text:
      In re MARRIAGE OF PENNY FOX, n/k/a Penny Graham, Petitioner-Appellant, and RICHARD A. FOX, Respondent-Appellee.
    Fourth District
    No. 4—89—0054
    Opinion filed December 6, 1989.

      Don C. Hammer, of Hayes, Schneider, Hammer, Miles & Cox, of Bloomington, for appellant.
    Jerry N. Raymer, of Raymer Law Office, of Bloomington, for appellee.
   JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Penny Graham appeals the denial of a motion pursuant to section 2—1401 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) to vacate a judgment entered on October 18, 1988. Petitioner raises the following issues for our consideration: (1) whether the October 18, 1988, order modifying a prior child custody order is void where no petition was filed pursuant to section 601 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601); (2) whether the trial court erred in ordering a change of custody of the children from petitioner to respondent as punishment for visitation abuse by the petitioner; (3) whether the trial court’s refusal to vacate the order modifying child custody was against the manifest weight of the evidence and constituted reversible error where no hearing was held concerning the best interests of the children. For the reasons that follow, we reverse.

Petitioner and respondent were divorced in 1981. Custody of the parties’ minor children, Ashley, now nine years old, and Casey, now eight years old, was awarded to petitioner, and respondent was allowed reasonable visitation. On May 17, 1988, respondent filed a petition for a rule to show cause why petitioner should not be held in contempt for failing to comply with the previous orders of the court regarding visitation with Ashley. The petition alleged petitioner denied respondent visitation with Ashley during the visits scheduled in February, March, and April 1988. Respondent asked that petitioner be found in contempt; that the respondent be awarded attorney fees; and “for such other and further relief as the court deems equitable in the premises.”

The hearing on the petition began on June 28, 1988. Respondent testified that from February 1988 through April 1988, he was told by petitioner or her mother, Lois Clodfelder, when he came to pick up his children for a visit that Ashley was not going with him for a visit. Respondent further stated he was not allowed to talk with Ashley on the telephone. Respondent stated that since the filing of the petition in May 1988, his visits with Ashley improved. Respondent stated he did not talk to petitioner about the visitation problems because petitioner had accused him in the past of physically abusing Casey and of not feeding Ashley.

Petitioner testified that she never told respondent he could not visit with Ashley but that Ashley refused to go with respondent on the scheduled visits. According to petitioner, when respondent arrived to pick up the children for a weekend visit, Ashley would hide somewhere in the house and cry. Petitioner testified she encouraged Ashley to talk to and visit with respondent but left it up to Ashley as to whether she would go with respondent. Petitioner stated she packed Ashley’s bags each time prior to respondent’s arrival for a visit but Ashley continued to refuse to go with respondent. Petitioner testified she never refused to allow respondent to talk with Ashley on the telephone. Petitioner also testified that after the petition at issue in this appeal was filed, Ashley decided to go with respondent on the scheduled visits because, as Ashley told her, respondent started being much nicer to her.

Petitioner’s mother, Lois Clodfelder, testified regarding Ashley’s behavior of hiding in the house when respondent arrived for a visit. Clodfelder also reported that on visit days after the petition was filed, Ashley picked up her bag and went with respondent without incident. However, on cross-examination, Clodfelder testified Ashley is still reluctant to go with respondent on a visit.

The hearing on the petition was continued to August 30, 1988. Chad Graham, petitioner’s older son from a previous marriage, testified on August 30, 1988, regarding an incident a few days prior to this date when Ashley was upset about visiting with respondent. Chad also testified to a similar occurrence two weeks previous to this incident and stated Ashley had been upset every time that summer when she was getting ready for a visit with respondent. On cross-examination, Chad admitted he did not like respondent and his mother spoke in a derogatory manner about respondent to him.

In rebuttal, respondent presented testimony regarding visits since the first hearing, including an incident which occurred on July 24, 1988. Petitioner testified that Ashley went with respondent at 6 p.m. on July 24 for a three-week visit. Petitioner stated that Ashley called her collect later that evening. Respondent testified that on July 24, Ashley became upset after visiting with respondent’s mother and wanted to return home. Respondent testified he took Ashley to his home and stated the visit went smoothly until later that evening when Ashley said she had to call a friend. Ashley later told the respondent she really wanted to call her mother, and respondent testified he dialed petitioner’s number for her on a direct, not collect, line. Respondent testified he overheard Ashley say the following to petitioner: “I told him *** I cried and I did just what you told me to. I cried and told him I had to go home and I couldn’t come.” Respondent testified he took Ashley home that evening when she became upset and again asked to go home. Respondent reported he had similar problems with the two previous visits with his children in July 1988.

Respondent also testified in rebuttal that he returns Ashley home when she gets upset on a visit because he believes Ashley is intimidated at home and he is afraid of the trouble she would get into at home.

The trial judge interviewed Ashley in chambers. Ashley reported respondent is mean to her, calls her names, and spanks her for no reason. Ashley also stated respondent pays more attention to Casey during the visits. Ashley also stated she does not get along with her stepbrothers, children of respondent’s current marriage. Ashley stated her grandmother and petitioner’s children from a previous marriage do not talk to her about her visits with respondent.

On October 18, 1988, the trial court entered its order on respondent’s petition. The trial court found petitioner had been previously found in contempt of court for denying respondent visitation with his children; the contempt charges had no visible impact on petitioner’s behavior regarding visitation; petitioner had poisoned the mind of Ashley against respondent and denied respondent a meaningful relationship with Ashley; the matriarchal environment in which Ashley and Casey lived, along with petitioner’s conduct, presented a serious danger to the mental and emotional health of the children; respondent can provide a stable and healthy environment for the children; a modification of the September 19, 1983, custody order was necessary for the best interests of the children; it was in the best interests of the children that custody of both be transferred from petitioner to respondent; and that respondent and Ashley should undergo periodic psychological counseling to improve their relationship. Custody of both children was ordered transferred from petitioner to respondent on January 1, 1989, and petitioner was granted visitation with the children. The children are now in respondent's custody.

Petitioner’s November 18, 1988, appeal to this court from the October 18 order was dismissed on December 28, 1988, as untimely. (In re Marriage of Fox (4th Dist. 1988), No. 4—88—0851 (order of dismissal).) Prior to the dismissal, petitioner filed a motion in the trial court pursuant to section 2—1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1401) requesting the October 1988 order be vacated and declared void for lack of subject-matter jurisdiction. Petitioner also requested the October 1988 order be vacated due to respondent’s failure to fulfill the counseling condition.

On January 6, 1989, the trial court denied petitioner’s motion. The trial court, by docket entry and written order, concluded the court had subject-matter jurisdiction to modify the 1983 custody order by virtue of the filing of the show cause petition and had jurisdiction and authority to modify the custody provisions of the dissolution judgment in light of the evidence of petitioner’s repeated violations of the court’s visitation orders. The trial court also denied petitioner’s request for a modification of the October 1988 order, finding petitioner failed to present evidence that the children were endangered while in respondent’s care.

Petitioner’s primary argument is that the October 1988 order is void for lack of subject-matter jurisdiction. Petitioner maintains the trial court had no jurisdiction to modify the 1983 child custody order where (1) the proceedings involved a show cause petition for contempt of court; and (2) no petition for change of custody was presented to the trial court as required by section 601 of the Marriage Act. Thus, petitioner argues the denial of her section 2—1401 motion was error.

Respondent argues petitioner is barred from resorting to section 2—1401 to avoid the consequences of her failure to raise the voidness issue in the trial court or seek timely review of the October 18, 1988, order. Assuming petitioner’s use of section 2—1401 was correct, respondent contends petitioner failed to prove her right to relief under section 2—1401 with competent evidence. Respondent further argues the October 1988 order is not void and the trial court had continuing subject-matter jurisdiction over child custody issues in this case.

We first address petitioner’s use of section 2—1401 for relief from the October 1988 order. Section 2—1401 provides in part:

“Relief from Judgments, (a) Relief from final orders and judgments, after 30 days from the entry thereof, may be had upon petition as provided in this Section. *** All relief heretofore obtainable and the grounds for such relief heretofore available, whether by any of the foregoing remedies or otherwise, shall be available in every case, by proceedings hereunder, regardless of the nature of the order or judgment from which relief is sought or of the proceedings in which it was entered. There shall be no distinction between actions and other proceedings, statutory or otherwise, as to availability of relief, grounds for relief or the relief obtainable.
(b) The petition must be filed in the same proceeding in which the order or judgment was entered but is not a continuation thereof. The petition must be supported by affidavit or other appropriate showing as to matters not of record. All parties to the petition shall be notified as provided by rule.
(c) The petition must be filed not later than 2 years after the entry of the order or judgment.
* * *
(f) Nothing contained in this Section affects any existing right to relief from a void order or judgment, or to employ any existing method to procure that relief.” (Ill. Rev. Stat. 1987, ch. 110, pars. 2—1401(a), (b), (c), (f).)

Generally, to be entitled to relief under this section, a party seeking relief must demonstrate (1) the existence of a meritorious defense or claim; (2) due diligence in presenting the defense or claim in the original action; (3) that, through no fault or negligence of his own, an error of fact or a valid defense or claim was not made to appear at the time the challenged judgment or order was entered; and (4) due diligence in filing the petition for relief under section 2—1401 (now this section) (Lazzara, v. Dreyer Medical Clinic (1983), 120 Ill. App. 3d 721, 724, 458 N.E.2d 958, 960 (referring to predecessor section (Ill. Rev. Stat. 1981, ch. 110, par. 72))). However, where relief is sought from a void judgment, section 2—1401, by its express language, does not limit such relief and a party is not required to allege a meritorious defense or due diligence. LaMotte v. Constantine (1980), 92 Ill. App. 3d 216, 218, 416 N.E.2d 23, 25.

A void judgment is one entered by a court without jurisdiction of the parties or the subject matter or that lacks “ ‘the inherent power to make or enter the particular order involved.’ ” (People v. Wade (1987), 116 Ill. 2d 1, 5, 506 N.E.2d 954, 955, quoting R.W. Sawant & Co. v. Allied Programs Corp. (1986), 111 Ill. 2d 304, 309, 489 N.E.2d 1360, 1363.) Such a judgment may be attacked at any time, either directly or collaterally. City of Chicago v. Fair Employment Practices Comm’n (1976), 65 Ill. 2d 108, 112, 357 N.E.2d 1154, 1155.

Subject-matter jurisdiction of the circuit court as derived from the constitution is the power of the court to hear and determine causes of action. (O’Connell v. Pharmaco, Inc. (1986), 143 Ill. App. 3d 1061, 1067, 493 N.E.2d 1175, 1179, cert, denied (1987), 479 U.S. 1091, 94 L. Ed. 2d 158, 107 S. Ct. 1303.) Article VI, section 9, of the Illinois Constitution of 1970 provides:

“Circuit courts shall have original jurisdiction of all justiciable matters except ***.” (Ill. Const. 1970, art. VI, §9.)

In application to a particular controversy, jurisdiction is the right to hear and determine that controversy. (Ward v. Sampson (1946), 395 Ill. 353, 360, 70 N.E.2d 324, 328.) Jurisdiction of the court to hear a particular controversy is invoked by filing an action. Community Bank & Trust Co. v. Pavlich (1980), 84 Ill. App. 3d 1080, 1082, 406 N.E.2d 164, 165; Ill. Rev. Stat. 1987, ch. 110, par. 2—201(a).

In Black’s Law Dictionary, “justiciable” is defined, “[m]atter appropriate for court review”; “matter” is defined, “[s]ubstantial facts forming basis of claim or defense; facts material to issue; substance as distinguished from form; transaction, event, occurrence; subject-matter of controversy.” Black’s Law Dictionary 777, 882 (5th ed. 1979).

Filing a petition for contempt with respect to visitation in a dissolution proceeding does not present to the trial court a “justiciable matter” sufficient for the trial court to make a child custody determination. The justiciable matter before the court was an alleged violation of the visitation provisions of the judgment of dissolution. Child custody was not.

In denying the section 2—1401 petition, the trial judge con-eluded the court’s subject-matter jurisdiction over child custody matters was invoked by the rule to show cause petition. This was error. The record reflects no petition initiating a child custody proceeding was filed as provided in section 601(b) of the Marriage Act. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b).) Further, nowhere in this record is there any indication petitioner was notified as required by section 601(c) that the hearing on the contempt petition would involve custody issues. (Ill. Rev. Stat. 1987, ch. 40, par. 601(c).) Notwithstanding the lack of a petition, the record establishes no evidence was presented or findings stated as required under section 610(b). (Ill. Rev. Stat. 1987, ch. 40, par. 610(b).) Indeed, respondent could not have known custody of her children was at issue in the contempt proceedings until the trial judge made his decision. Child custody matters are not somehow brought within the jurisdiction of the trial court by virtue of the filing of a contempt action involving visitation issues. Indeed, the supreme court in Kazubowski v. Kazubowski (1970), 45 Ill. 2d 405, 259 N.E.2d 282, noted the independent nature of contempt proceedings in relation to the principal action. We find Kazubowski supports our decision here.

We find further support for our conclusion in a recent case, Ottwell v. Ottwell (1988), 167 Ill. App. 3d 901, 522 N.E.2d 328. There, the court found the circuit court’s jurisdiction to modify child support orders was not properly invoked by the filing of petition for citation by the Illinois Department of Public Aid. The court noted section 511 of the Marriage Act expressly provided for the filing of a petition, with notice to the respondent, to enforce or modify orders entered in a dissolution of marriage proceeding. (Ill. Rev. Stat. 1987, ch. 40, par. 511.) The lack of such a petition rendered the orders modifying child support void. We adopt the reasoning of the Ottwell court.

Of the many aspects of a dissolution proceeding, child custody is of utmost importance. The provisions of section 601 set the procedures; section 602 mandates that the court shall determine custody in accordance with the “best interest of the child.” (Ill. Rev. Stat. 1987, ch. 40, pars. 601, 602.) Although the court “may” appoint a representative for the child in a dissolution proceeding, representation is not mandated. (Ill. Rev. Stat. 1987, ch. 40, par. 506.) The supreme court’s recent decision in Simcox v. Simcox (1989), 131 Ill. 2d 491, involving paternity issues, underscores the importance of children’s interests in dissolution proceedings.

The term “subject-matter jurisdiction” does not extend to the circumstances of this case. We conclude, however, that the trial court’s October 1988 order is void because the jurisdiction of the court was not properly invoked. Children are not pawns, nor can this court allow custody to be used as a penalty in the absence of compliance with the provisions of the Marriage Act. Thus, the order was subject to collateral attack under section 2—1401.

Since we find the October 1988 order is void, the trial court erred in denying the section 2—1401 petition to vacate this order. While we need not consider the remaining issues, we believe some of these issues may arise again between these parties and thus, these issues will be addressed.

It is abundantly clear from this record that the relationship between petitioner and respondent is less than amicable and may be characterized as quite hostile. Repeated allegations of interference with respondent’s visitation rights have brought petitioner before the trial court in contempt proceedings on numerous occasions. While we are cognizant of the trial judge’s apparent frustration with these matters, remedies for visitation abuse other than change of custody are provided in section 607.1 of the Marriage Act. (Ill. Rev. Stat. 1987, ch. 40, par. 607.1.) Moreover, we note that the courts of this State have consistently held that a change of custody is an improper remedy to punish a custodial parent’s contumacious interference with visitation rights. (In re Custody of Ehr (1979), 77 Ill. App. 3d 540, 396 N.E.2d 87; Clark v. Clark (1971), 1 Ill. App. 3d 69, 273 N.E.2d 26; Eggemeyer v. Eggemeyer (1967), 86 Ill. App. 2d 224, 229 N.E.2d 144; Szczawinski v. Szczawinski (1962), 37 Ill. App. 2d 350, 185 N.E.2d 375; Bulandr v. Bulandr (1959), 23 Ill. App. 2d 299, 162 N.E.2d 585.) The trial court may always enforce its visitation orders by way of contempt as was contemplated' in this case by the filing of a show cause petition. However, after the proceedings in this case were concluded, the trial judge expressly refused to find petitioner in contempt but removed the children from her custody, in part “as punishment for past acts of misconduct” in regard to visitation. We believe the trial judge’s actions in this case constitute an abuse of discretion.

For the foregoing reasons, the order of the trial court denying petitioner’s motion under section 2 — 1401 is reversed. The order of the trial court modifying the custody of the parties’ minor children is reversed.

Reversed.

SPITZ and GREEN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE LUND

license: Public Domain

text:
    ALOHA, INC., d/b/a Aloha, Plaintiff-Appellant, v. THE ILLINOIS LIQUOR CONTROL COMMISSION, Defendant-Appellee.
    Fourth District
    No. 4—89—0277
    Opinion filed December 14, 1989.

      Bobella Glatz, of Chatham, for appellant.
    Neil F. Hartigan, Attorney General, of Springfield (Robert J. Ruiz, Solicitor General, and William H. London, Assistant Attorney General, of Chicago, of counsel), for appellee.
   JUSTICE LUND

delivered the opinion of the court:

This case comes to us on appeal from an administrative review in the circuit court for Sangamon County. The plaintiff sought review of the findings and fine imposed by the Illinois Liquor Control Commission (Commission). The circuit court affirmed the decision. We affirm in part and reverse in part.

The evidence adduced at the administrative hearing before the Commission tended to show the following. On October 27, 1987, David Copeland, an investigator for the Commission, conducted an inspection of the plaintiff’s place of business, the Aloha, a bar located in Springfield, Illinois. As a result of this inspection, the plaintiff was issued a citation by the Commission for violating sections 100.160(a) and 100.290(c) of the Commission’s rules and regulations. (11 Ill. Adm. Code §§100.160(a), 100.290(c) (1985).) The plaintiff was specifically cited for maintaining its business premises in an unclean and unsanitary manner.

Pursuant to the citation, a hearing was held before the Commission on April 13, 1988. Copeland testified as to his findings during the investigation the previous October. He stated he inspected the entire premises in conformity with the normal procedures of the Commission’s inspectors. During the course of his inspection he found numerous bottles of alcohol contaminated by insects. The tables in the customer seating area were covered with a sticky film, the carpeting throughout the bar was soiled and discolored, there was a sour odor behind the bar, and there were bugs in the racks of bottles located behind the bar. Copeland testified he confiscated 14 bottles of liquor that appeared to be contaminated with insects. These bottles had not been tested or examined by a chemist but were admitted in evidence at the hearing.

Copeland further testified that in the walk-in cooler he had discovered numerous containers soiled with mold or mildew growth and observed mildew growth on the interior wall, ceilings, and fixtures of the cooler. On the shelves inside the cooler he noted decayed food items and items contaminated by a fuzzy, gray mold or soil located next to alcoholic beverage containers. He also stated he saw open food containers, some of which contained food which appeared to be spoiled.

In the dry storage area located next to the walk-in cooler, Copeland testified the ice machine did not have a lid to protect the ice cubes for drinks and the machine was very dirty and appeared to have mold or some substance hanging inside the machine. Copeland also noted a refrigerator in the room which had the appearance of being extremely dirty. The co-owner, Mrs. Blalock, informed Copeland the items inside the refrigerator were her personal food items and not for public consumption.

Upon inspecting the bathrooms, Copeland found nothing out of the ordinary in the women’s bathroom. He stated that the men’s bathroom, however, stank of urine, the floor was sticky, and that half a roll of clearly used toilet paper was in evidence. He also found approximately a bushel and a half of used toilet paper stored under the sink.

One of the co-owners of the plaintiff, Mrs. Blalock, testified on behalf of the plaintiff. She admitted the Aloha Room did in fact have a problem with insects. She stated she had hired an exterminating service to work on the problem, but their efforts had not been successful at the time of the inspection. She stated that at the time of her testimony, the problem had been solved. Blalock testified that prior to the inspection, she had not put caps on the bottles. After a subsequent visit by the Illinois Department of Public Health, she began to cap all the bottles. Blalock acknowledged that bugs were plainly visible in the confiscated bottles and stated she had not seen the bugs until Copeland brought it to her attention during his inspection. She testified the cleaning crew probably would have noticed the bugs in the bottles and would have removed the bottles before the bar opened for business the night of the inspection.

Richard Lowe, an inspector for the Illinois Department of Public Health, was the final witness called to testify. He has stated that he had conducted an inspection of the Aloha Room on October 30, 1987. He testified that he had received a complaint from a customer and a telephone call from Copeland requesting an inspection of plaintiffs place of business. The complaint from the customer reported the presence of cockroaches and rats and a cockroach in the customer’s drink.

Lowe testified he conducted his inspection with both Copeland and Blalock present. His inspection revealed two bottles contaminated with insects, and glassware contaminated with lipstick, food particles, and grease smears. He also stated the plaintiff did not have a test kit for the sanitation solution used in cleaning the glassware and the cloths for wiping the glassware were not stored in a sanitizing solution. He also noted the dirty conditions in the bathroom and the walk-in refrigerator.

On May 4, 1988, the Commission entered an order imposing a fine in the amount of $2,000 against the plaintiff. The plaintiff filed a petition for reconsideration, which was denied. On August 5, 1988, a complaint for administrative review was filed in the circuit court of Sangamon County. On January 19, 1989, the circuit court issued its order upholding the decision of the Commission. After the plaintiff’s motion for reconsideration was denied on April 3, 1989, the plaintiff filed a notice of appeal on April 4,1989.

The plaintiff first argues that Rule 100.160(a) violates its due process rights as it is unconstitutionally vague. The rule states:

“All licensees must conduct their business in premises which are at all times kept clean and sanitary. This applies not only to licensed premises, but to places of storage as well. This in-eludes also the place of storage for materials and equipment used in the manufacture of alcoholic liquor.” 11 Ill. Adm. Code § 100.160(a), at 1276 (1985).

The plaintiff has cited numerous Federal and State cases concerning the standards for evaluating unconstitutionally vague statutes. In Polyvend, Inc. v. Puckorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376, the Illinois Supreme Court stated that due process of law required that an act shall not be vague, indefinite, or uncertain and must provide sufficient standards to guide the administrative body in the exercise of its functions. The test to determine vagueness employed by the court in that case is whether the terms of the statute are so vague that persons of common intelligence must necessarily guess at its meaning and may differ as to its application. The plaintiff here contends the statute is vague because the term “clean and sanitary” is not defined in the statute or in the Commission rules, and plaintiff argues this exposes it to the arbitrary whims of the defendant’s inspectors.

In Polyvend, the court wrote:

“Although the phrases which plaintiff objects to are not defined in the statute, they seem to be commonly used and understood words. We do not think it can be said that persons of common intelligence would have to guess at the meaning of such everyday words as ‘business entity’ or ‘admission of guilt.’ ” (Polyvend, 77 Ill. 2d at 300, 395 N.E.2d at 1381.)

The term “clean and sanitary” is not so unusual or vague that it would cause persons of common intelligence to guess at its meaning or to differ as to its application. Certainly this term is no more difficult to comprehend, nor any more vague, than the phrases “business entity” or “admission of guilt” contained in the statute upheld by the court in Polyvend.

The plaintiff further argues the statutory requirement that the standard of clean and sanitary be met “at all times” is an unreasonable one which no bar operator could expect to fulfill. The plaintiff proposes the hypothetical case where a drink is spilled by a customer immediately prior to the arrival of the inspector or where the wastebasket in a washroom is full to the point of spilling over. Every statute or administrative rule relies on the good sense and discretion of the officers charged with its enforcement to prevent abuse and absurd or harsh results. Here, the evidence showed the conditions found by the inspector were not merely the happenstance of the moment, but an ongoing problem. Mrs. Blalock testified that she had been experiencing insect problems for several months. Clearly most of the mold and filth problems were not the result of a single night’s activity. The plaintiff undermines the credibility of its own witnesses when it attempts to suggest these conditions were somehow miraculously transformed by a cleaning crew every evening before opening to the public. The conditions revealed by the evidence here are at the other end of the spectrum from the innocuous situations proposed in plaintiff’s hypotheticals. Given these facts, the Commission’s application of the statutory standards was reasonable.

The plaintiff next argues the Commission’s finding of a violation of section 100.290(c) of its rules is contrary to the manifest weight of the evidence. That section states in part:

“No retail licensee will offer for sale, or possess on said licensed premises:
* * *
(c) Any bottles, casks, or other containers containing alcoholic liquor which contain any deleterious, contaminated, filthy, putrid substance or insects.” 11 Ill. Adm. Code § 100.290(c), at 1279 (1985).

The plaintiff contends the bottles admitted in evidence were not tested and could not be used to show a violation of section 100.290(c). Plaintiff looks to section 100.300, which authorizes agents of the Commission to remove suspected contaminated liquor. (11 Ill. Adm. Code §100.300 (1985).) As plaintiff would have it, this section authorizes removal only for purposes of testing. Though it did not argue the liquor here had been improperly removed or admitted into evidence, the plaintiff still wishes to convey some hint of impropriety in the Commission’s actions where it did not conduct chemical analysis of the seized liquor.

We do not agree that section 100.300 authorizes removal only for purposes of testing. When read as a whole, this section provides for the removal of any container suspected of containing adulterated liquor and the removal of sealed containers for the purposes of comparison testing. The testing language in the rule relates only to sealed containers. Here, the seized bottles were all open. The insect contaminants were plainly visible to the naked eye and were displayed to the Commission at its hearing. Section 100.290(c) provides that the mere presence of insects is a violation. In the absence of a statutory requirement, we fail to see what testing would have added here. Plaintiff has neither suggested what additional tests were necessary nor argued the contaminants in the bottles were not roaches and gnats. The decision of the Commission here was clearly supported by the manifest weight of the evidence.

We do, however, find merit in the plaintiff’s argument that the fine imposed by the Commission exceeded its statutory authority. Section 3—12 of the Liquor Control Act of 1934 limits the fine imposed by the Commission to $500 per violation. Ill. Rev. Stat. 1985, ch. 43, par. 108.

The Commission here charged the plaintiff with a violation of section 100.160 and section 100.290 on October 27, 1987. The Commission argues each of the contaminated bottles constituted a separate violation of section 100.290. In the alternative, it argues there was evidence to show a continuing violation for three days after the initial inspection. We do not reach these arguments in making our decision. Administrative proceedings are governed by requirements of due process. (Sullivan v. Board of Fire & Police Commissioners (1988), 170 Ill. App. 3d 255, 524 N.E.2d 733.) In an administrative hearing, due process is satisfied by procedures that conform to the fundamental principles of justice. (Waste Management of Illinois, Inc. v. Pollution Control Board (1988), 175 Ill. App. 3d 1023, 530 N.E.2d 682.) Procedural due process includes notice of what claims will be presented at the hearing and what consequences will result. In re Estate of Levin (1985), 135 Ill. App. 3d 866, 482 N.E.2d 409.

Our review of the charges filed and the finding of the Commission reveal the plaintiff was reasonably informed that it was charged with two violations of the Commission’s rules, which occurred on October 27, 1987. Nothing informed it the Commission would seek fines for a violation continuing after that day. Nothing suggested it was charged with multiple violations of section 100.290. The Commission is limited to fining the plaintiff for those charges on which the plaintiff had reasonable notice. The statutory limitation on the Commission’s fines is $500 per violation, and we find the plaintiff had adequate notice of only two violations. For this reason, the decision of the circuit court is reversed as to the fine imposed and this cause is remanded with instructions for the circuit court to remand to the Commission to reduce the fine to $1,000. Its decision in all other respects is affirmed.

Affirmed in part; reversed and remanded with instructions.

SPITZ and STEIGMANN, JJ., concur.


author: JUSTICE WOODWARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. GILBERTO E. ROCHA, Defendant-Appellee.
    Second District
    No. 2—88—0942
    Opinion filed December 13, 1989.

      Dennis Schumacher, State’s Attorney, of Oregon (William L. Browers and Mary Beth Burns, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    James P. Minnihan and Timothy William Johnson, both of Minnihan Law Offices, of Sycamore, for appellee.
   JUSTICE WOODWARD

delivered the opinion of the court:

The defendant, Gilberto Rocha, was arrested for the crime of aggravated criminal sexual assault in violation of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 12—14(b)(1)). Pursuant to the statutory hearsay exception pertaining to victims of sexual abuse under age 13 (Ill. Rev. Stat. 1987, ch. 38, par. 115—10), the State filed notice of its intent to offer the out-of-court statements of the alleged victim (child), age three, into evidence at trial. The defendant objected. The trial court ruled that the child’s statements were inadmissible hearsay and that they did not meet the statutory terms under which they were offered because the child was not “unavailable” as a ■witness. The State’s appeal of the trial court’s ruling presents this court with an issue of first impression. The question before us hinges on the interpretation of when a witness is, in fact, “unavailable” under the new statutory hearsay exception, section 115—10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(2)(B)). Because we believe the trial court’s ruling rested upon an incorrect interpretation of this statute, we reverse the trial court and remand the cause for further proceedings.

THE CAUSE BELOW

The State presented the following facts at several pretrial hearings. On August 26, 1987, the date of the alleged offense, the defendant, age 48, resided at the home of his sister, Maria Lara. Mrs. Lara was the regular baby-sitter for several children including the alleged child victim, at that time a three-year-old female. The child’s mother dropped her off at the Lara house sometime between 6:20 a.m. and 6:30 a.m. on the morning in question. The child did not immediately complain to her mother or anyone else regarding any incident of sexual abuse, but at about this time the child began to cry and resist when going to the Lara house. Two days later, August 28, 1987, was the last time the child’s mother used Mrs. Lara as her baby-sitter.

On October 14, 1987, the child allegedly told her mother that she did not want to go to the Lara house because “Uncle Zomba put a big thing” in her “cola.” According to the State, defendant was known as “Zomba,” and “cola” was a Spanish slang term for both the vaginal and anal areas. The mother then placed a call to the child-abuse hot line, which led to an investigation by the Department of Children and Family Services (DCFS).

Ray Garrett, an investigator for the DCFS, conducted two interviews with the child on October 21, 1987. The child and her mother were present at the first interview with Garrett, and the child recounted essentially the same thing she had previously told her mother. Garrett returned for a second interview with the child, this one conducted with the assistance of anatomically correct dolls and in the presence of an investigator and an officer from the Ogle County sheriff’s department. Asked to demonstrate what had occurred, the child called one doll by her own name and the other doll “Zomba” and then placed the dolls face to face to show contact between the penis and vaginal area. She stated that “Zomba” had put his “pee-pee” on her “cola.”

The next day, October 22, 1987, the defendant was subject at the Rochelle police department to noncustodial questioning about the incident. Shortly after the questioning began, defendant was advised of his Miranda rights. Questioning of defendant then continued. Soon thereafter the police advised the defendant that he would be charged and asked him to repeat his statement in front of a videotape camera. He agreed.

In this videotaped statement the defendant stated that the child and he had been alone in the Lara House for a short time on the morning of August 26, 1987. The defendant stated that the child sat next to him on the couch and asked him to change her diaper. He did not do so because he could find no clean diapers; he stated that the child removed the diaper herself and was naked. The child then sat upon the defendant, who had his untucked shirt covering his unzipped pants; defendant lifted his shirt and then touched the child’s vagina with his penis and his hand. He stated that the “devil” had come over him.

The defendant was bound over for trial following a preliminary hearing on November 12, 1987. The defendant moved to quash his arrest and suppress evidence, including the videotaped statement, but the trial court denied the motion. Prior to trial the State filed a notice of intent to offer into evidence the out-of-court statements made by the child to her mother and DCFS investigator Garrett. Because the child would not be testifying at trial, the hearsay evidence in question was offered under the statutory provision applicable when the child victim is “unavailable as a witness” (Ill. Rev. Stat. 1987, ch. 38, pars. 115—10(b)(2)(B), (d)).

The defendant moved to exclude the out-of-court statements, and a hearing was held on the issue September 12, 1988. At that hearing, counsel for the defendant and the State stipulated that the child was not competent to testify at trial because of her young age. After hearing the arguments of counsel, the trial court held that the child’s statements were not admissible under either a common-law hearsay exception or the provisions of the statutory hearsay exception. Specifically, the trial court ruled that the victim’s incompetence to testify in this case was not within the meaning of the word “unavailable” as used in the statute.

The State filed a motion to reconsider, which was denied. The State then timely filed a certificate of impairment pursuant to Supreme Court Rule 604(a)(1) (107 Ill. 2d R. 604(a)(1)) and a notice of appeal. Jurisdiction of the appeal of the trial court’s order suppressing evidence is appropriate pursuant to Supreme Court Rule 604(a) (107 Ill. 2d R. 604(a)). (See People v. Hatfield (1987), 161 Ill. App. 3d 401.) The State claims on appeal that the trial court incorrectly determined that an incompetent child witness is not an “unavailable” witness within the meaning of the statutory hearsay exception and asks this court to reverse the trial court’s ruling and remand the cause for further proceedings. This court first will examine what constitutes an “unavailable” witness within the context of the statute. We will then address the constitutional implications of this statutory interpretation.

THE STATUTORY HEARSAY EXCEPTION

In order to decipher the legislature’s intent in enacting the current version of the child sexual abuse hearsay exception, it is pertinent to explore the development of Illinois law on this subject.

The spectre of child sexual abuse is one of the most troubling issues confronting our society today. It has been estimated that some 400,000 children are sexually abused every year in the United States. (See G. Skoler, New Hearsay Exceptions for a Child’s Statement of Sexual Abuse, 18 J. Marshall L. Rev. 1 (1984).) These cases present special problems of proof that make their prosecution especially difficult. The most obvious difficulty is the fact that usually the only witness to the crime is a young child who may not be able to testify adequately about what occurred. The courtroom setting can be intimidating to the child attempting to recount the incident of abuse, and cross-examination is likely to confuse the child witness. A child may retract a claim of sexual abuse because of the guilt or fear caused by the event. Moreover, when the perpetrator is a friend or family member, the child may even fear the consequences for the offender. The child may simply refuse to retell his or her story in open court, and sometimes parents will decline to prosecute the case rather than subject the child to what amounts to yet another trying ordeal. See generally G. Skoler, New Hearsay Exceptions for a Child’s Statement of Sexual Abuse, 18 J. Marshall L. Rev. 1, 5-7 (1984); Notes, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv. L. Rev. 806, 806-09 (1985).

Given the limitations inherent in the courtroom testimony of young children, courts have looked to traditional common-law hearsay exceptions to allow into evidence the out-of-court statements of alleged child victims. Illinois has long accepted both the spontaneous utterance and the prompt corroborative complaint exceptions to the general rule against hearsay. (People v. Damen (1963), 28 Ill. 2d 464, 471-72.) The Illinois legislature codified a slightly altered version of the corroborative complaint hearsay exception when it enacted the original version of section 115—10 of the Code of Criminal Procedure of 1963 in 1983. (Ill. Rev. Stat. 1983, ch. 38, par. 115—10; see People v. Goebel (1987), 161 Ill. App. 3d 113, 118-19.) Unlike the common-law prompt complaint doctrine, the statutory version did not view the promptness of the complaint as an issue of admissibility; rather, any delay in reporting an incident of sexual abuse was to affect the weight given the statement. In re M.M. (1988), 171 Ill. App. 3d 334, 343 (six-month delay in reporting of sexual abuse was an issue of weight, not admissibility, of the evidence).

This original version of section 115—10 required, by its own terms, that the child victim must testify before any out-of-court statements might be brought into evidence. This obviated the issue of the defendant’s right to cross-examine the witness. Because any out-of-court statements would only be offered in addition to the victim’s own in-court testimony, Illinois courts interpreted the old section 115—10 to allow only corroborative testimony and thus would not allow detailed repetition of the out-of-court statements. (In re M.M., 171 Ill. App. 3d at 340-42; People v. Salas (1985), 138 Ill. App. 3d 48, 55.) It is in this light that the newly enacted section 115—10 must be read.

The recently revised version of the statute reads as follows:

“(a) In a prosecution for a sexual act perpetrated upon a child under the age of 13, including but not limited to prosecutions for violations of Sections 12—13 through 12—16 of the Criminal Code of 1961, the following evidence shall be admitted as an exception to the hearsay rule:
(1) testimony by such child of an out of court statement made by such child that he or she complained of such act to another; and
(2) testimony of an out of court statement made by such child describing any complaint of such act or matter or detail pertaining to any act which is an element of an offense which is the subject of a prosecution for a sexual act perpetrated upon a child.
(b) Such testimony shall only be admitted if:
(1) The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability; and
(2) The child either:
(A) Testifies at the proceeding; or
(B) Is unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.
(c) If a statement is admitted pursuant to this Section, the court shall instruct the jury that it is for the jury to determine the weight and credibility to be given the statement and that, in making the determination, it shall consider the age and maturity of the child, the nature of the statement, the circumstances under which the statement was made, and any other relevant factor.
(d) The proponent of the statement shall give the adverse party reasonable notice of his intention to offer the statement and the particulars of the statement.” Ill. Rev. Stat. 1987, ch. 38, par. 115—10.

This replaces the corroborative complaint hearsay exception with a comprehensive hearsay exception applicable in any prosecution based upon a sexual act perpetrated upon a child under the age of 13. The new statute effectively counters the results in decisions such as In re M.M. and People v. Salas because section 115—10 now allows into evidence the detailed testimony of the person to whom the child has complained.

The recent amendment to section 115—10, however, did something more. The prior version of this section was predicated on the assumption that the minor victim would, in fact, testify at trial and be subject to cross-examination. The new section 115—10 contains an additional method by which the State may offer into evidence the out-of-court statements of the child victim even where the child does not testify. As set forth above, this provision allows the out-of-court statements if the child is “unavailable as a witness and there is corroborative evidence of the act which is the subject of the statement.” Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(2)(B).

What constitutes an “unavailable” witness per the terms of the new statute is the question before this court. As we noted above, there are unique problems associated with the in-court testimony of child victims that suggest a number of possible meanings for unavailability. At one extreme, the child might be deemed “unavailable” merely if hesitant or reluctant to testify. At the other extreme, perhaps only outright impossibility ought to suffice for unavailability. In between these two poles lies the myriad of subtle problems particular to child testimony. When does the absolute refusal of the child to testify approach impossibility? How does the ability of a willing child witness to communicate effectively affect his availability? Does the child’s competence to testify, evaluated by traditional judicial standards, impact upon whether the child is deemed “unavailable”?

The defendant in this case argues that the Illinois Supreme Court’s decision in People v. Johnson (1987), 118 Ill. 2d 501, compels us to find that a child unable or unwilling to testify is not “unavailable” within the meaning of section 115—10. The trial court was persuaded that People v. Johnson required such a result. We disagree. The court in People v. Johnson refused to equate reluctance to testify with unavailability for the purposes of Supreme Court Rule 414 (107 Ill. 2d R. 414), not section 115—10. Rule 414 allows for the taking of evidence depositions before trial if it appears that a witness may be “unavailable” at the time of trial. The deposition can then be used as evidence. (107 Ill. 2d R. 414.) This rule is one of general applicability in criminal cases, and the court declined to equate all reluctant witnesses, including adults, with “unavailable” witnesses within the meaning of Rule 414. Section 115—10, however, is not broadly applicable, but deals only with the special problem of child-victim witnesses. Hence, the fact that the supreme court declined generally to equate reluctance with unavailability does not compel the same result in a more specialized instance.

In People v. Johnson, the Illinois Supreme Court specifically referred to the particular problems associated with child-victim witnesses:

“[W]e feel compelled to acknowledge the special difficulties presented by cases such as these, where the witness in question is a young child whose fear and reticence is probably nonvolitional and hence understandable. However, it is our view that any attempts to resolve these difficulties must be initiated by the legislature.” (Johnson, 118 Ill. 2d at 510.)

Section 115—10 appears to be the kind of legislative initiative the supreme court has invited. This provision seeks to balance the need for reliable testimony against the particular problems of the child-victim witness. As such, it is reasonable to conclude that the legislature intended that the term “unavailable” in the statute should include those victims who are unable to testify due to fear or similar factors.

Illinois is not the first State to adopt such an unavailability standard for this kind of hearsay exception. The Florida legislature, for example, enacted a statutory hearsay exception that is quite similar to section 115—10, and that State accepts the possibly harmful effects that testifying might have on the child’s mental and emotional well-being as one facet of availability. In Perez v. State (Fla. 1988), 536 So. 2d 206, the Florida Supreme Court upheld the constitutionality of the Florida statutory hearsay exception, section 90.803(23), Florida Statutes (1985). The exception applies to the out-of-court statements of a victim with a physical, mental, emotional, or developmental age of 11 or less pertaining to sexual abuse. Under the statute, the trial court must first (1) independently determine that the statement is sufficiently reliable, and (2) the child must testify or:

“Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense. Unavailability shall include a finding by the court that the child’s participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm ***.” Perez, 536 So. 2d at 207 n.1.

A number of State high courts have also found that the inability or hesitance of a child victim of sexual abuse to testify constitutes unavailability. State v. Robinson (1987), 153 Ariz. 191, 735 P.2d 801 (uncommunicative child is incapable of testifying and thus unavailable); State v. Giles (1989), 115 Idaho 984, 772 P.2d 191 (three-year-old child was incapable of communicating to the jury and was thus unavailable); State v. Chandler (1989), 324 N.C. 172, 376 S.E.2d 728 (child witness became unresponsive during testimony and was ruled unavailable); State v. McCafferty (S.D. 1984), 356 N.W.2d 159 (child victim present in courtroom but unable to testify effectively deemed unavailable); see also United States v. Iron Shell (8th Cir. 1980), 633 E2d 77; M. Graham, The Confrontation Clause, the Hearsay Rule, and Child Sexual Abuse Prosecutions: The State of the Relationship, 72 Minn. L. Rev. 523 (1988).

The State of Washington enacted its child sex victim hearsay exception in 1982, and this provision has become the model for most other State statutory efforts in this field. (See Note, The Testimony of Child Victims in Sex Abuse Prosecutions: Two Legislative Innovations, 98 Harv. L. Rev. 806, 811 (1985).) Washington’s Supreme Court has held that the prosecution may not stipulate to the child victim’s incompetency to testify in order to render the child unavailable as a witness. (State v. Ryan (1984), 103 Wash. 2d 165, 691 P.2d 197.) But the same court has also held that a trial court’s own independent determination that a child is incapable of testifying is sufficient to constitute unavailability. (State v. Jones (1989), 112 Wash. 2d 488, 772 P.2d 496.) This reading of Washington’s statute bolsters our conclusion that the Illinois statutory hearsay exception for the child victims of sexual abuse should include as “unavailable” those children who cannot or will not testify in court about their experiences.

With this reading of the statutory provision, one other question of interpretation remains, namely, how does the alleged victim’s competence to testify, as opposed to his or her hesitance or unwillingness, fit within the analytical framework?

Illinois courts have held that the test of a child’s competence to testify is based upon whether the child has sufficient intelligence and understanding of the matters to which he is called to testify and understands the obligation to retell such matters truthfully. (People v. Tappin (1963), 28 Ill. 2d 95, 97-98.) Until only very recently, courts in Illinois have indulged a presumption that a child 14 years or older is competent to testify, while the competence of a child younger than 14 must be demonstrated to the trial court. (People v. Karpovich (1919), 288 Ill. 268, 270-71.) The Illinois legislature has recently enacted a new provision regarding witness competency which states that every witness, regardless of age, is presumed competent to testify. A party may move to disqualify a witness if it can be demonstrated that the witness is either incapable of expressing himself or does not appreciate the duty to testify truthfully. Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115—14.

If a child sexual abuse victim is deemed “incompetent” as a witness, a seeming paradox results from the attempt to introduce into evidence that child’s out-of-court statements. It may appear incongruous to allow into evidence the statements of someone declared incompetent to testify to the same events at trial just a few months later. (See State v. DR. (1988), 109 N.J. 348, 367-68, 537 A.2d 667, 677.) The resolution to this paradox comes through an understanding that a child’s earlier statement can sometimes be viewed as more reliable than the testimony given in the structured and intimidating courtroom atmosphere. “The reliability, and therefore admissibility, of a spontaneous declaration comes not from the reliability of the declarant, but from the circumstances under which the statement is made.” People v. Cherry (1980), 88 Ill. App. 3d 1048, 1052 (child’s out-of-court declarations held admissible despite incompetence to testify at trial); see also 29 Am. Jur. 2d Evidence §728 (1967).

Incompetence to testify due to the inability to communicate or because of the child’s tender years does not, then, necessarily render unreliable the child’s out-of-court statements. “The fact that a child is incompetent to testify at trial *** does not necessarily mean that the child is unable to state the truth.” (Perez v. State (Fla. 1988), 536 So. 2d 206, 211.) The determination of such issues must be made on a case-by-case basis. Section 115—10 of the Code of Criminal Procedure provides for this by requiring the trial court to make a specific finding of the statement’s reliability under the circumstances. (Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(1).) Further, the child must either testify at the proceeding or be unavailable as a witness, with the provision that there is corroborative evidence of the alleged act.

The legislature, then, has provided section 115—10 as a mechanism for allowing into evidence the out-of-court statements of children who are the victims of sexual abuse. This court holds that the legislature’s intent was to include within the meaning of “unavailable” witnesses those children who are unable to testify because of fear, inability to communicate in the courtroom setting, or incompetence. Therefore, the trial court’s interpretation of the statute was erroneous. There remains, however, the question of whether this statute, as interpreted by the court today, comports with the constitutional guarantees of the sixth amendment.

THE CONFRONTATION CLAUSE

The sixth amendment to the United States Constitution provides that in “all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.” (U.S. Const., amend. VI) This constitutional guarantee is called into question if the Illinois statutory hearsay exception allows into evidence the out-of-court statements of a child who is sexually abused without the child being present at trial. Clearly, in such an instance the accused would be unable to confront and cross-examine a key “witness” against him.

As interpreted by the Supreme Court, however, the confrontation clause does not strictly prohibit the introduction of all out-of-court statements when the declarant is unavailable to testify; rather, the trial court must make a special inquiry into the particular indications of the statements’ reliability if the declarant is not subject to cross-examination. (Ohio v. Roberts (1980), 448 U.S. 56, 66, 65 L. Ed. 2d 597, 808, 100 S. Ct. 2531, 2539.) To require cross-examination of all statements introduced at trial would eliminate every exception to the rule against hearsay, a notion the Supreme Court has firmly rejected (Roberts, 448 U.S. at 63, 65 L. Ed. 2d at 606, 100 S. Ct. at 2537).

A witness is not “uiiavailable” for the purpose of the sixth amendment’s confrontation clause unless the prosecutor has made a good-faith effort to obtain the witness’ presence at trial. The lengths to which the prosecution must go to make available such witnesses is a question of reasonableness. (Roberts, 448 U.S. at 74, 65 L. Ed. 2d at 613, 100 S. Ct. at 2543.) It does not appear to this court that the failure to produce a child witness is unreasonable where it is demonstrated to the trial court that the child is unwilling or unable to testify. This would include the situation where the child is declared incompetent because he or she is “[i]ncapable of expressing himself or herself concerning the matter so as to be understood.” Ill. Rev. Stat., 1988 Supp., ch. 38, par. 115—14(b)(1).

In the case currently before the court, however, the trial court did not make an independent assessment of the child’s ability or willingness to testify. While it is true that counsel for both the State and the defendant stipulated to the child’s incompetence, this cursory treatment of the issue is insufficient. “Stipulated incompetency based upon an erroneous understanding of statutory incompetency is too uncertain a basis to find unavailability. To excuse production of a witness whose testimony is offered against a criminal defendant through hearsay repetition, a more certain showing is required.” State v. Ryan (1984), 103 Wash. 2d 165, 172, 691 P.2d 197, 203 (regarding Washington’s statutory hearsay exception for child victims of sexual abuse).

On remand, however, if it is demonstrated to the trial court that the child is unwilling or unable to testify this would support a finding that the witness is “unavailable” for sixth amendment purposes. See State v. Jones (1989), 112 Wash. 2d 488, 498, 772 P.2d 496, 501-02.

Next, Ohio v. Roberts requires the trial court to determine that the out-of-court declarations demonstrate adequate indicia of reliability before they can be offered into evidence. (Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.) Although reliability can be inferred without more where the statement “falls within a firmly rooted hearsay exception” (Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539), the Illinois statutory hearsay exemption is new and clearly not firmly rooted. As a result, the evidence in each case must show a particularized guarantee of trustworthiness. Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.

The Illinois statutory hearsay exemption clearly provides that such a finding must be made. The trial court must find “in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability.” (Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(1).) Moreover, the statute requires the trial court to determine that there is “corroborative evidence of the act which is the subject of the statement” before the prosecution will be allowed to offer it. Ill. Rev. Stat. 1987, ch. 38, par. 115—10(b)(2)(B).

It is clear to this court that the Illinois statutory hearsay exemption clearly comports with the confrontation guarantees outlined in Ohio v. Roberts. Our view that the statute is constitutional is bolstered by a more recent Supreme Court decision which questions whether the Ohio v. Roberts analysis is even applicable outside of the factual setting of that case. In United States v. Inadi, the Supreme Court noted that “Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. *** Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.” (United States v. Inadi (1986), 475 U.S. 387, 394, 89 L. Ed. 2d 390, 398, 106 S. Ct. 1121, 1125.) Ohio v. Roberts itself suggested that a showing of strict unavailability is not always constitutionally required if the utility of trial confrontation is remote. Roberts, 448 U.S. at 65 n.7, 65 L. Ed. 2d at 607 n.7, 100 S. Ct. at 2538 n.7, citing Dutton v. Evans (1970), 400 U.S. 74, 27 L. Ed. 2d 213, 91 S. Ct. 210.

At issue in United States v. Inadi was the prosecution’s attempt to offer into evidence the out-of-court statement of a coconspirator made while the conspiracy was in progress. Although the declarant was not shown to be “unavailable,” he did not testify at trial. The Supreme Court held that a showing of unavailability was not required in order to properly admit into evidence the out-of-court statement of the nontestifying coconspirator. (Inadi, 475 U.S. at 400, 89 L. Ed. 2d at 401, 106 S. Ct. at 1129.) The court reasoned that usually “former testimony *** is only a weaker substitute for live testimony.” (Inadi, 475 U.S. at 394, 89 L. Ed. 2d at 398, 106 S. Ct. at 1126.) In United States v. Inadi, however, the court felt that the in-court testimony of the coconspirator would actually be less probative than the prior out-of-court statement made while the conspiracy was in progress. The court concluded that such testimony would “provide evidence of the conspiracy’s context that cannot be replicated, even if the declarant testifies to the same matters in court.” Inadi, 475 U.S. at 395, 89 L. Ed. 2d at 398,106 S. Ct. at 1126.

The same rationale would hold true in the unique case of the child victim of sexual abuse. The child’s first accounts of an incident of sexual abuse are sometimes more reliable than later testimony given in the often intimidating courtroom setting. Referring to United States v. Inadi, both the Arizona and Florida supreme courts have held that the child’s earlier testimony is the kind of irreplaceable substantive evidence that might be more probative than in-court testimony, thus excusing unavailability. State v. Robinson (1987), 153 Ariz. 191, 204, 735 P.2d 801, 814 (child’s statements regarding sexual abuse are “valuable and trustworthy in part because they exude the naivete and curiosity of a small child, and were made in circumstances very different from interrogation or a criminal trial”); Perez v. State (Fla. 1988), 536 So. 2d 206, 209 n.5.

Finally, today’s interpretation of the Illinois statutory hearsay exception and the analysis of its constitutional implications are consistent with the Illinois Supreme Court’s recent decision in People v. Bastien (1989), 129 Ill. 2d 64. At issue in that case was an Illinois statute allowing the videotaping of a child sexual abuse victim’s statement for later use at trial. The child’s statement would be taped in the defendant’s presence, but no cross-examination would be allowed until the time of trial. (Ill. Rev. Stat. 1987, ch. 38, par. 106A—2.) Though the child victim in People v. Bastien was present at trial for purposes of cross-examination, the supreme court found the videotaping statute unconstitutional. During the delay between the taping of the child’s original statement and the actual trial, the court reasoned, the child’s version of events could be influenced by parents or prosecutors. This lack of cross-examination, because not contemporaneous with the original hearsay statement, was thus a deprivation of the defendant’s

right to confront and cross-examine his accuser effectively. Bastien, 129 Ill. 2d at 77.

We do not believe that the Illinois Supreme Court intended to suggest that every out-of-court statement offered into evidence must be subject to contemporaneous cross-examination. Such an interpretation would “abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme.” (Ohio v. Roberts (1980), 448 U.S. 56, 63, 65 L. Ed. 2d 597, 606, 100 S. Ct. 2531, 2537.) It would hardly be reasonable, for instance, to expect that the last gasping words of a dying declarant be subjected to contemporaneous cross-examination before such a hearsay statement could be offered into evidence at trial.

The Illinois Supreme Court’s decision in People v. Bastien was more concerned with the presentation of the better evidence. Citing United States v. Inadi, the court found that “the same rationale applies to the case at bar. Under the terms of the statute, the child witness must be available to testify and to submit to cross-examination at trial; thus, ‘there is little justification for relying on the weaker version’ — the videotaped statement.” (Emphasis in original.) (Bastien, 129 Ill. 2d at 78.) A different situation is presented by the out-of-court statements of the “unavailable” child witness. As we noted above, the in-court testimony of a child victim may be of less probative value than the earlier statements.

Furthermore, the facts of People v. Bastien suggest no reason why the State could not have easily provided contemporaneous cross-examination of the child at the initial videotaping session. In the instant case, however, the out-of-court statements were not taken for the purpose of offering them at trial. The victim’s first statement was made spontaneously to her mother; the second was obtained in the course of the DCFS investigation shortly thereafter. It is unreasonable to expect that these statements could have been subjected to cross-examination by the defendant when his identity as the accused perpetrator was only derived at the very time the statements were made.

Therefore, it is apparent to this court that the Illinois statutory hearsay exception embodied in section 115—10 does not unconstitutionally violate the defendant’s right to confront the witnesses against him.

CONCLUSION

The trial court erred by concluding that section 115—10 does not include within the meaning of an “unavailable” witness a child victim who is either unable or unwilling to testify in court. On remand, the trial court should, in a proceeding outside the presence of the jury, make its own determination of whether the child is unable or unwilling to testify and whether there is corroborative evidence of the alleged act. The trial court must also determine whether each statement offered by the prosecution, examined individually, possesses “particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.

The trial court’s order granting the motion of the defendant to exclude the out-of-court statements of the child victim is reversed. The cause is remanded for further proceedings in conformity with this opinion.

Reversed and remanded.

UNYERZAGT, P.J., and REINHARD, J., concur.


author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE ex rel. FRED L. FOREMAN, State’s Attorney of Lake County, Plaintiff-Appellant, v. THE VILLAGE OF NORTH BARRINGTON et al., Defendants (Suburban National Bank of Palatine, as Trustee, et al., Intervening Defendants-Appellees).—THE PEOPLE ex rel. FRED L. FOREMAN, State’s Attorney of Lake County, Plaintiff-Appellee, v. THE VILLAGE OF NORTH BARRINGTON, Defendant-Appellant (Lloyd Rasmussen, Highway Commissioner of Cuba Township, Lake County, Defendant; Suburban National Bank of Palatine, as Trustee, et al., Intervening Defendants).—DONALD L. KLASS et al., Plaintiffs-Appellants, v. LLOYD RASMUSSEN, Highway Commissioner of Cuba Township, Lake County, Defendant-Appellee (Suburban National Bank of Palatine, as Trustee, et al., Intervening Defendants-Appellees; The Village of North Barrington, Amicus Curiae).

    Second District
    Nos. 2—88—1055, 2— 89—0003, 2—89—0050 cons.
    Opinion filed December 7, 1989.
    Rehearing denied January 12, 1990.

      Fred L. Foreman, State’s Attorney, of Waukegan (Mitchell L. Hoffman and Mimi E. Brin, Assistant State’s Attorneys, of counsel), for the People ex rel. Fred L. Foreman.
    George N. Gilkerson, of Rooks, Pitts & Poust, of Wheaton, and James C. Bakk, of Lonchar, Nordigian & Bakk, of Waukegan (Marc A. Primack, of counsel), for other appellants.
    Donald T. Morrison & Associates, P.C., of Waukegan (Joseph T. Morrison, of counsel), for appellees Suburban National Bank of Palatine and Daniel Light.
    Terrence J. Griffin, of Arnstein & Lehr, of Barrington, and Thomas W. Gooch & Associates, Ltd., of Wauconda (J. William Braithwaite and Thomas W. Gooch III, of counsel), for appellee Lloyd Rasmussen.
    Terrence J. Griffin, of Arnstein & Lehr, of Barrington (J, William Braithwaite, of counsel), for Village of North Barrington.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

This matter concerns a challenge to annexation of vacant property to the Village of North Barrington (Village) and an action against Cuba Township in Lake County wherein the vacant property is located, for failure to vacate a road on the boundary of that property.

In the first of these three consolidated appeals (2—8—1055) Lake County appeals the summary judgment entered on its complaint in quo warranto in favor of the Village of North Barrington and Suburban National Bank of Palatine as trustee imder trust No. 5168 and Daniel Light (collectively referred to as developer). The trial court found valid the Village’s July 13, 1987, annexation of the developer’s property (Grassmere Farm) located at the southeast corner of Routes 22 and 59 in unincorporated Lake County, and the annexation by operation of law (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—1) of a township road known as Scott Road, which is adjacent to the southern boundary line of Grassmere Farm. The court also found the validity of the annexation rendered moot the question concerning a petition to vacate Scott Road.

In the second appeal (No. 2—89—0003), the Village appeals the trial court’s denial of its motion for summary judgment filed in the county’s quo warranto proceeding. The Village’s motion for summary judgment adopted the ground set forth in the developer’s motion for summary judgment but included the additional ground that the Village’s subsequent reannexation of Grassmere Farm on April 11, 1988, rendered moot all the issues relating to the validity of the first annexation of the property.

In the third appeal (No. 2—89—0050), the Scott Road homeowners appeal the dismissal of their petition for writ of mandamus seeking to command Lloyd Rasmussen, the Cuba Township highway commissioner in Lake County, to complete proceedings and grant their petition to vacate Scott Road. The petition for writ of mandamus was dismissed as moot in light of the circuit court’s finding that the Village’s first annexation of Grassmere Farm was valid.

The quo warranto and mandamus actions (along with the homeowners’ complaint for injunctive relief against the developer seeking to prevent the annexation of the subject property which is not involved in this appeal (88—CH—216)) were consolidated in the trial court upon the homeowners’ motion asserting that all the causes involved the validity of certain of the Village’s ordinances. The developer’s motion in this court to consolidate the first and second appeals was granted, as was the homeowners’ motion to consolidate their appeal with the first two.

These issues are presented: (1) whether this court has jurisdiction of the Village’s appeal; (2) whether the county’s and the homeowners’ appeals are moot and should be dismissed due to the Village’s unchallenged reannexation of the subject property; (3) whether the Village’s first annexation of the subject property was invalid because the deed to the subject property was not recorded on the date the petition for annexation was filed with the Village; and (4) whether the homeowners’ petition for writ of mandamus was improperly dismissed for mootness.

A chronology of the events preceding the instant appeals is essential. The following is a distillation of the pertinent facts:

June 5, 1986. Developer enters into a contract to purchase the subject property (Grassmere Farm) comprising 125 acres of land in unincorporated Lake County which is contiguous to the Village of North Barrington. Scott Road, a township road, is the southern boundary of the subject property. It separates the subject property on the north from three single-family houses on the south which are owned and occupied by the homeowners appealing dismissal of the petition for writ of mandamus.
December 1, 1986. The Village board and plan commission of North Barrington hold a public hearing to consider a proposed annexation agreement relative to Grassmere Farm. No action on the annexation agreement is taken at this meeting.
June 29, 1987. Homeowners and nine other persons, all legal voters residing in Cuba Township, Lake County, Illinois, file a petition for the vacation of Scott Road adjacent to the homeowners’ lots with Lloyd Rasmussen, the Cuba Township Highway Commissioner. The petition is filed pursuant to section 6—301 of the Illinois Highway Code (Ill. Rev. Stat. 1987, ch. 121, par. 6—301 et seq.), covering the laying out, widening, altering or vacating of township and district roads. The petitioners represent that they are the sole owners of all the lots in the Rolling Meadows subdivision adjacent to Scott Road, that the roadway is not needed for public use, that there is no public need, necessity, nor interest in the roadway, and that they are prepared to undertake to maintain the roadway and grant easements for ingress and egress to each parcel presently having an entrance on the roadway. Pursuant to statute (Ill. Rev. Stat. 1987, ch. 121, par. 6—305), the commissioner publishes a notice of public hearing on the petition to be held July 13, 1987, at 3 p.m.
July 1, 1987. Developer closes on the purchase of the Grass-mere Farm, and title is conveyed by deed delivered to and accepted by Daniel Light as a beneficiary of Palatine National Bank land trust No. 5168. Light turns the deed over to his attorney for recording of same.
July 3, 1987. Developer files a petition for annexation of Grassmere Farm to the Village of North Barrington pursuant to section 7—1—8 of the Illinois Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—8), which provides, inter alia, that any territory not within the corporate limits of any municipality but which is contiguous to a municipality at the time of annexation may be annexed upon the filing with the municipal clerk of a written petition signed by the “owners of record” of all land within such territory. Inter alia, the legal description of the property to be annexed includes the portion of Scott Road which is the subject of the homeowners’ petition to vacate. (Section 7—1—1 of the Municipal Code provides that when territory contiguous to a municipality is annexed, the new boundary “shall extend to the far side of any adjacent highway *** even though [such highway is] not included in the legal descriptions set forth in the petition for annexation.” (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—1.)) The annexation petition is signed by Palatine National Bank as trustee under its trust No. 5168, which states therein that it “constitutes the sole owner of record of all land in the [subject] territory.” The annexation petition is supported by an affidavit dated July 3, 1987, signed by developer Daniel Light in which he identifies himself as a beneficial owner of trust No. 5168, states he read the annexation petition subscribed to by the bank and that the facts stated therein are true.
Per an affidavit of the North Barrington Village clerk included in the record, notice is given to the Cuba Township board and Cuba Township highway commissioner that the proposed annexation is to be considered on July 13, 1987, by the North Barrington board.
July 6, 1987. North Barrington adopts ordinance No. 418 approving an annexation agreement for the Grassmere Farm property. According to the record, the annexation agreement permits North Barrington to require the developer to widen and pave Scott Road to its full 40-foot width (from its present 14-foot to 20-foot width) and have gravel shoulders for it. According to pleadings of the homeowners in the record, the present appearance of the homeowners’ properties would thereby be altered insofar as driveways, mailboxes, trees, shrubbery and/or fences are concerned. It is further alleged in the homeowners’ pleadings that up to seven houses with driveway access to Scott Road could be constructed on the north side of Scott Road under the terms of the annexation agreement.
July 10, 1987. The deed conveying the subject property to Palatine National Bank as trustee under trust No. 5168 is recorded with the Lake County recorder of deeds.
July 13, 1987. 8 a.m. North Barrington village board holds a special meeting at which ordinance No. 419 is adopted thereby annexing the Grassmere Farm property including, inter alia, by operation of law, the adjacent portion of Scott Road.
3 p.m. Cuba Township highway commissioner convenes the scheduled public hearing to consider the homeowners’ petition to vacate Scott Road. An attorney appearing on behalf of North Barrington provides the commissioner with a certified copy of ordinance No. 419 and a letter suggesting that because Scott Road is now within the municipal limits of North Barrington, Cuba Township no longer has jurisdiction to consider the pending petition to vacate. The commissioner continues the hearing to July 20, 1987.
July 20, 1987. The commissioner reconvenes the hearing on the homeowners’ petition to vacate Scott Road. Township counsel advises it must presume that North Barrington annexation ordinance No. 419 is valid. The commissioner declines to act further on the homeowners’ petition for vacation, “leaving the question open for any further action which may become necessary.”
August 5, 1987. Homeowners’ request the Lake County State’s Attorney bring a quo warranto proceeding to challenge North Barrington’s ordinances No. 418 (the annexation agreement) and 419 (the annexation ordinance).
August 21, 1987. Lake County State’s Attorney declines to institute quo warranto proceedings.
September 3, 1987. Illinois Attorney General also declines to institute quo warranto proceedings.
January 7, 1988. Homeowners file an application for leave to file a complaint in quo warranto. (Trial court No. 88—MR—7.)
March 8, 1988. Village responds to the homeowners’ application for leave to file a complaint in quo warranto, asserting the propriety of its consideration of the annexation agreement, its priority over the petition to vacate Scott Road, and the validity of its annexation of the subject property.
March 30, 1988. Homeowners file an amended application for leave to file a complaint in quo warranto and a complaint in quo warranto. It is alleged for the first time that Palatine National Bank as trustee under trust No. 5168 was not the “owner of record” on July 3, 1987, the date the annexation petition was filed, inasmuch as the deed for the subject property was not recorded with the Lake County recorder of deeds until July 10, 1987.
April 1, 1988. Suburban National Bank as trustee under trust No. 5168 (successor trustee to Palatine National Bank) files a petition for annexation with the Village of North Barrington which notes the attacks on the validity of annexation ordinance No. 419 and seeks reannexation of the Grassmere Farm property.
April 6, 1988. Homeowners file a petition for writ of mandamus to compel the highway commissioner to complete proceedings on their petition for the vacation of Scott Road. The petition notes homeowners argued at the Cuba Township July 13 hearing that it, not North Barrington, had jurisdiction concerning Scott Road inasmuch as their petition to vacate Scott Road was filed before the petition for annexation to North Barrington was filed. The petition for mandamus appends thereto Suburban National Bank’s April 1 petition seeking reannexation of the subject property to North Barrington and notes that a hearing on this reannexation petition is scheduled for April 11.
April 11, 1988. The Village of North Barrington adopts ordinance No. 451 reannexing the Grassmere Farm property.
April 25, 1988. The Lake County State’s Attorney petitions to intervene in the quo warranto action initiated by the homeowners in light of the homeowners’ recent allegation that Palatine National Bank as trustee under trust No. 5168 was not the “owner of record” of the subject property on July 3, 1987, the date it filed its petition for annexation.
May 2, 1988. State’s Attorney’s petition to intervene is granted, and the parties are realigned.
May 4, 1988. The Lake County State’s Attorney files a complaint for writ of quo warranto noting both the first and second annexations of the subject property but challenging the validity of only the first annexation (ordinance No. 419) in count I of the complaint. The complaint alleges the first annexation is invalid because the petition filed July 3 was not signed by the “owner of record,” the deed to the subject property not having been recorded until July 10, and because North Barrington did not have jurisdiction to consider the petition in view of the pending petition for the vacation of Scott Road filed with Cuba Township. Count II seeks a declaration of rights of the interested parties as to the relative priority of the petition to vacate Scott Road vis-a-vis North Barrington ordinances Nos. 418, 419 and 451.
May 19, 1988. The developer is granted leave to intervene in the quo warranto action.
May 23, 1988. The homeowners’ petition to intervene in the quo warranto action in order to challenge the annexation agreement relative to the subject property (North Barrington ordinance No. 418) is denied. Motion to consolidate the quo warranto (88—MR—7) and mandamus (88—MR—160) actions and a third action not involved in this appeal (88—CH—216) is granted.
July 11, 1988. The developer files a motion for summary judgment against the county’s complaint in quo warranto arguing that compliance with section 7—1—8 of the Municipal Code (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—8) is determined by the facts existing as of the date of the annexation ordinance and it is undisputed that Palatine National Bank as trustee under trust No. 5168 and developer were the legal and beneficial owners of record on July 13, 1987, the date the annexation ordinance was adopted. Further, there is no basis in the law for the county’s claim that annexation ordinance No. 419 is invalid because the homeowners’ petition to vacate Scott Road had priority over the developer’s subsequently filed petition for annexation. The motion requested summary judgment and dismissal as to counts I and II of the complaint.
July 19, 1988. The Village of North Barrington files a motion for summary judgment also, expressly adopting the grounds set forth in the developer’s motion for summary judgment and setting forth the additional ground that the reannexation of the subject property on April 11 pursuant to petition filed on April 1, 1988, by the owner of record renders moot “the issues of this case and the controversy surrounding annexation ordinance 419.” The Village requests summary judgment and dismissal as to counts I and II of the county’s complaint.
August 3, 1988. The county files a cross-motion for summary judgment arguing the first annexation was a nullity from its inception because the petition for annexation was filed seven days before the developer recorded the deed and developer thereafter did not file an amended petition for annexation.
September 12, 1988. The court hears arguments of counsel on the three motions for summary judgment and takes the matter under advisement.
September 29, 1988. The court grants the motion for summary judgment filed by the developer. It finds valid the Village’s July 13, 1987, annexation of the subject property pursuant to the valid petition for annexation before it signed by the owners of record and, in light of that validity, finds moot “the question concerning the petition to vacate Scott Road.”
October 26, 1988. The county files its notice of appeal from the court’s September 19 judgment.
November 9, 1988. Developer files a petition to intervene in the homeowners’ mandamus action and moves to dismiss same based on the court’s summary judgment in quo warranto finding the question of the Scott Road vacation petition to be moot.
November 14, 1988. The Village of North Barrington files a request for a separate ruling on the additional ground asserted in its motion for summary judgment; that is, that the reannexation of the subject property on April 11, 1988, renders moot the issues relating to the validity of the first annexation on July 3, 1987.
The court enters its order denying the Village’s motion for summary judgment.
The court allows the developer to intervene in the mandamus action and schedules a date for hearing on the developer’s motion to dismiss the mandamus action.
November 21, 1988. Homeowners file their opposition to the developer’s motion to dismiss their petition for writ of mandamus asserting the finding of the validity of the first annexation is being appealed and, as such, is not a final determination which would render the cause moot, and, further, the mandamus action was filed on April 6, which was prior to the date of the reannexation on April 11.
December 12, 1988. The court grants developer’s motion to dismiss the mandamus action finding the action moot in view of its finding of validity of the first annexation and the mootness of the question regarding the petition to vacate Scott Road. The court further finds no basis in the law for the claim that the filing of a petition for the vacation of a township road is entitled to priority over a subsequently filed annexation petition.
December 14, 1988. The Village of North Barrington files its notice of appeal from the court’s order denying its motion for summary judgment in the quo warranto action.
January 11, 1989. Homeowners file their notice of appeal from the court’s order dismissing their mandamus action.
January 24, 1989. This court consolidates the county’s, the Village’s, and the homeowners’ appeals.

The first question we must determine is whether we have jurisdiction of the Village’s appeal. The duty of the appellate court to consider its own jurisdiction and to dismiss an appeal if it determines jurisdiction is lacking is well established. (In re Marriage of Merrick (1989), 183 Ill. App. 3d 843.) The Village correctly notes that the denial of a motion for summary judgment ordinarily is not immediately appealable since it is not a final or appealable order. (In re Marriage of Adams (1988), 174 Ill. App. 3d 595, 606.) The Village contends, however, that this court has jurisdiction to consider its appeal under the authority of Reagan v. Baird (1985), 140 Ill. App. 3d 58. We find Reagan does not support such jurisdiction.

Reagan involved a contention that the court’s order granting the plaintiff a voluntary nonsuit without prejudice as to two of three defendants was not a final order in the absence of the finding pursuant to Supreme Court Rule 304(a) since the order entered “without prejudice” as to those two parties “did not adjudicate the rights and liabilities of all the parties or dispose of the entire litigation.” That contention was rejected, however, because a voluntary nonsuit constitutes a termination of the action with respect to the parties non-suited even where the action is dismissed without prejudice.

The Village's suggestion that the court's summary judgment order here did not adjudicate all the rights and liabilities of the parties is not well taken. The trial court heard argument from all the parties, including the Village’s mootness argument. Inasmuch as the trial court did not postpone entry of its summary judgment or stay enforcement thereof as it may do under Supreme Court Rule 192 when there are multiple issues (107 Ill. 2d R. 192), it may be presumed the court intended its order to be a resolution of all the issues presented including, impliedly, a denial of the Village’s request for dismissal of the quo warranto complaint on the ground of mootness. Moreover, the Village’s motion for a separate ruling was filed well beyond 30 days after entry of the court’s summary judgment and after the county had filed its notice of appeal. As such, the trial court’s denial of the Village’s “Motion for Summary Judgment” more likely was simply a denial of its “Motion for Separate Ruling” in consequence of the trial court’s lost jurisdiction. Additionally, the Village’s argument actually concedes that as a result of the court’s summary judgment in the developer’s favor, “the litigation was effectively ended, subject to an appeal.”

We conclude the Village’s appeal is untimely and it is dismissed.

The next issue we determine is whether the county’s and the homeowners’ appeals are moot and should be dismissed due to the Village’s unchallenged reannexation of the subject property.

Despite the fact the Village’s appeal was untimely and must be dismissed, it nevertheless is uncontroverted that North Barrington reannexed the subject property on April 11, 1988. This annexation was pursuant to a petition filed April 1, 1988, which was signed by the record owner, Suburban National Bank as trustee under trust No. 5168 (successor trustee to Palatine National Bank) and attested to by Daniel Light, beneficial owner of trust No. 5168. It is also uncontroverted that the reannexation has not been challenged in a quo warranto action, which is the proper means of challenging a completed noncourt-controlled annexation such as the instant reannexation (In re Petition of Village of Kildeer to Annex Certain Territory (1988), 124 Ill. 2d 533, 543; Edgewood Park No. 2 Homeowners Association v. Countryside Sanitary District (1969), 42 Ill. 2d 241, 245; People ex rel. Foreman v. Village of Round Lake Park (1988), 171 Ill. App. 3d 443, 455). Section 7—1—46 of the Municipal Code bars any direct or indirect challenges to completed annexations which are not instituted within one year after the date the annexation becomes final even when the annexing judge, body or officer did not have jurisdiction of the subject matter and irrespective of whether such annexation may otherwise be defective or void. (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—46; Kildeer, 124 Ill. 2d at 544.) Thus, irrespective of the validity of the first annexation of the subject property, more than one year has passed since the second annexation, and no challenge has been raised to it.

The general rule is that when a reviewing court has notice of facts which show that only moot questions or mere abstract propositions are involved or when the substantial questions involved in the trial court no longer exist, it will dismiss the appeal. (People ex rel. Cairo Turf Club, Inc. v. Taylor (1954), 2 Ill. 2d 160, 164.) “An issue is moot if no actual controversy exists or where events occur which make it impossible for the court to grant effectual relief.” (Wheatley v. Board of Education (1984), 99 Ill. 2d 481, 484-85; Moon Lake Convalescent Center v. Margolis (1989), 180 Ill. App. 3d 245, 257-58; Schnepper v. American Information Technologies, Inc. (1985), 136 Ill. App. 3d 678, 680.) In such cases, the court will not proceed to a final judgment, but will dismiss the case. Barnard v. Michael (1945), 392 Ill. 130, 134.

There are two recognized exceptions to the mootness doctrine: (1) where there is a substantial public interest involved or (2) where the issues are likely to recur but do not remain viable long enough to permit review. (Wheatley, 99 Ill. 2d at 485, Moon Lake, 180 Ill. App. 3d at 258.) In determining whether the public-interest exception will be applied to retain such a moot issue for review three criteria are to be considered: (1) the public nature of the question; (2) the need for an authoritative determination to guide public officers; and (3) the likelihood the question will recur. (City of Chicago v. Gordon (1986), 146 Ill. App. 3d 898, 901.) A clear showing that all three criteria exist is needed before the case will be brought within the public-interest exception. Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, 527.

The instant cause does not fall within either of the exceptions. The county’s argument that the issue of the validity of the instant annexation is one which recurs yet evades review is belied by reference to such cases reviewed on the merits in recent years in this district alone. (See, e.g., People ex rel. Village of Buffalo Grove v. Village of Long Grove (1988), 173 Ill. App. 3d 946, appeal denied (1988), 122 Ill. 2d 593; People ex rel. First National Bank v. City of North Chicago (1987), 158 Ill. App. 3d 85, appeal denied (1987), 116 Ill. 2d 574.) An action contesting an annexation may be initiated for up to one year after the annexation becomes final. (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—46.) Although the county had notice of the second annexation at the time it filed its timely complaint in quo warranto challenging the first annexation, it did not also challenge the validity of annexation ordinance No. 451, the second annexation, nor did the homeowners request that the county or the Attorney General institute quo warranto proceedings to challenge the reannexation on the ground of priority. Its request in count II of its complaint for a declaratory judgment “regarding the priority of proceedings pursuant to the Petition for Vacation and *** North Barrington ordinances 418, 419 and 451” was not a proper challenge to the validity of the second completed annexation. Edgewood Park, 42 Ill. 2d 241; Malecki v. First State Bank (1973), 13 Ill. App. 3d 979; Hinckley-Big Rock School District No. 429 v. Village of Sugar Grove (1982), 105 Ill. App. 3d 959.

As to the public-interest exception, the questions presented are public in nature inasmuch as they involve the construction and application of statutes governing annexation and the vacation of highways. However, the questions presented by these unique circumstances are unlikely to recur “with such frequency as to make imperative the need for a positive rule for the future guidance of public officials.” (See Cairo Turf Club, 2 Ill. 2d at 164.) Although requests for annexation to a municipality of territory contiguous with that municipality are not unusual, it is unique when the interests of the owner of the territory seeking such annexation collide directly with the interests of owners of adjacent property primarily by reason of operation of law; that is, by virtue of section 7—1—1 of the Municipal Code requiring that the municipality’s new boundary after such annexation “shall extend to the far side of any adjacent highway.” (Ill. Rev. Stat. 1987, ch. 24, par. 7—1—1.) It is also quite likely a circumstance unique to this cause that the township road at issue had never been developed to its full 40-foot width and was utilized almost exclusively as a private road by the residents thereon. As such, the likelihood of the recurrence of the question of the priority of a petition to vacate a township road over a petition for annexation is remote.

We conclude the instant appeals are moot, and they are dismissed. In light of our conclusion, it is unnecessary to decide the remaining issues presented by the parties.

In summary:

No. 2—88—1055, Lake County’s appeal from summary judgment on its complaint in quo warranto in favor of the Village of North Barrington and the developer is dismissed as moot.

No. 2—89—0003, The Village’s separate appeal from the court’s summary judgment in quo warranto is dismissed as untimely.

No. 2—89—0050, The homeowners’ appeal from the dismissal of their petition for writ of mandamus is dismissed as moot.

Appeals dismissed.

REINHARD and McLAREN, JJ., concur.