author: JUSTICE INGLIS

text:
      In re MARRIAGE OF ROSE WALTRIP, Petitioner, and WAYNE WALTRIP, Respondent-Appellant (Harold G. Field, Appellee).
    Second District
    No. 2 — 90—0996
    Opinion filed July 15,1991.

      Robert J. Schillerstrom and Amy M. Hane, both of Schillerstrom & Cresto, Ltd., of Naperville, for appellant.
    Harold G. Field, of Harold G. Field & Associates, of Wheaton, appellee pro se.

   JUSTICE INGLIS

delivered the opinion of the court:

Respondent, Wayne Waltrip, appeals from a judgment entered by the circuit court of Du Page County awarding attorney Harold G. Field $26,284.30 in fees incurred in representing respondent in the dissolution of his marriage. On appeal, respondent contends that: (1) the trial court abused its discretion in awarding fees for matters ancillary to the dissolution proceedings; (2) the trial court abused its discretion in awarding fees in the amount of $26,284.30; and (3) attorney Field is not entitled to retain interest on a judgment for attorney fees when that judgment was paid but was subsequently overturned and remanded on appeal. We affirm the judgment of the circuit court as modified.

Attorney Harold G. Field represented respondent in the dissolution of his marriage to Rose Waltrip (not a party to this appeal). Field’s representation commenced in January 1984 and ended early in 1987 when Field was granted leave to withdraw as respondent’s counsel. Field filed a petition seeking attorney fees from respondent. At the hearing on the petition, respondent appeared without counsel and indicated that he was not ready to proceed. Respondent requested a continuance, which the trial court denied. Testimony was presented as to the reasonableness of Field’s fees, and the trial court subsequently entered judgment in favor of Field in the amount of $26,284.30. A lien was impressed in favor of Field on a joint account of respondent and Rose Waltrip; the funds in the account resulted from a real estate sale and were held by the escrow department of the Ticor Title Company.

Field then filed a petition to enforce the judgment for fees which the trial court granted, ordering Ticor Title Company to pay Field the sum of $26,284.30 plus statutory interest (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1303) from the funds held by Ticor in escrow. The parties apparently agree, although we do not find it in the record, that $29,284.30 was paid to Field by Ticor: $26,284.30 representing the attorney fees awarded and $3,555.45 representing the amount of statutory interest.

The cause was appealed to this court, where respondent contested the award of attorney fees based on the fact that he was not represented by counsel at the hearing and that the award of fees was not reasonable. We reversed that part of the trial court’s judgment involving attorney fees, finding that it was an abuse of discretion to deny respondent’s request for a continuance to retain counsel. The matter of attorney fees was remanded to the trial court for a new hearing. Because of our resolution of the issue, we did not address the question of whether the trial court abused its discretion in awarding Field $26,284.30 in attorney fees.

At the rehearing on the petition for fees, Field requested a judgment in the amount of $26,284.30 based on his earlier filed fees petition. The parties stipulated that Field’s hourly rates were fair and reasonable in the community. At that time, Field charged $100 an hour for office time and $125 an hour for court time.

Field testified that the total amount of assets involved in the dissolution proceeding was approximately $1 million and consisted primarily of real estate. The only issue in the dissolution proceeding was the division of the marital estate. Field testified that numerous documents were obtained from Mrs. Waltrip during discovery. Field explained that Mrs. Waltrip was scheduled to have her deposition taken several times and was requested to bring certain documentation with her when she was deposed. Each time Mrs. Waltrip complied and brought the requested documents, rendering the depositions unnecessary.

Respondent was similarly requested by Mrs. Waltrip’s attorney, Howard Broecker, to produce documentation. However, respondent did not comply. Respondent was eventually held in contempt, and sanctions were imposed.

Field testified that he retained an expert to reconcile respond-' ent’s bank accounts, which took several weeks and required Field’s assistance. Field testified that he did not retain an expert to value the parties’ real estate. Field explained that, toward the end of the case, respondent gave him the name of a very close friend whom he wanted to appraise the real estate when necessary.

Field stated that in representing respondent he made over 20 court appearances and attended at least five pretrial conferences. Many conferences were had between the parties and their attorneys. Field testified that at one point the parties came very close to reaching a settlement; however, respondent then found a diary in which his wife made daily or weekly entries. Respondent wanted to wait and see what the diary would reveal. Field testified that respondent then told him that he did not want to try the case and that he wanted to wait.

In his petition for fees, Field did not break down the amount of time spent on the case. Rather, the dates were listed with a description of the services performed on each date. At the end of the petition it was concluded that 213.77 hours of office time were spent and 47 hours of court time. At the rehearing, Field introduced into evidence the original time sheets from the case. Field explained that the time sheets were used in calculating the figures in his petition. Field explained that when he started the case in 1984, he entered on the time sheets the total dollars generated for each task. Late in 1985, however, Field changed his method of keeping track of his time by entering the amount of time spent for each task rather than dollars generated.

Field admitted that, in the three years that he represented respondent, he performed work for respondent which was not strictly limited to the action for dissolution of marriage. Field explained that this work involved some nonmarital property owned by respondent and was included in the petition for fees. Field estimated that the amount of money charged for that work was between $1,000 and $2,000; however, he stated that he was unsure as to the exact amount because some of the conferences that they had in-eluded discussions about both marital and nonmarital property, and he did not make separate notations on them.

Mrs. Waltrip’s attorney, Howard Broecker, testified that Mrs. Waltrip was very helpful in his representation of her. Broecker explained that Mrs. Waltrip had voluminous documentation and information which she made available to Broecker and which was incorporated into the pleadings. Broecker opined that Mrs. Waltrip’s efforts significantly reduced the amount of time he was required to spend on the file.

Broecker testified that, in 1987, he filed a petition seeking to recover the fees incurred in representing Mrs. Waltrip from January 1, 1983, to December 3, 1986. The total amount requested was $20,771.45, which Mrs. Waltrip paid.

After the hearing concluded, the court entered judgment in favor of Field for attorney fees in the sum of $26,284.30. The trial court found that the earlier order directing payment to Field by Ti-cor Title Company had “been effected and therefore the Judgment herein is fully satisfied and is hereby released.” Respondent timely appeals.

First, respondent argues that the trial court abused its discretion in ruling that fees for matters unrelated to the dissolution proceedings were recoverable under section 508 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act or Act) (Ill. Rev. Stat. 1987, ch. 40, par. 508). As respondent correctly points out, the allowance of attorney fees and the amount awarded are matters within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. In re Marriage of Vest (1991), 208 Ill. App. 3d 325, 332.

We note that attorney fees may be awarded to a litigant only when they are expressly authorized by statute or by agreement of the parties. (In re Marriage of Magnuson (1987), 156 Ill. App. 3d 691, 700.) When the basis of the award is statutory, a trial court is bound by the statutory grant. Magnuson, 156 Ill. App. 3d at 700.

On appeal, Field contends that the trial court’s award is supportable under both section 508(a) of the Dissolution Act and under the fee agreement entered into between respondent and Field. Section 508(a) of the Act authorizes an attorney in a pending dissolution proceeding to recover his earned fees from his own client or from the other party. (Ill. Rev. Stat. 1987, ch. 40, par. 508(a); Gitlin v. Hartmann (1988), 175 Ill. App. 3d 805, 809.) A fee allowance should provide for fair compensation but only for those services which are both reasonable and necessary to the action. (In re Mar riage of Burrows (1984), 126 Ill. App. 3d 752, 758; see also In re Marriage of Kaplan (1986), 149 Ill. App. 3d 23,. 35; In re Marriage of Erickson (1985), 136 Ill. App. 3d 907, 916-17.) Respondent contends that the trial court erred by including the $1,000 to $2,000 worth of fees that were admittedly not strictly related to the dissolution proceedings. Regarding this issue, the trial court noted that “[t]here was no specific hour amount established that Mr. Field spent in handling some of Mr. Waltrip’s personal affairs.” The court noted the possibility of multiple suits and held:

“Since the amount represents less than 10% of the entire billing it would appear inappropriate to require Mr. Field to file a separate action requesting the payment for services rendered in behalf of Mr. Waltrip. That would be an extreme waste of judicial time and in this Court’s opinion an abuse of the entire judicial process.”

We agree with the trial court and find that, in so ruling, the trial court did not abuse its discretion. It appears from the record that the services were at least in part legitimately rendered in the dissolution case. (See In re Marriage of Malee (1990), 205 Ill. App. 3d 273, 283.) Field testified that respondent had some nonmarital property and he was involved in several partnerships. Field then explained the services he rendered for respondent in that regard:

“Well, I had conferences "with him concerning the nonmarital property, the partnerships that he was involved in that weren’t — were either partially or all nonmarital and the relationship with those partners, and I did draft documents for him pertaining to those entities.”

Thus, to the extent that the partnerships were marital property, the services rendered regarding that property were legitimately related to the dissolution proceeding.

In addition, we are in agreement with the trial court that it would be an extreme waste of judicial time to require Field to file a separate action requesting payment for those services, especially given Field’s testimony that some of his time reflected conferences involving the marital, partially marital, and nonmarital property. Thus, it would be difficult, if not impossible, to decipher the time allocated to each.

We also note that respondent signed an agreement on fees which indicated that he would pay Field $100 per hour for office time and $125 for court time. While paragraph four of the agreement specifically mentions dissolution of marriage, Field testified that the fees reflected therein were charged for all services rendered in his representation of respondent, and respondent apparently does not contest this fact. Thus, under the circumstances of this case, we do not find that the trial court erred by including the fees at issue in its award.

Next, we consider respondent’s contention that the trial court abused its discretion when it awarded Field $26,284.30 in attorney fees. It is well settled that the factors to be considered in determining the amount of attorney fees are: the skill and standing of the attorney, the nature of the case, the novelty and difficulty of the questions in issue, the amount and importance of the subject matter, the degree of responsibility involved in the management of the case, the usual and customary charges in the community and the benefits resulting to the client. (In re Marriage of Osborn (1990), 206 Ill. App. 3d 588, 602; Malec, 205 Ill. App. 3d at 285.) In making its determination of what is reasonable, the trial court is not bound by the attorney’s opinion as to what constitutes a reasonable fee and must inquire into all of the necessary factors; the time expended on the case, however, is the factor of greatest importance. In re Marriage of Ransom (1981), 102 Ill. App. 3d 38, 41.

Respondent admits that Field’s standing in the legal community is unquestionably good and that he is well-respected. Respondent further admits that the hourly rates charged by Field are reasonable. However, respondent contends that the amount of time and labor expended by Field was unnecessary and was out of proportion to any benefits conferred on respondent. Respondent argues that the main issue in the case boiled down to valuation of the various real properties acquired during the marriage and what portions of those properties were marital and nonmarital. Respondent contends that at the time Field withdrew as counsel he had not retained an expert to value the real estate, nor had he conducted Mrs. Waltrip’s deposition. Respondent maintains that the nature of the case was not complex, it was not a case of first impression, nor did it involve any novel issues. Thus, according to respondent, 213.77 hours of office time and 47 hours of court time expended over a period of approximately three years were excessive. Respondent cites to the number of hours expended by Mr. Broecker in his representation of Mrs. Waltrip. Respondent contends that in approximately four years, Broecker expended over 60 hours less time on the case than Field did in three years.

First we note that, in petitioning a court for fees, an attorney is generally required to submit detailed time records; the attorney must itemize both the time expended and the work performed. (Ransom, 102 Ill. App. 3d at 41-42.) In the case at bar, respondent argues that Field merely introduced a compilation of hours. We disagree.

In his petition, Field listed specific dates and the services performed on those dates. At the rehearing, Field introduced into evidence his original time sheets; however, the time sheets were not made part of the record on appeal. Respondent, as the appellant, has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error, and in the absence of such a record on appeal, it will be presumed that the order entered by the trial court was in conformity with the law and had a sufficient factual basis. (Harriss v. Elliott (1991), 207 Ill. App. 3d 384, 386.) A reviewing court will indulge in every reasonable presumption favorable to an order from which an appeal is taken, and it must be presumed that the evidence heard by the trial court was sufficient to support the judgment absent any contrary indication in the record. (Mars v. Priester (1990), 205 Ill. App. 3d 1060, 1066.) Here, the trial court specifically stated that it heard the testimony given and it received into evidence the time sheets of Mr. Field. The court then stated that “based upon personal knowledge of the Court which has had this litigation since 1984 and being fully advised in the premises,” the amount of time expended by Field was reasonable and necessary in order to represent his client’s interest in this cause. We do not find anything in the record which would persuade us to the contrary.

Respondent criticizes the fact that an expert was not retained to value the couple’s real estate, nor was Mrs. Waltrip’s deposition ever taken. However, it is uncontroverted that respondent wanted to use his close friend to testify as an appraiser and Mrs. Waltrip’s deposition was not necessary because she produced the relevant documentation.

Further, respondent’s argument that Field’s fees are unreasonable when compared to Mr. Broecker’s fees is without merit. The trial court noted that Mrs. Waltrip was a meticulous bookkeeper and furnished a large portion of the material that Mr. Broecker presented to the court as part of the pleadings. Mr. Broecker testified that Mrs. Waltrip’s efforts reduced significantly the amount of time he was required to spend on the case. In contrast, respondent refused to produce requested documents and was ultimately held in contempt and sanctioned. An expert had to be hired to reconcile respondent’s bank accounts. In addition, respondent instructed Field not to settle the case as he wanted to see what the diary kept by his wife would reveal.

Given the above circumstances, we do not find the trial court’s award of attorney fees to be an abuse of discretion.

Finally, respondent contends that Field is not entitled to retain interest on the court’s previously entered judgment which was paid, then subsequently reversed and remanded by the appellate court. Field contends that respondent has waived this issue by failing to raise it below. Field is correct in his contention that generally a claim cannot be raised for the first time on appeal. (Poeta v. Sheridan Point Shopping Plaza Partnership (1990), 195 Ill. App. 3d 852, 859.) However, it is not clear in the case at bar that respondent had an opportunity to raise the issue below. The issue of interest was not raised in Field’s petition for fees, nor was it addressed by either party at the rehearing. In its letter of opinion, the trial court did not mention interest; rather, it merely ruled that “[¡judgment will be entered in favor of Mr. Field and against Mr. Waltrip for the sum of $26,284.30.” In its judgment order, the trial court made the following ruling:

“[Tjhe prior judgment of this Court for HAROLD G. FIELD against WAYNE WALTRIP in the amount of $26,284.30 entered May 5, 1987 [sie\ is reinstated. The order of December 23, 1987, directing payment to HAROLD G. FIELD by Ticor Title Company has been effected and therefore the Judgment herein is fully satisfied and is hereby released.”

Respondent did not file a petition for rehearing with the trial court.

Initially, we note that the trial court had no authority to “reinstate” a judgment that we reversed and remanded for a new hearing. The trial court’s attempt to do so was, in fact, a new order effective from that date and will be treated as such.

Regarding the issue of interest, it is unclear when respondent would have had an opportunity to raise the issue absent a post-trial motion, which he is not required to file. (Eckerty v. Lowman (1974), 16 Ill. App. 3d 373, 375.) Even if the opportunity did arise and respondent waived it, this court is free to address the issue in an effort to achieve a “just result.” Burd v. Industrial Comm’n (1991), 207 Ill. App. 3d 371, 382.

Here, we find it would be unjust to permit Field to retain the interest on a judgment which had been reversed and remanded. An award of interest on a money judgment requires that the amount of money owed is certain and that the judgment debtor enjoyed improper use of the money during the period for which interest is to be awarded. (Robinson v. Robinson (1986), 140 Ill. App. 3d 610, 611.) In cases where the exact amount owed is not calculated until the disposition of the case following remandment, interest on the judgment runs from the date of the mew decree. (Rosenbaum v. Rosenbaum (1981), 94 Ill. App. 3d 352, 356; Thatch v. Missouri Pacific R.R. Co. (1979), 69 Ill. App. 3d 48, 52-53.) The supreme court addressed this issue as it relates to attorney fees in People v. Johnson (1981), 87 Ill. 2d 98. In Johnson, two attorneys were appointed to represent indigent defendants charged with murder. Subsequent to the disposition of the cases, the attorneys filed verified petitions for fees and expenses. The trial court awarded the attorneys an amount for fees which the appellate court found to be so unreasonably low as to constitute a clear abuse of discretion. The appellate court reversed the trial court’s holding and remanded the cause. The State was granted leave to appeal to the supreme court and raised the issue as to what constitutes “reasonable” compensation in awarding fees to private counsel appointed to represent indigent defendants in criminal cases. (Johnson, 87 Ill. 2d at 102.) In addition, the attorneys filed a cross-appeal requesting interest on any reasonable fee allowed by the trial court, dating from the time in which they were entitled to the fee until it is paid. (Johnson, 87 Ill. 2d at 106.) As to interest, the supreme court held:

“Interest is generally allowed from the date a final judgment is entered. [Citation.] However, the [attorneys] never received a final judgment in terms of a dollar amount; the case was remanded by the appellate court to the trial court to determine a reasonable fee. As a result, there has been no final judgment upon which to base an award of interest. Consequently, on remand, interest should not be attached to any reasonable fee allowed by the trial court.” (Johnson, 87 Ill. 2d at 106-07.)

Accordingly, we find that Field is not entitled to retain the interest paid on the reversed judgment.

Field’s reliance on the interest provision in the agreement for fees is unavailing. The agreement provided that “[i]f the balance [for fees due] cannot be paid at the time of prove-up such amount will be made a part of the Judgment and interest will be charged at the rate of 12%.” However, in his petition to enforce the trial court’s original judgment for fees, Field did not rely on the agreement; rather, he requested statutory interest, which the court awarded. Thus, Field cannot now allege for the first time that he is entitled to contractual interest. Monical v. State Farm Insurance Co. (1991), 211 Ill. App. 3d 215, 225.

For the reasons stated above, we affirm the trial court’s order awarding attorney fees in the amount of $26,284.30 which was entered on August 1, 1990. Statutory interest, if any, would have accrued from that date. Accordingly, we order that Field reimburse respondent for the interest previously paid on the reversed judgment of May 8,1987.

Affirmed as modified.

BOWMAN and GEIGER, JJ., concur.


source: Caselaw Access Project

author: PRESIDING JUSTICE REINHARD

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES KICK, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LINDA KICK, Defendant-Appellant.
    Second District
    Nos. 2 — 90—0451,' 2 — 90—0452 cons.
    Opinion filed July 15,1991.

      G. Joseph Weller and Beth Katz, both of State Appellate Defender’s Office, of Elgin, for appellants.
    Michael J. Waller, State’s Attorney, of Waukegan (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE REINHARD

delivered the opinion of the court:

Following a bench trial conducted in the circuit court of Lake County, defendants, Charles Kick and Linda Kick, were convicted of the offense of home invasion (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11), and each was sentenced to six years’ imprisonment.

The sole issue raised by defendants on appeal is whether this court, pursuant to its authority under Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(bX3)), should modify defendants’ convictions to the offense of criminal trespass to residence (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 4) in order to avoid the imposition of the statutorily mandated minimum six-year sentence of imprisonment for home invasion.

The instant prosecution arises in the context of a custody dispute between defendant Linda Kick and her ex-husband, Michael Kinsland. Following the dissolution of their marriage, Michael was granted custody of the couple’s daughter, Tanya, who currently resides with Michael, his new wife Amy Kinsland, and the Kinslands’ two children. Linda subsequently married Charles Kick, a former co-worker of Michael’s.

On October 21, 1989, defendants were arrested following an altercation at the Kinslands’ apartment and were subsequently indicted for the offense of home invasion. The matter proceeded to a bench trial for both defendants on March 21, 1990. The State’s evidence consisted of the testimony of the Kinslands and the police officers who arrived at the scene of the altercation. Defendants testified on their own behalf.

The Kinslands’ version of the events surrounding the October 1989 incident is as follows. At approximately 11 p.m. on October 20, 1989, Amy Kinsland heard a knock at the front door of the family’s apartment. She was unable to see through the door’s peephole, so she summoned her husband. Michael opened the door and saw his ex-wife, Linda Kick, whom he had not seen in several years. Linda indicated she wanted to speak with Michael, but he told her that she should call a lawyer if she had anything to say to him. Michael then attempted to shut the door, but Linda placed her foot in the doorway. Michael was forced to push Linda into the hallway in order to shut the door. Linda shouted, “[W]hy are you doing this to me?” Michael directed Amy to telephone the police when Linda refused to leave. After Amy telephoned the police, Linda left. The Kinslands believe that they saw Charles Kick walking with Linda as she left.

The police arrived at the Kinslands’ apartment shortly after Linda left, and the Kinslands made a report of the incident. Thereafter that evening, the Kinslands received 8 to 12 “harassing” phone calls from Linda. All but one of the calls were received by the Kinslands’ answering machine.

A few hours later, at approximately 2 a.m. on October 21, 1989, the Kinslands were watching television in the living room of their apartment when they heard the door in the hallway of their apartment building open. Thinking that the Kicks might have returned, Michael directed Amy to telephone the police again. When Amy got up to do so, there was a knock on the front door, which was locked. Linda said from behind the door that she wanted to speak with Michael, but he told her to leave. At that point, the front door burst open after apparently being kicked by Charles. Michael met Charles in the middle of the living room and told the Kicks to leave, to which Charles responded, “Fuck you, Mike.” Charles then came “running” at Michael and punched him on the side of his head. The two men then grabbed each other and fell to the ground; Charles bit Michael on the wrist in the ensuing struggle.

In the meantime, Linda had entered the apartment and headed down the hallway toward the bedroom of the Kinslands’ children, but Amy met her in front of the bedroom door. Linda pulled Amy away from the door and hit her on the side of the head with a closed fist. Amy attempted to grab Linda by her legs, but Linda broke loose and grabbed Amy by her hair and hit her again. Amy then picked up a vacuum cleaner and hit Linda with it, and the two women then fell to the ground. Linda then banged Amy’s head against the wall.

At this point, the police arrived at the Kinslands’ apartment and arrested the Kicks. As a result of the scuffle, Michael suffered a bump on the head, and the skin on his wrist was broken as a result of the bite received from Charles. Amy suffered scrapes and bruises, and she also had bumps on her head in the area were Linda had tom out Amy’s hair.

Officer Dennis J. O’Connell of the Grayslake police department testified that he was dispatched to the Kinsland apartment shortly after 11 p.m. in response to Linda’s first visit to the apartment. At this time, the door to the apartment was not damaged. Officer O’Connell returned to the apartment at approximately 2 a.m. in response to the second incident. As he entered the apartment on this occasion, Officer O’Connell noticed that the front door frame was broken and the striker plate was dislodged. Officer O’Connell grabbed Charles Kick as he was wrestling with Michael Kinsland, and he and his partner, Officer Steven Meek, handcuffed Charles. Officer Meek then handcuffed Linda, who offered some resistance. Officer Meek also testified at trial and substantially corroborated Officer O’Connell’s testimony.

Defendants testified on their own behalf and recounted the events in question as follows. Linda and Charles both went to the Kinslands’ apartment complex at approximately 11 p.m. on October 20, 1989, and Linda went to the apartment door to speak with Michael while Charles waited in the parking lot. They went to the apartment at this late hour hoping that Tanya would be asleep. Michael answered the door but immediately slammed it in Linda’s face; Linda did not put her foot inside the door. The Kicks then left, and Linda attempted three times to telephone Michael.

The Kicks returned to the Kinslands’ apartment shortly before 2 a.m. hoping that Michael might have “had time to think it over.” Michael opened the door and, after he and Charles exchanged words, Michael grabbed Charles and pulled him into the apartment. Charles bit Michael’s wrist in self-defense in the ensuing struggle. When Linda approached the two men to break up the fight, Amy approached her from behind and grabbed her by the hair. Linda responded by grabbing Amy’s hair, and the two women fell to the ground without exchanging any punches. Because she is subject to anxiety attacks, Linda resisted slightly when the police arrived and attempted to handcuff her.

In announcing its findings, the trial court stated, “I find the testimony of the Kinslands totally believable and I find the testimony of each of the defendants totally incredible.” The court found specifically that the Kicks, who had reason to believe the Kinslands were home, entered the Kinslands’ dwelling and intentionally caused injuries to the Kinslands. The matter was then recessed until sentencing.

Defendants each filed a motion for reconsideration or alternatively for a new trial on the basis that they were not proved guilty of home invasion beyond a reasonable doubt, specifically with regard to the proof of the injuries sustained by the Kinslands.

A sentencing hearing was held on April 27, 1990. Before addressing sentencing, the trial court, noting that the Kinslands had suffered “punching and bruising,” denied defendants’ post-trial motions. Linda’s attorney made it clear to the court that he was not prepared to proceed to sentencing unless the court was inclined to impose the minimum six-year sentence prescribed by statute. The court stated:

“THE COURT: I think — I don’t know if I have said it, but I think it is indicated that this is a minimal type offense.”

Linda’s attorney then indicated that he was willing to proceed. No additional evidence was received. When given the opportunity to address the court, Linda stated, “[W]e have been falsely accused, your honor.” The court then sentenced defendants to six years’ imprisonment. Defendants separately appealed from their convictions, and we consolidated the appeals.

On appeal, defendants do not contest the sufficiency of the evidence supporting their convictions of home invasion. Instead, defendants contend only that their “convictions for home invasion should be reduced to criminal trespass to residence in order to mitigate the unduly harsh mandatory minimum sentence *** imposed on them.”

The offense of home invasion is a Class X felony (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 11(c)), which is punishable by a minimum of 6 and a maximum of 30 years’ imprisonment (Ill. Rev. Stat. 1989, ch. 38, par. 1005 — 8—l(aX3)). It is well established that, under the State’s police power, the legislature has wide discretion to prescribe penalties for defined offenses. (People v. Morris (1990), 136 Ill. 2d 157, 161, 554 N.E.2d 235.) Upon a determination of guilt, a trial court is obliged to impose the penalties mandated by the legislature unless the penalty would shock the conscience of reasonable people. (People v. Wade (1987), 116 Ill. 2d 1, 6, 506 N.E.2d 954.) Even in such circumstances, the interference with the legislature’s judgment is justified only because the penalty is clearly in excess of the very broad and general constitutional Iimitations applicable. See People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259.

Defendants concede the mandatory nature of the minimum statutory sentence, and they do not challenge the constitutionality of the sentencing statute. Instead, defendants contend that Supreme Court Rule 615(b)3) (134 Ill. 2d R. 615(bX3)) empowers this court to modify their convictions to the offense of criminal trespass to residence, a Class A misdemeanor (Ill. Rev. Stat. 1989, ch. 38, par. 19 — 4).

Supreme Court Rule 615 provides, in pertinent part, as follows:

“On appeal the reviewing court may:
* * *
(3) reduce the degree of the offense of which the appellant was convicted.” (134 Ill. 2d R. 615(b)3).)

Rule 615(bX3) allows the appellate court to reduce the offense of which a defendant is convicted to a lesser offense where, for example, the evidence failed to prove beyond a reasonable doubt an element of the greater offense. (See People v. Davis (1986), 112 Ill. 2d 55, 63, 491 N.E.2d 1153; People v. Kurtz (1967), 37 Ill. 2d 103, 111, 224 N.E.2d 817 (applying statutory predecessor of Rule 615(b)(3).) This power is only available where a lesser-included offense is involved. People v. Pettit (1983), 114 Ill. App. 3d 876, 883, 449 N.E.2d 1044, aff’d (1984), 101 Ill. 2d 309, 461 N.E.2d 991.

Defendants ask us to utilize Rule 615(b)(3) to downgrade the severity of their convictions, not because of any insufficiency in the evidence, but because the minimum sentence prescribed by statute is allegedly too severe under the present circumstances. It is settled, however, that a reviewing court’s authority under Rule 615(b)3) is limited to reducing the degree of the offense where it finds some weakness in the evidence; it cannot do so out of “merciful benevolence.” (People v. Munday (1985), 134 Ill. App. 3d 971, 977, 481 N.E.2d 338, citing People v. Mau (1980), 88 Ill. App. 3d 924, 925, 411 N.E.2d 323.) Where, as here, there is no claim of an evidentiary weakness with regard to any element of the offense charged, there is no basis for reducing the degree of the offense under Rule 615(b)(3). See Munday, 134 Ill. App. 3d at 978, 481 N.E.2d at 343.

Defendants maintain that the Appellate Court, Third District, reached a contrary conclusion on this point in People v. Coleman (1979), 78 Ill. App. 3d 989, 398 N.E.2d 185. The court in Coleman reduced the degree of the offense of which the defendant was convicted after evaluating the evidence “in light of the jury’s difficulty to reach a verdict and the trial judge’s reluctance to impose the [mandatory] six-year sentence.” (Coleman, 78 Ill. App. 3d at 993, 398 N.E.2d at 187.) A similar approach was taken by the third district in People v. Jackson (1989), 181 Ill. App. 3d 1048, 537 N.E.2d 1054. It is important to note, however, that in both Coleman and Jackson the court placed some emphasis on “evidentiary weakness” regarding an element of the offense of which the defendant was convicted. Jackson, 181 Ill. App. 3d at 1052, 537 N.E.2d at 1057; Coleman, 78 Ill. App. 3d at 993, 398 N.E.2d at 187; see also People v. Meadows (1981), 92 Ill. App. 3d 1028, 1032-33, 416 N.E.2d 404 (third district holds that where evidence is not so weak as to raise a reasonable doubt of accused’s guilt, trial judge’s dissatisfaction with the mandatory sentence will not trigger application of Coleman).

Despite the arguable implication in Coleman and Jackson that Rule 615(b)(3) may be utilized by the reviewing court simply to allow for the imposition of a sentence less severe than the statutory minimum, we believe that the authority to reduce an offense under Rule 615(b)(3) is properly exercised only where there is some weakness in the evidence (Munday, 134 Ill. App. 3d at 977, 481 N.E.2d at 343) or, in other words, where the evidence is insufficient to prove an element of the offense beyond a reasonable doubt (see Davis, 112 Ill. 2d at 63, 491 N.E.2d at 1156-57). To hold otherwise would allow the reviewing court to alter the punishment prescribed by the legislature. It is well established, however, that it is the legislature’s prerogative to establish sentences. (Morris, 136 Ill. 2d at 161, 554 N.E.2d at 236.) We, therefore, disagree with Coleman and Jackson to the extent they can be read to suggest, as defendants argue, that Rule 615(b)(3) allows a reviewing court to circumvent the mandatory minimum sentence corresponding to an offense of which a defendant has been proved guilty beyond a reasonable doubt. See People v. Bartlett (1980), 91 Ill. App. 3d 138,142, 414 N.E.2d 253.

Because defendants here raise no contention that they were not proved guilty of home invasion beyond a reasonable doubt, and because the trial court imposed the minimum six-year sentence prescribed by statute, we decline to reduce the offense of which defendants were convicted.

The judgments of the circuit court of Lake County are affirmed.

Affirmed.

UNVERZAGT and NICKELS, JJ., concur.


author: JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOSEPH A. NETTNIN, Defendant-Appellant.
    Second District
    No. 2 — 89—0890
    Opinion filed July 17,1991.
    G. Joseph Weller and Sherry R. Engelstad, both of State Appellate Defender’s Office, of Elgin, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Joseph A. Nettnin, was charged by indictment with unlawful possession of a stolen motor vehicle (Ill. Rev. Stat. 1987, ch. 95½, par. 4 — 103(a)(1)), and, on April 19, 1989, he was found guilty of the charge. On June 16, 1989, defendant’s post-trial motion was denied, and, on August 25, 1989, he was sentenced to five years’ imprisonment.

Defendant timely appeals, raising the sole issue whether the inadvertent failure of the prosecution to tender to defendant two pages of a five-page police report during discovery constitutes reversible error requiring a remand for a new trial. Defendant has not demonstrated prejudicial error, and we therefore affirm.

On August 24, 1988, the State made its disclosure to defendant which, among other things, consisted of the names of four potential witnesses and the written or recorded statements of those witnesses and of the defendant which were contained on pages labelled “KAM 1-5.”

At the jury trial held on April 19, 1989, Officer Stephen Weatherford of the Elmhurst police department testified that he stopped defendant for speeding at 11:30 a.m. in the vicinity of Willow Street and North Avenue in Elmhurst, Illinois. Defendant was driving a silver Mercedes Benz with license plate number RR112. Weatherford obtained information from his dispatcher indicating that a car with this license plate number had been reported stolen and that the keys were with the car at the time it was stolen.

Weatherford stated that, when he approached defendant, Weatherford “asked him who the car belonged to.” Defendant replied that the car belonged to a friend named Reinhold. Defendant did not know Reinhold’s last name. Defendant said that Reinhold lived in Crystal Lake, but he did not know Reinhold’s address. After this brief interview (defendant’s first statement), Officer Weatherford placed defendant under arrest for unlawful possession of a stolen vehicle. After placing defendant in the police car, Weatherford looked into the Mercedes to find further owner information and to see whether there were any personal belongings or any contraband in the car. He found a handicap decal issued by the Secretary of State to Reinhold Reinicke which indicated an address on Nish Road in Crystal Lake.

During the five-minute ride to the police station, defendant volunteered (second statement) that he had purchased the car from his friend Reinhold for $2,800 and that he was making payments of $100 per week on the car. After Weatherford took defendant to the interview room at the police station, defendant asked if he could have “the other keys” and added, “They are mine.”

Weatherford contacted the Prairie Grove police department where the car had been reported stolen to verify that the car had, in fact, been stolen. He then asked Detective Michael Lullo of the Elmhurst police department to interview defendant.

Detective Lullo interviewed defendant in Weatherford’s presence, after defendant was given his Miranda warnings. According to Weatherford, defendant (in his third statement) related that he had bought the car for $2,800 from Reinhold, a friend of his. Defendant did not know Reinhold’s last name. He had met Reinhold approximately a month before in the Wrightway Tap, a bar in Chicago, and Reinhold had approached defendant to see if defendant wanted to buy the car. On July 16, two Saturdays before the traffic stop, defendant purchased the car from Reinhold and was to pay Reinhold $100 a week for the car. Defendant said he did not have a title or a bill of sale.

After this interview ended, Weatherford took defendant to be fingerprinted and booked. In the booking room, another conversation took place after Weatherford reread the Miranda warnings to defendant. Defendant again stated (fourth statement) that he bought the car from Reinhold for $2,800 and, in response to a query from Weatherford, described Reinhold as a 50-year-old gentleman who was 6 feet tall, weighed 160 pounds and had blond hair.

Detective Lullo’s testimony essentially corroborated Weather-ford’s version of the interview (third statement) wherein defendant stated that he bought the car from Reinhold, whom he had met at the Wrightway Tap in Chicago. Defendant said he made an initial payment of $100 to Reinhold. Defendant had seen Reinhold in the bar occasionally, but he had no way of getting ahold of Reinhold to make further payments since he did not know where Reinhold lived and did not know his telephone number. Although defendant knew the procedure for registering a car in Illinois, this deal was too good to pass up, and he purchased the car with the license plates that were on it and made no attempt to register the car.

During cross-examination, defense counsel attempted to impeach Weatherford with the (presumed) omission in his police report of any reference to defendant’s first statement when he was stopped for speeding. Counsel asked Weatherford if he had prepared a three-page police report, and the officer replied that he had done so. Counsel then asked whether Weatherford had included this initial conversation with defendant in the report. The officer replied affirmatively and showed where in the report he had noted defendant’s statement that the car belonged to a friend. At this point, defense counsel requested and obtained a side-bar conference in which he brought to the court’s attention that he only received a three-page report from the officer during discovery which did not include the substance of the first conversation between Weatherford and defendant at the site of the traffic stop. Although the pages were labelled “KAM-1 through KAM-5,” the sheets were also apparently marked “page 1,” “page 2 of 3” and “page 3 of 3.” The prosecutor explained that, through a clerical error in photocopying, the defense did not receive the reverse sides of the three sheets so that pages two and four of the text were missing from the report. The trial court was critical of this numbering system which resulted in the confusion; the court noted, as had the prosecution, that the omitted pages created a lack of continuity in the text.

The defense argued that the omissions created surprise and prejudice to defendant so that he had no opportunity, for example, to file a prior motion to suppress defendant’s first statement that the car belonged to a friend, a statement which defendant claimed contradicted other statements he had made. The defense moved for a mistrial.

The trial court directed the prosecutor to tender the missing pages to the defense and gave the defense an opportunity to review them. Defense counsel again asked that a mistrial be declared. The court responded that the discovery violation was not of a calculated nature and was merely a mistake. The court recognized that defendant’s strategy of impeachment by omission would have to change, but defendant was now in possession of the missing information. The court, although aware that the State could be faulted for not copying the report correctly, observed that the defense should have “picked [] up” on the incompleteness of the report. The court denied defendant’s motion for a mistrial, and the defense completed its cross-examination of Weatherford. He acknowledged that defendant did not try to evade him or conceal his name; that there was no damage to the ignition lock or door locks; that the keys were in the ignition; and that the car had not been hot-wired, nor had the vehicle identification number been tampered with.

Reinhold Reinicke, who was born in 1902, testified that he owned the silver, 1976 Mercedes Benz whose license plate number was RR112. Reinicke kept the car stored in his barn, leaving the keys in the car because he had never had anything stolen there. When he awakened on Thursday, July 14, 1988, he saw that the barn door was open and the car was missing. The car was in “A Number 1 condition.” He had no intention of selling it, nor did he give anyone authority to take it. He reported the car stolen to the McHenry County sheriff’s office. He testified that he kept some papers in the car, including a handicap sign containing his name; the sign was kept in an envelope in the front seat of the car.

Reinicke never heard of the Wrightway Tap in Chicago, and he no longer drank because he was on medication. He would take the train if he went into Chicago. He never heard of Joseph Nettnin and had never seen him before. When Reinicke got his car back, it was scraped on one side, and the tools he kept in the car were missing.

Virginia Nettnin, defendant’s mother, testified that the Wrightway Tavern was over a block away from her home on Wrightwood Avenue in Chicago. She stated that the first time she saw the Mercedes was on July 16, 1988, when defendant took her for a ride on the outer drive. She acknowledged that she never saw a title or a bill of sale for the car.

After hearing the arguments of counsel, the jury returned a verdict of guilty.

At the hearing on defendant’s post-trial motion, on July 16, 1989, defendant argued that the State’s failure to tender the missing pages of the report was a violation of Supreme Court Rule 412(a)(ii) (134 Ill. 2d R. 412(a)(ii)) which prejudiced him because he was prevented from suppressing his first statement to Weatherford that the car he was driving belonged to a friend named Reinhold. Defense counsel asserted that this statement contradicted the remaining statements that the defense was aware of regarding defendant’s purchase of the car. Defense counsel claimed that defendant’s first statement came as a surprise and, if he had known of the first statement, his strategy would have been different. The defense further argued that, since the evidence had already come in at trial, a continuance would not have cured the error.

The prosecution pointed out that defendant did receive the missing pages and was permitted to cross-examine the State’s witnesses. The prosecution argued that the first statement was not at all inconsistent with defendant’s other statements and, further, the evidence of guilt was overwhelming so that, even if defendant had had the benefit of prior disclosure, it would not have helped him. The trial court concluded that, based on the totality of the evidence, defendant was not prejudiced by the State’s inadvertent omission of the pages. Defendant’s motion for a new trial was denied.

On appeal, defendant contends that he was denied his right to a fair trial by the State’s failure to provide, prior to trial, the reverse sides of two pages which contained defendant’s first statement to the arresting officer. It appears that the only omitted item of significance was that part of Weatherford’s report regarding defendant’s first statement to him that he was driving a car that belonged to a friend named Reinhold. Defendant argues that this statement contradicts his other statements that he bought the car from Reinhold and that this inconsistency resulted in prejudice to defendant. Defendant maintains that he was required to change his impeachment strategy midtrial and, had he been aware of the omitted statement prior to trial, he could have sought to suppress that statement.

The failure to comply with discovery requirements does not, in all instances, necessitate a new trial (People v. Siefke (1990), 195 Ill. App. 3d 135, 142), and each case must be examined to determine whether the State’s failure resulted in harmless error (People v. Weaver (1982), 92 Ill. 2d 545, 560). A new trial should be granted only if the discovery violation prejudiced the defendant and the trial court failed to eliminate the prejudice. (People v. Harris (1988), 123 Ill. 2d 113, 151-52.) Among the factors to be considered in determining whether a new trial is warranted are: the closeness of the evidence; the strength of the undisclosed evidence; the likelihood that prior notice could have helped the defense discredit the evidence; and the willfulness of the State in failing to disclose discoverable matter. Siefke, 195 Ill. App. 3d at 142.

The evidence in this case is not close. The State presented more than sufficient evidence that Reinicke was the owner of the car, that he did not know defendant, had never heard of him or the Wrightway Tap, and had no intention of selling the car. The officers verified that the car had been reported stolen and the license registration remained in Reinicke’s name. Defendant’s own admissions regarding his lack of ownership documentation support the view that there was no legitimate purchase of the vehicle. Defendant presented no evidence to refute Reinicke’s or the officers’ testimony. Virginia Nettnin’s testimony that she rode in the car was not probative of whether defendant had lawful possession of it.

The undisclosed statement was not sufficiently strong to have had much effect on the weight of the evidence against defendant. Indeed, as the State points out, the statement that he was driving a car that belonged to a friend named Reinhold does not directly contradict defendant’s other statements that he bought the car from Reinhold. It is possible to infer from the totality of defendant’s statements and the fact that registration remained in Reinhold’s name that Reinhold still retained an ownership interest in the car even though defendant later explained that he purchased it.

Even if the differing (though not necessarily contradictory) explanations of how defendant came to drive the car might have conceivably raised a question of his credibility, we fail to see how the omitted statement would have helped defendant’s case had he obtained it in pretrial discovery. In our estimation, Officer Weather-ford’s testimony regarding defendant’s first statement would have been brought out at trial in any event. We find no basis to support defendant’s argument that he could have moved successfully to suppress the first statement. The evidence shows that the traffic stop was lawful, and defendant voluntarily made his first statement before he was placed in custody; there is no question of a Miranda violation. Defense counsel never moved to strike or suppress the omitted statement or to obtain a continuance once it was disclosed.

It is also evident that the State was not willful in failing to provide the missing pages of the report; it had indicated that there would be five pages. Defendant seems to have compounded the photocopying error by failing to notice the lack of continuity and the lacunae in the report. Under the circumstances, defense counsel’s surprise at Weatherford’s testimony, without more, is not a basis for a new trial. It was not the timing of the disclosure that was damaging, but rather the nature of the overall evidence. We conclude that defendant has not demonstrated prejudice sufficient to reverse his conviction and entitle him to a new trial. The statement in question was in no way pivotal or essential to his conviction.

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

Affirmed.

REINHARD, P.J., and INGLIS, J., concur.


author: JUSTICE INGLIS PRESIDING JUSTICE REINHARD,

text:
    JOSEPH PETTIE, Plaintiff, v. WILLIAMS BROTHERS CONSTRUCTION, INC., Defendant and Third-Party Plaintiff-Appellant (Otto Baum & Sons, Inc., Third-Party Defendant-Appellee).
    Second District
    No. 2 — 90—1275
    Opinion filed July 17,1991.
    REINHARD, P.J., dissenting.
    Karen L. Kendall and Gary M. Peplow, both of Heyl, Royster, Voelker & Allen, of Peoria, and Richard K. Hunsaker and Douglas J. Pomatto, both of Heyl, Royster, Voelker & Allen, of Rockford, for appellant.

      Scott C. Sullivan and Stephen E. Balogh, both of Williams & McCarthy, EC., of Rockford, and R. Wayne Harvey, of Harvey & Stuckel, Chartered, of Peoria, for appellee.
   JUSTICE INGLIS

delivered the opinion of the court:

Defendant, Williams Brothers Construction, Inc., appeals from an order of the circuit court of De Kalb County which dismissed its third-party complaint against Otto Baum and Sons, Inc. (Otto Baum). We dismiss the appeal as premature because the order appealed from does not meet the strict requirements of Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)).

On April 6, 1987, plaintiff, Joseph Pettie, filed a complaint against defendant, alleging that on October 7, 1985, plaintiff was injured when he fell from scaffolding while performing construction work at a jobsite where defendant was the general contractor. Count I of the complaint alleged that defendant violated the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69), and count II alleged that defendant’s negligence caused plaintiff’s injuries. Plaintiff subsequently entered into a settlement agreement with his employer, Otto Baum, and petitioned the trial court for approval of the settlement and a finding pursuant to the Contribution Act (Ill. Rev. Stat. 1987, ch. 70, par. 301 et seq.) that their settlement was in good faith. The trial court entered an order finding that the settlement was fair and reasonable and in good faith. The order also stated that any claim against Otto Baum based on contribution, common law or implied indemnity was extinguished. This court affirmed that judgment in Pet-tie v. Williams Brothers Construction, Inc. (2d Dist. March 20, 1990), No. 2 — 88—1056 (unpublished order under Supreme Court Rule 23).

On January 18, 1990, during the pendency of the prior appeal, defendant filed its third-party complaint against Otto Baum based on express indemnity liability. Defendant alleged that Otto Baum had agreed in its contract with defendant to “observe and comply with all federal, state and local safety rules and regulations” and to indemnify defendant for any loss caused by Otto Baum’s “failure to comply with said laws, rules and regulations.” Defendant alleged that it was “entitled to complete indemnity for liability that may be adjudged against it under the Complaint at law filed by the Plaintiff.”

On March 30, 1990, Otto Baum filed a motion to dismiss the third-party complaint. The parties filed written memoranda, and a hearing was held regarding the motion. The motion was granted on October 5, 1990, and the third-party complaint was dismissed pursuant to the indemnity statute (Ill. Rev. Stat. 1987, eh. 29, par. 61). On October 16, 1990, an order was entered which denied defendant’s motion to reconsider and stated, “[p]ursuant to Supreme Court Rule 304(a), there is no just reason for delaying appeal of the order of October 5, 1990.” Defendant filed its notice of appeal on November 14, 1990.

Defendant states in the jurisdictional statement contained in its brief that this court has jurisdiction pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). However, the order appealed from does not contain the express written finding required by Rule 304(a). We have a duty to consider our jurisdiction and to dismiss an appeal if jurisdiction is wanting. Ferguson v. Riverside Medical Center (1985), 111 Ill. 2d 436, 440; Cashmore v. Builders Square, Inc. (1990), 207 Ill. App. 3d 267, 269.

A Rule 304(a) finding was necessary in this case because the order appealed from did not finally adjudicate all of the claims of the parties. Plaintiff’s underlying complaint was still pending before the trial court. Rule 304(a) provides:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. *** In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” (Emphasis added.) 134 Ill. 2d R. 304(a).

We recently considered the requirements of Rule 304(a) in Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096. In Beall, the order appealed from included a finding of the court “that its prior order of April 24, 1990, was ‘a final judgment as to the various causes of action set forth therein’ and was ‘final as to fewer than all the claims set forth in the Counterclaim; there being no just reason for delaying appeal therefrom, the Court so orders.’ ” (Beall, 210 Ill. App. 3d at 1101.) We concluded that Supreme Court Rule 304(a) requires a trial court to make a two-pronged written finding that there is no just reason for delaying (1) enforcement or (2) appeal. We then held that, “for a trial court’s finding under Rule 304(a) to confer jurisdiction to a reviewing court, the finding must address both prongs: enforceability and appealability; moreover, the finding must also track the language expressly stated in the rule.” Beall, 210 Ill. App. 3d at 1102.

We recognize that the trial court’s Rule 304(a) finding in this case differs in some respects from the finding in Beall. The finding at issue here specifically referred to Rule 304(a) and used most of the language required by the rule. However, the finding did not include the word “enforcement.” We specifically held in Beall that the lack of language with respect to enforceability required dismissal of the appeal. Beall, 210 Ill. App. 3d at 1103.

We note that the court in Lawyers Title Insurance Corp. v. Kneller (1988), 172 Ill. App. 3d 210, determined that a very similar Rule 304(a) finding was sufficient to confer jurisdiction on the appellate court. The finding in Kneller stated, “pursuant to Supreme Court Rule, being section 304(a) of chapter 110A, Illinois Revised Statutes, there is no just cause for delaying an appeal from the order entered herein on June 4, 1987.” (Kneller, 172 ILl. App. 3d at 212.) In a vigorous dissent, however, Justice Barry stated that the appeal should have been dismissed, noting that the order was deficient in that it failed “to recite a finding that there is no just reason to delay enforcement.” (Emphasis in original.) (Kneller, 172 Ill. App. 3d at 215 (Barry, J., dissenting).) We specifically stated in Beall that we declined to follow the majority opinion in Kneller and also stated that we agreed with the rationale in Justice Barry’s dissent. We noted that the language of the rule is mandatory and precise and that the rule is not unduly burdensome to follow. Beall, 210 Ill. App. 3d 1102-03; see also Hopkins v. Illinois Masonic Medical Center (1991), 211 Ill. App. 3d 652.

We must therefore dismiss this appeal. Should the appropriate finding under Rule 304(a) subsequently be made by the circuit court and a timely notice of appeal filed, we will consider the appeal on the original briefs providing the parties so stipulate and request by motion and the record is supplemented to reflect the additional proceedings below. (See Cashmore, 207 Ill. App. 3d at 274.) Until a proper finding is before us, however, we may not hear this appeal.

Appeal dismissed.

UNVERZAGT, J., concurs.

PRESIDING JUSTICE REINHARD,

dissenting:

I respectfully dissent from the majority’s opinion, which, I believe, exalts form over substance. (See Kucharski v. Floro (1989), 191 Ill. App. 3d 1032, 1033.) The order at issue states the following: “Pursuant to Supreme Court Rule 304(a), there is no just reason for delaying appeal of the order of October 5, 1990.” Thus, the order specifically mentions Rule 304(a) and tracks the language of the rule except it does not refer to enforceability. The majority holds that this failure requires us to find that we have no jurisdiction. However, the failure to include any language of the enforceability of the order does not make the order legally deficient, nor is the failure surprising because the order of October 5, 1990, dismissed the third-party complaint. The logical result of this order is that there is no judgment to enforce. Appeal from, not enforcement of, the judgment is the only possible consequence of the order. Therefore, under these facts, it would have served no purpose for the circuit court to have included language that there was no just reason for delaying enforcement.

Although the majority relies on this court’s decision in Arachnid, Inc. v. Beall (1991), 210 Ill. App. 3d 1096, I believe that case should be reexamined and overruled. Certainly, the purpose of Rule 304(a), to discourage piecemeal appeals, is not furthered by the overly strict interpretation announced in Arachnid. Under the facts of this case, the order fulfilled the purpose of the rule. The holding of Arachnid and of the majority here also frustrates the intent of the parties and the circuit court. In this case, although the order did not include language of enforceability, the clear intent was to permit an appeal under Rule 304(a), and there is no need to track precisely the wording of Rule 304(a). (Hopkins v. Illinois Masonic Medical Center (1991), 211 Ill. App. 3d 652, 655-56 (Jiganti, J., dissenting).) Thus, the order was sufficient to give this court jurisdiction. Cwiertnia v. Zaborowski (1989), 192 Ill. App. 3d 841, 845.

There is a split of authority on this subject within the divisions of the Appellate Court for the First District (compare Cwiertnia v. Zaborowski (1989), 192 Ill. App. 3d 841, and Kucharski v. Floro (1989), 191 Ill. App. 3d 1032 (third division cases requiring only substantial compliance with Rule 304(a)), with Hopkins v. Illinois Masonic Medical Center (1991), 211 Ill. App. 3d 652 (fourth division), and Hamer v. Lentz (1987), 155 Ill. App. 3d 692 (fifth division) (requiring strict compliance with Rule 304(a))), as well as between the Second and Third Districts of the Appellate Court (compare Arachnid, Inc. v. Beall (2d Dist. 1991), 210 Ill. App. 3d 1096), with Lawyers Title Insurance Corp. v. Kneller (3d Dist. 1988), 172 Ill. App. 3d 210).

I dissent and would address the appeal on its merits.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF ROBYN G. OERTEL, Petitioner-Appellant, and BRUCE L. OERTEL, Respondent-Appellee.
    Second District
    No. 2 — 90—1229
    Opinion filed July 19, 1991.
    Marsha H. Cellucci and William D. West, both of Cellucci, Yacobellis & Holman, of Naperville, for appellant.
    Linda E. Davenport, of Fortunato, Farrell & Davenport, Ltd., of Westmont, for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Petitioner, Robyn Forister (Robyn), once known as Robyn Oertel, appeals from an order of the circuit court of Du Page County, denying her petition which sought modification of the custody provisions of the judgment dissolving her marriage to respondent, Bruce Oertel (Bruce). On appeal, Robyn contends that the trial court erred by: (1) failing to apply the best-interests-of-the-child standard pursuant to the parties’ agreement in ruling on the petition rather than the standard of serious endangerment to the child; and (2) ruling that she failed to meet her burden of establishing serious endangerment when there was evidence that Bruce was continuing to use alcohol and illegal drugs after the divorce despite prior alcohol and substance abuse problems. We reverse and remand.

Bruce and Robyn were married in 1985 shortly after they graduated from high school. Their daughter, Jessica, was born on June 28, 1985. On March 6, 1989, Robyn filed a petition for dissolution of marriage in the circuit court of Du Page County. Robyn and Bruce entered into a marital settlement agreement which was incorporated into the judgment for dissolution of marriage that the court entered on November 9, 1989.

The marital settlement agreement contained a joint-parenting agreement which provided that Bruce and Robyn would have joint custody of Jessica. Additionally, Bruce was to have physical possession of Jessica during the school year and Robyn would have physical possession of her during the summer months. The agreement also stated that “each parties’ [sic] right to physical possession of the child is expressly conditioned upon his or her residing with his or her parents.”

On January 24, 1990, Robyn filed an emergency petition for rule to show cause and for primary physical possession of Jessica. The petition was dismissed on February 5. On February 7, Robyn filed an amended petition for rule to show cause along with a separate petition for modification of joint custody. In these petitions, Robyn alleged that Bruce had entered an inpatient program at Mercy Hospital Center for drug and alcohol rehabilitation in January 1989 and had been diagnosed as an alcoholic and a chemically dependent individual. Robyn further alleged that Bruce left the program early and continued to drink alcoholic beverages thereafter. She also claimed in the petition that Bruce no longer lived with his parents and had moved into an apartment with his pregnant girlfriend.

Pursuant to the agreement of the parties, Judge Provenzale entered an order on February 8, 1990, awarding temporary custody of Jessica to Brace’s mother. The parties subsequently agreed to have the matter transferred to a different judge so it could be set for trial at an earlier date than Judge Provenzale could schedule it. The case was reassigned to Judge Cox and was set for trial on August 28, 1990.

On the first day of trial, Judge Cox entered an order pursuant to the agreement of the parties. The order stated that Robyn would withdraw her petition for modification of joint custody and her amended petition for rule to show cause and would waive her right to file a petition to vacate the judgment for dissolution pursuant to section 2 — 1401 of the Code of Civil Procedure (Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1401). The order further stated as follows:

“2. The custody, visitation and child support provisions of the Judgment for Dissolution of Marriage and Marital Settlement Agreement incorporated therein entered November 9, 1989, specifically Article III Joint Parenting Agreement and Article VII Allowance for Child Support are hereby vacated;
3. The custody, visitation and child support issues shall proceed to trial pursuant to section 602 of the Illinois Marriage and Dissolution of Marriage Act as though no judgment had been previously entered affecting said issues.”

The trial then commenced with the court hearing testimony from Robyn and two other witnesses.

The next day, Bruce’s attorney raised the issue of whether the trial court had jurisdiction to proceed under the circumstances. The trial judge then stated that he shared the same concern and vacated the agreed order of the previous day, ruling that a petition pursuant to section 2 — 1401 of the Code would be required before the joint-custody provisions of the judgment for dissolution could be vacated. Robyn filed a motion to reconsider this ruling, but the motion was denied.

In September 1990, Robyn filed a three-count petition with the circuit court. In count I, she sought to have the custody provisions of the dissolution judgment vacated pursuant to section 2 — 1401 of the Code because they resulted in part from Brace’s fraudulent promise to continue residing with his parents. In count II, Robyn asserted that Brace had violated the custody provisions of the dissolution judgment by moving away from his parents; therefore, his right to primary physical possession of Jessica should be terminated. Robyn contended in count III that, even if the court employed the serious endangerment standard, primary physical custody of Jessica should be transferred to her because Bruce’s continuing use of alcohol and drugs posed a threat to Jessica.

The trial on this petition commenced on September 19, 1990, with the parties agreeing that the testimony presented at the August 28 hearing could be considered. The following summary of the trial evidence therefore includes the August 28 testimony.

Robyn testified as follows at trial. While she was married to Bruce, he generally drank between 6 and 12 beers per day. Bruce also typically used marijuana every day and occasionally used cocaine, LSD, and PCR Once while the couple was still married, Bruce left some cocaine and a razor blade on a living room table overnight, and Jessica was in the room the next morning while these items were still present. Bruce entered an inpatient program at the Mercy Hospital Center for alcohol and drug rehabilitation in January 1989. During one of Robyn’s visits with Bruce at the hospital, Bruce stated that he was feeling good, he had admitted he was an alcoholic, and that was the first step to recovery. Bruce had Robyn pick him up from the hospital several days before the program was due to end, however, and he left the program at that point.

Robyn further testified that Bruce continued drinking alcohol after leaving the Mercy Hospital program. Several times after they became separated in March 1989, Robyn dropped Jessica off at the home of Bruce’s parents following visitation and saw Bruce with a beer in his hand. Bruce also admitted during various conversations with Robyn that he had been intoxicated on July 20, 1989, August 29, 1989, and once in October 1989. He told Robyn he had become intoxicated on July 20 because it was their wedding anniversary and it was the only way he could deal with it.

According to Robyn, Bruce took Jessica to Wisconsin on Memorial Day weekend in 1989. Jessica told Robyn when they returned that her head had been under water while she and Bruce were swimming in a lake. Bruce downplayed the matter and told Robyn that nothing serious had happened. Several months later, however, Robyn received an article about the incident from a newspaper in a small Wisconsin town. The article stated that Bruce had suffered from hypothermia while attempting to swim out to a raft in a lake with Jessica on his back. Jessica was not wearing any type of flotation device. Bruce and Jessica both went underwater and had to be rescued by lifeguards. Bruce’s hypothermia was exacerbated by alcohol consumption, according to the article, although he was not legally intoxicated.

Robyn further testified that she discovered in November 1989 that Bruce, contrary to the terms of the joint-parenting agreement, had moved with Jessica out of his parents’ home and had moved into an apartment with his girlfriend, Sharon. Bruce and Sharon got married in February 1990. Bruce does not dispute that he did in fact move out of his parents’ home in November and move in with Sharon, who was pregnant with his child at the time.

When asked about her past use of illegal drugs, Robyn testified that she had tried cocaine twice with Bruce but had not used it for about five years. Robyn had also occasionally smoked marijuana but had not done so for about two years. Robyn was currently residing with her parents and her brother in a house in Naperville. She worked as a property manager for First United Property Management in Naperville.

Ruth Forister, Robyn’s mother, testified that when she picked Jessica up from Bruce’s apartment on June 14, 1990, Bruce answered the door. Mrs. Forister stated that when he did so, she stepped back at first because of powerful odors that smelled like tobacco and beer. Mrs. Forister also stated that one time in April 1985 she found a packet of cocaine on the front porch of her home shortly after Bruce had been there. Bruce subsequently admitted to her that the cocaine was his.

Deborah Camerier testified that she had seen Bruce use illegal drugs many times. The last time was at her apartment on February 8, 1990, when she saw Bruce using cocaine. According to Camerier, her boyfriend, Steven Peck, and one other man were present at the time. Peck testified that he and Bruce were together on the night in question but took the fifth amendment when he was asked about cocaine usage. Bruce denied that he was at Camerier’s apartment on February 8 and testified that he was home all night because he was marrying Sharon the next day. Sharon corroborated Bruce’s testimony in this regard.

Dr. Lyle Joffe testified that he is a psychologist who first saw Bruce and Robyn in the spring of 1989 for a court-ordered evaluation while their marital dissolution case was pending. Dr. Joffe stated that he helped the parties prepare a joint-parenting agreement because they wished to resolve the issue of custody without litigation. The draft joint-parenting agreement which he helped prepare did not contain any language requiring the parties to reside with their parents.

After Robyn filed her initial post-judgment petitions regarding custody, Judge Provenzale again referred the matter to Dr. Joffe for evaluation. Dr. Joffe separately interviewed Robyn and Bruce several times in March 1990. He also administered psychological tests to both of them and observed each of them separately with Jessica. Dr. Joffe prepared a 12-page report dated April 9, 1990, which was admitted into evidence.

The report submitted by Dr. Joffe states as follows. In the interviews with Robyn, she expressed concern about Bruce’s continuing use of drugs and alcohol. Robyn appeared to be a stable individual who was capable of taking care of Jessica. Robyn demonstrated a reasonably insightful understanding of Jessica and her concerns. Although Bruce told Dr. Joffe that the relationship between Robyn and Jessica was strained, the report states that Dr. Joffe saw no indication this was true.

The report further states that Bruce denied any current drug use and voluntarily presented himself for a drug screening in April 1990 which turned out to be negative for all substances. Bruce admitted that he still drank alcohol socially, usually when he was out with his second wife, and he would also drink beer at home on the weekends. Bruce estimated that he drank a six-pack of beer on an average weekend. Although, according to the report, Bruce had been diagnosed at Mercy Hospital as suffering from alcohol and drug abuse, Bruce stated during an interview that he was not sure whether he was an alcoholic.

According to the report, Bruce admitted that he drank a few beers before entering the water on the day of the incident in which he and Jessica had to be rescued from the lake. Bruce told Dr. Joffe that he had placed Jessica on his back and attempted to swim some 40 to 50 yards out to a raft. Bruce stated that he had been stupid for failing to put a flotation device on Jessica. The report states that this incident combined with Bruce’s questioning of his diagnosis as an alcoholic and his continued use of alcohol raises serious questions about his judgment with regard to his drinking.

Dr. Joffe concluded in the report that it would be best for Jessica if Robyn was awarded sole custody of her. This is because Robyn appeared to be stable and capable of caring for Jessica while Bruce’s continued use of alcohol seemed to adversely affect his judgment as a parent. The report states that, considering Bruce’s hospitalization for alcohol abuse and his diagnosis as an alcoholic, Bruce should not drink alcohol under any circumstances. Although Dr. Joffe felt that Bruce loved Jessica, he felt Bruce should not be allowed to retain custody of her for the above reasons.

When asked if he felt that allowing Bruce to retain custody would seriously endanger Jessica, Dr. Joffe responded in the affirmative. He stated that the reason for this conclusion was that Bruce continued to drink alcohol after he had been diagnosed in January 1989 as being in the late stages of alcoholism. Dr. Joffe also made reference to the Memorial Day weekend incident in the Wisconsin lake in support of his opinion.

Bruce testified that while he was at Mercy Hospital in January 1989, he admitted to the staff members in his program that he was an alcoholic and that he usually drank 6 to 12 beers each day. Bruce also told the staff members that he used marijuana once or twice a week and cocaine once or twice a month. With regard to the Memorial Day weekend incident, Bruce testified that he tried to swim out to a raft about 20 yards from the shore with Jessica on his shoulders. Bruce testified that he went underwater twice due to hypothermia but Jessica’s head never went underwater. He made it to the raft but did not have the energy to pull himself up onto it because of the hypothermia. A friend of his and a lifeguard then came out to help Bruce and Jessica onto the raft. Bruce testified that at the time of the incident he had opened a can of beer but had not finished it, and this was the only drinking he had done that day.

Mariann Oertel, Bruce’s mother, testified that she ran a Montessori school which Jessica attended. She further testified that Robyn did not show much interest in Jessica’s work at the school, and Jessica did not seem to wish to leave with Robyn when Robyn came to pick her up from school.

During trial, the judge granted Bruce a directed verdict on count I of Robyn’s petition, in which she sought to have the custody provisions of the dissolution judgment vacated pursuant to section 2 — 1401 on the basis that Bruce had fraudulently promised to continue residing with his parents. The court’s ruling, which is not at issue here, was based upon Robyn’s apparent knowledge when the dissolution judgment was entered that Bruce had already moved. With respect to count II of the petition, the trial judge ruled that, even if Bruce had violated the custody provisions of the judgment by moving away from his parents, sole custody could only be granted to Robyn under section 610 of the Marriage and Dissolution Act (Act) (Ill. Rev. Stat. 1989, ch. 40, par. 610) if Robyn proved that Jessica’s environment could seriously endanger her physical, mental, moral, or emotional health.

After the evidence was presented, the trial judge stated as follows:

“There is no question in my mind, Mr. Oertel, that it would be in the best interests of Jessica that she be in the physical custody of her mother Robyn. That, however, is not the test *** that I must apply.”

The trial judge also referred to Bruce as “a liar” and stated that he had not conducted himself in a manner which was in Jessica’s best interests. The judge ruled that Bruce should retain primary physical possession, however, because the evidence did not establish that this would seriously endanger Jessica’s physical, mental, moral, or emotional health. The instant appeal ensued.

We must first consider Bruce’s contention that this court should not consider whether the trial court’s decision to vacate the August 28, 1990, agreed order was correct because Robyn did not file her notice of appeal within 30 days of the denial of her motion to reconsider that decision. This argument is without merit. With several exceptions for interlocutory orders which are not applicable here, this court’s jurisdiction is limited to review of appeals from final orders. (134 Ill. 2d R. 301; Renzulli v. Zoning Board of Appeals (1988), 176 Ill. App. 3d 661, 662.) A final order is an order that terminates and disposes of the parties’ rights regarding issues in the action so that, if affirmed, the trial court need only proceed with execution of the judgment. (In re Marriage of Watling (1989), 183 Ill. App. 3d 18, 22.) If an order leaves the cause pending and undecided it is not a final order. (Watling, 183 Ill. App. 3d at 22.) Once a final appealable order is entered in a case, any preliminary orders will be reviewable on appeal from the final order. People ex rel. Scott v. Silverstein (1981), 87 Ill. 2d 167,171.

The instant post-judgment proceedings were brought by Robyn in an effort by her to gain sole physical custody of Jessica. The issue of whether she would be able to do so was not resolved until the court issued its order of October 3, 1990, stating that the prior custody arrangement would remain in effect. The order rescinding the August 28, 1990, agreed order and the one denying Robyn’s motion to reconsider were only preliminary orders which, under Silverstein, did not become reviewable until a final and appealable order was entered on October 3. Since Robyn filed her notice of appeal within 30 days of that date, it was timely filed (see 134 Ill. 2d R. 303(a)), and the preliminary orders in question may be reviewed.

Robyn’s initial contention is that the trial court erred by vacating the August 28 agreed order and by failing to apply the best-interests-of-the-child standard as provided in that order. The debate between the parties on this issue erroneously centers upon the applicability of the revestment doctrine. Under this doctrine, litigants may revest a court which has general jurisdiction over a matter with personal and subject-matter jurisdiction over the specific cause after the 30-day period following entry of final judgment during which post-judgment motions must normally be filed. (In re Marriage of Demond (1986), 142 Ill. App. 3d 134, 137.) The doctrine applies if the parties actively participate without objection in proceedings which are inconsistent with the merits of the previous judgment. Demond, 142 Ill. App. 3d at 137.

Although a trial court ordinarily loses jurisdiction to vacate or modify a final and appealable judgment more than 30 days after it is entered, a circuit court has continuing jurisdiction in cases involving child custody judgments under section 601 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 601(a)), which states that trial courts have jurisdiction to make child custody determinations in original or modification proceedings. (In re Marriage of Noble (1989), 192 Ill. App. 3d 501, 505.) There was no need to revest the circuit court with jurisdiction to consider modifying the custody judgment when it clearly had jurisdiction to do so. The revestment doctrine is therefore irrelevant in this case.

The standards to be applied in child custody modification proceedings are set forth in section 610 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610). That provision states in relevant part as follows:

“(a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his physical, mental, moral or emotional health.
(b) *** In the case of joint custody, if the parties agree to the termination of a joint custody arrangement, the court shall so terminate the joint custody and make any modification which is in the child’s best interest.” (Emphasis added.) Ill. Rev. Stat. 1989, ch. 40, par. 610.

The case at bar involved a joint-custody arrangement in the original judgment for dissolution. Since the parties presented an agreed order to the court vacating the custody provisions of the dissolution judgment, which provided for joint custody, it is obvious they had agreed to terminate the joint-custody arrangement provided for in the judgment. Under these circumstances, section 610(b) clearly provides that the trial court shall make any modification which is in the child’s best interest. The trial court therefore erred by applying the more stringent serious endangerment standard.

Although Robyn’s petition to modify custody was filed within two years of the custody judgment, section 610(a) allows a motion to modify custody to be brought “by stipulation of the parties” even if there is no evidence of serious endangerment. The agreed order presented to the trial court by the parties provides that the custody provisions of the judgment would be vacated, and the custody issue would be considered pursuant to section 602 of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 602) as though no judgment had been entered. Section 602 provides that the court will determine custody in accordance with the child’s best interest. Thus, the parties clearly agreed that custody could be modified without evidence of serious endangerment, making that standard inapplicable.

The trial judge apparently believed that under this court’s recent decision in In re Marriage of Noble (1990), 192 Ill. App. 3d 501, he was required to apply the serious endangerment standard unless the original custody judgment was vacated pursuant to section 2 — 1401 of the Code. In Noble, this court held that the circuit court erred in vacating a custody judgment when no section 2 — 1401 petition had been filed. (192 Ill. App. at 509-10.) We also held that, since the husband’s petition to modify custody was filed within two years of the original custody judgment, the petition should only have been granted if the trial court found that the child’s present environment may seriously endanger his physical, mental, moral, or emotional health. (192 Ill. App. 3d at 509.) In Noble, however, there was no agreement between the parties to terminate a joint-custody arrangement, nor was there a stipulation that a motion to modify could be presented without evidence of serious endangerment. These factors distinguish the case at bar from Noble.

It is clear from the record that if the trial judge had applied the best-interests-of-the-child standard as he should have under section 610(b) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 610(b)), he would have awarded sole custody to Robyn. The evidence at trial and the comments of the trial judge fully support such a determination. In two prior cases, past alcohol abuse by the custodial parent was a significant factor in the affirmance of circuit court decisions to modify custody although there was evidence in both cases that the custodial parent had stopped drinking. (See In re Marriage of Neeld (1981), 96 Ill. App. 3d 40, 48; Doyle v. Doyle (1978), 62 Ill. App. 3d 786, 790.) Dr. Joffe’s report states that Bruce had been diagnosed as an alcoholic while at Mercy Hospital. Bruce testified that he admitted to the hospital staff members that he was an alcoholic. Dr. Joffe’s report states that under these circumstances Bruce should not drink alcoholic beverages under any circumstances. Bruce admitted at trial, however, that he continues to drink beer.

Moreover, the evidence concerning the swimming incident indicates that Bruce’s drinking endangered Jessica on at least one occasion. Although Bruce testified that he had only opened one beer so far that day, Dr. Joffe’s report states that Bruce admitted to drinking several beers before entering the water. The trial judge, who referred to Bruce as “a liar” and called him “reprehensible,” apparently did not find Bruce’s testimony to be credible. An additional factor showing Bruce’s irresponsibility is the fact that he directly violated the original custody judgment by moving with Jessica away from his parents. This provision was obviously placed in the judgment because, in light of Bruce and Robyn’s prior use of drugs and alcohol, it was necessary to ensure that there would be other responsible adults present to supervise Jessica. Bruce’s cavalier disregard of this provision is further evidence of his willingness to act without regard to Jessica’s best interests. Thus, we agree with the trial court’s determination that under the best-interest standard sole custody of Jessica must be awarded to Robyn. In light of the trial evidence that Robyn had not used illegal drugs for two years and was leading a stable existence, her right to custody of Jessica need no longer be conditioned upon continued residence with her parents.

We further note that even if the parties had not agreed to vacate the terms of the prior judgment, Bruce’s violation of the provision requiring him to live with his parents would have justified terminating his custody rights. The trial judge stated that, even if Bruce did violate this provision, section 610(a) would only permit him to modify custody within two years if there was evidence of serious endangerment. This conclusion was completely erroneous. Section 610(a) only limits a trial court’s ability to modify a custody judgment. The custody judgment in this case expressly conditioned Bruce’s physical possession of Jessica on his continued residence with his parents. Thus, the trial judge would not have been modifying the custody judgment by terminating Bruce’s right to custody for violating the provision in question; he would have merely been enforcing the terms of that judgment.

For some inexplicable reason, the trial judge expressed doubts about the enforceability of the above provision of the custody judgment. As we have seen, the circuit court in entering the custody judgment fully incorporated the terms of a joint-parenting agreement into which the parties had entered. The setting of the terms of custody is discretionary with the trial court. (Crawley v. Bauehens (1973), 13 Ill. App. 3d 791, 795.) Moreover, section 602.1 of the Act provides that in producing a joint-parenting agreement the parents shall be flexible at reaching resolutions which are in the child’s best interest. (Ill. Rev. Stat. 1989, ch. 40, par. 602.1.) In our view, the provision in question was an eminently reasonable one designed, in light of the parties’ prior drug use, to assure there would be responsible adults present to care for Jessica. That provision should not have been ignored by Bruce or the trial court. Even if the court did not believe the original custody judgment could be vacated, the result should have been the same: sole custody should have been awarded to Robyn.

Although the trial court correctly assessed the course of action that would be in Jessica’s best interests, it erred by concluding that it did not have the power under the law to make a ruling in accordance with those interests. The attorneys in this case did not help matters by placing their primary emphasis in the trial court and on appeal on an irrelevant debate over the applicability of the revestment doctrine. As the recent opinion of the court in In re Ashley K. (1991), 212 Ill. App. 3d 849, illustrates, the emotional damage done to a young child because of an erroneous ruling in a custody matter often cannot be completely undone by reversal of the ruling on appeal. It is therefore imperative that circuit court judges exercise the utmost caution in such cases to protect the interests of the young children involved.

For the above reasons, we reverse the order of the circuit court of Du Page County and award sole custody of Jessica to Robyn. We remand the cause to the circuit court to determine Bruce’s visitation rights and to resolve the issue of child support. In light of the evidence concerning Bruce’s continued use of alcohol and the danger this has posed to Jessica, Bruce shall only be permitted to visit with Jessica if he is in the company of one of his parents or any other responsible adult designated by the trial court. Bruce’s visitation with Jessica shall continue to be supervised in such a manner until he is able to demonstrate to the trial court that he is no longer using alcohol and unsupervised visitation will pose no danger to Jessica.

Reversed and remanded.

McLaren and NICKELS, JJ., concur.