author: PRESIDING JUSTICE REINHARD

text:
    AMERICAN FAMILY INSURANCE COMPANY et al., Plaintiffs-Appellants, v. VILLAGE PONTIAC-GMC, INC., et al., Defendants-Appellees.
    Second District
    No. 2 — 91—0435
    Opinion filed January 16, 1992.
    William C. Potratz and Roger A. Bixby, both of Bixby, Lechner & Potratz, P.C., of Chicago, for appellants.

      Diane I. Jennings and John T. Williams, both of Lord, Bissell & Brook, of Chicago, and Michael J. Toussaint, Kathryn M. James, and Jay S. Judge, all of Judge & James, Ltd., of Park Ridge, for appellees.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

American Family Insurance Company, Farmers Insurance Company and William and Nancy Gill, plaintiffs, appeal from the orders of the circuit court of Du Page County which granted Village Pontiac-GMC, Incorporated’s, and General Motors Corporation’s, defendants’, motions for sanctions pursuant to Supreme Court Rule 219 (134 Ill. 2d R. 219) and summary judgment.

Plaintiffs essentially raise two issues on appeal: (1) whether the trial court erred in barring evidence as a sanction pursuant to Graves v. Daley (1988), 172 Ill. App. 3d 35, 526 N.E.2d 679; and alternatively (2) even if the trial court properly barred certain evidence, whether the trial court erred in granting defendants’ motions for summary judgment.

As shown through the pleadings, the motion for summary judgment and the response thereto, the facts in this case are the following. On October 1, 1981, William and Nancy Gill purchased a 1981 Pontiac Grand Prix from Village Pontiac-GMC, Incorporated (Village Pontiac), in Naperville, Illinois. The car was a demonstrator model. On October 7, 1981, William and Nancy Gill picked up the car from Village Pontiac. On the way home, several problems with the car occurred: the voltage regulator light was flashing red; the lights went dim; the car smelled as if it were burning, which was described as “a hot smell”; and the taillights went out.

Early in the morning of November 9, 1981, a fire occurred at the Gills’ home. The fire severely damaged the home and other personal property. The next day, Nancy Gill telephoned Village Pontiac and told the service director that a fireman had told her that the car caused the fire.

On November 10 and 11, 1981, John K. Mauras investigated the fire for the Gills’ homeowner’s insurer, American Family Insurance Company. Mauras’ opinion, which was based in part on the opinions of Richard W. Kraugh, an electrical engineer hired by Mauras, was that the origin of the fire was the area along the trank light wire beneath the left end of the rear seat, and the cause of the fire was a short circuit which resulted when a copper trank light circuit wire with damaged insulation contacted a grounded wire. Maurus removed the copper wire which he believed caused the short circuit.

The Gills subsequently transferred title of the car to their automobile insurance company, Farmers Insurance Company. The car was destroyed seven months later by a salvage company after Farmers Insurance had transferred the title.

On January 22, 1991, the court granted General Motors Corporation’s (General Motors’) motion to bar evidence regarding the car because it was destroyed. The order stated that “[plaintiffs are barred from presenting any evidence, direct or circumstantial, concerning the condition of the Pontiac Grand Prix which is at issue in this case, at the trial of this cause.” On March 18, 1991, the trial court granted defendants’ motions for summary judgment based on plaintiffs’ inability to use any evidence concerning the condition of the car.

Plaintiffs contend that the trial court erred in applying the holding of Graves v. Daley (1988), 172 Ill. App. 3d 35, 526 N.E.2d 679, to this case. Essentially, plaintiffs contend that because all the evidence relating to the cause of the fire, including photographs, two wires and testimony concerning the scene, had not been destroyed, the trial court erred in barring any evidence relating to the condition of the car.

In Graves v. Daley (1988), 172 Ill. App. 3d 35, 526 N.E.2d 679, the appellate court upheld a trial court’s order barring all evidence relating to the condition of a furnace which was alleged to be the cause of a fire and which was destroyed by plaintiff prior to initiation of the litigation. (172 Ill. App. 3d at 38, 526 N.E.2d at 681; see also Fire Insurance Exchange v. Zenith Radio Corp. (1987), 103 Nev. 648, 747 P.2d 911.) We believe that Graves is sound law and should be followed under the facts in the instant case.

Although other Illinois Appellate Court decisions have upheld sanctions for destruction of evidence in violation of a court order (Ralston v. Casanova (1984), 129 Ill. App. 3d 1050, 1058, 473 N.E.2d 444) and for failing to comply with discovery orders after the evidence has been lost (Stegmiller v. H.P.E., Inc. (1980), 81 Ill. App. 3d 1144, 1147, 401 N.E.2d 1156), it is similarly sound that sanctions may also be imposed despite the absence of a court order barring destruction (R. Johnston & K. Kandaras, Discovery in Illinois 181 (1985)).

Supreme Court Rule 219(c) authorizes a trial court to bar testimony if a party unreasonably refuses to comply with discovery rules and if the sanction is just. (134 Ill. 2d R. 219(c)(iv).) Supreme Court Rule 214 allows a party to request the production of tangible things for inspection and testing. (134 Ill. 2d R. 214.) Although the Illinois Supreme Court has not defined the phrase “unreasonable refusal to comply” (Wilkens v. T. Enterprises, Inc. (1988), 177 Ill. App. 3d 514, 517, 532 N.E.2d 469), it has been defined in an appellate court decision as a deliberate and pronounced disregard for a discovery rule (Lavaja v. Carter (1987), 153 Ill. App. 3d 317, 322, 505 N.E.2d 694). In determining unreasonable noncompliance, a court may focus on the importance of the information a party is seeking to have produced. (Comment, Policing Discovery Under Illinois Supreme Court Rule 219(c): A Search for Judicial Consistency, 21 Loy. U. Chi. L.J. 973, 982 (1990).) Production requests pursuant to Supreme Court Rule 214 may be frustrated by the destruction of the item sought. (Johnston & Kandaras, Discovery in Illinois, at 180.) Pretrial access to documents, tangible objects or property is often crucial to amassing a claim or defense. (Johnston & Kandaras, Discovery in Illinois, at 163.) Imposition of sanctions under Supreme Court Rule 219 is a matter within the discretion of the trial court, and a reviewing court will not disturb a trial court’s decision absent an abuse of discretion. Wyrick v. Time Chemical, Inc. (1989), 191 Ill. App. 3d 1041, 1044, 548 N.E.2d 524.

In this case, plaintiffs intentionally allowed the most crucial piece of evidence in this case to be destroyed. Plaintiffs should have known that potential defendants to a case alleging negligence and product liability would undoubtedly want to inspect, as plaintiffs’ experts had done, and perhaps test the object alleged to have caused the damage. Further, Farmers Insurance Company had title to the car and, as an insurance company, unquestionably knew the importance of the car in allowing defendants to prepare a defense. Indeed, Farmers Insurance in anticipation of a subrogation claim allowed the car to be destroyed only after its experts had thoroughly examined the car and had issued their opinions on the cause of the fire.

Plaintiffs contend that, unlike Graves, all the evidence was not destroyed. This argument is without merit. Although two wires from the car were saved and plaintiffs have photographs of the car and other damaged property, defendants were unable to inspect, as plaintiffs’ experts were, the most important evidence because of plaintiffs’ actions. Plaintiffs were the only individuals with first-hand knowledge of the physical evidence which is far more probative under these circumstances in determining whether the vehicle caused the fire than photographs and two wires taken from the trunk area. The physical object itself in the precise condition immediately after an accident may be far more instructive and persuasive to a jury than oral or photograph descriptions. (Nally v. Volkswagen of America, Inc. (1989), 405 Mass. 191, 198, 539 N.E.2d 1017.) As a matter of sound public policy, an expert should not be permitted intentionally or negligently to destroy such evidence and then substitute his or her own description of it. (Nally, 405 Mass, at 198, 539 N.E.2d at 1021.) Under these particular circumstances, the existence of the two wires and the photographs is not a substitute for the car, the object on which plaintiffs based the complaint.

Plaintiffs next attempt to distinguish Graves. They argue that the trial court erred in sanctioning plaintiffs because defendants had notice of the fire and failed to investigate. Plaintiffs assert that Village Pontiac had notice of impending litigation because of Nancy Gill’s telephone call the morning after the fire in which she blamed the car for causing the fire. Plaintiffs assert that through the general agency principle of imputed knowledge General Motors also had notice. We do not believe under these circumstances that a single telephone call from an understandably distraught customer serves as notice of impending litigation so as to warrant defendants to investigate the fire in this case.

Plaintiffs also contend that the sanction barring all evidence including the photographs, the wires and testimony regarding the scene was overly broad. We do not believe that the trial court’s order barring all evidence, direct and circumstantial, concerning the condition of the car was an abuse of discretion. Although plaintiffs retained two wires and pictures of the car and the fire scene, defendants had no opportunity to inspect the car and, in particular, the location and condition of the area surrounding the wires. While defendants are currently able to observe the pictures and the wires, those observations would be without the benefit of the inspection of the whole car. Defendants would be able to observe only evidence gathered by plaintiffs without reference to the object alleged to have caused the damage.

Considering all of plaintiffs’ arguments, we find no abuse of discretion in the sanction imposed.

Alternatively, plaintiffs contend that even excluding any evidence of the condition of the car, there was enough evidence to preclude summary judgment on their complaint alleging product liability and negligence.

In a cause of action based on product liability, the plaintiff must prove that the injury or damage resulted from a condition of the product, that the condition was an unreasonably dangerous one and that the condition existed at the time the product left the manufacturer’s control. (Suvada v. White Motor Co. (1965), 32 Ill. 2d 612, 623, 210 N.E.2d 182.) The general rule is that the occurrence of an injury, in

and of itself, is insufficient to show the existence of a product defect. (West v. Deere & Co. (1991), 145 Ill. 2d 177, 180.) However, a prima facie case that a product was defective and that the defect existed when it left the manufacturer’s control is made by proof that in the absence of abnormal use or reasonable secondary causes, the product failed to perform in the manner reasonably to be expected in light of its nature and intended function. (Tweedy v. Wright Ford Sales, Inc. (1976), 64 Ill. 2d 570, 574, 357 N.E.2d 449.) A plaintiff can make out a prima facie case of a defective product based on an inference when, contrary evidence notwithstanding, an injured plaintiff claims a defective product was a cause of the injury and the proof of the defect is based on testimony of a malfunction. Sabin, Inference of Defect in Illinois Products Liability Law: A Proposal for Resolution, 77 Ill. B.J. 26, 27-28 (1988).

To state a cause of action for negligence, plaintiff must show the existence of a duty, a breach of that duty, and an injury to the plaintiff which is proximately caused by that breach. (Ziemba v. Mierzwa (1991), 142 Ill. 2d 42, 45, 566 N.E.2d 1365.) Liability may not be based upon speculation, imagination or mere conjecture. Kalata v. Anheuser-Busch Cos. (1991), 144 Ill. 2d 425, 437, 581 N.E.2d 656.

On a defendant’s motion for summary judgment, a plaintiff is not required to establish his case as he would at trial, but he must present some factual basis that would arguably entitle him to a judgment. (West, 145 Ill. 2d at 182.) If all the evidence before the trial court would be insufficient to go to a jury and would require the court to direct a verdict, summary judgment should be entered. Pyne v. Witmer (1989), 129 Ill. 2d 351, 358, 543 N.E.2d 1304.

In this case, plaintiffs cannot make out a prima facie case of product liability based on an inference of a defect, nor can they show negligence. Plaintiffs were barred from presenting any evidence, direct or circumstantial, concerning the condition of the car. Any cause of action for product liability based on an inference must still show that the damage resulted from a condition of the product. After all evidence of the condition of the car is barred, no evidence remains upon which the trial court could find product liability or negligence. Therefore, the trial court did not err in granting defendants’ motion for summary judgment.

One other matter remains unresolved. After plaintiffs’ brief was filed, defendants filed a motion to strike and dismiss the appeal. Plaintiffs responded, and we ordered the matter to be taken with the case. Although there are deficiencies in plaintiffs’ brief with respect to the citing of certain deposition testimony not of record, we have considered only the record before the trial court and, accordingly, deny the motion.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

UNVERZAGT and DUNN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE INGLIS

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES BLACK, Defendant-Appellant.
    Second District
    No. 2 — 90—0767
    Opinion filed January 17, 1992.

      G. Joseph Weller and Paul Alexander Rogers, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, James Black, appeals after pleading guilty to armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A — 2) and second-degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 2). Concurrent sentences of 17 years’ imprisonment for armed violence and 15 years’ imprisonment for second-degree murder were imposed. The sole issue on appeal is whether the trial court imposed an excessive sentence. We affirm.

On the evening of February 9, 1990, Gary Hayes was fatally stabbed in an apartment in Zion, Illinois. A few hours later, defendant voluntarily turned himself in at the Zion police department and gave a recorded statement. Defendant stated that he and some other people, including the deceased, had been drinking together at the apartment in question. An argument ensued between defendant and decedent apparently concerning money given to defendant by decedent to purchase liquor. The argument became a scuffle in which defendant obtained a small knife from within the apartment and cut decedent five or six times.

After defendant discovered that he was also cut, he backed away and retreated to his aunt’s home across the alley. Defendant took a 10-inch butcher knife from somewhere in his aunt’s home and returned to the apartment. Defendant told the police that he took the knife “out of anger.” Defendant also stated that he went back to the apartment to get his hat and coat, which contained $250.

Decedent had a pipe in his hand when defendant returned. According to defendant, the decedent charged him, and the two men wrestled. Defendant stabbed decedent in the left side of the chest, close to decedent’s heart. Decedent also had large stab wounds in his left shoulder, his left side, and in the back of the head. Defendant fled the scene and later surrendered to the police.

Defendant was indicted on two counts of first-degree murder and one count of armed violence. Defendant agreed to plead guilty to the armed violence count and one count of second-degree murder. In exchange, the State agreed to a sentencing cap of 20 years’ imprisonment.

At sentencing, the State offered, among other evidence, victim impact statements from members of the decedent’s family and evidence of a prior indictment for home invasion and armed robbery, of which defendant was acquitted. In mitigation, defendant presented testimony and letters from teachers, coaches and police officers from defendant’s hometown in Arkansas attesting to his good character. Defendant and his family members also testified on his behalf. Defendant testified on cross-examination that he went back to the apartment out of anger and to protect himself.

The State recommended a 20-year prison term, the maximum sentence under the agreement made with defendant. The defense recommended the minimum term of six years’ imprisonment for armed violence. The trial judge sentenced defendant to 17 years’ imprisonment for armed violence and to a concurrent 15-year sentence for second-degree murder. The court noted that the decedent had been stabbed repeatedly with the large knife. The court also found insufficient provocation by decedent to constitute a statutory mitigating factor. The court was unable to conclude that defendant was unlikely to commit future crimes and emphasized the need to deter similar conduct by others. The judge stated that he would have imposed a longer sentence “[b]ut for the substantial evidence in mitigation.”

Defendant filed a motion to reconsider the sentence on July 13, 1990, which was denied the same day. A timely notice of appeal was filed.

Defendant contends that the sentence imposed is excessive because his strong potential for rehabilitation was not given proper consideration. Defendant also claims there was sufficient evidence that he was unlikely to commit future crimes and that his conduct arose from circumstances unlikely to recur. Defendant further contends that the trial judge improperly considered as aggravating factors that the sentence was necessary to deter others and that defendant’s conduct caused serious harm. The State counters that the trial judge properly weighed the mitigating factors and considered the appropriate aggravating factors.

The imposition of a sentence is a matter within the trial court's discretion, and its decision will not be reversed absent an abuse of discretion. (People v. Wilson (1991), 143 Ill. 2d 236, 250.) The trial court’s decision regarding sentencing is given great deference and weight. (People v. James (1987), 118 Ill. 2d 214, 228.) The trial court has abused its discretion in imposing a sentence when the judgment is manifestly unjust or palpably erroneous. (People v. Anderson (1986), 112 Ill. 2d 39, 46.) The trial court may exercise wide discretion in the source and type of evidence it will use to determine the appropriate sentence. People v. La Pointe (1981), 88 Ill. 2d 482, 496.

Defendant argues that a sentence must be designed not only to punish the offender but also to help restore him to useful citizenship. (Ill. Const. 1970, art. I, §11; Ill. Rev. Stat. 1989, ch. 38, par. 1001— 1 — 2.) Defendant was 22 years old at the time of the offense and had a commendable educational and employment history. He had no drug or alcohol abuse problems. He showed remorse for his acts and had the support of his family and his native community in Arkansas.

Although there is evidence of rehabilitative potential, it does not detract from the brutality of the crime. A court is not required to give the defendant’s rehabilitative potential more weight than the seriousness of the offense. (People v. Smith (1991), 214 Ill. App. 3d 327, 341.) Defendant had retreated to the safe haven of his aunt’s home when he decided to return to the apartment “out of anger,” carrying a butcher knife. Defendant voluntarily returned to the scene and brutally stabbed the decedent a number of times. These actions far outweigh the rehabilitative potential that may exist.

Further, defendant points to nothing in the record other than the length of the sentence to rebut the presumption that the trial judge considered evidence of his rehabilitative potential. The court has presumably assessed defendant’s rehabilitative potential when defendant’s only evidence to rebut this presumption is the length of the sentence. (See Smith, 214 Ill. App. 3d at 342.) In fact, the judge stated that he would have given a longer sentence “[b]ut for the substantial evidence in mitigation.” We believe the trial court weighed all evidence appropriately in determining defendant’s potential for rehabilitation.

Defendant also argues that there was sufficient evidence for the trial judge to conclude that defendant’s character showed he was unlikely to commit future crimes and that the circumstances were unlikely to recur. These are both statutory mitigating factors under section 5 — 5—3.1 of the Unified Code of Corrections. Ill. Rev. Stat. 1987, ch. 38, pars. 1005-5-3.1(a)(8), (a)(9).

The trial judge stated that “the Court really can’t come to a definitive statement in terms of whether that may or may not happen in the future *** nor can it suggest what the future may hold for [defendant].” Based on the nature of the crime, the trial judge did not err in failing to make these determinations. Defendant killed a man in a fight over a small amount of money. One shudders to think of defendant’s reaction in a disagreement over more serious matters.

Finally, defendant argues that the trial judge’s reliance on two statutory aggravating factors did not justify the sentence. The two aggravating factors were: (1) that defendant’s conduct caused serious harm; and (2) the sentence was necessary to deter others from committing the same crime. Ill. Rev. Stat. 1987, ch. 38, pars. 1005 — 5— 3.2(a)(1), (a)(7).

Defendant cites People v. Saldivar (1986), 113 Ill. 2d 256, for the proposition that the court may not consider that his act resulted in death because death is inherent in the offense itself. But, Saldivar also states that it is proper for the trial court to consider the force employed and the manner in which the death occurred in applying the serious bodily harm factor. (113 Ill. 2d at 271.) This court has applied the Saldivar analysis when reviewing a sentence for first-degree murder where the trial judge employed the serious bodily harm factor. (See People v. Nally (1991), 216 Ill. App. 3d 742, 773-74.) As such, the serious bodily harm factor may be considered in a sentence for second-degree murder.

In sentencing defendant, the trial judge stated:

“The nature of the act and method of the act was [sic] senseless, cruel, the autopsy report clearly indicates the degree of wounds inflicted by a larger knife, although the defendant says he stabbed the victim only once *** it’s clear that what has occurred was repeated stabbings on the night in question. Because of — certainly those acts caused the most serious harm possible, being the death of the victim.”

Defendant suggests that the court considered only that death resulted from the offense. We find that the trial judge’s statements focused on the force used and the manner in which decedent died, not simply that death occurred. Thus, the trial judge did not err in applying this aggravating factor.

The need to deter others was also a proper factor to consider in aggravation. Defendant cites People v. Alejos (1983), 97 Ill. 2d 502, as authority that second-degree murder is a crime of passion that cannot be deterred. The court in Alejos held that voluntary manslaughter, an unpremeditated offense, could not be a predicate to armed violence. (97 Ill. 2d at 513.) The armed violence statute is meant to deter those who commit crime from carrying a dangerous weapon. This deterrence statute is inapplicable in an offense where premeditation is lacking. Alejos, 97 Ill. 2d at 507-13.

The State argues that Alejos has no implications to sentencing, but only deals with enhancing a forcible felony to armed violence. The State cites the Appellate Court, Fifth District, case of People v. Smith (1990), 195 Ill. App. 3d 878, 883-84, and the Appellate Court, First District, case of People v. Hall (1987), 159 Ill. App. 3d 1021, 1034-35. Both cases allowed deterrence to be used as an aggravating factor in sentencing for voluntary manslaughter, an unpremeditated offense.

We agree with the fifth and first districts that the aggravating factor of deterrence may be used in sentencing for “nondeterrable” crimes such as voluntary manslaughter and second-degree murder. Even supposed “heat of passion” crimes need to be discouraged. Notwithstanding this holding, we were not convinced that defendant’s crime lacked premeditation. Defendant removed himself from the affray only to return and kill the decedent. The State’s acceptance of a guilty plea to second-degree murder does not automatically mean that premeditation was lacking.

For the foregoing reasons, we hold that the trial judge did not abuse his discretion in sentencing defendant. The judgment of the circuit court of Lake County is affirmed.

Affirmed.

WOODWARD and BOWMAN, JJ., concur.


author: JUSTICE NICKELS

text:
      In re MARRIAGE OF ELOISE F. OLSON, Petitioner-Appellee, and THOMAS R. OLSON, Respondent-Appellant.
    Second District
    No. 2 — 91—0132
    Opinion filed January 9, 1992.
    Rehearing denied February 21, 1992.

      Joel D. Arnold, of Fortunato, Farrell & Davenport, Ltd., of Westmont, for appellant.
    John Panegasser and Jeanne E. Galvin, both of Caluwaert, Panegasser, Hancock & Schousen, of Elmhurst, for appellee.
   JUSTICE NICKELS

delivered the opinion of the court:

After trial, the circuit court of Du Page County granted the petition of Eloise Olson (Eloise) for an order of dissolution of marriage and, as part of that order, made findings and entered orders determining the value and dissipation of the parties’ closely held corporation, Quadro Enterprises, Inc. (Quadro), allocating the marital property and establishing the amount of child support (Ill. Rev. Stat. 1989, ch. 40, par. 401 et seq.). Thomas Olson (Thomas) appeals those orders and asserts nine issues: (1) whether the trial court not only erred in permitting Eloise’s valuation expert to testify, but whether the court’s acceptance of such valuation was against the manifest weight of the evidence; (2) whether the court’s finding of dissipation of marital assets was against the manifest weight of the evidence; (3) whether the court erred in including certain assets in the marital estate; (4) whether the court’s allocation of marital assets was an abuse of discretion; (5) whether the court erred in requiring Thomas to pledge his individual retirement account (IRA) as security for Thomas’ payment of the cash portion of the marital estate due to Eloise; (6) whether the court’s requirement that Thomas name or maintain Eloise as a trustee on life insurance policies for the benefit of the parties’ two sons and as co-owner and cobeneficiary of policies on the lives of the parties’ sons was error; (7) whether the amount of the award of child support was an abuse of discretion; (8) whether the court erred in entering an order apportioning the cost of future college education of the parties’ two 17-year-old sons; and (9) whether the court’s failure to allocate the marital debt, with the exception of eventual capital gain tax liability on the sale of the marital home, was error.

On April 1, 1988, Eloise petitioned for dissolution of the marriage on grounds of adultery and mental cruelty. Thomas agreed to stipulate to grounds of mental cruelty on the first day of the trial, which thereby removed any issue of adultery from the trial. However, Eloise had further specifically alleged that between 1986 and 1988 Thomas had dissipated Quadro, the parties’ closely held corporation, in paying a draw, commissions, and various personal expenses to an independent contractor, Theresa Bronkema Slater (Theresa), who was Thomas’ alleged paramour. The parties agreed to a valuation date of July 31,1989, for all marital assets, including Quadro.

The parties were married on March 15, 1969. In 1974, twin boys, Garrett and Darren, were born. The boys participated extensively in tennis tournaments, the expenses relative to which Thomas volunteered to assume. At the time of trial, Eloise was 46 years old, and Thomas was 48 years old.

An injunction prevented either Thomas or Eloise from disposing of marital property pending distribution by the court. Therefore, both parties continued to reside in the marital residence in Hinsdale, which was offered for sale at the time of trial. By court order, Thomas and Eloise shared equally all household expenses after Eloise filed her petition on April 1,1988.

Prior to forming Quadro in 1983, Thomas was employed as a vice-president of marketing and sales by a similar company, where he earned $98,783 in 1982. Thomas’ tax returns for 1988 and 1989 reflected earnings of $80,141 and $75,331, respectively, and his annual salary at the time of trial was $66,000. Eloise was employed by Official Airline Guides with an annual income of almost $49,000.

Quadro is an advertising or promotional specialties wholesaler. It essentially provides promotional items to its customers, who in turn offer them to prospective customers to encourage business or to sales employees as incentives for obtaining business. Calculators, pens, and other similar items are typical products that Quadro merchandises. T.J. Distributing (T.J.) was a formally recognized division of Quadro, and Gifts that Grow, although unofficial, was also treated as a separate division.

Initially, Quadro operated as an independent representative of the producers of promotional products, and its income was principally derived from commissions. However, in 1986, Quadro evolved and began purchasing products through its T.J. Distributing division. Quadro paid for such products and invoiced its customers, so that its income was principally derived from the excess of its sales over its cost of sales. Gifts that Grow differed from Quadro’s other programs because Quadro sold gift certificates, which were later redeemed for nursery products.

Quadro maintained no inventories, but rather had its vendors ship all merchandise directly to its customers. Quadro operated on a cash basis with a fiscal year end of January 31. Wolf and Company, Quadro’s accountants, then compiled its financial records from documents supplied by Thomas and prepared Quadro’s tax returns.

Thomas was Quadro’s president, sole shareholder, and, as of the valuation date, its sole employee. Quadro’s business had been conducted from the marital home, but was relocated to an office complex during the pendency of this action at which time an office manager was hired. Eloise participated in the business and performed computer work for Quadro, for which she was paid sums that the parties agreed were non-marital funds.

In addition to Thomas’ sales efforts, Quadro merchandised products through independent contractors. In May 1986, Thomas hired Theresa Bronkema Slater as an independent contractor. Theresa was paid $1,000 per month as draw against commissions. On two occasions, once in 1987 and once in 1988, Theresa was paid an additional month’s draw without explanation. In addition to her sales efforts, Thomas testified that Theresa performed administrative work two to three days a week at Quadro’s office located in the parties’ home, although she then resided in Rockford. In 1986, Theresa was provided with a 1984 Lincoln as a company car. All repairs, insurance, and gas were paid by Quadro. No other independent contractor was provided an auto. Thomas attended six to eight trade shows yearly, and Theresa accompanied Thomas on four to six of such trips. Both Theresa and Thomas, as well as occasionally another individual who was promoting one of Quadro’s lines, occupied the sales booth during the shows, answering questions and distributing literature. Theresa shared Thomas’ hotel suite on such trips. Other expenses paid either by Quadro or by Thomas and reimbursed to him by Quadro included the travel expenses of the trade shows, modeling photos of Theresa both with and without Quadro products, a modeling composite for Theresa, Theresa’s moving expenses when she relocated from Rockford to Bolingbrook, furniture and draperies for Theresa’s apartment in Bolingbrook, and expenses for the Sybaris, which is an adult motel in the Chicago suburbs.

Eloise retained Daniel Anderson as an expert to testify at trial and give an opinion of the value of Quadro, to which Thomas objected asserting that Anderson was not qualified. Anderson had practiced as a CPA since 1974 and additionally was certified as a financial planner since 1988. Anderson had previously conducted two or three other business evaluations and was in the process of completing yet another. Anderson, however, had not testified as an expert. Rather, on one occasion he had testified as to the methodology of the evaluation, and in another his testimony had been unnecessary because the case settled. However, he had rendered opinions as to the value of businesses, although not at trial. Anderson had no formal evaluation training. However, he reviewed and applied the formula for valuation of intangible assets set out in the publication recommended by the Illinois CPA Society, as well as consulting with its author, Arthur Crandall, who was a well-known expert in the area. Anderson had never written any treatises, nor lectured on the subject of evaluating businesses. Over Thomas’ objection, the court found that as a CPA Anderson was a qualified expert and that his limited experience or formal evaluation training went only to the weight the court would give his testimony.

Anderson’s opinion was based entirely on documents supplied by Wolf and Company, which was not only Quadro’s accountants but also Thomas and Eloise’s accountants during the marriage. Such documents had in turn been supplied to Wolf and Company by Thomas. Quadro operated on a cash basis, and Wolf and Company, based on the documentation supplied by Thomas, converted Quadro to an accrual basis and compiled Quadro’s operating statements and tax returns each year at the end of Quadro’s fiscal year on January 31. However, because the valuation date was July 31, 1989, no compilation had been done for the six-month period from February 1, 1989, to July 31, 1989. Therefore, Anderson performed the compilation from documents provided pursuant to discovery requests and court order by Thomas to Wolf and Company, and in turn to Anderson. The February 1, 1989, through January 31, 1990, compilation remained unfinished at the time of trial in May 1990 because Wolf and Company had been occupied with preparation for the trial and had obtained an extension in which to file Quadro’s tax return. In addition to requesting generally all receipts, records, expenses, and documents, Anderson had specifically requested accounts payable relative to the Gifts that Grow division and was told by Wolf and Company that there were none. In preparing his compilation, Anderson did not consult with Thomas because he had been instructed to liaison through Wolf and Company.

Anderson’s opinion of the value of the tangible assets of Quadro was as follows:

In addition, using Crandall’s formula method for valuing excess earnings of a corporation over other similar companies in the same industry, Anderson valued Quadro’s intangible assets at $348,887.

In contrast, Robert Potoker of Wolf and Company testified as Thomas’ valuation expert. Potoker was also a CPA and an associate member of the American Society of Appraisers studying to become a full member. Potoker’s principal duties with Wolf and Company were to value businesses, but generally for purposes other than dissolution. He had valued between 75 and 100 small businesses and had testified as an expert on many occasions. Potoker had attended one of Arthur Crandall’s courses on business valuation, but had not himself lectured on the subject. Wolf and Company conducted an in-house seminar on valuation, an outline for which Potoker cursorily reviewed prior to its use. Although Eloise objected to Thomas’ use of an expert from Wolf and Company, the court found Potoker to be unbiased.

Potoker and Anderson agreed that Quadro had cash of $2,856, which was the net of negative balances in the T.J. and Quadro checking accounts against the balance of the Gifts that Grow account and the T.J. money market account of $9,734. Potoker initially valued Quadro’s tangible assets at $36,204. However, both Anderson and Potoker, in response to information gleaned from the other’s valuation report, prepared revised reports with corrections.

Anderson’s revised opinion, which was not submitted to the court except as evidence of the weight to be given Anderson’s initial opinion, was that Quadro had net tangible assets of $137,223, based on a $250 correction to the value of Quadro’s furniture and equipment. Anderson also corrected his estimate of Quadro’s intangible assets, correcting a mathematical error and substituting the 1989 comparable rates that were unavailable to Anderson at the time of his original report.

Potoker’s revised opinion increased his valuation of Quadro to $51,000 and was submitted to the court as evidence of Quadro’s value. The discrepancies were in essentially four key areas: (1) additional trade payables of $39,000 related to the Gifts that Grow division; (2) nontrade accounts payables of almost $12,000; (3) $12,700 shareholder receivable treated as personal income to Thomas by Potoker; and (4) additional total tax liabilities of $28,000, specifically $9,899 in Illinois sales tax and $2,862 in penalties per an August 1990 audit, $2,110 sales tax invoiced to a customer but not correctly offset by a corresponding payable, and an estimated $14,000 income tax for the period ending July 31, 1989.

During their testimonies, both Anderson and Potoker were presented with hypothetical facts, which, if true, would have changed their valuations. Specifically, Anderson admitted that if Gifts that Grow had payables, such liability would reduce his valuation. A similar hypothetical with regard to tax liabilities produced the same hypothetical result. However, Anderson repeatedly testified that Thomas, through Wolf and Company, failed to produce such documentation when requested, and Potoker admitted that the sales tax liability was a proposed amount based on an audit completed during the middle of trial.

At the time of his testimony, Potoker had no present recollection of the July 31, 1989, bank statement for the T.J. money market account, which reflected a balance of more than $19,000 but admitted that hypothetically such balance should have been included in Quadro’s cash. However, the financial statements admitted into evidence and used by both Potoker and Anderson indicated that the actual balance of $9,734, which was the net of the July 31, 1989, statement and two July checks for $5,000 each that had not cleared in July, was in fact included in Quadro’s cash.

In addition to the mortgage balance remaining on the marital home of $170,598 and a loan on Eloise’s car of $8,452, which were the only long-term debts, Thomas submitted evidence of short-term marital expenses totaling $17,877 as follows:

With the exception of the mortgage and real estate tax arrearages, however, all of these expenses were 1990 expenses. At the close of the trial on August 9, 1990, the court ruled on Eloise’s prior emergency motion to use marital funds to pay her share of outstanding mortgage payments and ordered Thomas to pay all of the July and August payments from Quadro funds. Further, the court ordered that the 1989 real estate taxes be paid from the proceeds of the sale of the parties’ Pine Grove condominium, which was a marital fund, subject to possible reimbursement at the time of final distribution.

After considering the parties’ written closing arguments, the court noted that it found both experts’ valuation suspect based on the difficulty in obtaining documents and was keenly aware that the experts’ opinions were based on records and information supplied by Thomas, about whose forthrightness the court had considerable reservations. The court expressly declined to comment specifically on the credibility of either parties’ expert witness. However, the court noted that although Potoker was unbiased and that the court did not look on his testimony unfavorably, the court was disturbed by Potoker’s apparent lack of knowledge of the T.J. money market account. The court recognized the use of the Crandall formula for valuing intangible assets as a means to account for income stripping in a closely held corporation such as Quadro and expressly found that abundant evidence of such stripping was presented. However, based on Potoker’s testimony that Quadro possessed no goodwill absent Thomas’ unique individual efforts, the court rejected Anderson’s estimate of Quadro’s intangible assets. The court accepted Anderson’s value of Quadro’s tangible assets of $137,473 as more accurate and, further, increased such value by $19,000 to account for the T.J. money market account believing it to have been omitted from both valuations.

The court found both that there was evidence that Theresa had done some work for Quadro and that Thomas’ payments to Theresa through Quadro had been an obvious subterfuge. Therefore, the court allowed the commissions paid to Theresa, as well as her expenses for lodging and meals while working at the trade shows and other unidentified expenses, as directly related to the work she performed for Quadro, but found that all other payments totaling $30,151.68 had been dissipation of marital assets as follows:

Because the court was unable to determine the amount of dissipation relative to the car provided Theresa, it instead considered it a factor in its eventual distribution of marital property.

The court found the parties’ total marital property to be $532,702, including Quadro valued at $137,473, dissipation of $30,152, the money market account of $19,000, and the Pine Grove condo sale account of $5,238. The court awarded Eloise 61% of the parties’ property including proceeds of the equity in the marital home, her IRAs and pension plan subject to a loan, her car subject to a loan, and $50,000 cash to be paid over three years at 8% interest and secured by Thomas’ IRA account. The court awarded Thomas 39% of the marital property, including Quadro, his IRAs, the $19,000 money market account, and the $5,238 Pine Grove condo sale account.

Thomas was ordered to pay child support of $1,500 per month, based on the court’s determination that he was capable of earning $100,000 per year. The court rejected Thomas’ claim of only $5,500 gross salary per month based on the evidence of personal expenses paid on Thomas’ behalf by Quadro and not reflected in Thomas’ salary. Thomas was ordered to pay 75% of his sons’ future college or trade school education, after exhaustion of all grants of scholarships, and to name Eloise as a cobeneficiary and co-owner on the life insurance policies that Thomas owned on the parties’ sons, with each party paying one-half of the cost. In addition, the court ordered Thomas to name Eloise as trustee on Thomas’ own life insurance policies for the benefit of the children until their completion of college or emancipation. Finally, the court determined that the parties should equally share any capital gains liability from the proceeds of the sale of the marital home and each assume any debts individually incurred by them since April 1, 1988.

Thomas now appeals, asserting nine errors. First, Thomas asserts that the trial court erred in allowing Anderson to testify as an expert and that the court’s acceptance of Anderson’s valuation of Quadro’s tangible assets was against the manifest weight of the evidence.

The trial court is vested with broad discretion in making the initial determination of whether a witness is qualified to testify as an expert. (Schaffner v. Chicago & North Western Transportation Co. (1989), 129 Ill. 2d 1, 36; Valiulis v. Scheffels (1989), 191 Ill. App. 3d 775, 785.) A party must show that the witness has specialized knowledge or experience in the area about which the witness is to offer an expert opinion. (Schaffner, 129 Ill. 2d at 36; Valiulis, 191 Ill. App. 3d at 785.) Such knowledge may be based on practical experience, scientific training, or academic training, and need only be knowledge beyond that of an average person. Schaffner, 129 Ill. 2d at 36; 134 Ill. 2d R. 220(a)(1).

Anderson was a CPA with 15 years of auditing and accounting experience, which is a specialized area normally beyond the knowledge of an average person and one in which the trial court expressly noted its lack of knowledge. Anderson had both formal academic training and practical experience in the area of accounting, which is essentially all that is involved in a valuation. In addition, Anderson had on several occasions valued medical practices for purposes of dissolution of marriage proceedings, although he had not testified in those proceedings at the time of this trial. Such medical practices, which are based on an individual’s professional skills, closely parallel Quadro, based on Thomas’ unique individual skills.

Thomas’ argument that specific experience or training in valuation is necessary is without merit because valuation is merely a small part of the larger discipline of accounting. So, too, we find disingenuous Thomas’ argument that experience testifying is necessary to be qualified as an expert witness. The act of testifying does not create the specialized knowledge of an expert witness, but rather the education, training or practical experience gained prior to testifying render a witness qualified to offer an expert opinion. Finally, we note that much of Thomas’ argument goes to that portion of Anderson’s opinion that the court rejected: the value of Quadro’s intangible assets. Neither party on appeal disputes the correctness of that portion of the court’s determination, and Thomas’ assertions of such flaws are, therefore, not relevant on this appeal. The trial court’s determination that Anderson was qualified as an expert and that his limited experience in valuation proceedings went only to the weight of his testimony was not an abuse of discretion.

Thomas also contends, however, that the court’s acceptance of Anderson’s valuation of $137,473 for Quadro was against the manifest weight of the evidence. Precise rules for determining the value of closely held stock cannot be laid down, but rather all evidence reflecting the worth of the entity should be considered. (In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 61; In re Marriage of Mitchell (1981), 103 Ill. App. 3d 242, 248.) Both the future economic outlook and the capitalization of future earnings are important tools for valuing a closely held corporation. (Rossi, 113 Ill. App. 3d at 60.) Conflicts in testimony regarding the value of marital assets in an action for dissolution are matters for the trier of fact, and a valuation within the range testified to by the parties’ experts will not be disturbed on review. In re Marriage of Stone (1987), 155 Ill. App. 3d 62, 71 (marital home); In re Marriage of Weinberg (1984), 125 Ill. App. 3d 904, 910 (co-op marital apartment).

Thomas asserts that the court failed to consider several apparent errors in Anderson’s valuation of Quadro’s tangible assets, which created the discrepancy between Anderson’s and Potoker’s valuations. However, the court expressly found Thomas’ credibility suspect and, further, that both valuations were based on information supplied by Thomas. As a result, the court found that both Anderson’s and Potoker’s valuations were suspect. The court specifically found that there had been abundant evidence of income stripping, which it did not account for via the recognized capitalization of earning method. Thus in its order, the court considered all the evidence specifically including factors compensating for the alleged errors in Anderson’s valuation. In light of its assessment of Thomas’ credibility, the court was free to choose to accept Anderson’s valuation, despite its flaws, as a more accurate reflection of Quadro’s true value. Specifically, the court was free to reject Thomas’ testimony that the Gifts that Grow program would generate future accounts payable liabilities or the existence of other unsubstantiated nontrade payables. So, too, the court was equally free to refuse to reduce Quadro’s value based on projected tax liabilities or misclassified shareholder receivables in light of the court’s perception that there had been abundant evidence of income stripping. Thus, the trial court’s determination that Quadro had a value of $137,473 on July 31, 1989, was within the range of values of $51,000 and $486,360 testified to by the experts and was not against the manifest weight of the evidence.

Thomas next alleges that the court erred in finding a dissipation of Quadro because the court specifically found that Theresa had performed some work. Alternately, Thomas argues that the court incorrectly determined the amount of dissipation in failing to allow the modeling expenses incurred in which Theresa modeled Quadro products.

Dissipation occurs if one spouse uses marital property for his or her own benefit during a period when the marriage was in the process of irrevocable degeneration. (In re Marriage of O’Neill (1990), 138 Ill. 2d 487, 497; In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1019; Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).) The spouse charged with dissipation must establish by clear and specific evidence that the funds were not inappropriately spent. (Smith, 128 Ill. App. 3d at 1022.) General or vague statements that funds were spent for marital purposes are insufficient. (Smith, 128 Ill. App. 3d at 1022.) Compensation paid to third parties is dissipation if it is inconsistent with such compensation paid to others with similar skills for similar work. In re Marriage of Calisoff (1988), 176 Ill. App. 3d 721; In re Marriage of Aud (1986), 142 Ill. App. 3d 320, 332.

Theresa was an independent contractor and paid a draw of $25,500 against commissions of $5,205, which overpayments were never adjusted. Theresa was paid duplicate draws without any attempt to collect the excess payments. Thomas, through Quadro, provided Theresa with a company automobile, including insurance, repairs, and gas. No other independent contractor was similarly compensated. Thus, it is clear that the payment of draws and the provision of a company car were compensation inconsistent with that provided others with similar skills performing similar duties. (See Aud, 142 Ill. App. 3d at 332.) Nor was Thomas’ payment of Theresa’s moving expenses and his purchase of furniture and draperies related in any way to her duties for Quadro. Finally, Thomas’ payment of charges for the Sybaris, an adult motel located near his home, cannot reasonably be argued to bear any relation to Quadro’s business. In light of the ample evidence of dissipation, the inadequacy of Quadro’s records, and the court’s assessment of Thomas’ lack of credibility, we also find no merit in Thomas’ argument that some portion of the modeling expenses he paid were for the benefit of Quadro. We note that the court expressly found that the dissipation was greater than that allowed due to the automobile provided Theresa. Thus, the court’s determination of the amount of dissipation was supported by all the evidence and was not an abuse of discretion.

Both Thomas’ third and fourth alleged errors concern the court’s distribution of the marital estate, which Thomas asserts was an abuse of the court’s discretion. However, an appellate court will only find an abuse of discretion in apportioning marital property where no reasonable person would have adopted the court’s decision. (In re Marriage of Hanson (1988), 170 Ill. App. 3d 298.) A court is not, however, bound to make an equal division but rather only one that is in just proportion. (Weinberg, 125 Ill. App. 3d at 913; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311.) Only if such distribution results in substantial injustice will a reviewing court find an abuse of discretion. (Weinberg, 125 Ill. App. 3d at 913.) Factors to be considered include the contribution or dissipation of each party in the acquisition and preservation of the marital property and the reasonable opportunity of each spouse for future acquisition of assets and income. (Ill. Rev. Stat. 1987, ch. 40, pars. 503(d)(1), (d)(10).) In addition, a court must also consider: the value of nonmarital property; the duration of the marriage; the relevant economic circumstances of each spouse when the property division is to take effect; the age, health, occupation, amounts and sources of income, skills, employability, estate, liabilities, and needs of each spouse; the custodial provisions for any children; whether maintenance is to be awarded in lieu of or in addition to the property; and the tax consequences of the property division. Ill. Rev. Stat. 1987, ch. 40, par. 503(d) et seq.

The court awarded Thomas 39% and Eloise 61% of the marital estate based on the disparate ability of the parties to generate future assets and income. Although the court held that Eloise’s inheritance of $50,000 was contributed to the marital estate as a gift, the court specifically considered Eloise’s contribution of such funds in apportioning the estate. The court also specifically indicated that it considered the dissipation as a result of Thomas’ providing a car to Theresa in the distribution of marital assets. Thus, the court’s award was not so unreasonable as to be an abuse of discretion. In re Marriage of Frazier (1988), 164 Ill. App. 3d 207 (award of 79% of marital estate proper in light of wife’s contribution of nonmarital property to marital estate and husband’s ability to generate income).

Thomas further alleges, however, that the court’s apportionment of the marital estate suffered from obvious accounting errors and such errors combined with the court’s overvaluation of Quadro and the amount of dissipation resulted in an apportionment that was an abuse of discretion. Thomas’ assertion loses much of its persuasion in light of our determination that the court did not err either in determining Quadro’s value or in determining that a dissipation occurred and its amount. Nevertheless, we find errors in the court’s accounting did occur, and we amend the judgment of the trial court to correct such errors. See 134 Ill. 2d R. 366.

The court awarded Thomas both the $19,000 money market account and the $5,238 Pine Grove sale fund. However, both Anderson’s and Potoker’s valuations began with a cash figure that included the money market, although at the correct balance of $9,734, which allowed for checks issued in July that had not cleared at the time of the July 31, 1989, statement introduced into evidence. Eloise’s argument that such checks do not affect the value of the account on its July 31, 1989, valuation date ignores basic accounting as simple as balancing a checkbook. Thus, the marital estate was overstated by $19,000 and should have been valued at $513,702. In addition, the Pine Grove sale account had been used to pay the 1989 real estate taxes on the marital home by order of the court. In reducing the liabilities outstanding against the equity of the marital residence, the court effectively increased its value as distributed to Eloise. To allow for these accounting errors, we reduce the $50,000 to be paid by Thomas to Eloise to $25,762. With these corrections, the percent of marital property awarded to Eloise returns to 61% as determined by the trial court to be appropriate under the facts of this case.

Thomas next contends that the court erred in requiring him to pledge his IRA account to secure his payment of the cash award to Eloise. Tax consequences of a property distribution are one of the factors to be considered by the court in making a property distribution upon dissolution of marriage. (In re Marriage of Matters (1985), 133 Ill. App. 3d 168, 183; Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).) However, speculative tax consequences are inappropriate for the court’s consideration. In re Marriage of Emken (1981), 86 Ill. 2d 164, 167; In re Marriage of Kapusta (1986), 141 Ill. App. 3d 1010, 1017; In re Marriage of Block (1982), 110 Ill. App. 3d 864, 868.

In this instance, Thomas asserts that section 408 of the Internal Revenue Code (26 U.S.C. §408(e)(4) (1988)) renders the use of his IRA as security for the court’s judgment a distribution and, thus, subject to both taxes and penalties. However, a judgment is distinct from a loan, and Thomas cites no authority to support his argument that use of his IRA as security pursuant to court order would be considered a taxable event by the Internal Revenue Service. Thus, Thomas’ possible future tax consequences are speculative, and the trial court was not required to consider such potential liabilities.

The sixth error raised by Thomas concerns both the life insurance policies on his life and on those of the parties’ two sons. However, Thomas cites no authority for his argument that the court’s order directing him to name Eloise co-owner and cobeneficiary on policies now owned by Thomas on the lives of the parties’ two sons, and further ordering each to pay one-half of the cost of such policies, was error. We, therefore, do not consider that portion of Thomas’ argument. 134 Ill. 2d R. 134; Webb v. Angell (1987), 155 Ill. App. 3d 848, 854.

In addition, Thomas asserts that the court was required to make a finding of special circumstances that a trust was necessary to protect and promote the best interests of the children before requiring Thomas to name Eloise as trustee for the benefit of their sons on Thomas’ life insurance policies. (See In re Marriage of Dulyn (1980), 89 Ill. App. 3d 304, 311; Ill. Rev. Stat. 1987, ch. 40, par. 503(g).) However, as In re Marriage of Dulyn makes clear, the court could order such trust without a finding of special circumstances under section 510(c) of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 510) to insure the fulfillment of the support obligation should Thomas die. (Dulyn, 89 Ill. App. 3d at 311-12.) In literally identical circumstances, the court in Dulyn held that an order requiring a husband to name his son as irrevocable beneficiary of the husband’s life insurance policy did not require a finding of special circumstances in light of the husband’s continuing obligation of support in the event of his death. (Dulyn, 89 Ill. App. 3d at 311-12.) Thus, the court did not err in requiring Thomas to name Eloise as trustee of Thomas’ life insurance policies for the benefit of the parties’ two sons until the completion of their college education or emancipation.

As his seventh error, Thomas asserts that the court abused its discretion is determining the amount of child support. The court found that in addition to Thomas’ gross salary of $5,500, he received additional income from the personal expenses paid on his behalf by Quadro. The court, therefore, found that Thomas’ net monthly income was $6,000 and ordered him to pay $1,500 per month in child support, which is the statutory guideline of 25% applicable for two children.

The amount of an award of child support is within the discretion of the trial court and will not be reversed absent a showing that the trial court abused such discretion. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385, 391.) Analysis of the proper amount of child support begins with section 505 of the Marriage Act (Scafuri, 203 Ill. App. 3d at 391), which provides the trial court with guidelines for the minimum amount of child support to be awarded. (In re Marriage of Steichen (1987), 163 Ill. App. 3d 1074, 1080.) The statutory factors enumerated in section 505(a)(2) need not be considered unless the court deviates from the statutory guidelines. (In re Marriage of Tatham (1988), 173 Ill. App. 3d 1072, 1093.) Although a judge may not blindly rely on the guidelines and surrender responsibility for considering other relevant factors (In re Marriage of Blaisdell (1986), 142 Ill. App. 3d 1034, 1040), it is the parent seeking a deviation from the guidelines who bears the burden of presenting evidence justifying such diversion. (In re Marriage of Rogliano (1990), 198 Ill. App. 3d 404, 411.) Such deviation from the guidelines requires the court to make specific findings based on the consideration of section 505(a)(2) of the court’s reasons for so doing. Ill. Rev. Stat. 1989, ch. 40, par. 505(a)(2); Blaisdell, 142 Ill. App. 3d at 1041.

As a prerequisite to determining the proper amount of child support, however, the court must first determine the noncustodial parent’s net income (Ill. Rev. Stat. 1987, ch. 40, par. 505(a)(1)), which may be difficult to ascertain and an impediment to determining an award of child support. (In re Marriage of Lefler (1988), 185 Ill. App. 3d 677, 681.) If present net income is not ascertainable or uncertain, a court may consider past earnings. (Block, 110 Ill. App. 3d at 869; In re Marriage of Butter (1982), 106 Ill. App. 3d 831, 836-37.) The credibility and forthrightness of the noncustodial parent in disclosing income is a factor to be considered in accepting evidence of net income. (See Lefler, 185 Ill. App. 3d at 683.) Bimonthly payroll receipts for periods less than a year for a noncustodial parent with above-average income may not reflect true income because such partial records do not reflect increased income on reaching maximum FICA withholding. (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 324.) Similarly, other options exercised at the discretion of the noncustodial parent may reduce the net income appearing on an isolated payroll receipt. Stockton, 169 Ill. App. 3d at 324.

We note initially that the court was not required to make specific findings because it did not deviate from the guidelines of the Marriage Act. Rather, the issue presented is more accurately whether the court abused its discretion in determining that Thomas’ net monthly income was $6,000. The court had ample evidence that Thomas enjoyed more than the income reflected on his payroll receipts for the first six months of 1989. Anderson testified to over $22,000 per year in personal expenses paid by Quadro on Thomas’ behalf, which Thomas’ own expert testified should be treated as income personal to Thomas. Thomas’ gross income in 1982, prior to starting Quadro and eight years prior to the trial, was $98,783. In 1988, his gross income was $80,141 plus expenses paid by Quadro. In 1989, his gross income was $75,331 exclusive of Quadro’s payment of his personal expenses or any bonuses such as he paid himself prior to the filing of these proceedings in 1988. Thomas’ payroll receipts neither reflected his election to forego such bonuses nor the additional income he enjoyed through Quadro. Finally, the court could consider Thomas’ lack of forthrightness in assessing the weight to be given the evidence of his income. Thus, the court had ample evidence that Thomas enjoyed substantially more than the $5,500 in gross income to which he testified and did not abuse its discretion in finding that Thomas earned net income of at least $6,000 monthly.

Thomas next asserts that the court erred in ordering him to pay 75% of the cost of his two sons’ college education costs. Thomas argues that the court failed to consider the financial resources of the parties or the cost of such education.

We are again governed by the standard of review as applicable to the court’s apportionment of the marital estate of whether the court so abused its discretion that no reasonable person could agree with the trial court. (In re Marriage of Albiani (1987), 159 Ill. App. 3d 519, 526.) In determining parental responsibility for educational expenses, the financial resources of both parents, the child, and the standard of living of the child absent divorce must be considered (Ill. Rev. Stat. 1987, ch. 40, par. 513). Within such consideration, the cost of the education will necessarily be considered as well. In re Marriage of Cooper (1981), 102 Ill. App. 3d 872, 876-77; see also Ingrassia v. Ingrassia (1987), 156 Ill. App. 3d 483.

Thomas’ argument ignores the court’s clear statement that its order regarding college education expenses was based on Thomas’ superior abilities to generate financial resources and was rendered within the context of its discussion of child support, to which the financial resources of the parties, children, and marital standard of living are applicable. So, too, Thomas’ argument fails to grasp that the price of such education is material only relative to such financial considerations. Having found that the court properly considered the necessary factors, we cannot say that its determination that Thomas assume responsibility for 75% of the parties’ sons’ college education was an abuse of discretion.

Finally, Thomas asserts that the court failed to allocate responsibility for the parties’ marital debts. This argument is simply not supported by the record. The court ordered Eloise to assume responsibility for her car loan, the loan against her profit sharing, individual debts incurred by her since the filing of her petition for dissolution, one-half the cost of the boys’ life insurance, and one-half of the capital gains liability from the sale of the marital residence. The court ordered Thomas to assume responsibility for all liabilities of Quadro, his individual debts incurred since the filing, one-half the cost of the boys’ life insurance, and one-half of the capital gains liability from the sale of the marital home. A prior court order had ordered the parties to share equally all household expenses incurred after April 1, 1988, the date on which Eloise filed her petition. Thomas testified that he voluntarily wished to assume all responsibility for the parties’ sons’ tennis expenses. No debts remain for distribution, with the exception of the balance of the mortgage on the marital residence.

However, both parties testified that the marital residence was to be sold and had in fact been listed for sale during the entire proceedings. Thus, Thomas’ citation to precedent in which property, but not liabilities thereon, was awarded to one party who retained and used the property is not controlling. (See In re Marriage of Guntren (1986), 141 Ill. App. 3d 1, 7 (error to award actively used farm equipment to wife and liability thereon to husband).) Thus, we also dispose of Thomas’ argument that the court erred in apportioning the capital gains liability from the sale of the marital home and awarding the equity in the home to Eloise.

With the exception of the trial court’s accounting errors in including the T.J. money market account as an asset separate from Quadro and in failing to increase the value of the marital home by the reduced real estate tax liability, we find each of Thomas’ asserted errors to be without merit. We modify the court’s order of distribution of the marital estate and reduce the amount to be paid by Thomas to Eloise from $50,000 to $25,762 to correct this error.

The judgment of the trial court is affirmed as modified.

Affirmed.

DUNN and GEIGER, JJ., concur.


text:
    SCOTT E. WILLIAMS, Plaintiff-Appellant, v. PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, Defendant-Appellee.
    Second District
    No. 2 — 91—0321
    Opinion filed January 15, 1992.

      H. Kent Heller and Brian R. Keeley, both of H. Kent Heller & Associates, P.C., of Naperville, for appellant.
    Kathryn L. Krueger, Daniel J. Leahy, and Stephen P. Eisenberg, all of Leahy, Eisenberg & Fraenkel, Ltd., of Chicago, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Plaintiff, Scott E. Williams, appeals from the order of the trial court which granted summary judgment to defendant, Prudential Property and Casualty Insurance Company. The issue on appeal is whether plaintiff complied with the filing limitation provision in his Prudential homeowner’s insurance contract. We have jurisdiction pursuant to Supreme Court Rule 303(a) (134 Ill. 2d R. 303(a)). Plaintiff invokes section 13 — 211 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211) and argues that his incarceration in prison, part of which was on a work-release arrangement, tolled the filing limitation provision of the policy. Plaintiff also argues that defendant waived the limitation provision by waiting more than one year from the date of plaintiff’s claims to deny the claims. We affirm.

On October 13, 1989, plaintiff filed a complaint against defendant insurance company alleging that defendant had breached plaintiff’s homeowner’s insurance contract by failing to cover property damage losses sustained by plaintiff on four separate occasions. Plaintiff claimed that defendant denied his four “theft of personal property” claims arising from thefts occurring on July 11, 1986; December 4, 1986; December 14, 1986; and January 15, 1987. The thefts occurred at plaintiff’s various claimed residences and his place of business. Plaintiff claimed that more than $42,000 in personal property was taken, including such items as eight car engines and transmissions, a two-ton hydraulic jack, eight car stereos with matching speakers, various tires and wheels, various hand and power tools, musical instruments and recording equipment, a washer and dryer, bicycles, various household appliances, televisions, two water beds, a lawn tractor and artwork.

Defendant denied plaintiff’s claims for coverage in four separate letters, all of which were attached to plaintiff’s complaint. The first, dated March 25, 1987, granted partial reimbursement for the alleged loss occurring on July 11, 1986. While the letter denied coverage for 18 allegedly stolen items, the letter indicates that defendant granted reimbursement for part of plaintiff’s alleged loss since a check in the amount of $5,718 was apparently issued to plaintiff. In three separate letters, each dated August 18, 1988, defendant denied coverage for plaintiff’s claims of $14,709 for the alleged loss occurring on December 4, 1986; $14,726 for the alleged loss occurring on December 14, 1986; and $10,556 for the alleged loss occurring on January 15,1987.

The relevant provision in plaintiff’s insurance contract regarding lawsuits by the insured against defendant provides:

“8. Suit Against Us. No action shall be brought unless there has been compliance with the policy provisions and the action is started within one year after the occurrence causing loss or damage.
However, this one year period is extended by the number of days between the date proof of loss is submitted and the date the claim is denied in whole or in part.”

The last sentence in the above provision is based on and in compliance with section 143.1 of the Illinois Insurance Code (Ill. Rev. Stat. 1987, ch. 73, par. 755.1).

Thus, plaintiff filed his complaint in October 1989 nearly 14 months after defendant’s denial of the last three of the four claims and over V-k years after defendant’s denial of the first claim. The relevant dates in this case are summarized below:

On January 11, 1990, defendant filed an answer to the complaint and a motion for summary judgment. Defendant argued that plaintiff failed to file his lawsuit in a timely manner, citing the above paragraph of the insurance contract. On March 9, 1990, the trial judge heard arguments on defendant’s motion. The trial judge granted defendant’s motion for summary judgment and allowed plaintiff leave to file an amended complaint. Plaintiff’s second amended complaint was filed June 4, 1990, and was distinct from his original complaint only insofar as it alleged “[t]hat from November 30, 1986 to November 30, 1988, Plaintiff was incarcerated by the Illinois Department of Corrections on a criminal charge.” Plaintiff asserted in his second amended complaint that he could file suit against defendant regarding the insurance contract anytime within two years after his “disability” or imprisonment was removed, pursuant to section 13 — 211 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211).

On June 26, 1990, defendant answered plaintiff’s second amended complaint and again filed a motion for summary judgment. Defendant argued that section 13 — 211 had no relevance to the insurance contract at issue. On July 26, 1990, the trial judge denied defendant’s motion without prejudice to a similar motion if subsequently discovered facts should warrant.

Defendant deposed plaintiff on November 30, 1990, at the Menard Correctional Center in Menard, Illinois. At his deposition, plaintiff testified that pursuant to a work-release program, he was not imprisoned weekdays from 6 a.m. until 11:30 p.m. from April 1988 to November 1988. He stated that he lived at his mother’s house in Lombard, Illinois, and his home in Lisle, Illinois, on weekends from July 1988 to November 1988. Plaintiff also stated that he was living in Lombard in the spring of 1987.

Based on the new facts obtained at plaintiff’s deposition, defendant filed a third motion for summary judgment. Defendant again argued that plaintiff failed to timely file his action under the insurance contract provisions and further argued that section 13 — 211 did not apply, particularly in light of plaintiff’s deposition testimony. Plaintiff attached an affidavit to his answer to defendant’s motion stating that he was convicted of a felony and sentenced to 41/2 years’ incarceration at the Department of Corrections on November 30, 1986. The trial judge heard oral arguments and granted defendant’s motion for summary judgment on February 13, 1991, based on plaintiff’s untimely filing of his complaint. Plaintiff filed a timely notice of appeal.

Plaintiff contends that the trial judge erred in granting defendant’s motion for summary judgment (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005). Summary judgment is proper where there is no genuine issue of material fact and judgment may be granted as a matter of law. (Mitchell v. Jewel Food Stores (1990), 142 Ill. 2d 152, 165.) The court must construe all pleadings, depositions, affidavits and admissions strictly against the movant. (Mitchell, 142 Ill. 2d at 165.) Where other facts are not in dispute, construing a contract as a matter of law may be suitable for summary judgment. (National Underground Construction Co. v. E.A. Cox Co. (1991), 216 Ill. App. 3d 130, 134.) To withstand a motion for summary judgment, the nonmoving party must present some factual basis that arguably may entitle him to judgment. (Harkins v. System Parking, Inc. (1989), 186 Ill. App. 3d 869, 872; see Carruthers v. B.C. Christopher & Co. (1974), 57 Ill. 2d 376, 380-81.) “Here, then, our function is to determine whether the trial court correctly found that no genuine issue of material fact existed and also to determine whether judgment was correctly entered for the moving party as a matter of law.” Zale Construction Co. v. Hoffman (1986), 145 Ill. App. 3d 235, 241; Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1005(c).

We first address plaintiff’s contention that section 13 — 211 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13— 211) provides support for his argument that his imprisonment, part of which was on a work-release arrangement, tolled the filing limitation provision of the homeowner’s policy. Section 13 — 211 provides, in pertinent part:

“If the person entitled to bring an action, specified in Sections 13 — 201 through 13 — 210 of this Act, at the time the cause of action accrued, *** is imprisoned on a criminal charge *** then he or she may bring the action within 2 years after *** the person ceases to be imprisoned.” Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211.

We note that while both parties present arguments as to the applicability of the 1985 version of section 13 — 211 (Ill. Rev. Stat. 1985, ch. 110, par. 13 — 211) to this case, we find that the 1987 version (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 211) applies since the activating law for the latter provides that “[t]his Act *** is applicable to all cases filed on and after January 1, 1988” (Pub. Act 85 — 18, §2, eff. January 1, 1988). Plaintiff filed suit in October 1989, so the 1987 version plainly applies. There was little change in the substance of section 13 — 211 between the 1985 and 1987 versions, so we will accept the parties’ arguments as directed to the 1987 version.

The primary rule of statutory construction is that the intention of the legislature should be ascertained and given effect. (People v. Bryant (1989), 128 Ill. 2d 448, 454-55.) “When doing so, the language of the statute must be given its plain and ordinary meaning. [Citation.] Thus, one must first look to the language of the statute itself, because the statutory language best indicates the drafters’ intent.” (Bryant, 128 Ill. 2d at 455.) In determining legislative intent, the court should consider the entire statute, the evil to be remedied and the object to be attained. (City of Decatur v. American Federation of State, County & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 364.) We will examine section 13 — 211 in light of the above rules of statutory construction.

We do not accept plaintiff’s interpretation of how section 13— 211 applies to the facts of this case. Nor do we accept plaintiff’s circuitous method, which refers to various sections of the criminal code, for defining “imprisonment” as the term is used in section 13 — 211. Plaintiff argues that he was incarcerated within the Department of Corrections at the time that his cause of action in each of his four claims accrued and thus came under the two-year extension provided in section 13 — 211. However, by submitting little more than a personal affidavit alleging his 41/2-year sentence which began in November 1986 and a limited work-release arrangement in 1988, plaintiff has failed to substantiate adequately his claim of imprisonment. As the trial judge noted, had plaintiff submitted a copy of the original sentencing order and a copy of his work-release order in opposition to defendant’s motion for summary judgment, the result may have been different. Furthermore, plaintiff’s affidavit and claim of “imprisonment,” as the word is used in section 13 — 211, is undercut by his earlier deposition testimony that he was on a liberal work-release program from April 1988 to November 1988 and in fact lived at his mother’s residence or his home on weekends from July 1988 to November 1988. (See Albright v. Parr (1984), 126 Ill. App. 3d 464, 468 (in a summary judgment proceeding, plaintiff’s admissions in depositions cannot be contradicted by his subsequent affidavit).) We conclude that plaintiff has failed to present a factual basis that would arguably entitle him to judgment.

We do not believe the legislature intended for section 13 — 211 to apply to cases such as this one where plaintiff was physically imprisoned for 6V2 hours a day during weekdays, with the remaining 17V2 hours each weekday and weekends spent on a liberal release arrangement. Surely the legislature intended section 13 — 211 to apply to a “full-time” prisoner who has “restricted access to the judicial system due to [his] confinement.” (Hardin v. Straub (1989), 490 U.S. 536, 541, 104 L. Ed. 2d 582, 590, 109 S. Ct. 1998, 2002 (construing a similar Michigan statute of limitations); see Scott v. Archer-Daniels-Midland Co. (1990), 194 Ill. App. 3d 510, 515 (trial court properly dismissed action because plaintiff was not incarcerated at the time his cause of action accrued, section 13 — 211 did not apply, and plaintiff’s suit was therefore not timely filed).) We therefore conclude that section 13 — 211 does not apply to this particular case.

Cases cited by plaintiff are inapposite. Both Halper v. Vayo (1991), 210 Ill. App. 3d 81, and Wilbon v. D.F. Bast Co. (1978), 73 Ill. 2d 58, focus on statutes of limitation as they apply to minors, not imprisoned people.

Plaintiff’s second argument as to why his lawsuit was timely filed is that “defendant waived the limitation period provision of the insurance policy by waiting more than one year from the date of the plaintiff’s claims to deny those claims.” We agree with defendant that plaintiff’s waiver argument is meritless and improperly raised.

Plaintiff’s argument is premised on a basic misunderstanding of the tolling feature within the filing limitations provision of his homeowner’s insurance policy. Plaintiff argues that “[t]he issue is whether the defendant waived its own contractual statute of limitations period by denying the plaintiff’s claims in a manner such that the statute of limitations period had already run before the claims were denied.” The insurance contract here contains a tolling clause which tolls or temporarily suspends the one-year filing period as soon as the insured provides proof of the loss to the insurer and until the insurer denies the claim, in whole or in part. There is no way, as defendant argues, that the one-year filing period could expire before the claims were denied — -unless the one-year period expired before the insured even submitted a proof of loss to the insurer. We note, parenthetically, that this is exactly what occurred with plaintiff’s second claim for a loss occurring on December 4, 1986. Plaintiff did not submit a proof of loss on that claim until December 14, 1987, more than one year after the date of loss, foreclosing any possibility of a lawsuit on that claim. We conclude that plaintiff’s argument that defendant waived the filing limitation period is without merit.

Again, cases cited by plaintiff are inapposite to our conclusion. In fact, the result in both Vole v. Atlanta International Insurance Co. (1988), 172 Ill. App. 3d 480, and Davis v. Allstate Insurance Co. (1986), 147 Ill. App. 3d 581, was that the trial court’s finding that the insured had not complied with the one-year filing time requirement was affirmed by the appellate court. The same result applies here.

Defendant also argues that plaintiff’s waiver argument was improperly raised since plaintiff’s second amended complaint does not include any allegations of waiver or even allege circumstances that would appear to indicate that defendant waived the filing time provision. We agree.

Defendant correctly notes that this court has held that “[a]ny suit filed after the contractual period has expired is barred unless the insurer has, by some conduct or representation, waived the requirement.” (Village of Lake in the Hills v. Illinois Emcasco Insurance Co. (1987), 153 Ill. App. 3d 815, 817.) In that case, this court stated:

“The insured may demonstrate a waiver by showing facts from which it would appear that enforcement of the provision would be unjust or unconscionable [citation], as where the insurer dissuades the insured from filing suit by implying that it will settle the case [citation]. While the insured need not produce uncontroverted proof of a waiver or estoppel [citation], it must nevertheless show that the insurer’s conduct was inconsistent with an intent to insist on compliance with the provision [citation] or that the insurer’s conduct unfairly induced the insured to delay filing suit.” Village of Lake in the Hills, 153 Ill. App. 3d at 817.

We find no facts alleged by plaintiff that support his contention that defendant waived the filing time provision of plaintiff’s homeowner’s insurance policy.

For the foregoing reasons, the judgment of the circuit court which granted summary judgment to defendant is affirmed.

Affirmed.

UNVERZAGT and McLAREN, JJ., concur.


author: JUSTICE GORMAN

text:
    SHIRLEY L. STASH, Plaintiff-Appellant, v. FRANCIS J. DOLL, Defendant-Appellee.
    Third District
    No. 3 — 91—0440
    Opinion filed January 15, 1992.
    Elmo E. Koos, Sr., of Peoria, for appellant.
    T. Donald Henson, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle (Michael C. Jansz, of counsel), for appellee.
   JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Shirley Stash, appeals from a dismissal with prejudice of her claim against the defendant, Francis Doll, for lack of diligence in obtaining service of process. We reverse.

On August 1, 1986, plaintiff and defendant were involved in a traffic accident. On July 28, 1988, plaintiff filed suit against defendant. On August 1, 1988, a summons was issued and plaintiff attempted to have defendant served at the address shown on the accident report, which address was 1313 North Second Street, Henry, Illinois. The summons was returned expired and unserved because the address was incorrect.

Plaintiff inquired about the matter and learned that the house at the Henry address was vacant. Plaintiff then contacted the Secretary of State’s office and was told that the license number shown on the accident report was nonexistent in Illinois. Plaintiff contacted the Marshall County sheriff’s office to learn where defendant lived, but to no avail. The 1989/90 telephone directory for the Lacon-Henry-Chillicothe area did not show a listing for defendant.

In early January 1990, plaintiff learned from the sheriff’s office that defendant resided in Varna, Illinois. On January 9, 1990, an alias summons was procured and two days later defendant was served.

In December 1990, defendant filed a motion to dismiss pursuant to Supreme Court Rule 103(b) (134 Ill. 2d R. 103(b)), alleging that plaintiff failed to exercise reasonable diligence in serving process on defendant. In January 1991 the court granted the motion and dismissed the cause with prejudice. Plaintiff now appeals.

Supreme Court Rule 103(b) provides in relevant part that an action shall be dismissed with prejudice if a plaintiff’s failure to exercise reasonable diligence to obtain service occurs after the expiration of the applicable statute of limitations. The dismissal of an action pursuant to Rule 103(b) is within the discretion of the trial court and will not be disturbed on review absent an abuse of that discretion. Montero v. University of Illinois Hospital (1978), 57 Ill. App. 3d 206, 372 N.E.2d 1010.

Each case must be determined on its own facts, but the court will consider several factors to determine whether a plaintiff has carried his burden of showing that he has exercised reasonable diligence: (1) length of time used to obtain service; (2) the activities of the plaintiff; (3) plaintiff’s knowledge of defendant’s location; (4) the ease with which defendant’s location could have been ascertained; (5) defendant’s actual knowledge of the pendency of the action; and (6) special circumstances which would affect the plaintiff’s efforts. North Cicero Dodge, Inc. v. Victoria Feed Co. (1987), 151 Ill. App. 3d 860, 503 N.E.2d 868.

In North Cicero, the court upheld the dismissal with prejudice under Rule 103(b) of plaintiff’s auto accident case. It pointed out that plaintiff filed its complaint and issued the original summons one day before the statute of limitations expired. Following return of the unanswered summons, plaintiff spent 20 months examining 10 telephone directories before finding defendant’s address. The court stated that plaintiff could have easily discovered the address through defendant’s corporation registration, through the truck’s operating permit with the Illinois Commerce Commission, through defendant’s corporate registration, or through defendant’s vehicle registration with the Secretary of State.

Under the facts of the instant case, a determination of lack of diligence and the dismissal of plaintiff’s cause of action was an abuse of discretion. As to the first factor set forth in North Cicero, length of time, plaintiff did file her lawsuit shortly before the statute of limitations expired and did wait 17 months before having an alias summons issued after the original summons was returned unserved. However, this lengthy delay can partly be charged to defendant’s maintaining a resident address with the Secretary of State in a home that he did not occupy.

As to the activities of plaintiff, plaintiff here had consulted the accident report to determine where to find defendant. She learned that the home at that address was vacant after the process server attempted service there. Plaintiff then contacted the Secretary of State’s office, only to be told that the license number written on the accident report was not an existing number in Illinois. Plaintiff consulted the area telephone directory and also made periodic inquiries at the Marshall County sheriff’s office. While she could have investigated in further ways, plaintiff’s efforts were frustrated by defendant’s failure to provide his current resident address to the Secretary of State. ^

We note that it is a strong policy of the State of Illinois, as reflected in the statute (Ill. Rev. Stat. 1989, ch. 951/2, par. 6 — 116), that all drivers are to maintain their current address with the Secretary of State’s office, and are, in fact, required by statute to notify him of any change within 10 days.

As to the third factor, plaintiff did not know where defendant was located. Defendant asserts that plaintiff’s reliance on the process server’s notation that the address was incorrect was not objectively reasonable. We disagree with this contention. Plaintiff should be allowed to rely on the return of service from the process server. She was objectively reasonable in believing that defendant did not live at the Henry address.

As to the fourth factor, the records kept with the Secretary of State — the one usually ready indicator of proper address — were not reliable here. This made locating defendant a more difficult process and distinguishes this case from North Cicero Dodge. Moreover, in the face of defendant’s failure to update his resident address with the Secretary of State, we are unwilling to impose on plaintiff a duty that she hire a special process server to locate and serve defendant.

As to the fifth factor, there have been no claims that defendant knew of the pendency of plaintiff’s action.

Finally, there are special circumstances here which affected plaintiff’s efforts to serve defendant. The defendant’s driver’s license number was incorrect on the accident report. While not defendant’s fault, this did occasion some delay on plaintiff’s part in serving defendant.

The judgment of the circuit court of Marshall County is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

STOUDER and HAASE, JJ., concur.