author: JUSTICE McCULLOUGH JUSTICE COOK,

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HIGINIO RAMIREZ, JR., Defendant-Appellant.
    Fourth District
    No. 4 — 92—0498
    Opinion filed March 25, 1993.

      COOK, J., dissenting.
    Daniel D. Yuhas and Gary R. Peterson, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Charles G. Reynard, State’s Attorney, of Bloomington (Norbert J. Goet-ten, Robert J. Biderman, and Jeffrey K. Davison, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

In the circuit court of McLean County, the pro se post-conviction petition of defendant Higinio Ramirez was dismissed as frivolous and patently without merit. (111. Rev. Stat. 1991, ch. 38, par. 122— 2.1(aX2).) Defendant appeals, arguing that there were sufficient factual allegations in the petition relating to the constitutional issues of (1) the voluntariness of defendant’s guilty plea and the right to the effective assistance of counsel at that stage in the proceedings, and (2) that the attorney representing defendant in his direct appeal labored under a conflict of interest.

Defendant had pleaded guilty to unlawful possession of more than 500 grams of cannabis with the intent to deliver, a Class 2 felony. (111. Rev. Stat. 1989, ch. BG1^, par. 705(e).) As a result of plea negotiations, the State dismissed charges of the unlawful possession of more than 500 grams of cannabis, cannabis trafficking, and armed violence based on the possession of more than 500 grams of cannabis while armed with a Browning .38-caliber semiautomatic handgun. (111. Rev. Stat. 1989, ch. 56V2, pars. 704(e), 705.1(a); ch. 38, par. 33A — 2.) Defendant was sentenced to serve a term of imprisonment of five years and was fined $30,000, the street value of the cannabis. On direct appeal, the only issue raised concerned whether the sentence resulted from an abuse of discretion. After due consideration of the arguments presented and the cited authority, this court affirmed defendant’s conviction in an unpublished order. People v. Ramirez (4th Dist. 1992), No. 4 — 91—0524 (unpublished order under Supreme Court Rule 23).

In his petition for post-conviction relief, defendant includes the following allegations on which he relies in this appeal:

“[(1)] That his attorney [Michael O’Rourke] rendered ineffective assistance at trial by promising the defendant that he had a deal wherein the Judge had agreed to sentence defendant to a two year term of probation.
***
[(3)] That appellate counsel rendered ineffective assistance of counsel in that he filed appeal on grounds unknown to defendant and without consent of defendant.
[(4)] Defendant maintains that his guilty plea was coerced by a false promise from attorney O’Rourke.”

In support of his allegations, the defendant filed an affidavit in which he averred as follows:

“Mr. O’Rourke talked me into a guilty plea by telling me that he was good friends with the judge and that he had worked out a deal so that I would get a two year term of probation. I would not have plead [sic] guilty to a crime that I did not commit except for the coercion of my attorney. His promise of two years[’] probation looked like it would make it possible for me to take a lot of financial pressure off my family.
Since my incarceration it has been apparent that Mr. O’Rourke cheated me [out] of proper representation in this case and since then has also cheated my friend out of $5,000.00 that she was told he must have in order for me to be able to appeal my case. ([H]er affidavit is attached[.])
* * *
I have written to Mr. O’Rourke and tried to call him on many occasions since my incarceration. He refuses to speak to me on the telephone and has not answered my letters. As far as I have been able to determine he has done nothing on my appeal other than cheat Ms. Déla [sic] Fuente out of the fee.”

The petition was also accompanied by the affidavit of Emma De La Fuente in which she stated:

“I spoke with Mr. Higinio Ramirez at the McLean County Jail on May 1st or 2nd of 1991. We discussed at that time his recent conviction and his desire to appeal that conviction.
Mr. Ramirez asked me to try to get the transcripts, and all other paperwork, including a signed statement by the hitch hiker [sic], admitting that he was the guilty party, from his trail [sic] lawyer, Mr. J. O’Rourke [sic], of Bloomington, Illinois. Mr. Ramirez was very unhappy with the way he was represented by Mr. O’Rourke and wished to have a different attorney for the appeal.
The next day, when I spoke with Mr. O’Rourke, he told me that if an appeal was to be filed, he would be the only one who could do it. I was not able to talk with Mr. Ramirez about this because he had been transferred from the McLean County Jail to the Illinois Department of Corrections. I had no idea where or how to find him.
I do not know anything about the law or procedures in appealing a case, Mr. Ramirez definitely wanted to appeal, and I assumed that the attorney was telling me the truth about being the only one who could file the appeal. Therefore, I gave Mr. O’Rourke a deposit of $1,000 on the $5,000 fee that he demanded. When I returned to Texas I sent the $4,000 balance to Mr. O’Rourke via Mrs. Ramirez’s name.
I have tried innumerable times to contact Mr. O’Rourke since then with no response at all. After talking with Mr. Ramirez, I realized that he was in no way willing to have Mr. O’Rourke represent him again. Though I have tried to convey this message to Mr. O’Rourke and to get his money back there has been no reply by mail, and he refuses to talk to me on the telephone.”

In People v. Dredge (1986), 148 111. App. 3d 911, 913, 500 N.E.2d 445, 446-47, this court stated as follows:

“In determining the particularity with which a pro se petitioner for post-conviction relief must state alleged deprivations of constitutional rights in her petition, we note that such petitioners are often persons of limited education. (See Rodriquez v. United States (1969), 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715; People v. Wilson (1986), 146 111. App. 3d 567.) Therefore, we conclude that in order to withstand dismissal at the first stage of post-conviction proceedings, a petition for post-conviction relief need only contain a simple statement which presents the gist of a claim for relief which is meritorious when considered in view of the record of the trial court proceedings. (See People v. Baugh (1985), 132 111. App. 3d 713, 477 N.E.2d 724.) Requiring pro se petitioners to state their claims in greater detail than this would have the practical effect of depriving many such persons of their right of meaningful access to the courts. (Cf. People v. Wilson (1986), 146 111. App. 3d 567.)”

Nevertheless, a pro se defendant must still plead sufficient facts in the petition for post-conviction relief from which the trial court could find a valid claim of deprivation of a constitutional right. (People v. Lemons (1993), 242 Ill. App. 3d 941, 946.) In order to determine that a defendant received ineffective assistance of counsel in a guilty plea proceeding, defendant must demonstrate that the attorney’s performance fell below an objective standard and that there is a reasonable probability that, without the defense attorney’s diminished performance, the guilty plea would not have been entered. (People v. Jones (1991), 144 Ill. 2d 242, 254, 579 N.E.2d 829, 834.) We note, however, that generally an affirmance of a conviction on appeal has a res judicata effect on all -issues which were or could have been raised on direct appeal. People v. Jones (1988), 174 Ill. App. 3d 794, 797, 529 N.E.2d 66, 68.

Defendant argues that either his guilty plea was involuntary or he was denied the effective assistance of counsel because, according to defendant, defense counsel represented that “a deal” was made with the judge. Defendant’s argument is that we could not expect a defendant who was told that the “fix was in” to tell that to the judge at the time of being admonished in open court at the guilty plea stage of the proceeding. Even were we to accept this argument, it is preposterous that defendant would not have revealed the “betrayal” he would have believed occurred when he was actually given a greater sentence than he expected to receive. Such a revelation by the defendant could have come either at the sentencing hearing or at the hearing on the motion to withdraw the guilty plea. At the hearing on the motion to withdraw the guilty plea, defendant testified he believed he was going to get probation. Although defendant was represented by O’Rourke at the hearing on the motion to withdraw the guilty plea, he did not allege any facts which would have prevented him from telling the judge at that hearing of the alleged statement by his defense counsel. Indeed, the trial judge examined defendant and defendant conceded to the judge that he had signed an agreement which stated that a five-year term of imprisonment was the highest sentence that could be imposed.

Defendant does not argue he was improperly admonished at the guilty plea proceeding, and he has not provided a transcript of the guilty plea proceeding as part of the record for this court to examine. Such a record would help in ascertaining whether defendant’s post-conviction allegations have any merit. Defendant, as appellant, has the responsibility of providing a sufficiently complete record to support his claims, and in the absence thereof, the trial court will be presumed to have acted correctly. (Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959; People v. Kline (1982), 92 Ill. 2d 490, 509, 442 N.E.2d 154, 163; People v. Edwards (1978), 74 Ill. 2d 1, 6-8, 383 N.E.2d 944, 946-47.) The record in this case does not contain a transcript of the guilty plea proceeding or the sentencing hearing. It also does not contain the motion to withdraw the guilty plea or the certificate filed by defense counsel at that time.

In spite of the obvious inadequacies of this record, it is clear defendant had an opportunity to raise the issues concerning the voluntariness of his guilty plea, and in fact did so, complaining that he thought he was going to get probation. He also had the opportunity at that time to complain that his attorney made a misrepresentation to him. Since these issues could and should have been raised earlier, they will not be considered in a post-conviction petition. People v. Barnard (1984), 104 Ill. 2d 218, 228, 470 N.E.2d 1005, 1008; People v. Roberts (1979), 75 Ill. 2d 1, 10, 387 N.E.2d 331, 335; People v. Seidler (1990), 203 Ill. App. 3d 666, 669, 561 N.E.2d 386, 388.

Defendant also alleged that, when O’Rourke pursued the appeal on defendant’s behalf, he was laboring under a conflict of interest. Defendant argues that O’Rourke had an interest in protecting his professional reputation which conflicted with defendant’s interest in advancing a claim of ineffective assistance of counsel. When counsel is called upon to argue his own ineffectiveness, a conflict of interest arises. (People v. Fields (1980), 88 Ill. App. 3d 821, 823-24, 410 N.E.2d 1178, 1180.) However, as already noted, defendant never raised the ineffective assistance argument prior to the direct appeal, although he had the opportunity to and should have done so. Since defendant did not raise the ineffectiveness argument, there was no conflict of interest.

This is not a “catch-22” situation. The failure to raise the alleged statement by counsel at the sentencing hearing or at the hearing on the motion to withdraw the guilty plea gives the distinct impression that this allegation is a recent fabrication presented in an attempt to avoid serving the sentence. In addition, the failure to raise the alleged ineffectiveness prior to the direct appeal removes the purported conflict of interest as defense counsel was never put in the position of having to argue his own ineffectiveness.

For the foregoing reasons, the dismissal by the circuit court of McLean County of defendant’s pro se post-conviction petition as frivolous and patently without merit is affirmed.

Affirmed.

LUND, J., concurs.

JUSTICE COOK,

dissenting:

I respectfully dissent, for the reasons set forth in my dissenting opinion in People v. Lemons (1993), 242 Ill. App. 3d 941, 949. In Lemons the majority held the petition was not specific enough and was not supported by affidavits. The petition here is specific, and supported by affidavits, but is still rejected. I would be willing to support a summary dismissal on the merits where the record clearly refutes what is said in the petition or in the affidavits, but do not see that to be the case here.

An issue which could have been raised at trial is not an appropriate subject of a post-conviction petition. Strict application of the doctrine of res judicata may be relaxed, however, where fundamental fairness so requires. “It would be unreasonable to expect appellate counsel to convincingly raise and argue his own incompetency.” {People v. Gaines (1985), 105 Ill. 2d 79, 91, 473 N.E.2d 868, 875.) If counsel told defendant that defendant would receive probation even though the plea agreement allowed a maximum of five years defendant may have received ineffective assistance of counsel. Defendant may not have believed that he was engaged in any wrongdoing— State’s Attorneys, for example, sometimes agree to a potential maximum sentence which includes prison time, but agree further that they will not argue for prison time. On the second issue, defendant had a right to employ counsel of his choice on appeal, and if it is true counsel told defendant no change was possible on appeal, defendant may have been deprived of that choice.


source: Caselaw Access Project

author: JUSTICE COOK

license: Public Domain

text:
      In re MARRIAGE OF ROBERT HENRY SCHMIDT, Petitioner-Appellant, and LYNN I. SCHMIDT, Respondent-Appellee.
    Fourth District
    No. 4 — 91—0948
    Opinion filed February 18, 1993.
    Rehearing denied April 19, 1993.

      Stratton, Dobbs & Nardulli, of Springfield (Steven Nardulli, of counsel), for appellant.
    Elizabeth W. Anderson, of Morse, Giganti & Appleton, of Springfield (Thomas R Appleton, of counsel), for appellee.
    Donald LoBue, of Springfield, guardian ad litem.

   JUSTICE COOK

delivered the opinion of the court:

Robert Henry Schmidt (Robert) appeals a judgment of the circuit court of Sangamon County dissolving his marriage to Lynn I. Schmidt (Lynn). On appeal, Robert argues (1) the trial court’s distribution of assets was against the manifest weight of the evidence, (2) the trial court erred in ordering him to pay a portion of Lynn’s attorney fees, (3) the trial court should have found dissipation and directed Lynn to reimburse the marital estate for the cash assets she had in her possession at the time of the separation, (4) the trial court erred in its order altering the visitation that existed during the separation, and (5) the trial court erred in ordering him to pay medical expenses incurred by Lynn during the separation. We affirm and remand.

Robert and Lynn were married July 8, 1978, in Menard County, Illinois. A child, Lauren, was bom to them September 10, 1980. The parties separated September 19, 1986. Robert filed a petition to dissolve the marriage and Lynn filed a counterpetition. Robert’s petition was later dismissed and the parties proceeded on Lynn’s counterpetition. A judgment of dissolution of marriage was entered September 26,1991.

Robert runs the day-to-day operation of his father’s roofing and sheet metal business, Schmidt Brothers Roofing. According to Robert, he makes approximately $600 per week or $31,200 per year. From 1980 through 1985 (the years before the separation), Robert made $56,500, $56,000, $56,000, $61,000, $61,925, and $69,581 per year, respectively, or an average of $60,186 per year. From 1986 through 1991 (the years after the separation), Robert made $36,800, $31,200, $31,200, $31,200, $31,800 per year, respectively, or an average of $32,440 per year. Robert claims that much of his income in the early 1980’s came from bonuses but, because the roofing business has taken a downturn, he had not received a bonus since 1985. Lynn works as a real estate salesperson for John B. Clark, Realtor, in Springfield. From 1987 through 1990, her income was $38,141, $38,789, $33,649, and $30,804 per year, respectively.

During the marriage, the parties lived in a home that Lynn had purchased with her prior husband. It had been awarded to her in the dissolution of that marriage, subject to the payment of $5,400 to the former husband as his share of the real estate. Robert paid Lynn’s former husband $1,300 in partial payment, and the balance came from forgiveness of past-due child support and maintenance. Title was transferred to Robert and Lynn in joint tenancy. Lynn estimated that at the time of her marriage to Robert the house was worth between $76,000 and $79,000. At that time, Robert and Lynn obtained a new mortgage of approximately $50,500.

During the marriage Robert and Lynn embarked on an extensive and costly remodeling of the house. Lynn claimed the project got out of control and that Robert “ran the show.” Over a period of eight years the parties wrote checks to different suppliers in an amount exceeding $132,000. Included in that amount was $11,767.55 paid to Schmidt Brothers for roofing work. Robert also claims that between 1978 and 1981 the parties ran $41,984.99 through the books of Schmidt Brothers for subcontractors and materials for the house, which was paid by the execution of a promissory note dated November 21, 1986, from Robert to Schmidt Brothers. Robert claims the total of the amounts expended on the house for remodeling was $185,752.54. Lynn argues that much of the money filtered through Schmidt Brothers was not spent on home improvement but on other items, such as the payment of Robert’s parking tickets, car insurance, camera purchases, and for other, unknown purposes. Lynn testified that although the account had apparently been opened in 1979, she was not made aware of it until after the account had a balance due of over $41,000 which, according to the ledger sheet, was in 1982.

Robert claims that the remodeling was generally financed with money that came from his parents, as well as money he had prior to the marriage. At the time of the marriage, Robert had cash in checking and savings accounts in excess of $31,000, all of which he claims to have put into the remodeling of the house. Lynn contends that part of the remodeling was financed with money she had prior to the marriage and with money from their second mortgage on the house. At the time of the trial two mortgages existed against the real estate, one for $28,356 and one for $8,200, for a total mortgage indebtedness of $36,556. Robert had the house appraised at $157,000, and Lynn had the house appraised at $173,000.

Between the date of the marriage and the separation, Robert’s parents made $38,600 in gifts to Robert and Lynn on special occasions such as birthdays, anniversaries and holidays. In addition to those gifts, Robert’s parents allegedly loaned substantial sums of money to Robert and Lynn. These alleged loans may be placed into two categories. The first is a category where notes were obtained at the time of the transfers; the second is a category where no notes were obtained until after the parties’ separation. The first category amounted to a total of $35,000, plus $22,284.99 of interest as of the trial. The second category amounted to a total of $30,500, plus $9,290.71 of accumulated interest on previous loans (as mentioned within the note) and $10,555.56 of accumulated interest from the time of the note’s execution through trial.

The first category of transfers is comprised of seven notes, each for $5,000, bearing a 6% interest rate, and signed by Robert and Lynn. Lynn testified to signing one of the notes while “holding a baby in one hand and frying chicken in the other.” She said that Robert told her the documents were to memorialize the fact that his parents were giving more money to them than to Robert’s brother and his wife. Lynn further testified that there was no intent to repay Robert’s parents and that no interest rate was filled in on the documents at the time she signed them.

As to the second category of transfers, Robert contends that he and Lynn frequently approached his parents for additional money. Lynn testified, however, that she could not remember a single instance when Robert asked his parents for money in her presence. Robert’s parents transferred, by checks made out to Robert and dated before 1985, an additional $30,500 to Robert and Lynn. Robert’s father testified that he prepared a note regarding these transfers and had it signed by Robert after the separation. The amounts of these loans, unlike those in the first category, varied from $1,000 to $5,000 each.

At the time of the separation, Robert and Lynn had just over $4,500 in their joint checking account, of which Lynn removed $4,500. During the separation Robert borrowed over $45,000 from Magna Bank. Robert contends this money was spent on attorney fees, State and Federal taxes, interest on his accumulating debt, insurance on the home, real estate taxes, and a child therapist for Lauren. Robert also accumulated retirement funds totaling approximately $47,000, of which he contends $26,410 is marital property.

The trial court did not differentiate marital from nonmarital property or specify any values for the marital assets in its memorandum opinion and the subsequent judgment order. The court did not specifically address whether the transfers of monies from Robert’s parents were gifts or loans, but assigned responsibility for the notes and loans payable to Schmidt Brothers and to Velma and Ed Schmidt to Robert. Robert made no request that the trial court specifically identify or value marital property or explain whether the transfers were loans or gifts. The court awarded each party the things in his or her possession, apart from specific items and half the photographs, which were awarded to Lynn. The court ordered the house be sold and the net proceeds divided, and provided alternatively that if Robert wanted to purchase the house, he could buy Lynn’s share for $65,000. The court did not compute the net marital estate. The court order did not require payment of maintenance to either party and awarded permanent custody of Lauren to Lynn with visitation rights to Robert. Robert was ordered to pay $425 per month to Lynn for child support and he was also ordered to keep and maintain a policy of medical insurance covering Lauren. Based upon Lynn’s request that she be awarded attorney fees, Robert was ordered to pay $12,500 of Lynn’s $28,000 attorney fees. Robert filed a post-trial motion seeking reconsideration of the issues raised on appeal. The trial court denied the motion.

Initially, Robert contends the trial court erred in its distribution of assets in holding him individually responsible for the debts to his parents and Schmidt Brothers. A trial court’s distribution of marital property should not be reversed absent a showing that the trial court abused its discretion, i.e., no reasonable person could adopt the trial court’s position. (In re Marriage of Kerber (1991), 215 Ill. App. 3d 248, 254, 574 N.E.2d 830, 834; see also In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 268, 511 N.E.2d 156, 165.) Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that marital property shall be divided in “just proportions” considering all relevant factors. (111. Rev. Stat. 1989, ch. 40, par. 503(d); Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179, 429 N.E.2d 465, 467.) The touchstone of apportionment of marital property is whether the distribution is equitable in nature. (Wade, 158 Ill. App. 3d at 268, 511 N.E.2d at 165.) Mathematical equality is not required; “just proportions” does not mean equal amounts. (Wade, 158 Ill. App. 3d at 268, 511 N.E.2d at 165; In re Marriage of Caldwell (1984), 124 Ill. App. 3d 898, 901, 465 N.E.2d 523, 525.) There is no obligation on the part of the trial court to make specific findings as to the reasons for its award. (See Caldwell, 124 Ill. App. 3d at 901, 465 N.E.2d at 526; In re Marriage of Durante (1990), 201 Ill. App. 3d 376, 383, 559 N.E.2d 56, 61.) It is helpful, however, for a trial court to indicate to the parties in some fashion why it did what it did. That explanation may enable the parties to better accept the decision, and perhaps forego any appeal. The discipline of explaining a decision may also help the trial court better understand what it is doing, and correct any misimpressions it may have. The best orders list, at least generally, the items of marital property awarded each party, assign a value to each item, show the dollar amount of each lien or other debt to be paid by the parties, and total the columns to show what each party has been awarded.

The central property division concern in this case is the role the claimed “loans" from Robert’s parents should play in the distribution of the marital estate. If the monies from the Schmidt family and from Schmidt Brothers were gifts, then the distribution of the marital estate was essentially equal and Robert concedes that he would have no quarrel. On that basis the marital estate, according to Robert’s post-trial motion, is as follows:

Assets VALUE LYNN ROBERT

Real Estate $166,556 $ 83,278 $ 83,278

Individual Retirement Account (IRA)/Simplified Employee

Pension (SEP) 11,844 11,844

Merrill Lynch IRA 6,216 6,216

Merrill Lynch IRA 5,390 5,390

Shearson SEP 2,960 2,960

Robert’s household 2,612 2,612

Lynn’s household 2,180 2,180

Lynn’s jewelry 6,731 6,731

Lynn’s Cadillac 13,000 13,000 _

TOTAL $217,489 $105,189 $112,300

Liabilities

Mortgage $ 28,356 $ 14,178 $ 14,178

Promissory Note 8,200 4,100 4,100

Robert’s Visa 1,675 1,675

Robert’s Mastercard 1,282 1,282

Cadillac Note 9,622 9,622

Lynn’s credit card 5,032 5,032 _

TOTAL $ 54,167 $ 32,932 $ 21,235

NET MARITAL ESTATE $163,322 $ 72,257 $91,065

Robert contends that if, however, the notes were bona fide debts, or if the loans were an advancement against his inheritance, then the distribution of the marital estate would be grossly disproportionate. Robert argues the only significant difference between the parties is that he may someday inherit a substantial sum of money from his parents. Potential inheritances are not property which can be valued and awarded to a spouse, although they can be given some consideration in determining property distribution. (In re Marriage of Eddy (1991), 210 Ill. App. 3d 450, 460, 569 N.E.2d 174, 181; In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 287, 518 N.E.2d 1316, 1324.) An advancement, of course, is more than a potential inheritance. It is an immediate gift and can be taken into account, in the division of marital property, as either marital or nonmarital property, whichever it happens to be.

A valid gift requires proof of donative intent and delivery of subject matter. {In re Marriage of Brown (1982), 110 Ill. App. 3d 782, 784, 443 N.E.2d 11, 13.) Donative intent is presumed if the transfer was from a parent to child. (Brown, 110 Ill. App. 3d at 784, 443 N.E.2d at 13.) There is a conflicting presumption, under section 503(b) of the Act (111. Rev. Stat. 1991, ch. 40, par. 503(b)), that property acquired after the marriage is marital. When conflicting presumptions are presented, they cancel each other out and the trial court is free to resolve the issue of whether the property acquired by the transaction was marital or nonmarital on the facts. (In re Marriage of Rosen (1984), 126 Ill. App. 3d 766, 772, 467 N.E.2d 962, 966; In re Marriage of Agazim (1986), 147 Ill. App. 3d 646, 648, 498 N.E.2d 742, 744; In re Estate of Harms (1992), 236 Ill. App. 3d 630, 639-40, 603 N.E.2d 37, 44.) The presumptions developed over the years to resolve disputes between donor and donee do not ordinarily work well in dissolution of marriage cases, where the donor and donee may not be the adversaries.

Trial courts are rightly skeptical of transfers by the parents of one of the litigants in a dissolution case. There is an incentive for both sides of the transfer, the parents making it and the litigant receiving it, to conform their testimony to the disadvantage of the other litigant. Transfers where the parents would never have sought repayment, if the marriage had remained intact, may be viewed from a different perspective when the marriage falls apart. (See In re Marriage of Jacks (1990), 200 Ill. App. 3d 112, 119, 558 N.E.2d 106, 111; In re Marriage of Gable (1990), 205 Ill. App. 3d 696, 700, 563 N.E.2d 1215, 1218.) If such a transfer were a gift it could be a gift to the marriage, thereby resulting in marital property, or it could be a gift to only one of the litigants, thereby resulting in nonmarital property. If the funds transferred no longer exist it may be to the advantage of a litigant to treat them as a marital debt, payable from the marital assets, and probably reducing the possible award to the other litigant. (In re Marriage of Douglas (1990), 195 Ill. App. 3d 1053, 1059, 552 N.E.2d 1346, 1350 (debt must be distributed equitably, the same as marital assets); In re Marriage of Smith (1984), 122 Ill. App. 3d 213, 216, 460 N.E.2d 1201, 1204 (farm debts and assets should remain in one person).) A trial court which decides a transfer from parents to a litigant is a gift does not completely resolve the issue; the parents, unless they are made parties to the dissolution action (In re Marriage of Pahlke (1983), 120 Ill. App. 3d 1009, 1015, 458 N.E.2d 1141, 1146 (purchaser of marital residence named party defendant); Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 214, 446 N.E.2d 499, 501 (parents added as parties defendant); In re Marriage of Verdung (1989), 126 Ill. 2d 542, 552, 535 N.E.2d 818, 822 (jurisdiction over second wife/joint tenant because of her participation)), are not bound by the judgment of dissolution and can seek to enforce what they still assert to be a loan against the party ordered to pay it, or even against the other party. Trial courts in dissolution cases often order litigants to pay alleged debts to their parents, even when the trial court has doubts whether a debt truly exists. Jacks, 200 Ill. App. 3d at 119, 558 N.E.2d at 111; Gable, 205 Ill. App. 3d at 700, 563 N.E.2d at 1218.

While it is impossible to tell, from the trial court’s order, whether it considered the parental transfers to be loans or gifts, there was sufficient evidence from which the trial court could have determined that the bulk of the transfers were gifts to the marriage, and the trial court’s decision may be affirmed on that basis. Certainly the $38,600 of gifts made on special occasions during the marriage were just that — gifts—and the trial court would have been justified in finding that the gifts were to the marriage, not to Robert individually. Likewise the $30,500 of notes (with $19,846.27 of interest) which were not signed contemporaneously with the transfers, but signed only by Robert after the parties’ separation, was suspicious; a finding that the transfers were in fact gifts, and gifts to the marriage, would not be contrary to the manifest weight of the evidence.

The best argument that the parents made loans and not gifts to the parties involves the $35,000 (plus $22,284.99 interest) for which notes were signed at the time the transfers were made. Even with those notes, however, there was evidence upon which the court could have based a finding that what appeared to be loans were actually gifts to the marriage. Lynn testified the notes were never intended to be repaid, and set out no interest rate at the time she signed them. There was no evidence of any payments ever being made on the notes, either of interest or principal. Robert’s argument these notes were advancements is inconsistent with the idea that the notes had to be repaid. The trial court could have found the reason for executing the notes was to provide a record to be used in settling the estates of Robert’s parents, so that the gifts made to Robert and his siblings by their parents, both inter vivos and by succession, would be equal.

The fact the trial court ordered Robert to “be responsible for all notes and loans payable to Schmidt Brothers, Inc.,” or to his parents individually is not inconsistent with the trial court’s viewing these transfers as gifts. As explained above, treatment of the transfers as gifts in the dissolution of marriage action did not settle the matter between the parents and Robert, or for that matter, between the parents and Lynn. Finally, even were we to view the contemporaneous notes as a true debt of the marriage, we could not say that the trial court abused its discretion in requiring Robert to pay that full amount. Without considering any debts to Robert’s parents, the trial court awarded Robert about $19,000 more than was awarded Lynn. The $19,000 could reasonably have been viewed by the trial court as sufficient to compensate Robert for the questionable debt he was required to be responsible for.

The trial court may have taken into account the fact that in the years prior to the separation, Robert’s total compensation, including bonuses, averaged $60,168 per year. In the year of, and years following, the separation Robert’s total compensation averaged $32,440 per year. The trial court may have viewed the reduction in Robert’s salary as a manipulation of Robert’s marital estate and, consequently, required him to be responsible for any debts to his parents and the company that his father owned and he ran. It is clear from the record the trial court intended that Robert be responsible for all debts to his parents, including those evidenced by notes, and for notes to Schmidt Brothers. That intent was not expressed in the final judgment, however, and we remand so that the trial court may modify its judgment accordingly.

Robert alternatively argues that if the trial court were correct in effectively removing the debt to the Schmidt family and to Schmidt Brothers from the marital estate, some recognition should be given the fact that the source of the “equity” in the house was gifts to him individually. However, even if the transfers were considered to be nonmarital property, i.e., gifts to Robert individually and not to the marriage, the funds lost their identity when they were invested in the house. That commingling resulted in a transmutation of the funds into the classification of the estate receiving the contribution (the house), which was marital property. (111. Rev. Stat. 1991, ch. 40, par. 503(cXl).) Robert might have been entitled to reimbursement from the marital estate, if he (1) established he did not make a gift to the marital estate, and (2) retraced the contribution by clear and convincing evidence. (111. Rev. Stat. 1991, ch. 40, par. 503(c)(2).) Robert did not establish a right to reimbursement in this case.

Next, Robert contends the trial court erred when it directed him to pay $12,500 of Lynn’s $28,000 attorney fees incurred in the dissolution proceedings. Robert contends that in light of the distribution of the marital assets, the relative earnings of the parties, and the debt he incurred with his previous attorney, the direction that he pay a portion of Lynn’s attorney fees was an abuse of discretion. Lynn argues that she is not able to incur more of these fees, and that Robert has paid most of his attorney fees and has had no difficulty obtaining money to do so.

The trial court in dissolution cases has the authority, after considering the financial resources of the parties, to order either spouse to pay a reasonable amount of the costs and attorney fees incurred by the other spouse. (111. Rev. Stat. 1989, ch. 40, par. 508.) The awarding of attorney fees and the proportion to be paid are within the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion. In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299, 483 N.E.2d 1229, 1235.

The propriety of an award of attorney fees is dependent upon (1) a showing by the party seeking them of an inability to pay, and (2) a demonstration of the ability of the other to do so. (Bussey, 108 Ill. 2d at 299-300, 483 N.E.2d at 1235; In re Marriage of Hensley (1991), 210 Ill. App. 3d 1043, 1054, 569 N.E.2d 1097, 1103-04.) Additionally, a party who has been forced to resort to the judicial process to secure compliance with the terms of an order or judgment is entitled to his or her reasonable attorney fees even absent a showing of inability to pay. In light of the evidence before the circuit court regarding the parties’ financial resources and responsibilities, we cannot say that the circuit court erred in directing Robert to pay $12,500 of Lynn’s attorney fees.

Next, Robert contends that the trial court should have directed Lynn to reimburse the marital estate for the $4,500 she took from the parties’ joint account at the time of the separation. Robert contends Lynn cashed in an IRA that she had acquired during the marriage and deposited the money from both the IRA and their joint account into a personal account, giving her about $13,000 in cash. Robert argues that Lynn’s acts of using the money for nonmarital purposes amounted to dissipation under section 503(d)(1) of the Act (111. Rev. Stat. 1991, ch. 40, par. 503(d)(1)).

The term “dissipation,” as used in section 503(d)(1) of the Act, refers to the use of marital property for the sole benefit of a spouse for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown. (In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99, quoting In re Marriage of Petrovich (1987), 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210.) This court has held that a spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how the funds were spent. If expenditures are not documented adequately by the person charged with dissipation, courts generally affirm a finding of dissipation. Furthermore, general and vague statements that funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. (In re Marriage of Adams (1989), 183 Ill. App. 3d 296, 301-02, 538 N.E.2d 1286, 1290.) Here, however, the trial court did not make a finding of dissipation, though Robert raised the issue in his post-trial motion.

Whether there was dissipation is a question for the trial court and its determination will not be set aside absent an abuse of discretion. (Adams, 183 Ill. App. 3d at 300, 538 N.E.2d at 1289.) Whether a given course of conduct constitutes dissipation depends upon the facts of a particular case. (In re Marriage of Tietz (1992), 238 Ill. App. 3d 965, 983; In re Marriage ofSeversen (1992), 228 Ill. App. 3d 820, 824, 593 N.E.2d 747, 749; Adams, 183 Ill. App. 3d at 301, 538 N.E.2d at 1290.) When the funds are spent for legitimate family expenses and necessary and appropriate purposes, there is no dissipation. Tietz, 238 Ill. App. 3d at 983; Hensley, 210 Ill. App. 3d at 1053, 569 N.E.2d at 1103.

Lynn does not dispute the fact that at the time of the separation she placed approximately $13,000 into a personal account. She claims that much of the money was spent on support for Lauren, the parties’ daughter, as she did not receive any child support for at least seven months after the separation. She further claims a portion was spent in securing housing for herself, Lauren, and her two sons from a previous marriage, while Robert remained in the marital residence. In light of Lynn’s claims that she used the money to support Lauren and secure housing, on the facts here we cannot say that the trial court’s failure to find dissipation was an abuse of discretion.

Robert next challenges the visitation order. A temporary order governing Lauren’s custody during the separation was entered by the court and gave Lynn custody, granting Robert visitation every first, third, and fourth weekend of the month and on Wednesday evenings. During the summer Robert had every other week as visitation. During the trial court’s in camera interview, Lauren indicated that she would prefer visitation with Robert every other weekend instead of the first, third, and fourth weekends of every month. Consequently, the trial court’s order upon dissolution of the marriage gave Robert visitation alternate weekends during the school year and during the summer. It further provided that Robert would have visitation on Wednesday evenings until the following morning. During the summer months, the Wednesday visitation period would be switched to Thursday on the weekends when Robert had visitation and Lauren would remain with him from Thursday evening through the weekend. Robert would also have two uninterrupted two-week periods of visitation each summer, to be designated by Robert by May 1 of each year.

Robert contends that the two extended summer visitation periods, the dates of which he must designate in advance, are problematic. He argues summer is the busy time in the roofing business and his job does not lend itself to the lead time needed to prepare for the visit of his child. He claims that if a work emergency required him to cancel his visitation plans he would lose an extended summer visit. Lynn contends the visitation schedule reflects Lauren’s desire to have every other weekend with her father as stated in her in camera interview with the trial court. Lynn also maintains that the court found that the every-other weekend visitation schedule, along with the two two-week periods in the summer, provided more continuity in the minor child’s life.

Visitation should be designed to promote the best interests of the child. The trial court wisely concluded that a temporary order requiring the child to change residences every week during the summer would not promote stability in the child’s life and should not be the permanent solution. Lauren will be better able to plan her summer if Robert chooses his two weeks by May 1, but visitation can never work if the parties are inflexible and uncooperative. We trust that will not be the case here. Matters of child custody and visitation rest largely in thé broad discretion of the trial court, and its determinations with respect thereto will not be disturbed on appeal unless a manifest injustice has been done. (Rodely v. Rodely (1963), 28 Ill. 2d 347, 350, 192 N.E.2d 347, 349; In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, 1112, 421 N.E.2d 1308, 1311.) A trial court has broad discretion in ordering visitation of children with their parents and such a determination should not be modified on review unless there is manifest injustice to a parent or child. {In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 259, 483 N.E.2d 316, 321.) The circuit court had the relevant evidence before it to fashion visitation in the best interest of the child, including an in camera interview with her, and we will not presume to second-guess its visitation order. We find the visitation as ordered was within the discretion of the trial court and no error has been demonstrated.

Last, Robert claims that the trial court erred in ordering him to pay the medical expenses incurred by Lynn during the separation. The order granting temporary custody and other temporary relief did not mention medical insurance. Lynn contends it was understood between herself, Robert, and the court that Robert was to maintain medical insurance for Lynn and Lauren. Robert admitted at trial that he did maintain medical insurance for both Lynn and Lauren. However, he requested that the insurance company not pay any medical expenses to ensure that any bills would “come through” him. A letter, admitted into evidence at trial, from the insurance company to the Springfield Clinic, where Lauren had been treated for an illness, read, in pertinent part, as follows: “We have received expenses relating to the injury/illness incurred on July 07, 1990[,] for Lauren. In accordance with Robert’s request, we will not be considering these expenses under your group health plan at this time.”

At trial, Lynn introduced a series of exhibits indicating that the medical expenses incurred for herself and Lauren were $1,238. The trial court ordered Robert to reimburse Lynn $1,238 for unpaid medical expenses. Robert claims he has no quarrel with paying Lauren’s medical expenses but he should not have to pay Lynn’s expenses. We conclude that the trial court did not abuse its discretion in ordering Robert to pay the medical expenses incurred by Lynn as well as Lauren during the separation, as it was in the best position to evaluate the responsibilities and the financial resources of the parties for such expenses.

For the reasons stated above, the judgment of the circuit court of Sangamon County is affirmed and remanded with directions for the circuit court to include in its order that Robert is responsible for any debts to his parents and Schmidt Brothers.

Affirmed and remanded with directions.

McCULLOUGH and KNECHT, JJ., concur.


author: JUSTICE STOUDER

text:
    LINDA S. COBB et al., Plaintiffs-Appellees, v. THOMAS E. NAGELE, Defendant-Appellant.
    Third District
    No. 3 — 92—0456
    Opinion filed April 7, 1993.
    Jay P. Winkelmann, of Winkelmann Law Offices, of Urbana, for appellant.
    Petersen, Deck, Ruch & Baron, of Kankakee (Charles E. Ruch, Jr., of counsel), for appellees.
   JUSTICE STOUDER

delivered the opinion of the court:

The plaintiffs, Linda Cobb, Anita Royko, Chris Yana, Scott Yana, James Yana, and Karen Yana, filed a complaint to quiet title to a disputed lV-k-foot wide strip of land. The complaint alleged that the plaintiffs had acquired the property from the defendant, Thomas Nagele, by adverse possession. Following a hearing, the circuit court entered a final judgment order finding that the plaintiffs had acquired title to the property by adverse possession. The defendant appeals and we affirm.

On appeal, the defendant asks us to consider the following issues: (1) whether the trial court erred in ruling that the plaintiffs met their burden of proof in establishing the elements of adverse possession; (2) whether the trial court erred in denying the defendant’s motion to amend his answer; and (3) whether the trial court erred in ruling that the plaintiffs’ complaint properly described the property in question.

On December 4, 1990, the plaintiffs filed a complaint to quiet title against the defendant. The complaint alleged that plaintiffs James and Karen Yana are purchasing property described as the northwest quarter (NW 1/4) of the southeast quarter (SE 1/4) of section 13, township 26 north, range 11 west of the second principal meridian, Iroquois County, from the other named plaintiffs. The complaint further alleged that the defendant owned real estate described as the southwest quarter (SW 1/4) of the southeast quarter (SE 1/4) of section 13, township 26 north, range 11 west of the second principal meridian, Iroquois County. The complaint alleged that a fence was built along the south line of the plaintiffs’ property and the north line of the defendant’s property in 1946. The plaintiffs alleged that from 1946 until the present, they and their predecessors in interest have continuously, hostilely, openly, and notoriously possessed the land up to the fence. Further, the plaintiffs alleged that they did so under a claim of right. The plaintiffs asked the court to declare that they had acquired an ll^-foot strip on the north side of the fence by adverse possession.

The following testimony was adduced at trial. Wilbur Yana testified first. Yana testified that his parents acquired the property described in the plaintiffs’ complaint in 1943. Yana stated that when his parents acquired the property there was a post and wire fence separating their property from that of the defendant. In 1946 the fence was in need of repair and Yana’s father and Art Nagele participated in rebuilding the fence in the same location. Yana testified that his father always planted crops up to the fence or as close as possible by mechanical means. Yana’s father farmed the land up to the fence each year from 1943 until 1962, when he became ill. Subsequently, Yana’s brother Ernest began farming the land. Ernest helped his father farm the land in 1962 and then also farmed it from 1963 until 1984. Yana testified that Ernest, like his father, always farmed all the way up to the fence. Ernest’s son, James Yana, began farming the land in 1984.

James Yana testified that he has been a farmer since 1977. James testified that he helped his father farm the land beginning in 1977, and in 1984 he took over the farming himself. James testified that his father always farmed up to the fence. James further testified that from 1977 to 1987 no one except for himself and his father ever went on to the property north of the fence. James testified that he first actually observed the defendant on his property in 1988, but that in 1987 the defendant had entered on to the IIV2-foot strip north of the fence and destroyed the crops planted there. In 1988, the defendant again entered on to the ll^-foot strip and destroyed the crops. The defendant continued this behavior each year through 1991. James further testified that when he bought the property he believed that he owned all the way to the fence.

The defendant testified that he did begin going on to the disputed strip of land in 1987, but that he was mowing weeds rather than crops. The defendant stated that he may have knocked down corn, but that if it was on his property it constituted a weed. The defendant never planted crops north of the fence. The defendant stated that he built the fence with the help of his father and brother and that none of the Yanas helped. The defendant claimed that the fence was built south of the boundary on purpose. The defendant had a survey of the property done in 1982. That survey apparently indicated that the disputed strip of land was on the defendant’s property. The defendant claimed that he already knew that he had land on the north side of the fence, even before the survey was done.

The circuit court ruled in a memorandum opinion that the plaintiffs had acquired title to the disputed property by adverse possession. The court found that the plaintiffs had met their burden of showing that the use had been continuous, notorious and adverse since 1943. The court further found that it was clear that the parties had treated the fence as the boundary between their property.

Following the issuance of the memorandum opinion, the defendant filed a motion for leave to file an amended answer. The defendant sought to add to his answer a claim that he had title to the property by virtue of his paying taxes on the property since 1982 under color of title. The claim was based on section 13 — 109 of the Code of Civil Procedure (the Code) (735 ILCS 5/13 — 109 (West 1992)).

The court entered a final judgment order on May 27, 1992, declaring the plaintiffs to be the owners of the disputed strip of land. The court incorporated by reference its previous memorandum opinion. Further, the court denied the defendant’s motion to amend the answer. This appeal followed.

The defendant first argues on appeal that the court incorrectly ruled that the plaintiffs met their burden of proving the requirements of adverse possession. We disagree. In Joiner v. Janssen (1981), 85 111. 2d 74, 421 N.E.2d 170, the supreme court listed the requirements necessary to establish title under the 20-year adverse possession doctrine incorporated in section 13 — 101 of the Code (735 ILCS 5/13-101 (West 1992)):

“[Tjhere must be 20 years’ concurrent existence of the five elements: (1) continuous, (2) hostile or adverse, (3) actual, (4) open, notorious, and exclusive possession of the premises, (5) under claim of title inconsistent with that of the true owner.” (Joiner, 85 Ill. 2d at 81, 421 Ill. 2d at 174.)

The presumptions are in favor of the titleholder opposing adverse possession, and the burden of proof on the adverse possessor requires that each element be proved by clear and convincing evidence. (Beverly Trust Co. v. Denowski (1991), 216 111. App. 3d 732, 576 N.E.2d 1049.) Where the trial court has found that a plaintiff has established the necessary elements of adverse possession, the trial court’s finding will not be reversed unless the defendant is able to show that those findings are against the manifest weight of the evidence. Tapley v. Peterson (1986), 141 Ill. App. 3d 401, 489 N.E.2d 1170.

Our review of the record indicates that the plaintiffs proved each element by clear and convincing evidence. Further, the defendant has utterly failed to show that the trial court’s findings were against the manifest weight of the evidence. The fact that the plaintiffs farmed the land up to i1 " requirements of mony of the defendant that he did not mow down the plaintiffs’ crops (or weeds, as he referred to them) until 1987 indicates that the plaintiffs were in exclusive possession from 1943 until 1987. open, notorious, and actual premises. The testi-

The defendant argues that the plaintiffs did not sufficiently prove continuity. The defendant claims that neither of the plaintiffs’ witnesses actually farmed or lived on the property for the requisite number of years. Regardless, the circuit court found that the unrer butted testimony of the plaintiffs was sufficient to show that they, or members of their family, had possessed the property for each of the years in question. We agree with the circuit court. The testimony of Wilbur and James Yana clearly established that the plaintiffs had farmed the disputed land from 1943 until 1987.

Further, the fact that the plaintiffs planted crops on the disputed strip of land dispenses with the requirements of hostility and claim of title inconsistent with that of the owner. The supreme court in Joiner explained that, in determining adverse possession, “hostility” does not mean ill will but rather the assertion of ownership incompatible with that of the true owner. (Joiner, 85 Ill. 2d at 81, 421 N.E.2d at 174.) The supreme court further explained that the claim of title or assertion of ownership need not be verbal, but that it is sufficient that the party in possession acted as to indicate that he claimed title:

“ ‘No mere words could more satisfactorily assert that the defendant claimed title than its continued exercise of acts of ownership over the property for a period of twenty years does. Using and controlling property as owner is the ordinary mode of asserting claim of title, and, indeed, is the only proof of which a claim of title to a very large proportion of property is susceptible.’ ” (Joiner, 85 Ill. 2d at 82, 421 N.E.2d at 174, quoting James v. Indianapolis & St. Louis R.R. Co. (1879), 91 Ill. 554, 557.)

The acts of dominion asserted over the property by the plaintiffs in this case were sufficient to show that they claimed the property hostilely and under a claim of right.

The defendant argues that the plaintiffs failed to prove adverse possession because their use was permissive, and permissive use can never ripen into a prescriptive right. (See Burrows v. Dintlemann (1976), 41 Ill. App. 3d 83, 353 N.E.2d 708.) Our review of the record indicates that there was no evidence on which the circuit court could have found the plaintiffs’ use to be permissive. The . defendant argues that at trial he indicated that he had always viewed the plaintiffs’ use as permissive. We have been unable to locate in the record where the defendant made this assertion. The defendant did testify that, even before the 1982 survey, he knew that he had more land beyond the fence. Considering the record as a whole, we find this testimony unworthy of belief. The defendant did not explain why, if he always knew that he had more land, he did not give the plaintiffs notice until 1982 and why he did not attempt possession until 1987. The circuit court correctly determined that the plaintiffs met their burden of proving title by adverse possession.

The defendant next argues that the circuit court erred in not allowing him to amend his answer. After the trial, but before the final judgment order was entered, the defendant sought to amend his answer in an attempt to use section 13 — 109 of the Code as an affirmative defense. The defendant sought to claim that the disputed property was still his because he paid taxes on the property under color of title for seven years. However, section 13 — 109 only applies to parties who pay taxes under color of title for seven years and are in actual possession of the property. The defendant did not attempt actual possession until 1987 and therefore could not have been in possession for the requisite seven years. The circuit court properly denied the defendant’s motion to amend his answer.

The defendant’s last argument is that the plaintiffs’ complaint did not set out a case for adverse possession. The defendant argues that the plaintiffs’ complaint does not allege in which quarter the property claimed to be adversely possessed was located. Nevertheless, the complaint alleged which property was owned by the plaintiffs and the defendant, explained that a fence divided the property, and explained that they were claiming property on the north side of the fence. We find that the plaintiffs sufficiently described the property they were claiming. The defendant’s argument on this point is without merit.

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

Affirmed.

BARRY and BRESLIN, JJ., concur.


author: PRESIDING JUSTICE McCULLOUGH

text:
    ARMANDO MARTINEZ, Appellant and Cross-Appellee, v. THE INDUSTRIAL COMMISSION et al. (Illini Community Hospital, Appellee and Cross-Appellant).
    Fourth District (Industrial Commission Division)
    No. 4 — 92—0242WC
    Opinion filed March 18, 1993.
    Rehearing denied May 4, 1993.

      Mark Glass, of Carr, Korein, Tillery, Kunin, Montroy, Glass & Bogard, of East St. Louis (Michael B. Marker, of counsel), for appellant.
    Evans & Dixon, of St. Louis, Missouri (Robert N. Hendershot II, of counsel), for appellee.
   PRESIDING JUSTICE McCULLOUGH

delivered the opinion of the court:

Claimant Dr. Armando Martinez appeals from an order of the circuit court of Pike County reversing an award for permanent total disability granted to claimant by the Illinois Industrial Commission (Commission) and reinstating the arbitrator’s decision denying an award. Respondent Illini Community Hospital, alleged to be the employer in this case, cross-appeals, challenging that portion of the circuit court’s order deciding that the Commission’s findings that claimant was an employee of respondent was not against the manifest weight of the evidence.

In this appeal, the court is asked to determine whether the decision of the Commission was against the manifest weight of the evidence because (a) claimant was not an employee of respondent, or (b) the accidental injury did not arise out of and in the course of claimant’s employment for respondent generally or under the theory that claimant was on a special mission for respondent. We affirm the order of the circuit court based solely on the determination that the accidental injury did not arise out of and in the course of the claimant’s employment and do not address the issue of whether claimant was an employee of respondent.

Taken with the case is a motion by claimant to strike that portion of respondent cross-appellant’s reply brief because it improperly addressed an issue raised in the original appeal in violation of Supreme Court Rule 343(bXi) (134 111. 2d R. 343(bXi)). No objections to this motion having been filed, and a simple review of pages 3 to 7 of the cross-appellant’s reply brief demonstrating the correctness of the motion to strike, claimant’s motion to strike point II of respondent cross-appellant’s reply brief is granted.

It is undisputed that claimant, a physician, was injured in an automobile accident on October 18, 1980, while traveling to work at respondent’s emergency room (ER). Claimant sustained a head injury. Claimant lived in St. Louis. Respondent’s hospital is located in Pitts-field, Illinois. This was not claimant’s assigned day to work. Instead, claimant had agreed to substitute for another ER physician.

Dr. Alejandro Alfredo Galan testified he is a vascular surgeon practicing in St. Louis County, Missouri. He is the owner of General and Vascular Surgical Specialties of St. Louis, Inc. (GVSS), a Missouri corporation. That corporation was formed at the request of respondent to provide medical malpractice insurance to physicians working at the hospital and to facilitate billing for medicare or medicaid patients that came to the ER. The corporation was later dissolved after the relationship with respondent was discontinued in December 1980.

Galan first started working at respondent’s hospital on or about March 10, 1976. At that time, his salary was $23 per hour. He and Dr. Sheikh entered into a contract with the hospital for the physicians to cover the ER on weekends from noon on Saturday to 6 a.m. on Monday. Respondent provided a room in which to sleep and food. The $23-per-hour figure was arrived at, in part, because of the distance they had to drive to get to the hospital. It took four to six hours to drive from St. Louis to Pittsfield and back. Galan estimated that $6 to $8 of the wage rate was paid for the travel time, gasoline, and use of the car. In July 1978, claimant started working on the respondent’s ER weekend staff. Part of Galan’s responsibility was providing in-service training for nurses and physical examinations of hospital employees, and these duties also applied to claimant. Claimant was paid directly by respondent. In January 1980, GVSS entered into a contract with respondent, but the duties of the physicians remained the same thereafter, and claimant continued to be paid directly by respondent.

Galan once requested an increase in the hourly rate of these weekend ER physicians. One of the reasons for the requested raise was the increased difficulty in getting to the hospital in the winter when the weather was bad and due to a bridge repair. The increased rate was agreed upon by respondent. As a result of the contract entered into in 1980, the hourly fee for the weekend ER physicians was $30, and that fee was paid for time spent in the ER and the hospital. The doctors were not paid for time spent traveling to and from the hospital, although that was considered in setting the rate. The doctors were not reimbursed for mileage. Each physician drove his own vehi-ele. The weekend ER physicians reported to the ER nurse when they arrived so that the time of arrival could be noted and the doctors could get their paychecks.

John Leland Woods was the “Assistant Administrator Comptroller” for respondent from March 1979 to May 1983. He testified that respondent is a 60-bed general medical service hospital with a coronary-care unit and an ER. The weekend ER physicians filed reports showing time of arrival and departure. They were not reimbursed monies for travel, the hospital did not own or maintain the vehicles they drove to and from the hospital, there was no requirement that they live in St. Louis, there were no restrictions on where else they could work, and they did no work for respondent other than at the hospital.

The deposition of Walter Garrett Deer, respondent’s administrator from September 1977 to August 1980, was submitted to the arbitrator by respondent. The medical staff “pushed for” the contract to provide ER services on the weekend. Respondent did not select the physicians who worked the ER pursuant to the contract. GVSS provided the physicians, and Galan was responsible for bringing in new ones. Galan was responsible for scheduling. Respondent did not do the scheduling. If one doctor was unable to show up, the doctors would work it out among themselves to provide coverage. Respondent was not responsible for finding a replacement. If the physician could not get to the ER, then the hospital medical staff would provide coverage. There was discussion about raising the rate of compensation and about the costs of the doctors to drive from St. Louis. It was discussed under the category of raising hourly rates, rather than paying them specifically for transportation or gasoline costs.

The arbitrator concluded that claimant was an employee of respondent and not an employee of GVSS. However, the arbitrator found that claimant failed to prove the injury, arose out of and in the course of his employment. Finding that the accident did arise out of and in the course of claimant’s employment, the Commission reversed and awarded claimant $282.25 per week from October 18, 1980, for life for permanent total disability. (111. Rev. Stat. 1989, ch. 48, par. 138.8(f).) The circuit court reversed and reinstated the decision of the arbitrator.

Claimant has the burden of proof and the Commission judges witness credibility, determines the weight to be given the evidence, and draws reasonable inferences therefrom. {Smith v. Industrial Comm’n (1983), 98 Ill. 2d 20, 23, 455 N.E.2d 86, 88.) Even where the Commission has no additional evidence, the Commission is not bound to accept the arbitrator’s findings, and the Commission’s decision will be overturned only if it is against the manifest weight of the evidence. (Zarley v. Industrial Comm’n (1981), 84 Ill. 2d 380, 386, 418 N.E.2d 717, 720.) Merely because different inferences could be drawn from the conflicting evidence does not justify the reviewing court overturning the Commission’s decision. (Niles Police Department v. Industrial Comm’n (1981), 83 Ill. 2d 528, 533-34, 416 N.E.2d 243, 245.) Whether the accident arose out of and in the course of claimant’s employment with respondent is a factual determination of the Commission which will ordinarily not be overturned on appeal unless the findings are against the manifest weight. (Domagalski v. Industrial Comm’n (1983), 97 Ill. 2d 228, 236, 454 N.E.2d 295, 298.) However, where the essential facts are undisputed, a question of law is presented, and Commission decisions on questions of law are not binding on the courts. (Buchino v. Industrial Comm’n (1988), 172 Ill. App. 3d 162, 165, 526 N.E.2d 425, 426; Stevenson Olds Sales & Service v. Industrial Comm’n (1986), 140 Ill. App. 3d 703, 705, 489 N.E.2d 328, 330.) In this case, the essential facts necessary for a consideration of whether the accident arose out of and in the course of claimant’s employment with respondent appears to be undisputed, raising a question of law.

As a general rule, an employee may not recover under the Act for injuries sustained while in transit between the employee’s home and place of employment. Such injuries generally do not arise out of and in the course of employment. (Stevenson Olds, 140 Ill. App. 3d at 705, 489 N.E.2d at 330.) The rationale underlying the rule is that the employee’s trip to and from work is the result of the employee’s decision about where to live, which is a matter of no concern to the employer. (Lopez v. Galeener (1975), 34 Ill. App. 3d 815, 819, 341 N.E.2d 59, 63.) There are, however, several exceptions to the rule. Claimant’s theories on appeal are that (1) his travel time was part of his service to respondent and he was paid for his travel time or (2) he was on a special mission for respondent, having agreed to work an unscheduled shift for another doctor on short notice.

The claimant admits that the Commission did not address the question of whether the accident arose out of and in the course of claimant’s employment with respondent because he was paid for the time of travel, but suggests this court can nevertheless consider grounds to affirm the Commission’s decision. Respondent does not suggest this question should not be considered by this court, but argues (1) the evidence used by claimant to support this argument was part of negotiations for the contract between GVSS and respondent and is inadmissible under the parol evidence rule and (2), even in light of this evidence, it is clear that claimant is not entitled to recover under this theory.

The parol evidence rule does not appear to bar consideration of this evidence. Claimant is not a party to the contract between GVSS and respondent, or a party in privity to a party to the contract, and did not seek to admit the contract into evidence so as to come under its terms. Instead, it is respondent who is using the contract as a shield. Therefore, claimant may offer evidence to explain how the $30-per-hour wage in the contract was arrived at. {Schultz v. Plankinton Bank (1892), 141 111. 116, 122-23, 30 N.E. 346, 348; R. Hunter, Trial Handbook for Illinois Lawyers §73.6 (5th ed. 1983).) However, any statement by Galan that claimant was considered “on duty” when he was driving to work cannot be construed as an admission by respondent since it is not shown that Galan had authority to make such a statement that would bind respondent. See Chmieleski v. Venture Stores, Inc. (1982), 106 111. App. 3d 312, 314, 436 N.E.2d 4, 6.

In Commonwealth Edison Co. v. Industrial Comm’n (1981), 86 111. 2d 534, 538-39, 428 N.E.2d 165, 166-67, the Illinois Supreme Court stated the following exceptions to the general rule denying liability for injuries occurring in transit between the employee’s home and place of employment:

“[W]hen the employer agrees to compensate the employee for time spent traveling to and from work.
‘When the employee is paid an identifiable amount as compensation for time spent in a going or coming trip, the trip is within the course of employment. This is a clear application of the underlying principle that a journey is compensa-ble if the making of that journey is part of the service for which the employee is compensated. ***
* * *
[A] demonstration that travel time was specifically paid for is one of the most reliable ways of making a case for the compensability of a going or coming trip, and is ordinarily sufficient in itself to support such a finding ***.’ (1 A. Larson, Workmen’s Compensation §16.20 (1978).)
* * *
* * *
*** Although proof of payment for time spent in travel is supportive of a conclusion that the travel itself is within the course of the employment, the same is not true for reimbursement for the expense of travel. Crucial to the determination is the question of whether the travel is sufficiently important in itself to be regarded as part of the service performed. In many cases, the payment of the expenses incurred in travel amounts to reimbursement for the expense of travel and is merely a form of added compensation; it does not bring the travel itself within the course of employment. (1 A. Larson, Workmen’s Compensation §16.30 (1978).” (Emphasis in original.)

In this case, claimant was paid for time spent in respondent’s hospital. In setting the hourly rate, respondent may have considered that claimant, and other weekend ER physicians, would be required to drive a considerable distance, at their expense, to get to and from the hospital. A reasonable inference is that this was necessary to attract physicians to work at the ER on weekends. Galan’s testimony was that the amount of wages was set in relation to the distance from St. Louis and the amount of wages in ER’s in St. Louis. But that is not the same as saying that the doctor was paid for the travel time. Claimant, in effect, “punched a clock” by reporting to the duty nurse on arrival. The testimony was uncontradicted that he only got paid for the time he was at the hospital.

Moreover, we agree with the circuit court that the evidence, as a matter of law, does not establish that claimant was on a special mission for respondent.

“ ‘[I]njuries sustained by an employee while away from the job premises of his employer have been held compensable under the Act when the injuries occurred while the employee was acting under the direction of the employer or for his benefit or accommodation.’ Osborn v. Industrial Com. (1971), 50 Ill. 2d 150, 151; see also Lynch Special Services v. Industrial Com. (1979), 76 111. 2d 81, 91-92; Givenrod-Lipe, Inc. v. Industrial Com. (1978), 71 Ill. 2d 440, 444; Mid Central Tool Co. v. Industrial Com. (1978), 72 111. 2d 569, 578; Torbeck v. Industrial Com. (1971), 49 Ill. 2d 515, 516-17; 1 A. Larson, Workmen’s Compensation sec. 16 (1978).” (International Art Studios v. Industrial Comm’n (1980), 83 Ill. 2d 457, 460, 415 N.E.2d 1031, 1032-33.)

At the time of the accident in this case, claimant was not under the direction or control of respondent. While he agreed, on short notice, to work the ER that day, claimant did so to benefit and accommodate a fellow employee, not respondent. The respondent had no control over which doctor worked on a particular weekend. Respondent did not request claimant to work on the day in question. That control and responsibility belonged to GVSS. Claimant was not on a special mission for respondent as was true in Benjamin H. Sanborn Co. v. Industrial Comm’n (1950), 405 Ill. 50, 89 N.E.2d 804. As argued by respondent, claimant was traveling to the hospital at the usual time, scheduling of the doctors was the responsibility of GVSS, and there was no request by respondent that claimant do anything special on the day in question. At the time of the accident, claimant was traveling to work and his actions in so doing do not fit into any exception to the no-recovery rule suggested by claimant.

Accordingly, we affirm the order of the circuit court of Pike County reversing the award by the Commission.

Affirmed.

RAKOWSKI, WOODWARD, STOUDER, and RARICK, JJ., concur.