the injured party in procuring the coverage. Peterson, 76 Ill. 2d at 362-63.

Defendant notes that the rule has been applied in many situations where parties whose fees were paid by another party were awarded fees based on statutory provisions. (Hernes v. Hickory Hills (N.D. Ill. 1981), 517 F. Supp. 592, 593 (defendant defended by an insurance company; statute provided for shifting of fees); Winslow v. Kansas Board of State Fair Managers (D. Kan. 1981), 512 F. Supp. 576, 578 (fees shifted where plaintiff funded by a third party); see also Ellis v. Cassidy (9th Cir. 1980), 625 F.2d 227; Gunther v. Iowa State Men’s Reformatory (N.D. Iowa 1979), 466 F. Supp. 367; In re Briggs (E.D. Mich. 1992), 143 Bankr. 438.) In these cases, the courts applied the collateral source rule to avoid letting the liable party escape liability for fees.

However, these cases are inapposite because they deal with statutes which authorize the shifting of fees to the prevailing party. Here, the statute authorizes the awarding of damages for a wrongfully entered injunction. The statute does not shift fees, and defendant has not incurred damages. Similarly, where a party has not incurred the obligation to pay attorney fees because he proceeded pro se, a court cannot award fees even where the statute authorizes the payment of fees. See Hamer v. Lentz (1989), 132 Ill. 2d 49, 58-59; In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 117-18.

Moreover, this situation does not offer the rationale underlying the collateral source rule, which is to prevent the tort-feasor from benefitting from the expenditures made by the injured party. (Peterson, 76 Ill. 2d at 362-63.) Here, there is no insurance involved but only a business decision by defendant’s employer to retain and protect a productive salesman. While defendant suggests that plaintiff would get a windfall because he would not have to make a payment he ordinarily would pay, this argument misconstrues the purpose of damages. Section 11 — 110 allows the payment of damages only, and the purpose of compensatory damages is to compensate, not to punish, a defendant or to bestow a windfall (Wilson v. Hoffman Group, Inc. (1989), 131 Ill. 2d 308, 320-21; Peterson, 76 Ill. 2d at 363).

Nothing defendant states convinces us to further expand the exceptions to the American rule by which each party bears his own costs of litigation. There is no common-law principle allowing attorney fees as costs; in the absence of a legislative enactment, the American rule provides that the successful litigant is not entitled to recover fees and the ordinary expenses of litigation. (House of Vision, 42 Ill. 2d at 51-52; State Farm Fire & Casualty Co. v. Miller Electric Co. (1992), 231 Ill. App. 3d 355, 359; see also Diamond v. General Telephone Co. (1991), 211 Ill. App. 3d 37, 51-52.) Only those items designated by the statute may be allowed by the court. (Miller Electric, 231 Ill. App. 3d at 359.) While defendant asks for compensation for a “wrongfully” entered injunction, here, plaintiff was exercising its right to pursue redress in the courts. As noted by the parties in their discussion of the need for extensive research to prepare briefs concerning covenants not to compete, this area of the law is complicated and fact specific, and the results are generally unpredictable prior to trial. (See L SBZ, Inc. v. Brokis (1992), 237 Ill. App. 3d 415.) The facts in this cause are unlike those of Boltz v. Estate of Bryant (1988), 175 Ill. App. 3d 1056, 1066, and Hawthorne Bank v. Village of Glen Ellyn (1987), 154 Ill. App. 3d 661, 670-71, where injunctive relief was inappropriate. Moreover, here, the issue on which the preliminary injunction was reversed related to the ultimate issue underlying the cause, whether plaintiff had a protectable interest. (Label Printers, 206 Ill. App. 3d at 497.) Thus, we find no reason to deviate from the American rule and allow defendant to collect attorney fees as damages when he incurred no liability for the fees.

We need not address plaintiff’s other arguments concerning the excessive fees billed for completing the docketing statement or the other items.

For the above reasons, the order of the circuit court is reversed.

Reversed.

WOODWARD and DOYLE, JJ., concur.